15 CFR Chapter IX - National Oceanic and Atmospheric Administration, Department of Commerce

20 15 CFR Ch. VIII (1–1–21 Edition) § 801.13 180 survey consist of transactions be tween U.S. financial services compa nies and foreign persons for: (1) Brokerage services related to eq uity transactions; (2) Other brokerage services; (3) Underwriting and private place ment services related to equity trans actions; (4) Underwriting and private place ment services related to debt trans actions; (5) Financial management services; (6) Credit-related services, except credit card services; (7) Credit card services; (8) Financial advisory and custody services; (9) Securities lending services; (10) Electronic funds transfer serv ices; and (11) Other financial services. (h) Due date. A fully completed and certified BE–180 report, or qualifying exemption claim with the determina tion of reporting status section com pleted, is due to be filed with BEA not later than September 30, 2020 (or by Oc tober 30, 2020 for respondents that use BEA’s eFile system). [85 FR 31052, May 22, 2020] PARTS 806–899 [RESERVED] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00030 Fmt 8010 Sfmt 8006 Y:\SGML\253053.XXX 253053 21 CHAPTER IX—NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE SUBCHAPTER A—GENERAL REGULATIONS Part Page 900–901 [Reserved] 902 NOAA information collection requirements under the Paperwork Reduction Act: OMB control numbers ................................................................ 23 903 Public information .................................................. 27 904 Civil procedures ...................................................... 27 905 Use in enforcement proceedings of information col lected by voluntary fishery data collectors ......... 57 906 National Appeals Office rules of procedure ............. 58 908 Maintaining records and submitting reports on weather modification activities ........................... 65 909 Marine debris .......................................................... 71 911 Policies and procedures concerning use of the NOAA space-based data collection systems ......... 71 917 National sea grant program funding regulations .... 78 918 Sea grants ............................................................... 85 SUBCHAPTER B—OCEAN AND COASTAL RESOURCE MANAGEMENT 921 National Estuarine Research Reserve System regu lations .................................................................. 90 922 National Marine Sanctuary Program regulations .. 114 923 Coastal Zone Management Program regulations .... 224 930 Federal consistency with approved coastal man agement programs ................................................ 269 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00031 Fmt 8008 Sfmt 8008 Y:\SGML\253053.XXX 253053 22 15 CFR Ch. IX (1–1–21 Edition) Part Page 932–933 [Reserved] SUBCHAPTER C—REGULATIONS OF THE NATIONAL WEATHER SERVICE 946 Modernization of the National Weather Service ..... 311 SUBCHAPTER D—GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE 950 Environmental data and information ..................... 324 960 Licensing of private remote sensing space systems 328 970 Deep seabed mining regulations for exploration li censes ................................................................... 344 971 Deep seabed mining regulations for commercial re covery permits ..................................................... 375 SUBCHAPTER E—OIL POLLUTION ACT REGULATIONS 990 Natural resource damage assessments .................... 416 SUBCHAPTER F—QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA HYDROGRAPHIC PRODUCTS AND SERVICES 995 Certification requirements for distributors of NOAA hydrographic products .............................. 435 996 Quality assurance and certification requirements for NOAA hydrographic products and services ..... 447 SUBCHAPTER G—REQUIREMENTS FOR CERTIFICATION BY NOAA OF NON-FEDERAL ASSETS INTO THE INTEGRATED COASTAL AND OCEAN OBSERVATION SYSTEM 997 Regional information coordination entities ........... 456 998–999 [Reserved] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00032 Fmt 8008 Sfmt 8008 Y:\SGML\253053.XXX 253053 23 SUBCHAPTER A—GENERAL REGULATIONS PARTS 900–901 [RESERVED] PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUC TION ACT: OMB CONTROL NUM BERS AUTHORITY: 44 U.S.C. 3501 et seq. § 902.1 OMB control numbers assigned pursuant to the Paperwork Reduc tion Act. (a) Purpose. This part collects and displays the control numbers assigned to information collection requirements of the National Oceanic and Atmos pheric Administration (NOAA) by the Office of Management and Budget (OMB) pursuant to the Paperwork Re duction Act (PRA). NOAA intends that this part comply with the requirements of section 3507(c)(B)(i) of the PRA, which requires that agencies inventory and display a current control number assigned by the Director of OMB for each agency information collection re quirement. (b) Display. CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 15 CFR Part 908 ................................. –0025 Part 911 ................................. –0157 917.11 ................................ –0008, –0019, and –0034 917.22 ................................ –0008, –0019, and –0034 917.30(b) ............................ –0008, –0019, and –0034 917.41 ................................ –0008, –0019, and –0034 917.43(c) ............................ –0119 918.7 .................................. –0147 Part 921, subpart B ............... –0121 Part 923 ................................. –0119 924.6 .................................. –0141 928.3 .................................. –0119 929.10 ................................ –0141 935.9 .................................. –0141 936.8 .................................. –0141 937.8 .................................. –0141 938.8 .................................. –0141 941.11 ................................ –0141 942.8 .................................. –0141 943.10 ................................ –0141 944.9 .................................. –0141 Part 960, subpart B ............... –0174 Part 970 ................................. –0145 Part 971 ................................. –0170 Part 981 ................................. –0144 50 CFR 216.22 ................................ –0178 216.23 ................................ –0179 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 216.24(f)(2) ........................ –0387 216.24(h)(9)(iii) ................... –0651 216.26 ................................ –0084 216.27 ................................ –0084 216.33 ................................ –0084 216.37 ................................ –0084 216.38 ................................ –0084 216.39 ................................ –0084 216.41 ................................ –0084 216.45 ................................ –0084 216.72 ................................ –0699 216.74 ................................ –0699 216.104 .............................. –0151 216.106 .............................. –0151 216.108 .............................. –0151 216.145 .............................. –0151 222.301(i) ........................... –0084 222.307 .............................. –0230 222.308 .............................. –0084 223.203(b) .......................... –0399 223.206(a) .......................... –0230 223.206(b) and (c) ............. –0178 223.207(e) .......................... –0309 223.210 .............................. –0613 224.105(c) .......................... –0580 229.4 .................................. –0293 229.5 .................................. –0292 229.6 .................................. –0292 230.8 .................................. –0311 253.15 ................................ –0012 259.30 ................................ –0090 259.35 ................................ –0041 260.15 ................................ –0266 260.36 ................................ –0266 260.37 ................................ –0266 260.96 ................................ –0266 260.97 ................................ –0266 260.103 .............................. –0266 270.3 .................................. –0556 270.6 .................................. –0556 270.8 .................................. –0556 270.10 ................................ –0556 270.12 ................................ –0556 270.13 ................................ –0556 270.14 ................................ –0556 270.15 ................................ –0556 270.19 ................................ –0556 270.20 ................................ –0556 270.23 ................................ –0556 296.5 .................................. –0082 300.22 ................................ –0148 300.22(b)(3) ....................... –0387 300.24 ................................ –0202 300.25 ................................ –0239 300.26 ................................ –0690 300.26(c) ............................ –0239 300.26(d) ............................ –0239 300.27 ................................ –0040 300.32 ................................ –0218 300.34 ................................ –0218 300.35 ................................ –0361 300.45 ................................ –0218 300.65(c)(5) ........................ –0575, –0592, –0665 300.65(d) ............................ –0575, –0592 300.65(h) through (l) .......... –0512 300.67(a) through (j) .......... –0592 300.67(k) and (l) ................ –0592 and –0665 300.103(b) and (c) ............. –0194 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00033 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 24 15 CFR Ch. IX (1–1–21 Edition) § 902.1 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 300.104 .............................. –0194 300.105 .............................. –0194 300.106 .............................. –0194 300.107(c) and (l) .............. –0194 300.107(k) .......................... –0724 300.108 .............................. –0194 300.109(c) .......................... –0194 300.110(e) .......................... –0194 300.111 .............................. –0194 300.112 .............................. –0194 300.113(a) .......................... –0194 300.123 .............................. –0205 300.124(b) .......................... –0016 300.125 .............................. –0358 300.152 .............................. –0228 300.153(b) .......................... –0228 300.154(b) .......................... –0228 300.154(c) .......................... –0228 300.154(d) .......................... –0228 300.206(b)(2) ..................... –0651 300.207(c) .......................... –0651 300.208(c) .......................... –0651 300.209(c) .......................... –0651 300.212 .............................. –0595 300.213 .............................. –0595 300.215 .............................. –0649 300.217 .............................. –0595 300.218 .............................. –0649 300.219 .............................. –0596 300.225 .............................. –0649 300.322 .............................. –0732 300.323 .............................. –0732 300.324 .............................. –0739 300.333 .............................. –0304 300.336 .............................. –0304 300.337 .............................. –0304 300.338 .............................. –0304 300.339 .............................. –0304 300.341 .............................. –0304 600.205 .............................. –0314 600.215 .............................. –0314 600.235 .............................. –0192 600.501 .............................. –0089 600.502 .............................. –0075 600.503 .............................. –0354 and –0356 600.504 .............................. –0075 600.506 .............................. –0075 600.507 .............................. –0075 600.508 .............................. –0329 600.510 .............................. –0075 600.512 .............................. –0309 600.520 .............................. –0075 600.630 .............................. –0314 600.725 .............................. –0346 600.745 .............................. –0309 600.747 .............................. –0346 600.1001 ............................ –0376 600.1003 ............................ –0376 600.1005 ............................ –0376 600.1006 ............................ –0376 600.1009 ............................ –0376 600.1010 ............................ –0376 and –0413 600.1011 ............................ –0376 600.1012 ............................ –0376 600.1013 ............................ –0376 600.1014 ............................ –0376 622.4 .................................. –0013 and –0205 622.5 .................................. –0016 622.5(a)(1)(vii) .................... –0591 622.6 .................................. –0358 622.8 .................................. –0205 and –0593 622.9 .................................. –0205 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 622.15 ................................ –0013 and –0262 622.16 ................................ –0551 622.18 ................................ –0205 and –0593 622.19 ................................ –0205 622.20 ................................ –0205 622.21 ................................ –0551 622.22 ................................ –0551 622.26 ................................ –0013 and –0016 622.27 ................................ –0593 622.28 ................................ –0544 622.40(a)(2) ....................... –0205 622.40(d)(2) ....................... –0013 622.41 ................................ –0345 622.41(a) ............................ –0016 and –0305 622.41(g)(3) ....................... –0345 622.45 ................................ –0365 622.45(a) ............................ –0013 622.50 ................................ –0205 622.51 ................................ –0016 622.51(a)(2) ....................... –0543 622.51(a)(3) ....................... –0542 622.51(b) ............................ –0013 622.52 ................................ –0593 622.53 ................................ –0345 622.70 ................................ –0205 622.71 ................................ –0016 622.75 ................................ –0205 622.90(a) ............................ –0013 622.170 .............................. –0205 622.170(c) .......................... –0013 622.171 .............................. –0205 622.172 .............................. –0013 and –0551 622.176 .............................. –0016 622.176(a)(2) ..................... –0593 622.176(b)(2) ..................... –0593 622.176(c) .......................... –0013 622.176(d) .......................... –0593 622.177 .............................. –0359 622.178 .............................. –0603 622.192(h) .......................... –0365 622.200 .............................. –0205 622.200(c) .......................... –0013 622.201 .............................. –0205 622.203 .............................. –0016 622.203(a) .......................... –0591 622.203(b) .......................... –0013 622.204 .............................. –0593 622.205 .............................. –0544 622.207 .............................. –0345 622.220 .............................. –0205 622.221 .............................. –0016 622.225 .............................. –0205 622.240 .............................. –0205 622.240(b) .......................... –0013 622.241 .............................. –0205 622.242 .............................. –0016 622.242(b) .......................... –0013 622.243 .............................. –0359 622.244 .............................. –0593 622.270 .............................. –0205 622.270(d) .......................... –0013 622.271 .............................. –0016 622.271(c) .......................... –0013 622.300 .............................. –0593 622.370 .............................. –0205 622.371 .............................. –0205 622.372 .............................. –0205 622.373 .............................. –0205 622.374 .............................. –0016 622.374(c) .......................... –0013 622.376 .............................. –0359 622.400 .............................. –0205 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00034 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 25 Nat’l Oceanic and Atmospheric Adm., Commerce § 902.1 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 622.402 .............................. –0358 and –0359 622.430 .............................. –0359 622.450 .............................. –0359 622.470 .............................. –0205 622.473 .............................. –0013 635.2 .................................. –0327 635.4(b) .............................. –0327 635.4(c) .............................. –0327 635.4(d) .............................. –0327 635.4(e)(4) ......................... –0205 635.4(g) .............................. –0202 and –0205 635.4(j) ............................... –0327 635.5(a) .............................. –0371, –0328, and –0452 635.5(a)(4) ......................... –0328 635.5(b) .............................. –0013 and –0239 635.5(c) .............................. –0328 635.5(d) .............................. –0323 635.5(f) ............................... –0380 635.6(c) .............................. –0373 635.7(c) .............................. –0374 635.9(e) .............................. –0328 635.14(d) ............................ –0677 635.15(a)(2), (c)(2) and (k)(4). –0677 635.21(d) ............................ –0202 635.26 ................................ –0247 635.31(b) ............................ –0216 635.32 ................................ –0309 635.33 ................................ –0338 635.42 ................................ –0040 635.43 ................................ –0040 635.44 ................................ –0040 635.46 ................................ –0363 635.69(a) and (e)(4) ........... –0372 648.4 .................................. –0202, –0212, –0529, and –0679 648.5 .................................. –0202 648.6 .................................. –0202 and –0555 648.7 .................................. –0018, –0202, –0212, –0229, –0590, and –0605 648.8 .................................. –0350 648.9 .................................. –0202, –0404, and –0529 648.10 ................................ –0202, –0529, and –0605 648.11 ................................ –0202, –0546, –0555, and –0679 648.13 ................................ –0391 and –0481 648.14 ................................ –0202, –0212, –0469, –0602, and –0605 648.15 ................................ –0202 648.15(b) ............................ –0558 648.17 ................................ –0202 648.26 ................................ –0601 648.53 ................................ –0202 and –0491 648.54 ................................ –0202 648.56 ................................ –0321 648.58 ................................ –0202 and –0416 648.60 ................................ –0491 and –0541 648.70 ................................ –0238 648.74 ................................ –0240 648.76 ................................ –0202 648.80 ................................ –0202, –0422, and –0602 648.81 ................................ –0202, –0412, and –0605 648.82 ................................ –0202 and –0605 648.84 ................................ –0202 and –0351 648.85 ................................ –0202, –0212, and –0605 648.86 ................................ –0202, –0391, and –0605 648.87 ................................ –0202 and –0605 648.88 ................................ –0202 and –0605 648.89 ................................ –0202, –0412, and –0605 648.90 ................................ –0202 and –0605 648.91 ................................ –0202 648.92 ................................ –0202 and –0561 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 648.93 ................................ –0202 648.94 ................................ –0202 and –0489 648.95 ................................ –0202 648.96 ................................ –0202 648.100 .............................. –0202 648.106 .............................. –0202 648.122 .............................. –0469 648.123 .............................. –0305 648.144 .............................. –0305 648.160 .............................. –0202 648.205 .............................. –0404 648.207 .............................. –0348–0043, 0348–0044, 0348–0040, and 0348– 0046 648.262 .............................. –0202 648.264 .............................. –0351 648.291 .............................. –0590 648.322 .............................. –0480 and –0489 654.6 .................................. –0358 and –0359 660.13 ................................ –0573, –0619, and –0738 660.14 ................................ –0573 660.15 ................................ –0619 and –0738 660.16 ................................ –0593 660.17 ................................ –0619 and –0738 660.20 ................................ –0355 660.25 ................................ –0203, –0620, and –0737 660.113 .............................. –0271, –0573, –0618, –0619, and –0737 660.114 .............................. –0618 660.140 .............................. –0593, –0619, –0620, and –0737 660.150 .............................. –0593 and –0620 660.160 .............................. –0593 and –0620 660.216 .............................. –0593 660.219 .............................. –0352 660.316 .............................. –0593 660.319 .............................. –0352 660.404 .............................. –0433 660.408 .............................. –0433 660.504 .............................. –0361 660.512 .............................. –0204 660.704 .............................. –0361 660.705(l), (o), and (p) ....... –0498 660.707 .............................. –0204 660.708 .............................. –0498 660.712(d) and (f) .............. –0498 660.713(f)(2) through (g)(5) –0498 663.4 .................................. –0271 663.10 ................................ –0203 663.11 ................................ –0203 663.22 ................................ –0305 663.33 ................................ –0203 665.13 ................................ –0463, –0490, –0577, –0584, –0586, –0589, and –0664 665.14 ................................ –0214, –0462, –0577, –0584, –0586, –0589, and –0664 665.16 ................................ –0361, –0584, –0586, –0589, and –0664 665.17 ................................ –0214 and –0490 665.19 ................................ –0441, –0519, and –0584 665.20 ................................ –0612 665.105 .............................. –0214 665.124 .............................. –0463 665.126 .............................. –0462 665.128 .............................. –0360 665.142 .............................. –0490 and –0586 665.144 .............................. –0214 665.145 .............................. –0214 665.162 .............................. –0490 665.203 .............................. –0490 and –0577 665.205 .............................. –0214 665.207 .............................. –0214 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00035 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 26 15 CFR Ch. IX (1–1–21 Edition) § 902.1 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 665.224 .............................. –0463 665.226 .............................. –0462 665.228 .............................. –0360 665.242 .............................. –0490 and –0586 665.244 .............................. –0214 665.246 .............................. –0360 665.247 .............................. –0214 665.262 .............................. –0490 665.404 .............................. –0490 and –0584 665.407 .............................. –0214 665.424 .............................. –0463 665.426 .............................. –0462 665.428 .............................. –0360 665.442 .............................. –0490 and –0586 665.444 .............................. –0214 665.445 .............................. –0214 665.462 .............................. –0490 665.603 .............................. –0490 665.606 .............................. –0214 665.624 .............................. –0463 665.628 .............................. –0360 665.642 .............................. –0490 and –0586 665.644 .............................. –0214 665.445 .............................. –0214 665.662 .............................. –0490 665.801 .............................. –0490 and –0589 665.803 .............................. –0214 665.804 .............................. –0360 665.807 .............................. –0490 665.808 .............................. –0214 665.815 .............................. –0456 665.819 .............................. –0689 665.905 .............................. –0664 665.935 .............................. –0664 665.965 .............................. –0664 679.4 .................................. –0206, –0272, –0334, –0393, –0513, –0545, –0565, –0665, and –0766 679.5(a) .............................. –0213, –0269, and –0272 679.5(b), (h), and (k) .......... –0213 679.5(c), (e), and (f) ........... –0213, –0272, –0330, –0513, and –0515 679.5(e) and (f) .................. –0401 679.5(g) .............................. –0213, –0272, and –0330 679.5(l)(1) through (l)(5) .... –0272 679.5(l)(7) ........................... –0711 679.5(l)(8) ........................... –0665 679.5(n) .............................. –0269 679.5(p) .............................. –0428 679.5(q) .............................. –0513 679.5(r) ............................... –0213, –0445, and –0545 679.5(s) .............................. –0213, –0445, and –0565 679.5(t) ............................... –0665 679.5(u) .............................. –0206 and –0711 679.5(v) .............................. –0272 679.5(w) ............................. –0272 679.6 .................................. –0206 679.7 .................................. –0206, –0269, –0272, –0316, –0318, –0330, –0334, –0393, –0445, –0513, –0514, –0545, –0565 679.7(a)(7)(i) ...................... –0206 679.7(a)(7)(vii) through (ix) –0334 679.7(b)(6) and (7) and (c)(3) and (c)(4). –0206 and –0334 679.7(f)(1) through (f)(7) and (f)(9) through (16). –0269 and –0272 679.7(f)(8) .......................... –0206 and –0334 679.7(k) .............................. –0393 and –0330 679.7(n)(1) ......................... –0334 679.7(n)(2) and (n)(4) through (8). –0545 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 679.7(n)(3) ......................... –0445 679.20(a)(7)(viii) ................. –0743 679.20(a)(8)(iii) ................... –0206 679.21(f) and (g) ................ –0393 and –0401 679.22(a) ............................ –0206 679.24 ................................ –0353 679.26 ................................ –0316 679.28(a) ............................ –0213 and –0330 679.28(b) through (e) and (i). –0330 679.28(f) ............................. –0206 and –0445 679.28(h) ............................ –0213 and –0515 679.28(j) and (k) ................ –0515 679.28(l) ............................. –0330 679.31(c) ............................ –0269 679.32(c)(1) through (3) ..... –0269 679.32(c)(3) ........................ –0269 and –0318 679.32(d) ............................ –0269, –0318, and –0330 679.32(e) ............................ –0269 679.33 ................................ –0711 679.40 ................................ –0272 679.41(a) ............................ –0272, –0592 679.41(b), (c)(1) through (9), (d) through (f), (g)(1) through (4), (h) through (k), (m), and (n). –0272 679.41(c)(10), (g)(5) through (8), and (l). –0272 and –0665 679.42(a), and (c) through (j). –0272 and –0665 679.42(b), (k)(2), and (l) .... –0353 679.42(f)(1) ........................ –0272, –0592 679.42(f)(6) ........................ –0272, –0592, –0665 679.42(k) ............................ –0445 679.43 ................................ –0272, –0318, –0334, –0401, –0545, –0565, –0569, and –0711 679.45 ................................ –0272, –0592, and –0711 679.50(a) ............................ –0206, –0269, and –0272 679.51 ................................ –0206, –0269, –0272, –0318, –0401, –0513, –0545, and –0565 679.52 ................................ –0318 679.53 ................................ –0318 679.54 ................................ –0318 679.55 ................................ –0206, –0272, and –0711 679.61(a) through (f) .......... –0393 and –0401 679.62 ................................ –0393 679.63 ................................ –0213 and –0330 679.65 ................................ –0213, –0515, and –0633 679.66 ................................ –0711 679.67 ................................ –0711 679.80 ................................ –0545 679.81 ................................ –0545 679.82 ................................ –0545 679.83 ................................ –0545 679.84 ................................ –0213, –0330, and –0545 679.84(c)(7) ........................ –0318 679.85 ................................ –0545 679.90 ................................ –0565 679.91 ................................ –0565 679.93 ................................ –0213, –0330, and –0565 679.93(c)(7) ........................ –0318 679.94 ................................ –0564 679.95 ................................ –0711 679.100(a) ............................. –0330 and –0515. 679.100(b) ............................. –0318, –0330, and –0515. 679.100(c) .......................... –0515 679.100(d) .......................... –0330 679.110(a) through (f) ........ –0206, –0334, –0564, –0700 679.120(b) .......................... –0330 679.120(c), (d), and (e) ...... –0318 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00036 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 27 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 904 CFR part or section where the information collection re quirement is located Current OMB control number (all numbers begin with 0648–) 680.4(a) through (q) ........... –0514 680.5(a) and (h) through (l) –0514 680.5(b) .............................. –0515 680.5(f), (g), (m) ................. –0711. 680.6 .................................. –0518 680.20 ................................ –0516 680.21 ................................ –0514 680.22 ................................ –0334 680.23(d)(1) and (d)(2) ...... –0445 680.23(e), (f), and (g) ........ –0330 680.40(f), (g), (h), (i), (j), (k), (l), and (m). –0514 680.41 ................................ –0514 680.42(a) and (b) ............... –0514 680.43 ................................ –0514 680.44 ................................ –0514 697.4(a), (d) and (e) .......... –0202 697.5 .................................. –0202 697.6 .................................. –0202 697.7 .................................. –0202 697.8 .................................. –0350 697.12 ................................ –0202 697.21 ................................ –0351 697.22 ................................ –0309 1 And –0305. [60 FR 39248, Aug. 2, 1995] EDITORIAL NOTE: For FEDERAL REGISTER ci tations affecting § 902.1, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov. EDITORIAL NOTE 2: At 79 FR 10010, Feb. 24, 2014, § 902.1 was amended by removing entries for 679.7(a)(7)(vii) through (ix), 679.7(n)(1)(x), 679.7(f), 679.7(f)(8)(ii), 679.7(k), 679.7(n)(4)(ii), and 679.20(a)(8)(ii) from the table in para graph (b); however, the amendment could not be incorporated because none of these entries were in the table. PART 903—PUBLIC INFORMATION AUTHORITY: 5 U.S.C. 552 as amended by Pub. L. 93–502; 5 U.S.C. 553; Reorg. Plan No. 2 of 1965, 15 U.S.C. 311 note; 32 FR 9734, 31 FR 10752. § 903.1 Access to information. The rules and procedures regarding public access to the records of the Na tional Oceanic and Atmospheric Ad ministration are found at 15 CFR part 4. [57 FR 35749, Aug. 11, 1992] PART 904—CIVIL PROCEDURES Subpart A—General Sec. 904.1 Purpose and scope. 904.2 Definitions and acronyms. 904.3 Filing and service of notices, docu ments, and other papers. 904.4 Computation of time periods. 904.5 Appearances. Subpart B—Civil Penalties 904.100 General. 904.101 Notice of violation and assessment (NOVA). 904.102 Procedures upon receipt of a NOVA. 904.103 Hearing. 904.104 Final administrative decision. 904.105 Payment of final civil penalty. 904.106 Compromise of civil penalty. 904.107 Joint and several respondents. 904.108 Factors considered in assessing civil penalties. Subpart C—Hearing and Appeal Procedures GENERAL 904.200 Scope and applicability. 904.201 Hearing requests and case docketing. 904.202 Filing of documents. 904.203 [Reserved] 904.204 Duties and powers of Judge. 904.205 Disqualification of Judge. 904.206 Pleadings, motions, and service. 904.207 Amendment of pleading or record. 904.208 Extensions of time. 904.209 Expedited administrative pro ceedings. 904.210 Summary decision. 904.211 Failure to appear. 904.212 Failure to prosecute or defend. 904.213 Settlements. 904.214 Stipulations. 904.215 Consolidation. 904.216 Prehearing conferences. DISCOVERY 904.240 Discovery generally. 904.241 Depositions. 904.242 Interrogatories. 904.243 Admissions. 904.244 Production of documents and inspec tion. 904.245 Subpoenas. HEARINGS 904.250 Notice of time and place of hearing. 904.251 Evidence. 904.252 Witnesses. 904.253 Closing of record. 904.254 Interlocutory review. 904.255 Ex parte communications. POST-HEARING 904.260 Recordation of hearing. 904.261 Post-hearing briefs. DECISION 904.270 Record of decision. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00037 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 28 15 CFR Ch. IX (1–1–21 Edition) § 904.1 904.271 Initial decision. 904.272 Petition for reconsideration. 904.273 Administrative review of decision. Subpart D—Permit Sanctions and Denials GENERAL 904.300 Scope and applicability. 904.301 Bases for permit sanctions or deni als. 904.302 Notice of permit sanction (NOPS). 904.303 Notice of intent to deny permit (NIDP). 904.304 Opportunity for hearing. 904.305 Final administrative decision. PERMIT SANCTIONS FOR NONCOMPLIANCE 904.310 Nature of permit sanctions. 904.311 Compliance. PERMIT SANCTIONS FOR VIOLATIONS 904.320 Nature of permit sanctions. 904.321 Reinstatement of permit. 904.322 Interim action. Subpart E—Written Warnings 904.400 Purpose and scope. 904.401 Written warning as a prior violation. 904.402 Procedures. 904.403 Review and appeal of a written warning. Subpart F—Seizure and Forfeiture Procedures 904.500 Purpose and scope. 904.501 Notice of seizure. 904.502 Bonded release of seized property. 904.503 Appraisement. 904.504 Administrative forfeiture pro ceedings. 904.505 Summary sale. 904.506 Remission of forfeiture and restora tion of proceeds of sale. 904.507 Recovery of certain storage costs. 904.508 Voluntary forfeiture by abandon ment. 904.509 Disposal of forfeited property. 904.510 Return of seized property. AUTHORITY: 16 U.S.C. 1801–1882; 16 U.S.C. 1531–1543; 16 U.S.C. 1361–1407; 16 U.S.C. 3371– 3378; 16 U.S.C. 1431–1439; 16 U.S.C. 773–773k; 16 U.S.C. 951–961; 16 U.S.C. 5001–5012; 16 U.S.C. 3631–3644; 42 U.S.C. 9101 et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971–971k; 16 U.S.C. 781 et seq.; 16 U.S.C. 2401–2413; 16 U.S.C. 2431–2444; 16 U.S.C. 972–972h; 16 U.S.C. 916–916l; 16 U.S.C. 1151–1175; 16 U.S.C. 3601–3608; 16 U.S.C. 1851 note; 15 U.S.C. 5601 et seq.; Pub. L. 105–277; 16 U.S.C. 1822 note, Section 801(f); 16 U.S.C. 2465(a); 16 U.S.C. 5103(b); 16 U.S.C. 1385 et seq.; 16 U.S.C. 1822 note (Section 4006); 16 U.S.C. 4001–4017; 22 U.S.C. 1980(g); 16 U.S.C. 5506(a); 16 U.S.C. 5601–5612; 16 U.S.C. 1822; 16 U.S.C. 973–973(r); 15 U.S.C. 330–330(e). SOURCE: 71 FR 12448, Mar. 10, 2006, unless otherwise noted. Subpart A—General § 904.1 Purpose and scope. (a) This part sets forth the proce dures governing NOAA’s administra tive proceedings for assessment of civil penalties, suspension, revocation, modification, or denial of permits, issuance and use of written warnings, and release or forfeiture of seized prop erty. (b) This subpart defines terms ap pearing in this part and sets forth rules for the filing and service of documents in administrative proceedings covered by this part. (c) The following statutes authorize NOAA to assess civil penalties, impose permit sanctions, issue written warn ings, and/or seize and forfeit property in response to violations of those stat utes: (1) American Fisheries Act of 1998, Public Law 105–277; (2) Anadromous Fish Products Act, 16 U.S.C. 1822 note, Section 801(f); (3) Antarctic Conservation Act of 1978, 16 U.S.C. 2401–2413; (4) Antarctic Marine Living Re sources Convention Act of 1984, 16 U.S.C. 2431–2444; (5) Antarctic Protection Act of 1990, 16 U.S.C. 2465(a); (6) Atlantic Coastal Fisheries Cooper ative Management Act, 16 U.S.C. 5103(b); (7) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601–3608; (8) Atlantic Striped Bass Conserva tion Act, 16 U.S.C. 1851 note; (9) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971–971k; (10) Deep Seabed Hard Mineral Re sources Act, 30 U.S.C. 1401 et seq.; (11) Dolphin Protection Consumer In formation Act, 16 U.S.C. 1385 et seq.; (12) Driftnet Impact Monitoring, As sessment, and Control Act, 16 U.S.C. 1822 note (Section 4006); (13) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972–972h; (14) Endangered Species Act of 1973, 16 U.S.C. 1531–1543; (15) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001–4017; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00038 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 29 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.2 (16) Fisherman’s Protective Act of 1967, 22 U.S.C. 1980(g); (17) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151–1175; (18) High Seas Fishing Compliance Act, 16 U.S.C. 5506(a); (19) Lacey Act Amendments of 1981, 16 U.S.C. 3371–3378; (20) Land Remote-Sensing Policy Act of 1992, 15 U.S.C. 5601 et seq.; (21) Magnuson-Stevens Fishery Con servation and Management Act, 16 U.S.C. 1801–1882; (22) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361–1407; (23) National Marine Sanctuaries Act, 16 U.S.C. 1431–1439; (24) North Pacific Anadromous Stocks Convention Act of 1992, 16 U.S.C. 5001–5012; (25) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773–773k; (26) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C. 5601– 5612; (27) Ocean Thermal Energy Conver sion Act of 1980, 42 U.S.C. 9101 et seq.; (28) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631–3644; (29) Shark Finning Prohibition Act, 16 U.S.C. 1822; (30) South Pacific Tuna Act of 1988, 16 U.S.C. 973–973(r); (31) Sponge Act, 16 U.S.C. 781 et seq.; (32) Tuna Conventions Act of 1950, 16 U.S.C. 951–961; (33) Weather Modification Reporting Act, 15 U.S.C. 330–330e; and (34) Whaling Convention Act of 1949, 16 U.S.C. 916–916l. (d) The procedures set forth in this part are intended to apply to adminis trative proceedings under these and any other statutes or authorities ad ministered by NOAA. § 904.2 Definitions and acronyms. Unless the context otherwise re quires, or as otherwise noted, terms in this Part have the meanings prescribed in the applicable statute or regulation. In addition, the following definitions apply: Administrator means the Adminis trator of NOAA or a designee. Agency means the National Oceanic and Atmospheric Administration (NOAA). ALJ Docketing Center means the Docketing Center of the Office of Ad ministrative Law Judges. Applicable statute means a statute cited in § 904.1(c), and any regulations issued by NOAA to implement it. Authorized officer means: (1) Any commissioned, warrant, or petty officer of the USCG; (2) Any special agent or fishery en forcement officer of NMFS; (3) Any officer designated by the head of any Federal or state agency that has entered into an agreement with the Secretary to enforce the provisions of any statute administered by NOAA; or (4) Any USCG personnel accom panying and acting under the direction of any person described in paragraph (1) of this definition. Citation means a written warning (see section 311(c) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1861(c), and section 11(c) of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773i(c)). Civil penalty means a civil adminis trative monetary penalty assessed under the civil administrative process described in this part. Decision means an initial or final ad ministrative decision of the Judge. Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but does not include inquir ies regarding procedures, scheduling, and status. Final administrative decision means an order or decision of NOAA assessing a civil penalty or permit sanction which is not subject to further Agency review under this part, and which is subject to collection proceedings or judicial re view in an appropriate Federal district court as authorized by law. Forfeiture includes, but is not limited to, surrender or relinquishment of any claim to an item by written agreement, or otherwise; or extinguishment of any claim to, and transfer of title to an item to the U.S. Government by court order or by order of the Administrator under a statute. Hearing means a civil administrative hearing on a NOVA, NOPS and/or NIDP. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00039 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 30 15 CFR Ch. IX (1–1–21 Edition) § 904.3 Initial decision means a decision of the Judge that, under applicable stat ute and regulation, is subject to review by the Administrator. Judge means Administrative Law Judge. NIDP means Notice of Intent to Deny Permit. NMFS means the National Marine Fisheries Service. NOAA (see Agency) means either the Administrator or a designee acting on behalf of the Administrator. NOPS means Notice of Permit Sanc tion. NOVA means Notice of Violation and Assessment of civil penalty. Party means the respondent and the Agency; a joint and several respondent, vessel owner, or permit holder, if they enter an appearance; and any other person allowed to participate under § 904.204(b). Permit means any license, permit, certificate, or other approval issued by NOAA under an applicable statute. Permit holder means the holder of a permit or any agent or employee of the holder, and includes the owner and op erator of a vessel for which the permit was issued. Permit sanction means suspension, revocation, or modification of a permit (see § 904.320). PPIP means Preliminary Position on Issues and Procedures. Respondent means a person issued a written warning, NOVA, NOPS, NIDP or other notice. Settlement agreement means any agreement resolving all or part of an administrative or judicial action. The terms of such an agreement may in clude, but are not limited to, payment of a civil penalty, and/or imposition of a permit sanction. USCG means the U.S. Coast Guard. Vessel owner means the owner of any vessel that may be liable in rem for any civil penalty, or whose permit may be subject to sanction in proceedings under this part. Written warning means a notice in writing to a person that a violation has been documented against the person or against the vessel which is owned or operated by the person, where no civil penalty or permit sanction is imposed or assessed. § 904.3 Filing and service of notices, documents, and other papers. (a) Service of a NOVA (§ 904.101), NOPS (§ 904.302), NIDP (§ 904.303), Notice of Proposed Forfeiture (§ 904.504), No tice of Seizure (§ 904.501), Notice of Summary Sale (§ 904.505) or Written Warning (§ 904.402) may be made by cer tified mail (return receipt requested), facsimile, electronic transmission, or third party commercial carrier to an addressee’s last known address or by personal delivery. Service of a notice under this subpart will be considered effective upon receipt. (b) Service of documents and papers, other than such Notices as described in paragraph (a) of this section, may be made by first class mail (postage pre paid), facsimile, electronic trans mission, or third party commercial carrier, to an addressee’s last known address or by personal delivery. Service of documents and papers will be consid ered effective upon the date of post mark (or as otherwise shown for gov ernment-franked mail), facsimile transmission, delivery to third party commercial carrier, electronic trans mission or upon personal delivery. (c) Whenever this part requires serv ice of a NOVA, NOPS, NIDP, document, or other paper, such service may effec tively be made on the agent for service of process, on the attorney for the per son to be served, or other representa tive. Refusal by the person to be served (including an agent, attorney, or rep resentative) of service of a document or other paper will be considered effec tive service of the document or other paper as of the date of such refusal. In cases where certified notification is re turned unclaimed, service will be con sidered effective if the U.S. Postal Service provides an affidavit stating that the party was receiving mail at the same address during the period when certified service was attempted. (d) Any documents or pleadings filed or served must be signed: (1) By the person or persons filing the same, (2) By an officer thereof if a corpora tion, (3) By an officer or authorized em ployee if a government instrumen tality, or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00040 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 31 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.102 (4) By an attorney or other person having authority to sign. § 904.4 Computation of time periods. For a NOVA, NOPS or NIDP, the 30 day response period begins to run on the date the notice is received. All other time periods begin to run on the day following the service date of the document, paper, or event that begins the time period. Saturdays, Sundays, and Federal holidays will be included in computing such time, except that when such time expires on a Saturday, Sunday, or Federal holiday, in which event such period will be extended to include the next business day. This method of computing time periods also applies to any act, such as paying a civil penalty, required by this part to take place within a specified period of time. When the period of time pre scribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays will be excluded in the computation. § 904.5 Appearances. (a) A party may appear in person or by or with counsel or other representa tive. (b) Whenever an attorney or other representative contacts the Agency on behalf of another person with regard to any matter that has resulted in, or may result in, a written warning, a NOVA, NOPS, NIDP, or a forfeiture proceeding, that attorney or other rep resentative shall file a Notice of Ap pearance with the Agency. Such notice shall indicate the name of the person on whose behalf the appearance is made. (c) Each attorney or other represent ative who represents a party in any hearing shall file a written Notice of Appearance with the Judge. Such no tice shall indicate the name of the case, the docket number, and the party on whose behalf the appearance is made. Subpart B—Civil Penalties § 904.100 General. This subpart sets forth the proce dures governing NOAA administrative proceedings for the assessment of civil penalties under the statutes cited in § 904.1(c). § 904.101 Notice of violation and as sessment (NOVA). (a) A NOVA will be issued by NOAA and served upon the respondent(s). The NOVA will contain: (1) A concise statement of the facts believed to show a violation; (2) A specific reference to the provi sions of the Act, regulation, license, permit, agreement, or order allegedly violated; (3) The findings and conclusions upon which NOAA bases the assessment; (4) The amount of the civil penalty assessed; and (5) Information concerning the re spondent’s rights upon receipt of the NOVA, and will be accompanied by a copy of the regulations in this part governing the proceedings. (b) In assessing a civil penalty, NOAA will take into account information available to the Agency concerning any factor to be considered under the appli cable statute, and any other informa tion that justice or the purposes of the statute require. (c) The NOVA may also contain a proposal for compromise or settlement of the case. NOAA may also attach doc uments that illuminate the facts be lieved to show a violation. § 904.102 Procedures upon receipt of a NOVA. (a) The respondent has 30 days from receipt of the NOVA in which to re spond. During this time the respondent may: (1) Accept the penalty or compromise penalty, if any, by taking the actions specified in the NOVA; (2) Seek to have the NOVA amended, modified, or rescinded under paragraph (b) of this section; (3) Request a hearing under § 904.201(a); (4) Request an extension of time to respond under paragraph (c) of this sec tion; or (5) Take no action, in which case the NOVA becomes a final administrative decision in accordance with § 904.104. (b) The respondent may seek amend ment or modification of the NOVA to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00041 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 32 15 CFR Ch. IX (1–1–21 Edition) § 904.103 conform to the facts or law as that per son sees them by notifying Agency counsel at the telephone number or ad dress specified in the NOVA. If amend ment or modification is sought, Agency counsel will either amend the NOVA or decline to amend it, and so notify the respondent. (c) The respondent may, within the 30 day period specified in paragraph (a) of this section, request an extension of time to respond. Agency counsel may grant an extension of up to 30 days un less he or she determines that the re quester could, exercising reasonable diligence, respond within the 30 day pe riod. If Agency counsel does not re spond to the request within 48 hours of its receipt, the request is granted auto matically for the extension requested, up to a maximum of 30 days. A tele phonic response to the request within the 48 hour period is considered an ef fective response, and will be followed by written confirmation. (d) Agency counsel may, for good cause, grant an additional extension beyond the 30 day period specified in paragraph (c) of this section. § 904.103 Hearing. (a) Any hearing request under § 904.102(a)(3) is governed by the hearing and review procedures set forth in sub part C of this part. (b) [Reserved] § 904.104 Final administrative deci sion. (a) If no request for hearing is timely filed as provided in § 904.201(a), the NOVA becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOVA or on the last day of any delay period granted. (b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative deci sion is as provided in subpart C of this part. § 904.105 Payment of final civil pen alty. (a) Respondent must make full pay ment of the civil penalty within 30 days of the date upon which the NOVA becomes effective as the final adminis trative decision and order of NOAA under § 904.104 or the date of the final administrative decision as provided in subpart C of this part. Payment must be made by mailing or delivering to NOAA at the address specified in the NOVA a check or money order made payable in U.S. currency in the amount of the assessment to the ‘‘Department of Commerce/NOAA,’’ by credit card, or as otherwise directed. (b) Upon any failure to pay the civil penalty assessed, NOAA may request the U.S. Department of Justice to re cover the amount assessed in any ap propriate district court of the United States, may act under § 904.106, or may commence any other lawful action. § 904.106 Compromise of civil penalty. (a) NOAA, in its sole discretion, may compromise, modify, remit, or miti gate, with or without conditions, any civil penalty assessed, or which is sub ject to assessment, except as stated in paragraph (d) of this section. (b) The compromise authority of NOAA under this section may be exer cised either upon the initiative of NOAA or in response to a request by the respondent or a representative sub ject to the requirements of § 904.5. Any such request should be sent to Agency counsel at the address specified in the NOVA. (c) Neither the existence of the com promise authority of NOAA under this section nor NOAA’s exercise thereof at any time changes the date upon which a NOVA becomes final. (d) NOAA will not compromise, mod ify, or remit a civil penalty assessed, or subject to assessment, under the Deep Seabed Hard Mineral Resources Act while an action to review or recover the civil penalty is pending in a court of the United States. § 904.107 Joint and several respond ents. (a) A NOVA may assess a civil pen alty against two or more respondents jointly and severally. Each joint and several respondent is liable for the en tire penalty but, in total, no more than the amount finally assessed may be collected from the respondents. (b) A hearing request by one joint and several respondent is considered a request by the other joint and several VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00042 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 33 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.108 respondent(s). Agency counsel, having received a hearing request from one joint and several respondent, will send a copy of it to the other joint and sev eral respondent(s) in the case. How ever, if the requesting joint and several respondent settles with the Agency prior to the hearing, upon notification by the Agency, any remaining joint and several respondent(s) must affirm atively request a hearing within the time period specified or the case will be removed from the court’s docket as provided in § 904.213. (c) A final administrative decision by the Judge or the Administrator after a hearing requested by one joint and sev eral respondent is binding on all par ties including all other joint and sev eral respondent(s), whether or not they entered an appearance unless they have otherwise resolved the matter through settlement with the Agency. § 904.108 Factors considered in assess ing civil penalties. (a) Factors to be taken into account in assessing a civil penalty, depending upon the statute in question, may in clude the nature, circumstances, ex tent, and gravity of the alleged viola tion; the respondent’s degree of culpa bility, any history of prior violations, and ability to pay; and such other mat ters as justice may require. (b) NOAA may, in consideration of a respondent’s ability to pay, increase or decrease a civil penalty from an amount that would otherwise be war ranted by the other relevant factors. A civil penalty may be increased if a re spondent’s ability to pay is such that a higher civil penalty is necessary to deter future violations, or for commer cial violators, to make a civil penalty more than a cost of doing business. A civil penalty may be decreased if the respondent establishes that he or she is unable to pay an otherwise appropriate civil penalty amount. (c) Except as provided in paragraph (g) of this section, if a respondent as serts that a civil penalty should be re duced because of an inability to pay, the respondent has the burden of prov ing such inability by providing verifiable, complete, and accurate fi nancial information to NOAA. NOAA will not consider a respondent’s inabil ity to pay unless the respondent, upon request, submits such financial infor mation as Agency counsel determines is adequate to evaluate the respond ent’s financial condition. Depending on the circumstances of the case, Agency counsel may require the respondent to complete a financial information re quest form, answer written interrog atories, or submit independent verification of his or her financial in formation. If the respondent does not submit the requested financial infor mation, he or she will be presumed to have the ability to pay the civil pen alty. (d) Financial information relevant to a respondent’s ability to pay includes but is not limited to, the value of re spondent’s cash and liquid assets; abil ity to borrow; net worth; liabilities; in come tax returns; past, present, and fu ture income; prior and anticipated profits; expected cash flow; and the re spondent’s ability to pay in install ments over time. A respondent will be considered able to pay a civil penalty even if he or she must take such ac tions as pay in installments over time, borrow money, liquidate assets, or re organize his or her business. NOAA’s consideration of a respondent’s ability to pay does not preclude an assessment of a civil penalty in an amount that would cause or contribute to the bank ruptcy or other discontinuation of the respondent’s business. (e) Financial information regarding respondent’s ability to pay should be submitted to Agency counsel as soon as possible after the receipt of the NOVA. If a respondent has requested a hearing on the violation alleged in the NOVA and wants the initial decision of the Judge to consider his or her inability to pay, verifiable, complete, and accu rate financial information must be sub mitted to Agency counsel at least 30 days in advance of the hearing, except where the applicable statute expressly provides for a different time period. No information regarding the respondent’s ability to pay submitted by the re spondent less than 30 days in advance of the hearing will be admitted at the hearing or considered in the initial de cision of the Judge, unless the Judge rules otherwise. If the Judge decides to admit any information related to the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00043 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 34 15 CFR Ch. IX (1–1–21 Edition) § 904.200 respondent’s ability to pay submitted less than 30 days in advance of the hearing, Agency Counsel will have 30 days to respond to the submission from the date of admission. In deciding whether to submit such information, the respondent should keep in mind that the Judge may assess de novo a civil penalty either greater or smaller than that assessed in the NOVA. (f) Issues regarding ability to pay will not be considered in an adminis trative review of an initial decision if the financial information was not pre viously presented by the respondent to the Judge prior to or at the hearing. (g) Whenever a statute requires NOAA to take into consideration a re spondent’s ability to pay when assess ing a civil penalty, NOAA will take into consideration information avail able to it concerning a respondent’s ability to pay. In all cases, the NOVA will advise, in accordance with § 904.102, that the respondent may seek to have the civil penalty amount modified by Agency counsel on the basis that he or she does not have the ability to pay the civil penalty assessed. A request to have the civil penalty amount modified on this basis must be made in accord ance with § 904.102 and should be ac companied by supporting financial in formation. Agency counsel may re quest that the respondent submit such additional verifiable, complete and ac curate financial information as Agency counsel determines is necessary to evaluate the respondent’s financial condition (such as by responding to a financial information request form or written interrogatories, or by author izing independent verification of re spondent’s financial condition). A re spondent’s failure to provide the re quested information may serve as the basis for inferring that such informa tion would not have supported the re spondent’s assertion of inability to pay the civil penalty assessed in the NOVA. (h) Whenever a statute requires NOAA to take into consideration a re spondent’s ability to pay when assess ing a civil penalty and the respondent has requested a hearing on the viola tion alleged in the NOVA, the Agency must submit information on the re spondent’s financial condition so that the Judge may consider that informa tion, along with any other factors re quired to be considered, in the Judge’s de novo assessment of a civil penalty. Agency counsel may obtain such finan cial information through discovery procedures under § 904.240, or otherwise. A respondent’s refusal or failure to re spond to such discovery requests may serve as the basis for inferring that such information would have been ad verse to any claim by respondent of in ability to pay the assessed civil pen alty, or result in respondent being barred from asserting financial hard ship. Subpart C—Hearing and Appeal Procedures GENERAL § 904.200 Scope and applicability. (a) This subpart sets forth the proce dures governing the conduct of hear ings and the issuance of initial and final administrative decisions of NOAA involving alleged violations of the laws cited in § 904.1(c) and regulations imple menting these laws, including civil penalty assessments and permit sanc tions and denials. By separate regula tion, these rules may be applied to other proceedings. (b) The Judge is delegated authority to make the initial or final administra tive decision of the Agency in pro ceedings subject to the provisions of this subpart, and to take actions to promote the efficient and fair conduct of hearings as set out in this subpart. The Judge has no authority to rule on constitutional issues or challenges to the validity of regulations promul gated by the Agency or statutes admin istered by NOAA. (c) This subpart is not an inde pendent basis for claiming the right to a hearing but, instead, prescribes pro cedures for the conduct of hearings, the right to which is provided by other au thority. § 904.201 Hearing requests and case docketing. (a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the request must be dated and in writing, and must be served either in person or mailed to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00044 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 35 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.204 the Agency counsel specified in the no tice. The respondent must either at tach a copy of the NOVA, NOPS or NIDP or refer to the relevant NOAA case number. Agency counsel will promptly forward the request for hear ing to the ALJ Docketing Center. (b) If a written application is made to NOAA after the expiration of the time period established in this part for the required filing of hearing requests, Agency counsel will promptly forward the request for hearing along with a motion in opposition, documentation of service and any other relevant mate rials to the ALJ Docketing Center for a determination on whether such re quest shall be considered timely filed. Determinations by the ALJ regarding untimely hearing requests under this section shall be in writing. (c) Upon its receipt for filing in the ALJ Docketing Center, each request for hearing will be promptly assigned a docket number and thereafter the pro ceeding will be referred to by such number. Written notice of the assign ment of hearing to a Judge will promptly be given to the parties. § 904.202 Filing of documents. (a) Pleadings, papers, and other docu ments in the proceeding must be filed in conformance with § 904.3 directly with the Judge, with copies served on the ALJ Docketing Center and all other parties. (b) Unless otherwise ordered by the Judge, discovery requests and answers will be served on the opposing party and need not be filed with the Judge. § 904.203 [Reserved] § 904.204 Duties and powers of Judge. The Judge has all powers and respon sibilities necessary to preside over the parties and the hearing, to hold pre hearing conferences, to conduct the hearing, and to render decisions in ac cordance with these regulations and 5 U.S.C. 554 through 557, including, but not limited to, the authority and duty to do the following: (a) Rule on timeliness of hearing re quests pursuant to § 904.201(b); (b) Rule on a request to participate as a party in the hearing by allowing, denying, or limiting such participation (such ruling will consider views of the parties and be based on whether the re quester could be directly and adversely affected by the determination and whether the requester can be expected to contribute materially to the disposi tion of the proceedings); (c) Schedule the time, place, and manner of conducting the pre-hearing conference or hearing, continue the hearing from day to day, adjourn the hearing to a later date or a different place, and reopen the hearing at any time before issuance of the decision, all in the Judge’s discretion, having due regard for the convenience and neces sity of the parties and witnesses; (d) Schedule and regulate the course of the hearing and the conduct of the participants and the media, including the power to rule on motions to close the hearing in the interests of justice; seal the record from public scrutiny to protect privileged information, trade secrets, and confidential commercial or financial information; and strike testi mony of a witness who refuses to an swer a question ruled to be proper; (e) Administer oaths and affirma tions to witnesses; (f) Rule on contested discovery re quests, establish discovery schedules, and, whenever the ends of justice would thereby be served, take or cause depo sitions or interrogatories to be taken and issue protective orders under § 904.251(h); (g) Rule on motions, procedural re quests, and similar matters; (h) Receive, exclude, limit, and oth erwise rule on offers of proof and evi dence; (i) Examine and cross-examine wit nesses and introduce into the record on the Judge’s own initiative documen tary or other evidence; (j) Rule on requests for appearance of witnesses or production of documents and take appropriate action upon fail ure of a party to effect the appearance or production of a witness or document ruled relevant and necessary to the proceeding; as authorized by law, issue subpoenas for the appearance of wit nesses or production of documents; (k) Require a party or witness at any time during the proceeding to state his or her position concerning any issue or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00045 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 36 15 CFR Ch. IX (1–1–21 Edition) § 904.205 his or her theory in support of such po sition; (l) Take official notice of any matter not appearing in evidence that is among traditional matters of judicial notice; or of a non-privileged document required by law or regulation to be filed with or published by a duly con stituted government body; or of any reasonably available public document; provided that the parties will be ad vised of the matter noticed and given reasonable opportunity to show the contrary; (m) Assess a civil penalty or impose a permit sanction, condition, revocation, or denial of permit application, taking into account all of the factors required by applicable law; (n) Prepare and submit a decision or other appropriate disposition document and certify the record; (o) Award attorney fees and expenses as provided by applicable statute or regulation; (p) Grant preliminary or interim re lief; or (q) Impose, upon the motion of any party, or sua sponte, appropriate sanc tions. (1) Sanctions may be imposed when any party, or any person representing a party, in an administrative proceeding under this part has failed to comply with this part, or any order issued under this part, and such failure to comply: (i) Materially injures or prejudices another party by causing additional ex penses; prejudicial delay; or other in jury or prejudice; (ii) Is a clear and unexcused violation of this part, or any order issued under this part; or (iii) Unduly delays the administra tive proceeding. (2) Sanctions that may be imposed include, but are not limited to, one or more of the following: (i) Issuing an order against the party; (ii) Rejecting or striking any testi mony or documentary evidence offered, or other papers filed, by the party; (iii) Expelling the party from the ad ministrative proceedings; (iv) Precluding the party from con testing specific issues or findings; (v) Precluding the party from making a late filing or conditioning a late fil ing on any terms that are just; (vi) Assessing reasonable expenses, incurred by any other party as a result of the improper action or failure to act; and (vii) Taking any other action, or im posing any restriction or sanction, au thorized by applicable statute or regu lation, deemed appropriate by the Judge. (3) No sanction authorized by this section, other than refusal to accept late filings, shall be imposed without prior notice to all parties and an oppor tunity for any party against whom sanctions would be imposed to be heard. Such opportunity to be heard may be on such notice, and the re sponse may be in such form as the Judge directs and may be limited to an opportunity for a party or a party’s representative to respond orally imme diately after the act or inaction is noted by the Judge. (4) The imposition of sanctions is subject to interlocutory review pursu ant to § 904.254 in the same manner as any other ruling. (5) Nothing in this section shall be read as precluding the Judge from tak ing any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation. [71 FR 12448, Mar. 10, 2006, as amended at 75 FR 35632, June 23, 2010] § 904.205 Disqualification of Judge. (a) The Judge may withdraw volun tarily from an administrative pro ceeding when the Judge deems himself/ herself disqualified. (b) A party may in good faith request the Judge to withdraw on the grounds of personal bias or other disqualifica tion. The party seeking the disquali fication must file with the Judge a timely affidavit or statement setting forth in detail the facts alleged to con stitute the grounds for disqualifica tion, and the Judge will rule on the matter. If the Judge rules against dis qualification, the Judge will place all matters relating to such claims of dis qualification in the record. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00046 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 37 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.209 § 904.206 Pleadings, motions, and serv ice. (a) The original of all pleadings and documents must be filed with the Judge and a copy served upon the ALJ Docketing Center and each party. All pleadings or documents when sub mitted for filing must show that serv ice has been made upon all parties. Such service must be made in accord ance with § 904.3(b). (b) Pleadings and documents to be filed may be reproduced by printing or any other process, provided the copies are clear and legible; must be dated, the original signed in ink or as other wise verified for electronic mail; and must show the docket description and title of the proceeding, and the title, if any, address, and telephone number of the signatory. If typewritten, the im pression may be on only one side of the paper and must be double spaced, if possible, except that quotations may be single spaced and indented. (c) Motions must normally be made in writing and must state clearly and concisely the purpose of and relief sought by the motion, the statutory or principal authority relied upon, and the facts claimed to constitute the grounds requiring the relief requested. (d) Unless otherwise provided, the an swer to any written motion, pleading, or petition must be served within 20 days after service of the motion. If a motion states that opposing counsel has no objection, it may be acted upon as soon as practicable, without await ing the expiration of the 20 day period. Answers must be in writing, unless made in response to an oral motion made at a hearing; must fully and com pletely advise the parties and the Judge concerning the nature of the op position; must admit or deny specifi cally and in detail each material alle gation of the pleading answered; and must state clearly and concisely the facts and matters of law relied upon. Any new matter raised in an answer will be deemed controverted. (e) A response to an answer will be called a reply. A short reply restricted to new matters raised in the answer may be served within 15 days after service of an answer. The Judge has discretion to dispense with the reply. No further responses are permitted. § 904.207 Amendment of pleading or record. (a) A party may amend its pleading as a matter of course at least 20 days prior to a hearing. Within 20 days prior to a hearing a party may amend its pleading only by leave of the Judge or by written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period is longer, unless the Judge otherwise orders. (b) The Judge, upon his or her own initiative or upon application by a party, may order a party to make a more definite statement of any plead ing. (c) Harmless errors in pleadings or elsewhere in the record may be cor rected (by deletion or substitution of words or figures), and broad discretion will be exercised by the Judge in per mitting such corrections. § 904.208 Extensions of time. If appropriate and justified, the Judge may grant any request for an ex tension of time. Requests for exten sions of time must, except in extraor dinary circumstances, be made in writ ing. § 904.209 Expedited administrative proceedings. In the interests of justice and admin istrative efficiency, the Judge, on his or her own initiative or upon the appli cation of any party, may expedite the administrative proceeding. A motion by a party to expedite the administra tive proceeding may, at the discretion of the Judge, be made orally or in writ ing with concurrent actual notice to all parties. Upon granting a motion to expedite the scheduling of an adminis trative proceeding, the Judge may ex pedite pleading schedules, prehearing conferences and the hearing, as appro priate. If a motion for an expedited ad ministrative proceeding is granted, a hearing on the merits may not be scheduled with less than 5 business days notice, unless all parties consent to an earlier hearing. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00047 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 38 15 CFR Ch. IX (1–1–21 Edition) § 904.210 § 904.210 Summary decision. The Judge may render a summary de cision disposing of all or part of the ad ministrative proceeding if: (a) Jointly requested by every party to the administrative proceeding; and (b) There is no genuine issue as to any material fact and a party is enti tled to summary decision as a matter of law. § 904.211 Failure to appear. (a) If, after proper service of notice, any party appears at the hearing and an opposing party fails to appear, the Judge is authorized to: (1) Dismiss the case with prejudice, where the Agency is a non-appearing party; or (2) Where the respondents have failed to appear, find the facts as alleged in the NOVA, NOPS and/or NIDP and enter a default judgment against the respondents. (b) Following an order of default judgment, a non-appearing party may file a petition for reconsideration, in accordance with § 904.272. Only peti tions citing reasons for non-appear ance, as opposed to arguing the merits of the case, will be considered. (c) The Judge will place in the record all the facts concerning the issuance and service of the notice of time and place of hearing. (d) The Judge may deem a failure of a party to appear after proper notice a waiver of any right to a hearing and consent to the making of a decision on the record. (e) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the Judge’s decision. § 904.212 Failure to prosecute or de fend. (a) Whenever the record discloses the failure of any party to file documents, respond to orders or notices from the Judge, or otherwise indicates an inten tion on the part of any party not to participate further in the administra tive proceeding, the Judge may issue: (1) An order requiring any party to show why the matter that is the sub ject of the failure to respond should not be disposed of adversely to that party’s interest; (2) An order requiring any party to certify intent to appear at any sched uled hearing; or (3) Any order, except dismissal, as is necessary for the just and expeditious resolution of the case. (b) [Reserved] § 904.213 Settlements. If settlement is reached before the Judge has certified the record, the Judge shall remove the case from the docket upon notification by the Agen cy. § 904.214 Stipulations. The parties may, by stipulation, agree upon any matters involved in the administrative proceeding and include such stipulations in the record with the consent of the Judge. Written stip ulations must be signed and served upon all parties. § 904.215 Consolidation. The Chief Administrative Law Judge may order that two or more adminis trative proceedings that involve sub stantially the same parties or the same issues be consolidated and/or heard to gether, either upon request of a party or sua sponte. § 904.216 Prehearing conferences. (a) Prior to any hearing or at any other time deemed appropriate, the Judge may, upon his or her own initia tive, or upon the application of any party, direct the parties to appear for a conference or arrange a telephone con ference. The Judge shall provide at least 24 hours notice of the conference to the parties, and shall record such conference by audio recording or court reporter, to consider: (1) Simplification or clarification of the issues or settlement of the case by consent; (2) The possibility of obtaining stipu lations, admissions, agreements, and rulings on admissibility of documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof; (3) Agreements and rulings to facili tate the discovery process; (4) Limitation of the number of ex pert witnesses or other avoidance of cumulative evidence; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00048 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 39 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.240 (5) The procedure, course, and con duct of the administrative proceeding; (6) The distribution to the parties and the Judge prior to the hearing of written testimony and exhibits in order to expedite the hearing; or (7) Such other matters as may aid in the disposition of the administrative proceeding, including the status of set tlement discussions. (b) The Judge in his or her discretion may issue an order showing the mat ters disposed of in such conference, and shall provide a transcript of the con ference upon the request of a party. DISCOVERY § 904.240 Discovery generally. (a) Preliminary position on issues and procedures (PPIP). Prior to hearing the Judge will ordinarily require the par ties to submit a written PPIP. Except for information regarding a respond ent’s ability to pay an assessed civil penalty, this PPIP will normally obvi ate the need for further discovery. (1) The PPIP shall include the fol lowing information: A factual sum mary of the case; a summary of all fac tual and legal issues in dispute; a list of all defenses that will be asserted, to gether with a summary of all factual and legal bases supporting each de fense; a list of all potential witnesses, together with a summary of their an ticipated testimony; and a list of all potential exhibits. (2) The PPIP shall be signed by the party and by an attorney, if one is re tained. The PPIP shall be served upon all parties, along with a copy of each potential exhibit listed in the PPIP. (3) A party has the affirmative obli gation to supplement the PPIP as available information or documenta tion relevant to the stated charges or defenses becomes known to the party. (b) Additional discovery. Upon written motion by a party, the Judge may allow additional discovery only upon a showing of relevance, need, and reason able scope of the evidence sought, by one or more of the following methods: Deposition upon oral examination or written questions, written interrog atories, production of documents or things for inspection and other pur poses, and requests for admission. With respect to information regarding a re spondent’s ability to pay an assessed civil penalty, the Agency may serve any discovery request (i.e., deposition, interrogatories, admissions, production of documents) directly upon the re spondent without first seeking an order from the Judge. (c) Time limits. Motions for deposi tions, interrogatories, admissions, or production of documents or things may not be filed within 20 days of the hear ing except on order of the Judge for good cause shown. Oppositions to a dis covery motion must be filed within 10 days of service unless otherwise pro vided in these rules or by the Judge. (d) Oppositions. Oppositions to any discovery motion or portion thereof must state with particularity the grounds relied upon. Failure to object in a timely fashion constitutes waiver of the objection. (e) Scope of discovery. The Judge may limit the scope, subject matter, meth od, time, or place of discovery. Unless otherwise limited by order of the Judge, the scope of discovery is as fol lows: (1) In general. As allowed under para graph (b) of this section, parties may obtain discovery of any matter, not privileged, that is relevant to the alle gations of the charging document, to the proposed relief, or to the defenses of any respondent, or that appears rea sonably calculated to lead to the dis covery of admissible evidence. (2) Hearing preparation: Materials. A party may not obtain discovery of ma terials prepared in anticipation of liti gation except upon a showing that the party seeking discovery has a substan tial need for the materials in prepara tion of his or her case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party are not discoverable under this section. (3) Hearing preparation: Experts. A party may discover the substance of the facts and opinions to which an ex pert witness is expected to testify and a summary of the grounds for each opinion. A party may also discover VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00049 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 40 15 CFR Ch. IX (1–1–21 Edition) § 904.241 facts known or opinions held by an ex pert consulted by another party in an ticipation of litigation but not ex pected to be called as a witness upon a showing of exceptional circumstances making it impracticable for the party seeking discovery to obtain such facts or opinions by other means. (f) Failure to comply. If a party fails to comply with any provision of this sec tion, including any PPIP, subpoena or order concerning discovery, the Judge may, in the interest of justice: (1) Infer that the admission, testi mony, documents, or other evidence would have been adverse to the party; (2) Rule that the matter or matters covered by the order or subpoena are established adversely to the party; (3) Rule that the party may not in troduce into evidence or otherwise rely upon, in support of any claim or de fense, testimony by such party, officer, or agent, or the documents or other evidence; (4) Rule that the party may not be heard to object to introduction and use of secondary evidence to show what the withheld admission, testimony, docu ments, or other evidence would have shown; or (5) Strike part or all of a pleading (except a request for hearing), a motion or other submission by the party, con cerning the matter or matters covered by the order or subpoena. § 904.241 Depositions. (a) Notice. If a motion for deposition is granted, and unless otherwise or dered by the Judge, the party taking the deposition of any person must serve on that person and on any other party written notice at least 15 days before the deposition would be taken (or 25 days if the deposition is to be taken outside the United States). The notice must state the name and ad dress of each person to be examined, the time and place where the examina tion would be held, the name and mail ing address of the person before whom the deposition would be taken, and the subject matter about which each per son would be examined. (b) Taking the deposition. Depositions may be taken before any officer au thorized to administer oaths by the law of the United States or of the place where the examination is to be held, or before a person appointed by the Judge. Each deponent will be sworn, and any party has the right to cross-examine. Objections are not waived by failure to make them during the deposition un less the ground of the objection is one that might have been removed if pre sented at that time. The deposition will be recorded, transcribed, signed by the deponent, unless waived, and cer tified by the officer before whom the deposition was taken. All transcription costs associated with the testimony of a deponent will be borne by the party seeking the deposition. Each party will bear its own expense for any copies of the transcript. See also § 904.252(a). (c) Alternative deposition methods. By order of the Judge, the parties may use other methods of deposing parties or witnesses, such as telephonic deposi tions or depositions upon written ques tions. Objections to the form of written questions are waived unless made with in 5 days of service of the questions. (d) Use of depositions at hearing. (1) At hearing, part or all of any deposition, so far as admissible under the rules of evidence applied as though the witness were then testifying, may be used against any party who was present or represented at the taking of the deposi tion or had reasonable notice. (2) The deposition of a witness may be used by any party for any purpose if the Judge finds: (i) That the witness is unable to at tend due to death, age, health, impris onment, disappearance or distance from the hearing site; or (ii) That exceptional circumstances make it desirable, in the interest of justice, to allow the deposition to be used. (3) If only part of a deposition is of fered in evidence by a party, any party may introduce any other part. § 904.242 Interrogatories. (a) Use at hearing. If ordered by the Judge, any party may serve upon any other party written interrogatories. Answers may be used at hearing in the same manner as depositions under § 904.241(d). (b) Answers and objections. Answers and objections must be made in writing VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00050 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 41 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.250 under oath, and reasons for the objec tions must be stated. Answers must be signed by the person making them and objections must be signed by the party or attorney making them. Unless oth erwise ordered, answers and objections must be served on all parties within 20 days after service of the interrog atories. (c) Option to produce records. Where the answer to an interrogatory may be ascertained from the records of the party upon whom the interrogatory is served, it is sufficient to specify such records and afford the party serving the interrogatories an opportunity to examine them. § 904.243 Admissions. (a) Request. If ordered by the Judge, any party may serve on any other party a written request for admission of the truth of any relevant matter of fact set forth in the request, including the genuineness of any relevant docu ment described in the request. Copies of documents must be served with the request. Each matter of which an ad mission is requested must be sepa rately stated. (b) Response. Each matter is admitted unless a written answer or objection is served within 20 days of service of the request, or within such other time as the Judge may allow. The answering party must specifically admit or deny each matter, or state the reasons why he or she cannot truthfully admit or deny it. (c) Effect of admission. Any matter ad mitted is conclusively established un less the Judge on motion permits with drawal or amendment of it for good cause shown. § 904.244 Production of documents and inspection. (a) Scope. If ordered by the Judge, any party may serve on any other party a request to produce a copy of any document or specifically des ignated category of documents, or to inspect, copy, photograph, or test any such document or tangible thing in the possession, custody, or control of the party upon whom the request is served. (b) Procedure. The request must set forth: (1) The items to be produced or in spected by item or by category, de scribed with reasonable particularity, and (2) A reasonable time, place, and manner for inspection. The party upon whom the request is served must serve within 20 days a response or objections, which must address each item or cat egory and include copies of the re quested documents. § 904.245 Subpoenas. (a) In general. Subpoenas for the at tendance and testimony of witnesses and the production of documentary evi dence for the purpose of discovery or hearing may be issued as authorized by the statute under which the proceeding is conducted. (b) Timing. Applications for sub poenas must be submitted at least 15 days before the scheduled hearing or deposition. (c) Motions to quash. Any person to whom a subpoena is directed or any party may move to quash or limit the subpoena within 10 days of its service or on or before the time specified for compliance, whichever is shorter. The Judge may quash or modify the sub poena. (d) Enforcement. In case of disobe dience to a subpoena, the requesting party may request the U.S. Depart ment of Justice to invoke the aid of any court of the United States in re quiring the attendance and testimony of witnesses and the production of doc umentary evidence. HEARINGS § 904.250 Notice of time and place of hearing. (a) The Judge shall be responsible for scheduling the hearing. With due re gard for the convenience of the parties, their representatives, or witnesses, the Judge shall fix the time, place and date for the hearing and shall notify all par ties of the same. The Judge will promptly serve on the parties notice of the time and place of hearing. The hearing will not be held less than 20 days after service of the notice of hear ing unless the hearing is expedited as provided under paragraph (c) of this section. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00051 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 42 15 CFR Ch. IX (1–1–21 Edition) § 904.251 (b) A request for a change in the time, place, or date of the hearing may be granted by the Judge. (c) Upon the consent of each party to the administrative proceeding, the Judge may order that one or more issues be heard on submissions or affi davits if it appears that such issues may be resolved by means of written materials and that efficient disposition of those issues can be made without an in-person hearing. (d) At any time after commencement of an administrative proceeding, any party may move to expedite the sched uling of the administrative proceeding as provided in § 904.209. § 904.251 Evidence. (a) In general. (1) At the hearing, every party has the right to present oral or documentary evidence in sup port of its case or defense, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. This paragraph may not be inter preted to diminish the powers and du ties of the Judge under § 904.204. (2) All evidence that is relevant, ma terial, reliable, and probative, and not unduly repetitious or cumulative, is admissible at the hearing. Formal rules of evidence do not necessarily apply to the administrative proceedings, and hearsay evidence is not inadmissible as such. (3) In any case involving a charged violation of law in which the respond ent has admitted an allegation, evi dence may be taken to establish mat ters of aggravation or mitigation. (b) Objections and offers of proof. (1) A party shall state the grounds for objec tion to the admission or exclusion of evidence. Rulings on all objections shall appear in the record. Only objec tions made before the Judge may be raised on appeal. (2) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record. (c) Testimony. (1) Testimony may be received into evidence by the following means: (i) Oral presentation; and (ii) Subject to the discretion of the Judge, written affidavit, telephone, video or other electronic media. (2) Regardless of form, all testimony shall be under oath or affirmation re quiring the witness to declare that the witness will testify truthfully, and sub ject to cross examination. (d) Exhibits and documents. (1) All ex hibits shall be numbered and marked with a designation identifying the sponsor. To prove the content of an ex hibit, the original writing, recording or photograph is required except that a duplicate or copy is admissible to the same extent as an original unless a genuine question is raised as to the au thenticity of the original or, given the circumstances, it would be unfair to admit the duplicate in lieu of the origi nal. The original is not required, and other evidence of the contents of a writing, recording, or photograph is ad missible if the original is lost or de stroyed, not obtainable, in the posses sion of the opponent, or not closely re lated to a controlling issue. Each ex hibit offered in evidence or marked for identification shall be filed and re tained in the record of decision, unless the Judge permits the substitution of copies for the original document. (2) In addition to the requirements set forth in § 904.240(a)(2), parties shall exchange all remaining exhibits that will be offered at hearing prior to the beginning of the hearing, except for good cause or as otherwise directed by the Judge. Exhibits that are not ex changed as required may be denied ad mission into evidence. This require ment does not apply to demonstrative evidence. (e) Physical evidence. (1) Photographs or videos or other electronic media may be substituted for physical evi dence at the discretion of the Judge. (2) Except upon the Judge’s order, or upon request by a party, physical evi dence will be retained after the hearing by the Agency. (f) Stipulations. The parties may, by written stipulation at any stage of the administrative proceeding or orally at the hearing, agree upon any matters. Stipulations may be received in evi dence before or during the hearing and, when received in evidence, shall be VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00052 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 43 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.253 binding on the parties to the stipula tion. (g) Official notice. The Judge may take official notice of such matters as might be judicially noticed by the courts or of other facts within the spe cialized knowledge of the agency as an expert body. Where a decision or part thereof rests on official notice of a ma terial fact not appearing in the evi dence in the record, the fact of official notice shall be so stated in the deci sion, and any party, upon timely re quest, shall be afforded an opportunity to show the contrary. (h) Confidential and sensitive informa tion. (1) The Judge may limit introduc tion of evidence or issue protective or ders that are required to prevent undue disclosure of classified, confidential, or sensitive matters, which include, but are not limited to, matters of a na tional security, business, personal, or proprietary nature. Where the Judge determines that information in docu ments containing classified, confiden tial, or sensitive matters should be made available to another party, the Judge may direct the offering party to prepare an unclassified or non-sen sitive summary or extract of the origi nal. The summary or extract may be admitted as evidence in the record. (2) If the Judge determines that the procedure described in paragraph (h)(1) of this section is inadequate and that classified or otherwise sensitive mat ters must form part of the record in order to avoid prejudice to a party, the Judge may advise the parties and pro vide opportunity for arrangements to permit a party or representative to have access to such matters. (i) Foreign law. (1) A party who in tends to raise an issue concerning the law of a foreign country must give rea sonable notice. The Judge, in deter mining foreign law, may consider any relevant material or source, whether or not submitted by a party. (2) Exhibits in a foreign language must be translated into English before such exhibits are offered into evidence. Copies of both the untranslated and translated versions of the proposed ex hibits, along with the name and quali fications of the translator, must be served on the opposing party at least 10 days prior to the hearing unless the parties otherwise agree. § 904.252 Witnesses. (a) Fees. Witnesses, other than em ployees of a Federal agency, summoned in an administrative proceeding, in cluding discovery, shall receive the same fees and mileage as witnesses in the courts of the United States. (b) Witness counsel. Any witness not a party may have personal counsel to ad vise him or her as to his or her rights, but such counsel may not otherwise participate in the hearing. (c) Witness exclusion. Witnesses who are not parties may be excluded from the hearing room prior to the taking of their testimony. An authorized officer is considered a party for the purposes of this subsection. (d) Oath or affirmation. Witnesses shall testify under oath or affirmation requiring the witness to declare that the witness will testify truthfully. (e) Failure or refusal to testify. If a wit ness fails or refuses to testify, the fail ure or refusal to answer any question found by the Judge to be proper may be grounds for striking all or part of the testimony given by the witness, or any other action deemed appropriate by the Judge. (f) Testimony in a foreign language. If a witness is expected to testify in a language other than the English lan guage, the party sponsoring the wit ness must provide for the services of an interpreter and advise opposing counsel 10 days prior to the hearing concerning the extent to which interpreters are to be used. When available, the inter preter should be court certified under 28 U.S.C. 1827. § 904.253 Closing of record. At the conclusion of the hearing, the evidentiary record shall be closed un less the Judge directs otherwise. Once the record is closed, no additional evi dence shall be accepted except upon a showing that the evidence is material and that there was good cause for fail ure to produce it in a timely fashion. The Judge shall reflect in the record, however, any approved correction to the transcript. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00053 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 44 15 CFR Ch. IX (1–1–21 Edition) § 904.254 § 904.254 Interlocutory review. (a) Application for interlocutory re view shall be made to the Judge. The application shall not be certified to the Administrator except when the Judge determines that: (1) The ruling involves a dispositive question of law or policy about which there is substantial ground for dif ference of opinion; or (2) An immediate ruling will materi ally advance the completion of the pro ceeding; or (3) The denial of an immediate ruling will cause irreparable harm to a party or the public. (b) Any application for interlocutory review shall: (1) Be filed with the Judge within 30 days after the Judge’s ruling; (2) Designate the ruling or part thereof from which appeal is being taken; (3) Set forth the ground on which the appeal lies; and (4) Present the points of fact and law relied upon in support of the position taken. (c) Any party that opposes the appli cation may file a response within 20 days after service of the application. (d) The certification to the Adminis trator by the Judge shall stay pro ceedings before the Judge until the matter under interlocutory review is decided. § 904.255 Ex parte communications. (a) Except to the extent required for disposition of ex parte matters as au thorized by law, the Judge may not consult a person or party on any mat ter relevant to the merits of the ad ministrative proceeding, unless there has been notice and opportunity for all parties to participate. (b) Except to the extent required for the disposition of ex parte matters as authorized by law: (1) No interested person outside the Agency shall make or knowingly cause to be made to the Judge, the Adminis trator, or any Agency employee who is or may reasonably be expected to be in volved in the decisional process of the administrative proceeding an ex parte communication relevant to the merits of the adjudication; and (2) Neither the Administrator, the Judge, nor any Agency employee who is or may reasonably be expected to be involved in the decisional process of the administrative proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication rel evant to the merits of the administra tive proceeding. (c) The Administrator, the Judge, or any Agency employee who is or may reasonably be expected to be involved in the decisional process who receives, makes, or knowingly causes to be made a communication prohibited by this rule shall place in the record of deci sion: (1) All such written communications; (2) Memoranda stating the substance of all such oral communications; and (3) All written responses, and memo randa stating the substance of all oral responses, to the materials described in paragraphs (c)(1) and (c)(2) of this sec tion. (d)(1) Paragraphs (a), (b) and (c) of this section do not apply to commu nications concerning national defense or foreign policy matters. Such ex parte communications to or from an Agency employee on national defense or for eign policy matters, or from employees of the U.S. Government involving intergovernmental negotiations, are allowed if the communicator’s position with respect to those matters cannot otherwise be fairly presented for rea sons of foreign policy or national de fense. (2) Ex parte communications subject to this paragraph will be made a part of the record to the extent that they do not include information classified under an Executive order. Classified in formation will be included in a classi fied portion of the record that will be available for review only in accordance with applicable law. (e) Upon receipt of a communication made, or knowingly caused to be made, by a party in violation of this section the Judge may, to the extent con sistent with the interests of justice, national security, the policy of under lying statutes, require the party to show cause why its claim or interest in VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00054 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 45 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.271 the adjudication should not be dis missed, denied, disregarded, or other wise adversely affected by reason of such violation. (f) The prohibitions of this rule shall apply beginning after issuance of a NOVA, NOPS, NIDP or any other no tice and until a final administrative decision is rendered, but in no event shall they begin to apply later than the time at which an administrative pro ceeding is noticed for hearing unless the person responsible for the commu nication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of her/his acquisition of such knowledge. POST-HEARING § 904.260 Recordation of hearing. (a) All hearings shall be recorded. (b) The official transcript of testi mony taken, together with any exhib its, briefs, or memoranda of law filed therewith, will be filed with the ALJ Docketing Center. Transcripts of testi mony will be available in any hearing and will be supplied to the parties at the cost of the Agency. (c) The Judge may determine wheth er ‘‘ordinary copy’’, ‘‘daily copy’’, or other copy (as those terms are defined by contract) will be necessary and re quired for the proper conduct of the ad ministrative proceeding. § 904.261 Post-hearing briefs. (a) The parties may file post-hearing briefs that include proposed findings of fact and conclusions of law within 30 days from service of the hearing tran script. Reply briefs may be submitted within 15 days after service of the pro posed findings and conclusions to which they respond. (b) The Judge, in his or her discre tion, may establish a different date for filing either initial briefs or reply briefs with the court. (c) In cases involving few parties, limited issues, and short hearings, the Judge may require or a party may re quest that any proposed findings and conclusions and reasons in support be presented orally at the close of a hear ing. In granting such cases, the Judge will advise the parties in advance of hearing. DECISION § 904.270 Record of decision. (a) The exclusive record of decision consists of the official transcript of testimony and administrative pro ceedings; exhibits admitted into evi dence; briefs, pleadings, and other doc uments filed in the administrative pro ceeding; and descriptions or copies of matters, facts, or documents officially noticed in the administrative pro ceeding. Any other exhibits and records of any ex parte communications will ac company the record of decision. (b) The Judge will arrange for appro priate storage of the records of any ad ministrative proceeding, which place of storage need not necessarily be located physically within the ALJ Docketing Center. § 904.271 Initial decision. (a) After expiration of the period pro vided in § 904.261 for the filing of reply briefs (unless the parties have waived briefs or presented proposed findings orally at the hearing), the Judge will render a written decision upon the record in the case, setting forth: (1) Findings and conclusions, and the reasons or bases therefor, on all mate rial issues of fact, law, or discretion presented on the record; (2) An order as to the final disposi tion of the case, including any appro priate ruling, order, sanction, relief, or denial thereof; (3) The date upon which the decision will become effective; and (4) A statement of further right to appeal. (b) If the parties have presented oral proposed findings at the hearing or have waived presentation of proposed findings, the Judge may at the termi nation of the hearing announce the de cision, subject to later issuance of a written decision under paragraph (a) of this section. In such cases, the Judge may direct the prevailing party to pre pare proposed findings, conclusions, and an order. (c) The Judge will serve the written decision on each of the parties, the As sistant General Counsel for Enforce ment and Litigation, and the Adminis trator by certified mail (return receipt VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 46 15 CFR Ch. IX (1–1–21 Edition) § 904.272 requested), facsimile, electronic trans mission or third party commercial car rier to an addressee’s last known ad dress or by personal delivery and upon request will promptly certify to the Administrator the record, including the original copy of the decision, as complete and accurate. (d) An initial decision becomes effec tive as the final administrative deci sion of NOAA 60 days after service, un less: (1) Otherwise provided by statute or regulations; (2) The Judge grants a petition for re consideration under § 904.272; or (3) A petition for discretionary re view is filed or the Administrator issues an order to review upon his/her own initiative under § 904.273. § 904.272 Petition for reconsideration. Unless an order or initial decision of the Judge specifically provides other wise, any party may file a petition for reconsideration of an order or initial decision issued by the Judge. Such pe titions must state the matter claimed to have been erroneously decided, and the alleged errors and relief sought must be specified with particularity. Petitions must be filed within 20 days after the service of such order or initial decision. The filing of a petition for re consideration shall operate as a stay of an order or initial decision or its effec tiveness date unless specifically so or dered by the Judge. Within 15 days after the petition is filed, any party to the administrative proceeding may file an answer in support or in opposition. § 904.273 Administrative review of de cision. (a) Subject to the requirements of this section, any party who wishes to seek review of an initial decision of a Judge must petition for review of the initial decision within 30 days after the date the decision is served. The peti tion must be served on the Adminis trator by registered or certified mail, return receipt requested at the fol lowing address: Administrator, Na tional Oceanic and Atmospheric Ad ministration, Department of Com merce, Room 5128, 14th Street and Con stitution Avenue, NW., Washington, DC 20230. Copies of the petition for review, and all other documents and materials required in paragraph (d) of this sec tion, must be served on all parties and the Assistant General Counsel for En forcement and Litigation at the fol lowing address: Assistant General Counsel for Enforcement and Litiga tion, National Oceanic and Atmos pheric Administration, 8484 Georgia Avenue, Suite 400, Silver Spring, MD 20910. (b) The Administrator may elect to issue an order to review the initial de cision without petition and may af firm, reverse, modify or remand the Judge’s initial decision. Any such order must be issued within 60 days after the date the initial decision is served. (c) Review by the Administrator of an initial decision is discretionary and is not a matter of right. If a party files a timely petition for discretionary re view, or review is timely undertaken on the Administrator’s own initiative, the effectiveness of the initial decision is stayed until further order of the Ad ministrator or until the initial decision becomes final pursuant to paragraph (h) of this section. (d) A petition for review must comply with the following requirements re garding format and content: (1) The petition must include a con cise statement of the case, which must contain a statement of facts relevant to the issues submitted for review, and a summary of the argument, which must contain a succinct, clear and ac curate statement of the arguments made in the body of the petition; (2) The petition must set forth, in de tail, specific objections to the initial decision, the bases for review, and the relief requested; (3) Each issue raised in the petition must be separately numbered, con cisely stated, and supported by detailed citations to specific pages in the record, and to statutes, regulations, and principal authorities. Petitions may not refer to or incorporate by ref erence entire documents or transcripts; (4) A copy of the Judge’s initial deci sion must be attached to the petition; (5) Copies of all cited portions of the record must be attached to the peti tion; (6) A petition, exclusive of attach ments and authorities, must not exceed VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 47 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.273 20 pages in length and must be in the form articulated in section 904.206(b); and (7) Issues of fact or law not argued before the Judge may not be raised in the petition unless such issues were raised for the first time in the Judge’s initial decision, or could not reason ably have been foreseen and raised by the parties during the hearing. The Ad ministrator will not consider new or additional evidence that is not a part of the record before the Judge. (e) The Administrator may deny a pe tition for review that is untimely or fails to comply with the format and content requirements in paragraph (d) of this section without further review. (f) No oral argument on petitions for discretionary review will be allowed. (g) Within 30 days after service of a petition for discretionary review, any party may file and serve an answer in support or in opposition. An answer must comport with the format and con tent requirements in paragraphs (d)(5) through (d)(7) of this section and set forth detailed responses to the specific objections, bases for review and relief requested in the petition. No further replies are allowed, unless requested by the Administrator. (h) If the Administrator has taken no action in response to the petition with in 120 days after the petition is served, said petition shall be deemed denied and the Judge’s initial decision shall become the final agency decision with an effective date 150 days after the pe tition is served. (i) If the Administrator issues an order denying discretionary review, the order will be served on all parties per sonally or by registered or certified mail, return receipt requested, and will specify the date upon which the Judge’s decision will become effective as the final agency decision. The Ad ministrator need not give reasons for denying review. (j) If the Administrator grants discre tionary review or elects to review the initial decision without petition, the Administrator will issue an order to that effect. Such order may identify issues to be briefed and a briefing schedule. Such issues may include one or more of the issues raised in the peti tion for review and any other matters the Administrator wishes to review. Only those issues identified in the order may be argued in any briefs per mitted under the order. The Adminis trator may choose to not order any ad ditional briefing, and may instead make a final determination based on any petitions for review, any responses and the existing record. (k) If the Administrator grants or elects to take discretionary review, and after expiration of the period for filing any additional briefs under para graph (j) of this section, the Adminis trator will render a written decision on the issues under review. The Adminis trator will transmit the decision to each of the parties by registered or cer tified mail, return receipt requested. The Administrator’s decision becomes the final administrative decision on the date it is served, unless otherwise provided in the decision, and is a final agency action for purposes of judicial review; except that an Administrator’s decision to remand the initial decision to the Judge is not final agency action. (l) An initial decision shall not be subject to judicial review unless: (1) The party seeking judicial review has exhausted its opportunity for ad ministrative review by filing a petition for review with the Administrator in compliance with this section, and (2) The Administrator has issued a final ruling on the petition that con stitutes final agency action under paragraph (k) of this section or the Judge’s initial decision has become the final agency decision under paragraph (h) of this section. (m) For purposes of any subsequent judicial review of the agency decision, any issues that are not identified in any petition for review, in any answer in support or opposition, by the Admin istrator, or in any modifications to the initial decision are waived. (n) If an action is filed for judicial re view of a final agency decision, and the decision is vacated or remanded by a court, the Administrator shall issue an order addressing further administra tive proceedings in the matter. Such order may include a remand to the Chief Administrative Law Judge for further proceedings consistent with the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 48 15 CFR Ch. IX (1–1–21 Edition) § 904.300 judicial decision, or further briefing be fore the Administrator on any issues the Administrator deems appropriate. Subpart D—Permit Sanctions and Denials GENERAL § 904.300 Scope and applicability. (a) This subpart sets forth procedures governing the suspension, revocation, modification, and denial of permits for reasons relating to enforcement of the statutes cited in § 904.1(c), except for the statutes listed in paragraph (b) of this section. Nothing in this subpart precludes sanction or denial of a per mit for reasons not relating to enforce ment. As appropriate, and unless other wise specified in this subpart, the pro visions of subparts A, B, and C of this part apply to this subpart. (b) Regulations governing sanctions and denials of permits issued under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.) appear at 15 CFR part 970. § 904.301 Bases for permit sanctions or denials. (a) Unless otherwise specified in a settlement agreement, or otherwise provided in this subpart, NOAA may take action under this subpart with re spect to any permit issued under the statutes cited in § 904.1(c). The bases for an action to sanction or deny a permit include but are not limited to the fol lowing: (1) The commission of any violation prohibited by any statute administered by NOAA, including violation of any regulation promulgated or permit con dition or restriction prescribed there under, by the permit holder or with the use of a permitted vessel; (2) The failure to pay a civil penalty assessed under subparts B and C of this part; (3) The failure to pay a criminal fine imposed or to satisfy any other liabil ity incurred in a judicial proceeding under any of the statutes administered by NOAA; or (4) The failure to comply with any term of a settlement agreement. (b) A permit sanction may be im posed, or a permit denied, under this subpart with respect to the particular permit pertaining to the violation or nonpayment, and may also be applied to any NOAA permit held or sought by the permit holder or successor in inter est to the permit, including permits for other activities or for other vessels. Examples of the application of this pol icy are the following: (1) NOAA suspends Vessel A’s fishing permit for nonpayment of a civil pen alty pertaining to Vessel A. The owner of Vessel A buys Vessel B and applies for a permit for Vessel B to participate in the same or a different fishery. NOAA may withhold that permit until the sanction against Vessel A is lifted. (2) NOAA revokes a Marine Mammal Protection Act permit for violation of its conditions. The permit holder sub sequently applies for a permit under the Endangered Species Act. NOAA may deny the ESA application. (3) Captain X, an officer in Country Y’s fishing fleet, is found guilty of as saulting an enforcement officer. NOAA may impose a condition on the permits of Country Y’s vessels that they may not fish in the Exclusive Economic Zone with Captain X aboard. (See § 904.320(c)). (c) A permit sanction may not be ex tinguished by sale or transfer. A ves sel’s permit sanction is not extin guished by sale or transfer of the ves sel, nor by dissolution or reincorpora tion of a vessel owner corporation, and shall remain with the vessel until lift ed by NOAA. § 904.302 Notice of permit sanction (NOPS). (a) A NOPS will be served on the per mit holder as provided in § 904.3. When a foreign fishing vessel is involved, service will be made on the agent au thorized to receive and respond to any legal process for vessels of that coun try. (b) The NOPS will set forth the per mit sanction to be imposed, the bases for the permit sanction, and any oppor tunity for a hearing. It will state the effective date of the permit sanction, which will ordinarily not be earlier than 30 days after the date of receipt of the NOPS (see § 904.322). (c) Upon demand by an authorized en forcement officer, a permit holder VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 49 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.320 must surrender a permit against which a permit sanction has taken effect. The effectiveness of the permit sanction, however, does not depend on surrender of the permit. § 904.303 Notice of intent to deny per mit (NIDP). (a) NOAA may issue a NIDP if the permit applicant has been charged with a violation of a statute, regulation, or permit administered by NOAA, for fail ure to pay a civil penalty or criminal fine, or for failure to comply with any term of a settlement agreement. (b) The NIDP will set forth the basis for its issuance and any opportunity for a hearing, and will be served in ac cordance with § 904.3. (c) NOAA will not refund any fee(s) submitted with a permit application if a NIDP is issued. (d) A NIDP may be issued in conjunc tion with or independent of a NOPS. Nothing in this section should be inter preted to preclude NOAA from initi ating a permit sanction action fol lowing issuance of the permit, or from withholding a permit under § 904.310(c) or § 904.320. § 904.304 Opportunity for hearing. (a) Except as provided in paragraph (b) of this section, the recipient of a NOPS or NIDP will be provided an op portunity for a hearing, as governed by § 904.201. (b) There will be no opportunity for a hearing if, with respect to the violation that forms the basis for the NOPS or NIDP, the permit holder had a previous opportunity to participate as a party in an administrative or judicial pro ceeding, whether or not the permit holder did participate, and whether or not such a hearing was held. § 904.305 Final administrative deci sion. (a) If no request for hearing is timely filed as provided in § 904.201(a), the NOPS or NIDP becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOPS or NIDP or on the last day of any delay period granted. (b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative deci sion is as provided in subpart C of this part. PERMIT SANCTIONS FOR NONCOMPLIANCE § 904.310 Nature of permit sanctions. (a) NOAA may suspend, modify, or deny a permit if: (1) A civil penalty has been assessed against the permit holder under sub parts B and C of this part, but the per mit holder has failed to pay the civil penalty, or has failed to comply with any term of a settlement agreement; or (2) A criminal fine or other liability for violation of any of the statutes ad ministered by NOAA has been imposed against the permit holder in a judicial proceeding, but payment has not been made. (b) NOAA will suspend any permit issued to a foreign fishing vessel under section 204(b) of the Magnuson-Stevens Fishery Conservation and Management Act under the circumstances set forth in paragraph (a) of this section. (c) NOAA will withhold any other permit for which the permit holder ap plies if either of the conditions in para graph (a) of this section is applicable. § 904.311 Compliance. If the permit holder pays the crimi nal fine or civil penalty in full or agrees to terms satisfactory to NOAA for payment: (a) The suspension will not take ef fect; (b) Any permit suspended under § 904.310 will be reinstated by order of NOAA; or (c) Any application by the permit holder may be granted if the permit holder is otherwise qualified to receive the permit. PERMIT SANCTION FOR VIOLATIONS § 904.320 Nature of permit sanctions. Subject to the requirements of this subpart, NOAA may take any of the following actions or combination of ac tions if a permit holder or permitted vessel violates a statute administered by NOAA, or any regulation promul gated or permit condition prescribed thereunder: (a) Revocation. A permit may be can celled, with or without prejudice to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 50 15 CFR Ch. IX (1–1–21 Edition) § 904.321 issuance of the permit in the future. Additional requirements for issuance of any future permit may be imposed. (b) Suspension. A permit may be sus pended either for a specified period of time or until stated requirements are met, or both. If contingent on stated requirements being met, the suspen sion is with prejudice to issuance of any permit until the requirements are met. (c) Modification. A permit may be modified, as by imposing additional conditions and restrictions. If the per mit was issued for a foreign fishing ves sel under section 204(b) of the Magnu son-Stevens Fishery Conservation and Management Act, additional condi tions and restrictions may be imposed on the application of the foreign nation involved and on any permits issued under such application. § 904.321 Reinstatement of permit. (a) A permit suspended for a specified period of time will be reinstated auto matically at the end of the period. (b) A permit suspended until stated requirements are met will be rein stated only by order of NOAA. § 904.322 Interim action. (a) To protect marine resources dur ing the pendency of an action under this subpart, in cases of willfulness, or as otherwise required in the interest of public health, welfare, or safety, a Judge may order immediate suspen sion, modification, or withholding of a permit until a decision is made on the action proposed in a NOPS or NIDP. (b) The Judge will order interim ac tion under paragraph (a) of this sec tion, only after finding that there ex ists probable cause to believe that the violation charged in the NOPS or NIDP was committed. The Judge’s finding of probable cause, which will be summa rized in the order, may be made: (1) After review of the factual basis of the alleged violation, following an op portunity for the parties to submit their views (orally or in writing, in the Judge’s discretion); or (2) By adoption of an equivalent find ing of probable cause or an admission in any administrative or judicial pro ceeding to which the recipient of the NOPS or NIDP was a party, including, but not limited to, a hearing to arrest or set bond for a vessel in a civil for feiture action or an arraignment or other hearing in a criminal action. Adoption of a finding or admission under this paragraph may be made only after the Judge reviews pertinent portions of the transcript or other records, documents, or pleadings from the other proceeding. (c) An order for interim action under paragraph (a) of this section is unappealable and will remain in effect until a decision is made on the NOPS or NIDP. Where such interim action has been taken, the Judge will expedite any hearing requested under § 904.304. Subpart E—Written Warnings § 904.400 Purpose and scope. This subpart sets forth the policy and procedures governing the issuance and use of written warnings by persons au thorized to enforce the statutes admin istered by NOAA, and the review of such warnings. A written warning may be issued in lieu of assessing a civil penalty or initiating criminal prosecu tion for violation of any of the laws cited in § 904.1(c). § 904.401 Written warning as a prior violation. A written warning may be used as a basis for dealing more severely with a subsequent violation, including, but not limited to, a violation of the same statute or a violation involving an ac tivity that is related to the prior viola tion. § 904.402 Procedures. (a) Any person authorized to enforce the laws listed in § 904.1(c) or Agency counsel may issue a written warning to a respondent as provided in § 904.3. (b) The written warning will: (1) State that it is a ‘‘written warn ing’’; (2) State the factual and statutory or regulatory basis for its issuance; (3) Advise the respondent of its effect in the event of a future violation; and (4) Inform the respondent of the right of review and appeal under § 904.403. (c) NOAA will maintain a record of written warnings that are issued. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 51 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.501 (d) If, within 120 days of the date of the written warning, further investiga tion indicates that the violation is more serious than realized at the time the written warning was issued, or that the respondent previously committed a similar violation for which a written warning was issued or other enforce ment action was taken, NOAA may withdraw the warning and commence other administrative or judicial pro ceedings. § 904.403 Review and appeal of a writ ten warning. (a) If a respondent receives a written warning from an authorized officer, the respondent may seek review by Agency counsel. The request for review must be in writing and must present the facts and circumstances that explain or deny the violation described in the written warning. The request for re view must be filed at the NOAA Office of the Assistant General Counsel for Enforcement and Litigation, 8484 Geor gia Avenue, Suite 400, Silver Spring, MD 20910, within 60 days of receipt of the written warning. Agency counsel may, in his or her discretion, affirm, vacate, or modify the written warning and will notify the respondent of his or her determination. The Agency coun sel’s determination constitutes the final agency action, unless it is ap pealed pursuant to paragraph (b) of this section. (b) If a respondent receives a written warning from Agency counsel, or re ceives a determination from Agency counsel affirming a written warning issued by an authorized officer, the re spondent may appeal to the NOAA Dep uty General Counsel. The appeal must be filed at the NOAA Office of the Gen eral Counsel, Herbert Hoover Office Building, 14th & Constitution Avenue, NW., Washington, DC 20230, within 60 days of receipt of the written warning issued by Agency counsel, or the deter mination from Agency counsel affirm ing a written warning issued by an au thorized officer. (1) An appeal from an Agency counsel issued written warning must be in writing and must present the facts and circumstances that explain or deny the violation described in the written warning. (2) An appeal from an Agency coun sel’s determination affirming a written warning issued by an authorized officer must be in writing and include a copy of the Agency counsel’s determination affirming the written warning. (c) The NOAA Deputy General Coun sel may, in his or her discretion, af firm, vacate, or modify the written warning and will notify the respondent of the determination. The NOAA Dep uty General Counsel’s determination constitutes the final agency action. Subpart F—Seizure and Forfeiture Procedures § 904.500 Purpose and scope. (a) This subpart sets forth procedures governing the release, abandonment, forfeiture, remission of forfeiture, or return of seized property (including property seized and held solely as evi dence) that is subject to forfeiture under the various statutes adminis tered by NOAA. (b) Except as provided in this sub part, these regulations apply to all seized property subject to forfeiture under the statutes listed in subpart A of this part. This subpart is in addition to, and not in contradiction of, any special rules regarding seizure, holding or disposition of property seized under these statutes. § 904.501 Notice of seizure. Within 60 days from the date of the seizure, NOAA will serve the Notice of Seizure as provided in § 904.3 to the owner or consignee, if known or easily ascertainable, or other party that the facts of record indicate has an interest in the seized property. In cases where the property is seized by a state or local law enforcement agency; a Notice of Seizure will be given in the above manner within 90 days from the date of the seizure. The Notice will describe the seized property and state the time, place and reason for the seizure, in cluding the provisions of law alleged to have been violated. The Notice will in form each interested party of his or her right to file a claim to the seized prop erty, and state a date by which a claim must be filed, which may not be less than 35 days after service of the Notice. The Notice may be combined with a VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 52 15 CFR Ch. IX (1–1–21 Edition) § 904.502 Notice of the sale of perishable fish issued under § 904.505. If a claim is filed the case will be referred promptly to the U.S. Department of Justice for in stitution of judicial proceedings. § 904.502 Bonded release of seized property. (a) As authorized by applicable stat ute, at any time after seizure of any property, NOAA may, in its sole discre tion, release any seized property upon deposit with NOAA of the full value of the property or such lesser amount as NOAA deems sufficient to protect the interests served by the applicable stat ute. In addition, NOAA may, in its sole discretion, accept a bond or other secu rity in place of fish, wildlife, or other property seized. The bond will contain such conditions as NOAA deems appro priate. (b) Property may be released under this section only if possession thereof will not violate or frustrate the pur pose or policy of any applicable law or regulation. Property that will not be released includes, but is not limited to: (1) Property in which NOAA is not satisfied that the requester has a sub stantial interest; (2) Property whose entry into the commerce of the United States is pro hibited; (3) Live animals, except in the inter est of the animals’ welfare; or (4) Property whose release appears to NOAA not to be in the best interest of the United States or serve the purposes of the applicable statute. (c) If NOAA grants the request, the amount paid by the requester will be deposited in a NOAA expense account. The amount so deposited will for all purposes be considered to represent the property seized and subject to for feiture, and payment of the amount by requester constitutes a waiver by re quester of any claim rising from the seizure and custody of the property. NOAA will maintain the money so de posited pending further order of NOAA, order of a court, or disposition by ap plicable administrative proceedings. (d) A request for release need not be in any particular form, but must set forth the following: (1) A description of the property seized; (2) The date and place of the seizure; (3) The requester’s interest in the property, supported as appropriate by bills of sale, contracts, mortgages, or other satisfactory evidence; (4) The facts and circumstances re lied upon by the requester to justify the remission or mitigation; (5) An offer of payment to protect the United States’ interest that requester makes in return for release; (6) The signature of the requester, his or her attorney, or other authorized agent; and (7) A request to defer administrative or judicial forfeiture proceedings until completion of all other related judicial or administrative proceedings (includ ing any associated civil penalty or per mit sanction proceedings). § 904.503 Appraisement. NOAA will appraise seized property to determine its domestic value. Do mestic value means the price at which such or similar property is offered for sale at the time and place of appraise ment in the ordinary course of trade. If there is no market for the seized prop erty at the place of appraisement, the value in the principal market nearest the place of appraisement will be used. If the seized property may not lawfully be sold in the United States, its domes tic value will be determined by other reasonable means. § 904.504 Administrative forfeiture proceedings. (a) When authorized. This section ap plies to property that is determined under § 904.503 to have a value of $500,000 or less, and that is subject to administrative forfeiture under the ap plicable statute. This section does not apply to conveyances seized in connec tion with criminal proceedings. (b) Procedure. (1) NOAA will publish a Notice of Proposed Forfeiture once a week for at least three successive weeks in a newspaper of general cir culation in the Federal judicial district in which the property was seized. How ever, if the value of the seized property does not exceed $1,000, the Notice may be published by posting for at least three successive weeks in a con spicuous place accessible to the public VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00062 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 53 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.505 at the National Marine Fisheries Serv ice Enforcement Office, U.S. District Court, or the U.S. Customs House near est the place of seizure, with the date of posting indicated on the Notice. In addition, a reasonable effort will be made to serve the Notice, as provided in § 904.3, on each person whose iden tity, address and interest in the prop erty are known or easily ascertainable. (2) The Notice of Proposed Forfeiture will: (i) Describe the seized property, in cluding any applicable registration or serial numbers; (ii) State the time, place and reason for the seizure, including the provi sions of law allegedly violated; and (iii) Describe the rights of an inter ested person to file a claim to the prop erty (including the right to petition to remit or mitigate the forfeiture). (3)(i) Except as provided in paragraph (b)(4) of this section, any person claim ing the seized property may file a claim with NOAA, at the address indi cated in the Notice, within 30 days of the date the final Notice was published or posted. The claim must state the claimant’s interest in the property. (ii) Filing a claim does not entitle the claimant to possession of the prop erty. However, it does stop administra tive forfeiture proceedings. (iii) If the claim is timely filed in ac cordance with this section, NOAA will refer the matter to the U.S. Depart ment of Justice to institute forfeiture proceedings in the appropriate U.S. District Court. (4) If a claim is not filed within 30 days of the date the final Notice is pub lished or posted in accordance with this section, NOAA will declare the property forfeited. The Declaration of Forfeiture will be in writing and will be served as provided in § 904.3, on each person whose identity and address and prior interest in the seized property are known or easily ascertainable. The Declaration will describe the property and state the time, place, and reason for its seizure, including the provisions of law violated. The Declaration will identify the Notice of Proposed For feiture, describing the dates and man ner of publication of the Notice and any efforts made to serve the Notice as provided in § 904.3. The Declaration will state that in response to the Notice a proper claim was not timely received by the proper office from any claimant, and that therefore all potential claim ants are deemed to admit the truth of the allegations of the Notice. The Dec laration shall conclude with an order of condemnation and forfeiture of the property to the United States for dis position according to law. All forfeited property will be subject to disposition as authorized by law and regulations of NOAA. (5) If the appraised value of the prop erty is more than $500,000, or a timely and satisfactory claim for property ap praised at $500,000 or less is submitted to NOAA, the matter will be referred to the U.S. Department of Justice to in stitute in rem proceedings in the appro priate U.S. District Court. § 904.505 Summary sale. (a) In view of the perishable nature of fish, any person authorized to enforce a statute administered by NOAA may, as authorized by law, sell or cause to be sold, and any person may purchase, for not less than its domestic fair market value, fish seized under such statute. (b) Any person purchasing fish sub ject to this section must deliver the proceeds of the sale to a person author ized to enforce a statute administered by NOAA immediately upon request of such authorized person. Anyone who does not so deliver the proceeds may be subject to penalties under the applica ble statute or statutes. (c) NOAA will give Notice of the Sale as provided under § 904.3, to the owner or consignee, if known or easily ascer tainable, or to any other party that the facts of record indicate has an interest in the seized fish, unless the owner or consignee or other interested party has otherwise been personally notified. No tice will be sent either prior to the sale, or as soon thereafter as prac ticable. (d) The proceeds of the sale, after de ducting any reasonable costs of the sale, will be subject to any administra tive or judicial proceedings in the same manner as the seized fish would have been, including an action in rem for the forfeiture of the proceeds. Pending disposition of such proceedings, the proceeds will, as appropriate, either be VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 54 15 CFR Ch. IX (1–1–21 Edition) § 904.506 deposited in a NOAA suspense account or submitted to the appropriate court. (e) Seizure and sale of fish is without prejudice to any other remedy or sanc tion authorized by law. § 904.506 Remission of forfeiture and restoration of proceeds of sale. (a) Application of this section. (1) This section establishes procedures for fil ing with NOAA a petition for relief from forfeitures incurred, or alleged to have been incurred, and from potential forfeiture of seized property, under any statute administered by NOAA that au thorizes the remission or mitigation of forfeitures. (2) Although NOAA may properly consider a petition for remission or mitigation of forfeiture and restoration of proceeds of sale along with other consequences of a violation, the remis sion or mitigation of a forfeiture and restoration of proceeds is not disposi tive of any criminal charge filed, civil penalty assessed, or permit sanction proposed, unless NOAA expressly so states. Remission or mitigation of for feiture and restoration of proceeds is in the nature of executive clemency and is granted in the sole discretion of NOAA only when consistent with the purposes of the particular statute in volved and this section. (3) If no petition is timely filed, or if the petition is denied, prior to depos iting the proceeds NOAA may use the proceeds of sale to reimburse the U.S. Government for any costs that by law may be paid from such sums. (4) If NOAA remits the forfeiture and the forfeited property has not been sold, then restoration may be condi tioned upon payment of any applicable costs as defined in this subpart. (b) Petition for relief from forfeiture. (1) Any person claiming an interest in any property which has been or may be ad ministratively forfeited under the pro visions of this section may, at any time after seizure of the property, but no later than 90 days after the date of forfeiture, petition the Assistant Gen eral Counsel for Enforcement and Liti gation, NOAA/GCEL, 8484 Georgia Ave nue, Suite 400, Silver Spring, Maryland 20910, for a remission or mitigation of the forfeiture and restoration of the proceeds of such sale, or such part thereof as may be claimed by the peti tioner. (2) The petition need not be in any particular form, but must set forth the following: (i) A description of the property seized; (ii) The date and place of the seizure; (iii) The petitioner’s interest in the property, supported as appropriate by bills of sale, contracts, mortgages, or other satisfactory evidence; (iv) The facts and circumstances re lied upon by the petitioner to justify the remission or mitigation of for feiture and restoration of proceeds. If the claim is made after the property is forfeited, the petitioner must provide satisfactory proof that the petitioner did not know of the seizure prior to the declaration or condemnation of for feiture, was in such circumstances as prevented him or her from knowing of the same, and that such forfeiture was incurred without any willful neg ligence or intention to violate the ap plicable statute on the part of the peti tioner; and (v) The signature of the petitioner, his or her attorney, or other authorized agent. (3) NOAA will not consider a petition for remission or mitigation of for feiture and restoration of proceeds while a forfeiture proceeding is pending in Federal court. Once such a case is referred to the U.S. Department of Jus tice for institution of judicial pro ceedings, and until the proceedings are completed, any petition received by NOAA will be forwarded to the U.S. De partment of Justice for consideration. (4) A false statement in a petition will subject petitioner to prosecution under 18 U.S.C. 1001. (c) Investigation. NOAA will inves tigate the facts and circumstances shown by the petition and seizure, and may in this respect appoint an investi gator to examine the facts and prepare a report of investigation. (d) Determination of petition. (1) After investigation under paragraph (c) of this section, NOAA will make a deter mination on the matter and notify the petitioner. NOAA may remit or miti gate the forfeiture, on such terms and conditions as are deemed reasonable VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00064 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 55 Nat’l Oceanic and Atmospheric Adm., Commerce § 904.509 and just under the applicable statute and the circumstances. (2) Unless NOAA determines no valid purpose would be served, NOAA will condition a determination to remit or mitigate a forfeiture upon the peti tioner’s submission of an agreement, in a form satisfactory to NOAA, to hold the United States and its officers or agents harmless from any and all claims based on loss of or damage to the seized property or that might re sult from grant of remission or mitiga tion and restoration of proceeds. If the petitioner is not the beneficial owner of the property, or if there are others with a proprietary interest in the prop erty, NOAA may require the petitioner to submit such an agreement executed by the beneficial owner or other inter ested party. NOAA may also require that the property be promptly exported from the United States. (e) Compliance with the determination. A determination by NOAA to remit or mitigate the forfeiture and restore the proceeds upon stated conditions, as upon payment of a specified amount, will be effective for 60 days after the date of the determination. If the peti tioner does not comply with the condi tions within that period in a manner prescribed by the determination, or make arrangements satisfactory to NOAA for later compliance, the remis sion or mitigation and restoration of proceeds will be void, and judicial or administrative forfeiture proceedings will be instituted or resumed. (f) Appropriated property. If forfeited property that is the subject of a claim for restoration of proceeds has been ap propriated for official use, retention by the U.S. Government will be regarded as a sale for the purposes of this sec tion. § 904.507 Recovery of certain storage costs. If any fish, wildlife, or evidentiary property is seized and forfeited under the Endangered Species Act, 16 U.S.C. 1531 through 1543, any person whose act or omission was the basis for the sei zure may be charged a reasonable fee for expenses to the United States con nected with the transfer, board, han dling or storage of such property. If any fish or wildlife is seized in connec tion with a violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371 through 3378, or any property is seized in connection with a violation of the Magnuson-Stevens Fishery Conserva tion and Management Act, 16 U.S.C. 1801 through 1882, any person convicted thereof, or assessed a civil penalty therefor, may be assessed a reasonable fee for expenses of the United States connected with the storage, care and maintenance of such property. Within a reasonable time after forfeiture, NOAA will send to such person by reg istered or certified mail, return receipt requested, a bill for such fee. The bill will contain an itemized statement of the applicable costs, and instructions on the time and manner of payment. Payment must be made in accordance with the bill. If the recipient of the bill objects to the reasonableness of the costs assessed he or she may, within 30 days of receipt, file written objections with NOAA at the address stated in the bill. NOAA will promptly review the written objections and within 30 days mail the final determination to the party who filed them. NOAA’s deter mination will constitute final agency action on the matter. § 904.508 Voluntary forfeiture by aban donment. (a) The owner of seized property may voluntarily forfeit all right, title, and interest in the property by abandoning it to NOAA. Voluntary forfeiture by abandonment under this section may be accomplished by various means, in cluding, but not limited to: expressly waiving any claim to the property by voluntarily relinquishing any right, title, and interest by written agree ment or otherwise; or refusing or oth erwise avoiding delivery of returned property; or failing to respond within 90 days of service of any certified or registered notice regarding a return of seized property issued under § 904.510(b). (b) Property will be declared finally forfeited by abandonment, without re course, upon a finding of abandonment by NOAA. § 904.509 Disposal of forfeited prop erty. (a) Delivery to Administrator. Upon for feiture of any fish, wildlife, parts or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00065 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 56 15 CFR Ch. IX (1–1–21 Edition) § 904.509 products thereof, or other property to the United States, including the aban donment or waiver of any claim to any such property, it will be delivered to NOAA for storage or disposal according to the provisions of this section. (b) Disposal. Disposal may be accom plished by one of the following means unless the property is the subject of a petition for remission or mitigation of forfeiture or disposed of by court order: (1) Return to the wild; (2) Use by NOAA or transfer to an other government agency for official use; (3) Donation or loan; (4) Sale; or (5) Destruction. (c) Purposes of disposal. Disposal pro cedures may be used to alleviate over crowding of evidence storage facilities; to avoid the accumulation of seized property where disposal is not other wise accomplished by court order; to address the needs of governmental agencies and other institutions and or ganizations for such property for sci entific, educational, and public display purposes; and for other valid reasons. In no case will property be used for per sonal purposes, either by loan recipi ents or government personnel. (d) Disposal of evidence. Property that is evidence may be disposed of only after authorization by the NOAA Office of General Counsel. Disposal approval usually will not be given until the case involving the evidence is closed, except that perishable property may be au thorized for disposal sooner. (e) Loans—(1) To institutions. Property approved for disposal may be loaned to institutions or organizations request ing such property for scientific, edu cational, or public display purposes. Property will be loaned only after exe cution of a loan agreement which pro vides, among other things, that the loaned property will be used only for noncommercial scientific, educational, or public display purposes, and that it will remain the property of the U.S. Government, which may demand its re turn at any time. Parties requesting the loan of property must demonstrate the ability to provide adequate care and security for the property. Loans may be made to responsible agencies of foreign governments in accordance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora. (2) To individuals. Property generally will not be loaned to individuals not af filiated with an institution or organi zation unless it is clear that the prop erty will be used in a noncommercial manner, and for scientific, educational, or public display purposes which are in the public interest. (3) Selection of loan recipients. Recipi ents of property will be chosen so as to assure a wide distribution of the prop erty throughout the scientific, edu cational, public display and museum communities. Other branches of NMFS, NOAA, the Department of Commerce, and other governmental agencies will have the right of first refusal of any property offered for disposal. The Ad ministrator may solicit applications, by publication of a notice in the FED ERAL REGISTER, from qualified persons, institutions, and organizations who are interested in obtaining the property being offered. Such notice will contain a statement as to the availability of specific property for which transferees are being sought, and instructions on how and where to make application. Applications will be granted in the fol lowing order: other offices of NMFS, NOAA, and the Department of Com merce; U.S. Fish and Wildlife Service; other Federal agencies; other govern mental agencies; scientific, edu cational, or other public or private in stitutions; and private individuals. (4) Loan agreement. Property will be transferred under a loan agreement ex ecuted by the Administrator and the borrower. Any attempt on the part of the borrower to retransfer property, even to another institution for related purposes, will violate and invalidate the loan agreement, and entitle the United States to immediate reposses sion of the property, unless the prior approval of the Administrator has been obtained under § 904.510(d)(5). Violation of the loan agreement may also subject the violator to the civil penalties pro vided by the laws governing possession and transfer of the property. (5) Temporary reloans; documents to ac company property. Temporary reloans by the borrower to another qualified borrower (as for temporary exhibition) VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00066 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 57 Nat’l Oceanic and Atmospheric Adm., Commerce § 905.1 may be made if the Administrator is advised in advance by the borrowers. Temporary loans for more than thirty days must be approved in advance in writing by the Administrator. A copy of the original loan agreement, and a copy of the written approval for reloan, if any, must accompany the property whenever it is temporarily reloaned or is shipped or transported across state or international boundaries. (f) Sale. (1) Any fish, wildlife, parts or products thereof, and other property which has been voluntarily forfeited by abandonment to NOAA may be sold or offered for sale, with the exception of any species or property which is other wise prohibited from being sold at the time it is to be sold or offered for sale. (2) Property will be sold in accord ance with current Federal Property Management Regulations (41 CFR chapter 101) or U.S. Customs laws and regulations, except that NOAA may: (i) Sell at fair market value perish able fish pursuant to the summary sales provisions of 15 CFR 904.505; and (ii) Sell, destroy, or otherwise dispose of property for which it is determined the expense of keeping it is dispropor tionate to the value thereof. (3) The proceeds of sale may be used to reimburse NOAA for any costs which by law NOAA is authorized to recover or to pay any rewards which by law may be paid from sums that NOAA re ceives. (g) Destruction. (1) Property not oth erwise disposed of may be destroyed. (2) Destruction will be accomplished in accordance with the requirements of 41 CFR parts 101 through 145. (3) When destroyed, the fact, manner, and date of destruction and the type and quantity destroyed must be cer tified by the official actually destroy ing the property. (4) No duly authorized officer of NOAA shall be liable for the destruc tion or other disposition of property made pursuant to this section. (h) Recordkeeping. A disposal form will be completed each time property is disposed of pursuant to the policy and procedure established herein, and will be retained in the case file for the prop erty. These forms will be available to the public. § 904.510 Return of seized property. (a) Return. In cases where NOAA, in its sole discretion, determines that for feiture of seized property would not be in the best interest of the U.S. Govern ment, NOAA will make a reasonable attempt to determine the party that the facts of record indicate has a pre dominant ownership interest in the seized property and, provided such a determination can be made, will ar range for return of the seized property to that party by appropriate means. (b) Notice. NOAA will serve a Notice of the Return of property as provided by § 904.3, to the owner, consignee, or other party the facts of record indicate has an interest in the seized property. The Notice will describe the seized property, state the time, place, and reason for the seizure and return, and will identify the owner or consignee, and if appropriate, the bailee of the seized property. The Notice of the re turn also will state that the party to whom the property is being returned is responsible for any distribution of the property to any party who holds a valid claim, right, title or interest in receiv ing the property, in whole or in part. The Notice also will provide that on presentation of the Notice and proper identification, and the signing of a re ceipt provided by NOAA, the seized property is authorized to be released. PART 905—USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED BY VOLUNTARY FISH ERY DATA COLLECTORS Sec. 905.1 Scope. 905.2 Definitions. 905.3 Access to information. 905.4 Use of information. 905.5 Exceptions. AUTHORITY: 16 U.S.C. 1853(f). SOURCE: 60 FR 39251, Aug. 2, 1995, unless otherwise noted. § 905.1 Scope. This part applies to the use, in en forcement proceedings conducted pur suant to the Magnuson Act, the MMPA, and the ESA, of information collected by voluntary fishery data col lectors. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00067 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 58 15 CFR Ch. IX (1–1–21 Edition) § 905.2 § 905.2 Definitions. When used in this part: Consenting owner means the owner, operator, or crewmember of a vessel carrying a voluntary fishery data col lector. Enforcement proceeding means any ju dicial or administrative trial or hear ing, initiated for the purpose of impos ing any civil or criminal penalty au thorized under the Magnuson Act, MMPA, or ESA, including but not lim ited to, any proceeding initiated to: Impose a monetary penalty; modify, sanction, suspend or revoke a lease, li cense or permit; secure forfeiture of seized property; or incarcerate an indi vidual. ESA means the Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., and implementing regulations. Information means all observations, data, statistics, photographs, film, or recordings collected by a voluntary fishery data collector for conservation and management purposes, as defined by the Magnuson Act, MMPA, or ESA, while onboard the vessel of a con senting owner. Magnuson Act means the Magnuson Fishery Conservation and Management Act, as amended, 16 U.S.C. 1801 et seq., and implementing regulations. MMPA means the Marine Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq., and implementing regula tions. Secretary means the Secretary of Commerce, the Secretary of the Inte rior, their chosen designees, or any other Federal agency authorized to en force the provisions of the Magnuson Act, MMPA, or ESA. Vessel means any vessel as defined at 16 U.S.C. 1802(31). Voluntary fishery data collector means: (1) Any person, including an observer or a sea sampler; (2) Placed aboard a vessel by the Sec retary; (3) For the purpose of collecting in formation; and (4) Whose presence aboard that vessel is not required by the Secretary pursu ant to provisions of the Magnuson Act, MMPA, or ESA, or their implementing regulations. § 905.3 Access to information. Information collected by a voluntary fishery data collector: (a) Is subject to disclosure to both the Secretary and the public, to the ex tent required or authorized by law; and (b) Is subject to discovery by any party to an enforcement proceeding, to the extent required or authorized by law. § 905.4 Use of information. (a) Except as provided for in para graph (b) of this section, information collected by a voluntary fishery data collector may not be introduced by the Secretary as evidence against any con senting owner that is a party to an en forcement proceeding. (b) Provided that all applicable evi dentiary requirements are satisfied: (1) Information collected by a vol untary fishery data collector may be introduced in an enforcement pro ceeding by any party except the Sec retary; (2) If information is introduced pur suant to paragraph (b)(1) of this sec tion, all information collected by a vol untary fishery data collector may be introduced by any other party, includ ing the Secretary. (c) Independent evidence derived from information collected by a vol untary fishery data collector may be introduced by any party, including the Secretary, in an enforcement pro ceeding. § 905.5 Exceptions. The provisions of this part shall not apply in any enforcement proceeding against a consenting owner that al leges the actual or attempted: (a) Assault, intimidation, or harass ment (including sexual harassment) of any person; or (b) Impairment or interference with the duties of a voluntary fishery data collector. PART 906—NATIONAL APPEALS OFFICE RULES OF PROCEDURE Sec. 906.1 Purpose and scope. 906.2 Definitions. 906.3 Requesting an appeal and agency record. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00068 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 59 Nat’l Oceanic and Atmospheric Adm., Commerce § 906.2 906.4 General filing requirements. 906.5 Service. 906.6 Ex parte communications. 906.7 Disqualification of appellate officer. 906.8 Scheduling and pre-hearing con ferences. 906.9 Exhibits. 906.10 Evidence. 906.11 Hearing. 906.12 Closing the evidentiary portion of the NAO case record. 906.13 Failure to appear. 906.14 Burden of proof. 906.15 Decisions. 906.16 Reconsideration. 906.17 Review by the Regional Adminis trator. 906.18 Final decision of the Department. AUTHORITY: 16 U.S.C. 1801 et seq.; 16 U.S.C. 1374, 1375 and 1416; 16 U.S.C. 1540; 16 U.S.C. 773f; 16 U.S.C. 973f; 16 U.S.C. 1174; 16 U.S.C. 2437; 16 U.S.C. 4013; 16 U.S.C. 5507; 16 U.S.C. 7009; 16 U.S.C. 3637; 16 U.S.C. 5103 and 5106; 16 U.S.C. 5154 and 5158; 16 U.S.C. 6905, and; 16 U.S.C. 5010. SOURCE: 79 FR 7060, Feb. 6, 2014, unless oth erwise noted. § 906.1 Purpose and scope. (a) This part sets forth the proce dures governing administrative adju dications before the National Appeals Office (NAO). (b) NAO will adjudicate appeals of initial administrative determinations in limited access privilege programs developed under section 303A of the Magnuson-Stevens Fishery Conserva tion and Management Act (MSA) and approved after the effective date of these regulations. Those appeals are in formal proceedings. (c) The procedures in this part may be incorporated by reference in regula tions other than those promulgated pursuant to section 303A of the MSA. (d) The Secretary of Commerce may request that NAO adjudicate appeals in any matter in controversy that re quires findings of fact and conclusions of law, and other quasi-judicial matters that the Secretary deems appropriate, consistent with existing regulations. The Secretary will provide notice to potential appellants and to any af fected party in these other matters through regulations or actual notice. (e) The procedures in this part may not be used to seek review of the valid ity of statutes or regulations. § 906.2 Definitions. As used in this part: Agency record means all material and information, including electronic, the office that issued the initial adminis trative determination relied on or con sidered in reaching its initial adminis trative determination, or which other wise is related to the initial adminis trative determination. Appeal means an appellant’s petition to appeal an initial administrative de termination and all administrative processes of the National Appeals Of fice related thereto. Appellant means a person who is the named recipient of an initial adminis trative determination and appeals it to the National Appeals Office. Appellate officer means an individual designated by the Chief of the National Appeals Office to adjudicate the ap peal. The term may include the Chief of the National Appeals Office. Day means calendar day unless oth erwise specified by the Chief of the Na tional Appeals Office. When computing any time period specified under these rules, count every day, including inter mediate Saturdays, Sundays, and legal holidays. If the date that ordinarily would be the last day for filing with NAO falls on a Saturday, Sunday, or Federal holiday, or a day NAO is closed, the filing period will include the first NAO workday after that date. Department or DOC means the De partment of Commerce. Initial Administrative Determination or IAD means a determination made by an official of the National Marine Fish eries Service that directly and ad versely affects a person’s ability to hold, acquire, use, or be issued a lim ited access privilege. The term also in cludes determinations issued pursuant to other federal law, for which review has been assigned to the National Ap peals Office by the Secretary. NAO means the National Appeals Of fice, an adjudicatory body within the Office of Management and Budget, Na tional Marine Fisheries Service, Na tional Oceanic and Atmospheric Ad ministration, Department of Com merce. The term generally means all NAO personnel, including appellate of ficers. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 60 15 CFR Ch. IX (1–1–21 Edition) § 906.3 NAO case record means the agency record and all additional documents and other materials related to an ap peal and maintained by NAO in a case file. NMFS means the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, De partment of Commerce. National Oceanic and Atmospheric Ad ministration or NOAA means the Na tional Oceanic and Atmospheric Ad ministration, Department of Com merce. Party means a person who files a peti tion for appeal with NAO and an office that issued the IAD if that office par ticipates in the NAO appeal. Regional Administrator means the ad ministrator of one of five regions of NMFS: Northeast, Southeast, West Coast, Alaska, or Pacific Islands. The term also includes an official with similar authority within the DOC, such as the Director of NMFS Office of Sus tainable Fisheries. Representative means an individual properly authorized by an appellant in writing to act for the appellant in con junction with an appeal pending in NAO. The representative does not need to be a licensed attorney. § 906.3 Requesting an appeal and agen cy record. (a) Who may file. Any person who is the named recipient of an initial ad ministrative determination. (b) Petition to appeal. (1) To request an appeal, a person shall submit a writ ten petition of appeal to NAO. (2) The petition shall include a copy of the initial administrative deter mination the person wishes to appeal. (3) In the petition, the person shall state how the initial administrative de termination directly and adversely af fects him or her, why he or she believes the initial administrative determina tion is inconsistent with the law and regulations governing the initial ad ministrative determination, and whether he or she requests a hearing or prefers that an appellate officer make a decision based on the NAO case record and without a hearing. (i) Arguments not raised by the per son in his or her petition to appeal will be deemed waived unless NAO permits amendments to the petition based on good cause for not raising the argu ments in the original petition. (ii) The petition may include addi tional documentation in support of the appeal. (4) If a person requests a hearing, the written request must include a concise statement raising genuine and substan tial issues of a material fact or law that cannot be resolved based on the documentary evidence. (5) In the petition, a person shall state whether the person has a rep resentative, and if so, the name, ad dress, and telephone number for the representative. (c) Address of record. In the petition, the person shall identify the address of record. Documents directed to the ap pellant will be mailed to the address of record, unless the appellant provides NAO and other parties with any changes to his or her address in writ ing. (1) The address of record may include a representative’s address. (2) NAO bears no responsibility if the appellant or his or her representative does not receive documents because ap pellant or his or her representative changed his or her address and did not notify NAO. (3) NAO bears no responsibility if the appellant or his or her representative fails to retrieve documents upon notifi cation from the United States Postal Service or commercial carrier. (4) NAO will presume that documents addressed to an address of record and properly mailed or given to a commer cial carrier for delivery are received. (d) Place of filing. The petition must be transmitted via facsimile. The fac simile number is: 301–713–2384. If the person filing the petition does not have access to a fax machine, he or she may file the petition by mail or commercial carrier addressed to Chief, National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910. (e) Time limitations. (1) A petition must be filed within 45 days after the date the initial administrative deter mination is issued unless a shorter or longer filing timeframe is explicitly specified in the regulations governing the initial administrative determina tion. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00070 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 61 Nat’l Oceanic and Atmospheric Adm., Commerce § 906.6 (2) A person may not request an ex tension of time to file a petition to ap peal. (f) Agency record. (1) Within 20 days of receipt of the copy of the petition to appeal, the office that issued the ini tial administrative determination that is the subject of the appeal shall trans mit the agency record to NAO. (2) The office that issued the initial administrative determination shall or ganize the documents of the agency record in chronological order. Pages at tached to a primary submission shall remain with the primary submission. (g) Agency participation in appeal. Within 20 days of receipt of the copy of the petition to appeal, the office that issued the initial administrative deter mination that is the subject of the ap peal may provide written notice to NAO that it will be a party to the ap peal. An office issuing the initial ad ministrative determination is not re quired to be a party. § 906.4 General filing requirements. (a) Date of filing. Filing refers to pro viding documents to NAO. (1) Except for the agency record re quired under § 906.3(f), all documents filed on behalf of an appellant or re lated to an appeal shall be submitted to NAO via facsimile. The facsimile number is: 301–713–2384. If the person filing does not have access to a fax ma chine, he or she may file by regular mail or commercial carrier addressed to Chief, National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910. (2) A document transmitted to NAO is considered filed upon receipt of the entire submission by 5 p.m. Eastern Time at NAO. (b) Copies. At the time of filing a sub mission to NAO, the filing party shall serve a copy thereof on every other party, unless otherwise provided for in these rules. (c) Retention. All submissions to NAO become part of a NAO case record. (d) Extension of time. When a submis sion is required to be filed at NAO by a deadline, a party may request, in writ ing, an extension of time to file the submission, citing the specific rea son(s) for the need for an extension. NAO may grant one extension of up to 30 days if an appellate officer deter mines the party has established good cause for an extension of time, taking into account whether the party timely requested the extension or the extent to which the party missed the deadline. § 906.5 Service. (a) Service refers to providing docu ments to parties to an appeal. (1) Service of documents may be made by first class mail (postage pre paid), facsimile, or commercial carrier, or by personal delivery to a party’s ad dress of record. (2) Service of documents will be con sidered effective upon the date of post mark (or as otherwise shown for gov ernment-franked mail), facsimile transmission, delivery to a commercial carrier, or upon personal delivery. (b) A party shall serve a copy of all documents to all other parties and shall file a copy of all documents with NAO the same business day. (c) NAO may serve documents by electronic mail. § 906.6 Ex parte communications. (a) Ex parte communication means any oral or written communication about the merits of a pending appeal between one party and the NAO with respect to which reasonable prior notice to all parties is not given. However, ex parte communication does not include in quiries regarding procedures, sched uling, and status. (b) Ex parte communication is not permissible unless all parties have been given reasonable notice and an oppor tunity to participate in the commu nication. (c) If NAO receives an ex parte com munication, NAO shall document the communication and any responses thereto in the NAO case record. If the ex parte communication was in writ ing, NAO shall include a copy of the communication in the NAO case record. If the ex parte communication was oral, NAO shall prepare a memo randum stating the substance of the oral communication, and include the memorandum in the NAO case record. NAO will provide copies of any such materials included in the NAO case record under this paragraph to the par ties. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00071 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 62 15 CFR Ch. IX (1–1–21 Edition) § 906.7 (d) NAO may require a party to show cause why such party’s claim or inter est in the appeal should not be dis missed, denied, disregarded, or other wise adversely affected because of an ex parte communication. (e) NAO may suspend this section during an alternative dispute resolu tion process established by regulation or agency policy. (f) Communication with NAO, includ ing appellate officers, concerning pro cedures, scheduling, and status is per missible. § 906.7 Disqualification of appellate of ficer. (a) An appellate officer shall dis qualify himself or herself if the appel late officer has a perceived or actual conflict of interest, a perceived or ac tual prejudice or bias, for other ethical reasons, or based on principles found in the American Bar Association Model Code of Judicial Conduct for Adminis trative Law Judges. (b) Any party may request an appel late officer, at any time before the fil ing of the appellate officer’s decision, to withdraw on the ground of personal bias or disqualification, by filing a written motion with the appellate offi cer setting forth in detail the matters alleged to constitute grounds for dis qualification. (c) The appellate officer, orally or in writing, shall grant or deny the motion based on the American Bar Association Model Code of Judicial Conduct for Federal Administrative Law Judges and other applicable law or policy. If the motion is granted, the appellate of ficer will disqualify himself or herself and withdraw from the proceeding. If the motion is denied, the appellate offi cer will state the grounds for his or her ruling and proceed with his or her re view. § 906.8 Scheduling and pre-hearing conferences. (a) NAO may convene a scheduling and/or pre-hearing conference if, for ex ample, an appellate officer in his or her discretion finds a conference will mate rially advance the proceeding. (b) NAO shall notify the parties in writing 10 days prior to a conference unless the Chief of NAO orders a short er period of time for providing notice of conducting a conference. A party may request one change in the sched uled pre-hearing date. In determining whether to grant the request, NAO will consider whether the requesting party has shown good cause for the change in date. (c) In exercising his or her discretion whether to hold a scheduling and/or pre-hearing conference, an appellate of ficer may consider: (1) Settlement, if authorized under applicable law; (2) Clarifying the issues under review; (3) Stipulations; (4) Hearing(s) date, time, and loca tion; (5) Identifying witnesses for the hear ing(s); (6) Development of the NAO case record, and; (7) Other matters that may aid in the disposition of the proceedings. (d) Recording. NAO may record the conference. (e) Format. At the discretion of the appellate officer, conferences may be conducted by telephone, in person, or by teleconference or similar electronic means. (f) NAO may issue a written order showing the matters disposed of in the conference and may include in the order other matters related to the ap peal. § 906.9 Exhibits. (a) The parties shall mark all exhib its in consecutive order in whole Ara bic numbers and with a designation identifying the party submitting the exhibit(s). (b) Parties shall exchange all exhib its that will be offered at the hearing at least 10 days before the hearing. (c) Parties shall provide all exhibit(s) to NAO at least 5 days before the hear ing. (d) NAO may modify the timeframe for exchanging or submitting exhibits if an appellate officer determines good cause exists. (e) NAO may deny the admission into evidence of exhibits that are not marked and exchanged pursuant to this rule. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00072 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 63 Nat’l Oceanic and Atmospheric Adm., Commerce § 906.12 (f) Each exhibit offered in evidence or marked for identification shall be filed and retained in the NAO case record. § 906.10 Evidence. (a) The Federal Rules of Evidence do not apply to NAO proceedings. (b) An appellate officer will decide whether to admit evidence into the NAO case record. (1) An appellate officer may exclude unduly repetitious, irrelevant, and im material evidence. An appellate officer may also exclude evidence to avoid undue prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. (2) An appellate officer may consider hearsay evidence. (c) Copies of documents may be of fered as evidence, provided they are of equal legibility and quality as the originals, and such copies shall have the same force and effect as if they were originals. If an appellate officer so directs, a party shall submit origi nal documents to the appellate officer. (d) An appellate officer may take of ficial notice of Federal or State public records and of any matter of which courts may take judicial notice. (e) An appellate officer may request, and the program office that issued the initial administrative determination in the case before the appellate officer will provide, the interpretation(s) of the law made by the program office and applied to the facts in the case. § 906.11 Hearing. (a) Procedures. (1) An appellate officer in his or her discretion may order a hearing taking into account the infor mation provided by an appellant pursu ant to § 906.3(b)(3) and whether an ap pellate officer considers that a hearing will materially advance his or her eval uation of the issues under appeal. In exercising his or her discretion, an ap pellate officer may consider whether oral testimony is required to resolve a material issue of fact, whether oral presentation is needed to probe a par ty’s position on a material issue of law, and whether a hearing was held pre viously for the same appeal. If an ap pellate officer determines that a hear ing is not necessary, then the appellate officer will base his or her decision on the NAO case record. In the absence of a hearing an appellate officer may, at his or her discretion, permit the par ties to submit additional materials for consideration. (2) If an appellate officer convenes a hearing, the hearing will be conducted in the manner determined by NAO most likely to obtain the facts relevant to the matter or matters at issue. (3) NAO shall schedule the date, time and place for the hearing. NAO will no tify the parties in writing of the hear ing date, time and place at least 10 days prior to the hearing unless the Chief of NAO orders a shorter period for providing notice or conducting the hearing. A party can request one change in the scheduled hearing date. In determining whether to grant the request, NAO will consider whether the requesting party has shown good cause for the change in date. (4) At the hearing, all testimony will be under oath or affirmation adminis tered by an appellate officer. In the event a party or a witness refuses to be sworn or refuses to answer a question, an appellate officer may state for the record any inference drawn from such refusal. (5) An appellate officer may question the parties and the witnesses. (6) An appellate officer will allow time for parties to present argument, question witnesses and other parties, and introduce evidence consistent with § 906.10. (7) Parties may not compel discovery or the testimony of any witness. (b) Recording. An appellate officer will record the hearing unless the ap pellant consents to proceed without a recording. (c) Format. At the discretion of NAO, hearings may be conducted by tele phone, in person, or by teleconference or similar electronic means. § 906.12 Closing the evidentiary por tion of the NAO case record. (a) At the conclusion of the NAO pro ceedings, an appellate officer will es tablish the date upon which the evi dentiary portion of the NAO case record will close. Once an appellate of ficer closes the evidentiary portion of the NAO case record, with or without a VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00073 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 64 15 CFR Ch. IX (1–1–21 Edition) § 906.13 hearing, no further submissions or ar gument will be accepted into the NAO case record. (b) NAO in its discretion may reopen the evidentiary portion of the NAO case record or request additional infor mation from the parties at any time prior to final agency action. § 906.13 Failure to appear. If any party fails to appear at a pre hearing conference or hearing after proper notice, an appellate officer may: (a) Dismiss the case, or; (b) Deem the failure of a party to ap pear after proper notice a waiver of any right to a hearing and consent to the making of a decision based on the NAO case record. § 906.14 Burden of proof. On issues of fact, the appellant bears the burden of proving he or she should prevail by a preponderance of the evi dence. Preponderance of the evidence is the relevant evidence in the NAO case record, considered as a whole, that shows that a contested fact is more likely to be true than not true. Appel lant has the obligation to obtain and present evidence to support the claims in his or her petition. § 906.15 Decisions. (a) After an appellate officer closes the evidentiary portion of the NAO case record, NAO will issue a written decision that is based on the NAO case record. In making a decision, NAO shall determine whether the appellant has shown by a preponderance of the evidence that the initial administra tive determination is inconsistent with the law and regulations governing the initial administrative determination. In making a decision, NAO shall give deference to the reasonable interpreta tion(s) of applicable ambiguous laws and regulations made by the office issuing the initial administrative de termination. (b) NAO shall serve a copy of its deci sion upon the appellant and the Re gional Administrator. NAO will not provide the case record to the Regional Administrator when issuing its deci sion. § 906.16 Reconsideration. (a) Any party may file a motion for reconsideration of an NAO decision issued under § 906.15. The request must be filed with NAO within 10 days after service of NAO’s decision. A party shall not file more than one motion for re consideration of an NAO decision. (b) The motion must be in writing and contain a detailed statement of an error of fact or law material to the de cision. The process of reconsideration is not a forum for reiterating the ap pellant’s objections to the initial ad ministrative determination. (c) Arguments not raised by a party in his or her motion for reconsider ation of a decision will be deemed waived. (d) In response to a motion for recon sideration, NAO will either: (1) Reject the motion because it does not meet the criteria of paragraph (a) or (b) of this section; or (2) Issue a revised decision and serve a copy of its revised decision upon the appellant and the Regional Adminis trator. (e) At any time prior to notifying the Regional Administrator pursuant to § 906.17(a), the NAO may issue a revised decision to make corrections and serve a copy of its revised decision upon the appellant and the Regional Adminis trator. § 906.17 Review by the Regional Ad ministrator. (a) If NAO does not receive a timely motion for reconsideration pursuant to § 906.16(a), receives a timely motion and rejects it pursuant to § 906.16(d)(1), or issues a revised decision pursuant to § 906.16(d)(2) or (e), NAO will notify the Regional Administrator and the appel lant, and provide a copy of the case record for its decision or revised deci sion to the Regional Administrator. (b) In reviewing NAO’s findings of fact, the Regional Administrator may only consider the evidentiary record including arguments, claims, evidence of record and other documents of record that were before NAO when it rendered its decision or revised deci sion. (c) The Regional Administrator may take the following action within 30 days of service of NAO’s notification VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00074 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 65 Nat’l Oceanic and Atmospheric Adm., Commerce § 908.1 and receipt of the case record under paragraph (a) of this section: (1) Issue a written decision adopting, remanding, reversing, or modifying NAO’s decision or revised decision. (2) Issue a stay for no more than 90 days to prevent NAO’s decision or re vised decision from taking effect. (d) The Regional Administrator must provide a written decision explaining why an NAO decision or revised deci sion has been remanded, reversed, or modified. Consistent with § 906.18(b), the Regional Administrator may, but does not need to, issue a written deci sion to adopt an NAO decision or re vised decision. (e) The Regional Administrator will serve a copy of any written decision or stay on NAO and the appellant. § 906.18 Final decision of the Depart ment. (a) The Regional Administrator’s written decision to adopt, reverse, or modify an NAO decision or revised de cision pursuant to § 906.17(c) is the final decision of the Department for the pur poses of judicial review. (b) If the Regional Administrator does not take action pursuant to § 906.17(c)(1), NAO’s decision issued pur suant to § 906.15(a) or revised decision issued pursuant to § 906.16(d)(2) or (e) becomes the final decision of the De partment for the purposes of judicial review 30 days after service of NAO’s notification under § 906.17(a), or upon expiration of any stay issued by the Regional Administrator pursuant to § 906.17(c)(2). (c) The office that issued the initial administrative determination shall im plement the final decision of the De partment within 30 days of service of the final decision issued pursuant to § 906.18(a), or within 30 days of the deci sion becoming final pursuant to § 906.18(b), to the extent practicable. PART 908—MAINTAINING RECORDS AND SUBMITTING RE PORTS ON WEATHER MODIFICA TION ACTIVITIES Sec. 908.1 Definitions. 908.2 Persons subject to reporting. 908.3 Activities subject to reporting. 908.4 Initial report. 908.5 Interim reports. 908.6 Final report. 908.7 Supplemental reports. 908.8 Maintenance of records. 908.9 Retention of records. 908.10 Penalties. 908.11 Maintenance of records of related ac tivities. 908.12 Public disclosure of information. 908.13 Address of letters. 908.14 Business to be transacted in writing. 908.15 Times for taking action; expiration on Saturday, Sunday, or holiday. 908.16 Signature. 908.17 Suspension or waiver of rules. 908.18 Matters not specifically provided for in rules. 908.19 Publication of notice of proposed amendments. 908.20 Effective date. 908.21 Report form. AUTHORITY: Pub. L. 92–305, 85 Stat. 735, De cember 18, 1971. SOURCE: 41 FR 23394, June 10, 1976, unless otherwise noted. § 908.1 Definitions. As used in this part, terms shall have the meaning ascribed in this section. (a) Administrator. The Administrator of the National Oceanic and Atmos pheric Administration. (b) Person. Any individual, corpora tion, company, association, firm, part nership, society, joint stock company, any State or local government or any agency thereof, or any other organiza tion, whether commercial or nonprofit, except where acting solely as an em ployee, agent, or independent con tractor of the Federal government. (c) Weather modification activity. Any activity performed with the intention of producing artificial changes in the composition, behavior, or dynamics of the atmosphere. (d) United States. The several States, the District of Columbia, the Common wealth of Puerto Rico, and any terri tory or insular possession of the United States. (e) Persons whose activities relate to weather modification. Persons engaged in weather modification activities or engaged in the distribution or sale of weather modification apparatus or ma terials known by them to be destined for use in weather modification activi ties. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00075 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 66 15 CFR Ch. IX (1–1–21 Edition) § 908.2 (f) Project. A related series of weather modification activities having a com mon objective. (g) Target area. The ground area with in which the effects of the weather modification activity are expected to be found. (h) Control area. A preselected, un treated ground area used for compari son with a target area. (i) Weather modification apparatus. Any apparatus used with the intention of producing artificial changes in the composition, behavior, or dynamics of the atmosphere. For example: Seeding generators, propane devices, flares, rockets, artillery projectiles, jet en gines, etc. (j) Sponsor. The primary person for whom the weather modification activ ity is performed. (k) Operator. The person who is pri marily responsible for carrying out the weather modification activity. [41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981] § 908.2 Persons subject to reporting. Any person engaged or intending to engage in any weather modification ac tivity in the United States shall be subject to the reporting provisions of this part. § 908.3 Activities subject to reporting. (a) The following, when conducted as weather modification activities, shall be subject to reporting: (1) Seeding or dispersing of any sub stance into clouds or fog, to alter drop size distribution, produce ice crystals or coagulation of droplets, alter the de velopment of hail or lightning, or in fluence in any way the natural develop ment cycle of clouds or their environ ment; (2) Using fires or heat sources to in fluence convective circulation or to evaporate fog; (3) Modifying the solar radiation ex change of the earth or clouds, through the release of gases, dusts, liquids, or aerosols into the atmosphere; (4) Modifying the characteristics of land or water surfaces by dusting or treating with powders, liquid sprays, dyes, or other materials; (5) Releasing electrically charged or radioactive particles, or ions, into the atmosphere; (6) Applying shock waves, sonic en ergy sources, or other explosive or acoustic sources to the atmosphere; (7) Using aircraft propeller downwash, jet wash, or other sources of artificial wind generation; or (8) Using lasers or other sources of electromagnetic radiation. (b) In addition to the activities listed above, other similar activities falling within the definition of weather modi fication as set forth in § 908.1 are also subject to reporting. (c) The requirement for reporting shall not apply to activities of a purely local nature that can reasonably be ex pected not to modify the weather out side of the area of operation. This ex ception is presently restricted to the use of lightning deflection or static discharge devices in aircraft, boats, or buildings, and to the use of small heat sources, fans, fogging devices, aircraft downwash, or sprays to prevent the oc currence of frost in tracts or fields planted with crops susceptible to frost or freeze damage. Also expected from the requirement for reporting are reli gious activities or other ceremonies, rites and rituals intended to modify the weather. (d) All activities noted in paragraphs (a) and (b) of this section are subject to initial reporting. However, after the Administrator has received initial no tification of a planned activity, he may waive some of the subsequent reporting requirements. This decision to waive certain reporting requirements will be based on the general acceptability, from a technical or scientific view point, of the apparatus and techniques to be used. (e) Other reporting exceptions may be made in the future by rule of the Administrator. § 908.4 Initial report. (a) Any person intending to engage in any weather modification project or activity in the United States shall pro vide a report of his intention, to be re ceived by the Administrator at least 10 days before the commencement of such project or activity. This report shall contain at least the following: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00076 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 67 Nat’l Oceanic and Atmospheric Adm., Commerce § 908.5 (1) The designation, if any, used by the operator for the project or activity; (2) The following dates for weather modification activities: (i) The date the first actual weather modification activity is to be under taken; (ii) The date on which the final modi fication activity is expected to occur; (3) The following information on per sons involved with the project or activ ity: (i) The name, affiliation, and address of the sponsor; (ii) The name, affiliation, and address of the operator; (4) The purpose of the project or ac tivity; (5) A map showing the approximate size and location of the target and con trol areas, and the location of each item of ground-based weather modi fication apparatus, precipitation meas uring device, and, for airborne oper ations, the airport; (6) A description of the weather modification apparatus, modification agents, and the techniques to be em ployed; (7) The name and address of the re sponsible individual from whom log books or other records of the project or activity may be obtained; (8) Answers to the following ques tions on project safeguards: (i) Has an Environmental Impact Statement, Federal or State, been filed: Yesll No ll. If Yes, please fur nish a copy as applicable. (ii) Have provisions been made to ac quire the latest forecasts, advisories, warnings, etc. of the National Weather Service, Forest Service, or others when issued prior to and during operations? Yes ll No ll. If Yes, please specify on a separate sheet. (iii) Have any safety procedures (operational contraints, provisions for suspension of operations, monitoring methods, etc.) and any environmental guidelines (related to the possible ef fects of the operations) been included in the operational plans? Yes ll No ll. If Yes, please furnish copies or a description of the specific procedures and guidelines; and (9) Optional remarks, to include any additional items which the person deems significant or of interest and such other information as the Adminis trator may request the person to sub mit. (b) If circumstances prevent the sign ing of a contract or agreement to per form, or receipt of an authorization to proceed with, a weather modification activity at a date early enough to com ply with paragraph (a) of this section, the initial report shall be provided so as to be received by the Administrator within 10 days of the date of signing of the contract or agreement, or receipt of authorization to proceed. In such cases, the report shall be accompanied by an explanation as to why it was not submitted at least 10 days prior to the commencement of the activity. (c) In the event that circumstances beyond the control of the person liable to report under these regulations pre vent the submission of the initial re port in a timely manner as described above, the report shall be forwarded as early as possible, accompanied by an explanation as to why a timely report has not been provided. If such expla nation is deemed adequate, the Admin istrator will consider the report as timely filed. § 908.5 Interim reports. (a) Any person engaged in a weather modification project or activity in the United States on January 1 in any year shall submit to the Administrator, not later than 45 days thereafter, an in terim report setting forth as of such date the information required below with respect to any such continuing project or activity not previously fur nished to the Administrator in a prior interim report; provided that the Janu ary 1 date shall not apply if other ar rangements have previously been made with the written approval of the Ad ministrator. (b) The interim report shall include the file number assigned by the Admin istrator and shall provide a summary of the project or activity containing at least the following information for each month: (1) Number of days on which actual modification activities took place; (2) Number of days on which weather modification activities were conducted, segregated by each of the major pur poses of the activities; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00077 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 68 15 CFR Ch. IX (1–1–21 Edition) § 908.6 (3) Total number of hours of oper ation of each type of weather modifica tion apparatus (i.e., net hours of agent release); (4) Total amount of agent used. If more than one agent was used, each should be totaled separately (e.g., car bon dioxide, sodium chloride, urea, sil ver iodide). (c) The totals for the items in para graph (b) of this section shall be pro vided for the period covered by the in terim report. [41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981] § 908.6 Final report. Upon completion of a weather modi fication project or activity the person who performed the same shall submit a report to the Administrator not later than 45 days after completion of the project or activity. The report shall in clude the file number assigned by the Administrator and the following items: (a) Information required for the in terim reports (to the extent not pre viously reported). (b) The total number of days on which actual modification activities took place during the project or activ ity. (c) The total number of days during the project or activity on which weath er modification activities were con ducted, segregated by each of the major purposes of the activities. (d) The total number of hours of op eration of each type of weather modi fication apparatus during the project or activity (i.e., net hours of agent re lease). (e) The total amount of modification agent(s) dispensed during the project or activity. If more than one agent was used, each should be totaled separately (e.g., carbon dioxide, sodium chloride, urea, silver iodide). (f) The date on which the final weath er modification activity occurred. [41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981] § 908.7 Supplemental reports. Notwithstanding other regulations, a supplemental report in letter form re ferring to the appropriate NOAA file number, if assigned, must be made to the Administrator immediately if any report of weather modification activi ties submitted under § 908.4, § 908.5, or § 908.6 is found to contain any material inaccuracies, misstatements, and omis sions. A supplemental report must also be made if there are changes in plans for the project or activity. § 908.8 Maintenance of records. (a) Any person engaging in a weather modification activity in the United States shall maintain a record of such activity. This record shall contain at least the following, when applicable: (1) A chronological record of activi ties carried on, preferably in the form of a daily log, which shall include the NOAA file number assigned to the project, the designation of each unit of weather modification apparatus, and at least the following information for each unit: (i) Date of the weather modification activity. (ii) Position of each aircraft or loca tion of each item of weather modifica tion apparatus during each modifica tion mission. Maps may be used. (iii) Time when weather modification activity began and ended. (iv) Total duration of operation of each unit of weather modification ap paratus (i.e., net hours of agent re lease). (v) Type of each modification agent used. (vi) Rate of dispersal of each agent during the period of actual operation of weather modification apparatus. (vii) Total amount of agent used. If more than one agent was used, report total for each type separately. (viii) Number of days on which weather modification activities were conducted, segregated by each of the major purposes of the activities. (2) The monthly totals of hours of modification activity, the amount of modification agent used, and the num ber of days on which weather modifica tion activities were conducted, seg regated by each of the major purposes of the activities, shall be shown on the daily log sheet for the last day of each month. (b) When the activity involves ground-based weather modification ap paratus, records of the following shall VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00078 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 69 Nat’l Oceanic and Atmospheric Adm., Commerce § 908.12 also be maintained, when applicable, but need not be made part of the daily log: (1) The location of each item of weather modification apparatus in use and its identification such as type and manufacturer’s model number. If the apparatus is not commercially avail able, a brief description of the appa ratus and the method of operation should be recorded. (2) The name and address of the per son responsible for operating each weather modification apparatus. (3) The altitude and type of weather phenomenon subjected to weather modification activity during each oper ational period (e.g., cumulus clouds be tween 10,000 and 30,000 feet m.s.l.; ground fog). (c) When the activity involves air borne weather modification apparatus, records of the following shall also be maintained, when applicable, but need not be made a part of the daily log: For each airborne weather modification ap paratus run: Altitude, air speed; re lease points of modification agents, method of modification and character istics of flares, rockets, or other deliv ery systems employed; temperature at release altitude; and, for aircraft: The type of aircraft, its identification num ber, the airport or airports used, and the names and addresses of crew mem bers and the person responsible for op erating the weather modification appa ratus; and the altitude and type of weather phenomenon subjected to weather modification activity during each operational period (e.g., cumulus clouds between 10,000 and 30,000 feet m.s.l.; ground fog). (d) The following records shall also be maintained, whenever applicable, but need not be made a part of the daily log. Only data specifically col lected for the reported activity need be retained; data available from other sources need not be included. (1) Any descriptions that were re corded of meteorological condiitons in target and control areas during the pe riods of operation; for example: Per cent of cloud cover, temperature, hu midity, the presence of lightning, hail, funnel clouds, heavy rain or snow, and unusual radar patterns. (2) All measurements made of pre cipitation in target and control areas. (3) Any unusual results. § 908.9 Retention of records. Records required under § 908.8 shall be retained and available for inspection by the Administrator or his designated representatives for 3 years after com pletion of the activity to which they relate. Such records shall be required to be produced for inspection only at the place where normally kept. The Administrator shall have the right to make copies of such records, if he or she deems necessary. [52 FR 4896, Feb. 18, 1987] § 908.10 Penalties. Knowing and willful violation of any rule adopted under the authority of section 2 of Public Law 92–205 shall subject the person violating such rule to a fine of not more than $10,000, upon conviction thereof. § 908.11 Maintenance of records of re lated activities. (a) Persons whose activities relate to weather modification activities, other than persons engaged in weather modi fication activities, shall maintain records concerning the identities of purchasers or users of weather modi fication apparatus or materials, the quantities or numbers of items pur chased, and the times of such pur chases. Such information shall be re tained for at least 3 years. (b) In addition, persons whose activi ties relate to weather modification shall be required, under the authority of section 4 of Public Law 92–205, to provide the Administrator, on his re quest, with information he deems nec essary to carry out the purposes of this act. [41 FR 23394, June 10, 1976, as amended at 52 FR 4896, Feb. 18, 1987] § 908.12 Public disclosure of informa tion. (a) Any records or other information obtained by the Administrator under these rules or otherwise under the au thority of Public Law 92–205 shall be made publicly available to the fullest VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00079 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 70 15 CFR Ch. IX (1–1–21 Edition) § 908.13 practicable extent. Such records or in formation may be inspected on written request to the Administrator. However, the Administrator will not disclose any information referred to in section 1905 of title 18, United States Code, and that is otherwise unavailable to the public, except that such information shall be disclosed: (1) To other Federal government de partments, agencies, and officials for official use upon request; (2) In any judicial proceeding under a court order formulated to preserve the confidentiality of such information without impairing the proceeding; and (3) To the public, if necessary to pro tect their health and safety. (b) Certified copies of such reports and information, to the extent publicly disclosable, may be obtained from the Administrator at cost in accordance with the Department of Commerce im plementation of the Freedom of Infor mation Act. (c) Persons reporting on weather modification projects or related activi ties shall specifically identify all infor mation that they consider not to be subject to public disclosure under the terms of Public Law 92–205 and provide reasons in support thereof. A deter mination as to whether or not reported information is subject to public dis semination shall be made by the Ad ministrator. (d) When consideration of a weather modification activity report and re lated information indicates that a pro posed project may significantly depart from the practices or procedures gen erally employed in similar cir cumstances to avoid danger to persons, property, or the environment, or indi cates that success of Federal research projects may be adversely affected if the proposed project is carried out as described, the Administrator will no tify the operator(s) and State officials of such possibility and make rec ommendations where appropriate. The purpose of such notification shall be to inform those notified of existing prac tices and procedures or Federal re search projects known to NOAA. Noti fication or recommendation, or failure to notify or recommend, shall not be construed as approval or disapproval of a proposed project or as an indication that, if carried out as proposed or rec ommended it may, in any way, protect or endanger persons, property, or the environment or affect the success of any Federal research project. Any advi sory notification issued by the Admin istrator shall be available to the public and be included in the pertinent activ ity report file. § 908.13 Address of letters. Letters and other communications intended for the Administrator, in con nection with weather modification re porting or activities, shall be addressed to: The Administrator, National Oce anic and Atmospheric Administration, Environmental Modification Office, Rockville, Md. 20852. § 908.14 Business to be transacted in writing. All business transacted with the Na tional Oceanic and Atmospheric Ad ministration with regard to reports of weather modification activities should be transacted in writing. Actions of the National Oceanic and Atmospheric Ad ministration will be based exclusively on the written record. § 908.15 Times for taking action; expi ration on Saturday, Sunday, or holi day. Whenever periods of time are speci fied in these rules in days, calendar days are intended. When the day, or the last day, fixed under these rules for taking any action falls on a Saturday, Sunday, or on a Federal holiday, the action may be taken on the next suc ceeding day which is not a Saturday, Sunday, or Federal holiday. § 908.16 Signature. All reports filed with the National Oceanic and Atmospheric Administra tion must be dated and signed by or on behalf of the person conducting or in tending to conduct the weather modi fication activities referred to therein by such person, individually or, in the case of a person other than an indi vidual, by a partner, officer, or other person having corresponding functions and authority. For this purpose ‘‘offi cer’’ means a president, vice president, treasurer, secretary, or comptroller. Notwithstanding the foregoing, such VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00080 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 71 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 911 1 Filed as part of the original document. reports may also be signed by the duly authorized agent or attorney of the person whose activities are being re ported. Proof of such authorization shall be furnished to the Administrator when filing a report, unless previously furnished. § 908.17 Suspension or waiver of rules. In an extraordinary situation, any requirement of these rules may be sus pended or waived by the Administrator on request of the interested party, to the extent such waiver is consistent with the provisions of Public Law 92– 205 and subject to such other require ments as may be imposed. § 908.18 Matters not specifically pro vided for in rules. All matters not specifically provided for or situations not specifically ad dressed in these rules will be decided in accordance with the merits of each case by or under the authority of the Administrator, and such decision will be communicated in writing to all par ties involved in the case. § 908.19 Publication of notice of pro posed amendments. Whenever required by law, and in other cases whenever practicable, no tice of proposed amendments to these rules will be published in the FEDERAL REGISTER. If not published with the no tice, copies of the text of proposed amendments will be furnished to any person requesting the same. All com ments, suggestions, and briefs received within the time specified in the notice will be considered before adoption of the proposed amendments, which may be modified in the light thereof. Infor mal hearings may be held at the discre tion of the Administrator. § 908.20 Effective date. These rules are effective on June 10, 1976. § 908.21 Report form. Public Law 92–205 and these rules should be studied carefully prior to re porting. Reports required by these rules shall be submitted on forms ob tainable on request from the Adminis trator, or on an equivalent format. 1 In special situations, such alterations to the forms as the circumstances thereto may render necessary may be made, provided they do not depart from the requirements of these rules or of Public Law 92–205. PART 909—MARINE DEBRIS AUTHORITY: 33 U.S.C. 1951–1958 (2006). § 909.1 Definition of marine debris for the purposes of the Marine Debris Research, Prevention, and Reduc tion Act. (a) Marine debris. For the purposes of the Marine Debris Research, Preven tion, and Reduction Act (33 U.S.C. 1951– 1958 (2006)) only, marine debris is de fined as any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or aban doned into the marine environment or the Great Lakes. (b) NOAA and the Coast Guard have jointly promulgated the definition of marine debris in this part. Coast Guard’s regulation may be found in 33 CFR 151.3000. [74 FR 45560, Sept. 3, 2009] PART 911—POLICIES AND PROCE DURES CONCERNING USE OF THE NOAA SPACE-BASED DATA COL LECTION SYSTEMS Sec. 911.1 Purpose. 911.2 Scope. 911.3 Definitions. 911.4 Use of the NOAA Data Collection Sys tems. 911.5 NOAA Data Collection Systems Use Agreements. 911.6 Treatment of data. 911.7 Continuation of the NOAA Data Col lection Systems. 911.8 Technical requirements. APPENDIX A TO PART 911—ARGOS DCS USE POLICY DIAGRAM APPENDIX B TO PART 911—GOES DCS USE POLICY DIAGRAM AUTHORITY: 15 U.S.C. 313, 49 U.S.C. 44720; 15 U.S.C. 1525; 7 U.S.C. 450b; 5 U.S.C. 552. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00081 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 72 15 CFR Ch. IX (1–1–21 Edition) § 911.1 SOURCE: 63 FR 24922, May 6, 1998, unless otherwise noted. § 911.1 Purpose. These regulations set forth the proce dural, informational and technical re quirements for use of the NOAA Data Collection Systems (DCS). In addition, they establish the criteria NOAA will employ when making determinations as to whether to authorize the use of its space-based DCS. The regulations are intended to facilitate the collection of environmental data as well as other such data which the Government is in terested in collecting. In those in stances where space-based commercial systems do not meet users’ require ments, the intent is to not disadvan tage the development of the commer cial space-based services in this sector. Obtaining a system use agreement to operate data collection platforms pur suant to these regulations does not af fect related licensing requirements of other Federal agencies such as the Fed eral Communications Commission. § 911.2 Scope. (a) These regulations apply to any person subject to the jurisdiction or control of the United States who oper ates or proposes to operate data collec tion platforms to be used with the NOAA DCS either directly or through an affiliate or subsidiary. For the pur poses of these regulations a person is subject to the jurisdiction or control of the United States if such person is: (1) An individual who is a U.S. cit izen; or (2) A corporation, partnership, asso ciation, or other entity organized or existing under the laws of any state, territory, or possession of the United States. (b) These regulations apply to all ex isting Geostationary Operational Envi ronmental Satellite (GOES) and Argos DCS users as well as all future applica tions for NOAA DCS use. § 911.3 Definitions. For purposes of this part: (a) Approving authority means NOAA for the GOES DCS; and it means the Argos Participating Agencies, via the Argos Operations Committee, for the Argos DCS. (b) Argos DCS means the system which collects data from fixed and moving platforms and provides plat form location data. This system con sists of platforms, the Argos French in strument on the Polar-orbiting Oper ational Environmental Satellites (POES) and other international sat ellites; a ground processing system; and telemetry ground stations. (c) Argos participating agencies means those agencies of the United States and other countries that participate in the management of the Argos DCS. (d) Assistant Administrator means the Assistant Administrator for Satellite and Information Services, NOAA, or his/her designee. (e) Director means the Director of the Office of Satellite Data Processing and Distribution for the National Environ mental Satellite, Data, and Informa tion Service of NOAA. (f) Environmental data means environ mental measurement data for the pur pose of using the GOES DCS; and it means environmental measurement and environmental protection data for the purpose of using the Argos DCS. (g) Environmental measurement data means data that relate to the charac teristics of the Earth and its natural phenomena by helping to better under stand, evaluate, or monitor its natural resources. (h) Environmental protection data means data that relate to the charac teristics of the Earth and its environ ment (including its ecosystems and the species which inhabit them) by helping to protect against any unreasonable adverse effects thereto. (i) Episodic use means the use of the system for short events where there is a significant possibility of loss of life, such as for Arctic expeditions or sci entific campaigns into remote areas. (j) Government interest means that the use is determined in advance to be of interest to one or more governmental entities of the United States, France or, once they have become an Argos Participating Agency, Japan or a Euro pean Organization for the Exploitation of Meteorological Satellites (EUMETSAT) member state; or also, in the case of the GOES DCS, a state or local government. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00082 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 73 Nat’l Oceanic and Atmospheric Adm., Commerce § 911.4 (k) Government user means agencies of international governmental organiza tions, national government or any sub division thereof, or any of those agen cies’ contractors or grantees, so long as the contractor is using the data col lected by the NOAA DCS to fulfill its contractual obligations to the govern ment agency or in the case of a grantee that these data are being used in ac cordance with the statement of work for the award. (l) NOAA DCS means the GOES and Argos space-based DCS. (m) Non-profit user means a not-for profit academic, research, or other non-governmental organization, which is using these data, for education and/ or scientific, non-commercial purposes. (n) Operational use means the use of data in a situation where the utility of the data are significantly reduced if not collected or delivered in a specific time window. This includes situations where extensive preparation work is in place and a delay in acquisition of data would jeopardize the project. (o) Platform compatibility means the compatibility of the platform with the space segment of the system, and in cludes elements such as message length and composition, signal strength, and transmission protocol (e.g., continuous versus event drive). (p) Sensitive use means the use of the NOAA DCS where the users’ require ments dictate the use of a govern mental system such as National secu rity, homeland security, law enforce ment and humanitarian operations. (q) Testing use means the use of the NOAA DCS by manufacturers of plat forms for use in conjunction with the NOAA DCS, for the limited purpose of testing and certifying the compat ibility of new platforms with the tech nical requirements of the NOAA DCS. (r) User means the entity and/or orga nization that owns or operates user platforms for the purpose of collecting and transmitting data through the NOAA DCS, or the organization requir ing the collection of the data. (s) User platform means device de signed in accordance with the speci fications delineated and approved by the Approving Authority used for the in-situ collection and subsequent transmission of data via the NOAA DCS. Those devices which are used in conjunction with the GOES DCS are re ferred to as data collection platforms (DCP) and those which are used in con junction with the Argos DCS are re ferred to as Platform Transmitter Ter minals (PTT). For purposes of these regulations, the terms ‘‘user plat form,’’ ‘‘DCP’’, and ‘‘PTT’’ are inter changeable. (t) User requirement means the re quirement expressed and explained in the System Use Agreement. [63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003] § 911.4 Use of the NOAA Data Collec tion Systems. (a) Use of the NOAA DCS will only be authorized in accordance with the con ditions and requirements set forth in paragraphs (b), (c), (d), (e), and (f) of this section. (b)(1) Use of the NOAA DCS will only be authorized where it is determined that there are no commercial space based services available that meet the user’s requirements. (2) A determination under paragraph (b)(1) of this section must be based on such factors as satellite coverage, ac curacy, data throughput, platform power consumption, size and weight, service continuity and reliability, plat form compatibility, system access mode, and, in the case of government agencies, cost-effectiveness. (c)(1) Except as provided in para graphs (c)(2), (3), (4), and (5) of this sec tion, NOAA DCS shall only be used for the collection of environmental data by governmental and/or non-profit users. (2) Non-governmental, environmental use of the NOAA DCS is only author ized where there is a Government in terest in the collection and/or receipt of the data. (3) Except as provided in paragraph (c)(4) of this section, non-environ mental use of the NOAA DCS is only authorized for government use and non-profit users where there is a gov ernment interest. The NOAA DCS will continue to be predominantly used for environmental applications. Non-envi ronmental use of the system shall be VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00083 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 74 15 CFR Ch. IX (1–1–21 Edition) § 911.5 limited to sensitive use, and to epi sodic use as defined below in paragraph (c)(4) of this section. (4) Episodic use of the NOAA DCS may also be authorized in specific in stances where there is a significant possibility for loss of life. Such use shall be closely monitored. (5) Testing use of the NOAA DCS will only be authorized for manufacturers of NOAA DCS platforms, that require access to the system in order to test and certify prototype and production models. (d) Because of capacity limitations on the GOES DCS, system applicants will be admitted to use the GOES sys tem in accordance with the following priority: (1) NOAA programs or users whose data are required for implementation of NOAA programs, as determined by the Assistant Administrator, will be accorded first priority. (2) Users whose data are desired to support NOAA programs will be ac corded second priority. (3) Users whose data and/or use of the GOES DCS will further a program of an agency or department of the U.S. Gov ernment, other than NOAA, will be ac corded third priority. (4) Users whose data are required by a state or local Government of the United States will be accorded fourth priority. (5) Testing users of the system will be accorded fifth priority. (6) No other usage will be authorized for the GOES DCS. (e) In the event that Argos DCS ca pacity limitations require that priority determinations be made, priority will be given to those platforms that pro vide environmental data of broad inter national interest, especially of an oper ational nature, and to those requiring the unique capabilities of the Argos DCS, such as platform location or polar coverage. [63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003] § 911.5 NOAA Data Collection Systems Use Agreements. (a)(1) In order to use a NOAA DCS, each user must have an agreement with the approving authority for that system. (2) Persons interested in entering into a system use agreement should contact the Director. (b) These agreements will address, but may not be limited to, the fol lowing matters: (1) The period of time the agreement is valid and procedures for its termi nation, (2) The authorized use(s), and its pri orities for use, (3) The extent of the availability of commercial space-based services which meet the user’s requirements and the reasons for necessitating the use of the Government system, (4) Any applicable government inter est in the data, (5) Required equipment standards, (6) Standards of operation, (7) Conformance with applicable ITU and FCC agreements and regulations, (8) Reporting time and frequencies, (9) Data formats, (10) Data delivery systems and sched ules, and (11) User-borne costs. (c) The Director shall evaluate user requests for System Use Agreements and renewals and conclude agreements for use of the NOAA DCS. (d)(1) Agreements for the collection, via the Argos DCS, of environmental data by government agencies or non profit institutions shall be valid for 3 years from the date of initial in-situ deployment of the platforms, and may be renewed for additional 3-year peri ods. (2) Agreements for the collection of environmental data, via the Argos DCS, by non-government users shall be valid for 1 year from the date of initial in-situ deployment of the platforms, and may be renewed for additional 1 year periods, but only for so long as there exists a governmental interest in the receipt of these data. (3) Agreements for the collection of non-environmental data, via the Argos DCS, by government agencies, or non profit institutions where there is a gov ernment interest, shall be valid for 1 year from the date of initial in-situ de ployment of the platforms, and may be renewed for additional 1-year periods. (4) Agreements for the episodic col lection of non-environmental data, via the Argos DCS under § 911.4(c)(4), shall VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00084 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 75 Nat’l Oceanic and Atmospheric Adm., Commerce § 911.8 be of short, finite duration not to ex ceed 1 year without exception, and usu ally shall not exceed 6 months. These agreements shall be closely monitored and shall not be renewed. (5) Agreements for the testing use of the Argos DCS by equipment manufac turers shall be valid for 1 year from the date of initial testing, and may be re newed for additional 1-year periods. (e)(1) Agreements for the collection of environmental data, by the GOES DCS, shall be valid for 5 years from the date of initial in-situ deployment, and may be renewed for additional 5-year periods. (2) Agreements for the testing use of the GOES DCS, by equipment manufac turers, shall be valid for 1 year from the date of initial testing, and may be renewed for additional 1-year periods. (3) Agreements for the collection of non-environmental data, via the GOES DCS, by government agencies, or non profit institutions where there is a gov ernment interest, shall be valid for 1 year from the date of initial in-situ de ployment of the platforms, and may be renewed for additional 1-year periods. (4) Agreements for the episodic col lection of non-environmental data, via the GOES DCS under § 911.4(c)(4), shall be of short, finite duration not to ex ceed 1 year without exception, and usu ally shall not exceed 6 months. These agreements shall be closely monitored and shall not be renewed. [63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003] § 911.6 Treatment of data. (a) All NOAA DCS users must agree to permit NOAA and other agencies of the U.S. Government the full, open, timely, and appropriate use as deter mined by NOAA, of all environmental data collected from their platforms; this may include the international dis tribution of environmental data under the auspices of the World Meteorolog ical Organization. (b) Raw data from the NOAA space segment is openly transmitted and ac cessible. (c) Accessibility of the NOAA DCS processed data from the ground seg ment is handled in accordance with the users specifications and system design limitations, subject to the provisions stated in paragraph (a) of this section. [68 FR 45161, Aug. 1, 2003] § 911.7 Continuation of the NOAA Data Collection Systems. (a) NOAA expects to continue to op erate DCS on its geostationary and polar-orbiting satellites, subject to the availability of future appropriations. However, viable commercial space based alternatives may eventually ob viate the need for NOAA to operate its own space-based DCS. (b) If use of the system in support of NOAA programs increases, it eventu ally may be necessary to the further restrict system usage by other users. If such restrictions on use become nec essary, or in the event that NOAA dis continues operation of GOES and/or POES, NOAA will provide, to the max imum extent practicable, advance no tice and an orderly transition. (c) NOAA will not be responsible for any losses resulting from the nonavail ability of the NOAA DCS. § 911.8 Technical requirements. (a) All platform operators of the NOAA DCS must use a data collection platform radio set whose technical and design characteristics are certified to conform to applicable specifications and regulations. (b) All platform operators are respon sible for all costs associated with the procurement and operation of the plat forms, and for the acquisition of data from those platforms, either directly from the satellite or from the applica ble data processing center. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00085 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 76 15 CFR Ch. IX (1–1–21 Edition) Pt. 911, App. A APPENDIX A TO PART 911—ARGOS DCS USE POLICY DIAGRAM [68 FR 45161, Aug. 1, 2003] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00086 Fmt 8010 Sfmt 8026 Y:\SGML\253053.XXX 253053 ER 0 1 A U 0 3 .0 1 5 < /G P H > 77 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 911, App. B APPENDIX B TO PART 911—GOES DCS USE POLICY DIAGRAM [68 FR 45162, Aug. 1, 2003] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00087 Fmt 8010 Sfmt 8026 Y:\SGML\253053.XXX 253053 ER 0 1 A U 0 3 .0 1 6 < /G P H > 78 15 CFR Ch. IX (1–1–21 Edition) Pt. 917 PART 917—NATIONAL SEA GRANT PROGRAM FUNDING REGULATIONS Subpart A—General Sec. 917.1 Basic provisions. 917.2 Definitions. Subpart B—Sea Grant Matched Funding Program 917.10 General. 917.11 Guidelines for Sea Grant Fellowships. Subpart C—National Projects 917.20 General. 917.21 National needs and problems. 917.22 National Projects funding. Subpart D—International Cooperation Assistance 917.30 General. Subpart E—General Considerations Pertaining to Sea Grant Funding 917.40 General. 917.41 Application guidance for Sea Grant funding. 917.42 Categories of support available for the conducting of Sea Grant activities. 917.43 Terms and conditions of Sea Grant funding. AUTHORITY: Pub. L. 94–461, 90 Stat. 1961 (33 U.S.C. 1121 et seq.). SOURCE: 43 FR 15307, Apr. 11, 1978, unless otherwise noted. Subpart A—General § 917.1 Basic provisions. (a) This section sets forth the basic purposes for which Sea Grant funding may be made pursuant to the following sections of the Act: 33 U.S.C. 1124, 1127, 1125 and 1124a. These sections provide for the funding of programs and projects in fields related to ocean and coastal resources that involve marine research, marine education and train ing, and marine advisory services. However, there is a significant dif ference in focus among these sections since section 1124(a) is concerned chief ly with regional and state needs rel ative to ocean and coastal resources (including the funding of Sea Grant Fellowships under section 1127) while section 1125 is concerned with national needs and problems relative to ocean and coastal resources, and section 1124a is concerned with programs of inter national cooperation assistance with respect to those resources. (b) Comment: Statutory citation 33 U.S.C. 1124(a): In General. The Secretary may make grants and enter into contracts under this subsection to assist any Sea Grant program or project if the Secretary finds that such program or project will— (1) Implement the objective set forth in Section 202(b); and (2) Be responsive to the needs or problems of individual states or regions. The total amount paid pursuant to any such grant or contract may equal 662⁄3 per cent, or any lesser percent, of the total cost of the Sea Grant program or project in volved. (c) Comment: Statutory citation 33 U.S.C. 1127(a): In General. The Secretary may enter into contracts and make grants under this sec tion to— (1) Enhance the research and development capability of developing foreign nations with respect to ocean and coastal resources. (2) Promote the international exchange of information and data with respect to the as sessment, development, utilization, and con servation of such resources. § 917.2 Definitions. (a) The term Act means the Sea Grant Program Improvement Act of 1976, as amended (33 U.S.C. 1121 et seq.). (b) The term Secretary means the Sec retary of Commerce. (c) The term Administrator means the Administrator of the National Oceanic and Atmospheric Administration. (d) The term Office of Sea Grant means the National Oceanic and At mospheric Administration’s Office of Sea Grant, which administers the Na tional Sea Grant Program provided for in the Act. (e) The term objective of the Act means the objective set forth at 33 U.S.C. 1121(b) and is ‘‘is to increase the understanding, assessment, develop ment, utilization, and conservation of the Nation’s ocean and coastal re sources by providing assistance to pro mote a strong educational base, re sponsive research and training activi ties, and broad and prompt dissemina tion of knowledge and techniques.’’ VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00088 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 79 Nat’l Oceanic and Atmospheric Adm., Commerce § 917.10 (f) The term ocean and coastal re source(s) is as defined at 33 U.S.C. 1122(7) and means: any resource (whether living, nonliving, manmade, tangible, intangible, actual, or po tential) which is located in, derived from, or traceable to, the marine environment. Such term includes the habitat of any such living resource, the coastal space, the eco systems, the nutrient rich areas, and the other components of the marine environ ment which contribute to or provide (or which are capable of contributing to or pro viding) recreational, scenic, esthetic, bio logical, habitational, commercial, economic, or conservation values. Living resources in clude natural and cultured plant life, fish, shellfish, marine mammals, and wildlife. Nonliving resources include energy sources, minerals, and chemical substances. (g) The term marine environment used in the definition for ‘‘ocean and coastal resources’’ in § 917.2(e) and used else where in these regulations is as defined at 33 U.S.C. 1122(6) and means: the coastal zone, as defined in Section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil, and waters of the territorial sea of the United States; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and subsoil of and beyond the outer Continental Shelf. (h) The term person is as defined at 33 U.S.C. 1122(9) and means: ‘‘any indi vidual; any public or private corpora tion, partnership, or other association or entity (including any Sea Grant Col lege, Sea Grant Regional Consortium, education, institute, or laboratory); or any state, political subdivision of a state, or agency or officer thereof.’’ (i) The term Sea Grant College is as defined at 33 U.S.C. 1122(10) and means: ‘‘any public or private institution of higher education which is designated as such by the Secretary . . .’’ pursu ant to regulations promulgated at 15 CFR part 918. (j) The term Sea Grant Program is as defined at 33 U.S.C. 1122(11) and means: ‘‘any program which’’ (1) is adminis tered by a Sea Grant College, Sea Grant Regional Consortium, institu tion of higher education, institute, lab oratory, or state or local agency; and (2) includes two or more projects in volving one or more of the following activities in fields related to ocean and coastal resources: (i) Research, (ii) Education, (iii) Training, or (iv) Advisory services. (k) The term Sea Grant Program Direc tors means the local Directors of the Sea Grant coherent area programs, insititutional programs, Sea Grant Col leges, and Sea Grant Regional Con sortia. (l) The term Sea Grant Regional Con sortium is as defined at 33 U.S.C. 1122(12) and means: ‘‘any association or alliance which is designated as such by the Secretary . . .’’ pursuant to regula tions promulgated at 15 CFR part 918. (m) The term state is as defined at 33 U.S.C. 1122 (14) and means: ‘‘any state of the United States, the District of Columbia, the Commonwealth of Puer to Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Mariana Islands, or any other territory or possession of the United States.’’ (n) The term developing foreign na tions includes any foreign nation other than a foreign nation that is ineligible for designation under section 502(b) of the Trade Act of 1974, (19 U.S.C. 2462(b)) as a beneficiary developing country under Title of that Act. Subpart B—Sea Grant Matched Funding Program § 917.10 General. (a) 33 U.S.C. 1124(a) establishes a pro gram for the funding of Sea Grant Pro grams and projects dealing with ma rine research, marine education and training, and/or marine advisory serv ices, that are designed to achieve the objective of the Act and that generally respond to the needs of individual states or regions. Included as a part of this program is the Sea Grant Fellow ship Program, established by 33 U.S.C. 1127. Any person may apply to the Of fice of Sea Grant for Sea Grant Matched Funding Program Monies, ex cept for Sea Grant Fellowship funding. Sea Grant Fellowship funding may be granted only to Sea Grant Colleges, Sea Grant Regional Consortia, institu tions of higher education, and profes sional associations and institutions. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 80 15 CFR Ch. IX (1–1–21 Edition) § 917.11 (b) Federal Sea Grant funding for the section 1124(a) Matched Funding Pro gram cannot exceed 662⁄3 percent of the total cost of the project involved. § 917.11 Guidelines for Sea Grant Fel lowships. (a) Sea Grant Fellowships are de signed to provide educational and training assistance to qualified individ uals at the undergraduate and graduate levels of education in fields related to ocean and coastal resources. The objec tive of the program is to increase the national supply of individuals educated and trained in the assessment, develop ment, utilization, and conservation of ocean and coastal resources. The pur pose of this section is to provide guide lines regarding the content of applica tions for Sea Grant Fellowship funding. (b) Funding will be made to eligible entities (see § 917.10 of this part) that are selected to award and administer Sea Grant Fellowships. Fellowships will not be awarded directly to stu dents by the Office of Sea Grant. The entity receiving Fellowship funding will select the students to be awarded the Fellowships and will handle the ad ministration of the Fellowships. (c) Proposals for Fellowship funding will be expected to address (1) the na ture and focus of the proposed Fellow ship Program, (2) the utilization of in stitutional or other appropriate re sources in the education and training of Sea Grant Fellows, (3) the method of advertising availability of the Fellow ships, (4) the method of selection of re cipients, and (5) the terms of tenure and method of determining continuity of tenure. (d) Innovation and uniqueness will be significant factors in the determina tion of which proposals will be funded. Another factor considered will be the potential of the proposed program to stimulate interest in marine related careers among those individuals; for example, minorities, women, and the handicapped whose previous back ground or training might not have gen erated such an interest. (e) The total amount that may be provided for grants under the Sea Grant Fellowship Program during any fiscal year cannot exceed an amount equal to five percent of the total funds appropriated for the Matched Funding Program for that year. Fellowship pro grams are subject to the requirement of a minimum of 331⁄3 percent matching funds from non-Federal sources to which all Matched Funding Program projects are subject. Indirect costs are not allowable for either the Fellow ships or for any costs associated with the Fellowships. Considering the variations in the cost of-living and the differences in tuition, fees, etc., between one college or uni versity and another, the amount of money requested and awarded per Fel lowship may vary. Subpart C—National Projects § 917.20 General. (a) 33 U.S.C. 1125 requires the Sec retary to identify specific national needs and problems relative to ocean and coastal resources. This responsi bility has been delegated to the Admin istrator. The designation is intended to focus public attention on needs and problems of the marine environment that are considered to be of particular national importance at a given point in time. (b) 33 U.S.C. 1125 provides for the funding of national projects in marine research, marine education and train ing, and marine advisory services that are designed to deal with the national needs and problems concerning ocean and coastal resources identified by the Administrator. (c) The Administrator will identify the national needs and problems apart from considerations of Office of Sea Grant funding for ‘‘National Projects’’ responsive to national needs and prob lems that are identified. § 917.21 National needs and problems. (a) The Administrator will, periodi cally, publish in the FEDERAL REGISTER the identified national needs and prob lems with respect to ocean and coastal resources at a given point in time. (b) Suggestions from the general pub lic as to the identity of national needs and problems may be submitted to the Office of Sea Grant at any time. These suggestions will be reviewed by the Of fice of Sea Grant and the Sea Grant Review Panel, and those receiving a VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 81 Nat’l Oceanic and Atmospheric Adm., Commerce § 917.21 positive critique will be forwarded to the Administrator. In addition, sugges tions concerning the identification of national needs and problems will be re quested from the Sea Grant Program Directors. (c) The Administrator has identified the following as currently being na tional needs and problems with respect to ocean and coastal resources:global and regional climate and primary pro ductivity. (1) Improve the prediction of extreme natural events and their effects on ocean coastal and continental shelf lo cations as well as analogous regions of the Great Lakes. (2) Improve the predictability of global sea-level change and determine the impact of this change on coastal areas. (3) Define the processes that deter mine ocean variability on the time scale of a few weeks to a few years, and the relationship to fluctuations in global and regional climate, primary productivity, and fisheries production. (4) Improve understanding of the flow fields and mixing processes on the con tinental shelves of the United States. (5) Develop an increased under standing of the arctic and antarctic en vironment and a capability to predict the special hazards posed to transpor tation and resource development. (6) Develop and increased capability to characterize the engineering prop erties of ocean botton sediments. (7) Reduce the recurring economic loss due to corrosion of structures, ves sels, and other devices in the marine environment. (8) Gain a fundamental under standing of the processes by which bio logical fouling and associated corro sion are initiated upon material sur faces exposed to seawater. (9) Investigate methods to improve man’s underwater capability to con duct undersea research and perform useful work. (10) Investigate the wider application of remotely operated and artificial in telligence techniques for vehicles for undersea activities. (11) Expand/improve remote sensing technologies for use on the ocean and Great Lakes. (12) Advance knowledge of acoustics in the ocean and ocean bottom in order to exploit the burgeoning acoustics technologies. (13) Develop techniques for in-situ monitoring of biological, chemical, and physical processes in the Great Lakes, oceans, and their connecting water ways which are cost effective and pro vide data in real time. (14) Improve the position of the U.S. seafood industry in world seafood mar kets. (15) Design more efficient mecha nisms to allocate U.S. fish resources to achieve optimum yield and minimize industry dislocations. (16) Gain a fundamental under standing of the biological productivity of estuarine and coastal waters. (17) Conduct research leading to the restoration and/or enhancement of heavily exploited fishery stocks. (18) Improve the capability for stock assessment, predicting yield, age-class strength, and long-term population status of important fisheries. (19) Conduct research to increase the economic potential of low-value, high volume fish products. (20) Develop productive and profit able aquaculture industries in the United States and technology that can be exported to less developed nations of the world with different climate, cul tural, and economic constraints. (21) Explore marine biochemicals as source of chemical feedstocks, en zymes, pharmacological substance, and other bioactive agents such as pes ticides. (22) Apply modern biotechnology to exploiting marine plants, animals, and microorganisms for good and services. (23) Develop rapid, efficient, and spe cific methods for assaying the poten tial of marine organisms to commu nicate disease to humans. (24) Develop innovations that would promote safe, nondestructive, rec reational access to and use of marine and Great Lakes water. (25) Re-examine the ocean as an ap propriate place for the disposal of wastes from land-based society. (26) Develop an increased under standing of the impacts of low density, nonbiodegradable, solid wastes on ma rine and Great Lakes species. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00091 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 82 15 CFR Ch. IX (1–1–21 Edition) § 917.22 (27) Conduct research for realizing the economic potential of the non living resources of the U.S. 200-mile Exclusive Economic Zone. (28) Investigate the effect of seafloor hydrothermal systems on the seafloor, oceans, and atmosphere. (29) Develop a better understanding of the value the marine sector contrib utes to the U.S. economy and culture. (30) Improve the competitive position of American ports in the face of rapid technological and social change. (31) Improve the capability of devel oping nations to address their marine resource needs. (32) Develop eductional programs to increase application of marine sector research. (33) Develop syntheses of and better access to existing multidisciplinary marine and Great Lakes information. [43 FR 15307, Apr. 11, 1978, as amended at 51 FR 35210, Oct. 2, 1986] § 917.22 National Projects funding. (a) National Projects funding pro posals will be expected to address: (1) The relevance of the proposed project to a national need or problem that has been identified by the Administrator; (2) the nature and focus of the proposed project; (3) a demonstrated capacity to carry out the proposed project in a competent and cost-effective manner; and (4) the utilization of existing capa bility and coordination with other rel evant projects. Innovation and unique ness will be significant factors in de termining whether to fund a proposed project. (b) Any person may apply to the Of fice of Sea Grant for National Project funding. In addition, the Office of Sea Grant may invite applications for Na tional Project funding. (c) The total amount provided for Na tional Projects’ funding during any fis cal year can never exceed an amount equal to 10 percent of the total funds appropriated for the Matched Funding Program. Federal Sea Grant funding for National Projects can be up to 100 percent of the total cost of the project involved. Subpart D—International Cooperation Assistance § 917.30 General. (a) 33 U.S.C. 1124a sets up a program of International Cooperation Assist ance in marine reseach, marine edu cation and training, and marine advi sory services designed to enhance the research and technical capability of de veloping foreign nations with respect to ocean and coastal resources and to promote the international exchange of information and data with respect to the assessment, development, utiliza tion, and conservation of such re sources. Any Sea Grant College or Sea Grant Regional Consortium or any in stitution of higher education, labora tory, or institute (if such institution, laboratory or institute is located with in any state) may apply for and receive International Cooperation Assistance funding. (b) International Cooperation Assist ance funding proposals will be expected to address: (1) The nature and focus of the proposed project, (2) the utilization of institutional and other appropriate resources in the implementation of the project, (3) a clear indication of the foreign participant’s (individual or in stitution) commitment to the project, (4) identification of accomplishments expected from a single granting inter val, (5) implicit or explicit out-year commitment of resources, and (6) the impact of the proposed project on the institution receiving funding. (c) The projects supported by Inter national Cooperation Assistance fund ing are intended to be genuinely coop erative. Innovation and uniqueness will be significant factors in the determina tion of proposals to be funded. In the case of a proposed international project that is submitted from an institution where a Sea Grant program is in exist ence, the extent to which the proposed project takes advantage of the Sea Grant institutional capability existing at that institution and thereby strengthening it, as opposed to being a mere appendage to the ongoing Sea Grant program, will also be an impor tant evaluation factor. The U.S. De partment of State will be given the op portunity to review all International Cooperation Assistance projects and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00092 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 83 Nat’l Oceanic and Atmospheric Adm., Commerce § 917.42 none will be funded without this con sultation. Because the United Nations Educational, Scientific, and Cultural Organization (UNESCO) also funds international projects of the kind that can be funded under the Sea Grant International Cooperation Assistance program, and, to effect coordination in this area between Sea Grant and UNESCO, the Division of Marine Sciences (UNESCO) will be informed of all International Cooperation Assist ance projects funded. Subpart E—General Consider ations Pertaining to Sea Grant Funding § 917.40 General. This subpart sets forth general con siderations pertaining to Sea Grant funding. § 917.41 Application guidance for Sea Grant funding. (a) Detailed guidance for submission of applications for National Sea Grant Program Funding is given in the publi cation, ‘‘The National Sea Grant Pro gram: Program Description and Sug gestions for Preparing Proposals,’’ available on request from: Office of Sea Grant Program, 3300 Whitehaven Street NW., Washington, DC 20235. (b) It is noted here that application for Sea Grant funding shall be made pursuant to the following Federal pro visions: (1) OMB Circular A–110 ‘‘Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non Profit Organizations.’’ (2) OMB Circular A–111, ‘‘Designation of Federal Programs Suitable for Joint Funding Purposes.’’ (3) GSA FMC 73–6, ‘‘Coordinating In direct Cost Rates and Audit at Edu cational Institutions.’’ (4) GSA FMC 73–7, ‘‘Administration of College and University Research Grants.’’ (5) GSA FMC 73–8, ‘‘Cost Principles for Educational Institutions.’’ (6) GSA FMC 74–4, ‘‘Cost Principles Applicable to Grants and Contracts with State and Local Governments.’’ (7) OMB Circular A–102, ‘‘Uniform Ad ministrative Requirements for Grants in-Aid to State and Local Govern ments.’’ (8) NOAA General Provisions imple menting OMB Circular A–110, ‘‘Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations.’’ § 917.42 Categories of support avail able for the conducting of Sea Grant activities. (a) Three categories of support are available for the conducting of Sea Grant activities: Projects; coherent area programs; and institutional pro grams. In general, funding for institu tional programs and coherent area pro grams are made with expectation of re newal, as long as the funding recipient maintains a high level of quality and relevance in its activities. Project funding is made generally for a single item of research, education and train ing, or advisory service, but may be re newed under certain conditions; each renewal is negotiated individually. (b) Project support is for a clearly de fined activity to be conducted over a definite period of time to achieve a specified goal. The project may be in research, education, training, or advi sory services. Support for a project is made to an individual investigator or project director through his organiza tion. (c) Intermediate between the institu tional programs and individual projects are coherent area programs. These have two main purposes: (1) To bring into the National Sea Grant Program institutions of higher education that have a strong core of capability in some aspects of marine affairs, but which do not qualify or do not wish to qualify for institutional program support at this time. The pur pose of support in such cases is to en able the institution to apply its exist ing competence to its regional prob lems and opportunities while devel oping the broader base of capability and the internal organization that will lead to institutional support. This pro gram category requires a definite com mitment on the part of the institution to develop an institutional program and to present a multiproject, multi disciplinary program involving the ex isting competence of an institution in VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00093 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 84 15 CFR Ch. IX (1–1–21 Edition) § 917.43 a unified or coherent attack on well defined local or regional problems. Such a coherent area program should include research, education and train ing, and advisory services, to the ex tent of the institution’s capability. (2) To bring into the National Sea Grant Program (on a more or less con tinuing basis) qualified entities that have rare or unique capability in a spe cialized field of marine affairs. Such entities need not be institutions of higher education. (d) Institutional grants are made to institutions of higher education or to a combination of institutions that have an existing broad base of competence in marine affairs. To qualify, an insti tution must make a positive, long range commitment to objectives of the National Sea Grant Program as evi dence by committing the institution’s own resources in the form of matching funds, creation of the organization nec essary for management of the Sea Grant Program, quality education pro grams in marine areas, establishment of interdisciplinary research teams, and development of advisory service mechanisms for strong interaction with marine communities in its region. A Sea Grant institutional program is expected to provide intellectual leader ship in assisting its region to solve problems and to realize opportunities of its marine environment. To the ex tent possible, an institutional program should involve all appropriate elements of the institution, whether colleges or departments, and devise cooperative or mutally supporting programs with other institutions of higher education, and with Federal and state agencies, local agencies, and industry. An insti tutional program should have substan tial strength in the three basic Sea Grant activities: research, education and training, and advisory services. Sea Grant institutional programs that meet the qualifications for Sea Grant College or Sea Grant Regional Consor tium status set forth at 15 CFR part 918 will be so designated by the Secretary. § 917.43 Terms and conditions of Sea Grant funding. No Sea Grant funding may be applied to: (a)(1) the purchase or rental of any land or (2) the purchase, rental, con struction, preservation, or repair of any building, dock, or vessel, except that payment under any such grant or contract may (if approved by the As sistant Administrator for Administra tion of the National Oceanic and At mospheric Administration or designee) be applied to the purchase, rental, con struction, preservation, or repair of non-self-propelled habitats, buoys, platforms, and other similar devices or structures, or to the rental of any re search vessel which is used in direct support of activities under any Sea Grant program or project. (b) In addition, Sea Grant funding under the Sea Grant Matched Funding Program will be subject to the limita tion that the total amount which may be obligated within any one state to persons under the Sea Grant Matched Funding Program in any fiscal year shall not exceed an amount equal to 15 percent of the funds appropriated for the Sea Grant Matched Funding Pro gram. (c) Any person who receives or uti lizes Sea Grant funding shall keep the records required by OMB Circular A– 110, ‘‘Grant and Agreements with Insti tutions of Higher Education, Hospitals, and Other Non-Profit Organizations,’’ and by NOAA General Provision, im plementing OMB Circular A–110, by OMB Circular A–102, ‘‘Uniform Admin istrative Requirements for Grants-in Aid to State and Local Governments,’’ including records that fully disclose the amount and disposition by the re cipient of such proceeds, the total cost of the program or project in which such proceeds were used, and the amount, if any, of such cost which was provided through other sources. Such records shall be maintained for three years after the completion of such a program or project. The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access, for the purpose of audit and evaluation, to any books, documents, papers, and records of receipt which, in the opinion of the Secretary or the Comptroller General, may be related or pertinent to such grants and contracts. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 85 Nat’l Oceanic and Atmospheric Adm., Commerce § 918.2 PART 918—SEA GRANTS Sec. 918.1 Introduction. 918.2 Definitions. 918.3 Eligibility, qualifications, and respon sibility of a Sea Grant College. 918.4 Duration of Sea Grant College des ignation. 918.5 Eligibility, qualifications, and respon sibilities—Sea Grant Regional Consortia. 918.6 Duration of Sea Grant Regional Con sortium designation. 918.7 Application for designation. AUTHORITY: Sec. 207, National Sea Grant College Program Act, as amended (Pub. L. 94–461, 33 U.S.C. 1121, et seq.). SOURCE: 44 FR 75054, Dec. 18, 1979, unless otherwise noted. § 918.1 Introduction. Pursuant to section 207 of the Na tional Sea Grant College Program Act, as amended (Pub. L. 94–461, 33 U.S.C. 1121 et seq.), herein referred to as the Act, the following guidelines establish the procedures by which organizations can qualify for designation as Sea Grant Colleges or Sea Grant Regional Consortia, and the responsibilities re quired of organizations so designated. § 918.2 Definitions. (a) Marine environment. The term Ma rine Environment means any or all of the following: the coastal zone, as de fined in section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil and waters of the territorial sea of the United States, including the Great Lakes; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and sub soil of and beyond the Outer Conti nental Shelf. (b) Ocean, Great Lakes, and coastal re sources. The term ocean, Great Lakes, and coastal resources means any re source (whether living, nonliving, man made, tangible, intangible, actual, or potential) which is located in, derived from, or traceable to, the marine envi ronment. Such term includes the habi tat of any such living resource, the coastal space, the ecosystems, the nu trient-rich areas, and the other compo nents of the marine environment which contribute to or provide (or which are capable of contributing to or providing) recreational, scenic, aesthetic, biologi cal, habitational, commercial, eco nomic, or conservation values. Living resources include natural and cultured plant life, fish, shellfish, marine mam mals, and wildlife. Nonliving resources include energy sources, minerals, and chemical substances. (c) Person. The term Person means any public or private corporation, part nership, or other association or entity (including any Sea Grant College, Sea Grant Regional Consortium, institu tion of higher education, institute, or laboratory); or any State, political sub division of a State, or agency or officer thereof. (d) Sea Grant College. The term Sea Grant College means any public or pri vate institution of higher education or confederation of such institutions which is designated as such by the Sec retary under section 207 of the Na tional Sea Grant Program Act. In cluded in this term are all campuses (or other administrative entities) of a designated Sea Grant College, working through the established management structure of the Sea Grant College. (e) Sea Grant Program. The term Sea Grant Program means any program which: (1) Is administered by a Sea Grant College, Sea Grant Regional Consor tium, institution of higher education, institute, laboratory, or State or local agency; and (2) Includes two or more Sea Grant projects involving one or more of the following activities in fields related to ocean, Great Lakes, and coastal re sources: (i) Research, (ii) Education and training, and (iii) Advisory services. (f) Sea Grant project. A Sea Grant project is any separately described ac tivity which has been proposed to the National Sea Grant College Program, and has subsequently been approved. (g) Sea Grant Regional Consortium. The term Sea Grant Regional Consortium means any association or other alli ance of two or more persons as defined above (other than individuals) estab lished for the purpose of pursuing pro grams in marine research education, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00095 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 86 15 CFR Ch. IX (1–1–21 Edition) § 918.3 training, and advisory services on a re gional basis (i.e., beyond the bound aries of a single state) and which is designated as a consortium by the Sec retary under section 207 of the Na tional Sea Grant Program Act. (h) Field related to Ocean, Great Lakes, and coastal resources. The term field re lated to Ocean, Great Lakes, and coastal resources means any discipline or field (including marine sciences and the physical, natural, and biological sciences, and engineering, included therein, marine technology, education, economics, sociology, communications, planning law, international affairs, public administration, humanities, and the arts) which is concerned with, or likely to improve the understanding, assessment, development, utilization, or conservation of, ocean, Great Lakes, and coastal resources. § 918.3 Eligibility, qualifications, and responsibility of a Sea Grant Col lege. (a) To be eligible for designation as a Sea Grant College, the institution of higher education or confederation of such institutions must have dem onstrated a capability to maintain a high quality and balanced program of research, education, training, and advi sory services in fields related to ocean, Great Lakes, and coastal resources for a minimum of three years, and have re ceived financial assistance as an Insti tutional program under either section 205 of the National Sea Grant College Program Act or under section 204(c) of the earlier National Sea Grant College and Program Act of 1966. (b) To be eligible for designation as a Sea Grant College, the candidate insti tution or confederation of institutions must meet the qualifications set forth above as evaluated by a site review team composed of members of the Sea Grant Review Panel, NOAA’s Office of Sea Grant, and other experts named by NOAA. As a result of this review, the candidate must be rated highly in all of the following qualifying areas: (1) Leadership. The Sea Grant College candidate must have achieved recogni tion as an intellectual and practical leader in marine science, engineering, education, and advisory service in its state and region. (2) Organization. The Sea Grant Col lege candidate must have created the management organization to carry on a viable and productive Sea Grant Pro gram, and must have the backing of its administration at a sufficiently high level to fulfill its multidisciplinary and multifaceted mandate. (3) Relevance. The Sea Grant College candidate’s program must be relevant to local, State, regional, or National opportunities and problems in the ma rine environment. Important factors in evaluating relevance are the need for marine resource emphasis and the ex tent to which capabilities have been developed to be responsive to that need. (4) Programmed team approach. The Sea Grant College candidate must have a programmed team approach to the solution of marine problems which in cludes relevant, high quality, multi disciplinary research with associated educational and advisory services capa ble of producing identifiable results. (5) Education and training. Education and training must be clearly relevant to National, regional, State and local needs in fields related to ocean, Great Lakes, and coastal resources. As appro priate, education may include pre-col lege, college, post-graduate, public and adult levels. (6) Advisory services. The Sea Grant College candidate must have a strong program through which information, techniques,and research results from any reliable source, domestic or inter national, may be communicated to and utilized by user communities. In addi tion to the educational and informa tion dissemination role, the advisory service program must aid in the identi fication and communication of user communities’ research and educational needs. (7) Relationships. The Sea Grant Col lege candidate must have close ties with Federal agencies. State agencies and administrations, local authorities, business and industry, and other edu cational institutions. These ties are: (i) To ensure the relevance of its pro grams, (ii) to give assistance to the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00096 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 87 Nat’l Oceanic and Atmospheric Adm., Commerce § 918.5 broadest possible audience, (iii) to in volve a broad pool of talent in pro viding this assistance (including uni versities and other administrative en tities outside the Sea Grant College), and (iv) to assist others in developing research and management competence. The extent and quality of an institu tion’s relationships are critical factors in evaluating the institutional pro gram. (8) Productivity. The Sea Grant Col lege candidate must have demonstrated the degree of productivity (of research results, reports, employed students, service to State agencies and industry, etc.) commensurate with the length of its Sea Grant operations and the level of funding under which it has worked. (9) Support. The Sea Grant College candidate must have the ability to ob tain matching funds from non-Federal sources, such as state legislatures, uni versity management, state agencies, business, and industry. A diversity of matching fund sources is encouraged as a sign of program vitality and the abil ity to meet the Sea Grant requirement that funds for the general programs be matched with at least one non-Federal dollar for every two Federal dollars. (c) Finally, it must be found that the Sea Grant College candidate will act in accordance with the following stand ards relating to its continuing respon sibilities if it should be designated a Sea Grant College: (1) Continue pursuit of excellence and high performance in marine research, education, training, and advisory serv ices. (2) Provide leadership in marine ac tivities including coordinated planning and cooperative work with local, state, regional, and Federal agencies, other Sea Grant Programs, and non-Sea Grant universities. (3) Maintain an effective manage ment framework and application of in stitutional resources to the achieve ment of Sea Grant objectives. (4) Develop and implement long-term plans for research, education, training, and advisory services consistent with Sea Grant goals and objectives. (5) Advocate and further the Sea Grant concept and the full develop ment of its potential within the insti tution and the state. (6) Provide adequate and stable matching financial support for the pro gram from non-Federal sources. (7) Establish and operate an effective system to control the quality of its Sea Grant programs. § 918.4 Duration of Sea Grant College designation. Designation will be made on the basis of merit and the determination by the Secretary of Commerce that such a designation is consistent with the goals of the Act. Continuation of the Sea Grant College designation is con tingent upon the institution’s ability to maintain a high quality perform ance consistent with the requirements outlined above. The Secretary may, for cause and after an opportunity for hearing, suspend or terminate a des ignation as a Sea Grant College. § 918.5 Eligibility, qualifications, and responsibilities—Sea Grant Re gional Consortia. (a) To be eligible for designation as a Sea Grant Regional Consortium, the candidate association or alliance of or ganizations must provide, in signifi cant breadth and quality, one or more services in the areas of research, edu cation, and training, or advisory serv ice in fields related to ocean, Great Lakes, and coastal resources. Further, it is essential that the candidate Sea Grant Consortium be required to pro vide all three services as soon as pos sible after designation. Further, such association or alliance must dem onstrate that: (1) It has been established for the purpose of sharing expertise, research, educational facilities, or training fa cilities, and other capabilities in order to facilitate research, education, train ing, and advisory services in any field related to ocean, Great Lakes, and coastal resources; and (2) It will encourage and follow a re gional multi-State approach to solving problems or meeting needs relating to ocean, Great Lakes, and coastal re sources, in cooperation with appro priate Sea Grant Colleges, Sea Grant Programs and other persons in the re gion. (b) Although it is recognized that the distribution of effort between research, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00097 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 88 15 CFR Ch. IX (1–1–21 Edition) § 918.5 education, training, and advisory serv ices to achieve appropriate balance in a Sea Grant Regional Consortium may differ from a Sea Grant College, sus tained effort in all of these areas is, nonetheless, an essential requirement for retention of such designation. To be eligible for designation as a Sea Grant Regional Consortium, the candidate as sociation or alliance of organizations must meet the qualifications set forth above as evaluated by a site review team composed of members of the Sea Grant Review Panel, the Office of Sea Grant, and other experts. Further, the candidate must be rated highly in all of the following qualifying areas which are pertinent to the Consortium’s pro gram: (1) Leadership. The Sea Grant Re gional Consortium candidate must have achieved recognition as an intel lectual and practical leader in marine science, engineering, education, and advisory service in its region. (2) Organization. The Sea Grant Re gional Consortium candidate must have created the management organi zation to carry on a viable and produc tive multidisciplinary Sea Grant Pro gram and have the backing of the ad ministrations of its component organi zations at a sufficiently high level to fulfill its multidisciplinary and multi faceted mandate. (3) Relevance. The Sea Grant Regional Consortium candidate’s Sea Grant Pro gram must be relevant to regional op portunities and problems in the marine environment. Important factors in evaluating relevance are the extent and depth of the need of a region for a focused marine resource emphasis and the degree to which the candidate has developed its capability to be respon sive to that need. (4) Education and training. Education and training must be clearly relevant to regional needs and must be of high quality in fields related to ocean, Great Lakes, and coastal resources. As appro priate, education may include precollege, college, post-graduate, pub lic and adult levels. (5) Advisory services. The Sea Grant Regional Consortium candidate must have a strong program through which information techniques, and research results from any reliable source, do mestic or international, may be com municated to and utilized by user com munities. In addition to the edu cational and information dissemina tion role, the advisory service program must aid in the identification and com munication of user communities’ re search and educational needs. (6) Relationships. The Sea Grant Re gional Consortium candidate must have close ties with federal agencies, state agencies and administrations, re gional authorities, regional business and industry, and other regional edu cational institutions. These regional ties are: (i) To ensure the relevance of programs, (ii) to generate requests for such assistance as the consortium may offer, and (iii) to assist others in devel oping research and management com petence. The extent and quality of a candidate’s relationships are critical factors in evaluating the proposed des ignation. (7) Productivity. The Sea Grant Re gional Consortium candidate must have demonstrated a degree of produc tivity (of research results, reports, em ployed students, service to regional agencies, industry, etc.) commensurate with the length of its Sea Grant oper ations and the level of funding under which it has worked. (8) Support. The Sea Grant Regional Consortium candidate must have the ability to obtain matching funds from non-Federal sources, such as State leg islatures, university management, State agencies, and business and indus try. A diversity of matching funds sources is encouraged as a sign of pro gram vitality and the ability to meet the Sea Grant requirement that funds for the general programs be matched with at least one non-Federal dollar for every two Federal dollars. (c) Finally, it must be found that the Sea Grant Regional Consortium can didate will act in accordance with the following standards relating to its con tinuing responsibilities as a Sea Grant Regional Consortium: (1) Continue pursuit of excellence and high performance in marine research education, training, and advisory serv ices. (2) Provide regional leadership in ma rine activities including coordinated planning and cooperative work with VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00098 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 89 Nat’l Oceanic and Atmospheric Adm., Commerce § 918.7 local, State, regional, and Federal agencies, other Sea Grant Programs, and non-Sea Grant organizations. (3) Maintain an effective manage ment framework and application of or ganizational resources to the achieve ment of Sea Grant objectives. (4) Develop and implement long-term plans for research, education, training, and advisory services consistent with Sea Grant goals and objectives. (5) Advocate and further the Sea Grant concept and the full develop ment of its potential within the con sortium and the region. (6) Provide adequate and stable matching financial support for the pro gram from non-Federal sources. (7) Establish and operate an effective system to control the quality of its Sea Grant program. § 918.6 Duration of Sea Grant Regional Consortium designation. Designation will be made on the basis of merit and the determination by the Secretary of Commerce that such a designation is consistent with the goals of the Act. Continuation of the Sea Grant Regional Consortium des ignation is contingent upon the alli ance’s ability to maintain a high qual ity performance consistent with the standards outlined above. The Sec retary may, for cause and after an op portunity for hearing, suspend or ter minate the designation as a Sea Grant Regional Consortium. § 918.7 Application for designation. (a) All applications for initial des ignation as a Sea Grant College or a Regional Consortium should be ad dressed to the Secretary of Commerce and submitted to the Director, Na tional Sea Grant College Program, Na tional Oceanic and Atmospheric Ad ministration. The application should contain an outline of the capabilities of the applicant and the reasons why the applicant believes that it merits designation under the guidelines con tained in this regulation. Upon receipt of the application, the Director will present the institution’s case to the Sea Grant Review Panel for evaluation. The Panel’s recommendation will be forwarded to the Secretary for final ac tion. (b) An existing Sea Grant College or Regional Consortium may also apply as in paragraph (a) of this section, for a change in the scope of designation to include or exclude other administra tive entities of the institution or asso ciation. If approved by the Secretary such included (excluded) administra tive entities shall share (lose) the full rights and responsibilities of a Sea Grant College or Regional Consortium. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00099 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 90 SUBCHAPTER B—OCEAN AND COASTAL RESOURCE MANAGEMENT PART 921—NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM REG ULATIONS Subpart A—General Sec. 921.1 Mission, goals and general provisions. 921.2 Definitions. 921.3 National Estuarine Research Reserve System biogeographic classification scheme and estuarine typologies. 921.4 Relationship to other provisions of the Coastal Zone Management Act and the Marine Protection, Research and Sanc tuaries Act. Subpart B—Site Selection, Post Site Selec tion and Management Plan Develop ment 921.10 General. 921.11 Site selection and feasibility. 921.12 Post site selection. 921.13 Management plan and environmental impact statement development. Subpart C—Acquisition, Development and Preparation of the Final Management Plan 921.20 General. 921.21 Initial acquisition and development awards. Subpart D—Reserve Designation and Subsequent Operation 921.30 Designation of National Estuarine Research Reserves. 921.31 Supplemental acquisition and devel opment awards. 921.32 Operation and management: Imple mentation of the management plan. 921.33 Boundary changes, amendments to the management plan, and addition of multiple-site components. Subpart E—Ongoing Oversight, Perform ance Evaluation and Withdrawal of Designation 921.40 Ongoing oversight and evaluations of designated National Estuarine Research Reserves. 921.41 Withdrawal of designation. Subpart F—Special Research Projects 921.50 General. 921.51 Estuarine research guidelines. 921.52 Promotion and coordination of estua rine research. Subpart G—Special Monitoring Projects 921.60 General. Subpart H—Special Interpretation and Education Projects 921.70 General. Subpart I—General Financial Assistance Provisions 921.80 Application information. 921.81 Allowable costs. 921.82 Amendments to financial assistance awards. APPENDIX I TO PART 921—BIOGEOGRAPHIC CLASSIFICATION SCHEME APPENDIX II TO PART 921—TYPOLOGY OF NA TIONAL ESTUARINE RESEARCH RESERVES AUTHORITY: Section 315 of the Coastal Zone Management Act, as amended (16 U.S.C. 1461). SOURCE: 58 FR 38215, July 15, 1993, unless otherwise noted. Subpart A—General § 921.1 Mission, goals and general pro visions. (a) The mission of the National Estu arine Research Reserve Program is the establishment and management, through Federal-state cooperation, of a national system (National Estuarine Research Reserve System or System) of estuarine research reserves (Na tional Estuarine Research Reserves or Reserves) representative of the various regions and estuarine types in the United States. National Estuarine Re search Reserves are established to pro vide opportunities for long-term re search, education, and interpretation. (b) The goals of the Program are to: (1) Ensure a stable environment for research through long-term protection of National Estuarine Research Re serve resources; (2) Address coastal management issues identified as significant through coordinated estuarine research within the System; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00100 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 91 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.1 (3) Enhance public awareness and un derstanding of estuarine areas and pro vide suitable opportunities for public education and interpretation; (4) Promote Federal, state, public and private use of one or more Re serves within the System when such entities conduct estuarine research; and (5) Conduct and coordinate estuarine research within the System, gathering and making available information nec essary for improved understanding and management of estuarine areas. (c) National Estuarine Research Re serves shall be open to the public to the extent permitted under state and Federal law. Multiple uses are allowed to the degree compatible with each Re serve’s overall purpose as provided in the management plan (see § 921.13) and consistent with paragraphs (a) and (b) of this section. Use levels are set by the state where the Reserve is located and analyzed in the management plan. The Reserve management plan shall describe the uses and establish prior ities among these uses. The plan shall identify uses requiring a state permit, as well as areas where uses are encour aged or prohibited. Consistent with re source protection and research objec tives, public access and use may be re stricted to certain areas or components within a Reserve. (d) Habitat manipulation for research purposes is allowed consistent with the following limitations. Manipulative re search activities must be specified in the management plan, be consistent with the mission and goals of the pro gram (see paragraphs (a) and (b) of this section) and the goals and objectives set forth in the Reserve’s management plan, and be limited in nature and ex tent to the minimum manipulative ac tivity necessary to accomplish the stated research objective. Manipulative research activities with a significant or long-term impact on Reserve resources require the prior approval of the state and the National Oceanic and Atmos pheric Administration (NOAA). Ma nipulative research activities which can reasonably be expected to have a significant adverse impact on the estu arine resources and habitat of a Re serve, such that the activities them selves or their resulting short- and long-term consequences compromise the representative character and integ rity of a Reserve, are prohibited. Habi tat manipulation for resource manage ment purposes is prohibited except as specifically approved by NOAA as: (1) A restoration activity consistent with paragraph (e) of this section; or (2) an activity necessary for the protection of public health or the preservation of other sensitive resources which have been listed or are eligible for protec tion under relevant Federal or state authority (e.g., threatened/endangered species or significant historical or cul tural resources) or if the manipulative activity is a long-term pre-existing use (i.e., has occurred prior to designation) occurring in a buffer area. If habitat manipulation is determined to be nec essary for the protection of public health, the preservation of sensitive re sources, or if the manipulation is a long-term pre-existing use in a buffer area, then these activities shall be specified in the Reserve management plan in accordance with § 921.13(a)(10) and shall be limited to the reasonable alternative which has the least adverse and shortest term impact on the rep resentative and ecological integrity of the Reserve. (e) Under the Act an area may be des ignated as an estuarine Reserve only if the area is a representative estuarine ecosystem that is suitable for long term research. Many estuarine areas have undergone some ecological change as a result of human activities (e.g., hydrological changes, intentional/unin tentional species composition changes—introduced and exotic spe cies). In those areas proposed or des ignated as National Estuarine Re search Reserves, such changes may have diminished the representative character and integrity of the site. Al though restoration of degraded areas is not a primary purpose of the System, such activities may be permitted to improve the representative character and integrity of a Reserve. Restoration activities must be carefully planned and approved by NOAA through the Re serve management plan. Historical re search may be necessary to determine the ‘‘natural’’ representative state of an estuarine area (i.e., an estuarine ecosystem minimally affected by VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00101 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 92 15 CFR Ch. IX (1–1–21 Edition) § 921.2 human activity or influence). Fre quently, restoration of a degraded estu arine area will provide an excellent op portunity for management oriented re search. (f) NOAA may provide financial as sistance to coastal states, not to ex ceed, per Reserve, 50 percent of all ac tual costs or $5 million whichever amount is less, to assist in the acquisi tion of land and waters, or interests therein. NOAA may provide financial assistance to coastal states not to ex ceed 70 percent of all actual costs for the management and operation of, the development and construction of facili ties, and the conduct of educational or interpretive activities concerning Re serves (see subpart I). NOAA may pro vide financial assistance to any coastal state or public or private person, not to exceed 70 percent of all actual costs, to support research and monitoring with in a Reserve. Notwithstanding any fi nancial assistance limits established by this Part, when financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, such assist ance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available. Predesignation, ac quisition and development, operation and management, special research and monitoring, and special education and interpretation awards are available under the National Estuarine Reserve Program. Predesignation awards are for site selection/feasibility, draft man agement plan preparation and conduct of basic characterization studies. Ac quisition and development awards are intended primarily for acquisition of interests in land, facility construction and to develop and/or upgrade research, monitoring and education programs. Operation and management awards provide funds to assist in imple menting, operating and managing the administrative, and basic research, monitoring and education programs, outlined in the Reserve management plan. Special research and monitoring awards provide funds to conduct estua rine research and monitoring projects with the System. Special educational and interpretive awards provide funds to conduct estuarine educational and interpretive projects within the Sys tem. (g) Lands already in protected status managed by other Federal agencies, state or local governments, or private organizations may be included within National Estuarine Research Reserves only if the managing entity commits to long-term management consistent with paragraphs (d) and (e) of this sec tion in the Reserve management plan. Federal lands already in protected sta tus may not comprise a majority of the key land and water areas of a Reserve (see § 921.11(c)(3)). (h) To assist the states in carrying out the Program’s goals in an effective manner, NOAA will coordinate a re search and education information ex change throughout the National Estua rine Research Reserve System. As part of this role, NOAA will ensure that in formation and ideas from one Reserve are made available to others in the System. The network will enable Re serves to exchange information and re search data with each other, with uni versities engaged in estuarine research, and with Federal, state, and local agen cies. NOAA’s objective is a system-wide program of research and monitoring capable of addressing the management issues that affect long-term produc tivity of our Nation’s estuaries. [58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998] § 921.2 Definitions. (a) Act means the Coastal Zone Man agement Act of 1972, as amended, 16 U.S.C. 1451 et seq. (b) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Manage ment or delegee. (c) Coastal state means a state of the United States, in or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes. For the purposes of these regulations the term also includes Puerto Rico, the Virgin Islands, Guam, the Common wealth of the Northern Marianas Is lands, the Trust Territories of the Pa cific Islands, and American Samoa (see 16 U.S.C. 1453(4)). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00102 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 93 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.4 (d) State agency means an instrumen tality of a coastal state to whom the coastal state has delegated the author ity and responsibility for the creation and/or management/operation of a Na tional Estuarine Research Reserve. Factors indicative of this authority may include the power to receive and expend funds on behalf of the Reserve, acquire and sell or convey real and per sonal property interests, adopt rules for the protection of the Reserve, en force rules applicable to the Reserve, or develop and implement research and education programs for the reserve. For the purposes of these regulations, the terms ‘‘coastal state’’ and ‘‘State agency’’ shall be synonymous. (e) Estuary means that part of a river or stream or other body of water hav ing unimpaired connection with the open sea, where the sea water is meas urably diluted with fresh water derived from land drainage. The term also in cludes estuary-type areas with measur able freshwater influence and having unimpaired connections with the open sea, and estuary-type areas of the Great Lakes and their connecting waters (see 16 U.S.C. 1453(7)). (f) National Estuarine Research Reserve means an area that is a representative estuarine ecosystem suitable for long term research, which may include all of the key land and water portion of an estuary, and adjacent transitional areas and uplands constituting to the extent feasible a natural unit, and which is set aside as a natural field lab oratory to provide long-term opportu nities for research, education, and in terpretation on the ecological relation ships within the area (see 16 U.S.C. 1453(8)) and meets the requirements of 16 U.S.C. 1461(b). This includes those areas designated as National Estuarine Sanctuaries or Reserves under section 315 of the Act prior to enactment of the Coastal Zone Act Reauthorization Amendments of 1990 and each area sub sequently designated as a National Es tuarine Research Reserve. § 921.3 National Estuarine Research Reserve System biogeographic clas sification scheme and estuarine typologies. (a) National Estuarine Research Re serves are chosen to reflect regional differences and to include a variety of ecosystem types. A biogeographic clas sification scheme based on regional variations in the nation’s coastal zone has been developed. The biogeographic classification scheme is used to ensure that the National Estuarine Research Reserve System includes at least one site from each region. The estuarine typology system is utilized to ensure that sites in the System reflect the wide range of estuarine types within the United States. (b) The biogeographic classification scheme, presented in appendix I, con tains 29 regions. Figure 1 graphically depicts the biogeographic regions of the United States. (c) The typology system is presented in appendix II. § 921.4 Relationship to other provi sions of the Coastal Zone Manage ment Act, and to the Marine Protec tion, Research and Sanctuaries Act. (a) The National Estuarine Research Reserve System is intended to provide information to state agencies and other entities involved in addressing coastal management issues. Any coast al state, including those that do not have approved coastal management programs under section 306 of the Act, is eligible for an award under the Na tional Estuarine Research Reserve Pro gram (see § 921.2(c)). (b) For purposes of consistency re view by states with a federally ap proved coastal management program, the designation of a National Estuarine Research Reserve is deemed to be a Federal activity, which, if directly af fecting the state’s coastal zone, must be undertaken in a manner consistent to the maximum extent practicable with the approved state coastal man agement program as provided by sec tion 1456(c)(1) of the Act, and imple menting regulations at 15 CFR part 930, subpart C. In accordance with section 1456(c)(1) of the Act and the applicable regulations NOAA will be responsible for certifying that designation of the Reserve is consistent with the state’s approved coastal management pro gram. The state must concur with or object to the certification. It is rec ommended that the lead state agency for Reserve designation consult, at the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00103 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 94 15 CFR Ch. IX (1–1–21 Edition) § 921.10 earliest practicable time, with the ap propriate state officials concerning the consistency of a proposed National Es tuarine Research Reserve. (c) The National Estuarine Research Reserve Program will be administered in close coordination with the National Marine Sanctuary Program (Title III of the Marine Protection, Research and Sanctuaries Act, as amended, 16 U.S.C. 1431–1445), also administered by NOAA. Title III authorizes the Secretary of Commerce to designate discrete areas of the marine environment as National Marine Sanctuaries to protect or re store such areas for their conservation, recreational, ecological, historical, re search, educational or esthetic values. National Marine Sanctuaries and Estu arine Research Reserves may not over lap, but may be adjacent. Subpart B—Site Selection, Post Site Selection and Management Plan Development § 921.10 General. (a) A coastal state may apply for Federal financial assistance for the purpose of site selection, preparation of documents specified in § 921.13 (draft management plan (DMP) and environ mental impact statement (EIS)), and the conduct of limited basic character ization studies. The total Federal share of this assistance may not exceed $100,000. Federal financial assistance for preacquisition activities under § 921.11 and § 921.12 is subject to the total $5 million for which each Reserve is eligible for land acquisition. Not withstanding the above, when financial assistance is provided from amounts recovered as a result of damage to nat ural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carried out with this assist ance, as long as such funds are avail able. In the case of a biogeographic re gion (see appendix I) shared by two or more coastal states, each state is eligi ble for Federal financial assistance to establish a separate National Estuarine Research Reserve within their respec tive portion of the shared bio geographic region. Each separate Na tional Estuarine Research Reserve is eligible for the full complement of funding. Financial assistance applica tion procedures are specified in subpart I. (b) In developing a Reserve program, a state may choose to develop a mul tiple-site Reserve reflecting a diversity of habitats in a single biogeographic region. A multiple-site Reserve allows the state to develop complementary re search and educational programs with in the individual components of its multi-site Reserve. Multiple-site Re serves are treated as one Reserve in terms of financial assistance and devel opment of an overall management framework and plan. Each individual site of a proposed multiple-site Reserve shall be evaluated both separately under § 921.11(c) and collectively as part of the site selection process. A coastal state may propose to establish a mul tiple-site Reserve at the time of the initial site selection, or at any point in the development or operation of the Reserve. If the state decides to develop a multiple-site National Estuarine Re search Reserve after the initial acqui sition and development award is made for a single site, the proposal is subject to the requirements set forth in § 921.33(b). However, a state may not propose to add one or more sites to an already designated Reserve if the oper ation and management of such Reserve has been found deficient and uncor rected or the research conducted is not consistent with the Estuarine Research Guidelines referenced in § 921.51. In ad dition, Federal funds for the acquisi tion of a multiple-site Reserve remain limited to $5,000,000 (see § 921.20). The funding for operation of a multiple-site Reserve is limited to the maximum al lowed for any one Reserve per year (see § 921.32(c)) and preacquisition funds are limited to $100,000 per Reserve. Not withstanding the above, when financial assistance is provided from amounts recovered as a result of damage to nat ural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assist ance, as long as such funds are avail able. [58 FR 38215, July 15, 1993, as amended at 63 FR 26717, May 14, 1998] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00104 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 95 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.11 § 921.11 Site selection and feasibility. (a) A coastal state may use Federal funds to establish and implement a site selection process which is approved by NOAA. (b) In addition to the requirements set forth in subpart I, a request for Federal funds for site selection must contain the following programmatic information: (1) A description of the proposed site selection process and how it will be im plemented in conformance with the biogeographic classification scheme and typology (§ 921.3); (2) An identification of the site selec tion agency and the potential manage ment agency; and (3) A description of how public par ticipation will be incorporated into the process (see § 921.11(d)). (c) As part of the site selection proc ess, the state and NOAA shall evaluate and select the final site(s). NOAA has final authority in approving such sites. Site selection shall be guided by the following principles: (1) The site’s contribution to the bio geographical and typological balance of the National Estuarine Research Re serve System. NOAA will give priority consideration to proposals to establish Reserves in biogeographic regions or subregions or incorporating types that are not represented in the system. (see the biogeographic classification scheme and typology set forth in § 921.3 and appendices I and II); (2) The site’s ecological characteris tics, including its biological produc tivity, diversity of flora and fauna, and capacity to attract a broad range of re search and educational interests. The proposed site must be a representative estuarine ecosystem and should, to the maximum extent possible, be an estua rine ecosystem minimally affected by human activity or influence (see § 921.1(e)). (3) Assurance that the site’s bound aries encompass an adequate portion of the key land and water areas of the natural system to approximate an eco logical unit and to ensure effective conservation. Boundary size will vary greatly depending on the nature of the ecosystem. Reserve boundaries must encompass the area within which ade quate control has or will be established by the managing entity over human ac tivities occurring within the Reserve. Generally, Reserve boundaries will en compass two areas: Key land and water areas (or ‘‘core area’’) and a buffer zone. Key land and water areas and a buffer zone will likely require signifi cantly different levels of control (see § 921.13(a)(7)). The term ‘‘key land and water areas’’ refers to that core area within the Reserve that is so vital to the functioning of the estuarine eco system that it must be under a level of control sufficient to ensure the long term viability of the Reserve for re search on natural processes. Key land and water areas, which comprise the core area, are those ecological units of a natural estuarine system which pre serve, for research purposes, a full range of significant physical, chemical and biological factors contributing to the diversity of fauna, flora and nat ural processes occurring within the es tuary. The determination of which land and water areas are ‘‘key’’ to a par ticular Reserve must be based on spe cific scientific knowledge of the area. A basic principle to follow when decid ing upon key land and water areas is that they should encompass resources representative of the total ecosystem, and which if compromised could endan ger the research objectives of the Re serve. The term buffer zone refers to an area adjacent to or surrounding key land and water areas and essential to their integrity. Buffer zones protect the core area and provide additional protection for estuarine-dependent spe cies, including those that are rare or endangered. When determined appro priate by the state and approved by NOAA, the buffer zone may also in clude an area necessary for facilities required for research and interpreta tion. Additionally, buffer zones should be established sufficient to accommo date a shift of the core area as a result of biological, ecological or geomorphological change which rea sonably could be expected to occur. Na tional Estuarine Research Reserves may include existing Federal or state lands already in a protected status where mutual benefit can be enhanced. However, NOAA will not approve a site VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00105 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 96 15 CFR Ch. IX (1–1–21 Edition) § 921.12 for potential National Estuarine Re search Reserve status that is depend ent primarily upon the inclusion of currently protected Federal lands in order to meet the requirements for Re serve status (such as key land and water areas). Such lands generally will be included within a Reserve to serve as a buffer or for other ancillary pur poses; and may be included, subject to NOAA approval, as a limited portion of the core area; (4) The site’s suitability for long term estuarine research, including eco logical factors and proximity to exist ing research facilities and educational institutions; (5) The site’s compatibility with ex isting and potential land and water uses in contiguous areas as well as ap proved coastal and estuarine manage ment plans; and (6) The site’s importance to edu cation and interpretive efforts, con sistent with the need for continued protection of the natural system. (d) Early in the site selection process the state must seek the views of af fected landowners, local governments, other state and Federal agencies and other parties who are interested in the area(s) being considered for selection as a potential National Estuarine Re search Reserve. After the local govern ment(s) and affected landowner(s) have been contacted, at least one public meeting shall be held in the vicinity of the proposed site. Notice of such a meeting, including the time, place, and relevant subject matter, shall be an nounced by the state through the area’s principal newspaper at least 15 days prior to the date of the meeting and by NOAA in the FEDERAL REG ISTER. (e) A state request for NOAA ap proval of a proposed site (or sites in the case of a multi-site Reserve) must con tain a description of the proposed site(s) in relationship to each of the site selection principals (§ 921.11(c)) and the following information: (1) An analysis of the proposed site(s) based on the biogeographical scheme/ typology discussed in § 921.3 and set forth in appendices I and II; (2) A description of the proposed site(s) and its (their) major resources, including location, proposed bound aries, and adjacent land uses. Maps are required; (3) A description of the public par ticipation process used by the state to solicit the views of interested parties, a summary of comments, and, if inter state issues are involved, documenta tion that the Governor(s) of the other affected state(s) has been contacted. Copies of all correspondence, including contact letters to all affected land owners must be appended; (4) A list of all sites considered and a brief statement of the reasons why a site was not preferred; and (5) A nomination of the proposed site(s) for designation as a National Es tuarine Research Reserve by the Gov ernor of the coastal state in which the state is located. (f) A state proposing to reactivate an inactive site, previously approved by NOAA for development as an Estuarine Sanctuary or Reserve, may apply for those funds remaining, if any, provided for site selection and feasibility (§ 921.11a)) to determine the feasibility of reactivation. This feasibility study must comply with the requirements set forth in § 921.11 (c) through (e). § 921.12 Post site selection. (a) At the time of the coastal state’s request for NOAA approval of a pro posed site, the state may submit a re quest for funds to develop the draft management plan and for preparation of the EIS. At this time, the state may also submit a request for the remainder of the predesignation funds to perform a limited basic characterization of the physical, chemical and biological char acteristics of the site approved by NOAA necessary for providing EIS in formation to NOAA. The state’s re quest for these post site selection funds must be accompanied by the informa tion specified in subpart I and, for draft management plan development and EIS information collection, the fol lowing programmatic information: (1) A draft management plan outline (see § 921.13(a) below); and (2) An outline of a draft memo randum of understanding (MOU) be tween the state and NOAA detailing the Federal-state role in Reserve man agement during the initial period of Federal funding and expressing the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00106 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 97 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.13 state’s long-term commitment to oper ate and manage the Reserve. (b) The state is eligible to use the funds referenced in § 921.12(a) after the proposed site is approved by NOAA under the terms of § 921.11. § 921.13 Management plan and envi ronmental impact statement devel opment. (a) After NOAA approves the state’s proposed site and application for funds submitted pursuant to § 921.12, the state may begin draft management plan development and the collection of information necessary for the prepara tion by NOAA of an EIS. The state shall develop a draft management plan, including an MOU. The plan shall set out in detail: (1) Reserve goals and objectives, management issues, and strategies or actions for meeting the goals and ob jectives; (2) An administrative plan including staff roles in administration, research, education/interpretation, and surveil lance and enforcement; (3) A research plan, including a moni toring design; (4) An education/interpretive plan; (5) A plan for public access to the Re serve; (6) A construction plan, including a proposed construction schedule, gen eral descriptions of proposed develop ments and general cost estimates. In formation should be provided for pro posed minor construction projects in sufficient detail to allow these projects to begin in the initial phase of acquisi tion and development. A categorical exclusion, environmental assessment, or EIS may be required prior to con struction; (7)(i) An acquisition plan identifying the ecologically key land and water areas of the Reserve, ranking these areas according to their relative im portance, and including a strategy for establishing adequate long-term state control over these areas sufficient to provide protection for Reserve re sources to ensure a stable environment for research. This plan must include an identification of ownership within the proposed Reserve boundaries, including land already in the public domain; the method(s) of acquisition which the state proposes to use—acquisition (in cluding less-than-fee simple options) to establish adequate long-term state con trol; an estimate of the fair market value of any property interest—which is proposed for acquisition; a schedule estimating the time required to com plete the process of establishing ade quate state control of the proposed re search reserve; and a discussion of any anticipated problems. In selecting a preferred method(s) for establishing adequate state control over areas with in the proposed boundaries of the Re serve, the state shall perform the fol lowing steps for each parcel deter mined to be part of the key land and water areas (control over which is nec essary to protect the integrity of the Reserve for research purposes), and for those parcels required for research and interpretive support facilities or buffer purposes: (A) Determine, with appropriate jus tification, the minimum level of con trol(s) required [e.g., management agreement, regulation, less-than-fee simple property interest (e.g., con servation easement), fee simple prop erty acquisition, or a combination of these approaches]. This does not pre clude the future necessity of increasing the level of state control; (B) Identify the level of existing state control(s); (C) Identify the level of additional state control(s), if any, necessary to meet the minimum requirements iden tified in paragraph (a)(7)(i)(A) of this section; (D) Examine all reasonable alter natives for attaining the level of con trol identified in paragraph (a)(7)(i)(C) of this section, and perform a cost analysis of each; and (E) Rank, in order of cost, the meth ods (including acquisition) identified in paragraph (a)(7)(i)(D) of this section. (ii) An assessment of the relative cost-effectiveness of control alter natives shall include a reasonable esti mate of both short-term costs (e.g., ac quisition of property interests, regu latory program development including associated enforcement costs, negotia tion, adjudication, etc.) and long-term costs (e.g., monitoring, enforcement, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00107 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 98 15 CFR Ch. IX (1–1–21 Edition) § 921.13 adjudication, management and coordi nation). In selecting a preferred meth od(s) for establishing adequate state control over each parcel examined under the process described above, the state shall give priority consideration to the least costly method(s) of attain ing the minimum level of long-term control required. Generally, with the possible exception of buffer areas re quired for support facilities, the level of control(s) required for buffer areas will be considerably less than that re quired for key land and water areas. This acquisition plan, after receiving the approval of NOAA, shall serve as a guide for negotiations with land owners. A final boundary for the re serve shall be delineated as a part of the final management plan; (8) A resource protection plan detail ing applicable authorities, including allowable uses, uses requiring a permit and permit requirements, any restric tions on use of the research reserve, and a strategy for research reserve sur veillance and enforcement of such use restrictions, including appropriate gov ernment enforcement agencies; (9) If applicable, a restoration plan describing those portions of the site that may require habitat modification to restore natural conditions; (10) If applicable, a resource manipu lation plan, describing those portions of the Reserve buffer in which long term pre-existing (prior to designation) manipulation for reasons not related to research or restoration is occurring. The plan shall explain in detail the na ture of such activities, shall justify why such manipulation should be per mitted to continue within the reserve buffer; and shall describe possible ef fects of this manipulation on key land and water areas and their resources; (11) A proposed memorandum of un derstanding (MOU) between the state and NOAA regarding the Federal-state relationship during the establishment and development of the National Estu arine Research Reserve, and expressing a long-term commitment by the state to maintain and manage the Reserve in accordance with section 315 of the Act, 16 U.S.C. 1461, and applicable regula tions. In conjunction with the MOU, and where possible under state law, the state will consider taking appropriate administrative or legislative action to ensure the long-term protection and operation of the National Estuarine Research Reserve. If other MOUs are necessary (such as with a Federal agen cy, another state agency or private or ganization), drafts of such MOUs must be included in the plan. All necessary MOU’s shall be signed prior to Reserve designation; and (12) If the state has a federally ap proved coastal management program, a certification that the National Estua rine Research Reserve is consistent to the maximum extent practicable with that program. See §§ 921.4(b) and 921.30(b). (b) Regarding the preparation of an EIS under the National Environmental Policy Act on a National Estuarine Re search Reserve proposal, the state and NOAA shall collect all necessary infor mation concerning the socioeconomic and environmental impacts associated with implementing the draft manage ment plan and feasible alternatives to the plan. Based on this information, the state will draft and provide NOAA with a preliminary EIS. (c) Early in the development of the draft management plan and the draft EIS, the state and NOAA shall hold a scoping meeting (pursuant to NEPA) in the area or areas most affected to so licit public and government comments on the significant issues related to the proposed action. NOAA will publish a notice of the meeting in the FEDERAL REGISTER at least 15 days prior to the meeting. The state shall be responsible for publishing a similar notice in the local media. (d) NOAA will publish a FEDERAL REGISTER notice of intent to prepare a draft EIS. After the draft EIS is pre pared and filed with the Environmental Protection Agency (EPA), a Notice of Availability of the draft EIS will ap pear in the FEDERAL REGISTER. Not less than 30 days after publication of the notice, NOAA will hold at least one public hearing in the area or areas most affected by the proposed national estuarine research reserve. The hearing will be held no sooner than 15 days after appropriate notice of the meeting has been given in the principal news media by the state and in the FEDERAL REGISTER by NOAA. After a 45-day VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 99 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.21 comment period, a final EIS will be prepared by the state and NOAA. Subpart C—Acquisition, Develop ment and Preparation of the Final Management Plan § 921.20 General. The acquisition and development pe riod is separated into two major phases. After NOAA approval of the site, draft management plan and draft MOU, and completion of the final EIS, a coastal state is eligible for an initial acquisition and development award(s). In this initial phase, the state should work to meet the criteria required for formal research reserve designation; e.g., establishing adequate state con trol over the key land and water areas as specified in the draft management plan and preparing the final manage ment plan. These requirements are specified in § 921.30. Minor construction in accordance with the draft manage ment plan may also be conducted dur ing this initial phase. The initial ac quisition and development phase is ex pected to last no longer than three years. If necessary, a longer time pe riod may be negotiated between the state and NOAA. After Reserve des ignation, a state is eligible for a sup plemental acquisition and development award(s) in accordance with § 921.31. In this post-designation acquisition and development phase, funds may be used in accordance with the final manage ment plan to construct research and educational facilities, complete any re maining land acquisition, for program development, and for restorative ac tivities identified in the final manage ment plan. In any case, the amount of Federal financial assistance provided to a coastal state with respect to the acquisition of lands and waters, or in terests therein, for any one National Estuarine Research Reserve may not exceed an amount equal to 50 percent of the costs of the lands, waters, and interests therein or $5,000,000, which ever amount is less, except when the fi nancial assistance is provided from amounts recovered as a result of dam age to natural resources located in the coastal zone, in which case the assist ance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available. [58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998] § 921.21 Initial acquisition and devel opment awards. (a) Assistance is provided to aid the recipient prior to designation in: (1) Acquiring a fee simple or less than-fee simple real property interest in land and water areas to be included in the Reserve boundaries (see § 921.13(a)(7); § 921.30(d)); (2) Minor construction, as provided in paragraphs (b) and (c) of this section; (3) Preparing the final management plan; and (4) Initial management costs, e.g., for implementing the NOAA approved draft management plan, hiring a Re serve manager and other staff as nec essary and for other management-re lated activities. Application procedures are specified in subpart I. (b) The expenditure of Federal and state funds on major construction ac tivities is not allowed during the ini tial acquisition and development phase. The preparation of architectural and engineering plans, including speci fications, for any proposed construc tion, or for proposed restorative activi ties, is permitted. In addition, minor construction activities, consistent with paragraph (c) of this section also are allowed. The NOAA-approved draft management plan must, however, in clude a construction plan and a public access plan before any award funds can be spent on construction activities. (c) Only minor construction activi ties that aid in implementing portions of the management plan (such as boat ramps and nature trails) are permitted during the initial acquisition and de velopment phase. No more than five (5) percent of the initial acquisition and development award may be expended on such activities. NOAA must make a specific determination, based on the final EIS, that the construction activ ity will not be detrimental to the envi ronment. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00109 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 100 15 CFR Ch. IX (1–1–21 Edition) § 921.21 (d) Except as specifically provided in paragraphs (a) through (c) of this sec tion, construction projects, to be fund ed in whole or in part under an acquisi tion and development award(s), may not be initiated until the Reserve re ceives formal designation (see § 921.30). This requirement has been adopted to ensure that substantial progress in es tablishing adequate state control over key land and water areas has been made and that a final management plan is completed before major sums are spent on construction. Once sub stantial progress in establishing ade quate state control/acquisition has been made, as defined by the state in the management plan, other activities guided by the final management plan may begin with NOAA’s approval. (e) For any real property acquired in whole or part with Federal funds for the Reserve, the state shall execute suitable title documents to include substantially the following provisions, or otherwise append the following pro visions in a manner acceptable under applicable state law to the official land record(s): (1) Title to the property conveyed by this deed shall vest in the [recipient of the award granted pursuant to section 315 of the Act, 16 U.S.C. 1461 or other NOAA approved state agency] subject to the condition that the designation of the [name of National Estuarine Re serve] is not withdrawn and the prop erty remains part of the federally des ignated [name of National Estuarine Research Reserve]; and (2) In the event that the property is no longer included as part of the Re serve, or if the designation of the Re serve of which it is part is withdrawn, then NOAA or its successor agency, after full and reasonable consultation with the State, may exercise the fol lowing rights regarding the disposition of the property: (i) The recipient may retain title after paying the Federal Government an amount computed by applying the Federal percentage of participation in the cost of the original project to the current fair market value of the prop erty; (ii) If the recipient does not elect to retain title, the Federal Government may either direct the recipient to sell the property and pay the Federal Gov ernment an amount computed by ap plying the Federal percentage of par ticipation in the cost of the original project to the proceeds from the sale (after deducting actual and reasonable selling and repair or renovation ex penses, if any, from the sale proceeds), or direct the recipient to transfer title to the Federal Government. If directed to transfer title to the Federal Govern ment, the recipient shall be entitled to compensation computed by applying the recipient’s percentage of participa tion in the cost of the original project to the current fair market value of the property; and (iii) Fair market value of the prop erty must be determined by an inde pendent appraiser and certified by a re sponsible official of the state, as pro vided by Department of Commerce reg ulations at 15 CFR part 24, and Uniform Relocation Assistance and Real Prop erty Acquisition for Federal and Feder ally assisted programs at 15 CFR part 11. (f) Upon instruction by NOAA, provi sions analogous to those of § 921.21(e) shall be included in the documentation underlying less-then-fee-simple inter ests acquired in whole or part with Federal funds. (g) Federal funds or non-Federal matching share funds shall not be spent to acquire a real property inter est in which the state will own the land concurrently with another entity un less the property interest has been identified as a part of an acquisition strategy pursuant to § 921.13(7) which has been approved by NOAA prior to the effective date of these regulations. (h) Prior to submitting the final management plan to NOAA for review and approval, the state shall hold a public meeting to receive comment on the plan in the area affected by the es tuarine research reserve. NOAA will publish a notice of the meeting in the FEDERAL REGISTER at least 15 days prior to the public meeting. The state shall be responsible for having a simi lar notice published in the local news paper(s). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00110 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 101 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.31 Subpart D—Reserve Designation and Subsequent Operation § 921.30 Designation of National Estua rine Research Reserves. (a) The Under Secretary may des ignate an area proposed for designation by the Governor of the state in which it is located, as a National Esturaine Research Reserve if the Under Sec retary finds: (1) The area is a representative estua rine ecosystem that is suitable for long-term research and contributes to the biogeographical and typological balance of the System; (2) Key land and water areas of the proposed Reserve, as identified in the management plan, are under adequate state control sufficient to provide long term protection for reserve resources to ensure a stable environment for re search; (3) Designation of the area as a Re serve will serve to enhance public awareness and understanding of estua rine areas, and provide suitable oppor tunities for public education and inter pretation; (4) A final management plan has been approved by NOAA; (5) An MOU has been signed between the state and NOAA ensuring a long term commitment by the state to the effective operation and implementa tion of the area as a National Estua rine Research Reserve; (6) All MOU’s necessary for reserve management (i.e., with relevant Fed eral, state, and local agencies and/or private organizations) have been signed; and (7) The coastal state in which the area is located has complied with the requirements of subpart B. (b) NOAA will determine whether the designation of a National Estuarine Research Reserve in a state with a fed erally approved coastal zone manage ment program directly affects the coastal zone. If the designation is found to directly affect the coastal zone, NOAA will make a consistency determination pursuant to § 307(c)(1) of the Act, 16 U.S.C. 1456, and 15 CFR part 930, subpart C. See § 921.4(b). The re sults of this consistency determination will be published in the FEDERAL REG ISTER when the notice of designation is published. See § 921.30(c). (c) NOAA will publish the notice of designation of a National Estuarine Research Reserve in the FEDERAL REG ISTER. The state shall be responsible for having a similar notice published in the local media. (d) The term state control in § 921.30(a)(3) does not necessarily re quire that key land and water areas be owned by the state in fee simple. Ac quisition of less-than-fee simple inter ests e.g., conservation easements) and utilization of existing state regulatory measures are encouraged where the state can demonstrate that these inter ests and measures assure adequate long-term state control consistent with the purposes of the research reserve (see also §§ 921.13(a)(7); 921.21(g)). Should the state later elect to pur chase an interest in such lands using NOAA funds, adequate justification as to the need for such acquisition must be provided to NOAA. § 921.31 Supplemental acquisition and development awards. After National Estuarine Research Reserve designation, and as specified in the approved management plan, a coastal state may request a supple mental acquisition and/or development award(s) for acquiring additional prop erty interests identified in the manage ment plan as necessary to strengthen protection of key land and water areas and to enhance long-term protection of the area for research and education, for facility and exhibit construction, for restorative activities identified in the approved management plan, for admin istrative purposes related to acquisi tion and/or facility construction and to develop and/or upgrade research, moni toring and education/interpretive pro grams. Federal financial assistance provided to a National Estuarine Re search Reserve for supplemental devel opment costs directly associated with facility construction (i.e., major con struction activities) may not exceed 70 percent of the total project cost, except when the financial assistance is pro vided from amounts recovered as a re sult of damage to natural resources lo cated in the coastal zone, in which case the assistance may be used to pay 100 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00111 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 102 15 CFR Ch. IX (1–1–21 Edition) § 921.32 percent of the costs. NOAA must make a specific determination that the con struction activity will not be detri mental to the environment. Acquisi tion awards for the acquisition of lands or waters, or interests therein, for any one reserve may not exceed an amount equal to 50 percent of the costs of the lands, waters, and interests therein of $5,000,000, whichever amount is less, ex cept when the financial assistance is provided from amounts recovered as re sult of damage to natural resources lo cated in the coastal zone, in which case the assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available. In the case of a biogeographic region (see ap pendix I) shared by two or more states, each state is eligible independently for Federal financial assistance to estab lish a separate National Estuarine Re search Reserve within their respective portion of the shared biogeographic re gion. Application procedures are speci fied in subpart I. Land acquisition must follow the procedures specified in §§ 921.13(a)(7), 921.21(e) and (f) and 921.81. [58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998] § 921.32 Operation and management: Implementation of the management plan. (a) After the Reserve is formally des ignated, a coastal state is eligible to receive Federal funds to assist the state in the operation and management of the Reserve including the manage ment of research, monitoring, edu cation, and interpretive programs. The purpose of this Federally funded oper ation and management phase is to im plement the approved final manage ment plan and to take the necessary steps to ensure the continued effective operation of the Reserve. (b) State operation and management of the Reserves shall be consistent with the mission, and shall further the goals of the National Estuarine Research Re serve program (see § 921.1). (c) Federal funds are available for the operation and management of the Re serve. Federal funds provided pursuant to this section may not exceed 70 per cent of the total cost of operating and managing the Reserve for any one year, except when the financial assist ance is provided from amounts recov ered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. In the case of a biogeographic region (see Appendix I) shared by two or more states, each state is eligible for Federal financial assistance to establish a sepa rate Reserve within their respective portion of the shared biogeographic re gion (see § 921.10). (d) Operation and management funds are subject to the following limita tions: (1) Eligible coastal state agencies may apply for up to the maximum share available per Reserve for that fis cal year. Share amounts will be an nounced annually by letter from the Sanctuary and Reserves Division to all participating states. This letter will be provided as soon as practicable fol lowing approval of the Federal budget for that fiscal year. (2) No more than ten percent of the total amount (state and Federal shares) of each operation and manage ment award may be used for construc tion-type activities. [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997] § 921.33 Boundary changes, amend ments to the management plan, and addition of multiple-site compo nents. (a) Changes in the boundary of a Re serve and major changes to the final management plan, including state laws or regulations promulgated specifically for the Reserve, may be made only after written approval by NOAA. NOAA may require public notice, including notice in the FEDERAL REGISTER and an opportunity for public comment before approving a boundary or management plan change. Changes in the boundary of a Reserve involving the acquisition of properties not listed in the manage ment plan or final EIS require public notice and the opportunity for com ment; in certain cases, a categorical exclusion, an environmental assess ment and possibly an environmental impact statement may be required. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00112 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 103 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.40 NOAA will place a notice in the FED ERAL REGISTER of any proposed changes in Reserve boundaries or proposed major changes to the final manage ment plan. The state shall be respon sible for publishing an equivalent no tice in the local media. See also re quirements of §§ 921.4(b) and 921.13(a)(11). (b) As discussed in § 921.10(b), a state may choose to develop a multiple-site National Estuarine Research Reserve after the initial acquisition and devel opment award for a single site has been made. NOAA will publish notice of the proposed new site including an invita tion for comments from the public in the FEDERAL REGISTER. The state shall be responsible for publishing an equiva lent notice in the local newspaper(s). An EIS, if required, shall be prepared in accordance with section § 921.13 and shall include an administrative frame work for the multiple-site Reserve and a description of the complementary re search and educational programs with in the Reserve. If NOAA determines, based on the scope of the project and the issues associated with the addi tional site(s), that an environmental assessment is sufficient to establish a multiple-site Reserve, then the state shall develop a revised management plan which, concerning the additional component, incorporates each of the elements described in § 921.13(a). The revised management plan shall address goals and objectives for all components of the multi-site Reserve and the addi tional component’s relationship to the original site(s). (c) The state shall revise the manage ment plan for a Reserve at least every five years, or more often if necessary. Management plan revisions are subject to (a) above. (d) NOAA will approve boundary changes, amendments to management plans, or the addition of multiple-site components, by notice in the FEDERAL REGISTER. If necessary NOAA will re vise the designation document (find ings) for the site. Subpart E—Ongoing Oversight, Performance Evaluation and Withdrawal of Designation § 921.40 Ongoing oversight and evalua tions of designated National Estua rine Research Reserves. (a) The Sanctuaries and Reserve Di vision shall conduct, in accordance with section 312 of the Act and proce dures set forth in 15 CFR part 928, on going oversight and evaluations of Re serves. Interim sanctions may be im posed in accordance with regulations promulgated under 15 CFR part 928. (b) The Assistant Administrator may consider the following indicators of non-adherence in determining whether to invoke interim sanctions: (1) Inadequate implementation of re quired staff roles in administration, re search, education/interpretation, and surveillance and enforcement. Indica tors of inadequate implementation could include: No Reserve Manager, or no staff or insufficient staff to carry out the required functions. (2) Inadequate implementation of the required research plan, including the monitoring design. Indicators of inad equate implementation could include: Not carrying out research or moni toring that is required by the plan, or carrying out research or monitoring that is inconsistent with the plan. (3) Inadequate implementation of the required education/interpretation plan. Indicators of inadequate implementa tion could include: Not carrying out education or interpretation that is re quired by the plan, or carrying out edu cation/interpretation that is incon sistent with the plan. (4) Inadequate implementation of public access to the Reserve. Indicators of inadequate implementation of public access could include: Not providing necessary access, giving full consider ation to the need to keep some areas off limits to the public in order to pro tect fragile resources. (5) Inadequate implementation of fa cility development plan. Indicators of inadequate implementation could in clude: Not taking action to propose and budget for necessary facilities, or not undertaking necessary construction in a timely manner when funds are avail able. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00113 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 104 15 CFR Ch. IX (1–1–21 Edition) § 921.41 (6) Inadequate implementation of ac quisition plan. Indicators of inadequate implementation could include: Not pursuing an aggressive acquisition pro gram with all available funds for that purpose, not requesting promptly addi tional funds when necessary, and evi dence that adequate long-term state control has not been established over some core or buffer areas, thus jeopard izing the ability to protect the Reserve site and resources from offsite impacts. (7) Inadequate implementation of Re serve protection plan. Indicators of in adequate implementation could in clude: Evidence of non-compliance with Reserve restrictions, insufficient sur veillance and enforcement to assure that restrictions on use of the Reserve are adhered to, or evidence that Re serve resources are being damaged or destroyed as a result of the above. (8) Failure to carry out the terms of the signed Memorandum of Under standing (MOU) between the state and NOAA, which establishes a long-term state commitment to maintain and manage the Reserve in accordance with section 315 of the Act. Indicators of failure could include: State action to allow incompatible uses of state-con trolled lands or waters in the Reserve, failure of the state to bear its fair share of costs associated with long term operation and management of the Reserve, or failure to initiate timely updates of the MOU when necessary. § 921.41 Withdrawal of designation. The Assistant Administrator may withdraw designation of an estuarine area as a National Estuarine Research Reserve pursuant to and in accordance with the procedures of section 312 and 315 of the Act and regulations promul gated thereunder. Subpart F—Special Research Projects § 921.50 General. (a) To stimulate high quality re search within designated National Es tuarine Research Reserves, NOAA may provide financial support for research projects which are consistent with the Estuarine Research Guidelines ref erenced in § 921.51. Research awards may be awarded under this subpart to only those designated Reserves with approved final management plans. Al though research may be conducted within the immediate watershed of the Reserve, the majority of research ac tivities of any single research project funded under this subpart may be con ducted within Reserve boundaries. Funds provided under this subpart are primarily used to support manage ment-related research projects that will enhance scientific understanding of the Reserve ecosystem, provide in formation needed by Reserve manage ment and coastal management deci sion-makers, and improve public awareness and understanding of estua rine ecosystems and estuarine manage ment issues. Special research projects may be oriented to specific Reserves; however, research projects that would benefit more than one Reserve in the National Estuarine Reserve Research System are encouraged. (b) Funds provided under this subpart are available on a competitive basis to any coastal state or qualified public or private person. A notice of available funds will be published in the FEDERAL REGISTER. Special research project funds are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (‘‘allow able costs’’), except when the financial assistance is provided from amounts recovered as a result of damage to nat ural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997] § 921.51 Estuarine research guidelines. (a) Research within the National Es tuarine Research Reserve System shall be conducted in a manner consistent with Estuarine Research Guidelines de veloped by NOAA. (b) A summary of the Estuarine Re search Guidelines is published in the FEDERAL REGISTER as a part of the no tice of available funds discussed in § 921.50(c). (c) The Estuarine Research Guide lines are reviewed annually by NOAA. This review will include an opportunity VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00114 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 105 Nat’l Oceanic and Atmospheric Adm., Commerce § 921.70 for comment by the estuarine research community. § 921.52 Promotion and coordination of estuarine research. (a) NOAA will promote and coordi nate the use of the National Estuarine Research Reserve System for research purposes. (b) NOAA will, in conducting or sup porting estuarine research other than that authorized under section 315 of the Act, give priority consideration to re search that make use of the National Estuarine Research Reserve System. (c) NOAA will consult with other Federal and state agencies to promote use of one or more research reserves within the National Estuarine Re search Reserve System when such agencies conduct estuarine research. Subpart G—Special Monitoring Projects § 921.60 General. (a) To provide a systematic basis for developing a high quality estuarine re source and ecosystem information base for National Estuarine Research Re serves and, as a result, for the System, NOAA may provide financial support for basic monitoring programs as part of operations and management under § 921.32. Monitoring funds are used to support three major phases of a moni toring program: (1) Studies necessary to collect data for a comprehensive site description/ characterization; (2) Development of a site profile; and (3) Formulation and implementation of a monitoring program. (b) Additional monitoring funds may be available on a competitive basis to the state agency responsible for Re serve management or a qualified public or private person or entity. However, if the applicant is other than the man aging entity of a Reserve that appli cant must submit as a part of the ap plication a letter from the Reserve manager indicating formal support of the application by the managing entity of the Reserve. Funds provided under this subpart for special monitoring projects are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (‘‘allow able costs’’), except when the financial assistance is provided from amounts recovered as a result of damage to nat ural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. (c) Monitoring projects funded under this subpart must focus on the re sources within the boundaries of the Reserve and must be consistent with the applicable sections of the Estuarine Research Guidelines referenced in § 921.51. Portions of the project may occur within the immediate watershed of the Reserve beyond the site bound aries. However, the monitoring pro posal must demonstrate why this is necessary for the success of the project. [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997] Subpart H—Special Interpretation and Education Projects § 921.70 General. (a) To stimulate the development of innovative or creative interpretive and educational projects and materials to enhance public awareness and under standing of estuarine areas, NOAA may fund special interpretive and edu cational projects in addition to those activities provided for in operations and management under § 921.32. Special interpretive and educational awards may be awarded under this subpart to only those designated Reserves with approved final management plans. (b) Funds provided under this subpart may be available on a competitive basis to any state agency. However, if the applicant is other than the man aging entity of a Reserve, that appli cant must submit as a part of the ap plication a letter from the Reserve manager indicating formal support of the application by the managing entity of the Reserve. These funds are pro vided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (‘‘allowable costs’’), VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00115 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 106 15 CFR Ch. IX (1–1–21 Edition) § 921.80 except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. (c) Applicants for education/interpre tive projects that NOAA determines benefit the entire National Estuarine Research Reserve System may receive Federal assistance of up to 100% of project costs. [58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997] Subpart I—General Financial Assistance Provisions § 921.80 Application information. (a) Only a coastal state may apply for Federal financial assistance awards for preacquisition, acquisition and de velopment, operation and manage ment, and special education and inter pretation projects under subpart H. Any coastal state or public or private person may apply for Federal financial assistance awards for special estuarine research or monitoring projects under subpart G. The announcement of oppor tunities to conduct research in the System appears on an annual basis in the FEDERAL REGISTER. If a state is participating in the national Coastal Zone Management Program, the appli cant for an award under section 315 of the Act shall notify the state coastal management agency regarding the ap plication. (b) An original and two copies of the formal application must be submitted at least 120 working days prior to the proposed beginning of the project to the following address: Sanctuaries and Reserves Division Ocean and Coastal Resource Management, National Oce anic and Atmospheric Administration, 1825 Connecticut Avenue, NW., suite 714, Washington, DC 20235. Application for Federal Assistance Standard Form 424 (Non-construction Program) con stitutes the formal application for site selection, post-site selection, operation and management, research, and edu cation and interpretive awards. The Application for Federal Financial As sistance Standard Form 424 (Construc tion Program) constitutes the formal application for land acquisition and de velopment awards. The application must be accompanied by the informa tion required in subpart B (predesignation), subpart C and § 921.31 (acquisition and development), and § 921.32 (operation and management) as applicable. Applications for develop ment awards for construction projects, or restorative activities involving con struction, must include a preliminary engineering report, a detailed con struction plan, a site plan, a budget and categorical exclusion check list or environmental assessment. All applica tions must contain back up data for budget estimates (Federal and non Federal shares), and evidence that the application complies with the Execu tive Order 12372, ‘‘Intergovernmental Review of Federal Programs.’’ In addi tion, applications for acquisition and development awards must contain: (1) State Historic Preservation Office comments; (2) Written approval from NOAA of the draft management plan for initial acquisition and development award(s); and (3) A preliminary engineering report for construction activities. § 921.81 Allowable costs. (a) Allowable costs will be deter mined in accordance with applicable OMB Circulars and guidance for Fed eral financial assistance, the financial assistant agreement, these regulations, and other Department of Commerce and NOAA directives. The term ‘‘costs’’ applies to both the Federal and non Federal shares. (b) Costs claimed as charges to the award must be reasonable, beneficial and necessary for the proper and effi cient administration of the financial assistance award and must be incurred during the award period. (c) Costs must not be allocable to or included as a cost of any other Feder ally-financed program in either the current or a prior award period. (d) General guidelines for the non Federal share are contained in Depart ment of Commerce Regulations at 15 CFR part 24 and OMB Circular A–110. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00116 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 107 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 921, App. I Copies of Circular A–110 can be ob tained from the Sanctuaries and Re serves Division; 1825 Connecticut Ave nue, NW., suite 714; Washington, DC 20235. The following may be used in sat isfying the matching requirement: (1) Site selection and post site selection awards. Cash and in-kind contributions (value of goods and services directly benefiting and specifically identifiable to this part of the project) are allow able. Land may not be used as match. (2) Acquisition and development awards. Cash and in-kind contributions are allowable. In general, the fair mar ket value of lands to be included within the Reserve boundaries and acquired pursuant to the Act, with other than Federal funds, may be used as match. However, the fair market value of real property allowable as match is limited to the fair market value of a real prop erty interest equivalent to, or required to attain, the level of control over such land(s) identified by the state and ap proved by the Federal Government as that necessary for the protection and management of the National Estuarine Research Reserve. Appraisals must be performed according to Federal ap praisal standards as detailed in Depart ment of Commerce regulations at 15 CFR part 24 and the Uniform Reloca tion Assistance and Real Property Ac quisition for Federal land Federally as sisted programs in 15 CFR part 11. The fair market value of privately donated land, at the time of donation, as estab lished by an independent appraiser and certified by a responsible official of the state, pursuant to 15 CFR part 11, may also be used as match. Land, including submerged lands already in the state’s possession, may be used as match to es tablish a National Estuarine Research Reserve. The value of match for these state lands will be calculated by deter mining the value of the benefits fore gone by the state, in the use of the land, as a result of new restrictions that may be imposed by Reserve des ignation. The appraisal of the benefits foregone must be made by an inde pendent appraiser in accordance with Federal appraisal standards pursuant to 15 CFR part 24 and 15 CFR part 11. A state may initially use as match land valued at greater than the Federal share of the acquisition and develop ment award. The value in excess of the amount required as match for the ini tial award may be used to match subse quent supplemental acquisition and de velopment awards for the National Es tuarine Research Reserve (see also § 921.20). Costs related to land acquisi tion, such as appraisals, legal fees and surveys, may also be used as match. (3) Operation and management awards. Generally, cash and in-kind contribu tions (directly benefiting and specifi cally identifiable to operations and management), except land, are allow able. (4) Research, monitoring, education and interpretive awards. Cash and in-kind contributions (directly benefiting and specifically identifiable to the scope of work), except land, are allowable. § 921.82 Amendments to financial as sistance awards. Actions requiring an amendment to the financial assistance award, such as a request for additional Federal funds, revisions of the approved project budg et or original scope of work, or exten sion of the performance period must be submitted to NOAA on Standard Form 424 and approved in writing. APPENDIX I TO PART 921— BIOGEOGRAPHIC CLASSIFICATION SCHEME Acadian 1. Northern of Maine (Eastport to the Sheepscot River.) 2. Southern Gulf of Maine (Sheepscot River to Cape Cod.) Virginian 3. Southern New England (Cape Cod to Sandy Hook.) 4. Middle Atlantic (Sandy Hook to Cape Hatteras.) 5. Chesapeake Bay. Carolinian 6. North Carolinas (Cape Hatteras to San tee River.) 7. South Atlantic (Santee River to St. John’s River.) 8. East Florida (St. John’s River to Cape Canaveral.) West Indian 9. Caribbean (Cape Canaveral to Ft. Jeffer son and south.) 10. West Florida (Ft. Jefferson to Cedar Key.) VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00117 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 108 15 CFR Ch. IX (1–1–21 Edition) Pt. 921, App. I Louisianian 11. Panhandle Coast (Cedar Key to Mobile Bay.) 12. Mississippi Delta (Mobile Bay to Gal veston.) 13. Western Gulf (Galveston to Mexican border.) Californian 14. Southern California (Mexican border to Point Conception.) 15. Central California (Point Conception to Cape Mendocino.) 16. San Francisco Bay. Columbian 17. Middle Pacific (Cape Mendocino to the Columbia River.) 18. Washington Coast (Columbia River to Vancouver Island.) 19. Puget Sound. Great Lakes 20. Lake Superior (including St. Mary’s River.) 21. Lakes Michigan and Huron (including Straits of Mackinac, St. Clair River, and Lake St. Clair.) 22. Lake Erie (including Detroit River and Niagara Falls.) 23. Lake Ontario (including St. Lawrence River.) Fjord 24. Southern Alaska (Prince of Wales Is land to Cook Inlet.) 25. Aleutian Island (Cook Inlet Bristol Bay.) Sub-Arctic 26. Northern Alaska (Bristol Bay to Damarcation Point.) Insular 27. Hawaiian Islands. 28. Western Pacific Island. 29. Eastern Pacific Island. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00118 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 109 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 921, App. II APPENDIX II TO PART 921—TYPOLOGY OF NATIONAL ESTUARINE RESEARCH RE SERVES This typology system reflects significant differences in estuarine characteristics that are not necessarily related to regional loca tion. The purpose of this type of classifica tion is to maximize ecosystem variety in the selection of national estuarine reserves. Pri ority will be given to important ecosystem types as yet unrepresented in the reserve system. It should be noted that any one site may represent several ecosystem types or physical characteristics. Class I—Ecosystem Types Group I—Shorelands A. Maritime Forest-Woodland. That have de veloped under the influence of salt spray. It can be found on coastal uplands or recent features such as barrier islands and beaches, and may be divided into the following biomes: 1. Northern coniferous forest biome: This is an area of predominantly evergreens such as the sitka spruce (Picea), grand fir (Abies), and white cedar (Thuja), with poor develop ment of the shrub and herb leyera, but high annual productivity and pronounced sea sonal periodicity. 2. Moist temperate (Mesothermal) conif erous forest biome: Found along the west coast of North America from California to Alaska, this area is dominated by conifers, has relatively small seasonal range, high hu midity with rainfall ranging from 30 to 150 inches, and a well-developed understory of vegetation with an abundance of mosses and other moisture-tolerant plants. 3. Temperate deciduous forest biome: This biome is characterized by abundant, evenly distributed rainfall, moderate temperatures which exhibit a distinct seasonal pattern, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00119 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 EC 1 2 S E 9 1 .0 0 0 < /G P H > 110 15 CFR Ch. IX (1–1–21 Edition) Pt. 921, App. II well-developed soil biota and herb and shrub layers, and numerous plants which produce pulpy fruits and nuts. A distinct subdivision of this biome is the pine edible forest of the southeastern coastal plain, in which only a small portion of the area is occupied by cli max vegetation, although it has large areas covered by edaphic climax pines. 4. Broad-leaved evergreen subtropical for est biome: The main characteristic of this biome is high moisture with less pronounced differences between winter and summer. Ex amples are the hammocks of Florida and the live oak forests of the Gulf and South Atlan tic coasts. Floral dominants include pines, magnolias, bays, hollies, wild tamarine, strangler fig, gumbo limbo, and palms. B. Coast shrublands. This is a transitional area between the coastal grasslands and woodlands and is characterized by woody species with multiple stems and a few centi meters to several meters above the ground developing under the influence of salt spray and occasional sand burial. This includes thickets, scrub, scrub savanna, heathlands, and coastal chaparral. There is a great vari ety of shrubland vegetation exhibiting re gional specificity: 1. Northern areas: Characterized by Hudsonia, various erinaceous species, and thickets of Myricu, prunus, and Rosa. 2. Southeast areas: Floral dominants in clude Myrica, Baccharis, and Iles. 3. Western areas: Adenostoma, arcotyphylos, and eucalyptus are the domi nant floral species. C. Coastal grasslands. This area, which pos sesses sand dunes and coastal flats, has low rainfall (10 to 30 inches per year) and large amounts of humus in the soil. Ecological succession is slow, resulting in the presence of a number of seral stages of community de velopment. Dominant vegetation includes mid-grasses (5 to 8 feet tall), such as Spartina, and trees such as willow (Salix sp.), cherry (Prunus sp.), and cottonwood (Pupulus deltoides.) This area is divided into four regions with the following typical strand vegetation: 1. Arctic/Boreal: Elymus; 2. Northeast/West: Ammophla; 3. Southeast Gulf: Uniola; and 4. Mid-Atlantic/Gulf: Spartina patens. D. Coastal tundra. This ecosystem, which is found along the Arctic and Boreal coasts of North America, is characterized by low tem peratures, a short growing season, and some permafrost, producing a low, treeless mat community made up of mosses, lichens, heath, shrubs, grasses, sedges, rushes, and herbaceous and dwarf woody plants. Common species include arctic/alpine plants such as Empetrum nigrum and Betula nana, the lichens Cetraria and Cladonia, and herba ceous plants such as Potentilla tridentata and Rubus chamaemorus. Common species on the coastal beach ridges of the high arctic desert include Bryas intergrifolia and Saxi frage oppositifolia. This area can be divided into two main subdivisions: 1. Low tundra: Characterized by a thick, spongy mat of living and undecayed vegeta tion, often with water and dotted with ponds when not frozen; and 2. High Tundra: A bare area except for a scanty growth of lichens and grasses, with underlaying ice wedges forming raised polyg onal areas. E. Coastal cliffs. This ecosystem is an im portant nesting site for many sea and shore birds. It consists of communities of herba ceous, graminoid, or low woody plants (shrubs, heath, etc.) on the top or along rocky faces exposed to salt spray. There is a diversity of plant species including mosses, lichens, liverworts, and ‘‘higher’’ plant rep resentatives. GROUP II—TRANSITION AREAS A. Coastal marshes. These are wetland areas dominated by grasses (Poacea), sedges (Cyperaceae), rushes (Juncaceae), cattails (Typhaceae), and other graminoid species and is subject to periodic flooding by either salt or freshwater. This ecosystem may be subdivided into: (a) Tidal, which is periodi cally flooded by either salt or brackish water; (b) nontidal (freshwater); or (c) tidal freshwater. These are essential habitats for many important estuarine species of fish and invertebrates as well as shorebirds and wa terfowl and serve important roles in shore stabilization, flood control, water purifi cation, and nutrient transport and storage. B. Coastal swamps. These are wet lowland areas that support mosses and shrubs to gether with large trees such as cypress or gum. C. Coastal mangroves. This ecosystem expe riences regular flooding on either a daily, monthly, or seasonal basis, has low wave ac tion, and is dominated by a variety of salt tolerant trees, such as the red mangrove (Rhizophora mangle), black mangrove (Avicennia Nitida), and the white mangrove (Laguncularia racemosa.) It is also an impor tant habitat for large populations of fish, in vertebrates, and birds. This type of eco system can be found from central Florida to extreme south Texas to the islands of the Western Pacific. D. Intertidal beaches. This ecosystem has a distinct biota of microscopic animals, bac teria, and unicellular algae along with mac roscopic crustaceans, mollusks, and worms with a detritus-based nutrient cycle. This area also includes the driftline communities found at high tide levels on the beach. The dominant organisms in this ecosystem in clude crustaceans such as the mole crab (Emerita), amphipods (Gammeridae), ghost crabs (Ocypode), and bivalve mollusks such VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00120 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 111 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 921, App. II as the coquina (Donax) and surf clams (Spisula and Mactra.) E. Intertidal mud and sand flats. These areas are composed of unconsolidated, high or ganic content sediments that function as a short-term storage area for nutrients and or ganic carbons. Macrophytes are nearly ab sent in this ecosystem, although it may be heavily colonized by benthic diatoms, dinoflaggellates, filamintous blue-green and green algae, and chaemosynthetic purple sul fur bacteria. This system may support a con siderable population of gastropods, bivalves, and polychaetes, and may serve as a feeding area for a variety of fish and wading birds. In sand, the dominant fauna include the wedge shell Donax, the scallop Pecten, tellin shells Tellina, the heart urchin Echinocardium, the lug worm Arenicola, sand dollar Dendraster, and the sea pansy Renilla. In mud, faunal dominants adapted to low oxygen levels in clude the terebellid Amphitrite, the boring clam Playdon, the deep sea scallop Placopecten, the Quahog Mercenaria, the echiurid worm Urechis, the mud snail Nassarius, and the sea cucumber Thyone. F. Intertidal algal beds. These are hard sub strates along the marine edge that are domi nated by macroscopic algae, usually thalloid, but also filamentous or unicellular in growth form. This also includes the rocky coast tidepools that fall within the intertidal zone. Dominant fauna of these areas are bar nacles, mussels, periwinkles, anemones, and chitons. Three regions are apparent: 1. Northern latitude rocky shores: It is in this region that the community structure is best developed. The dominant algal species include Chondrus at the low tide level, Fucus and Ascophylium at the mid-tidal level, and Laminaria and other kelplike algae just be yond the intertidal, although they can be ex posed at extremely low tides or found in very deep tidepools. 2. Southern latitudes: The communities in this region are reduced in comparison to those of the northern latitudes and possesses algae consisting mostly of single-celled or filamentour green, blue-green, and red algae, and small thalloid brown algae. 3. Tropical and subtropical latitudes: The intertidal in this region is very reduced and contains numerous calcareous algae such as Porolithon and Lithothamnion, as well and green algae with calcareous particles such as Halimeda, and numerous other green, red, and brown algae. GROUP III—SUBMERGED BOTTOMS A. Subtidal hardbottoms. This system is characterized by a consolidated layer of solid rock or large pieces of rock (neither of biotic origin) and is found in association with geomorphological features such as sub marine canyons and fjords and is usually covered with assemblages of sponges, sea fans, bivalves, hard corals, tunicates, and other attached organisms. A significant fea ture of estuaries in many parts of the world is the oyster reef, a type of subtidal hardbottom. Composed of assemblages of or ganisms (usually bivalves), it is usually found near an estuary’s mouth in a zone of moderate wave action, salt content, and tur bidity. If light levels are sufficient, a cov ering of microscopic and attached macro scopic algae, such as keep, may also be found. B. Subtidal softbottoms. Major characteris tics of this ecosystem are an unconsolidated layer of fine particles of silt, sand, clay, and gravel, high hydrogen sulfide levels, and an aerobic conditions often existing below the surface. Macrophytes are either sparse or ab sent, although a layer of benthic microalgae may be present if light levels are sufficient. The faunal community is dominated by a di verse population of deposit feeders including polychaetes, bivalves, and burrowing crusta ceans. C. Subtidal plants. This system is found in relatively shallow water (less than 8 to 10 meters) below mean low tide. It is an area of extremely high primary production that pro vides food and refuge for a diversity of faunal groups, especially juvenile and adult fish, and in some regions, manatees and sea tur tles. Along the North Atlantic and Pacific coasts, the seagrass Zostera marina predomi nates. In the South Atlantic and Gulf coast areas, Thalassia and Diplanthera predomi nate. The grasses in both areas support a number of epiphytic organisms. Class II—Physical Characteristics GROUP I—GEOLOGIC A. Basin type. Coastal water basins occur in a variety of shapes, sizes, depths, and appear ances. The eight basic types discussed below will cover most of the cases: 1. Exposed coast: Solid rock formations or heavy sand deposits characterize exposed ocean shore fronts, which are subject to the full force of ocean storms. The sand beaches are very resilient, although the dunes lying just behind the beaches are fragile and easily damaged. The dunes serve as a sand storage area making them chief stabilizers of the ocean shorefront. 2. Sheltered coast: Sand or coral barriers, built up by natural forces, provide sheltered areas inside a bar or reef where the eco system takes on many characteristics of confined waters-abundant marine grasses, shellfish, and juvenile fish. Water movement is reduced, with the consequent effects pollu tion being more severe in this area than in exposed coastal areas. 3. Bay: Bays are larger confined bodies of water that are open to the sea and receive strong tidal flow. When stratification is pro nounced the flushing action is augmented by VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00121 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 112 15 CFR Ch. IX (1–1–21 Edition) Pt. 921, App. II river discharge. Bays vary in size and in type of shorefront. 4. Embayment: A confined coastal water body with narrow, restricted inlets and with a significant freshwater inflow can be classi fied as an embayment. These areas have more restricted inlets than bays, are usually smaller and shallower, have low tidal action, and are subject to sedimentation. 5. Tidal river: The lower reach of a coastal river is referred to as a tidal river. The coastal water segment extends from the sea or estuary into which the river discharges to a point as far upstream as there is signifi cant salt content in the water, forming a salt front. A combination of tidal action and freshwater outflow makes tidal rivers well flushed. The tidal river basin may be a sim ple channel or a complex of tributaries, small associated embayments, marshfronts, tidal flats, and a variety of others. 6. Lagoon: Lagoons are confined coastal bodies of water with restricted inlets to the sea and without significant freshwater in flow. Water circulation is limited, resulting in a poorly flushed, relatively stagnant body of water. Sedimentation is rapid with a great potential for basin shoaling. Shores are often gently sloping and marshy. 7. Perched coastal wetlands: Unique to Pa cific islands, this wetland type found above sea level in volcanic crater remnants forms as a result of poor drainage characteristics of the crater rather than from sedimenta tion. Floral assemblages exhibit distinct zonation while the faunal constituents may include freshwater, brackish, and/or marine species. EXAMPLE: Aunu’s Island, American Samoa. 8. Anchialine systems: These small coastal exposures of brackish water form in lava de pressions or elevated fossil reefs have only a subsurface connection in the ocean, but show tidal fluctuations. Differing from true estu aries in having no surface continuity with streams or ocean, this system is character ized by a distinct biotic community domi nated by benthis algae such as Rhizoclonium, the mineral encrusting Schiuzothrix, and the vascular plant Ruppia maritima. Characteristic fauna which ex hibit a high degree of endemicity, include the mollusks Theosoxus neglectus and Tcariosus. Although found throughout the world, the high islands of the Pacific are the only areas within the U.S. where this system can be found. B. Basin structure. Estuary basins may re sult from the drowning of a river valley (coastal plains estuary), the drowning of a glacial valley (fjord), the occurrence of an offshore barrier (bar-bounded estuary), some tectonic process (tectonic estuary), or vol canic activity (volcanic estuary). 1. Coastal plains estuary: Where a drowned valley consists mainly of a single channel, the form of the basin is fairly regular form ing a simple coastal plains estuary. When a channel is flooded with numerous tributaries an irregular estuary results. Many estuaries of the eastern United States are of this type. 2. Fjord: Estuaries that form in elongated steep headlands that alternate with deep U shaped valleys resulting from glacial scour ing are called fjords. They generally possess rocky floors or very thin veneers of sedi ment, with deposition generally being re stricted to the head where the main river en ters. Compared to total fjord volume river discharge is small. But many fjords have re stricted tidal ranges at their mouths due to sills, or upreaching sections of the bottom which limit free movement of water, often making river flow large with respect to the tidal prism. The deepest portions are in the upstream reaches, where maximum depths can range from 800m to 1200m while sill depths usually range from 40m to 150m. 3. Bar-bounded estuary: These result from the development of an offshore barrier such as a beach strand, a line of barrier islands, reef formations a line of moraine debris, or the subsiding remnants of a deltaic lobe. The basin is often partially exposed at low tide and is enclosed by a chain of offshore bars of barrier islands broken at intervals by inlets. These bars may be either deposited offshore or may be coastal dunes that have become isolated by recent seal level rises. 4. Tectonic estuary: These are coastal in dentures that have formed through tectonic processes such as slippage along a fault line (San Francisco Bay), folding or movement of the earth’s bedrock often with a large inflow of freshwater. 5. Volcanic estuary: These coastal bodies of open water, a result of volcanic processes are depressions or craters that have direct and/ or subsurface connections with the ocean and may or may not have surface continuity with streams. These formations are unique to island areas of volcanic orgin. C. Inlet type. Inlets in various forms are an integral part of the estuarine environment as they regulate to a certain extent, the ve locity and magnitude of tidal exchange, the degree of mixing, and volume of discharge to the sea. 1. Unrestricted: An estuary with a wide un restricted inlet typically has slow currents, no significant turbulence, and receives the full effect of ocean waves and local disturb ances which serve to modify the shoreline. These estuaries are partially mixed, as the open mouth permits the incursion of marine waters to considerable distances upstream, depending on the tidal amplitude and stream gradient. 2. Restricted: Restrictions of estuaries can exist in many forms: Bars, barrier islands, spits, sills, and more. Restricted inlets result in decreased circulation, more pronounced longitudinal and vertical salinity gradients, and more rapid sedimentation. However, if VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00122 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 113 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 921, App. II the estuary mouth is restricted by deposi tional features or land closures, the incom ing tide may be held back until it suddenly breaks forth into the basin as a tidal wave, or bore. Such currents exert profound effects on the nature of the subtrate, turbidity, and biota of the estuary. 3. Permanent: Permanent inlets are usu ally opposite the mouths of major rivers and permit river water to flow into the sea. 4. Temporary (Intermittent): Temporary inlets are formed by storms and frequently shift position, depending on tidal flow, the depth of the sea, and sound waters, the fre quency of storms, and the amount of littoral transport. D. Bottom composition. The bottom com position of estuaries attests to the vigorous, rapid, and complex sedimentation processes characteristic of most coastal regions with low relief. Sediments are derived through the hydrologic processes of erosion, trans port, and deposition carried on by the sea and the stream. 1. Sand: Near estuary mouths, where the predominating forces of the sea build spits or other depositional features, the shore and substrates of the estuary are sandy. The bot tom sediments in this area are usually coarse, with a graduation toward finer par ticles in the head region and other zones of reduced flow, fine silty sands are deposited. Sand deposition occurs only in wider or deep er regions where velocity is reduced. 2. Mud: At the base level of a stream near its mouth, the bottom is typically composed of loose muds, silts, and organic detritus as a result of erosion and transport from the upper stream reaches and organic decompo sition. Just inside the estuary entrance, the bottom contains considerable quantities of sand and mud, which support a rich fauna. Mud flats, commonly built up in estuarine basins, are composed of loose, coarse, and fine mud and sand, often dividing the origi nal channel. 3. Rock: Rocks usually occur in areas where the stream runs rapidly over a steep gradient with its coarse materials being de rived from the higher elevations where the stream slope is greater. The larger fragments are usually found in shallow areas near the stream mouth. 4. Oyster shell: Throughout a major por tion of the world, the oyster reef is one of the most significant features of estuaries, usually being found near the mouth of the estuary in a zone of moderate wave action, salt content, and turbidity. It is often a major factor in modifying estuarine current systems and sedimentation, and may occur as an elongated island or peninsula oriented across the main current, or may develop par allel to the direction of the current. GROUP II—HYDROGRAPHIC A. Circulation. Circulation patterns are the result of combined influences of freshwater inflow, tidal action, wind and oceanic forces, and serve many functions: Nutrient trans port, plankton dispersal, ecosystem flushing, salinity control, water mixing, and more. 1. Stratified: This is typical of estuaries with a strong freshwater influx and is com monly found in bays formed from ‘‘drowned’’ river valleys, fjords, and other deep basins. There is a net movement of freshwater out ward at the top layer and saltwater at the bottom layer, resulting in a net outward transport of surface organisms and net in ward transport of bottom organisms. 2. Non-stratified: Estuaries of this type are found where water movement is sluggish and flushing rate is low, although there may be sufficient circulation to provide the basis for a high carrying capacity. This is common to shallow embayments and bays lacking a good supply of freshwater from land drain age. 3. Lagoonal: An estuary of this type is characterized by low rates of water move ment resulting from a lack of significant freshwater influx and a lack of strong tidal exchange because of the typically narrow inlet connecting the lagoon to the sea. Cir culation whose major driving force is wind, is the major limiting factor in biological productivity within lagoons. B. Tides. This is the most important eco logical factor in an estuary as it affects water exchange and its vertical range deter mines the extent of tidal flats which may be exposed and submerged with each tidal cycle. Tidal action against the volume of river water discharged into an estuary results in a complex system whose properties vary ac cording to estuary structure as well as the magnitude of river flow and tidal range. Tides are usually described in terms of the cycle and their relative heights. In the United States, tide height is reckoned on the basis of average low tide, which is referred to as datum. The tides, although complex, fall into three main categories: 1. Diurnal: This refers to a daily change in water level that can be observed along the shoreline. There is one high tide and one low tide per day. 2. Semidiurnal: This refers to a twice daily rise and fall in water that can be observed along the shoreline. 3. Wind/Storm tides: This refers to fluctua tions in water elevation to wind and storm events, where influence of lunar tides is less. C. Freshwater. According to nearly all the definitions advanced, it is inherent that all estuaries need freshwater, which is drained from the land and measurably dilutes sea water to create a brackish condition. Fresh water enters an estuary as runoff from the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00123 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 114 15 CFR Ch. IX (1–1–21 Edition) Pt. 922 land either from a surface and/or subsurface source. 1. Surface water: This is water flowing over the ground in the form of streams. Local var iation in runoff is dependent upon the nature of the soil (porosity and solubility), degree of surface slope, vegetational type and develop ment, local climatic conditions, and volume and intensity of precipitation. 2. Subsurface water: This refers to the pre cipitation that has been absorbed by the soil and stored below the surface. The distribu tion of subsurface water depends on local cli mate, topography, and the porosity and per meability of the underlying soils and rocks. There are two main subtypes of surface water: a. Vadose water: This is water in the soil above the water table. Its volume with re spect to the soil is subject to considerable fluctuation. b. Groundwater: This is water contained in the rocks below the water table, is usually of more uniform volume than vadose water, and generally follows the topographic relief of the land being high hills and sloping into valleys. GROUP III—CHEMICAL A. Salinity. This reflects a complex mixture of salts, the most abundant being sodium chloride, and is a very critical factor in the distribution and maintenance of many estua rine organisms. Based on salinity, there are two basic estuarine types and eight different salinity zones (expressed in parts per thou sand-ppt.) 1. Positive estuary: This is an estuary in which the freshwater influx is sufficient to maintain mixing, resulting in a pattern of increasing salinity toward the estuary mouth. It is characterized by low oxygen concentration in the deeper waters and con siderable organic content in bottom sedi ments. 2. Negative estuary: This is found in par ticularly arid regions, where estuary evapo ration may exceed freshwater inflow, result ing in increased salinity in the upper part of the basin, especially if the estuary mouth is restricted so that tidal flow is inhibited. These are typically very salty (hyperhaline), moderately oxygenated at depth, and possess bottom sediments that are poor in organic content. 3. Salinity zones (expressed in ppt): a. Hyperhaline—greater than 40 ppt. b. Euhaline—40 ppt to 30 ppt. c. Mixhaline—30 ppt to 0.5 ppt. (1) Mixoeuhaline—greater than 30 ppt but less than the adjacent euhaline sea. (2) Polyhaline—30 ppt to 18 ppt. (3) Mesohaline—18 ppt to 5 ppt. (4) Oligohaline—5 ppt to 0.5 ppt. d. Limnetic: Less than 0.5 ppt. B. pH Regime: This is indicative of the min eral richness of estuarine waters and falls into three main categories: 1. Acid: Waters with a pH of less than 5.5. 2. Circumneutral: A condition where the pH ranges from 5.5 to 7.4. 3. Alkaline: Waters with a pH greater than 7.4. PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULA TIONS Subpart A—General Sec. 922.1 Applicability of regulations in this part. 922.2 Mission, goals, and special policies. 922.3 Definitions. 922.4 Effect of National Marine Sanctuary designation. Subpart B—Sanctuary Nomination Process 922.10 General. 922.11 Selection of nominated areas for na tional marine sanctuary designation. Subpart C—Designation of National Marine Sanctuaries 922.20 Standards and procedures for designa tion. 922.21 Selection of active candidates. 922.22 Development of designation mate rials. 922.23 Coordination with States and other Federal agencies. 922.24 Congressional documents. 922.25 Designation determination and find ings. Subpart D—Management Plan Development and Implementation 922.30 General. 922.31 Promotion and coordination of Sanc tuary use. Subpart E—Regulations of General Applicability 922.40 Purpose. 922.41 Boundaries. 922.42 Allowed activities. 922.43 Prohibited or otherwise regulated ac tivities. 922.44 Emergency regulations. 922.45 Penalties. 922.46 Response costs and damages. 922.47 Pre-existing authorizations or rights and certifications of pre-existing author izations or rights. 922.48 National Marine Sanctuary permits— application procedures and issuance cri teria. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00124 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 115 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922 922.49 Notification and review of applica tions for leases, licenses, permits, ap provals, or other authorizations to con duct a prohibited activity. 922.50 Appeals of administrative action. Subpart F—Monitor National Marine Sanctuary 922.60 Boundary. 922.61 Prohibited or otherwise regulated ac tivities. 922.62 Permit procedures and criteria. Subpart G—Channel Islands National Marine Sanctuary 922.70 Boundary. 922.71 Definitions. 922.72 Prohibited or otherwise regulated ac tivities—Sanctuary-wide. 922.73 Additional prohibited or otherwise regulated activities—marine reserves and marine conservation area. 922.74 Permit procedures and issuance cri teria. APPENDIX A TO SUBPART G OF PART 922— CHANNEL ISLANDS NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES APPENDIX B TO SUBPART G OF PART 922—MA RINE RESERVE BOUNDARIES APPENDIX C TO SUBPART G OF PART 922—MA RINE CONSERVATION AREA BOUNDARY Subpart H—Greater Farallones National Marine Sanctuary 922.80 Boundary. 922.81 Definitions. 922.82 Prohibited or otherwise regulated ac tivities. 922.83 Permit procedures and issuance cri teria. 922.84 Certification of preexisting leases, li censes, permits, approvals, other author izations, or rights to conduct a prohib ited activity. 922.85 Review of State permits and leases for certain aquaculture projects. APPENDIX A TO SUBPART H OF PART 922— GREATER FARALLONES NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES APPENDIX B TO SUBPART H OF PART 922—NO ANCHORING SEAGRASS PROTECTION ZONES IN TOMALES BAY APPENDIX C TO SUBPART H OF PART 922— NORTHERN EXTENT OF TOMALES BAY APPENDIX D TO SUBPART H OF PART 922—SPE CIAL WILDLIFE PROTECTION ZONES WITHIN THE SANCTUARY APPENDIX E TO SUBPART H OF PART 922— CARGO VESSEL PROHIBITION ZONES IN THE SANCTUARY APPENDIX F TO SUBPART H OF PART 922— WHITE SHARK APPROACH PROHIBITION ZONES IN THE SANCTUARY APPENDIX G TO SUBPART H OF PART 922—DES IGNATED AREA FOR CERTAIN UNITED STATES COAST GUARD DISCHARGES Subpart I—Gray’s Reef National Marine Sanctuary 922.90 Boundary. 922.91 Definitions. 922.92 Prohibited or otherwise regulated ac tivities—Sanctuary-wide. 922.93 Permit procedures and criteria. 922.94 Prohibited or otherwise regulated ac tivities—Research area. APPENDIX A TO SUBPART I OF PART 922— BOUNDARY COORDINATES FOR THE GRAY’S REEF NATIONAL MARINE SANCTUARY RE SEARCH AREA Subpart J—National Marine Sanctuary of American Samoa 922.100 Scope of regulations. 922.101 Boundary. 922.102 Definitions. 922.103 Prohibited or otherwise regulated activities—Sanctuary-wide. 922.104 Prohibited or otherwise regulated activities—Sanctuary-wide except in the Muliāva Unit. 922.105 Prohibited or otherwise regulated activities—Unit-specific. 922.106 Management and enforcement. 922.107 Permit procedures and criteria. APPENDIX TO SUBPART J OF PART 922—AMER ICAN SAMOA NATIONAL MARINE SANC TUARY BOUNDARY COORDINATES Subpart K—Cordell Bank National Marine Sanctuary 922.110 Boundary. 922.111 Definitions. 922.112 Prohibited or otherwise regulated activities. 922.113 Permit procedures and issuance cri teria. APPENDIX A TO SUBPART K OF PART 922— CORDELL BANK NATIONAL MARINE SANC TUARY BOUNDARY COORDINATES APPENDIX B TO SUBPART K OF PART 922—LINE REPRESENTING THE 50-FATHOM ISOBATH SURROUNDING CORDELL BANK APPENDIX C TO SUBPART K OF PART 922—DES IGNATED AREA FOR CERTAIN UNITED STATES COAST GUARD DISCHARGES Subpart L—Flower Garden Banks National Marine Sanctuary 922.120 Boundary. 922.121 Definitions. 922.122 Prohibited or otherwise regulated activities. 922.123 Permit procedures and criteria. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00125 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 116 15 CFR Ch. IX (1–1–21 Edition) Pt. 922 APPENDIX A TO SUBPART L OF PART 922— FLOWER GARDEN BANKS NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES APPENDIX B TO SUBPART L OF PART 922—CO ORDINATES FOR THE DEPARTMENT OF THE INTERIOR TOPOGRAPHIC LEASE STIPULA TIONS FOR OCS LEASE SALE 171 Subpart M—Monterey Bay National Marine Sanctuary 922.130 Boundary. 922.131 Definitions. 922.132 Prohibited or otherwise regulated activities. 922.133 Permit procedures and criteria. 922.134 Review of certain State permits and leases. APPENDIX A TO SUBPART M OF PART 922— MONTEREY BAY NATIONAL MARINE SANC TUARY BOUNDARY COORDINATES APPENDIX B TO SUBPART M OF PART 922— ZONES WITHIN THE SANCTUARY WHERE OVERFLIGHTS BELOW 1000 FEET ARE PRO HIBITED APPENDIX C TO SUBPART M OF PART 922— DREDGED MATERIAL DISPOSAL SITES WITHIN THE SANCTUARY APPENDIX D TO SUBPART M OF PART 922— DREDGED MATERIAL DISPOSAL SITES AD JACENT TO THE MONTEREY BAY NATIONAL MARINE SANCTUARY APPENDIX E TO SUBPART M OF PART 922—MO TORIZED PERSONAL WATERCRAFT ZONES AND ACCESS ROUTES WITHIN THE SANC TUARY APPENDIX F TO SUBPART M OF PART 922—DA VIDSON SEAMOUNT MANAGEMENT ZONE Subpart N—Stellwagen Bank National Marine Sanctuary 922.140 Boundary. 922.141 Definitions. 922.142 Prohibited or otherwise regulated activities. 922.143 Permit procedures and criteria. APPENDIX A TO SUBPART N OF PART 922— STELLWAGEN BANK NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES Subpart O—Olympic Coast National Marine Sanctuary 922.150 Boundary. 922.151 Definitions. 922.152 Prohibited or otherwise regulated activities. 922.153 Permit procedures and criteria. 922.154 Consultation with the State of Washington, affected Indian tribes, and adjacent county governments. APPENDIX A TO SUBPART O OF PART 922— OLYMPIC COAST NATIONAL MARINE SANC TUARY BOUNDARY COORDINATES Subpart P—Florida Keys National Marine Sanctuary 922.160 Purpose. 922.161 Boundary. 922.162 Definitions. 922.163 Prohibited activities—Sanctuary wide. 922.164 Additional activity regulations by Sanctuary area. 922.165 Emergency regulations. 922.166 Permits other than for access to the Tortugas Ecological Reserve—applica tion procedures and issuance criteria. 922.167 Permits for access to the Tortugas Ecological Reserve. 922.168 [Reserved] APPENDIX I TO SUBPART P OF PART 922— FLORIDA KEYS NATIONAL MARINE SANC TUARY BOUNDARY COORDINATES APPENDIX II TO SUBPART P OF PART 922—EX ISTING MANAGEMENT AREAS BOUNDARY COORDINATES APPENDIX III TO SUBPART P OF PART 922— WILDLIFE MANAGEMENT AREAS ACCESS RESTRICTIONS APPENDIX IV TO SUBPART P OF PART 922—EC OLOGICAL RESERVES BOUNDARY COORDINATES APPENDIX V TO SUBPART P OF PART 922— SANCTUARY PRESERVATION AREAS BOUND ARY COORDINATES APPENDIX VI TO SUBPART P OF PART 922— SPECIAL-USE AREAS BOUNDARY COORDI NATES AND USE DESIGNATIONS APPENDIX VII TO SUBPART P OF PART 922— AREAS TO BE AVOIDED BOUNDARY COORDI NATES Subpart Q—Hawaiian Islands Humpback Whale National Marine Sanctuary 922.180 Purpose. 922.181 Boundary. 922.182 Definitions. 922.183 Allowed activities. 922.184 Prohibited activities. 922.185 Emergency regulations. 922.186 Penalties; appeals. 922.187 Interagency cooperation. APPENDIX A TO SUBPART Q OF PART 922—HA WAIIAN ISLANDS HUMPBACK WHALE NA TIONAL MARINE SANCTUARY BOUNDARY DESCRIPTION AND COORDINATES OF THE LATERAL BOUNDARY CLOSURES AND EX CLUDED AREAS Subpart R—Thunder Bay National Marine Sanctuary and Underwater Preserve 922.190 Boundary. 922.191 Definitions. 922.192 Joint Management Committee. 922.193 Prohibited or otherwise regulated activities. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00126 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 117 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.2 922.194 Certification of preexisting leases, licenses, permits, approvals, other au thorizations, or rights to conduct a pro hibited activity. 922.195 Permit procedures and criteria. 922.196 Emergency regulations. 922.197 Effect on affected federally-recog nized Indian tribes. 922.198 Procedures for determining watercraft and related items which sink on or after the date of Sanctuary des ignation to be an underwater cultural re source. APPENDIX A TO SUBPART R OF PART 922— THUNDER BAY NATIONAL MARINE SANC TUARY AND UNDERWATER PRESERVE BOUNDARY COORDINATES APPENDIX B TO SUBPART R OF PART 922— MINOR PROJECTS FOR PURPOSES OF § 922.193(a)(2)(iii) Subpart S—Mallows Bay—Potomac River National Marine Sanctuary 922.200 Boundary. 922.201 Definitions. 922.202 Joint management. 922.203 Prohibited or otherwise regulated activities. 922.204 Emergency regulations. 922.205 Permit procedures and review cri teria. 922.206 Certification of preexisting leases, licenses, permits, approvals, other au thorizations, or rights to conduct a pro hibited activity. APPENDIX A TO SUBPART S OF PART 922— MALLOWS BAY-POTOMAC RIVER MARINE SANCTUARY BOUNDARY DESCRIPTION AND COORDINATES OF THE LATERAL BOUNDARY CLOSURES AND EXCLUDED AREAS APPENDIX B TO SUBPART S OF PART 922— MALLOWS BAY-POTOMAC RIVER MARINE SANCTUARY TERMS OF DESIGNATION AUTHORITY: 16 U.S.C. 1431 et seq. SOURCE: 60 FR 66877, Dec. 27, 1995, unless otherwise noted. EDITORIAL NOTE: Nomenclature changes to part 922 appear at 62 FR 3789, Jan. 27, 1997 and at 62 FR 67724, Dec. 30, 1997. Subpart A—General § 922.1 Applicability of regulations in this part. Unless noted otherwise, the regula tions in subparts A, D, and E of this part apply to all National Marine Sanc tuaries and related site-specific regula tions set forth in this part. Subparts B and C of this part apply to the sanc tuary nomination process and to the designation of future Sanctuaries. [84 FR 32601, July 8, 2019] § 922.2 Mission, goals, and special poli cies. (a) In accordance with the standards set forth in title III of the Marine Pro tection, Research, and Sanctuaries Act of 1972, as amended, also known as the National Marine Sanctuaries Act (Act) the mission of the National Marine Sanctuary program (Program) is to identify, designate and manage areas of the marine environment of special na tional, and in some cases international, significance due to their conservation, recreational, ecological, historical, re search, educational, or aesthetic quali ties. (b) The goals of the Program are to carry out the mission to: (1) Identify and designate as National Marine Sanctuaries areas of the marine environment which are of special na tional significance; (2) Provide authority for comprehen sive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities; (3) Support, promote, and coordinate scientific research on, and monitoring of, the resources of these marine areas, especially long-term monitoring and research of these areas; (4) Enhance public awareness, under standing, appreciation, and wise use of the marine environment; (5) Facilitate to the extent compat ible with the primary objective of re source protection, all public and pri vate uses of the resources of these ma rine areas not prohibited pursuant to other authorities; (6) Develop and implement coordi nated plans for the protection and management of these areas with appro priate Federal agencies, State and local governments, Native American tribes and organizations, international organizations, and other public and pri vate interests concerned with the con tinuing health and resilience of these marine areas; (7) Create models of, and incentives for, ways to conserve and manage these areas; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00127 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 118 15 CFR Ch. IX (1–1–21 Edition) § 922.3 (8) Cooperate with global programs encouraging conservation of marine re sources; and (9) Maintain, restore, and enhance living resources by providing places for species that depend upon these marine areas to survive and propagate. (c) To the extent consistent with the policies set forth in the Act, in car rying out the Program’s mission and goals: (1) Particular attention will be given to the establishment and management of marine areas as National Marine Sanctuaries for the protection of the area’s natural resource and ecosystem values; particularly for ecologically or economically important or threatened species or species assemblages, and for offshore areas where there are no exist ing special area protection mecha nisms; (2) The size of a National Marine Sanctuary, while highly dependent on the nature of the site’s resources, will be no larger than necessary to ensure effective management; (d) Management efforts will be co ordinated to the extent practicable with other countries managing marine protected areas; (e) Program regulations, policies, standards, guidelines, and procedures under the Act concerning the identi fication, evaluation, registration, and treatment of historical resources shall be consistent, to the extent prac ticable, with the declared national pol icy for the protection and preservation of these resources as stated in the Na tional Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., the Archeo logical and Historical Preservation Act of 1974, 16 U.S.C. 469 et seq., and the Ar cheological Resources Protection Act of 1979 (ARPA), 16 U.S.C. 470aa et seq. The same degree of regulatory protec tion and preservation planning policy extended to historical resources on land shall be extended, to the extent practicable, to historical resources in the marine environment within the boundaries of designated National Ma rine Sanctuaries. The management of historical resources under the author ity of the Act shall be consistent, to the extent practicable, with the Fed eral archeological program by con sulting the Uniform Regulations, ARPA (43 CFR part 7) and other rel evant Federal regulations. The Sec retary of the Interior’s Standards and Guidelines for Archeology may also be consulted for guidance. These guide lines are available from the Office of Ocean and Coastal Management at (301) 713–3125. § 922.3 Definitions. Act means title III of the Marine Pro tection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq., also known as the National Ma rine Sanctuaries Act. Assistant Administrator means the As sistant Administrator for Ocean Serv ices and Coastal Zone Management, National Oceanic and Atmospheric Ad ministration (NOAA), or designee. Benthic community means the assem blage of organisms, substrate, and structural formations found at or near the bottom that is periodically or per manently covered by water. Commercial fishing means any activity that results in the sale or trade for in tended profit of fish, shellfish, algae, or corals. Conventional hook and line gear means any fishing apparatus operated aboard a vessel and composed of a single line terminated by a combination of sinkers and hooks or lures and spooled upon a reel that may be hind- or electrically operated, hand-held or mounted. This term does not include bottom longlines. Cultural resources means any histor ical or cultural feature, including ar chaeological sites, historic structures, shipwrecks, and artifacts. Director means, except where other wise specified, the Director of the Of fice of Ocean and Coastal Resource Management, NOAA, or designee. Exclusive economic zone means the ex clusive economic zone as defined in the Magnuson Fishery Conservation and Management Act, 16 U.S. 1801 et seq. Fish wastes means waste materials re sulting from commercial fish proc essing operations. Historical resource means any resource possessing historical, cultural, archae ological or paleontological signifi cance, including sites, contextual in formation, structures, districts, and objects significantly associated with or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00128 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 119 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.3 representative of earlier people, cul tures, maritime heritage, and human activities and events. Historical re sources include ‘‘submerged cultural resources’’, and also include ‘‘historical properties,’’ as defined in the National Historic Preservation Act, as amended, and its implementing regulations, as amended. Indian tribe means any American In dian tribe, band, group, or community recognized as such by the Secretary of the Interior. Injure means to change adversely, ei ther in the short or long term, a chem ical, biological or physical attribute of, or the viability of. This includes, but is not limited to, to cause the loss of or destroy. Inventory means a list of nominated areas selected by the Director as quali fying for future consideration of des ignation as a national marine sanc tuary. Lightering means at-sea transfer of petroleum-based products, materials, or other matter from vessel to vessel. Marine means those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and sub merged lands over which the United States exercises jurisdiction, including the exclusive economic zone, con sistent with international law. Mineral means clay, stone, sand, gravel, metalliferous ore, non-metallif erous ore, or any other solid material or other matter of commercial value. National historic landmark means a district, site, building, structure or ob ject designated as such by the Sec retary of the Interior under the Na tional Historic Landmarks Program (36 CFR part 65). National Marine Sanctuary means an area of the marine environment of spe cial national significance due to its re source or human-use values, which is designated as such to ensure its con servation and management. Person means any private individual, partnership, corporation or other enti ty; or any officer, employee, agent, de partment, agency or instrumentality of the Federal government, of any State or local unit of government, or of any foreign government. Regional Fishery Management Council means any fishery council established under section 302 of the Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. Sanctuary quality means any of those ambient conditions, physical-chemical characteristics and natural processes, the maintenance of which is essential to the ecological health of the Sanc tuary, including, but not limited to, water quality, sediment quality and air quality. Sanctuary resource means any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecologi cal, historical, research, educational, or aesthetic value of the Sanctuary, in cluding, but not limited to, the sub stratum of the area of the Sanctuary, other submerged features and the sur rounding seabed, carbonate rock, cor als 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 Sanc tuary and Underwater Preserve, Sanc tuary resource means an underwater cultural resource as defined at § 922.191. For Mallows Bay-Potomac River Na tional Marine Sanctuary, Sanctuary resource is defined at § 922.201(a). Secretary means the Secretary of the United States Department of Com merce, or designee. Shunt means to discharge expended drilling cuttings and fluids near the ocean seafloor. State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mar iana Islands, American Samoa, the United States Virgin Islands, Guam, and any other commonwealth, terri tory, or possession of the United States. Subsistence use means the customary and traditional use by rural residents of areas near or in the marine environ ment for direct personal or family con sumption as food, shelter, fuel, cloth ing, tools, or transportation; for the making and selling of handicraft arti cles; and for barter, if for food or non edible items other than money, if the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00129 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 120 15 CFR Ch. IX (1–1–21 Edition) § 922.4 exchange is of a limited and non-com mercial nature. Take or taking means: (1) For any ma rine mammal, sea turtle, or seabird listed as either endangered or threat ened pursuant to the Endangered Spe cies Act, to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, col lect or injure, or to attempt to engage in any such conduct; (2) For any other marine mammal, sea turtle, or seabird, to harass, hunt, capture, kill, collect or injure, or to attempt to engage in any such conduct. For the purposes of both (1) and (2) of this definition, this in cludes, but is not limited to, to collect any dead or injured marine mammal, sea turtle or seabird, or any part there of; to restrain or detain any marine mammal, sea turtle or seabird, or any part thereof, no matter how tempo rarily; to tag any sea turtle, marine mammal or seabird; to operate a vessel or aircraft or to do any other act that results in the disturbance or molesta tion of any marine mammal, sea turtle or seabird. Tropical fish means fish or minimal sport and food value, usually brightly colored, often used for aquaria pur poses and which lives in a direct rela tionship with live bottom commu nities. Vessel means a watercraft of any de scription capable of being used as a means of transportation in/on the waters of a Sanctuary. [60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 FR 39055, June 22, 2000; 79 FR 33860, June 13, 2014; 84 FR 32601, July 8, 2016] § 922.4 Effect of National Marine Sanc tuary designation. The designation of a National Marine Sanctuary, and the regulations imple menting it, are binding on any person subject to the jurisdiction of the United States. Designation does not constitute any claim to territorial ju risdiction on the part of the United States for designated sites beyond the U.S. territorial sea, and the regula tions implementing the designation shall be applied in accordance with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States is a party. No regulation shall apply to a person who is not a citizen, national, or resident alien of the United States, unless in accordance with: (a) Generally recognized principles of international law; (b) An agreement between the United States and the foreign state of which the person is a citizen; or (c) An agreement between the United States and the flag state of the foreign vessel, if the person is a crew member of the vessel. Subpart B—Sanctuary Nomination Process SOURCE: 79 FR 33860, June 13, 2014, unless otherwise noted. § 922.10 General. (a) Nomination process. The sanctuary nomination process (see National Ma rine Sanctuaries Web site www.sanctuaries.noaa.gov) is the means by which the public can submit areas of the marine and Great Lakes environ ments for consideration by NOAA as a national marine sanctuary. (b) National significance criteria. The Director will consider the following in determining if a nominated area is of special national significance: (1) The area’s natural resources and ecological qualities are of special sig nificance and contribute to: Biological productivity or diversity; maintenance or enhancement of ecosystem structure and function; maintenance of eco logically or commercially important species or species assemblages; mainte nance or enhancement of critical habi tat, representative biogeographic as semblages, or both; or maintenance or enhancement of connectivity to other ecologically significant resources. (2) The area contains submerged mar itime heritage resources of special his torical, cultural, or archaeological sig nificance, that: Individually or collec tively are consistent with the criteria of eligibility or listing on the National Register of Historic Places; have met or which would meet the criteria for designation as a National Historic Landmark; or have special or sacred meaning to the indigenous people of the region or nation. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00130 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 121 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.22 (3) The area supports present and po tential economic uses, such as: Tour ism; commercial and recreational fish ing; subsistence and traditional uses; diving; and other recreational uses that depend on conservation and man agement of the area’s resources. (4) The publicly-derived benefits of the area, such as aesthetic value, pub lic recreation, and access to places de pend on conservation and management of the area’s resources. (c) Management considerations. The Director will consider the following in determining the manageability of a nominated area: (1) The area provides or enhances op portunities for research in marine science, including marine archaeology. (2) The area provides or enhances op portunities for education, including the understanding and appreciation of the marine and Great Lakes environments. (3) Adverse impacts from current or future uses and activities threaten the area’s significance, values, qualities, and resources. (4) A national marine sanctuary would provide unique conservation and management value for this area that also have beneficial values for adjacent areas. (5) The existing regulatory and man agement authorities for the area could be supplemented or complemented to meet the conservation and manage ment goals for the area. (6) There are commitments or pos sible commitments for partnerships op portunities such as cost sharing, office space or exhibit space, vessel time, or other collaborations to aid conserva tion or management programs for the area. (7) There is community-based support for the nomination expressed by a broad range of interests, such as: Indi viduals or locally-based groups (e.g., friends of group, chamber of com merce); local, tribal, state, or national agencies; elected officials; or topic based stakeholder groups, at the local, regional or national level (e.g., a local chapter of an environmental organiza tion, a regionally-based fishing group, a national-level recreation or tourism organization, academia or science based group, or an industry associa tion). (d) Following evaluation of a nomi nation against the national signifi cance criteria and management consid erations, the Director may place nomi nated areas in a publicly available in ventory for future consideration of des ignation as a national marine sanc tuary. (e) A determination that a site is eli gible for national marine sanctuary designation, by itself shall not subject the site to any regulatory control under the Act. Such controls may only be imposed after designation. § 922.11 Selection of nominated areas for national marine sanctuary des ignation. (a) The Director may select a nomi nated area from the inventory for fu ture consideration as a national ma rine sanctuary. (b) Selection of a nominated area from the inventory shall begin the for mal sanctuary designation process. A notice of intent to prepare a draft envi ronmental impact statement shall be published in the FEDERAL REGISTER and posted on the Office of National Marine Sanctuaries Web site. Any des ignation process will follow the proce dures for designation and implementa tion set forth in section 304 of the Act. Subpart C—Designation of National Marine Sanctuaries § 922.20 Standards and procedures for designation. In designating a National Marine Sanctuary, the Secretary shall apply the standards and procedures set forth in section 303 and section 304 of the Act. § 922.21 [Reserved] § 922.22 Development of designation materials. (a) In designating a National Marine Sanctuary, the Secretary shall prepare the designation materials described in section 304 of the Act. (b) If a proposed Sanctuary includes waters within the exclusive economic zone, the Secretary shall notify the ap propriate Regional Fishery Manage ment Council(s) which shall have one hundred and twenty (120) days from the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00131 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 122 15 CFR Ch. IX (1–1–21 Edition) § 922.23 date of such notification to make rec ommendations and, if appropriate, pre pare draft fishery regulations and to submit them to the Secretary. In pre paring its recommendations and draft regulations, the Council(s) shall use as guidance the national standards of sec tion 301(a) of the Magnuson Act (16 U.S.C. 1851) to the extent that they are consistent and compatible with the goals and objectives of the proposed Sanctuary designation. Fishery activi ties not proposed for regulation under section 304(a)(5) of the Act may be list ed in the draft Sanctuary designation document as potentially subject to reg ulation, without following the proce dures specified in section 304(a)(5) of the Act. If the Secretary subsequently determines that regulation of any such fishery activity is necessary, then the procedures specified in section 304(a)(5) of the Act shall be followed. § 922.23 [Reserved] § 922.24 Congressional documents. In designating a National Marine Sanctuary, the Secretary shall prepare and submit to Congress those docu ments described in section 304 of the Act. § 922.25 Designation determination and findings. (a) In designating a National Marine Sanctuary, the Secretary shall prepare a written Designation Determination and Findings which shall include those findings and determinations described in section 303 of the Act. (b) In addition to those factors set forth in section 303 of the Act, the Sec retary, when making a designation de termination, shall consider the Pro gram’s fiscal capability to manage the area as a National Marine Sanctuary. Subpart D—Management Plan Development and Implemen tation § 922.30 General. (a) The Secretary shall implement each management plan, and applicable regulations, including carrying out surveillance and enforcement activities and conducting such research, moni toring, evaluation, and education pro grams as are necessary and reasonable to carry out the purposes and policies of the Act. (b) Consistent with Sanctuary man agement plans, the Secretary shall de velop and implement site-specific con tingency and emergency-response plans designed to protect Sanctuary re sources. The plans shall contain alert procedures and actions to be taken in the event of an emergency such as a shipwreck or an oil spill. § 922.31 Promotion and coordination of Sanctuary use. The Secretary shall take such action as is necessary and reasonable to pro mote and coordinate the use of Na tional Marine Sanctuaries for research, monitoring, and education purposes. Such action may include consulting with Federal agencies, or other persons to promote use of one or more Sanc tuaries for research, monitoring and education, including coordination with the National Estuarine Research Re serve System. Subpart E—Regulations of General Applicability § 922.40 Purpose. The purpose of the regulations in this subpart and in the site-specific sub parts in this part is to implement the designations of the National Marine Sanctuaries by regulating activities af fecting them, consistent with their re spective terms of designation in order to protect, preserve and manage and thereby ensure the health, integrity and continued availability of the con servation, ecological, recreational, re search, educational, historical and aes thetic resources and qualities of these areas. Additional purposes of the regu lations implementing the designation of the Florida Keys and Hawaiian Is lands Humpback Whale National Ma rine Sanctuaries are found at §§ 922.160 and 922.180, respectively. [84 FR 32601, July 8, 2019] § 922.41 Boundaries. The boundary for each of the Na tional Marine Sanctuaries is set forth VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00132 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 123 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.47 in the site-specific regulations covered by this part. [84 FR 32601, July 8, 2019] § 922.42 Allowed activities. All activities (e.g., fishing, boating, diving, research, education) may be conducted unless prohibited or other wise regulated in the site-specific regu lations covered by this part, subject to any emergency regulations promul gated under this part, subject to all prohibitions, regulations, restrictions, and conditions validly imposed by any Federal, State, or local authority of competent jurisdiction, including but not limited to, Federal, Tribal, 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 di rectly regulate fishing activities pursu ant to the procedure set forth in sec tion 304(a)(5) of the NMSA. [84 FR 32601, July 8, 2019] § 922.43 Prohibited or otherwise regu lated activities. The site-specific regulations applica ble to the activities specified therein are set forth in the subparts covered by this part. [84 FR 32601, July 8, 2019] § 922.44 Emergency regulations. (a) Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or qual ity, or minimize the imminent risk of such destruction, loss, or injury, any and all such activities are subject to immediate temporary regulation, in cluding prohibition. (b) The provisions of this section do not apply to the following national ma rine sanctuaries with site-specific reg ulations that establish procedures for issuing emergency regulations: (1) Cordell Bank National Marine Sanctuary, § 922.112(e). (2) Florida Keys National Marine Sanctuary, § 922.165. (3) Hawaiian Islands Humpback Whale National Marine Sanctuary, § 922.185. (4) Thunder Bay National Marine Sanctuary, § 922.196. (5) Mallows Bay-Potomac River Na tional Marine Sanctuary, § 922.204. (6) [Reserved] [84 FR 32601, July 8, 2019] § 922.45 Penalties. (a) Each violation of the NMSA or FKNMSPA, any regulation in this part, or any permit issued pursuant thereto, is subject to a civil penalty of not more than $ 100,000. Each day of a continuing violation constitutes a separate viola tion. (b) Regulations setting forth the pro cedures governing administrative pro ceedings for assessment of civil pen alties, permit sanctions, and denials for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR part 904. [60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997] § 922.46 Response costs and damages. Under section 312 of the Act, any per son who destroys, causes the loss of, or injures any Sanctuary resource is lia ble to the United States for response costs and damages resulting from such destruction, loss or injury, and any vessel used to destroy, cause the loss of, or injure any Sanctuary resource is liable in rem to the United States for response costs and damages resulting from such destruction, loss or injury. § 922.47 Pre-existing authorizations or rights and certifications of pre-ex isting authorizations or rights. (a) Leases, permits, licenses, or rights of subsistence use or access in existence on the date of designation of any National Marine Sanctuary shall not be terminated by the Director. The Director may, however, regulate the exercise of such leases, permits, li censes, or rights consistent with the purposes for which the Sanctuary was designated. (b) The prohibitions listed in sub parts F through P and R through T of this part do not apply to any activity authorized by a valid lease, permit, li cense, approval or other authorization in existence on the effective date of Sanctuary designation, or in the case of the Florida Keys National Marine VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00133 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 124 15 CFR Ch. IX (1–1–21 Edition) § 922.48 Sanctuary the effective date of the reg ulations 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 reg ulations in subpart P, provided that the holder of such authorization or right complies with certification proce dures 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 exer cise of such authorization or right im posed by the Director as a condition of certification as the Director deems necessary to achieve the purposes for which the Sanctuary was designated. [60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 FR 39055, June 22, 2000; 84 FR 32601, July 8, 2019] § 922.48 National Marine Sanctuary permits—application procedures and issuance criteria. (a) A person may conduct an activity prohibited by subparts F through O and S and T of this part, if conducted in ac cordance with the scope, purpose, terms and conditions of a permit issued under this section and subparts F through O and S and T, as appropriate. For the Florida Keys National Marine Sanctuary, a person may conduct an activity prohibited by subpart P of this part if conducted in accordance with the scope, purpose, terms and condi tions of a permit issued under § 922.166. For the Thunder Bay National Marine Sanctuary and Underwater Preserve, a person may conduct an activity prohib ited by subpart R of this part in ac cordance with the scope, purpose, terms and conditions of a permit issued under § 922.195. (b) Applications for permits to con duct activities otherwise prohibited by subparts F through O and S and T of this part, should be addressed to the Director and sent to the address speci fied in subparts F through O of this part, or subparts R through T of this part, as appropriate. An application must include: (1) A detailed description of the pro posed 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 activ ity, if any, on Sanctuary resources and qualities; and (5) Copies of all other required li censes, permits, approvals or other au thorizations. (c) Upon receipt of an application, the Director may request such addi tional information from the applicant as he or she deems necessary to act on the application and may seek the views of any persons or entity, within or out side the Federal government, and may hold a public hearing, as deemed appro priate. (d) The Director, at his or her discre tion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct a pro hibited activity, in accordance with the criteria found in subparts F through O of this part, or subparts R through T of this part, as appropriate. The Director shall further impose, at a minimum, the conditions set forth in the relevant subpart. (e) A permit granted pursuant to this section is nontransferable. (f) The Director may amend, suspend, or revoke a permit issued pursuant to this section for good cause. The Direc tor may deny a permit application pur suant to this section, in whole or in part, if it is determined that the per mittee or applicant has acted in viola tion of the terms and conditions of a permit or of the regulations set forth in this section or subparts F through O of this part, or subparts R through T of this part 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. Proce dures governing permit sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904. [84 FR 32601, July 8, 2019] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00134 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 125 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.50 § 922.49 Notification and review of ap plications for leases, licenses, per mits, approvals, or other authoriza tions to conduct a prohibited activ ity. (a) A person may conduct an activity prohibited by subparts L through P of this part, or subparts R through T of this part, if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, ap proval, or other authorization issued after the effective date of Sanctuary designation, or in the case of the Flor ida Keys National Marine Sanctuary after the effective date of the regula tions in subpart P, provided that: (1) The applicant notifies the Direc tor, in writing, of the application for such authorization (and of any applica tion for an amendment, renewal, or ex tension 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 reg ulations in subpart P, whichever is later; (2) The applicant complies with the other provisions of this section; (3) The Director notifies the appli cant 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 au thorization described in paragraph (a) of this section may request the Direc tor to issue a finding as to whether the activity for which an application is in tended to be made is prohibited by sub parts L through P of this part, or sub parts R through T of this part, as ap propriate. (c) Notification of filings of applica tions should be sent to the Director, Office of National Marine Sanctuaries at the address specified in subparts L through P of this part, or subparts R through T of this part, as appropriate. A copy of the application must accom pany the notification. (d) The Director may request addi tional information from the applicant as he or she deems reasonably nec essary to determine whether to object to issuance of an authorization de scribed in paragraph (a) of this section, or what terms and conditions are rea sonably necessary to protect Sanc tuary resources and qualities. The in formation requested must be received by the Director within 45 days of the postmark date of the request. The Di rector may seek the views of any per sons on the application. (e) The Director shall notify, in writ ing, the agency to which application has been made of his or her pending re view of the application and possible ob jection to issuance. Upon completion of review of the application and informa tion received with respect thereto, the Director shall notify both the agency and applicant, in writing, whether he or she has an objection to issuance and what terms and conditions he or she deems reasonably necessary to protect Sanctuary resources and qualities, and reasons therefor. (f) The Director may amend the terms and conditions deemed reason ably necessary to protect Sanctuary resources and qualities whenever addi tional information becomes available justifying such an amendment. (g) Any time limit prescribed in or established under this section may be extended by the Director for good cause. (h) The applicant may appeal any ob jection by, or terms or conditions im posed by, the Director to the Assistant Administrator or designee in accord ance with the provisions of § 922.50. [62 FR 4608, Jan. 30, 1997, as amended at 65 FR 39056, June 22, 2000; 84 FR 32602, July 8, 2019] § 922.50 Appeals of administrative ac tion. (a)(1) Except for permit actions taken for enforcement reasons (see sub part D of 15 CFR part 904 for applicable procedures), an applicant for, or a hold er of, a National Marine Sanctuary per mit; an applicant for, or a holder of, a Special Use permit issued pursuant to section 310 of the Act; a person request ing certification of an existing lease, permit, license or right of subsistence use or access under § 922.47; or, for those Sanctuaries described in subparts VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 126 15 CFR Ch. IX (1–1–21 Edition) § 922.60 L through P and R through T of this part, an applicant for a lease, permit, license or other authorization issued by any Federal, State, or local author ity of competent jurisdiction (herein after appellant) may appeal to the As sistant Administrator: (i) The granting, denial, condi tioning, amendment, suspension or rev ocation by the Director of a National Marine Sanctuary or Special Use per mit; (ii) The conditioning, amendment, suspension or revocation of a certifi cation under § 922.47; or (iii) For those Sanctuaries described in subparts L through P and R through T of this part, the objection to issuance of or the imposition of terms and con ditions on a lease, permit, license or other authorization issued by any Fed eral, State, or local authority of com petent jurisdiction. (2) For those National Marine Sanc tuaries described in subparts F through K and S and T of this part, any inter ested person may also appeal the same actions described in paragraphs (a)(1)(i) and (ii) of this section. For appeals arising from actions taken with respect to these National Marine Sanctuaries, the term ‘‘appellant’’ includes any such interested persons. (b) An appeal under paragraph (a) of this section must be in writing, state the action(s) by the Director appealed and the reason(s) for the appeal, and be received within 30 days of receipt of no tice of the action by the Director. Ap peals should be addressed to the Assist ant Administrator for Ocean Services and Coastal Zone Management, NOAA 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910. (c)(1) The Assistant Administrator may request the appellant to submit such information as the Assistant Ad ministrator deems necessary in order for him or her to decide the appeal. The information requested must be re ceived by the Assistant Administrator within 45 days of the postmark date of the request. The Assistant Adminis trator may seek the views of any other persons. For the Monitor National Ma rine Sanctuary, if the appellant has re quested a hearing, the Assistant Ad ministrator shall grant an informal hearing. For all other National Marine Sanctuaries, the Assistant Adminis trator may determine whether to hold an informal hearing on the appeal. If the Assistant Administrator deter mines that an informal hearing should be held, the Assistant Administrator may designate an officer before whom the hearing shall be held. (2) The hearing officer shall give no tice in the FEDERAL REGISTER of the time, place and subject matter of the hearing. The appellant and the Direc tor may appear personally or by coun sel at the hearing and submit such ma terial and present such arguments as deemed appropriate by the hearing offi cer. Within 60 days after the record for the hearing closes, the hearing officer shall recommend a decision in writing to the Assistant Administrator. (d) The Assistant Administrator shall decide the appeal using the same regu latory criteria as for the initial deci sion and shall base the appeal decision on the record before the Director and any information submitted regarding the appeal, and, if a hearing has been held, on the record before the hearing officer and the hearing officer’s rec ommended decision. The Assistant Ad ministrator shall notify the appellant of the final decision and the reason(s) therefore in writing. The Assistant Ad ministrator’s decision shall constitute final agency action for the purpose of the Administrative Procedure Act. (e) Any time limit prescribed in or established under this section other than the 30-day limit for filing an ap peal may be extended by the Assistant Administrator or hearing office for good cause. [84 FR 32602, July 8, 2019] Subpart F—Monitor National Marine Sanctuary § 922.60 Boundary. The Monitor National Marine Sanc tuary (Sanctuary) consists of a vertical water column in the Atlantic Ocean one mile in diameter extending from the surface to the seabed, the center of which is at 35°00′23″ north latitude and 75°24′32″ west longitude. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 127 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.70 § 922.61 Prohibited or otherwise regu lated activities. Except as may be permitted by the Director, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: (a) Anchoring in any manner, stop ping, remaining, or drifting without power at any time; (b) Any type of subsurface salvage or recovery operation; (c) Diving of any type, whether by an individual or by a submersible; (d) Lowering below the surface of the water any grappling, suction, con veyor, dredging or wrecking device; (e) Detonating below the surface of the water any explosive or explosive mechanism; (f) Drilling or coring the seabed; (g) Lowering, laying, positioning or raising any type of seabed cable or cable-laying device; (h) Trawling; or (i) Discharging waster material into the water in violation of any Federal statute or regulation. § 922.62 Permit procedure and criteria. (a) Any person or entity may conduct in the Sanctuary any activity listed in § 922.61 if such activity is either: (1) For the purpose of research re lated to the Monitor, or (2) Pertains to salvage or recovery operations in connection with an air or marine casualty and such person or en tity is in possession of a valid permit issued by the Director authorizing the conduct of such activity; except that, no permit is required for the conduct of any activity immediately and urgently necessary for the protection of life, property or the environment. (b) Any person or entity who wishes to conduct in the Sanctuary an activ ity for which a permit is authorized by this section (hereafter a permitted ac tivity) may apply in writing to the Di rector for a permit to conduct such ac tivity citing this section as the basis for the application. Such application should be made to: Director, Office of Ocean and Coastal Resource Manage ment; ATTN: Manager, Monitor Na tional Marine Sanctuary, Building 1519, NOAA, Fort Eustis, VA 23604–5544. (c) In considering whether to grant a permit for the conduct of a permitted activity for the purpose of research re lated to the Monitor, the Secretary shall evaluate such matters as: (1) The general professional and fi nancial responsibility of the applicant; (2) The appropriateness of the re search method(s) envisioned to the pur pose(s) of the research; (3) The extent to which the conduct of any permitted activity may dimin ish the value of the MONITOR as a source of historic, cultural, aesthetic and/or maritime information; (4) The end value of the research en visioned; and (5) Such other matters as the Direc tor deems appropriate. (d) In considering whether to grant a permit for the conduct of a permitted activity in the Sanctuary in relation to an air or marine casualty, the Director shall consider such matters as: (1) The fitness of the applicant to do the work envisioned; (2) The necessity of conducting such activity; (3) The appropriateness of any activ ity envisioned to the purpose of the entry into the Sanctuary; (4) The extent to which the conduct of any such activity may diminish the value of the Monitor as a source of his toric, cultural, aesthetic and/or mari time information; and (5) Such other matters as the Direc tor deems appropriate. (e) In considering any application submitted pursuant to this section, the Director shall seek and consider the views of the Advisory Council on His toric Preservation. (f) The Director may observe any ac tivity permitted by this section; and/or may require the submission of one or more reports of the status or progress of such activity. Subpart G—Channel Islands National Marine Sanctuary § 922.70 Boundary. The Channel Islands National Marine Sanctuary (Sanctuary) consists of an area of approximately 1,110 square nau tical miles (nmi) of coastal and ocean VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00137 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 128 15 CFR Ch. IX (1–1–21 Edition) § 922.71 waters, and the submerged lands there under, off the southern coast of Cali fornia. The Sanctuary boundary begins at the Mean High Water Line of and ex tends seaward to a distance of approxi mately six nmi from the following is lands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and Castle Rock (the Islands). The seaward bound ary coordinates are listed in appendix A to this subpart. [74 FR 3260, Jan. 16, 2009] § 922.71 Definitions. In addition to those definitions found at 15 CFR 922.3, the following defini tions apply to this subpart: Cruise ship means a vessel with 250 or more passenger berths for hire. Graywater means galley, bath, or shower water. Introduced species means any species (including but not limited to any of its biological matter capable of propaga tion) that is non-native to the eco systems of the Sanctuary; or any orga nism into which altered genetic mat ter, or genetic matter from another species, has been transferred in order that the host organism acquires the ge netic traits of the transferred genes. Motorized personal watercraft means a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of pro pulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull. The length is measured from end to end over the deck excluding sheer, meaning a straight line measurement of the overall length from the foremost part of the vessel to the aftermost part of the vessel, measured parallel to the centerline. Bow sprits, bumpkins, rud ders, outboard motor brackets, and similar fittings or attachments, are not included in the measurement. Length is stated in feet and inches. Oceangoing ship means a private, commercial, government, or military vessel of 300 gross registered tons or more, not including cruise ships. Pelagic finfish are defined as: North ern anchovy (Engraulis mordax), barra cudas (Sphyraena spp.), billfishes (fam ily Istiophoridae), dolphinfish (Coryphaena hippurus), Pacific herring (Clupea pallasi), jack mackerel (Trachurus symmetricus), Pacific mack erel (Scomber japonicus), salmon (Oncorhynchus spp.), Pacific sardine (Sardinops sagax), blue shark (Prionace glauca), salmon shark (Lamna ditropis), shortfin mako shark (Isurus oxyrinchus), thresher sharks (Alopias spp.), swordfish (Xiphias gladius), tunas (family Scombridae), and yellowtail (Seriola lalandi). Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulk head, tied down, unbaited, unloaded, or partially disassembled (such as spear shafts being kept separate from spear guns). [74 FR 3260, Jan. 16, 2009] § 922.72 Prohibited or otherwise regu lated activities—Sanctuary-wide. (a) Except as specified in paragraphs (b) through (e) of this section, the fol lowing activities are prohibited and thus unlawful for any person to con duct or cause to be conducted: (1) Exploring for, developing, or pro ducing hydrocarbons within the Sanc tuary, except pursuant to leases exe cuted prior to March 30, 1981, and ex cept the laying of pipeline pursuant to exploring for, developing, or producing hydrocarbons. (2) Exploring for, developing, or pro ducing minerals within the Sanctuary, except producing by-products inci dental to hydrocarbon production al lowed by paragraph (a)(1) of this sec tion. (3)(i) Discharging or depositing from within or into the Sanctuary any ma terial or other matter except: (A) Fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity within the Sanctuary, provided that such dis charge or deposit is during the conduct of lawful fishing activity within the Sanctuary; (B) For a vessel less than 300 gross registered tons (GRT), or an ocean going ship without sufficient holding tank capacity to hold sewage while within the Sanctuary, biodegradable VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00138 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 129 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.72 effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1321 et seq. Vessel operators must lock all marine sanita tion devices in a manner that prevents discharge or deposit of untreated sew age; (C) Biodegradable matter from: (1) Vessel deck wash down; (2) Vessel engine cooling water; (3) Graywater from a vessel less than 300 gross registered tons; (4) Graywater from an oceangoing ship without sufficient holding tank capacity to hold graywater while with in the Sanctuary; (D) Vessel engine or generator ex haust; (E) Effluent routinely and nec essarily discharged or deposited inci dental to hydrocarbon exploration, de velopment, or production allowed by paragraph (a)(1) of this section; or (F) Discharge allowed under section 312(n) of the FWPCA. (ii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that sub sequently enters the Sanctuary and in jures a Sanctuary resource or quality, except those listed in paragraphs (a)(3)(i)(B) through (F) of this section and fish, fish parts, or chumming mate rials (bait) used in or resulting from lawful fishing activity beyond the boundary of the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity there. (4) Drilling into, dredging, or other wise altering the submerged lands of the Sanctuary; or constructing or plac ing any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental to and necessary to: (i) Anchor a vessel; (ii) Install an authorized naviga tional aid; (iii) Conduct lawful fishing activity; (iv) Lay pipeline pursuant to explor ing for, developing, or producing hydro carbons; or (v) Explore for, develop, or produce hydrocarbons as allowed by paragraph (a)(1) of this section. (5) Abandoning any structure, mate rial, or other matter on or in the sub merged lands of the Sanctuary. (6) Except to transport persons or supplies to or from any Island, oper ating within one nmi of any Island any vessel engaged in the trade of carrying cargo, including, but not limited to, tankers and other bulk carriers and barges, any vessel engaged in the trade of servicing offshore installations, or any vessel of three hundred gross reg istered tons or more, except fishing or kelp harvesting vessels. (7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of any Island, except to engage in kelp bed surveys or to transport persons or supplies to or from an Island. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is pre sumed to disturb marine mammals or seabirds. (8) Moving, removing, injuring, or possessing, or attempting to move, re move, injure, or possess a Sanctuary historical resource. (9) Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amend ed, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (10) Possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird, except as authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (11) Marking, defacing, damaging, moving, removing, or tampering with any sign, notice, or placard, whether temporary or permanent, or any monu ment, stake, post, or other boundary marker related to the Sanctuary. (12) Introducing or otherwise releas ing from within or into the Sanctuary VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00139 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 130 15 CFR Ch. IX (1–1–21 Edition) § 922.73 an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity. (13) Operating a motorized personal watercraft within waters of the Sanc tuary that are coextensive with the Channel Islands National Park, estab lished by 16 U.S.C. 410(ff). (b)(1) The prohibitions in paragraphs (a)(3) through (13) of this section and in § 922.73 do not apply to military activi ties carried out by DOD as of the effec tive date of these regulations and spe cifically identified in section 3.5.9 (De partment of Defense Activities) of the Final Channel Islands National Marine Sanctuary Management Plan/Final En vironmental Impact Statement (FMP/ FEIS), Volume II: Environmental Im pact Statement, 2008, authored and published by NOAA (‘‘pre-existing ac tivities’’). Copies of the document are available from the Channel Islands Na tional Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109. Other military activities carried out by DOD may be exempted by the Director after consultation between the Director and DOD. (2) A military activity carried out by DOD as of the effective date of these regulations and specifically identified in the section entitled ‘‘Department of Defense Activities’’ of the FMP/FEIS is not considered a pre-existing activity if: (i) It is modified in such a way that requires the preparation of an environ mental assessment or environmental impact statement under the National Environmental Policy Act, 42 U.S.C. 4321 et seq., relevant to a Sanctuary re source or quality; (ii) It is modified, including but not limited to changes in location or fre quency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly greater than previously considered for the un modified activity; (iii) It is modified, including but not limited to changes in location or fre quency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly different in manner than previously considered for the unmodified activity; or (iv) There are new circumstances or information relevant to a Sanctuary resource or quality that were not ad dressed in the FMP/FEIS. (3) In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, in cluding, but not limited to, discharges, deposits, and groundings, caused by a DOD activity, DOD, in coordination with the Director, must promptly pre vent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner ap proved by the Director. (4) All DOD activities must be carried out in a manner that avoids to the maximum extent practicable any ad verse impacts on Sanctuary resources and qualities. (c) The prohibitions in paragraphs (a)(3) through (10), (a)(12), and (a)(13) of this section and in § 922.73 do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursu ant to 15 CFR 922.48 and 922.74. (d) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section and in § 922.73 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment. (e) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section and in § 922.73 do not apply to any activity necessary for valid law en forcement purposes in the Sanctuary. [74 FR 3260, Jan. 16, 2009, as amended at 77 FR 3922, Jan. 26, 2012] § 922.73 Additional prohibited or oth erwise regulated activities—marine reserves and marine conservation area. (a) Marine reserves. Unless prohibited by 50 CFR part 660 (Fisheries off West Coast States), the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within a marine reserve de scribed in appendix B to this subpart, except as specified in paragraphs (b) through (e) of § 922.72: (1) Harvesting, removing, taking, in juring, destroying, collecting, moving, or causing the loss of any Sanctuary resource, or attempting any of these activities. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 131 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.74 (2) Possessing fishing gear on board a vessel unless such gear is stowed and not available for immediate use. (3) Possessing any Sanctuary re source, except legally harvested fish on board a vessel at anchor or in transit. (b) Marine conservation area. Unless prohibited by 50 CFR part 660 (Fish eries off West Coast States), the fol lowing activities are prohibited and thus unlawful for any person to con duct or cause to be conducted within the marine conservation area described in appendix C to this subpart, except as specified in paragraphs (b) through (e) of § 922.72: (1) Harvesting, removing, taking, in juring, destroying, collecting, moving, or causing the loss of any Sanctuary resource, or attempting any of these activities, except: (i) Recreational fishing for pelagic finfish; or (ii) Commercial and recreational fishing for lobster. (2) Possessing fishing gear on board a vessel, except legal fishing gear used to fish for lobster or pelagic finfish, un less such gear is stowed and not avail able for immediate use. (3) Possessing any Sanctuary re source, except legally harvested fish. [74 FR 3260, Jan. 16, 2009] § 922.74 Permit procedures and issuance criteria. (a) A person may conduct an activity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13), and § 922.73, if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under § 922.48 and this section. (b) The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an ac tivity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13), and § 922.73, if the Director finds that the activity: (1) Is appropriate research designed to further understanding of Sanctuary resources and qualities; (2) Will further the educational value of the Sanctuary; (3) Will further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; (4) Will assist in managing the Sanc tuary; or (5) Will further salvage or recovery operations in connection with an aban doned shipwreck in the Sanctuary title to which is held by the State of Cali fornia. (c) The Director may not issue a per mit under § 922.48 and this section un less the Director also finds that: (1) The proposed activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities; (2) The applicant is professionally qualified to conduct and complete the proposed activity; (3) The applicant has adequate finan cial resources available to conduct and complete the proposed activity; (4) The duration of the proposed ac tivity is no longer than necessary to achieve its stated purpose; (5) The methods and procedures pro posed by the applicant are appropriate to achieve the goals of the proposed ac tivity, especially in relation to the po tential effects of the proposed activity on Sanctuary resources and qualities; (6) The proposed activity will be con ducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, con sidering the extent to which the con duct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, sec ondary, or cumulative effects of the ac tivity, and the duration of such effects; (7) The proposed activity will be con ducted in a manner compatible with the value of the Sanctuary as a source of recreation and as a source of edu cational and scientific information, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary and the duration of such ef fects; (8) It is necessary to conduct the pro posed activity within the Sanctuary; (9) The reasonably expected end value of the proposed activity furthers Sanc tuary goals and purposes and out weighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 132 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. G, App. A (10) Any other matters the Director deems appropriate do not make the issuance of a permit for the proposed activity inappropriate. (d) Applications. (1) Applications for permits should be addressed to the Di rector, Office of National Marine Sanc tuaries; ATTN: Manager, Channel Is lands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109. (2) In addition to the information listed in § 922.48(b), all applications must include information the Director needs to make the findings in para graphs (b) and (c) of this section. (e) In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the permittee agree to hold the United States harmless against any claims arising out of the conduct of the per mitted activities. [74 FR 3260, Jan. 16, 2009] APPENDIX A TO SUBPART G OF PART 922—CHANNEL ISLANDS NATIONAL MARINE SANCTUARY BOUNDARY CO ORDINATES [Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.] Point Latitude (N) Longitude (W) 1 ..................................... 33.94138 ¥119.27422 2 ..................................... 33.96776 ¥119.25010 3 ..................................... 34.02607 ¥119.23642 4 ..................................... 34.07339 ¥119.25686 5 ..................................... 34.10185 ¥119.29178 6 ..................................... 34.11523 ¥119.33040 7 ..................................... 34.11611 ¥119.39120 8 ..................................... 34.11434 ¥119.40212 9 ..................................... 34.11712 ¥119.42896 10 ................................... 34.11664 ¥119.44844 11 ................................... 34.13389 ¥119.48081 12 ................................... 34.13825 ¥119.49198 13 ................................... 34.14784 ¥119.51194 14 ................................... 34.15086 ¥119.54670 15 ................................... 34.15450 ¥119.54670 16 ................................... 34.15450 ¥119.59170 17 ................................... 34.15142 ¥119.61254 18 ................................... 34.13411 ¥119.66024 19 ................................... 34.14635 ¥119.69780 20 ................................... 34.15988 ¥119.76688 21 ................................... 34.15906 ¥119.77800 22 ................................... 34.15928 ¥119.79327 23 ................................... 34.16213 ¥119.80347 24 ................................... 34.16962 ¥119.83643 25 ................................... 34.17266 ¥119.85240 26 ................................... 34.17588 ¥119.88903 27 ................................... 34.17682 ¥119.93357 28 ................................... 34.17258 ¥119.95830 29 ................................... 34.13535 ¥120.01964 30 ................................... 34.13698 ¥120.04206 31 ................................... 34.12994 ¥120.08582 32 ................................... 34.12481 ¥120.11104 Point Latitude (N) Longitude (W) 33 ................................... 34.12519 ¥120.16076 34 ................................... 34.11008 ¥120.21190 35 ................................... 34.11128 ¥120.22707 36 ................................... 34.13632 ¥120.25292 37 ................................... 34.15341 ¥120.28627 38 ................................... 34.16408 ¥120.29310 39 ................................... 34.17704 ¥120.30670 40 ................................... 34.20492 ¥120.30670 41 ................................... 34.20492 ¥120.38830 42 ................................... 34.20707 ¥120.41801 43 ................................... 34.20520 ¥120.42859 44 ................................... 34.19254 ¥120.46041 45 ................................... 34.20540 ¥120.50728 46 ................................... 34.20486 ¥120.53987 47 ................................... 34.18182 ¥120.60041 48 ................................... 34.10208 ¥120.64208 49 ................................... 34.08151 ¥120.63894 50 ................................... 34.05848 ¥120.62862 51 ................................... 34.01940 ¥120.58567 52 ................................... 34.01349 ¥120.57464 53 ................................... 33.98698 ¥120.56582 54 ................................... 33.95039 ¥120.53282 55 ................................... 33.92694 ¥120.46132 56 ................................... 33.92501 ¥120.42170 57 ................................... 33.91403 ¥120.37585 58 ................................... 33.91712 ¥120.32506 59 ................................... 33.90956 ¥120.30857 60 ................................... 33.88976 ¥120.29540 61 ................................... 33.84444 ¥120.25482 62 ................................... 33.83146 ¥120.22927 63 ................................... 33.81763 ¥120.20284 64 ................................... 33.81003 ¥120.18731 65 ................................... 33.79425 ¥120.13422 66 ................................... 33.79379 ¥120.10207 67 ................................... 33.79983 ¥120.06995 68 ................................... 33.81076 ¥120.04351 69 ................................... 33.81450 ¥120.03158 70 ................................... 33.84125 ¥119.96508 71 ................................... 33.84865 ¥119.92316 72 ................................... 33.86993 ¥119.88330 73 ................................... 33.86195 ¥119.88330 74 ................................... 33.86195 ¥119.80000 75 ................................... 33.86110 ¥119.79017 76 ................................... 33.86351 ¥119.77130 77 ................................... 33.85995 ¥119.74390 78 ................................... 33.86233 ¥119.68783 79 ................................... 33.87330 ¥119.65504 80 ................................... 33.88594 ¥119.62617 81 ................................... 33.88688 ¥119.59423 82 ................................... 33.88809 ¥119.58278 83 ................................... 33.89414 ¥119.54861 84 ................................... 33.90064 ¥119.51936 85 ................................... 33.90198 ¥119.51609 86 ................................... 33.90198 ¥119.43311 87 ................................... 33.90584 ¥119.43311 88 ................................... 33.90424 ¥119.42422 89 ................................... 33.90219 ¥119.40730 90 ................................... 33.90131 ¥119.38373 91 ................................... 33.90398 ¥119.36333 92 ................................... 33.90635 ¥119.35345 93 ................................... 33.91304 ¥119.33280 94 ................................... 33.91829 ¥119.32206 95 ................................... 33.48250 ¥119.16874 96 ................................... 33.44235 ¥119.16797 97 ................................... 33.40555 ¥119.14878 98 ................................... 33.39059 ¥119.13283 99 ................................... 33.36804 ¥119.08891 100 ................................. 33.36375 ¥119.06803 101 ................................. 33.36241 ¥119.04812 102 ................................. 33.36320 ¥119.03670 103 ................................. 33.36320 ¥118.90879 104 ................................. 33.47500 ¥118.90879 105 ................................. 33.48414 ¥118.90712 106 ................................. 33.52444 ¥118.91492 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00142 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 133 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. G, App. B Point Latitude (N) Longitude (W) 107 ................................. 33.53834 ¥118.92271 108 ................................. 33.58616 ¥118.99540 109 ................................. 33.59018 ¥119.02374 110 ................................. 33.58516 ¥119.06745 111 ................................. 33.58011 ¥119.08521 112 ................................. 33.54367 ¥119.14460 113 ................................. 33.51161 ¥119.16367 [72 FR 29233, May 24, 2007] APPENDIX B TO SUBPART G OF PART 922—MARINE RESERVE BOUNDARIES [Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.] B.1. RICHARDSON ROCK (SAN MIGUEL ISLAND) MARINE RESERVE The Richardson Rock Marine Reserve (Richardson Rock) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B–1, and the following tex tual description. The Richardson Rock boundary extends from Point 1 to Point 2 along a straight line. It then extends from Point 2 to Point 3 along a straight line. The boundary then extends along a straight line from Point 3 to the 3 nmi State boundary established under the Submerged Lands Act (3 nmi State bound ary) where a line defined by connecting Point 3 and Point 4 with a straight line intersects the 3 nmi State boundary. The boundary then extends northwestward and then eastward along the 3 nmi State bound ary until it intersects the line defined by connecting Point 5 and Point 6 with a straight line. At that intersection, the boundary extends from the 3 nmi SLA boundary to Point 6 along a straight line. TABLE B–1—RICHARDSON ROCK (SAN MIGUEL ISLAND) MARINE RESERVE Point Latitude Longitude 1 ......................................... 34.17333 ° N 120.60483 ″ W 2 ......................................... 34.17333 ° N 120.47000 ″ W 3 ......................................... 34.12900 ° N 120.47000 ″ W 4 ......................................... 34.03685 ° N 120.52120 ″ W 5 ......................................... 34.03685 ° N 120.60483 ″ W 6 ......................................... 34.17333 ° N 120.60483 ″ W B.2. HARRIS POINT (SAN MIGUEL ISLAND) MARINE RESERVE The Harris Point Marine Reserve (Harris Point) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B–2, and the following textual descrip tion. The Harris Point boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary then follows the 3 nmi State boundary northwestward until it intersects the line defined by con necting Point 4 and Point 5 with a straight line. At that intersection, the boundary ex tends from the 3 nmi State boundary to Point 5 along a straight line. TABLE B–2—HARRIS POINT (SAN MIGUEL ISLAND) MARINE RESERVE Point Latitude Longitude 1 ......................................... 34.20492 ° N 120.38830 ″ W 2 ......................................... 34.20492 ° N 120.30670 ″ W 3 ......................................... 34.10260 ° N 120.30670 ″ W 4 ......................................... 34.15200 ° N 120.38830 ″ W 5 ......................................... 34.20492 ° N 120.38830 ″ W B.3. SOUTH POINT (SANTA ROSA ISLAND) MARINE RESERVE The South Point Marine Reserve (South Point) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B–3, and the following textual descrip tion. The South Point boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary southeastward until it intersects the line defined by connecting Point 4 and Point 5 along a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. TABLE B–3—SOUTH POINT (SANTA ROSA ISLAND) MARINE RESERVE Point Latitude Longitude 1 ......................................... 33.84000 ° N 120.10830 ″ W 2 ......................................... 33.84000 ° N 120.16670 ″ W 3 ......................................... 33.86110 ° N 120.16670 ″ W 4 ......................................... 33.84700 ° N 120.10830 ″ W 5 ......................................... 33.84000 ° N 120.10830 ″ W B.4. GULL ISLAND (SANTA CRUZ ISLAND) MARINE RESERVE The Gull Island Marine Reserve (Gull Is land) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B–4, and the following textual description. The Gull Island boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary then follows the 3 nmi State boundary westward until it VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00143 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 134 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. G, App. B intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. TABLE B–4—GULL ISLAND (SANTA CRUZ ISLAND) MARINE RESERVE Point Latitude Longitude 1 ......................................... 33.86195 ° N 119.80000 ″ W 2 ......................................... 33.86195 ° N 119.88330 ″ W 3 ......................................... 33.92690 ° N 119.88330 ″ W 4 ......................................... 33.90700 ° N 119.80000 ″ W 5 ......................................... 33.86195 ° N 119.80000 ″ W B.5. SCORPION (SANTA CRUZ ISLAND) MARINE RESERVE The Scorpion Marine Reserve (Scorpion) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B–5, and the following textual description. The Scorpion boundary extends from Point 1 to Point 2 along a straight line. It then ex tends along a straight line from Point 2 to the 3 nmi State boundary where a line de fined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary then follows the 3 nmi State boundary westward until it inter sects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. TABLE B–5—SCORPION (SANTA CRUZ ISLAND) MARINE RESERVE Point Latitude Longitude 1 ......................................... 34.15450 ° N 119.59170 ″ W 2 ......................................... 34.15450 ° N 119.54670 ″ W 3 ......................................... 34.10140 ° N 119.54670 ″ W 4 ......................................... 34.10060 ° N 119.59170 ″ W 5 ......................................... 34.15450 ° N 119.59170 ″ W B.6. FOOTPRINT MARINE RESERVE The Footprint Marine Reserve (Footprint) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B–6, and the following textual description. The Footprint boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary northeastward and then southeastward until it intersects the line de fined by connecting Point 4 and Point 5 along a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. TABLE B–6—FOOTPRINT MARINE RESERVE Point Latitude Longitude 1 ......................................... 33.90198 ° N 119.43311 ″ W 2 ......................................... 33.90198 ° N 119.51609 ″ W 3 ......................................... 33.96120 ° N 119.51609 ″ W 4 ......................................... 33.95710 ° N 119.43311 ″ W 5 ......................................... 33.90198 ° N 119.43311 ″ W B.7. ANACAPA ISLAND MARINE RESERVE The Anacapa Island Marine Reserve (Anacapa Island) boundary is defined by the 3 nmi State boundary, the coordinates pro vided in Table B–7, and the following textual description. The Anacapa Island boundary extends from Point 1 to Point 2 along a straight line. It then extends to the 3 nmi State boundary where a line defined by connecting Point 2 and Pont 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary westward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. TABLE B–7—ANACAPA ISLAND MARINE RESERVE Point Latitude Longitude 1 ......................................... 34.08330 ° N 119.41000 ″ W 2 ......................................... 34.08330 ° N 119.35670 ″ W 3 ......................................... 34.06450 ° N 119.35670 ″ W 4 ......................................... 34.06210 ° N 119.41000 ″ W 5 ......................................... 34.08330 ° N 119.41000 ″ W B.8. SANTA BARBARA ISLAND MARINE RESERVE The Santa Barbara Island Marine Reserve (Santa Barbara) boundary is defined by the 3 nmi State boundary, the coordinates pro vided in Table B–8, and the following textual description. The Santa Barbara boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary northeastward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. The boundary then extends from Point 5 to Point 6 along a straight line. TABLE B–8—SANTA BARBARA ISLAND MARINE RESERVE Point Latitude Longitude 1 ......................................... 33.36320 ° N 118.90879 ″ W 2 ......................................... 33.36320 ° N 119.03670 ″ W 3 ......................................... 33.41680 ° N 119.03670 ″ W VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00144 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 135 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.80 TABLE B–8—SANTA BARBARA ISLAND MARINE RESERVE—Continued Point Latitude Longitude 4 ......................................... 33.47500 ° N 118.97080 ″ W 5 ......................................... 33.47500 ° N 118.90879 ″ W 6 ......................................... 33.36320 ° N 118.90879 ″ W [72 FR 29233, May 24, 2007] APPENDIX C TO SUBPART G OF PART 922—MARINE CONSERVATION AREA BOUNDARY C.1. ANACAPA ISLAND MARINE CONSERVATION AREA The Anacapa Island Marine Conservation Area (AIMCA) boundary is defined by the 3 nmi State boundary, the coordinates pro vided in Table C–1, and the following textual description. The AIMCA boundary extends from Point 1 to Point 2 along a straight line. It then ex tends to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary westward until it inter sects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. TABLE C–1—ANACAPA ISLAND MARINE CONSERVATION AREA Point Latitude Longitude 1 ......................................... 34.08330 ° N 119.44500 ″ W 2 ......................................... 34.08330 ° N 119.41000 ″ W 3 ......................................... 34.06210 ° N 119.41000 ″ W 4 ......................................... 34.06300 ° N 119.44500 ″ W 5 ......................................... 34.08330 ° N 119.44500 ″ W [72 FR 29233, May 24, 2007; 72 FR 42317, Aug. 2, 2007] Subpart H—Greater Farallones National Marine Sanctuary SOURCE: 80 FR 13108, Mar. 12, 2015, unless otherwise noted. EDITORIAL NOTE: Nomenclature changes to subpart H appear at 80 FR 34048, June 15, 2015. § 922.80 Boundary. (a) Greater Farallones National Ma rine Sanctuary (Sanctuary) encom passes an area of approximately 2,488 square nautical miles (3,295 square miles) of coastal and ocean waters, and submerged lands thereunder, sur rounding the Farallon Islands and Noonday Rock along the northern coast of California. The precise bound ary coordinates are listed in appendix A to this subpart. (b) The western boundary of the Sanctuary extends south from Point 1 approximately 45 nautical miles (52 miles) to Point 2, which is the north western corner of Cordell Bank Na tional Marine Sanctuary (CBNMS). The Sanctuary boundary then extends from Point 2 approximately 38 nautical miles (43 miles) east along the northern boundary of CBNMS to Point 3, which is approximately 6 nautical miles (7 miles) west of Bodega Head. From Point 3 the Sanctuary boundary con tinues south and west to Points 4 through 19 (in numerical sequence) and is coterminous with the eastern bound ary of CBNMS. From Point 19 the Sanctuary boundary continues south and east to Points 20 through 25 (in nu merical sequence) until it intersects the boundary for Monterey Bay Na tional Marine Sanctuary (MBNMS) at Point 26. From Point 26 the Sanctuary boundary extends eastward and north ward, coterminous with MBNMS, to Points 27 through 33 (in numerical se quence). From Point 33 the boundary proceeds along a straight line arc to wards Point 34 until it intersects the Mean High Water Line at Rocky Point, California. From this intersection the Sanctuary boundary follows the Mean High Water Line northward until it intersects the boundary for Point Reyes National Seashore approxi mately 0.7 nautical miles (0.8 miles) south and east of Bolinas Point in Marin County, California. The Sanc tuary boundary then approximates the boundary for Point Reyes National Seashore, as established at the time of designation of the Sanctuary, to the intersection of the Point Reyes Na tional Seashore boundary and the Mean High Water Line approximately 0.13 nautical miles (0.15 miles) south and east of Duck Cove in Tomales Bay. The Sanctuary boundary then follows the Mean High Water Line along Tomales Bay and up Lagunitas Creek to the U.S. Highway 1 Bridge. Here the Sanctuary boundary crosses Lagunitas Creek and follows the Mean High Water VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00145 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 136 15 CFR Ch. IX (1–1–21 Edition) § 922.81 Line north to the Estero de San Anto nio and up the Estero to the tide gate at Valley Ford-Franklin School Road. Here the Sanctuary boundary crosses the Estero de San Antonio and pro ceeds west and north following the Mean High Water Line to the Estero Americano and up the Estero to the bridge at Valley Ford-Estero Road. Here the Sanctuary boundary crosses the Estero Americano and proceeds west and north following the Mean High Water Line towards Salmon Creek. Approaching Salmon Creek the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 35 and 36. From that intersec tion the boundary extends across the creek along the straight line arc to wards Point 36 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Russian River. Approaching the Russian River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 37 and Point 38. At that intersection the boundary ex tends across the river along the straight line arc towards Point 38 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Gualala River. Approaching the Gualala River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 39 and Point 40. At that inter section the boundary extends across the river along the straight line arc to wards Point 40 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north to Arena Cove in Mendocino County. Approach ing Arena Cove the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 41 and Point 42. At that intersection the boundary ex tends across the cove along the straight line arc towards Point 42 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Garcia River. Approaching the Garcia River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 43 and Point 44. At that inter section the boundary extends across the river along the straight line arc to wards Point 44 until it intersects the Mean High Water Line. The Sanctuary boundary then continues north fol lowing the Mean High Water Line until it intersects the rhumb line connecting Point 45 and Point 46. From this inter section the Sanctuary boundary con tinues west along its northernmost ex tent to Point 46. The Sanctuary in cludes Bolinas Lagoon, Estero de San Antonio (to the tide gate at Valley Ford-Franklin School Road) and Estero Americano (to the bridge at Valley Ford-Estero Road), as well as Bodega Bay, but does not include Bodega Har bor, the Salmon Creek Estuary, the Russian River Estuary, the Gualala River Estuary, Arena Cove, or the Gar cia River Estuary. Unless otherwise specified, where the Sanctuary bound ary crosses a waterway, the Sanctuary excludes this waterway upstream of the crossing. § 922.81 Definitions. In addition to those definitions found at § 922.3, the following definitions apply to this subpart: Attract or attracting means the con duct of any activity that lures or may lure any animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers). Clean means not containing detect able levels of harmful matter. Cruise ship means a vessel with 250 or more passenger berths for hire. Deserting means leaving a vessel aground or adrift without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a pre liminary salvage plan within 24 hours of such notification, after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts, or when the owner/operator cannot VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00146 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 137 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.82 after reasonable efforts by the Director be reached within 12 hours of the ves sel’s condition being reported to au thorities; or leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner. Harmful matter means any substance, or combination of substances, that be cause of its quantity, concentration, or physical, chemical, or infectious char acteristics may pose a present or po tential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (re gardless of quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensa tion and Liability Act at 40 CFR 302.4. Introduced species means any species (including, but not limited to, any of its biological matter capable of propa gation) that is non-native to the eco systems of the Sanctuary; or any orga nism into which altered genetic mat ter, or genetic matter from another species, has been transferred in order that the host organism acquires the ge netic traits of the transferred genes. Motorized personal watercraft means a vessel which uses an inboard motor powering a water jet pump as its pri mary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conven tional manner of sitting or standing in side the vessel. Routine maintenance means cus tomary and standard procedures for maintaining docks or piers. Seagrass means any species of marine angiosperms (flowering plants) that in habit portions of the submerged lands in the Sanctuary. Those species in clude, but are not limited to: Zostera asiatica and Zostera marina. Special Wildlife Protection Zones are areas surrounding or adjacent to high abundance of white sharks, breeding pinnipeds (seals and sea lions) or high abundance and high biological diver sity of breeding birds that are suscep tible to human caused disturbance, in cluding federally listed and specially protected species. Coordinates for Spe cial Wildlife Protection Zones are found in appendix C of this Subpart. § 922.82 Prohibited or otherwise regu lated activities. (a) The following activities are pro hibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: (1) Exploring for, developing, or pro ducing oil, gas or minerals. (2) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except: (i) Fish, fish parts, chumming mate rials or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such dis charge or deposit is during the conduct of lawful fishing activity within the Sanctuary; (ii) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient hold ing tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanita tion device (U.S. Coast Guard classi fication) that is approved in accord ance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Ves sel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of un treated sewage; (iii) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash; (iv) For a vessel less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA; (v) Vessel engine or generator ex haust; or (vi) For a United States Coast Guard vessel without sufficient holding tank capacity and without a Type I or II ma rine sanitation device, and operating within the designated area [2015 expan sion area] defined in appendix G of this subpart, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00147 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 138 15 CFR Ch. IX (1–1–21 Edition) § 922.82 vessel use, and ammunition, pyrotech nics or other materials directly related to search and rescue and live ammuni tion training activities conducted by United States Coast Guard vessels and aircraft in the designated areas defined in appendix G of this subpart. (3) Discharging or depositing from within or into the Sanctuary any ma terial or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator ex haust, clean bilge water, or anchor wash. (4) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that sub sequently enters the Sanctuary and in jures a Sanctuary resource or quality, except for the material or other matter excepted in paragraphs (a)(2)(i) through (vi) and (a)(3) of this section. (5) Constructing any structure other than a navigation aid on or in the sub merged lands of the Sanctuary; placing or abandoning any structure on or in the submerged lands of the Sanctuary; or drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary in any way, except: (i) By anchoring vessels (in a manner not otherwise prohibited by this part (see paragraph (a)(16) of this section); (ii) While conducting lawful fishing activities; (iii) Routine maintenance and con struction of docks and piers on Tomales Bay; or (iv) Aquaculture activities conducted pursuant to a valid lease, permit, li cense or other authorization issued by the State of California. (6) Operating motorized personal watercraft (MPWC) anywhere in Bodega Bay and anywhere in the Sanc tuary south of 38.29800 degrees North Latitude (the southernmost tip of Bodega Head), except for emergency search and rescue missions or law en forcement operations (other than rou tine training activities) carried out by the National Park Service, U.S. Coast Guard, Fire or Police Departments or other Federal, State or local jurisdic tions. (7) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act (ESA), as amended, 16 U.S.C. 1531 et seq., Migra tory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (8) Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle, or bird taken, except as au thorized by the MMPA, ESA, MBTA, by any regulation, as amended, pro mulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes. (9) Possessing, moving, removing, or injuring, or attempting to possess, move, remove or injure, a Sanctuary historical resource. (10) Introducing or otherwise releas ing from within or into the Sanctuary an introduced species, except: (i) Striped bass (Morone saxatilis) re leased during catch and release fishing activity; or (ii) Species cultivated by commercial shellfish aquaculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization issued by the State of California. Tomales Bay is defined in § 922.80. The coordinates for the northern terminus of Tomales Bay are listed in appendix C to this subpart. (11) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within any of the seven designated Spe cial Wildlife Protection Zones de scribed in appendix D to this subpart, except transiting Zone 6 to transport persons or supplies to or from South east Farallon Island authorized by the U.S. Fish and Wildlife Service, Farallon National Wildlife Refuge, or for enforcement purposes. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds. (12) Operating any vessel engaged in the trade of carrying cargo within any area designated Special Wildlife Pro tection Zone or within one nautical mile from these zones. The coordinates are listed in appendix E to this sub part. This includes but is not limited VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00148 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 139 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.83 to tankers and other bulk carriers and barges, or any vessel engaged in the trade of servicing offshore installa tions, except to transport persons or supplies to or from the Farallon Is lands. In no event shall this section be construed to limit access for fishing, recreational or research vessels. (13) Attracting a white shark any where in the Sanctuary; or approach ing within 50 meters of any white shark within Special Wildlife Protec tion Zone 6 and 7 or within one nau tical mile from these zones The coordi nates are listed in appendix F to this subpart. (14) Deserting a vessel aground, at anchor, or adrift in the Sanctuary. (15) Leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary. (16) Anchoring a vessel in a des ignated seagrass protection zone in Tomales Bay, except as necessary for aquaculture operations conducted pur suant to a valid lease, permit or li cense. The coordinates for the no-an choring seagrass protection zones are listed in Appendix B to this subpart. (17) Interfering with, obstructing, de laying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforce ment of the Act or any regulation or permit issued under the Act. (b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this sec tion. The exemption of additional ac tivities shall be determined in con sultation between the Director and the Department of Defense. (c) The prohibitions in paragraph (a) of this section do not apply to activi ties necessary to respond to an emer gency threatening life, property, or the environment. (d) The prohibitions in paragraphs (a)(2) through (9) and (a)(11) through (16) of this section do not apply to any activity executed in accordance with the scope, purpose, terms, and condi tions of a National Marine Sanctuary permit issued pursuant to §§ 922.48 and 922.83 or a Special Use permit issued pursuant to section 310 of the Act. [80 FR 13108, Mar. 12, 2015, as amended at 83 FR 55966, Nov. 9, 2018] § 922.83 Permit procedures and issuance criteria. (a) A person may conduct an activity prohibited by § 922.82(a)(2) through (9) and (a)(11) through (16) if such activity is specifically authorized by, and con ducted in accordance with the scope, purpose, terms and conditions of, a per mit issued under § 922.48 and this sec tion. (b) The Director, at his or her discre tion, may issue a National Marine Sanctuary permit under this section, subject to terms and conditions as he or she deems appropriate, if the Direc tor finds that the activity will: (1) Further research or monitoring related to Sanctuary resources and qualities; (2) Further the educational value of the Sanctuary; (3) Further salvage or recovery oper ations; or (4) Assist in managing the Sanc tuary. (c) In deciding whether to issue a per mit, the Director shall consider factors such as: (1) The applicant is qualified to con duct and complete the proposed activ ity; (2) The applicant has adequate finan cial resources available to conduct and complete the proposed activity; (3) The methods and procedures pro posed by the applicant are appropriate to achieve the goals of the proposed ac tivity, especially in relation to the po tential effects of the proposed activity on Sanctuary resources and qualities; (4) The proposed activity will be con ducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, con sidering the extent to which the con duct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, sec ondary or cumulative effects of the ac tivity, and the duration of such effects; (5) The proposed activity will be con ducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00149 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 140 15 CFR Ch. IX (1–1–21 Edition) § 922.84 activity may result in conflicts be tween different users of the Sanctuary, and the duration of such effects; (6) It is necessary to conduct the pro posed activity within the Sanctuary; (7) The reasonably expected end value of the proposed activity to the further ance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and (8) Any other factors as the Director deems appropriate. (d) Applications. (1) Applications for permits should be addressed to the Di rector, Office of National Marine Sanc tuaries; ATTN: Superintendent, Great er Farallones National Marine Sanc tuary, 991 Marine Dr., The Presidio, San Francisco, CA 94129. (2) In addition to the information listed in § 922.48(b), all applications must include information to be consid ered by the Director in paragraph (b) and (c) of this section. (e) The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities. § 922.84 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 § 922.82(a)(1) through (17) if such activity is specifically author ized by a valid Federal, State, or local lease, permit, license, approval, or other authorization in existence prior to the effective date of sanctuary ex pansion and within the sanctuary ex pansion area and complies with § 922.47 and provided that the holder of the lease, permit, license, approval, or other authorization complies with the requirements of paragraph (e) of this section. (b) In considering whether to make the certifications called for in this sec tion, the Director may seek and con sider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate. (c) The Director may amend, sus pend, or revoke any certification made under this section whenever continued operation would otherwise be incon sistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit, license, or other authorization and the issuing agency and shall set forth reason(s) for the action taken. (d) Requests for findings or certifi cations should be addressed to the Di rector, Office of National Marine Sanc tuaries; ATTN: Sanctuary Super intendent, Greater Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129. A copy of the lease, permit, license, ap proval, or other authorization must ac company the request. (e) For an activity described in para graph (a) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.82 (a)(1) through (17) provided that: (1) The holder of such authorization or right notifies the Director, in writ ing, within 90 days of the effective date of Sanctuary designation, of the exist ence of such authorization or right and requests certification of such author ization or right; (2) The holder complies with the other provisions of this section; 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 Di rector, to achieve the purposes for which the Sanctuary was designated. (f) The holder of an authorization or right described in paragraph (a) of this section authorizing an activity prohib ited by § 922.82 may conduct the activ ity without being in violation of appli cable provisions of § 922.82, pending final agency action on his or her cer tification request, provided the holder is otherwise in compliance with this section. (g) The Director may request addi tional information from the certifi cation requester as he or she deems reasonably necessary to condition ap propriately 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 re quest. The Director may seek the views VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00150 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 141 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. H, App. B of any persons on the certification re quest. (h) The Director may amend any cer tification made under this section whenever additional information be comes available that he determines justifies such an amendment. (i) Upon completion of review of the authorization or right and information received with respect thereto, the Di rector shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this sec tion, in writing, to both the holder of the certified lease, permit, license, ap proval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken. (j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accord ance with the procedures set forth in § 922.50. (k) Any time limit prescribed in or established under this section may be extended by the Director for good cause. § 922.85 Review of State permits and leases for certain aquaculture projects. NOAA has described in a Memo randum of Agreement (MOA) with the State of California how the State will consult and coordinate with NOAA to review any new, amended or expanded lease or permit application for aqua culture projects in Tomales Bay in volving introduced species. APPENDIX A TO SUBPART H OF PART 922—GREATER FARALLONES NA TIONAL MARINE SANCTUARY BOUND ARY COORDINATES Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983. Point ID No. Latitude Longitude 1 ......................................... 39.00000 ¥124.33350 2 ......................................... 38.29989 ¥123.99988 3 ......................................... 38.29989 ¥123.20005 4 ......................................... 38.26390 ¥123.18138 5 ......................................... 38.21001 ¥123.11913 6 ......................................... 38.16576 ¥123.09207 7 ......................................... 38.14072 ¥123.08237 8 ......................................... 38.12829 ¥123.08742 9 ......................................... 38.10215 ¥123.09804 10 ....................................... 38.09069 ¥123.10387 Point ID No. Latitude Longitude 11 ....................................... 38.07898 ¥123.10924 12 ....................................... 38.06505 ¥123.11711 13 ....................................... 38.05202 ¥123.12827 14 ....................................... 37.99227 ¥123.14137 15 ....................................... 37.98947 ¥123.23615 16 ....................................... 37.95880 ¥123.32312 17 ....................................... 37.90464 ¥123.38958 18 ....................................... 37.83480 ¥123.42579 19 ....................................... 37.76687 ¥123.42694 20 ....................................... 37.75932 ¥123.42686 21 ....................................... 37.68892 ¥123.39274 22 ....................................... 37.63356 ¥123.32819 23 ....................................... 37.60123 ¥123.24292 24 ....................................... 37.59165 ¥123.22641 25 ....................................... 37.56305 ¥123.19859 26 ....................................... 37.52001 ¥123.12879 27 ....................................... 37.50819 ¥123.09617 28 ....................................... 37.49418 ¥123.00770 29 ....................................... 37.50948 ¥122.90614 30 ....................................... 37.52988 ¥122.85988 31 ....................................... 37.57147 ¥122.80399 32 ....................................... 37.61622 ¥122.76937 33 ....................................... 37.66641 ¥122.75105 34 * ..................................... 37.88225 ¥122.62753 35 * ..................................... 38.35045 ¥123.06711 36 * ..................................... 38.35665 ¥123.06724 37 * ..................................... 38.44575 ¥123.12602 38 * ..................................... 38.45531 ¥123.13469 39 * ..................................... 38.76231 ¥123.52957 40 * ..................................... 38.76941 ¥123.53541 41 * ..................................... 38.91136 ¥123.71061 42 * ..................................... 38.91766 ¥123.72568 43 * ..................................... 38.95404 ¥123.73405 44 * ..................................... 38.95944 ¥123.71820 45 * ..................................... 39.00000 ¥123.69710 46 ....................................... 39.00000 ¥124.33350 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the sanctuary boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline. APPENDIX B TO SUBPART H OF PART 922—NO-ANCHORING SEAGRASS PRO TECTION ZONES IN TOMALES BAY Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983. (1) No-Anchoring Seagrass Protection Zone 1 encompasses an area of approximately .11 square nautical miles (.15 square miles) off shore south of Millerton Point. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a straight line arc that connects points 1 and 2 listed in the coordinate table below. The southern boundary is a straight line arc that connects points 2 and 3, the western boundary is a straight line arc that connects points 3 and 4 and the northern boundary is a straight line arc that connects point 4 to point 5. Zone 1 Point ID No. Latitude Longitude 1 ......................................... 38.10571 ¥122.84565 2 ......................................... 38.09888 ¥122.83603 3 ......................................... 38.09878 ¥122.84431 4 ......................................... 38.10514 ¥122.84904 5 ......................................... 38.10571 ¥122.84565 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00151 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 142 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. H, App. B (2) No-Anchoring Seagrass Protection Zone 2 encompasses an area of approximately .15 square nautical miles (.19 square miles) that begins just south of Marconi and extends ap proximately 1.6 nautical miles (1.9 miles) south along the eastern shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 5 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 5 towards point 6 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line north until it intersects the straight line arc that connects point 7 to point 8. From this intersection the northern boundary extends to point 8. Zone 2 Point ID No. Latitude Longitude 1 ......................................... 38.13326 ¥122.87178 2 ......................................... 38.12724 ¥122.86488 3 ......................................... 38.12563 ¥122.86480 4 ......................................... 38.11899 ¥122.86731 5 ......................................... 38.11386 ¥122.85851 6 * ....................................... 38.11608 ¥122.85813 7 * ....................................... 38.14078 ¥122.87433 8 ......................................... 38.13326 ¥122.87178 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (3) No-Anchoring Seagrass Protection Zone 3 encompasses an area of approximately .01 square nautical miles (.02 square miles) that begins just south of Marshall and extends ap proximately .5 nautical miles (.6 miles) south along the eastern shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The western boundary is a straight line arc that connects point 1 to point 2 listed in the coordinate table below. The southern bound ary is a straight line arc that extends from point 2 towards point 3 until it intersects the Mean High Water Line. From this intersec tion the eastern boundary follows the Mean High Water Line northward until it inter sects the straight line arc that connects point 4 to point 5. From this intersection the northern boundary extends westward along the straight line arc that connects point 4 to point 5. Zone 3 Point ID No. Latitude Longitude 1 ......................................... 38.15956 ¥122.89573 2 ......................................... 38.15250 ¥122.89042 3 * ....................................... 38.15292 ¥122.88984 4 * ....................................... 38.16031 ¥122.89442 5 ......................................... 38.15956 ¥122.89573 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (4) No-Anchoring Seagrass Protection Zone 4 is an area of approximately .18 square nau tical miles (.21 square miles) that begins just north of Nicks Cove and extends approxi mately 2.7 nautical miles (3.1 miles) south along the eastern shore of Tomales Bay to just south of Cypress Grove. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 8 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 8 towards point 9 until it inter sects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line north until it intersects the straight line arc that connects point 10 to point 11. From this intersection the northern boundary extends westward along the straight line arc that connects point 10 to point 11. Zone 4 Point ID No. Latitude Longitude 1 ......................................... 38.20004 ¥122.92315 2 ......................................... 38.18881 ¥122.91740 3 ......................................... 38.18651 ¥122.91404 4 ......................................... 38.17919 ¥122.91021 5 ......................................... 38.17450 ¥122.90545 6 ......................................... 38.16869 ¥122.90475 7 ......................................... 38.16535 ¥122.90308 8 ......................................... 38.16227 ¥122.89650 9 * ....................................... 38.16266 ¥122.89620 10 * ..................................... 38.20080 ¥122.92174 11 ....................................... 38.20004 ¥122.92315 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (5) No-Anchoring Seagrass Protection Zone 5 encompasses an area of approximately 1.3 square nautical miles (1.6 square miles) that begins east of Lawson’s Landing and extends approximately 2.7 nautical miles (3.1 miles) east and south along the eastern shore of Tomales Bay but excludes areas adjacent (approximately .32 nautical miles or .37 miles) to the mouth of Walker Creek. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 3 listed in the coordinate table below. From point 3 the southern boundary trends eastward along the straight line arc that connects point 3 to point 4 until it intersects the Mean High Water Line. From this inter section the boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 5 to point 6. From this intersection the boundary extends westward along the straight line arc that connects point 5 to point 6. From point 6 the boundary follows the straight line arc VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00152 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 143 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. H, App. D that connects point 6 to point 7, and then ex tends along the straight line arc that con nects point 7 to point 8 until it again inter sects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line until it intersects the straight line arc that connects point 9 to point 10. From this intersection the bound ary extends to point 10 along the straight line arc that connects point 9 to point 10. Zone 5 Point ID No. Latitude Longitude 1 ......................................... 38.21825 ¥122.96041 2 ......................................... 38.20666 ¥122.94397 3 ......................................... 38.19431 ¥122.93431 4 * ....................................... 38.20080 ¥122.92174 5 * ....................................... 38.20522 ¥122.92446 6 ......................................... 38.20366 ¥122.93246 7 ......................................... 38.20938 ¥122.94153 8 * ....................................... 38.21599 ¥122.93742 9 * ....................................... 38.23129 ¥122.96293 10 ....................................... 38.21825 ¥122.96041 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (6) No-Anchoring Seagrass Protection Zone 6 encompasses an area of approximately .01 square nautical miles (.02 square miles) in the vicinity of Indian Beach along the west ern shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a straight line arc that connects point 1 to point 2 listed in the coordinate table below. The southern boundary extends westward along the straight line arc that connects point 2 to point 3 until it intersects the Mean High Water Line. From this inter section the eastern boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 3 to point 4. From this intersection the northern boundary extends eastward along the straight line arc that connects point 4 to point 5. Zone 6 Point ID No. Latitude Longitude 1 ......................................... 38.14103 ¥122.89537 2 ......................................... 38.13919 ¥122.89391 3 * ....................................... 38.13804 ¥122.89610 4 * ....................................... 38.14033 ¥122.89683 5 ......................................... 38.14103 ¥122.89537 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (7) No-Anchoring Seagrass Protection Zone 7 encompasses an area of approximately .09 square nautical miles (.12 square miles) that begins just south of Pebble Beach and ex tends approximately 1.6 nautical miles (1.9 miles) south along the western shore of Tomales Bay. The precise boundary coordi nates are listed in the table following this description. The eastern boundary is a series of straight line arcs that sequentially con nect point 1 to point 5 listed in the coordi nate table below. The southern boundary ex tends along the straight line arc that con nects point 5 to point 6 until it intersects the Mean High Water Line. From this intersec tion the western boundary extends north along the Mean High Water Line until it intersects the straight line arc that connects point 7 to point 8. From this intersection the northern boundary extends eastward along the straight line arc that connects point 7 to point 8. Zone 7 Point ID No. Latitude Longitude 1 ......................................... 38.13067 ¥122.88620 2 ......................................... 38.12362 ¥122.87984 3 ......................................... 38.11916 ¥122.87491 4 ......................................... 38.11486 ¥122.86896 5 ......................................... 38.11096 ¥122.86468 6 * ....................................... 38.11027 ¥122.86551 7 * ....................................... 38.13001 ¥122.88749 8 ......................................... 38.13067 ¥122.88620 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. APPENDIX C TO SUBPART H OF PART 922—NORTHERN EXTENT OF TOMALES BAY For the purpose of § 922.82(a)(10)(ii), NOAA is codifying the northern geographical ex tent of Tomales Bay via a line running from Avalis Beach (Point 1) east to Sand Point (Point 2). Coordinates listed in this Appendix are unprojected (geographic) and based on the North American Datum of 1983. Point ID No. Tomales Bay Boundary Latitude Longitude 1 ......................................... 38.23165 ¥122.98148 2 ......................................... 38.23165 ¥122.96955 APPENDIX D TO SUBPART H OF PART 922—SPECIAL WILDLIFE PROTECTION ZONES WITHIN THE SANCTUARY Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983. (1) Special Wildlife Protection Zone 1 (SWPZ 1) encompasses an area of approxi mately 7.9 square nautical miles (10.5 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 1 extends south from Point 1, west of Haven’s Neck in Mendocino County, to Point 2, west of Del Mar Point. The boundary then extends east from Point 2 along a straight line arc con necting Point 2 and Point 3 until it inter sects the Mean High Water Line at Del Mar Point. The SWPZ 1 boundary then turns VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00153 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 144 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. H, App. D north to follow the Mean High Water Line towards Haven’s Neck and continues until it intersects a straight line arc connecting Point 4 and Point 5. From this intersection the Sanctuary boundary continues west along its northernmost extent to Point 5. Zone 1 Point ID No. Latitude Longitude 1 ......................................... 38.80865 ¥123.63227 2 ......................................... 38.74096 ¥123.54306 3 * ....................................... 38.74096 ¥123.51051 4 * ....................................... 38.80865 ¥123.60195 5 ......................................... 38.80865 ¥123.63227 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (2) Special Wildlife Protection Zone 2 (SWPZ 2) encompasses an area of approxi mately 16.2 square nautical miles (21.4 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 2 extends south and east from Point 1, south of Windermere Point in Sonoma County, to Point 2 and then to Point 3 in sequence. Point 3 is west of Duncans Point in Sonoma County. The boundary then extends east from Point 3 along a straight line arc con necting Point 3 and Point 4 until it inter sects the Mean High Water Line at Duncans Point. The boundary then turns north to fol low the Mean High Water Line towards Windermere Point until it intersects a straight line arc connecting Point 5 and Point 6. From this intersection the boundary continues due south along a straight line arc to Point 6. Zone 2 Point ID No. Latitude Longitude 1 ......................................... 38.49854 ¥123.26804 2 ......................................... 38.45095 ¥123.18564 3 ......................................... 38.39311 ¥123.12068 4 * ....................................... 38.39311 ¥123.09527 5 * ....................................... 38.52487 ¥123.26804 6 ......................................... 38.49854 ¥123.26804 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (3) Special Wildlife Protection Zone 3 (SWPZ 3) encompasses an area of approxi mately 7 square nautical miles (9.3 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 3 extends south and east from Point 1, southwest of the Estero de San Antonio in Sonoma Coun ty, to Point 2, south of Tomales Point in Marin County. The boundary then extends north and east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the boundary of the Point Reyes National Seashore. From this intersection the SWPZ 3 boundary follows the Point Reyes National Seashore boundary around Tomales Point into Tomales Bay and con tinues until it again intersects the straight line arc that connects Point 2 and Point 3. From this intersection the SWPZ 3 boundary follows the straight line arc north and east toward Point 3 until it intersects the Mean High Water Line at Toms Point in Tomales Bay. The SWPZ 3 boundary then follows the Mean High Water Line northward towards the Estero de San Antonio until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the Sanctuary boundary continues south and west to Point 5. Zone 3 Point ID No. Latitude Longitude 1 ......................................... 38.24001 ¥123.02963 2 ......................................... 38.19249 ¥122.99523 3 * ....................................... 38.21544 ¥122.95286 4 * ....................................... 38.27011 ¥122.97840 5 ......................................... 38.24001 ¥123.02963 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (4) Special Wildlife Protection Zone 4 (SWPZ 4) encompasses an area of approxi mately 10.2 square nautical miles (13.5 square miles). The precise boundary coordinates are list in the table following this description. The western boundary of SWPZ 4 extends south and west from Point 1, west of Point Reyes in Marin County, to Point 2, south and west of Point Reyes Lighthouse. The bound ary then follows a straight line arc east and south from Point 2 to Point 3. From Point 3 the boundary follows a straight line arc north to Point 4. From Point 4 the SWPZ 4 boundary proceeds west along the straight line arc that connects Point 4 and Point 5 until it intersects the Point Reyes National Seashore boundary north of Chimney Rock. The SWPZ 4 boundary then follows the Point Reyes National Seashore boundary around Point Reyes until it again intersects the straight line arc that connects Point 4 and Point 5 north of the Point Reyes Lighthouse. From this intersection the SWPZ 4 boundary turns seaward and continues west to Point 5. Zone 4 Point ID No. Latitude Longitude 1 ......................................... 38.01475 ¥123.05013 2 ......................................... 37.97536 ¥123.05482 3 ......................................... 37.96521 ¥122.93771 4 ......................................... 38.00555 ¥122.93504 5 ......................................... 38.01475 ¥123.05013 (5) Special Wildlife Protection Zone 5 (SWPZ 5) encompasses an area of approxi mately 14.8 square nautical miles (19.6 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 5 extends south and east from Point 1, near Millers VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00154 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 145 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. H, App. E Point in Marin County, to Point 2, which is south and west of Bolinas Point. The SWPZ 5 boundary then follows a straight line arc east from Point 2 towards Point 3 until it intersects the Mean High Water Line at Rocky Point. From this intersection, the SWPZ 5 boundary follows the Sanctuary boundary north to Bolinas Point and Millers Point, respectively, including Bolinas La goon but not including Seadrift Lagoon, until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the SWPZ 5 boundary turns sea ward and continues west and south along the straight line arc to Point 5. Zone 5 Point ID No. Latitude Longitude 1 ......................................... 37.96579 ¥122.83284 2 ......................................... 37.88195 ¥122.73989 3 * ....................................... 37.88195 ¥122.62873 4 * ....................................... 37.98234 ¥122.81513 5 ......................................... 37.96579 ¥122.83284 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (6) Special Wildlife Protection Zone 6 (SWPZ 6) encompasses an area of approxi mately 6.8 square nautical miles (9 square miles) and extends from the Mean High Water Line seaward to the SWPZ 6 bound ary. The precise boundary coordinates are listed in the table following this description. The boundary of SWPZ 6 extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5. Zone 6 Point ID No. Latitude Longitude 1 ......................................... 37.72976 ¥123.00961 2 ......................................... 37.69697 ¥123.04374 3 ......................................... 37.66944 ¥123.00176 4 ......................................... 37.70246 ¥122.96608 5 ......................................... 37.72976 ¥123.00961 (7) Special Wildlife Protection Zone 7 (SWPZ 7) encompasses an area of approxi mately 6 square nautical miles (7.9 square miles) and extends from the Mean High Water Line seaward to the SWPZ 7 bound ary. The precise boundary coordinates are listed in the table following this description. The boundary of SWPZ 7 extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5. Zone 7 Point ID No. Latitude Longitude 1 ......................................... 37.79568 ¥123.10845 2 ......................................... 37.76746 ¥123.13869 3 ......................................... 37.73947 ¥123.09341 4 ......................................... 37.76687 ¥123.06330 5 ......................................... 37.79568 ¥123.10845 APPENDIX E TO SUBPART H OF PART 922—CARGO VESSEL PROHIBITION ZONES IN THE SANCTUARY Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983. (1) Cargo Vessel Prohibition Zone 1 (CVPZ 1) is an area of approximately 20 square nau tical miles (26 square miles) immediately off shore of Anchor Bay. The precise boundary coordinates are listed in the table following this description. The western boundary of ex tends south and east from Point 1, north and west of Haven’s Neck, to Point 2, west and south of Del Mar Point. The CVPZ 1 bound ary then extends east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the Sanctuary boundary. The CVPZ 1 boundary then turns north to follow the Sanctuary boundary past Haven’s Neck and continues until it inter sects the straight line arc connecting Point 4 and Point 5. From this intersection the CVPZ 1 boundary continues west along its northernmost extent to Point 5. Zone 1 Point ID No. Latitude Longitude 1 ......................................... 38.82485 ¥123.68420 2 ......................................... 38.72330 ¥123.55145 3 * ....................................... 38.72330 ¥123.47658 4 * ....................................... 38.82485 ¥123.60953 5 ......................................... 38.82485 ¥123.68420 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (2) Cargo Vessel Prohibition Zone 2 (CVPZ 2) encompasses an area of approximately 30 square nautical miles (40 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 2 boundary extends south and east from Point 1, west of Windermere Point in Sonoma County, to Point 2 and then to Point 3 in sequence. Point 3 is west of Dun cans Point in Sonoma County. The CVPZ 2 boundary then extends east from Point 3 along a straight line arc connecting Point 3 and Point 4 until it intersects the Sanctuary boundary south of Duncans Point. The CVPZ 2 boundary then turns north to follow the Sanctuary boundary past Windermere Point until it intersects the straight line arc con necting Point 5 and Point 6. From this inter section the CVPZ 2 boundary continues due south along this straight line arc to Point 6. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00155 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 146 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. H, App. E Zone 2 Point ID No. Latitude Longitude 1 ......................................... 38.48995 ¥123.28994 2 ......................................... 38.43749 ¥123.19789 3 ......................................... 38.37614 ¥123.13153 4 * ....................................... 38.37614 ¥123.07843 5 * ....................................... 38.54099 ¥123.28994 6 ......................................... 38.48995 ¥123.28994 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (3) Cargo Vessel Prohibition Zone 3 (CVPZ 3) encompasses an area of approximately 17 square nautical miles (22 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 3 boundary extends south and east from Point 1, west of the Estero de San Antonio in Sonoma County, to Point 2, south of Tomales Point in Marin County. The CVPZ 3 boundary then extends north and east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it inter sects the Sanctuary boundary. From this intersection the CVPZ 3 boundary follows the Sanctuary boundary around Tomales Point into Tomales Bay and continues until it again intersects the straight line arc that connects Point 2 and Point 3. From this intersection the CVPZ 3 boundary follows the straight line arc north and east across Tomales Bay until it intersects the Sanc tuary boundary south of Toms Point in Tomales Bay. The CVPZ 3 boundary then fol lows the Sanctuary boundary northward past the Estero de San Antonio until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the boundary continues south and west to Point 5. Zone 3 Point ID No. Latitude Longitude 1 ......................................... 38.24496 ¥123.05698 2 ......................................... 38.16758 ¥123.00179 3 * ....................................... 38.21170 ¥122.92566 4 * ....................................... 38.28215 ¥122.99278 5 ......................................... 38.24496 ¥123.05698 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (4) Cargo Vessel Prohibition Zone 4 (CVPZ 4) encompasses an area of approximately 28 square nautical miles (37 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 4 boundary extends south and west from Point 1, west and north of Point Reyes in Marin County, to Point 2, south and west of Point Reyes Lighthouse. The CVPZ 4 boundary then follows a straight line arc east and south from Point 2 to Point 3. From Point 3 the CVPZ 4 boundary follows a straight line arc north to Point 4. From Point 4 the CVPZ 4 boundary proceeds west along the straight line arc that connects Point 4 and Point 5 until it intersects the Sanctuary boundary at Drakes Beach. The CVPZ 4 boundary then follows the Sanctuary boundary around Point Reyes until it again intersects the straight line arc that connects Point 4 and Point 5, north of the Point Reyes Lighthouse. From this intersection the CVPZ 4 boundary turns seaward and con tinues west to Point 5 along this arc. Zone 4 Point ID No. Latitude Longitude 1 ......................................... 38.03311 ¥123.06923 2 ......................................... 37.96053 ¥123.07801 3 ......................................... 37.94655 ¥122.91781 4 ......................................... 38.02026 ¥122.91261 5 ......................................... 38.03311 ¥123.06923 (5) Cargo Vessel Prohibition Zone 5 (CVPZ 5) encompasses an area of approximately 29 square nautical miles (39 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 5 boundary extends south and east from Point 1, west of Millers Point in Marin County, to Point 2, south and west of Bolinas Point. The CVPZ 5 boundary then follows a straight line arc east from Point 2 towards Point 3 until it intersects the Sanc tuary boundary. From this intersection, the CVPZ 5 boundary follows the Sanctuary boundary north towards Rocky Point and continues along the Sanctuary boundary past Bolinas Point and Millers Point, respec tively, including Bolinas Lagoon but not in cluding Seadrift Lagoon, until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the CVPZ 5 boundary turns seaward and con tinues west and south along the straight line arc to Point 5. Zone 5 Point ID No. Latitude Longitude 1 ......................................... 37.96598 ¥122.85997 2 ......................................... 37.86532 ¥122.74797 3 * ....................................... 37.86532 ¥122.63720 4 * ....................................... 37.99449 ¥122.82841 5 ......................................... 37.96598 ¥122.85997 Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordi nates are landward reference points used to draw a line seg ment that intersects with the shoreline. (6) Cargo Vessel Prohibition Zone 6 (CVPZ 6) encompasses an area of approximately 21 square nautical miles (28 square miles) sur rounding Southeast Farallon Island and ex tends from the Mean High Water Line to the CVPZ 6 boundary. The precise boundary co ordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00156 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 147 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. H, App. F a straight line arc to Point 4, then north and west along a straight line arc to Point 5. Zone 6 Point ID No. Latitude Longitude 1 ......................................... 37.75264 ¥123.01175 2 ......................................... 37.69461 ¥123.07333 3 ......................................... 37.64621 ¥122.99867 4 ......................................... 37.70538 ¥122.93567 5 ......................................... 37.75264 ¥123.01175 (7) Cargo Vessel Prohibition Zone 7 (CVPZ 7) encompasses an area of approximately 20 square nautical miles (26 square miles) sur rounding the North Farallon Islands and ex tends from the Mean High Water Line to the CVPZ 7 boundary. The precise boundary co ordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5. Zone 7 Point ID No. Latitude Longitude 1 ......................................... 37.81914 ¥123.11155 2 ......................................... 37.76497 ¥123.16939 3 ......................................... 37.71623 ¥123.09089 4 ......................................... 37.76872 ¥123.03359 5 ......................................... 37.81914 ¥123.11155 APPENDIX F TO SUBPART H OF PART 922—WHITE SHARK APPROACH PROHI BITION ZONES IN THE SANCTUARY Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983. (1) White Shark Approach Prohibition Zone 1 (WSAPZ 1) encompasses an area of ap proximately 21 square nautical miles (28 square miles) surrounding Southeast Farallon Island and extends from the Mean High Water Line to the WSAPZ 1 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5. Zone 1 Point ID No. Latitude Longitude 1 ......................................... 37.75264 ¥123.01175 2 ......................................... 37.69461 ¥123.07333 3 ......................................... 37.64621 ¥122.99867 4 ......................................... 37.70538 ¥122.93567 5 ......................................... 37.75264 ¥123.01175 (2) White Shark Approach Prohibition Zone 2 (WSAPZ 2) encompasses an area of ap proximately 20 square nautical miles (26 square miles) surrounding the North Farallon Islands and extends from the Mean High Water Line to the WSAPZ 2 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5. Zone 2 Point ID No. Latitude Longitude 1 ......................................... 37.81914 ¥123.11155 2 ......................................... 37.76497 ¥123.16939 3 ......................................... 37.71623 ¥123.09089 4 ......................................... 37.76872 ¥123.03359 5 ......................................... 37.81914 ¥123.11155 APPENDIX G TO SUBPART H OF PART 922—DESIGNATED AREA FOR CERTAIN UNITED STATES COAST GUARD DIS CHARGES Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83). The portion of the Greater Farallones Na tional Marine Sanctuary area [2015 expan sion area] where the exception for discharges from United States Coast Guard activities applies is defined as follows. Beginning with Point 1 identified in the coordinate table in this appendix, the boundary extends from Point 1 to Point 2 in a straight line arc, and continues from Point 2 to Point 3 in a straight line arc, and from Point 3 to Point 4 in a straight line arc. From Point 4 the boundary extends east and north along a straight line arc towards Point 5 until it intersects the fixed offshore boundary be tween the United States and California (ap proximately 3 NM seaward of the coast as de fined in United States vs. California, 135 S. Ct. 563 (2014)). The boundary then extends north ward following the fixed offshore boundary between the United States and California until it intersects the line segment formed between Point 6 and Point 7. From this intersection, the boundary extends west along the northern boundary of Greater Farallones National Marine Sanctuary to Point 7 where it ends. Point No. Latitude Longitude 1 ......................................... 39.00000 ¥124.33350 2 ......................................... 38.29989 ¥123.99988 3 ......................................... 38.29989 ¥123.20005 4 ......................................... 38.26390 ¥123.18138 5 1 ....................................... 38.29896 ¥123.05989 6 1 ....................................... 39.00000 ¥123.75777 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00157 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 148 15 CFR Ch. IX (1–1–21 Edition) § 922.90 Point No. Latitude Longitude 7 ......................................... 39.00000 ¥124.33350 1 These coordinates are not a part of the boundary for the Designated Area for Certain United States Coast Guard Dis charges. These coordinates are reference points used to draw line segments that intersect with the fixed offshore boundary between the United States and California. [83 FR 55966, Nov. 9, 2018] Subpart I—Gray’s Reef National Marine Sanctuary SOURCE: 71 FR 60063, Oct. 12, 2006, unless otherwise noted. § 922.90 Boundary. The Gray’s Reef National Marine Sanctuary (Sanctuary) consists of ap proximately 16.68 square nautical miles of ocean waters and the submerged lands thereunder, off the coast of Geor gia. The Sanctuary boundary includes all waters and submerged lands within the geodetic lines connecting the fol lowing coordinates: Datum: NAD83 Geographic Coordinate System (1) N 31.362732 degrees W 80.921200 de grees (2) N 31.421064 degrees W 80.921201 de grees (3) N 31.421064 degrees W 80.828145 de grees (4) N 31.362732 degrees W 80.828145 de grees (5) N 31.362732 degrees W 80.921200 de grees § 922.91 Definitions. In addition to those definitions found at § 922.3, the following definitions apply to this subpart: Handline means fishing gear that is set and pulled by hand and consists of one vertical line to which may be at tached leader lines with hooks. Rod and reel means a rod and reel unit that is not attached to a vessel, or, if attached, is readily removable, from which a line and attached hook(s) are deployed. The line is payed out from and retrieved on the reel manu ally or electrically. Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulk head, tied down, unbaited, unloaded, partially disassembled, or stowed for transit. § 922.92 Prohibited or otherwise regu lated activities—Sanctuary-wide. (a) Except as specified in paragraphs (b) through (d) of this section and in § 922.94 regarding additional prohibi tions in the research area, the fol lowing activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: (1) Dredging, drilling into, or other wise altering in any way the sub merged lands of the Sanctuary (includ ing bottom formations). (2) Constructing any structure other than a navigation aid, or constructing, placing, or abandoning any structure, material, or other matter on the sub merged lands of the Sanctuary except weighted marker buoys that are con tinuously tended and used during oth erwise lawful fishing or diving activi ties and that are not attached to a ves sel and not capable of holding a boat at anchor. Weights used with a marker buoy shall not have a combined weight of more than 10 pounds, shall be at tached with not greater than one fourth inch (1⁄4″) line and shall be re moved from the Sanctuary within twelve (12) hours of deployment. Any weighted marker buoy that is not con tinuously tended may be removed by the Assistant Administrator or des ignee or an authorized officer, without notice. (3) Discharging or depositing any ma terial or other matter except: (i) Fish or fish parts, bait, or chum ming materials; (ii) Effluent from marine sanitation devices; and (iii) Vessel cooling water. (4) Operating a watercraft other than in accordance with the Federal rules and regulations that would apply if there were no Sanctuary. (5)(i) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead, within the Sanctuary by any means except by use of rod and reel, and handline gear; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00158 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 149 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.93 (ii) There shall be a rebuttable pre sumption that any marine organism or part thereof referenced in this para graph found in the possession of a per son within the Sanctuary has been col lected from the Sanctuary. (6) Using any fishing gear within the Sanctuary except rod and reel, and handline gear, or for law enforcement purposes. (7) Using underwater any explosives, or devices that produce electric charges underwater. (8) Breaking, cutting, damaging, tak ing, or removing any bottom forma tion. (9) Moving, removing, damaging, or possessing, or attempting to move, re move, damage, or possess, any Sanc tuary historical resource. (10) Anchoring, or attempting to an chor, any vessel in the Sanctuary, ex cept as provided in paragraph (d) of this section when responding to an emergency threatening life, property, or the environment. (11) Possessing or carrying any fish ing gear within the Sanctuary except: (i) Rod and reel, and handline gear; (ii) Fishing gear other than rod and reel, handline gear, and spearfishing gear, provided that it is stowed on a vessel and not available for immediate use; (iii) Spearfishing gear provided that it is stowed on a vessel, not available for immediate use, and the vessel is passing through the Sanctuary without interruption; and (iv) For law enforcement purposes. (b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this sec tion and § 922.94. The exemption of ad ditional activities having significant impacts shall be determined in con sultation between the Director and the Department of Defense. (c) The prohibitions in this section and in § 922.94 do not apply to any ac tivity conducted under and in accord ance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.93. (d) The prohibitions in this section and in § 922.94 do not apply to any ac tivity necessary to respond to an emer gency threatening life, property, or the environment. [76 FR 63832, Oct. 14, 2011, as amended at 79 FR 41881, July 18, 2014] § 922.93 Permit procedures and cri teria. (a) A person may conduct an activity prohibited by § 922.92(a)(1) through (10) and § 922.94 if conducted in accordance within the scope, purpose, manner, terms and conditions of a permit issued under this section and § 922.48. (b) Applications for such permits should be addressed to the Director, National Marine Sanctuary Program, ATTN: Manager, Gray’s Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411. (c) The Director, at his or her discre tion may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an ac tivity prohibited by § 922.92(a)(1) through (10). The Director must also find that the activity will: (1) Further research related to the re sources and qualities of the Sanctuary; (2) Further the educational, natural, or historical resource value of the Sanctuary; (3) Further salvage or recovery oper ations in connection with a recent air or marine casualty; or (4) Assist in managing the Sanc tuary. (d) The Director shall not issue a per mit unless the Director also finds that: (1) The applicant is professionally qualified to conduct and complete the proposed activity; (2) The applicant has adequate finan cial resources available to conduct and complete the proposed activity; (3) The duration of the proposed ac tivity is no longer than necessary to achieve its stated purpose; (4) The methods and procedures pro posed by the applicant are appropriate to achieve the proposed activity’s goals in relation to the activity’s impacts on Sanctuary resources and qualities; (5) The proposed activity will be con ducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, con sidering the extent to which the con duct of the activity may diminish or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00159 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 150 15 CFR Ch. IX (1–1–21 Edition) § 922.94 enhance Sanctuary resources and qualities, any indirect, secondary or cumulative effects of the activity, and the duration of such effects; (6) The proposed activity will be con ducted in a manner compatible with the value of the Sanctuary as a source of recreation, or as a source of edu cational or scientific information con sidering the extent to which the con duct of the activity may result in con flicts between different users of the Sanctuary, and the duration of such ef fects; (7) It is necessary to conduct the pro posed activity within the Sanctuary to achieve its purposes; (8) The reasonably expected end value of the activity to the furtherance of Sanctuary goals and purposes out weighs any potential adverse impacts on Sanctuary resources and qualities from the conduct of the activity; and (9) There are no other factors that make the issuance of a permit for the activity inappropriate. (e) It shall be a condition of any per mit issued that the permit or a copy thereof be displayed on board all ves sels or aircraft used in the conduct of the activity. (f) The Director shall, inter alia, make it a condition of any permit issued that any data or information ob tained under the permit be made avail able to the public. (g) The Director may, inter alia, make it a condition of any permit issued to require the submission of one or more reports of the status and progress of such activity. (h) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the per mit holder submit one or more reports on the status, progress or results of any activity authorized by the permit. [71 FR 60063, Oct. 12, 2006, as amended at 76 FR 63832, Oct. 14, 2011] § 922.94 Prohibited or otherwise regu lated activities—Research area. In addition to the prohibitions set out in § 922.92, which apply throughout the Sanctuary, the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within the research area de scribed in Appendix A to this subpart. (a)(1) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead. (2) There shall be a rebuttable pre sumption that any marine organism or part thereof referenced in this para graph found in the possession of a per son within the research area has been collected from the research area. (b) Using any fishing gear, or pos sessing, or carrying any fishing gear unless such gear is stowed and not available for immediate use while on board a vessel transiting through the research area without interruption or for valid law enforcement purposes. (c) Diving. (d) Stopping a vessel in the research area. [76 FR 63832, Oct. 14, 2011] APPENDIX A TO SUBPART I OF PART 922— BOUNDARY COORDINATES FOR THE GRAY’S REEF NATIONAL MARINE SANCTUARY RESEARCH AREA [Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.] The research area boundary is defined by the coordinates provided in Table 1 and the following textual description. The research area boundary extends from Point 1, the southwest corner of the sanctuary, to Point 2 along a straight line following the western boundary of the Sanctuary. It then extends along a straight line from Point 2 to Point 3, which is on the eastern boundary of GRNMS. The boundary then follows the eastern boundary line of the sanctuary southward until it intersects the line of the southern boundary of GRNMS at Point 4, the south eastern corner of the sanctuary. The last straight line is defined by connecting Point 4 and Point 5, along the southern boundary of the GRNMS. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00160 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 151 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.101 TABLE 1—COORDINATES FOR THE RESEARCH AREA Point ID Latitude (north, in degrees) Longitude (west, in degrees) 1 ................................................................................................ N 31.362732 W 80.921200 2 ................................................................................................ N 31.384444 W 80.921200 3 ................................................................................................ N 31.384444 W 80.828145 4 ................................................................................................ N 31.362732 W 80.828145 5 ................................................................................................ N 31.362732 W 80.921200 [76 FR 63832, Oct. 14, 2011] Subpart J—National Marine Sanctuary of American Samoa SOURCE: 77 FR 43962, July 26, 2012, unless otherwise noted. § 922.100 Scope of regulations. The provisions of this subpart J apply only to the waters of the United States and the Territory of American Samoa that are located within the boundary of the National Marine Sanc tuary of American Samoa (Sanctuary). Neither the provisions of this subpart J nor any permit issued under its author ity shall be construed to relieve a per son from any other requirements im posed by statute or regulation of the Territory of American Samoa or of the United States. In addition, no statute or regulation of the Territory of Amer ican Samoa shall be construed to re lieve a person from the restrictions, conditions, and requirements contained in this subpart J. § 922.101 Boundary. The Sanctuary is comprised of six distinct units, forming a network of marine protected areas around the is lands of the Territory of American Samoa. Tables containing the exact co ordinates of each point described below can be found in Appendix to Subpart J—National Marine Sanctuary of American Samoa Boundary Coordi nates. (a) Fagatele Bay Unit. The Fagatele Bay Unit is a 163-acre (0.25 sq. mi.) coastal embayment formed by a col lapsed volcanic crater on the island of Tutuila, Territory of American Samoa, and includes Fagatele Bay in its en tirety. The landward boundary is de fined by the mean higher high water line of Fagatele Bay until the point at which it intersects the seaward bound ary of the Sanctuary as defined by a straight line between Fagatele Point (¥14.36527, ¥170.76932) and Steps Point (¥14.37291, ¥170.76056) from the point at which it intersects the mean higher high water line seaward. (b) Fagalua/Fogama’a Unit. The land ward boundary of the Fagalua/ Fogama’a Unit is defined by the mean higher high water line of Fagalua/ Fogama’a until the point at which it intersects the seaward boundary of the Fagalua/Fogama’a Unit as defined by a straight line between Steps Point (¥14.37307, ¥170.75852) and Sail Rock Point (¥14.36534, ¥170.74119) from the point at which it intersects the mean higher high water line seaward. (c) Aunu’u Unit. The Aunu’u Unit is comprised of two adjacent zones. (1) Zone A. The Aunu’u Unit bound ary for Zone A is defined by the coordi nates provided in Table 1 and the fol lowing textual description. The Zone A boundary extends from Point 1, the northwest corner of the unit, south ward to Point 2 along a straight line following the western boundary of the unit, which is aligned with Taugamalama Point on Tutuila. It then extends northeastward in a multi part line along the deepest seaward edge of Nafanua Bank from Point 2 to Point 3 and then to Point 4, which lies on the southern boundary of Zone B. The boundary then follows a straight line westward towards Point 5 until it intersects the mean higher high water line at the southern tip of Ma’ama’a Cove. The landward boundary of Zone A is defined by the mean higher high water line from this intersection point at the southern tip of Ma’ama’a Cove to the intersection of the mean higher high water line and the straight line between Point 6 and Point 7 at Salevatia Point. From this intersec tion point at Salevatia Point, the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00161 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 152 15 CFR Ch. IX (1–1–21 Edition) § 922.101 boundary extends straight west to Point 7, which has the exact same co ordinates as Point 1. (2) Zone B. The Aunu’u Unit bound ary for Zone B is defined by the coordi nates provided in Table 2 and the fol lowing textual description. The Zone B boundary extends from Point 1, the northeast corner of the unit, southward along a straight line following the eastern boundary of the unit to Point 2, which is on the southern boundary of the unit. The southern boundary then follows a line westward towards Point 3 until it intersects the mean higher high water line at the southern tip of Ma’ama’a Cove Point. The landward boundary of Zone B is defined by the mean higher high water line from this intersection point at the southern tip of Ma’ama’a Cove around the volcanic crater to the intersection of the mean higher high water line and the straight line between Point 4 and Point 5. From here, the boundary extends seaward straight north to Point 5. The northern border, the last straight line, is defined by connecting Point 5 and Point 6, along the northern boundary of the unit, which is aligned with Matuli Point on Tutuila. Point 6 has the exact same coordinates at Point 1. (d) Swains Island Unit. The Swains Is land Unit boundary is defined by the coordinates in Table 3 and the fol lowing textual description. The sea ward boundary of the Swains Island Unit approximates the three nautical mile territorial sea boundary from the mean higher high water line (shoreline) of the island. The seaward boundary begins south of the island at Point 1 and continues initially to the west in sequential order clockwise around the island to Point 33. The landward boundary of the Swains Island Unit is the mean higher high water line and begins on the northern shoreline of the island and follows the shoreline coun terclockwise initially to the west until it intersects the line segment between Point 34 and 35. From this intersection the boundary continues offshore to the northwest to Point 35 and then to Point 36 and Point 37. From Point 37 the boundary continues east-northeast towards Point 38 until it intersects the shoreline. From this intersection the boundary follows the shoreline south east around the southernmost part of the island and then to the northeast until it intersects the line segment be tween Point 39 and Point 40. From this intersection the boundary continues offshore to the southeast to Point 40 and then to the northeast to Point 41. From Point 41 the boundary continues to the northwest towards Point 42 until it intersects the shoreline. From this intersection the boundary follows the shoreline initially to the northeast around the island counterclockwise and then to the northwest back to where it began on the northern shore line. (e) Muliāva Unit. The Muliāva Unit boundary is defined by the coordinates provided in Table 4 and the following textual description. The landward boundary of the Muliāva Unit is the ex treme low water line, which adjoins the boundary of the Rose Atoll National Wildlife Refuge. The Muliāva Unit sea ward boundary extends from Point 1, the southwest corner of the unit, to Point 2 along a straight line northward following the western boundary of the unit. From Point 2, the line extends in a straight line westward to Point 3. It then extends along a straight line northward to Point 4. From Point 4, the line extends in a straight line east ward to Point 5. From Point 5, the line extends along a straight line north ward to Point 6. It then extends along a straight line eastward from Point 6 to Point 7, which is on the eastern boundary of the unit. The boundary then follows a straight line southward until it intersects the line of the south ern boundary of the unit at Point 8, the southeastern corner of the unit. The last straight line is defined by con necting Point 8 and Point 9, which has the exact same coordinates as Point 1, along the southern boundary of the unit. (f) Ta’u Unit. The Ta’u Unit boundary is defined by the coordinates provided in Table 5 and the following textual de scription. The Ta’u Unit boundary ex tends from Point 1, Vaita Point, along the mean higher high water line south ward along the western coast to Point 2, Si’ufa’alele Point. From Point 2, the boundary extends offshore 0.25 miles to Point 3 to become conterminous with the offshore boundary of the National VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00162 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 153 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.103 Park of American Samoa. From Point 3 the boundary continues to follow the coastline 0.25 miles offshore until it reaches Point 4, which is directly south of Si’u Point. From Point 4, the bound ary extends due south to Point 5. From Point 5, the boundary extends due west to Point 6, forming the southern border of the unit. From Point 6, the boundary extends due north until it reaches Point 7, directly west and one mile off shore from Point 8, which is Point 1, also known as Vaita Point. [77 FR 43962, July 26, 2012, as amended at 80 FR 79683, Dec. 23, 2015] § 922.102 Definitions. In addition to those definitions found at § 922.3, the following definitions apply to this subpart: Clean means not containing detect able levels of harmful matter. Fishing means the catching, taking, or harvesting of marine species; the at tempted catching, taking, or har vesting of marine species; any other ac tivity which can reasonably be ex pected to result in the catching, tak ing, or harvesting of marine species; or any operation at sea in support of, or in preparation for, any activity de scribed in this definition. Harmful matter means any substance, or combination of substances that, be cause of its quantity, concentration, or physical, chemical, or infectious char acteristics, may pose a present or po tential threat to Sanctuary resources or qualities, including but not limited to: fishing nets, fishing line, hooks, fuel, oil, and those contaminants (re gardless of quantity) listed at 40 CFR 302.4 pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Re sponse, Compensation, and Liability Act. Introduced species means any species (including, but not limited to, any of its biological matter capable of propa gation) that is nonnative to the eco system(s) protected by the Sanctuary; or any organism into which altered ge netic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes. Live rock means any Coral, basalt rock, or other natural structure with any living organisms growing in or on the Coral, basalt rock, or structure. Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulk head, tied down, unbaited, unloaded, or partially disassembled (such as spear shafts being kept separate from spear guns). § 922.103 Prohibited or otherwise reg ulated activities—Sanctuary-wide. (a) The following activities are pro hibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: (1) Introducing or releasing intro duced species from within or into the sanctuary. (2) Anchoring a vessel. (3) Deserting a vessel aground, adrift, or at anchor. (4) Leaving harmful matter on an abandoned or deserted vessel or struc ture. (5) Operating a vessel at a speed ex ceeding three knots when closer than 200 feet (60.96 meters) of another vessel displaying a dive flag. (6) Operating a vessel in a manner which causes the vessel to strike or otherwise cause damage to Sanctuary resources. (7) Diving, snorkeling, or conducting diving or snorkeling operations from a vessel not in compliance with applica ble U.S. Coast Guard navigation rules governing the display of lights and sig nals, and not flying in a conspicuous manner the international code flag alpha ‘‘A’’ or the standard red-and white U.S. ‘‘diver down’’ flag. (8) Discharging, or depositing from within or into the Sanctuary, any ma terial or other matter, except clean vessel deck wash down, clean vessel en gine cooling water, clean vessel gener ator cooling water, clean bilge water, anchor wash, or vessel engine or gener ator exhaust. (9) Discharging or depositing from be yond the boundary of the Sanctuary any material or other matter that sub sequently enters the Sanctuary and in jures a Sanctuary resource or quality, except those listed in paragraph (a)(8) of this section and § 922.105(c). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00163 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 154 15 CFR Ch. IX (1–1–21 Edition) § 922.104 (10) Sand mining, dredging, filling, dynamiting, or otherwise disturbing or altering the seabed. (11) Removing, damaging, or tam pering with any historical or cultural resource. (12) Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amend ed, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (13) Using or discharging explosives or weapons of any description. Distress signaling devices, necessary and proper for safe vessel operation, and knives generally used by fishermen and swim mers shall not be considered weapons for purposes of this section. (14) Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or per manent, or with any monuments, stakes, posts, or other boundary mark ers related to the Sanctuary. (15) Abandoning a structure, mate rial, or other matter on or in the sub merged lands of the Sanctuary. (b) The prohibitions in paragraphs (a)(1) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary for national de fense. (c) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment. (d) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary for valid law en forcement purposes in the Sanctuary. (e) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursu ant to 15 CFR 922.48 and 922.107. § 922.104 Prohibited or otherwise reg ulated activities—Sanctuary-wide except in the Muliāva Unit. (a) The following activities are pro hibited and thus are unlawful for any person to conduct or to cause to be conducted within any unit of the Sanc tuary except the Muliāva Unit: (1) Gathering, taking, breaking, cut ting, damaging, destroying, or pos sessing any giant clam [Tridacna spp.], live coral, bottom formation including live rock and crustose coralline algae. (2) Possessing or using poisons, elec trical charges, explosives, or similar environmentally destructive methods of fishing or harvesting. (3) Possessing or using spearguns, in cluding such devices known as Hawai ian slings, pole spears, arbalettes, pneumatic and spring-loaded spearguns, bows and arrows, bang sticks, or any similar taking device while utilizing SCUBA equipment. (4) Possessing or using a seine, tram mel, drift gill net, or any type of fixed net. (5) Disturbing the benthic commu nity by bottom trawling. (b) There shall be a rebuttable pre sumption that any items listed in para graph (a) of this section found in the possession of a person within the Sanc tuary have been used, collected, or re moved within or from the Sanctuary. § 922.105 Prohibited or otherwise reg ulated activities—Unit-specific. In addition to the prohibitions set forth in § 922.103 and § 922.104, the fol lowing regulations apply to activities conducted within specified Sanctuary units described in the appendix to this subpart. (a) The following activities are pro hibited in the Fagatele Bay Unit: (1) Harvesting, catching, removing, taking, injuring, destroying, col lecting, moving, possessing or causing the loss of any Sanctuary resource, in cluding but not limited to fishing, or attempting any of these activities. (2) Possessing fishing gear unless such gear is stowed and not available for immediate use. (b) The following activities are pro hibited in the Aunu’u Unit: (1) In Zone A: Fishing from a vessel without providing notification to the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00164 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 155 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.107 Sanctuary Superintendent or his/her designee in the village of Aunu’u prior to each fishing trip. (2) In Zone B: (i) Fishing for bottom-dwelling spe cies or otherwise harvesting, catching, removing, taking, injuring, destroying, collecting, moving, or causing the loss of any bottom-dwelling species, or at tempting any of these activities. Sur face fishing for pelagic species, includ ing trolling, is allowed. (ii) Disturbing the benthic commu nity. (iii) Possessing any Sanctuary re source, except legally harvested fish on board a vessel. (c) In the Muliāva Unit: (1) The prohibitions in paragraphs (a)(2) through (7) and (a)(9) through (15) of § 922.103 do not apply to scientific ex ploration or research activities con ducted by or for the Department of Commerce or the Department of the In terior. (2) Notwithstanding the prohibition in § 922.103(a)(8), the following vessels may discharge treated waste from a U.S. Coast Guard approved Type I, II, or III Marine Sanitation device 12 nau tical miles seaward of the Rose Atoll National Wildlife Refuge: (i) Vessels engaged in scientific ex ploration or research activities con ducted by or for the Department of Commerce or the Department of the In terior; or (ii) All other vessels engaged in sci entific exploration or research activi ties, if authorized under a permit issued in consultation with the U.S. Fish and Wildlife Service and in ac cordance with § 922.48 and § 922.107. § 922.106 Management and enforce ment. The National Oceanic and Atmos pheric Administration (NOAA) has pri mary responsibility for the manage ment of the Sanctuary pursuant to the Act. The American Samoa Department of Commerce (ASDOC) will assist NOAA in the administration of the Sanctuary, and act as the lead terri torial agency, in conformance with the terms of designation, these regula tions, and the terms and provisions of any grant or cooperative agreement. § 922.107 Permit procedures and cri teria. (a) Any person in possession of a valid permit issued by the Director, in consultation with the ASDOC, in ac cordance with this section and § 922.48, may conduct an activity otherwise pro hibited by § 922.103, § 922.104, and § 922.105 in the Sanctuary if such activ ity is judged not to cause long-term or irreparable harm to the resources of the Sanctuary, and is: (1) Related to research involving Sanctuary resources designed to en hance understanding of the Sanctuary environment or to improve resource management decisionmaking; (2) Intended to further the edu cational value of the Sanctuary and thereby enhance understanding of the Sanctuary environmental or improve resource management decisionmaking; (3) Intended to further the manage ment of the Sanctuary; or (4) For salvage or recovery oper ations. (b) Permit applications shall be ad dressed to the Director, Office National Marine Sanctuaries; ATTN: Sanctuary Superintendent, American Samoa Na tional Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 96799. (c) In considering whether to grant a permit, the Director shall evaluate such matters as: (1) The general professional and fi nancial responsibility of the applicant; (2) The appropriateness of the meth ods being proposed for the purpose(s) of the activity; (3) The extent to which the conduct of any permitted activity may dimin ish or enhance the value of the Sanc tuary as a source of recreation, edu cation, or scientific information; and (4) The end value of the activity. (d) In addition to meeting the cri teria in this section and § 922.48, the ap plicant also must demonstrate to the Director that: (1) The activity shall be conducted with adequate safeguards for the envi ronment; and (2) The environment shall be re turned to, or will regenerate to, the condition which existed before the ac tivity occurred. (e) The Director may, at his or her discretion, grant a permit which has VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00165 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 156 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. J, App. been applied for pursuant to this sec tion, in whole or in part, and subject the permit to such condition(s) as he or she deems necessary. APPENDIX TO SUBPART J OF PART 922— AMERICAN SAMOA NATIONAL MARINE SANCTUARY BOUNDARY COORDI NATES [Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.] (a) Fagatele Bay No coordinates are needed in addition to those described in § 922.101(a). (b) Fagalua/Fogama’a No coordinates are needed in addition to those described in § 922.101(b). (c) Aunu’u (Zones A, B) The Aunu’u Unit is comprised of two adja cent zones, described in § 922.101(c), for which the point coordinates are provided in fol lowing tables 1 and 2. TABLE 1—COORDINATES FOR THE AUNU’U UNIT, ZONE A Point ID Latitude (south) Longitude (west) 1 ............................ ¥14.286 ¥170.577 2 ............................ ¥14.304 ¥170.577 3 ............................ ¥14.302 ¥170.566 4 ............................ ¥14.286 ¥170.533 5 ............................ ¥14.286 ¥170.546 6 ............................ ¥14.286 ¥170.562 7 ............................ ¥14.286 ¥170.577 TABLE 2—COORDINATES FOR THE AUNU’U UNIT, ZONE B Point ID Latitude (south) Longitude (west) 1 ............................ ¥14.270 ¥170.496 2 ............................ ¥14.286 ¥170.496 3 ............................ ¥14.286 ¥170.546 4 ............................ ¥14.280 ¥170.550 5 ............................ ¥14.270 ¥170.550 6 ............................ ¥14.270 ¥170.496 (d) Swains Island The Swains Island Unit boundary is de fined by the coordinates provided in Table 3 and the textual description in § 922.101(d). TABLE 3—COORDINATES FOR THE SWAINS ISLAND UNIT Point ID Latitude (south) Longitude (west) 1 ............................ ¥11.11457 ¥171.06870 2 ............................ ¥11.11565 ¥171.07980 TABLE 3—COORDINATES FOR THE SWAINS ISLAND UNIT—Continued Point ID Latitude (south) Longitude (west) 3 ............................ ¥11.11422 ¥171.09248 4 ............................ ¥11.11005 ¥171.10445 5 ............................ ¥11.10388 ¥171.11445 6 ............................ ¥11.09533 ¥171.12392 7 ............................ ¥11.08375 ¥171.13272 8 ............................ ¥11.07268 ¥171.13775 9 ............................ ¥11.06112 ¥171.14042 10 .......................... ¥11.04880 ¥171.14067 11 .......................... ¥11.03618 ¥171.13800 12 .......................... ¥11.02673 ¥171.13367 13 .......................... ¥11.01853 ¥171.12773 14 .......................... ¥11.01010 ¥171.11828 15 .......................... ¥11.00402 ¥171.10710 16 .......................... ¥11.00083 ¥171.09728 17 .......................... ¥10.99817 ¥171.08305 18 .......................... ¥10.99783 ¥171.06825 19 .......................... ¥10.99983 ¥171.05732 20 .......................... ¥11.00373 ¥171.04790 21 .......................... ¥11.00955 ¥171.03862 22 .......................... ¥11.01752 ¥171.02985 23 .......................... ¥11.02703 ¥171.02290 24 .......................... ¥11.03763 ¥171.01805 25 .......................... ¥11.04812 ¥171.01558 26 .......................... ¥11.05860 ¥171.01527 27 .......................... ¥11.06860 ¥171.01695 28 .......................... ¥11.07957 ¥171.02133 29 .......................... ¥11.08850 ¥171.02727 30 .......................... ¥11.09637 ¥171.03502 31 .......................... ¥11.10637 ¥171.04840 32 .......................... ¥11.11122 ¥171.05753 33 .......................... ¥11.11457 ¥171.06870 34 .......................... ¥11.05188 ¥171.08921 35 .......................... ¥11.04856 ¥171.09269 36 .......................... ¥11.05487 ¥171.09445 37 .......................... ¥11.06024 ¥171.09283 38 .......................... ¥11.05848 ¥171.08824 39 .......................... ¥11.06369 ¥171.07618 40 .......................... ¥11.06741 ¥171.07364 41 .......................... ¥11.06217 ¥171.06622 42 .......................... ¥11.05836 ¥171.06879 (e) Muliāva The Muliāva Unit boundary is defined by the coordinates provided in Table 4 and the textual description in § 922.101(e). TABLE 4—COORDINATES FOR THE MULIĀVA UNIT Point ID Latitude (south) Longitude (west) 1 ............................ ¥15.387 ¥169.012 2 ............................ ¥14.271 ¥169.012 3 ............................ ¥14.271 ¥169.121 4 ............................ ¥14.150 ¥169.121 5 ............................ ¥14.150 ¥169.012 6 ............................ ¥13.698 ¥169.012 7 ............................ ¥13.698 ¥167.283 8 ............................ ¥15.387 ¥167.283 9 ............................ ¥15.387 ¥169.012 (f) Ta’u Unit The Ta’u Unit boundary is defined by the coordinates provided in Table 5 and the tex tual description in § 922.101(f). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00166 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 157 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.112 TABLE 5—COORDINATES FOR THE TA’U UNIT Point ID Latitude (south) Longitude (west) 1 ......................... ¥14.24889 ¥169.503056 2 ......................... ¥14.273056 ¥169.488056 3 ......................... ¥14.277222 ¥169.488056 4 ......................... ¥14.261111 ¥169.429167 5 ......................... ¥14.293889 ¥169.429167 6 ......................... ¥14.293889 ¥169.519722 7 ......................... ¥14.24889 ¥169.519722 8 ......................... ¥14.24889 ¥169.503056 [80 FR 79683, Dec. 23, 2015] Subpart K—Cordell Bank National Marine Sanctuary SOURCE: 80 FR 13115, Mar. 12, 2015, unless otherwise noted. § 922.110 Boundary. The Cordell Bank National Marine Sanctuary (Sanctuary) boundary en compasses a total area of approxi mately 971 square nautical miles (1,286 square miles) of offshore ocean waters, and submerged lands thereunder, sur rounding the submarine plateau known as Cordell Bank along-the northern coast of California, approximately 45 nautical miles west-northwest of San Francisco, California. The precise boundary coordinates are listed in ap pendix A to this subpart. The northern boundary of the Sanctuary is a rhumb line that begins approximately 6 nau tical miles (7 miles) west of Bodega Head in Sonoma County, California at Point 1 and extends west approxi mately 38 nautical miles (44 miles) to Point 2. This line is part of a shared boundary between the Sanctuary and Greater Farallones National Marine Sanctuary (GFNMS). The western boundary of the Sanctuary extends south from Point 2 approximately 34 nautical miles (39 miles) to Point 3. From Point 3 the Sanctuary boundary continues east 15 nautical miles (17 miles) to Point 4 where it intersects the GFNMS boundary again. The line from Point 3 to Point 4 forms the southernmost boundary of the Sanc tuary. The eastern boundary of the Sanctuary is a series of straight lines connecting Points 4 through 20 in nu merical sequence. The Sanctuary is co terminous with GFNMS along both its (the Sanctuary’s) eastern and northern boundaries. [80 FR 13115, Mar. 12, 2015, as amended at 80 FR 34048, June 15, 2015] § 922.111 Definitions. In addition to the definitions found in § 922.3, the following definitions apply to this subpart: Clean means not containing detect able levels of harmful matter. Cruise ship means a vessel with 250 or more passenger berths for hire. Harmful matter means any substance, or combination of substances, that be cause of its quantity, concentration, or physical, chemical, or infectious char acteristics may pose a present or po tential threat to Sanctuary resources or qualities, including but not limited to: fishing nets, fishing line, hooks, fuel, oil, and those contaminants (re gardless of quantity) listed pursuant to title 42 of the United States Code. Introduced species means any species (including, but not limited to, any of its biological matter capable of propa gation) that is non-native to the eco systems of the Sanctuary; or any orga nism into which altered genetic mat ter, or genetic matter from another species, has been transferred in order that the host organism acquires the ge netic traits of the transferred genes. § 922.112 Prohibited or otherwise reg ulated activities. (a) The following activities are pro hibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: (1) Exploring for, developing, or pro ducing oil, gas, or minerals. (2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except: (A) Fish, fish parts, chumming mate rials, or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such dis charge or deposit is during the conduct of lawful fishing activity within the Sanctuary; (B) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient hold ing tank capacity to hold sewage while within the Sanctuary, clean effluent VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00167 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 158 15 CFR Ch. IX (1–1–21 Edition) § 922.112 generated incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in ac cordance with section 312 of the Fed eral Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322. Ves sel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of un treated sewage; (C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash; (D) For a vessel less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA; (E) Vessel engine or generator ex haust; or (F) For a United States Coast Guard vessel without sufficient holding tank capacity and without a Type I or II ma rine sanitation device, and operating within the designated area [2015 expan sion area] defined in appendix C of this subpart, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to vessel use, and ammunition, pyrotech nics or other materials directly related to search and rescue and live ammuni tion training activities conducted by United States Coast Guard vessels and aircraft in the designated areas defined in appendix C of this subpart. (ii) Discharging or depositing from within or into the Sanctuary any ma terial or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator ex haust, clean bilge water, or anchor wash. (iii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that sub sequently enters the Sanctuary and in jures a Sanctuary resource or quality, except as listed in paragraphs (a)(2)(i) and (ii) of this section. (3) On or within the line representing the 50-fathom isobath surrounding Cordell Bank, removing, taking, or in juring or attempting to remove, take, or injure benthic invertebrates or algae located on Cordell Bank. This prohibi tion does not apply to use of bottom contact gear used during fishing activi ties, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). The coordinates for the line representing the 50-fathom isobath are listed in appendix B to this subpart, and the 50-fathom isobath is approxi mated by connecting these coordinates with straight line arcs in numerical se quence from Point 1 to Point 15. There is a rebuttable presumption that any such resource found in the possession of a person within the Sanctuary was taken or removed by that person. (4)(i) On or within the line rep resenting the 50-fathom isobath sur rounding Cordell Bank, drilling into, dredging, or otherwise altering the sub merged lands; or constructing, placing, or abandoning any structure, material or other matter on or in the submerged lands. This prohibition does not apply to use of bottom contact gear used dur ing fishing activities, which is prohib ited pursuant to 50 CFR part 660 (Fish eries off West Coast States). The co ordinates for the line representing the 50-fathom isobath are listed in appen dix B to this subpart, and the 50-fath om isobath is approximated by con necting these coordinates with straight line arcs in numerical sequence from Point 1 to Point 15. (ii) In the Sanctuary beyond the line representing the 50-fathom isobath sur rounding Cordell Bank, drilling into, dredging, or otherwise altering the sub merged lands; or constructing, placing, or abandoning any structure, material or matter on the submerged lands ex cept as incidental and necessary for an choring any vessel or lawful use of any fishing gear during normal fishing ac tivities. The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to this subpart, and the 50-fathom isobath is approxi mated by connecting these coordinates with straight line arcs in numerical se quence from Point 1 to Point 15. (5) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00168 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 159 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.113 Migratory Bird Treaty Act, as amend ed, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (6) Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle or bird taken, except as au thorized by the MMPA, ESA, MBTA, by any regulation, as amended, pro mulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes. (7) Possessing, moving, removing, or injuring, or attempting to possess, move, remove or injure, a Sanctuary historical resource. (8) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity. (9) Interfering with, obstructing, de laying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforce ment of the Act or any regulation or permit issued under the Act. (b) The prohibitions in paragraph (a) of this section do not apply to activi ties necessary to respond to an emer gency threatening life, property or the environment. (c) All activities being carried out by the Department of Defense (DOD) with in the Sanctuary on the effective date of designation or expansion of the Sanctuary that are necessary for na tional defense are exempt from the pro hibitions contained in the regulations in this subpart. Additional DOD activi ties initiated after the effective date of designation or expansion that are nec essary for national defense will be ex empted by the Director after consulta tion between the Department of Com merce and DOD. DOD activities not necessary for national defense, such as routine exercises and vessel operations, are subject to all prohibitions con tained in the regulations in this sub part. (d) The prohibitions in paragraphs (a)(2) through (7) of this section do not apply to any activity executed in ac cordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursu ant to §§ 922.48 and 922.113 or a Special Use permit issued pursuant to section 310 of the Act. (e) Where necessary to prevent imme diate, serious, and irreversible damage to a Sanctuary resource, any activity may be regulated within the limits of the Act on an emergency basis for no more than 120 days. [80 FR 13115, Mar. 12, 2015, as amended at 83 FR 55967, Nov. 9, 2018] § 922.113 Permit procedures and issuance criteria. (a) A person may conduct an activity prohibited by § 922.112(a)(2) through (7), if such activity is specifically author ized by, and conducted in accordance with the scope, purpose, terms and con ditions of, a permit issued under § 922.48 and this section. (b) The Director, at his or her discre tion, may issue a national marine sanc tuary permit under this section, sub ject to terms and conditions, as he or she deems appropriate, if the Director finds that the activity will: (1) Further research or monitoring related to Sanctuary resources and qualities; (2) Further the educational value of the Sanctuary; (3) Further salvage or recovery oper ations in or near the Sanctuary in con nection with a recent air or marine casualty; or (4) Assist in managing the Sanc tuary. (c) In deciding whether to issue a per mit, the Director shall consider such factors as: (1) The applicant is qualified to con duct and complete the proposed activ ity; (2) The applicant has adequate finan cial resources available to conduct and complete the proposed activity; (3) The methods and procedures pro posed by the applicant are appropriate to achieve the goals of the proposed ac tivity, especially in relation to the po tential effects of the proposed activity on Sanctuary resources and qualities; (4) The proposed activity will be con ducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, con sidering the extent to which the con duct of the activity may diminish or enhance Sanctuary resources and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00169 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 160 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. K, App. A qualities, any potential indirect, sec ondary or cumulative effects of the ac tivity, and the duration of such effects; (5) The proposed activity will be con ducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the activity may result in conflicts be tween different users of the Sanctuary, and the duration of such effects; (6) It is necessary to conduct the pro posed activity within the Sanctuary; (7) The reasonably expected end value of the proposed activity to the further ance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and (8) The Director may consider addi tional factors as he or she deems appro priate. (d) Applications. (1) Applications for permits should be addressed to the Di rector, Office of National Marine Sanc tuaries; ATTN: Superintendent, Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950. (2) In addition to the information listed in § 922.48(b), all applications must include information to be consid ered by the Director in paragraph (b) and (c) of this section. (e) The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities. APPENDIX A TO SUBPART K OF PART 922—CORDELL BANK NATIONAL MA RINE SANCTUARY BOUNDARY COORDI NATES Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83). SANCTUARY BOUNDARY COORDINATES Point ID No. Latitude Longitude 1 ......................................... 38.29989 ¥123.20005 2 ......................................... 38.29989 ¥123.99988 3 ......................................... 37.76687 ¥123.75143 4 ......................................... 37.76687 ¥123.42694 5 ......................................... 37.83480 ¥123.42579 6 ......................................... 37.90464 ¥123.38958 7 ......................................... 37.95880 ¥123.32312 8 ......................................... 37.98947 ¥123.23615 9 ......................................... 37.99227 ¥123.14137 10 ....................................... 38.05202 ¥123.12827 11 ....................................... 38.06505 ¥123.11711 12 ....................................... 38.07898 ¥123.10924 SANCTUARY BOUNDARY COORDINATES— Continued Point ID No. Latitude Longitude 13 ....................................... 38.09069 ¥123.10387 14 ....................................... 38.10215 ¥123.09804 15 ....................................... 38.12829 ¥123.08742 16 ....................................... 38.14072 ¥123.08237 17 ....................................... 38.16576 ¥123.09207 18 ....................................... 38.21001 ¥123.11913 19 ....................................... 38.26390 ¥123.18138 20 ....................................... 38.29989 ¥123.20005 APPENDIX B TO SUBPART K OF PART 922—LINE REPRESENTING THE 50 FATHOM ISOBATH SURROUNDING CORDELL BANK Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83). CORDELL BANK FIFTY FATHOM LINE COORDINATES Point ID No. Latitude Longitude 1 ......................................... 37.96034 ¥123.40371 2 ......................................... 37.96172 ¥123.42081 3 ......................................... 37.9911 ¥123.44379 4 ......................................... 38.00406 ¥123.46443 5 ......................................... 38.01637 ¥123.46076 6 ......................................... 38.04684 ¥123.47920 7 ......................................... 38.07106 ¥123.48754 8 ......................................... 38.07588 ¥123.47195 9 ......................................... 38.06451 ¥123.46146 10 ....................................... 38.07123 ¥123.44467 11 ....................................... 38.04446 ¥123.40286 12 ....................................... 38.01442 ¥123.38588 13 ....................................... 37.98859 ¥123.37533 14 ....................................... 37.97071 ¥123.38605 15 ....................................... 37.96034 ¥123.40371 APPENDIX C TO SUBPART K OF PART 922—DESIGNATED AREA FOR CERTAIN UNITED STATES COAST GUARD DIS CHARGES Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83). The portion of the Cordell Bank National Marine Sanctuary area [2015 expansion area] where the exception for discharges from United States Coast Guard activities applies is defined as follows. Beginning with Point 1, identified in the coordinate table in this ap pendix, the boundary extends from Point 1 to Point 2 in a straight line arc and continues in numerical order through each subsequent point to Point 38. From Point 38 the bound ary extends west along the northern bound ary of Cordell Bank National Marine Sanc tuary to Point 39 where it ends. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00170 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 161 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.121 Point No. Latitude Longitude 1 ......................................... 38.29989 ¥123.99988 2 ......................................... 37.76687 ¥123.75143 3 ......................................... 37.76716 ¥123.42758 4 ......................................... 37.77033 ¥123.43466 5 ......................................... 37.78109 ¥123.44694 6 ......................................... 37.78383 ¥123.45466 7 ......................................... 37.79487 ¥123.46721 8 ......................................... 37.80094 ¥123.47313 9 ......................................... 37.81026 ¥123.46897 10 ....................................... 37.81365 ¥123.47906 11 ....................................... 37.82296 ¥123.49280 12 ....................................... 37.84988 ¥123.51749 13 ....................................... 37.86189 ¥123.52197 14 ....................................... 37.87637 ¥123.52192 15 ....................................... 37.88541 ¥123.52967 16 ....................................... 37.90725 ¥123.53937 17 ....................................... 37.92288 ¥123.54360 18 ....................................... 37.93858 ¥123.54701 19 ....................................... 37.94901 ¥123.54777 20 ....................................... 37.95528 ¥123.56199 21 ....................................... 37.96683 ¥123.57859 22 ....................................... 37.97761 ¥123.58746 23 ....................................... 37.98678 ¥123.59988 24 ....................................... 37.99847 ¥123.61331 25 ....................................... 38.01366 ¥123.62494 26 ....................................... 38.01987 ¥123.62450 27 ....................................... 38.02286 ¥123.61531 28 ....................................... 38.02419 ¥123.59864 29 ....................................... 38.03409 ¥123.59904 30 ....................................... 38.04614 ¥123.60611 31 ....................................... 38.05308 ¥123.60549 32 ....................................... 38.06188 ¥123.61546 33 ....................................... 38.07451 ¥123.62162 34 ....................................... 38.08289 ¥123.62065 35 ....................................... 38.11256 ¥123.63344 36 ....................................... 38.13219 ¥123.64265 37 ....................................... 38.26390 ¥123.18138 38 ....................................... 38.29989 ¥123.20005 39 ....................................... 38.29989 ¥123.99988 [83 FR 55967, Nov. 9, 2018] Subpart L—Flower Garden Banks National Marine Sanctuary § 922.120 Boundary. The Flower Garden Banks National Marine Sanctuary (the Sanctuary) con sists of three separate areas of ocean waters over and surrounding the East and West Flower Garden Banks and Stetson Bank, and the submerged lands thereunder including the Banks, in the northwestern Gulf of Mexico. The area designated at the East Bank is located approximately 120 nautical miles (nmi) south-southwest of Cameron, Lou isiana, and encompasses 19.20 nmi2. The area designated at the West Bank is located approximately 110 nmi southeast of Galveston, Texas, and en compasses 22.50 nmi2. The area des ignated at Stetson Bank is located ap proximately 70 nmi southeast of Gal veston, Texas, and encompasses 0.64 nmi2. The three areas encompass a total of 42.34 nmi2 (145.09 square kilo meters). The boundary coordinates for each area are listed in appendix A to this subpart. [65 FR 81178, Dec. 22, 2000] § 922.121 Definitions. As used in this subpart: Attract or attracting means the con duct of any activity that lures or may lure any animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers). Clean means not containing detect able levels of harmful matter. Disturb or disturbing a ray or whale shark means to, or attempt to touch, handle, ride, pursue, chase away, hunt, restrain, detain (no matter how tempo rarily), capture, collect, or conduct any other activity that disrupts or has the potential to disrupt any ray or whale shark in the Sanctuary by any means. Notwithstanding the above, the mere presence of human beings (e.g., swim mers, divers, boaters, kayakers) is ex empted from this definition. Harmful matter means any substance, or combination of substances, that be cause of its quantity, concentration, or physical, chemical, or infectious char acteristics may pose a present or po tential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (re gardless of quantity) listed at 40 CFR 302.4 pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Re sponse, Compensation, and Liability Act, as amended. No-activity zone means the two geo graphic areas delineated by the Depart ment of the Interior in stipulations for OCS lease sale 112 over and sur rounding the East and West Flower Garden Banks, and the geographic area delineated by the Department of the Interior in stipulations for OCS lease sale 171 over and surrounding Stetson Bank, as areas in which activities asso ciated with exploration for, develop ment of, or production of hydrocarbons are prohibited. The precise aliquot part description of these areas around the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00171 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 162 15 CFR Ch. IX (1–1–21 Edition) § 922.122 East and West Flower Garden Banks are provided in appendix B of this sub part; the no-activity zone around Stetson Bank is defined as the 52 meter isobath. These particular aliquot part descriptions for the East and West Flower Garden Banks, and the 52 meter isobath around Stetson Bank, define the geographic scope of the ‘‘no-activ ity zones’’ for purposes of the regula tions in this subpart. The descriptions for the East and West Flower Garden Banks no-activity zones are based on the ‘‘1/41/41/4’’ system formerly used by the Department of the Interior, a method that delineates a specific por tion of a block rather than the actual underlying isobath. [77 FR 25068, Apr. 27, 2012] § 922.122 Prohibited or otherwise reg ulated activities. (a) Except as specified in paragraphs (c) through (h) of this section, the fol lowing activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted: (1) Exploring for, developing, or pro ducing oil, gas, or minerals except out side of all no-activity zones and pro vided all drilling cuttings and drilling fluids are shunted to the seabed through a downpipe that terminates an appropriate distance, but no more than ten meters, from the seabed. (2)(i) Anchoring any vessel within the Sanctuary. (ii) Mooring any vessel within the Sanctuary, except that vessels 100 feet (30.48 meters) or less in registered length may moor to a Sanctuary moor ing buoy. (iii) Mooring a vessel in the Sanc tuary without clearly displaying the blue and white International Code flag ‘‘A’’ (‘‘alpha’’ dive flag) or the red and white ‘‘sports diver’’ flag whenever a SCUBA diver from that vessel is in the water and removing the ‘‘alpha’’ dive flag or ‘‘sports diver’’ flag after all SCUBA divers exit the water and re turn back on board the vessel, con sistent with U.S. Coast Guard guide lines relating to sports diving as con tained within ‘‘Special Notice to Mari ners’’ (00–208) for the Gulf of Mexico. (3)(i) Discharging or depositing from within or into the Sanctuary any ma terial or other matter except: (A) Fish, fish parts, chumming mate rials, or bait used in or resulting from fishing with conventional hook and line gear in the Sanctuary, provided that such discharge or deposit occurs during the conduct of such fishing within the Sanctuary; (B) Clean effluent generated inci dental to vessel use by an operable Type I or Type II marine sanitation de vice (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Con trol Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage; (C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash; (D) Engine exhaust; (E) In areas of the Sanctuary outside the no-activity zones, drilling cuttings and drilling fluids necessarily dis charged incidental to the exploration for, development of, or production of oil or gas in those areas and in accord ance with the shunting requirements of paragraph (a)(1) of this section unless such discharge injures a Sanctuary re source or quality. (ii) Discharging or depositing, from beyond the boundaries of the Sanc tuary, any material or other matter, except those listed in paragraphs (a)(3)(i)(A) through (D) of this section, that subsequently enters the Sanc tuary and injures a Sanctuary resource or quality. (4) Drilling into, dredging, or other wise altering the seabed of the Sanc tuary (except as allowed under para graph (c) of this section); or con structing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary. (5) Injuring or removing, or attempt ing to injure or remove, any coral or other bottom formation, coralline algae or other plant, marine inverte brate, brine-seep biota, or carbonate rock within the Sanctuary. (6) Taking any marine mammal or turtle within the Sanctuary, except as permitted by regulations, as amended, promulgated under the Marine Mam mal Protection Act, as amended, 16 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00172 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 163 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.122 U.S.C. 1361 et seq., and the Endangered Species Act, as amended, 16 U.S.C. 1531 et seq. (7) Killing, injuring, attracting, touching, or disturbing a ray or whale shark in the Sanctuary. Notwith standing the above, the incidental and unintentional injury to a ray or whale shark as a result of fishing with con ventional hook and line gear is exempt ed from this prohibition. (8) Injuring, catching, harvesting, collecting, or feeding, or attempting to injure, catch, harvest, collect, or feed, any fish within the Sanctuary by use of bottom longlines, traps, nets, bottom trawls, or any other gear, device, equipment, or means except by use of conventional hook and line gear. (9) Possessing within the Sanctuary (regardless of where collected, caught, harvested or removed), except for valid law enforcement purposes, any car bonate rock, coral or other bottom for mation, coralline algae or other plant, marine invertebrate, brine-seep biota, or fish (except for fish caught by use of conventional hook and line gear). (10) Possessing or using within the Sanctuary, except possessing while passing without interruption through it or for valid law enforcement pur poses, any fishing gear, device, equip ment or means except conventional hook and line gear. (11) Possessing, except for valid law enforcement purposes, or using explo sives or releasing electrical charges within the Sanctuary. (b) If any valid regulation issued by any Federal authority of competent ju risdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director as more protective of Sanctuary re sources and qualities shall govern. (c) The prohibitions in paragraphs (a)(2)(i), (a)(4), and (a)(11) of this sec tion do not apply to necessary activi ties conducted in areas of the Sanc tuary outside the no-activity zones and incidental to exploration for, develop ment of, or production of oil or gas in those areas. (d) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to activities necessary to re spond to emergencies threatening life, property, or the environment. (e)(1) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to activities being carried out by the Department of Defense as of the ef fective date of Sanctuary designation (January 18, 1994). Such activities shall be carried out in a manner that mini mizes any adverse impact on Sanc tuary resources and qualities. The pro hibitions in paragraphs (a)(2) through (11) of this section do not apply to any new activities carried out by the De partment of Defense that do not have the potential for any significant ad verse impacts on Sanctuary resources or qualities. Such activities shall be carried out in a manner that minimizes any adverse impact on Sanctuary re sources and qualities. New activities with the potential for significant ad verse impacts on Sanctuary resources or qualities may be exempted from the prohibitions in paragraphs (a)(2) through (11) of this section by the Di rector after consultation between the Director and the Department of De fense. If it is determined that an activ ity may be carried out, such activity shall be carried out in a manner that minimizes any adverse impact on Sanc tuary resources and qualities. (2) In the event of threatened or ac tual destruction of, loss of, or injury to a Sanctuary resource or quality result ing from an untoward incident, includ ing but not limited to spills and groundings, caused by a component of the Department of Defense, the cog nizant component shall promptly co ordinate with the Director for the pur pose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the Sanc tuary resource or quality. (f) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to any activity executed in ac cordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursu ant to § 922.48 and § 922.123 or a Special Use permit issued pursuant to section 310 of the Act. (g) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to any activity authorized by any lease, permit, license, approval or other authorization issued after Janu ary 18, 1994, provided that the applicant VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00173 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 164 15 CFR Ch. IX (1–1–21 Edition) § 922.123 complies with § 922.49, the Director no tifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems nec essary to protect Sanctuary resources and qualities. (h) Notwithstanding paragraphs (f) and (g) of this section, in no event may the Director issue a National Marine Sanctuary permit under § 922.48 and § 922.123 or a Special Use permit under section 10 of the Act authorizing, or otherwise approve, the exploration for, development of, or production of oil, gas, or minerals in a no-activity zone. Any leases, permits, approvals, or other authorizations authorizing the exploration for, development of, or pro duction of oil, gas, or minerals in a no activity zone and issued after the Jan uary 18, 1994 shall be invalid. [77 FR 25069, Apr. 27, 2012] § 922.123 Permit procedures and cri teria. (a) A person may conduct an activity prohibited by § 922.122(a)(2) through (11) if conducted in accordance with the scope, purpose, terms, and conditions of a permit issued under this section and § 922.48. (b) Applications for such permits should be addressed to the Director, Of fice of National Marine Sanctuaries; Attn: Superintendent, Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, Galveston, TX 77551. (c) The Director, at his or her discre tion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an ac tivity prohibited by § 922.122(a)(2) through (11), if the Director finds that the activity will: Further research re lated to Sanctuary resources; further the educational, natural or historical resource value of the Sanctuary; fur ther salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or assist in managing the Sanctuary. In deciding whether to issue a permit, the Director shall consider such factors as: The professional qualifications and financial ability of the applicant as re lated to the proposed activity; the du ration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the con duct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; and the end value of the ac tivity. In addition, the Director may consider such other factors as he or she deems appropriate. (d) It shall be a condition of any per mit issued that the permit or a copy thereof be displayed on board all ves sels or aircraft used in the conduct of the activity. (e) The Director may, inter alia, make it a condition of any permit issued that any information obtained under the permit be made available to the public. (f) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the per mit and/or that the permit holder sub mit one or more reports on the status, progress, or results of any activity au thorized by the permit. [60 FR 66877, Dec. 27, 1995, as amended at 65 FR 81178, Dec. 22, 2000; 77 FR 25070, Apr. 27, 2012] APPENDIX A TO SUBPART L OF PART 922—FLOWER GARDEN BANKS NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES This appendix contains a second set of boundary coordinates using the geographic positions of the North American Datum of 1983 (NAD 83). FGBNMS coordinates are now provided in both North American Datum of 1927 (NAD 27) and NAD 83. Point Latitude (N) Longitude (W) East Flower Garden Bank: (NAD 27) E–1 ........... 27° 52′ 53.82718″ ...... 93° 37′ 41.30310″ E–2 ........... 27° 53′ 34.83434″ ...... 93° 38′ 23.35445″ Point Latitude (N) Longitude (W) E–3 ........... 27° 55′ 13.64286″ ...... 93° 38′ 40.34368″ E–4 ........... 27° 57′ 30.71927″ ...... 93° 38′ 33.26982″ E–5 ........... 27° 58′ 27.66896″ ...... 93° 37′ 46.12447″ E–6 ........... 27° 59′ 01.41554″ ...... 93° 35′ 31.74954″ VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00174 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 165 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. L, App. B Point Latitude (N) Longitude (W) E–7 ........... 27° 59′ 00.50888″ ...... 93° 35′ 09.69198″ E–8 ........... 27° 55′ 22.38258″ ...... 93° 34′ 14.79162″ E–9 ........... 27° 54′ 04.05605″ ...... 93° 34′ 18.88720″ E–10 ......... 27° 53′ 26.70972″ ...... 93° 35′ 05.00978″ E–11 ......... 27° 52′ 52.06998″ ...... 93° 36′ 57.23078″ West Flower Garden Bank: (NAD 27) W–1 .......... 27° 49′ 10.16324″ ...... 93° 50′ 45.27154″ W–2 .......... 27° 50′ 12.35976″ ...... 93° 52′ 10.47158″ W–3 .......... 27° 51′ 12.82777″ ...... 93° 52′ 51.63488″ W–4 .......... 27° 51′ 32.41145″ ...... 93° 52′ 50.66983″ W–5 .......... 27° 52′ 49.88791″ ...... 93° 52′ 24.77053″ W–6 .......... 27° 55′ 00.93450″ ...... 93° 49′ 43.68090″ W–7 .......... 27° 54′ 58.33040″ ...... 93° 48′ 37.54501″ W–8 .......... 27° 54′ 35.26067″ ...... 93° 47′ 10.34866″ W–9 .......... 27° 54′ 14.80334″ ...... 93° 46′ 49.28963″ W–10 ........ 27° 53′ 35.63704″ ...... 93° 46′ 51.25825″ W–11 ........ 27° 52′ 57.34474″ ...... 93° 47′ 15.26428″ W–12 ........ 27° 50′ 40.26361″ ...... 93° 47′ 22.14179″ W–13 ........ 27° 49′ 10.89894″ ...... 93° 48′ 42.72307″ Stetson Bank: (NAD 27) S–1 ........... 28° 09′ 30.06738″ ...... 94° 18′ 31.34461″ S–2 ........... 28° 10′ 09.24374″ ...... 94° 18′ 29.57042″ S–3 ........... 28° 10′ 06.88036″ ...... 94° 17′ 23.26201″ S–4 ........... 28° 09′ 27.70425″ ...... 94° 17′ 25.04315″ East Flower Garden Bank: (NAD 83) E–1 ........... 27° 52′ 54.84288″ ...... 93° 37′ 41.84187″ E–2 ........... 27° 53′ 35.80428″ ...... 93° 38′ 23.89520″ Point Latitude (N) Longitude (W) E–3 ........... 27° 55′ 14.61048″ ...... 93° 38′ 40.88638″ E–4 ........... 27° 57′ 31.68349″ ...... 93° 38′ 33.81421″ E–5 ........... 27° 58′ 28.63153″ ...... 93° 37′ 46.66809″ E–6 ........... 27° 59′ 02.37658″ ...... 93° 35′ 32.28918″ E–7 ........... 27° 59′ 01.46983″ ...... 93° 35′ 10.23088″ E–8 ........... 27° 55′ 23.34849″ ...... 93° 34′ 15.32560″ E–9 ........... 27° 54′ 05.02387″ ...... 93° 34′ 19.42020″ E–10 ......... 27° 53′ 27.67871″ ...... 93° 35′ 05.54379″ E–11 ......... 27° 52′ 53.04047″ ...... 93° 36′ 57.76805″ West Flower Garden Bank: (NAD 83) W–1 .......... 27° 49′ 11.14452″ ...... 93° 50′ 45.83401″ W–2 .......... 27° 50′ 13.34001″ ...... 93° 52′ 11.03791″ W–3 .......... 27° 51′ 13.80672″ ...... 93° 52′ 52.20349″ W–4 .......... 27° 51′ 33.38988″ ...... 93° 52′ 51.23867″ W–5 .......... 27° 52′ 50.86415″ ...... 93° 52′ 25.33954″ W–6 .......... 27° 55′ 01.90633″ ...... 93° 49′ 44.24605″ W–7 .......... 27° 54′ 59.30189″ ...... 93° 48′ 38.10780″ W–8 .......... 27° 54′ 36.23221″ ...... 93° 47′ 10.90806″ W–9 .......... 27° 54′ 15.77527″ ...... 93° 46′ 49.84801″ W–10 ........ 27° 53′ 36.60997″ ...... 93° 46′ 51.81616″ W–11 ........ 27° 52′ 58.31880″ ...... 93° 47′ 15.82251″ W–12 ........ 27° 50′ 41.24120″ ...... 93° 47′ 22.69837″ W–13 ........ 27° 49′ 11.87936″ ...... 93° 48′ 43.28125″ Stetson Bank: (NAD 83) S–1 ........... 28° 09′ 31.02671″ ...... 94° 18′ 31.98164″ S–2 ........... 28° 10′ 10.20196″ ...... 94° 18′ 30.20776″ S–3 ........... 28° 10′ 07.83821″ ...... 94° 17′ 23.89688″ S–4 ........... 28° 09′ 28.66320″ ...... 94° 17′ 25.67770″ [65 FR 81178, Dec. 22, 2000] APPENDIX B TO SUBPART L OF PART 922—COORDINATES FOR THE DEPART MENT OF THE INTERIOR TOPOGRAPHIC LEASE STIPULATIONS FOR OCS LEASE SALE 171 ALIQUOT PART DESCRIPTION OF BIOLOGICAL STIPULATION AREA EAST GARDEN BANK Block A–366 Texas Leasing Map No. 7C (High Island Area East Addition South Extension) SE1⁄4, SW1⁄4; S1⁄2, NE1⁄4, SE1⁄4; SE1⁄4, NW1⁄4, SE1⁄4; S1⁄2, SE1⁄4. Block A–376 W1⁄2, NW1⁄4, SW1⁄4; SW1⁄4, SW1⁄4, SW1⁄4. Block A–374 W1⁄2, NW1⁄4, NW1⁄4; W1⁄2, SW1⁄4, NW1⁄4; SE1⁄4, SW1⁄4, NW1⁄4; SW1⁄4, NE1⁄4, SW1⁄4, W1⁄2, SW1⁄4; W1⁄2, SE1⁄4, SW1⁄4; SE1⁄4, SE1⁄4, SW1⁄4. Block A–375 E1⁄2; E1⁄2, NW1⁄4; E1⁄2, NW1⁄4, NW1⁄4; SW1⁄4, NW1⁄4, NW1⁄4; E1⁄2, SW1⁄4, NW1⁄4; NW1⁄4, SW1⁄4, NW1⁄4; SW1⁄4. Block A–388 NE1⁄4; E1⁄2, NW1⁄4; E1⁄2, NW1⁄4, NW1⁄4; NE1⁄4, SW1⁄4, NW1⁄4; E1⁄2, NE1⁄4, SW1⁄4; NW1⁄4, NE1⁄4, SW1⁄4; NE1⁄4, NW1⁄4, SW1⁄4; NE1⁄4, SE1⁄4, SW1⁄4, NE1⁄4; NE1⁄4, NE1⁄4, SE1⁄4; W1⁄2, NE1⁄4, SE1⁄4; NW1⁄4, Block A–389 NE1⁄4, NW1⁄4; NW1⁄4, NW1⁄4; SW1⁄4, NW1⁄4; NE1⁄4, SE1⁄4, NW1⁄4; W1⁄2, SE1⁄4, NW1⁄4; N1⁄2, NW1⁄4, SW1⁄4. ALIQUOT PART DESCRIPTION OF BIOLOGICAL STIPULATION AREA WEST GARDEN BANK Block A–383 Texas Leasing Map No. 7C (High Island Area East Addition South Extension) E1⁄2, SE1⁄4, SE1⁄4; SW1⁄4, SE1⁄4, SE1⁄4. Block A–384 W1⁄2, SW1⁄4, NE1⁄4; SE1⁄4, SW1⁄4, NE1⁄4; S1⁄2, SE1⁄4, NE1⁄4; SE1⁄4, NW1⁄4; E1⁄2, SW1⁄4; E1⁄2, NW1⁄4, SW1⁄4, SW1⁄4, NW1⁄4, SW1⁄4; SW1⁄4, SW1⁄4; SE1⁄4. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00175 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 166 15 CFR Ch. IX (1–1–21 Edition) § 922.130 Block A–385 SW1⁄4, SW1⁄4, NW1⁄4; NW1⁄4, SW1⁄4; NW1⁄4, SW1⁄4, SW1⁄4. Block A–397 W1⁄2, W1⁄2, NW1⁄4; W1⁄2, NW1⁄4, SW1⁄4; NW1⁄4; SW1⁄4, SW1⁄4. Block A–398 Entire block. Block A–399 E1⁄2, SE1⁄4, NE1⁄4, NW1⁄4; E1⁄2, SE1⁄4, NW1⁄4; E1⁄2, NE1⁄4, SW1⁄4; SW1⁄4, NE1⁄4, SW1⁄4; NE1⁄4, SE1⁄4, SW1⁄4. Block A–401 NE1⁄4, NE1⁄4; N1⁄2, NW1⁄4, NE1⁄4; NE1⁄4, SE1⁄4, NE1⁄4. Block 134 Official Protraction Diagram NG15–02 (Garden Banks) That portion of the block north of a line connecting a point on the east boundary of Block 134, X = 1,378,080.00′, Y = 10,096,183.00′, with a point on the west boundary of Block 134, X = 1,367,079,385′, Y = 10,096,183.000′, de fined under the Universal Transverse Mer cator grid system. Block 135 Official Protraction Diagram NG15–02 (Garden Banks) That portion of the block northwest of a line connecting the southeast corner of Texas Leasing Map No. 7C, Block A–398, X = 1,383,293.840′, Y = 10,103,281.930′, with a point on the west boundary of Official Protraction Diagram NG15–02, Block 135, X = 1,378,080.000′, Y = 10,096,183.000′, defined under the Universal Transverse Mercator grid sys tem. [65 FR 81180, Dec. 22, 2000] Subpart M—Monterey Bay National Marine Sanctuary SOURCE: 73 FR 70535, Nov. 20, 2008, unless otherwise noted. § 922.130 Boundary. The Monterey Bay National Marine Sanctuary (Sanctuary) consists of two separate areas. (a) The first area con sists of an area of approximately 4016 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Mon terey Bay off the central coast of Cali fornia. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Greater Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary fol lows the GFNMS boundary westward to a point approximately 29 nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary bound ary then extends eastward towards shore until it intersects the Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary ex cludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Mon terey Harbor, and Moss Landing Har bor are all excluded from the Sanc tuary shoreward from the points listed in appendix A except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanc tuary, excluding areas within the Elk horn Slough National Estuarine Re search Reserve. Exact coordinates for the seaward boundary and harbor ex clusions are provided in appendix A to this subpart. (b) The Davidson Seamount Manage ment Zone is also part of the Sanc tuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanc tuary is located approximately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the Davidson Seamount Management Zone boundary are provided in appen dix F to this subpart. [73 FR 70535, Nov. 20, 2008, as amended at 80 FR 34048, June 15, 2015] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00176 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 167 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.132 § 922.131 Definitions. In addition to those definitions found at 15 CFR 922.3, the following defini tions apply to this subpart: Attract or attracting means the con duct of any activity that lures or may lure any animal by using food, bait, chum, dyes, decoys, acoustics, or any other means, except the mere presence of human beings (e.g., swimmers, div ers, boaters, kayakers, surfers). Clean means not containing detect able levels of harmful matter. Cruise ship means a vessel with 250 or more passenger berths for hire. Davidson Seamount Management Zone means the area bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, and consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanctuary is located approxi mately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the Davidson Seamount Management Zone boundary are provided in appendix F to this sub part. Deserting means leaving a vessel aground or adrift without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a pre liminary salvage plan within 24 hours of such notification, after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts, or when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the ves sel’s condition being reported to au thorities; or leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner. Federal Project means any water re sources development project conducted by the U.S. Army Corps of Engineers or operating under a permit or other au thorization issued by the Corps of En gineers and authorized by Federal law. Hand tool means a hand-held imple ment, utilized for the collection of jade pursuant to 15 CFR 922.132(a)(1), that is no greater than 36 inches in length and has no moving parts (e.g., dive knife, pry bar, or abalone iron). Pneumatic, mechanical, electrical, hydraulic, or explosive tools are, therefore, examples of what does not meet this definition. Harmful matter means any substance, or combination of substances, that be cause of its quantity, concentration, or physical, chemical, or infectious char acteristics may pose a present or po tential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (re gardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Response, Compensa tion and Liability Act at 40 CFR 302.4. Introduced species means: Any species (including but not limited to any of its biological matter capable of propaga tion) that is non-native to the eco systems of the Sanctuary; or any orga nism into which altered genetic mat ter, or genetic matter from another species, has been transferred in order that the host organism acquires the ge netic traits of the transferred genes. Motorized personal watercraft (MPWC) means any vessel, propelled by machin ery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the vessel, in con trast to the conventional manner, where the operator stands or sits inside the vessel; any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard’s Maximum Ca pacities Marking for Load Capacity regulation found at 33 CFR Parts 181 and 183, except submarines; or any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive. § 922.132 Prohibited or otherwise reg ulated activities. (a) Except as specified in paragraphs (b) through (e) of this section, the fol lowing activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted: (1) Exploring for, developing, or pro ducing oil, gas, or minerals within the Sanctuary, except: Jade may be col lected (meaning removed) from the area bounded by the 35.92222 N latitude VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00177 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 168 15 CFR Ch. IX (1–1–21 Edition) § 922.132 parallel (coastal reference point: Beach access stairway at south Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: Westernmost tip of Cape San Martin), and from the mean high tide line seaward to the 90 foot isobath (depth line) (the ‘‘author ized area’’) provided that: (i) Only jade already loose from the submerged lands of the Sanctuary may be collected; (ii) No tool may be used to collect jade except: (A) A hand tool (as defined at 15 CFR 922.131) to maneuver or lift the jade or scratch the surface of a stone as nec essary to determine if it is jade; (B) A lift bag or multiple lift bags with a combined lift capacity of no more than two hundred pounds; or (C) A vessel (except for motorized personal watercraft) (see paragraph (a)(7) of this section) to provide access to the authorized area; (iii) Each person may collect only what that person individually carries; and (iv) For any loose piece of jade that cannot be collected under paragraphs (a)(1) (ii) and (iii) of this section, any person may apply for a permit to col lect such a loose piece by following the procedures in 15 CFR 922.133. (2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter, except: (A) Fish, fish parts, chumming mate rials, or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such dis charge or deposit is during the conduct of lawful fishing activities within the Sanctuary; (B) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient hold ing tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanita tion device (U.S. Coast Guard classi fication) approved in accordance with section 312 of the Federal Water Pollu tion Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel opera tors must lock all marine sanitation devices in a manner that prevents dis charge or deposit of untreated sewage; (C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash; (D) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient hold ing capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA; (E) Vessel engine or generator ex haust; or (F) Dredged material deposited at disposal sites authorized by the U.S. Environmental Protection Agency (EPA) (in consultation with the U.S. Army Corps of Engineers (COE)) prior to the effective date of Sanctuary des ignation (January 1, 1993), provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on January 1, 1993. Authorized disposal sites within the Sanctuary are described in appendix C to this subpart. (ii) Discharging or depositing from within or into the Sanctuary any ma terial or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator ex haust, clean bilge water, or anchor wash. (iii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that sub sequently enters the Sanctuary and in jures a Sanctuary resource or quality, except those listed in paragraphs (a)(2)(i)(A) through (E) and (a)(2)(ii) of this section and dredged material de posited at the authorized disposal sites described in appendix D to this sub part, provided that the dredged mate rial disposal is pursuant to, and com plies with the terms and conditions of, a valid Federal permit or approval. (3) Possessing, moving, removing, or injuring, or attempting to possess, move, remove, or injure, a Sanctuary historical resource. This prohibition does not apply to, moving, removing, or injury resulting incidentally from kelp harvesting, aquaculture, or lawful fishing activities. (4) Drilling into, dredging, or other wise altering the submerged lands of VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00178 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 169 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.132 the Sanctuary; or constructing, plac ing, or abandoning any structure, ma terial, or other matter on or in the sub merged lands of the Sanctuary, except as incidental and necessary to: (i) Conduct lawful fishing activities; (ii) Anchor a vessel; (iii) Conduct aquaculture or kelp har vesting; (iv) Install an authorized naviga tional aid; (v) Conduct harbor maintenance in an area necessarily associated with a Federal Project in existence on Janu ary 1, 1993, including dredging of en trance channels and repair, replace ment, or rehabilitation of breakwaters and jetties; (vi) Construct, repair, replace, or re habilitate a dock or pier; or (vii) Collect jade pursuant to para graph (a)(1) of this section, provided that there is no constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary, other than temporary placement of an authorized hand tool as provided in paragraph (a)(1) of this section. The exceptions listed in paragraphs (a)(4)(ii) through (a)(4)(vii) of this section do not apply within the Davidson Seamount Man agement Zone. (5) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amend ed, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (6) Disturbing marine mammals or seabirds by flying motorized aircraft, except as necessary for valid law en forcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in Appendix B to this subpart. Failure to maintain a minimum altitude of 1,000 feet above ground level above any such zone is presumed to disturb marine mammals or seabirds. (7) Operating motorized personal watercraft within the Sanctuary ex cept within the five designated zones and access routes within the Sanctuary described in appendix E to this subpart. Zone Five (at Pillar Point) exists only when a High Surf Warning has been issued by the National Weather Service and is in effect for San Mateo County, and only during December, January, and February. (8) Possessing within the Sanctuary (regardless of where taken, moved, or removed from), any marine mammal, sea turtle, or bird, except as authorized by the MMPA, ESA, MBTA, by any reg ulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes. (9) Deserting a vessel aground, at an chor, or adrift in the Sanctuary. (10) Leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary. (11)(i) Moving, removing, taking, col lecting, catching, harvesting, dis turbing, breaking, cutting, or other wise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any Sanctuary resource located more that 3,000 feet below the sea surface within the Davidson Seamount Man agement Zone. This prohibition does not apply to fishing below 3000 feet within the Davidson Seamount Man agement Zone, which is prohibited pur suant to 50 CFR part 660 (Fisheries off West Coast States). (ii) Possessing any Sanctuary re source the source of which is more than 3,000 feet below the sea surface within the Davidson Seamount Man agement Zone. This prohibition does not apply to possession of fish result ing from fishing below 3000 feet within the Davidson Seamount Management Zone, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). (12) Introducing or otherwise releas ing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity. (13) Attracting any white shark with in the Sanctuary. (14) Interfering with, obstructing, de laying, or preventing an investigation, search, seizure, or disposition of seized VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00179 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 170 15 CFR Ch. IX (1–1–21 Edition) § 922.132 property in connection with enforce ment of the Act or any regulation or permit issued under the Act. (b) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to an activity necessary to re spond to an emergency threatening life, property, or the environment. (c)(1) All Department of Defense ac tivities must be carried out in a man ner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. The prohibitions in paragraphs (a)(2) through (12) of this section do not apply to existing military activities carried out by the Department of De fense, as specifically identified in the Final Environmental Impact State ment and Management Plan for the Proposed Monterey Bay National Ma rine Sanctuary (NOAA, 1992). (Copies of the FEIS/MP are available from the Monterey Bay National Marine Sanc tuary, 299 Foam Street, Monterey, CA 93940.) For purposes of the Davidson Seamount Management Zone, these ac tivities are listed in the 2008 Final En vironmental Impact Statement. New activities may be exempted from the prohibitions in paragraphs (a)(2) through (12) of this section by the Di rector after consultation between the Director and the Department of De fense. (2) In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, in cluding but not limited to discharges, deposits, and groundings, caused by a Department of Defense activity, the Department of Defense, in coordination with the Director, must promptly pre vent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner ap proved by the Director. (d) The prohibitions in paragraph (a)(1) of this section as it pertains to jade collection in the Sanctuary, and paragraphs (a)(2) through (11) and (a)(13) of this section, do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursu ant to 15 CFR 922.48 and 922.133 or a Special Use permit issued pursuant to section 310 of the Act. (e) The prohibitions in paragraphs (a)(2) through (a)(8) of this section, and (a)(12) of this section regarding any in troduced species of shellfish that NOAA and the State of California have determined is non-invasive and will not cause significant adverse effects to sanctuary resources or qualities, and that is cultivated in state waters as part of commercial shellfish aqua culture activities, do not apply to any activity authorized by any lease, per mit, license, approval, or other author ization issued after the effective date of Sanctuary designation (January 1, 1993) and issued by any Federal, State, or local authority of competent juris diction, provided that the applicant complies with 15 CFR 922.49, the Direc tor notifies the applicant and author izing agency that he or she does not ob ject to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals, and extensions of authoriza tions in existence on the effective date of designation constitute authoriza tions issued after the effective date of Sanctuary designation. (f) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a National Marine Sanctuary permit under 15 CFR 922.48 and 922.133 or a Special Use permit under section 310 of the Act author izing, or otherwise approve: the explo ration for, development, or production of oil, gas, or minerals within the Sanctuary, except for the collection of jade pursuant to paragraph (a)(1) of this section; the discharge of primary treated sewage within the Sanctuary (except by certification, pursuant to 15 CFR 922.47, of valid authorizations in existence on January 1, 1993 and issued by other authorities of competent ju risdiction); or the disposal of dredged material within the Sanctuary other than at sites authorized by EPA (in consultation with COE) prior to Janu ary 1, 1993. Any purported authoriza tions issued by other authorities with in the Sanctuary shall be invalid. [73 FR 70535, Nov. 20, 2008, as amended at 75 FR 53571, Sept. 1, 2010; 77 FR 3922, Jan. 26, 2012; 80 FR 8786, Feb. 19, 2015] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00180 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 171 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.133 § 922.133 Permit procedures and cri teria. (a) A person may conduct an activity prohibited by § 922.132(a)(1) as it per tains to jade collection in the Sanc tuary, § 922.132(a)(2) through (11), and § 922.132(a)(13), if such activity is spe cifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under this section and 15 CFR 922.48. (b) The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an ac tivity prohibited by § 922.132(a)(1) as it pertains to jade collection in the Sanc tuary, § 922.132(a)(2) through (11), and § 922.132(a)(13), if the Director finds that the activity will have at most short term and negligible adverse effects on Sanctuary resources and qualities and: (1) Is research designed to further un derstanding of Sanctuary resources and qualities; (2) Will further the educational, nat ural, or historical value of the Sanc tuary; (3) Will further salvage or recovery operations within or near the Sanc tuary in connection with a recent air or marine casualty; (4) Will assist in managing the Sanc tuary; (5) Will further salvage or recovery operations in connection with an aban doned shipwreck in the Sanctuary title to which is held by the State of Cali fornia; or (6) Will allow the removal, without the use of pneumatic, mechanical, elec trical, hydraulic or explosive tools, of loose jade from the Jade Cove area under § 922.132(a)(1)(iv). (c) In deciding whether to issue a per mit, the Director shall consider such factors as: (1) Will the activity be conducted by an applicant that is professionally qualified to conduct and complete the activity; (2) Will the activity be conducted by an applicant with adequate financial resources available to conduct and complete the activity; (3) Is the activity proposed for no longer than necessary to achieve its stated purpose; (4) Must the activity be conducted within the Sanctuary; (5) Will the activity be conducted using methods and procedures that are appropriate to achieve the goals of the proposed activity, especially in rela tion to the potential effects of the pro posed activity on Sanctuary resources and qualities; (6) Will the activity be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the ac tivity may diminish or enhance Sanc tuary resources and qualities, any po tential indirect, secondary, or cumu lative effects of the activity, and the duration of such effects; (7) Will the activity be conducted in a manner compatible with the value of the Sanctuary as a source of recreation and as a source of educational and sci entific information, considering the ex tent to which the conduct of the activ ity may result in conflicts between dif ferent users of the Sanctuary and the duration of such effects; and (8) Does the reasonably expected end value of the activity to the furtherance of the Sanctuary goals and objectives outweigh any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity. (d) For jade collection, preference will be given for applications proposing to collect loose pieces of jade for re search or educational purposes. (e) The Director may consider such other factors as he or she deems appro priate. (f) Applications. (1) Applications for permits should be addressed to the Di rector, Office of National Marine Sanc tuaries; ATTN: Superintendent, Mon terey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940. (2) In addition to the information listed in 15 CFR 922.48(b), all applica tions must include information the Di rector needs to make the findings in paragraph (b) of this section and infor mation to be considered by the Direc tor pursuant to paragraph (c) of this section. (g) In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00181 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 172 15 CFR Ch. IX (1–1–21 Edition) § 922.134 permittee agree to hold the United States harmless against any claims arising out of the conduct of the per mitted activities. § 922.134 Review of certain State per mits and leases. (a)(1) NOAA has described in a Memo randum of Agreement (MOA) with the State of California how NOAA will co ordinate review of any introduction of non-invasive introduced species from a proposed shellfish aquaculture project when considering an authorization under § 922.132(e). (2) The MOA specifies how the proc ess of 15 CFR 922.49 will be adminis tered within State waters within the sanctuary in coordination with State permit and lease programs as adminis tered by the California Fish and Game Commission, the Department of Fish and Wildlife and the California Coastal Commission. (b)(1) NOAA has entered into a Memorandum of Agreement (MOA) with the State of California, EPA, and the Association of Monterey Bay Area Governments regarding the Sanctuary regulations relating to water quality within State waters within the Sanc tuary. With regard to permits, the MOA en compasses: (i) National Pollutant Discharge Elimination System (NPDES) permits issued by the State of California under section 13377 of the California Water Code; and (ii) Waste Discharge Requirements issued by the State of California under section 13263 of the California Water Code. (2) The MOA specifies how the proc ess of 15 CFR 922.49 will be adminis tered within State waters within the Sanctuary in coordination with the State permit program. [73 FR 70535, Nov. 20, 2008, as amended at 80 FR 8787, Feb. 19, 2015] APPENDIX A TO SUBPART M OF PART 922—MONTEREY BAY NATIONAL MA RINE SANCTUARY BOUNDARY COORDI NATES Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983. Point ID No. Latitude Longitude Seaward Boundary 1 ................................ 37.88225 ¥122.62753 2 ................................ 37.66641 ¥122.75105 3 ................................ 37.61622 ¥122.76937 4 ................................ 37.57147 ¥122.80399 5 ................................ 37.52988 ¥122.85988 6 ................................ 37.50948 ¥122.90614 7 ................................ 37.49418 ¥123.00770 8 ................................ 37.50819 ¥123.09617 9 ................................ 37.52001 ¥123.12879 10 .............................. 37.45304 ¥123.14009 11 .............................. 37.34316 ¥123.13170 12 .............................. 37.23062 ¥123.10431 13 .............................. 37.13021 ¥123.02864 14 .............................. 37.06295 ¥122.91261 15 .............................. 37.03509 ¥122.77639 16 .............................. 36.92155 ¥122.80595 17 .............................. 36.80632 ¥122.81564 18 .............................. 36.69192 ¥122.80539 19 .............................. 36.57938 ¥122.77416 20 .............................. 36.47338 ¥122.72568 21 .............................. 36.37242 ¥122.65789 22 .............................. 36.27887 ¥122.57410 23 .............................. 36.19571 ¥122.47699 24 .............................. 36.12414 ¥122.36527 25 .............................. 36.06864 ¥122.24438 26 .............................. 36.02451 ¥122.11672 27 .............................. 35.99596 ¥121.98232 28 .............................. 35.98309 ¥121.84069 29 .............................. 35.98157 ¥121.75634 30 .............................. 35.92933 ¥121.71119 31 .............................. 35.83773 ¥121.71922 32 .............................. 35.72063 ¥121.71216 33 .............................. 35.59497 ¥121.69030 34 .............................. 35.55327 ¥121.63048 35 .............................. 35.55483 ¥121.10399 36 .............................. 37.59421 ¥122.52001 37 .............................. 37.61367 ¥122.61673 38 .............................. 37.76694 ¥122.65011 39 .............................. 37.81777 ¥122.53008 Harbor Exclusions 40 .............................. 37.49414 ¥122.48483 41 .............................. 37.49540 ¥122.48576 42 .............................. 36.96082 ¥122.00175 43 .............................. 36.96143 ¥122.00112 44 .............................. 36.80684 ¥121.79145 45 .............................. 36.80133 ¥121.79047 46 .............................. 36.60837 ¥121.88970 47 .............................. 36.60580 ¥121.88965 [75 FR 53571, Sept. 1, 2010] APPENDIX B TO SUBPART M OF PART 922—ZONES WITHIN THE SANCTUARY WHERE OVERFLIGHTS BELOW 1000 FEET ARE PROHIBITED The four zones are: (1) From mean high water to 3 nautical miles (nmi) offshore between a line extend ing from Point Santa Cruz on a southwest erly bearing of 220° true and a line extending from 2.0 nmi north of Pescadero Point on a southwesterly bearing of 240° true; (2) From mean high water to 3 nmi offshore between a line extending from the Carmel River mouth on a westerly bearing of 270° VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00182 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 173 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. M, App. E true and a line extending due west along latitude parallel 35.55488 N off of Cambria; (3) From mean high water and within a 5 nmi seaward arc drawn from a center point of 36.80129 N, 121.79034 W (the end of the Moss Landing ocean pier as it appeared on the most current NOAA nautical charts as of January 1, 1993); and (4) Over the Sanctuary’s jurisdictional waters of Elkhorn Slough east of the High way One bridge to Elkhorn Road. [75 FR 53571, Sept. 1, 2010] APPENDIX C TO SUBPART M OF PART 922—DREDGED MATERIAL DISPOSAL SITES WITHIN THE SANCTUARY [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] Point ID No. Latitude Longitude Santa Cruz Harbor/Twin Lakes Dredge Disposal Site 1 ............................................. 36.9625 ¥122.00056 2 ............................................. 36.9625 ¥121.99861 3 ............................................. 36.96139 ¥121.99833 4 ............................................. 36.96139 ¥122.00083 SF–12 Dredge Disposal Site 1 ............................................. 36.80207 ¥121.79207 2 ............................................. 36.80157 ¥121.79218 3 ............................................. 36.80172 ¥121.79325 4 ............................................. 36.80243 ¥121.79295 SF–14 Dredge Disposal Site (circle with 500 yard radius) 1 ............................................. 36.79799 ¥121.81907 Monterey Harbor/Wharf II Dredge Disposal Site 1 ............................................. 36.60297 ¥121.88942 2 ............................................. 36.60283 ¥121.88787 3 ............................................. 36.60092 ¥121.88827 4 ............................................. 36.60120 ¥121.88978 APPENDIX D TO SUBPART M OF PART 922—DREDGED MATERIAL DISPOSAL SITES ADJACENT TO THE MONTEREY BAY NATIONAL MARINE SANCTUARY [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] As of January 1, 1993, the U.S. Army Corps of Engineers operates the following dredged material disposal site adjacent to the Sanc tuary off of the Golden Gate: Point ID No. Latitude Longitude 1 ............................................. 37.76458 ¥122.56900 2 ............................................. 37.74963 ¥122.62281 3 ............................................. 37.74152 ¥122.61932 4 ............................................. 37.75677 ¥122.56482 Point ID No. Latitude Longitude 5 ............................................. 37.76458 ¥122.56900 APPENDIX E TO SUBPART M OF PART 922—MOTORIZED PERSONAL WATERCRAFT ZONES AND ACCESS ROUTES WITHIN THE SANCTUARY [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] The five zones and access routes are: (1) The approximately one [1.0] nmi2 area off Pillar Point Harbor from harbor launch ramps, through the harbor entrance to the northern boundary of Zone One: Point ID No. Latitude Longitude 1 (flashing 5-second breakwater en trance light and horn located at the seaward end of the outer west break water). 37.49395 ¥122.48477 2 (bell buoy) .............. 37.48167 ¥122.48333 3 ................................ 37.48000 ¥122.46667 4 ................................ 37.49333 ¥122.46667 (2) The approximately five [5.0] nmi2 area off of Santa Cruz Small Craft Harbor from harbor launch ramps, through the harbor en trance, and then along a 100-yard wide access route southwest along a bearing of approxi mately 196° true (180° magnetic) to the red and white whistle buoy at 36.93833 N, 122.01000 W. Zone Two is bounded by: Point ID No. Latitude Longitude 1 ................................ 36.91667 ¥122.03333 2 ................................ 36.91667 ¥121.96667 3 ................................ 36.94167 ¥121.96667 4 ................................ 36.94167 ¥122.03333 (3) The approximately six [6.0] nmi2 area off of Moss Landing Harbor from harbor launch ramps, through harbor entrance, and then along a 100-yard wide access route southwest along a bearing of approximately 230° true (215° magnetic) to the red and white bell buoy at the eastern boundary of Zone Three bounded by: Point ID No. Latitude Longitude 1 ................................ 36.83333 ¥121.82167 2 ................................ 36.83333 ¥121.84667 3 ................................ 36.77833 ¥121.84667 4 ................................ 36.77833 ¥121.81667 5 (red and white bell buoy). 36.79833 ¥121.80167 6 ................................ 36.81500 ¥121.80333 (4) The approximately five [5.0] nmi2 area off of Monterey Harbor from harbor launch ramps to the seaward end of the U.S. Coast VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00183 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 174 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. M, App. F Guard Pier, and then along a 100-yard wide access route northeast along a bearing of ap proximately 15° true (0° magnetic) to the southern boundary of Zone Four bounded by: Point ID No. Latitude Longitude 1 ................................ 36.64500 ¥121.92333 2 ................................ 36.61500 ¥121.87500 3 ................................ 36.63833 ¥121.85500 4 ................................ 36.66667 ¥121.90667 (5) The approximately one-tenth [0.10] nmi2 area near Pillar Point from the Pillar Point Harbor entrance along a 100-yard wide access route southeast along a bearing of approxi mately 174° true (159° magnetic) to the green bell buoy (identified as ‘‘Buoy 3’’) at 37.48154 N, 122.48156 W and then along a 100-yard wide access route northwest along a bearing of ap proximately 284° true (269° magnetic) to the green gong buoy (identified as ‘‘Buoy 1’’) at 37.48625 N, 122.50603 W, the southwest bound ary of Zone Five. Zone Five exists only when a High Surf Warning has been issued by the National Weather Service and is in effect for San Mateo County and only during Decem ber, January, and February. Zone Five is bounded by: Point ID No. Latitude Longitude 1 (gong buoy identi fied as ‘‘Buoy 1’’). 37.48625 ¥122.50603 2 ................................ 37.49305 ¥122.50603 3 (Sail Rock) ............. 37.49305 ¥122.50105 4 ................................ 37.48625 ¥122.50105 [75 FR 53571, Sept. 1, 2010] APPENDIX F TO SUBPART M OF PART 922—DAVIDSON SEAMOUNT MANAGE MENT ZONE [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] Point ID No. Latitude Longitude 1 ............................................. 35.90000 ¥123.00000 2 ............................................. 35.90000 ¥122.50000 3 ............................................. 35.50000 ¥122.50000 4 ............................................. 35.50000 ¥123.00000 Subpart N—Stellwagen Bank National Marine Sanctuary § 922.140 Boundary. (a) The Stellwagen Bank National Marine Sanctuary (Sanctuary) consists of an area of approximately 638 square nautical miles (NM) of Federal marine waters and the submerged lands there under, over and around Stellwagen Bank and other submerged features off the coast of Massachusetts. The bound ary encompasses the entirety of Stellwagen Bank; Tillies Bank, to the northeast of Stellwagen Bank; and por tions of Jeffreys Ledge, to the north of Stellwagen Bank. (b) The Sanctuary boundary is identi fied by the following coordinates, indi cating the most northeast, southeast, southwest, west-northwest, and north northwest points: 42°45′59.83″ N×70°13′01.77″ W (NE); 42°05′35.51″ N×70°02′08.14″ W (SE); 42°07′44.89″ W×70°28′15.44″ W (SW); 42°32′53.52″ N×70°35′52.38″ W (WNW); and 42°39′04.08″ N×70°30′11.29″ W (NNW). The western border is formed by a straight line con necting the most southwest and the west-northwest points of the Sanc tuary. At the most west-northwest point, the Sanctuary border follows a line contiguous with the three-mile ju risdictional boundary of Massachusetts to the most north-northwest point. From this point, the northern border is formed by a straight line connecting the most north-northwest point and the most northeast point. The eastern border is formed by a straight line con necting the most northeast and the most southeast points of the Sanc tuary. The southern border follows a straight line between the most south west point and a point located at 42°06′54.57″ N × 70°16′42.7″ W. From that point, the southern border then con tinues in a west-to-east direction along a line contiguous with the three-mile jurisdictional boundary of Massachu setts until reaching the most southeast point of the Sanctuary. The boundary coordinates are listed in appendix A to this subpart. § 922.141 Definitions. In addition to those definitions found at § 922.3, the following definitions apply to this subpart: Industrial material means mineral, as defined in § 922.3. Traditional fishing means those com mercial or recreational fishing meth ods which have been conducted in the past within the Sanctuary. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00184 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 175 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.142 § 922.142 Prohibited or otherwise reg ulated activities. (a) Except as specified in paragraphs (b) through (f) of this section, the fol lowing activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted: (1)(i) Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter except: (A) Fish, fish parts, chumming mate rials or bait used in or resulting from traditional fishing operations in the Sanctuary; (B) Biodegradable effluent incidental to vessel use and generated by marine sanitation devices approved in accord ance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 et seq.; (C) Water generated by routine vessel operations (e.g., cooling water, deck wash down and graywater as defined by section 312 of the FWPCA) excluding oily wastes from bilge pumping; or (D) Engine exhaust. (ii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except those listed in paragraphs (a)(1)(i) (A) through (D) of this section, that subse quently enters the Sanctuary and in jures a Sanctuary resource or quality. (2) Exploring for, developing or pro ducing industrial materials within the Sanctuary. (3) Drilling into, dredging or other wise altering the seabed of the Sanc tuary; or constructing, placing or abandoning any structure, material or other matter on the seabed of the Sanctuary, except as an incidental re sult of: (i) Anchoring vessels; (ii) Traditional fishing operations; or (iii) Installation of navigation aids. (4) Moving, removing or injuring, or attempting to move, remove or injure, a Sanctuary historical resource. This prohibition does not apply to moving, removing or injury resulting inciden tally from traditional fishing oper ations. (5) Taking any marine reptile, ma rine mammal or seabird in or above the Sanctuary, except as permitted by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq. (6) Lightering in the Sanctuary. (7) Possessing within the Sanctuary (regardless of where taken, moved or removed from), except as necessary for valid law enforcement purposes, any historical resource, or any marine mammal, marine reptile or seabird taken in violation of the MMPA, ESA or MBTA. (8) Interfering with, obstructing, de laying or preventing an investigation, search, seizure or disposition of seized property in connection with enforce ment of the Act or any regulation or permit issued under the Act. (b) The prohibitions in paragraphs (a) (1), and (3) through (8) of this section do not apply to any activity necessary to respond to an emergency threat ening life, property or the environ ment. (c)(1)(i) All Department of Defense military activities shall be carried out in a manner that avoids to the max imum extent practicable any adverse impacts on Sanctuary resources and qualities. (ii) Department of Defense military activities may be exempted from the prohibitions in paragraphs (a) (1) and (3) through (7) of this section by the Di rector after consultation between the Director and the Department of De fense. (iii) If it is determined that an activ ity may be carried out, such activity shall be carried out in a manner that avoids to the maximum extent prac ticable any advance impact on Sanc tuary resources and qualities. Civil en gineering and other civil works projects conducted by the U.S. Army Corps of Engineers are excluded from the scope of this paragraph(c). (2) In the event of threatened or ac tual destruction of, loss of, or injury to a Sanctuary resource or quality result ing from an untoward incident, includ ing but not limited to spills and groundings caused by the Department of Defense, the Department of Defense shall promptly coordinate with the Di rector for the purpose of taking appro priate actions to respond to and miti gate the harm and, if possible, restore VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00185 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 176 15 CFR Ch. IX (1–1–21 Edition) § 922.143 or replace the Sanctuary resource or quality. (d) The prohibitions in paragraphs (a) (1) and (3) through (7) of this section do not apply to any activity executed in accordance with the scope, purpose, terms and conditions of a National Ma rine Sanctuary permit issued pursuant to § 922.48 and § 922.143 or a Special Use permit issued pursuant to section 310 of the Act. (e) The prohibitions in paragraphs (a)(1) and (3) through (7) of this section do not apply any activity authorized by any lease, permit, license, approval or other authorization issued after the effective date of Sanctuary designation (November 4, 1992) and issued by any Federal, State or local authority of competent jurisdiction, provided that the applicant complies with § 922.49, the Director notifies the applicant and au thorizing agency that he or she does not object to issuance of the authoriza tion, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authoriza tions in existence on the effective date of designation constitute authoriza tions issued after the effective date. (f) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a permit under § 922.48 and § 922.143, or under section 310 of the act, authorizing, or otherwise approving, the exploration for, develop ment or production of industrial mate rials within the Sanctuary, or the dis posal of dredged materials within the Sanctuary (except by a certification, pursuant to § 922.47, of valid authoriza tions in existence on November 4, 1992) and any leases, licenses, permits, ap provals or other authorizations author izing the exploration for, development or production of industrial materials in the Sanctuary issued by other authori ties after November 4, 1992, shall be in valid. § 922.143 Permit procedures and cri teria. (a) A person may conduct an activity prohibited by § 922.142 (a) (1) and (3) through (7) if conducted in accordance with scope, purpose, manner, terms and conditions of a permit issued under this section and § 922.48. (b) Applications for such permits should be addressed to the Director, Of fice of Ocean and Coastal Resource Management; ATTN: Manager, Stellwagen Bank National Marine Sanctuary, 14 Union Street, Plymouth, MA 02360. (c) The Director, at his or her discre tion may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an ac tivity prohibited by § 922.142(a) (1) and (3) through (7), if the Director finds that the activity will have only neg ligible short-term adverse effects on Sanctuary resources and qualities and will: further research related to Sanc tuary resources and qualities; further the educational, natural or historical resource value of the Sanctuary; fur ther salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or assist in managing the Sanctuary. In deciding whether to issue a permit, the Director may consider such factors as: the professional qualifications and financial ability of the applicant as re lated to the proposed activity; the du ration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the con duct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; and the end value of the ac tivity. In addition, the Director may consider such other factors as he or she deems appropriate. (d) It shall be a condition of any per mit issued that the permit or a copy thereof be displayed on board all ves sels or aircraft used in the conduct of the activity. (e) The Director may, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public. (f) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the per mit and/or that the permit holder sub mit one or more reports on the status, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00186 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 177 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.151 progress or results of any activity au thorized by the permit. APPENDIX A TO SUBPART N OF PART 922—STELLWAGEN BANK NATIONAL MARINE SANCTUARY BOUNDARY CO ORDINATES [Appendix Based on North American Datum of 1927] Pt. Latitude Longitude Loran 9960W 9960X E1 42°45′59.83″ 70°13′01.77″ 13,607.19 25,728.57 E2 42°05′35.51″ 70°02′08.14″ 13,753.39 25,401.78 E3 42°06′8.25″ 70°03′17.55″ 13,756.72 25,412.46 E4 42°06′2.53″ 70°04′03.36″ 13,760.30 25,417.53 E5 42°07′02.70″ 70°05′13.61″ 13,764.52 25,427.27 E6 42°07′13.0″ 70°06′23.75″ 13,770.54 25,434.45 E7 42°07′35.95″ 70°07′27.89″ 13,775.08 25,442.51 E8 42°07′42.33″ 70°08′26.07″ 13,780.35 25,448.27 E9 42°07′59.94″ 70°09′19.78″ 13,784.24 25,455.02 E10 42°08′04.95″ 70°10′24.40″ 13,790.27 25,461.28 E11 42°07′55.19″ 70°11′47.67″ 13,799.38 25,467.56 E12 42°07′59.84″ 70°13′03.35″ 13,806.58 25,474.95 E13 42°07′46.55″ 70°14′21.91″ 13,815.52 25,480.62 E14 42°07′27.29″ 70°15′22.95″ 13,823.21 25,484.05 E15 42°06′54.57″ 70°16′42.71″ 13,833.88 25,487.79 E16 42°07′44.89″ 70°28′15.44″ 13,900.14 25,563.22 E17 42°32′53.52″ 70°35′52.38″ 13,821.60 25,773.51 E18 42°33′30.24″ 70°35′14.96″ 13,814.43 25,773.54 E19 42°33′48.14″ 70°35′03.81″ 13,811.68 25,774.28 E20 42°34′30.45″ 70°34′22.98″ 13,803.64 25,774.59 E21 42°34′50.37″ 70°33′21.93″ 13,795.43 25,770.55 E22 42°35′16.08″ 70°32′32.29″ 13,787.92 25,768.31 E23 42°35′41.80″ 70°31′44.20″ 13,780.57 25,766.25 E24 42°36′23.08″ 70°30′58.98″ 13,772.14 25,766.14 E25 42°37′15.51″ 70°30′23.01″ 13,763.69 25,768.12 E26 42°37′58.88″ 70°30′06.60″ 13,758.09 25,771.07 E27 42°38′32.46″ 70°30′06.54″ 13,755.07 25,774.58 E28 42°39′04.08″ 70°30′11.29″ 13,752.75 25,778.35 Subpart O—Olympic Coast National Marine Sanctuary § 922.150 Boundary. (a) The Olympic Coast National Ma rine Sanctuary (Sanctuary) consists of an area of approximately 2,408 square nautical miles (nmi) of coastal and ocean waters, and the submerged lands thereunder, off the central and north ern coast of the State of Washington. (b) The Sanctuary boundary extends from Koitlah Point due north to the United States/Canada international boundary. The Sanctuary boundary then follows the U.S./Canada inter national boundary seaward to the 100 fathom isobath. The seaward boundary of the Sanctuary approximates the 100 fathom isobath in a southerly direction from the U.S./Canada international boundary to a point due west of the mouth of the Copalis River cutting across the heads of Nitnat, Juan de Fuca and Quinault Canyons. The coast al boundary of the Sanctuary is the mean higher high water line when adja cent to Federally managed lands cut ting across the mouths of all rivers and streams, except where adjacent to In dian reservations, State and county owned lands; in such case, the coastal boundary is the mean lower low water line. La Push harbor is excluded from the Sanctuary boundary shoreward of the International Collision at Sea regu lation (Colreg.) demarcation lines. The boundary coordinates are listed in ap pendix A to this subpart. [60 FR 66877, Dec. 27, 1995, as amended at 76 FR 67360, Nov. 1, 2011] § 922.151 Definitions. In addition to those definitions found at § 922.3, the following definitions apply to this subpart: Clean means not containing detect able levels of harmful matter. Cruise ship means a vessel with 250 or more passenger berths for hire. Harmful matter means any substance, or combination of substances, that be cause of its quantity, concentration, or physical, chemical, or infectious char acteristics may pose a present or po tential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (re gardless of quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensa tion and Liability Act at 40 CFR 302.4. Indian reservation means a tract of land set aside by the Federal Govern ment for use by a federally recognized American Indian tribe and includes, but is not limited to, the Makah, Quileute, Hoh, and Quinault Reserva tions. Lawful fishing means fishing author ized by a tribal, State or Federal entity with jurisdiction over the activity. Treaty means a formal agreement be tween the United States Government and an Indian tribe. [76 FR 67360, Nov. 1, 2011] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00187 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 178 15 CFR Ch. IX (1–1–21 Edition) § 922.152 § 922.152 Prohibited or otherwise reg ulated activities. (a) Except as specified in paragraphs (b) through (g) of this section, the fol lowing activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted: (1) Exploring for, developing or pro ducing oil, gas or minerals within the Sanctuary. (2)(i) Discharging or depositing, from within or into the Sanctuary, other than from a cruise ship, any material or other matter except: (A) Fish, fish parts, chumming mate rials or bait used in or resulting from lawful fishing operations in the Sanc tuary; (B) Biodegradable effluent incidental to vessel use and generated by marine sanitation devices approved in accord ance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 et seq.; (C) Water generated by routine vessel operations (e.g., cooling water, deck wash down, and graywater as defined by section 312 of the FWPCA) excluding oily wastes from bilge pumping; (D) Engine exhaust; or (E) Dredge spoil in connection with beach nourishment projects related to the Quillayute River Navigation Project. (ii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except those listed in paragraphs (a)(2)(i)(A) through (E) of this section, that subse quently enters the Sanctuary and in jures a Sanctuary resource or quality. (3) Discharging or depositing, from within or into the Sanctuary, any ma terials or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, engine ex haust, or anchor wash. (4) Moving, removing or injuring, or attempting to move, remove or injure, a Sanctuary historical resource. This prohibition does not apply to moving, removing or injury resulting inciden tally from lawful fishing operations. (5) Drilling into, dredging or other wise altering the submerged lands of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the submerged lands of the Sanctuary, except as an in cidental result of: (i) Anchoring vessels; (ii) Lawful fishing operations; (iii) Installation of navigation aids; (iv) Harbor maintenance in the areas necessarily associated with the Quillayute River Navigation Project, including dredging of entrance chan nels and repair, replacement or reha bilitation of breakwaters and jetties, and related beach nourishment; (v) Construction, repair, replacement or rehabilitation of boat launches, docks or piers, and associated break waters and jetties; or (vi) Beach nourishment projects re lated to harbor maintenance activities. (6) Taking any marine mammal, sea turtle or seabird in or above the Sanc tuary, except as authorized by the Ma rine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to any Indian treaty with an Indian tribe to which the United States is a party, provided that the In dian treaty right is exercised in accord ance with the MMPA, ESA, and MBTA, to the extent that they apply. (7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 2,000 feet over the waters within one nautical mile of the Flat tery Rocks, Quillayute Needles, or Copalis National Wildlife Refuges or within one nautical mile seaward from the coastal boundary of the Sanctuary, except for activities related to tribal timber operations conducted on res ervation lands, or to transport persons or supplies to or from reservation lands as authorized by a governing body of an Indian tribe. Failure to maintain a minimum altitude of 2,000 feet above ground level over any such waters is presumed to disturb marine mammals or seabirds. (8) Possessing within the Sanctuary (regardless of where taken, moved or removed from) any historical resource, or any marine mammal, sea turtle, or seabird taken in violation of the MMPA, ESA, or MBTA, to the extent that they apply. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00188 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 179 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.152 (9) Interfering with, obstructing, de laying or preventing an investigation, search, seizure or disposition of seized property in connection with enforce ment of the Act or any regulation or permit issued under the Act. (b) The prohibitions in paragraph (a)(2) through (5), (7), and (8) of this section do not apply to activities nec essary to respond to emergencies threatening life, property, or the envi ronment. (c) The prohibitions in paragraphs (a)(2) through (5), (7), and (8) of this section do not apply to activities nec essary for valid law enforcement pur poses. (d)(1) All Department of Defense military activities shall be carried out in a manner that avoids to the max imum extent practicable any adverse impacts on Sanctuary resources and qualities. (i) Except as provided in paragraph (d)(2) of this section, the prohibitions in paragraphs (a)(2) through (8) of this section do not apply to the following military activities performed by the Department of Defense in W–237A, W– 237B, and Military Operating Areas Olympic A and B in the Sanctuary: (A) Hull integrity tests and other deep water tests; (B) Live firing of guns, missiles, tor pedoes, and chaff; (C) Activities associated with the Quinault Range including the in-water testing of non-explosive torpedoes; and (D) Anti-submarine warfare oper ations. (ii) New activities may be exempted from the prohibitions in paragraphs (a)(2) through (8) of this section by the Director after consultation between the Director and the Department of De fense. If it is determined that an activ ity may be carried out such activity shall be carried out in a manner that avoids to the maximum extent prac ticable any adverse impact on Sanc tuary resources and qualities. Civil en gineering and other civil works projects conducted by the U.S. Army Corps of Engineers are excluded from the scope of this paragraph (d). (2) The Department of Defense is pro hibited from conducting bombing ac tivities within the Sanctuary. (3) In the event of threatened or ac tual destruction of, loss of, or injury to a Sanctuary resource or quality result ing from an untoward incident, includ ing but not limited to spills and groundings caused by the Department of Defense, the Department of Defense shall promptly coordinate with the Di rector for the purpose of taking appro priate actions to respond to and miti gate the harm and, if possible, restore or replace the Sanctuary resource or quality. (e) The prohibitions in paragraphs (a)(2) through (8) of this section do not apply to any activity executed in ac cordance with the scope, purpose, terms and conditions of a National Ma rine Sanctuary permit issued pursuant to §§ 922.48 and 922.153 or a Special Use permit issued pursuant to section 310 of the Act. (f) Members of a federally recognized Indian tribe may exercise aboriginal and treaty-secured rights, subject to the requirements of other applicable law, without regard to the require ments of this part. The Director may consult with the governing body of a tribe regarding ways the tribe may ex ercise such rights consistent with the purposes of the Sanctuary. (g) The prohibitions in paragraphs (a)(2) through (8) of this section do not apply to any activity authorized by any lease, permit, license, or other au thorization issued after July 22, 1994, and issued by any Federal, State or local authority of competent jurisdic tion, provided that the applicant com plies with § 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems nec essary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in ex istence on the effective date of designa tion constitute authorizations issued after the effective date. (h) Notwithstanding paragraphs (e) and (g) of this section, in no event may the Director issue a National Marine Sanctuary permit under §§ 922.48 and 922.153 or a Special Use permit under section 310 of the Act authorizing, or otherwise approve: The exploration for, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00189 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 180 15 CFR Ch. IX (1–1–21 Edition) § 922.153 development or production of oil, gas or minerals within the Sanctuary; the discharge of primary-treated sewage within the Sanctuary; the disposal of dredged material within the Sanctuary other than in connection with beach nourishment projects related to the Quillayute River Navigation Project; or bombing activities within the Sanc tuary. Any purported authorizations issued by other authorities after July 22, 1994 for any of these activities with in the Sanctuary shall be invalid. [76 FR 67360, Nov. 1, 2011, as amended at 77 FR 3922, Jan. 26, 2012] § 922.153 Permit procedures and cri teria (a) A person may conduct an activity prohibited by paragraphs (a)(2) through (8) of § 922.152 if conducted in accord ance with the scope, purpose, terms and conditions of a permit issued under this section and § 922.48. (b) Applications for such permits should be addressed to the Director, Of fice of National Marine Sanctuaries; ATTN: Superintendent, Olympic Coast National Marine Sanctuary, 115 East Railroad Avenue, Suite 301, Port Ange les, WA 98362–2925. (c) The Director, at his or her discre tion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an ac tivity prohibited by paragraphs (a)(2) through (8) of § 922.152, if the Director finds that the activity will not sub stantially injure Sanctuary resources and qualities and will: Further re search related to Sanctuary resources and qualities; further the educational, natural or historical resource value of the Sanctuary; further salvage or re covery operations in or near the Sanc tuary in connection with a recent air or marine casualty; assist in managing the Sanctuary; further salvage or re covery operations in connections with an abandoned shipwreck in the Sanc tuary title to which is held by the State of Washington; or be issued to an American Indian tribe adjacent to the Sanctuary, and/or its designee as cer tified by the governing body of the tribe, to promote or enhance tribal self-determination, tribal government functions, the exercise of treaty rights, the economic development of the tribe, subsistence, ceremonial and spiritual activities, or the education or training of tribal members. For the purpose of this part, American Indian tribes adja cent to the sanctuary mean the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation. In deciding whether to issue a permit, the Director may consider such factors as: The pro fessional qualifications and financial ability of the applicant as related to the proposed activity; the duration of the activity and the duration of its ef fects; the appropriateness of the meth ods and procedures proposed by the ap plicant for the conduct of the activity; the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; the end value of the activity; and the im pacts of the activity on adjacent Amer ican Indian tribes. Where the issuance or denial of a permit is requested by the governing body of an American In dian tribe, the Director shall consider and protect the interests of the tribe to the fullest extent practicable in keep ing with the purposes of the Sanctuary and his or her fiduciary duties to the tribe. The Director may also deny a permit application pursuant to this section, in whole or in part, if it is de termined that the permittee or appli cant has acted in violation of the terms or conditions of a permit or of these regulations. In addition, the Director may consider such other factors as he or she deems appropriate. (d) It shall be a condition of any per mit issued that the permit or a copy thereof be displayed on board all ves sels or aircraft used in the conduct of the activity. (e) The Director may, inter alia, make it a condition of any permit issued that any data or information ob tained under the permit be made avail able to the public. (f) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the per mit holder submit one or more reports on the status, progress or results of any activity authorized by the permit. (g) The Director shall obtain the ex press written consent of the governing VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00190 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 181 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.160 body of an Indian tribe prior to issuing a permit, if the proposed activity in volves or affects resources of cultural or historical significance to the tribe. (h) Removal, or attempted removal of any Indian cultural resource or arti fact may only occur with the express written consent of the governing body of the tribe or tribes to which such re source or artifact pertains, and certifi cation by the Director that such activi ties occur in a manner that minimizes damage to the biological and archeo logical resources. Prior to permitting entry onto a significant cultural site designated by a tribal governing body, the Director shall require the express written consent of the governing body of the tribe or tribes to which such cul tural site pertains. [80 FR 11112, Mar. 2, 2015] § 922.154 Consultation with the State of Washington, affected Indian tribes, and adjacent county govern ments. (a) The Director shall regularly con sult with the State of Washington, the governing bodies of tribes with reserva tions adjacent to the Sanctuary, and adjacent county governments regard ing areas of mutual concern, including Sanctuary programs, permitting, ac tivities, development, and threats to Sanctuary resources. (b) The Director shall, when re quested by such governments, enter into a memorandum of understanding regarding such consultations. APPENDIX A TO SUBPART O OF PART 922—OLYMPIC COAST NATIONAL MA RINE SANCTUARY BOUNDARY COORDI NATES [Based on North American Datum of 1983] Point Latitude Longitude 1 .............................. 47°07′45″ 124°11′02″ 2 .............................. 47°07′45″ 124°58′12″ 3 .............................. 47°35′05″ 125°00′00″ 4 .............................. 47°40′05″ 125°04′44″ 5 .............................. 47°50′01″ 125°05′42″ 6 .............................. 47°57′13″ 125°29′13″ 7 .............................. 48°07′33″ 125°38′20″ 8 .............................. 48°15′00″ 125°40′54″ 9 .............................. 48°18′21.2″ 125°30′02.9″ 10 ............................ 48°20′15.2″ 125°22′52.9″ 11 ............................ 48°26′46.2″ 125°09′16.9″ 12 ............................ 48°27′09.2″ 125°08′29.9″ 13 ............................ 48°28′08.2″ 125°05′51.9″ 14 ............................ 48°29′43.2″ 125°00′10.9″ 15 ............................ 48°29′56.2″ 124°59′19.9″ 16 ............................ 48°30′13.2″ 124°54′56.9″ [Based on North American Datum of 1983] Point Latitude Longitude 17 ............................ 48°30′21.2″ 124°50′25.9″ 18 ............................ 48°30′10.2″ 124°47′17.9″ 19 ............................ 48°29′36.4″ 124°43′38.1″ 20 ............................ 48°28′08″ 124°38′13″ 21 ............................ 48°23′17″ 124°38′13″ Subpart P—Florida Keys National Marine Sanctuary SOURCE: 62 FR 32161, June 12, 1997, unless otherwise noted. § 922.160 Purpose. (a) The purpose of the regulations in this subpart is to implement the com prehensive management plan for the Florida Keys National Marine Sanc tuary by regulating activities affecting the resources of the Sanctuary or any of the qualities, values, or purposes for which the Sanctuary is designated, in order to protect, preserve and manage the conservation, ecological, rec reational, research, educational, his torical, and aesthetic resources and qualities of the area. In particular, the regulations in this part are intended to protect, restore, and enhance the living resources of the Sanctuary, to con tribute to the maintenance of natural assemblages of living resources for fu ture generations, to provide places for species dependent on such living re sources to survive and propagate, to fa cilitate to the extent compatible with the primary objective of resource pro tection all public and private uses of the resources of the Sanctuary not pro hibited pursuant to other authorities, to reduce conflicts between such com patible uses, and to achieve the other policies and purposes of the Florida Keys National Marine Sanctuary and Protection Act and the National Ma rine Sanctuaries Act. (b) Section 304(e) of the NMSA re quires the Secretary to review manage ment plans and regulations every five years, and make necessary revisions. Upon completion of the five year re view of the Sanctuary management plan and regulations, the Secretary will repropose the regulations in their entirety with any proposed changes thereto, including those regulations in subparts A and E of this part that VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00191 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 182 15 CFR Ch. IX (1–1–21 Edition) § 922.161 apply to the Sanctuary. The Governor of the State of Florida will have the opportunity to review the re-proposed regulations before they take effect and if the Governor certifies such regula tions as unacceptable, they will not take effect in State waters of the Sanc tuary. § 922.161 Boundary. The Sanctuary consists of an area of approximately 2900 square nautical miles (9,800 square kilometers) of coastal and ocean waters, and the sub merged lands thereunder, surrounding the Florida Keys in Florida. Appendix I to this subpart sets forth the precise Sanctuary boundary. [66 FR 4369, Jan. 17, 2001] § 922.162 Definitions. (a) The following definitions apply to the Florida Keys National Marine Sanctuary regulations. To the extent that a definition appears in § 922.3 and this section, the definition in this sec tion governs. Acts means the Florida Keys National Marine Sanctuary and Protection Act, as amended, (FKNMSPA) (Pub. L. 101– 605), and the National Marine Sanc tuaries Act (NMSA), also known as Title III of the Marine Protection, Re search, and Sanctuaries Act, as amend ed, (MPRSA) (16 U.S.C. 1431 et seq.). Adverse effect means any factor, force, or action that independently or cumu latively damages, diminishes, degrades, impairs, destroys, or otherwise harms any Sanctuary resource, as defined in section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or any of the qualities, values, or purposes for which the Sanctuary is designated. Airboat means a vessel operated by means of a motor driven propeller that pushes air for momentum. Areas To Be Avoided means the areas in which vessel operations are prohib ited pursuant to section 6(a)(1) of the FKNMSPA (see § 922.164(a)). Appendix VII to this subpart sets forth the geo graphic coordinates of these areas, in cluding any modifications thereto made in accordance with section 6(a)(3) of the FKNMSPA. Closed means all entry or use is pro hibited. Coral means but is not limited to the corals of the Class Hydrozoa (stinging and hydrocorals); Class Anthozoa, Sub class Hexacorallia, Order Scleractinia (stony corals); Class Anthozoa, Sub class Ceriantipatharia, Order Antipatharia (black corals); and Class Anthozoa, Subclass Ocotocorallia, Order Gorgonacea, species Gorgonia ventalina and Gorgonia flabellum (sea fans). Coral area means marine habitat where coral growth abounds including patch reefs, outer bank reefs, deep water banks, and hardbottoms. Coral reefs means the hard bottoms, deep-water banks, patch reefs, and outer bank reefs. Ecological Reserve means an area of the Sanctuary consisting of contig uous, diverse habitats, within which uses are subject to conditions, restric tions and prohibitions, including access restrictions, intended to minimize human influences, to provide natural spawning, nursery, and permanent resi dence areas for the replenishment and genetic protection of marine life, and also to protect and preserve natural as semblages of habitats and species with in areas representing a broad diversity of resources and habitats found within the Sanctuary. Appendix IV to this subpart sets forth the geographic co ordinates of these areas. Existing Management Area means an area of the Sanctuary that is within or is a resource management area estab lished by NOAA or by another Federal authority of competent jurisdiction as of the effective date of these regula tions where protections above and be yond those provided by Sanctuary-wide prohibitions and restrictions are need ed to adequately protect resources. Ap pendix II to this subpart sets forth the geographic coordinates of these areas. Exotic species means a species of plant, invertebrate, fish, amphibian, reptile or mammal whose natural zoogeographic range would not have in cluded the waters of the Atlantic Ocean, Caribbean, or Gulf of Mexico without passive or active introduction to such area through anthropogenic means. Fish means finfish, mollusks, crusta ceans, and all forms of marine animal VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00192 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 183 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.162 and plant life other than marine mam mals and birds. Fishing means: (1) The catching, taking, or har vesting of fish; the attempted catching, taking, or harvesting of fish; any other activity which can reasonably be ex pected to result in the catching, tak ing, or harvesting of fish; or any oper ation at sea in support of, or in prepa ration for, any activity described in this subparagraph (1). (2) Such term does not include any scientific research activity which is conducted by a scientific research ves sel. Hardbottom means a submerged ma rine community comprised of orga nisms attached to exposed solid rock substrate. Hardbottom is the substrate to which corals may attach but does not include the corals themselves. Idle speed only/no-wake means a speed at which a boat is operated that is no greater than 4 knots or does not produce a wake. Idle speed only/no-wake zone means a portion of the Sanctuary where the speed at which a boat is operated may be no greater than 4 knots or may not produce a wake. Length overall (LOA) or length means, as used in § 922.167 with respect to a vessel, the horizontal distance, rounded to the nearest foot (with 0.5 ft and above rounded upward), between the foremost part of the stem and the aftermost part of the stern, excluding bowsprits, rudders, outboard motor brackets, and similar fittings or at tachments. Live rock means any living marine or ganism or an assemblage thereof at tached to a hard substrate, including dead coral or rock but not individual mollusk shells (e.g., scallops, clams, oysters). Living marine organisms as sociated with hard bottoms, banks, reefs, and live rock may include, but are not limited to: sea anemones (Phy lum Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera); tube worms (Phylum Annelida), includ ing fan worms, feather duster worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts (Phylum Chordata); and marine algae, including Mermaid’s fan and cups (Udotea spp.), corraline algae, green feather, green grape algae (Caulerpa spp.) and water cress (Halimeda spp.). Marine life species means any species of fish, invertebrate, or plant included in sections (2), (3), or (4) of Rule 46– 42.001, Florida Administrative Code, re printed in appendix VIII to this sub part. Military activity means an activity conducted by the Department of De fense with or without participation by foreign forces, other than civil engi neering and other civil works projects conducted by the U.S. Army Corps of Engineers. No-access buffer zone means a portion of the Sanctuary where vessels are pro hibited from entering regardless of the method of propulsion. No motor zone means an area of the Sanctuary where the use of internal combustion motors is prohibited. A vessel with an internal combustion motor may access a no motor zone only through the use of a push pole, paddle, sail, electric motor or similar means of operation but is prohibited from using it’s internal combustion motor. Not available for immediate use means not readily accessible for immediate use, e.g., by being stowed unbaited in a cabin, locker, rod holder, or similar storage area, or by being securely cov ered and lashed to a deck or bulkhead. Officially marked channel means a channel marked by Federal, State of Florida, or Monroe County officials of competent jurisdiction with naviga tional aids except for channels marked idle speed only/no wake. Personal watercraft means any jet or air-powered watercraft operated by standing, sitting, or kneeling on or be hind the vessel, in contrast to a con ventional boat, where the operator stands or sits inside the vessel, and that uses an inboard engine to power a water jet pump for propulsion, instead of a propeller as in a conventional boat. Prop dredging means the use of a ves sel’s propulsion wash to dredge or oth erwise alter the seabed of the Sanc tuary. Prop dredging includes, but is not limited to, the use of propulsion wash deflectors or similar means of dredging or otherwise altering the sea bed of the Sanctuary. Prop dredging does not include the disturbance to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00193 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 184 15 CFR Ch. IX (1–1–21 Edition) § 922.162 bottom sediments resulting from nor mal vessel propulsion. Prop scarring means the injury to seagrasses or other immobile orga nisms attached to the seabed of the Sanctuary caused by operation of a vessel in a manner that allows its pro peller or other running gear, or any part thereof, to cause such injury (e.g., cutting seagrass rhizomes). Prop scar ring does not include minor disturb ances to bottom sediments or seagrass blades resulting from normal vessel propulsion. Residential shoreline means any man made or natural: (1) Shoreline, (2) Canal mouth, (3) Basin, or (4) Cove adjacent to any residential land use district, including improved subdivision, suburban residential or suburban residential limited, sparsely settled, urban residential, and urban residential mobile home under the Monroe County land development regu lations. Sanctuary means the Florida Keys National Marine Sanctuary. Sanctuary Preservation Area means an area of the Sanctuary that encom passes a discrete, biologically impor tant area, within which uses are sub ject to conditions, restrictions and pro hibitions, including access restrictions, to avoid concentrations of uses that could result in significant declines in species populations or habitat, to re duce conflicts between uses, to protect areas that are critical for sustaining important marine species or habitats, or to provide opportunities for sci entific research. Appendix V to this subpart sets forth the geographic co ordinates of these areas. Sanctuary wildlife means any species of fauna, including avifauna, that oc cupy or utilize the submerged re sources of the Sanctuary as nursery areas, feeding grounds, nesting sites, shelter, or other habitat during any portion of their life cycles. Seagrass means any species of marine angiosperms (flowering plants) that in habit portions of the seabed in the Sanctuary. Those species include, but are not limited to: Thalassia testudinum (turtle grass); Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass); Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima. Special-use Area means an area of the Sanctuary set aside for scientific re search and educational purposes, recov ery or restoration of Sanctuary re sources, monitoring, to prevent use or user conflicts, to facilitate access and use, or to promote public use and un derstanding of Sanctuary resources. Appendix VI to this subpart sets forth the geographic coordinates of these areas. Stem means the foremost part of a vessel, consisting of a section of timber or fiberglass, or cast, forged, or rolled metal, to which the sides of the vessel are united at the fore end, with the lower end united to the keel, and with the bowsprit, if one is present, resting on the upper end. Stern means the aftermost part of the vessel. Tank vessel means any vessel that is constructed or adapted to carry, or that carries, oil or hazardous material in bulk as cargo or cargo residue, and that— (1) Is a United States flag vessel; (2) Operates on the navigable waters of the United States; or (3) Transfers oil or hazardous mate rial in a port or place subject to the ju risdiction of the United States [46 U.S.C. 2101]. Traditional fishing means those com mercial or recreational fishing activi ties that were customarily conducted within the Sanctuary prior to its des ignation as identified in the Environ mental Impact Statement and Manage ment Plan for this Sanctuary. Tropical fish means any species in cluded in section (2) of Rule 46–42.001, Florida Administrative Code, repro duced in appendix VIII to this subpart, or any part thereof. Vessel means a watercraft of any de scription, including, but not limited to, motorized and non-motorized watercraft, personal watercraft, air boats, and float planes while maneu vering on the water, capable of being used as a means of transportation in/on the waters of the Sanctuary. For pur poses of this part, the terms ‘‘vessel,’’ ‘‘watercraft,’’ and ‘‘boat’’ have the same meaning. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00194 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 185 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.163 Wildlife Management Area means an area of the Sanctuary established for the management, protection, and pres ervation of Sanctuary wildlife re sources, including such an area estab lished for the protection and preserva tion of endangered or threatened spe cies or their habitats, within which ac cess is restricted to minimize disturb ances to Sanctuary wildlife; to ensure protection and preservation consistent with the Sanctuary designation and other applicable law governing the pro tection and preservation of wildlife re sources in the Sanctuary. Appendix III to this subpart lists these areas and their access restrictions. (b) Other terms appearing in the reg ulations in this part are defined at 15 CFR 922.3, and/or in the Marine Protec tion, Research, and Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16 U.S.C. 1431 et seq. [62 FR 32161, June 12, 1997, as amended at 66 FR 4369, Jan. 17, 2001; 74 FR 38094, July 31, 2009] § 922.163 Prohibited activities—Sanc tuary-wide. (a) Except as specified in paragraph (b) through (e) of this section, the fol lowing activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted: (1) Mineral and hydrocarbon explo ration, development and production. Ex ploring for, developing, or producing minerals or hydrocarbons within the Sanctuary. (2) Removal of, injury to, or possession of coral or live rock. (i) Moving, remov ing, taking, harvesting, damaging, dis turbing, touching, breaking, cutting, or otherwise injuring, or possessing (re gardless of where taken from) any liv ing or dead coral, or coral formation, or attempting any of these activities, except as permitted under 50 CFR part 622. (ii) Harvesting, or attempting to har vest, any live rock from the Sanctuary, or possessing (regardless of where taken from) any live rock within the Sanctuary, except as authorized by a permit for the possession or harvest from aquaculture operations in the Ex clusive Economic Zone, issued by the National Marine Fisheries Service pur suant to applicable regulations under the appropriate Fishery Management Plan, or as authorized by the applica ble State authority of competent juris diction within the Sanctuary for live rock cultured on State submerged lands leased from the State of Florida, pursuant to applicable State law. See § 370.027, Florida Statutes and imple menting regulations. (3) Alteration of, or construction on, the seabed. Drilling into, dredging, or oth erwise altering the seabed of the Sanc tuary, or engaging in prop-dredging; or constructing, placing or abandoning any structure, material, or other mat ter on the seabed of the Sanctuary, ex cept as an incidental result of: (i) Anchoring vessels in a manner not otherwise prohibited by this part (see §§ 922.163(a)(5)(ii) and 922.164(d)(1)(v)); (ii) Traditional fishing activities not otherwise prohibited by this part; (iii) Installation and maintenance of navigational aids by, or pursuant to valid authorization by, any Federal, State, or local authority of competent jurisdiction; (iv) Harbor maintenance in areas nec essarily associated with Federal water resource development projects in exist ence on July 1, 1997, including mainte nance dredging of entrance channels and repair, replacement, or rehabilita tion of breakwaters or jetties; (v) Construction, repair, replace ment, or rehabilitation of docks, sea walls, breakwaters, piers, or marinas with less than ten slips authorized by any valid lease, permit, license, ap proval, or other authorization issued by any Federal, State, or local author ity of competent jurisdiction. (4) Discharge or deposit of materials or other matter. (i) Discharging or depos iting, from within the boundary of the Sanctuary, any material or other mat ter, except: (A) Fish, fish parts, chumming mate rials, or bait used or produced inci dental to and while conducting a tradi tional fishing activity in the Sanc tuary; (B) Water generated by routine vessel operations (e.g., deck wash down and graywater as defined in section 312 of the FWPCA), excluding oily wastes from bilge pumping; or (C) Cooling water from vessels or en gine exhaust; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00195 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 186 15 CFR Ch. IX (1–1–21 Edition) § 922.163 (ii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that sub sequently enters the Sanctuary and in jures a Sanctuary resource or quality, except: (A) Those listed in paragraph (a)(4)(i)(A) through (a)(4)(i)(C) of this section; (B) Sewage incidental to vessel use and generated by a marine sanitation device approved in accordance with section 312 of the Federal Water Pollu tion Control Act (FWPCA), as amend ed, 33 U.S.C. 1322 et seq.; (C) Those authorized under Monroe County land use permits; or (D) Those authorized under State permits. (5) Operation of vessels. (i) Operating a vessel in such a manner as to strike or otherwise injure coral, seagrass, or any other immobile organism attached to the seabed, including, but not limited to, operating a vessel in such a manner as to cause prop-scarring. (ii) Having a vessel anchored on liv ing coral other than hardbottom in water depths less than 40 feet when vis ibility is such that the seabed can be seen. (iii) Except in officially marked channels, operating a vessel at a speed greater than 4 knots or in manner which creates a wake: (A) Within an area designated idle speed only/no wake; (B) Within 100 yards of navigational aids indicating emergent or shallow reefs (international diamond warning symbol); (C) Within 100 yards of the red and white ‘‘divers down’’ flag (or the blue and white ‘‘alpha’’ flag in Federal waters); (D) Within 100 yards of residential shorelines; or (E) Within 100 yards of stationary vessels. (iv) Operating a vessel in such a man ner as to injure or take wading, roost ing, or nesting birds or marine mam mals. (v) Operating a vessel in a manner which endangers life, limb, marine re sources, or property. (vi) Having a marine sanitation de vice that is not secured in a manner that prevents discharges or deposits of treated and untreated sewage. Accept able methods include, but are not lim ited to, all methods that have been ap proved by the U.S. Coast Guard (at 33 CFR 159.7(b) and (c)). (6) Conduct of diving/snorkeling with out flag. Diving or snorkeling without flying in a conspicuous manner the red and white ‘‘divers down’’ flag (or the blue and white ‘‘alpha’’ flag in Federal waters). (7) Release of exotic species. Intro ducing or releasing an exotic species of plant, invertebrate, fish, amphibian, or mammals into the Sanctuary. (8) Damage or removal of markers. Marking, defacing, or damaging in any way or displacing, removing, or tam pering with any official signs, notices, or placards, whether temporary or per manent, or with any navigational aids, monuments, stakes, posts, mooring buoys, boundary buoys, trap buoys, or scientific equipment. (9) Movement of, removal of, injury to, or possession of Sanctuary historical re sources. Moving, removing, injuring, or possessing, or attempting to move, re move, injure, or possess, a Sanctuary historical resource. (10) Take or possession of protected wildlife. Taking any marine mammal, sea turtle, or seabird in or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA) 16 U.S.C. 703 et seq. (11) Possession or use of explosives or electrical charges. Possessing, or using explosives, except powerheads, or re leasing electrical charges within the Sanctuary. (12) Harvest or possession of marine life species. Harvesting, possessing, or land ing any marine life species, or part thereof, within the Sanctuary, except in accordance with rules 68B–42 of the Florida Administrative Code, and such rules shall apply mutatis mutandis (with necessary editorial changes) to all Federal and State waters within the Sanctuary. (13) Interference with law enforcement. Interfering with, obstructing, delaying or preventing an investigation, search, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00196 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 187 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.163 seizure, or disposition of seized prop erty in connection with enforcement of the Acts or any regulation or permit issued under the Acts. (b) Notwithstanding the prohibitions in this section and in § 922.164, and any access and use restrictions imposed pursuant thereto, a person may con duct an activity specifically authorized by, and conducted in accordance with the scope, purpose, terms, and condi tions of, a National Marine Sanctuary permit issued pursuant to § 922.166. (c) Notwithstanding the prohibitions in this section and in § 922.164, and any access and use restrictions imposed pursuant thereto, a person may con duct an activity specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization issued after the ef fective date of these regulations, pro vided that the applicant complies with § 922.49, the Director notifies the appli cant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant com plies with any terms and conditions the Director deems reasonably nec essary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in ex istence on the effective date of these regulations constitute authorizations issued after the effective date of these regulations. (d)(1) All military activities shall be carried out in a manner that avoids to the maximum extent practical any ad verse impacts on Sanctuary resources and qualities. The prohibitions in para graph (a) of this section and § 922.164 do not apply to existing classes of mili tary activities which were conducted prior to the effective date of these reg ulations, as identified in the Environ mental Impact Statement and Manage ment Plan for the Sanctuary. New military activities in the Sanctuary are allowed and may be exempted from the prohibitions in paragraph (a) of this section and in § 922.164 by the Di rector after consultation between the Director and the Department of De fense pursuant to section 304(d) of the NMSA. When a military activity is modified such that it is likely to de stroy, cause the loss of, or injure a Sanctuary resource or quality in a manner significantly greater than was considered in a previous consultation under section 304(d) of the NMSA, or it is likely to destroy, cause the loss of, or injure a Sanctuary resource or qual ity not previously considered in a pre vious consultation under section 304(d) of the NMSA, the activity is considered a new activity for purposes of this paragraph. If it is determined that an activity may be carried out, such ac tivity shall be carried out in a manner that avoids to the maximum extent practical any adverse impact on Sanc tuary resources and qualities. (2) In the event of threatened or ac tual destruction of, loss of, or injury to a Sanctuary resource or quality result ing from an untoward incident, includ ing but not limited to spills and groundings caused by the Department of Defense, the cognizant component shall promptly coordinate with the Di rector for the purpose of taking appro priate actions to prevent, respond to or mitigate the harm and, if possible, re store or replace the Sanctuary resource or quality. (e) The following prohibitions do not apply to Federal, State and local offi cers while performing enforcement du ties in their official capacities or re sponding to emergencies that threaten life, property, or the environment: (1) Those contained in paragraph (a)(4) of this section only as it pertains to discharges of sewage incidental to vessel use and generated by a marine sanitation device approved in accord ance with section 312 of the Federal Water Pollution Control Act (FWPCA), as amended, 33 U.S.C. 1322 et seq.; and (2) Those contained in paragraph (a)(5) of this section. (f) Notwithstanding paragraph (b) of this section and paragraph (a) of § 922.168, in no event may the Director issue a permit under § 922.166 author izing, or otherwise approve, the explo ration for, leasing, development, or production of minerals or hydrocarbons within the Sanctuary, the disposal of dredged material within the Sanctuary other than in connection with beach renourishment or Sanctuary restora tion projects, or the discharge of un treated or primary treated sewage (ex cept by a certification, pursuant to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00197 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 188 15 CFR Ch. IX (1–1–21 Edition) § 922.164 § 922.167, of a valid authorization in ex istence on the effective date of these regulations), and any purported au thorizations issued by other authori ties after the effective date of these regulations for any of these activities within the Sanctuary shall be invalid. (g) Any amendment to these regula tions shall not take effect in Florida State waters until approved by the Board of Trustees of the Internal Im provement Trust Fund of the State of Florida. Any fishery regulations in the Sanctuary shall not take effect in Flor ida State waters until established by the Florida Marine Fisheries Commis sion. [62 FR 32161, June 12, 1997, as amended at 74 FR 38094, July 31, 2009; 75 FR 72659, Nov. 26, 2010] § 922.164 Additional activity regula tions by Sanctuary area. In addition to the prohibitions set forth in § 922.163, which apply through out the Sanctuary, the following regu lations apply with respect to activities conducted within the Sanctuary areas described in this section and in Appen dix (II) through (VII) to this subpart. Activities located within two or more overlapping Sanctuary areas are con currently subject to the regulations ap plicable to each overlapping area. (a) Areas to be avoided. Operating a tank vessel or a vessel greater than 50 meters in registered length is prohib ited in all areas to be avoided, except if such vessel is a public vessel and its op eration is essential for national de fense, law enforcement, or responses to emergencies that threaten life, prop erty, or the environment. Appendix VII to this subpart sets forth the geo graphic coordinates of these areas. (b) Existing management areas—(1) Key Largo and Looe Key Management Areas. The following activities are prohibited within the Key Largo and Looe Key Management Areas (also known as the Key Largo and Looe Key National Ma rine Sanctuaries) described in appendix II to this subpart: (i) Removing, taking, damaging, harmfully disturbing, breaking, cut ting, spearing or similarly injuring any coral or other marine invertebrate, or any plant, soil, rock, or other material, except commercial taking of spiny lob ster and stone crab by trap and rec reational taking of spiny lobster by hand or by hand gear which is con sistent with these regulations and the applicable regulations implementing the applicable Fishery Management Plan. (ii) Taking any tropical fish. (iii) Fishing with wire fish traps, bot tom trawls, dredges, fish sleds, or simi lar vessel-towed or anchored bottom fishing gear or nets. (iv) Fishing with, carrying or pos sessing, except while passing through without interruption or for law en forcement purposes: pole spears, air ri fles, bows and arrows, slings, Hawaiian slings, rubber powered arbaletes, pneu matic and spring-loaded guns or simi lar devices known as spearguns. (2) Great White Heron and Key West National Wildlife Refuge Management Areas. Operating a personal watercraft, operating an airboat, or water skiing except within Township 66 South, Range 29 East, Sections 5, 11, 12 and 14; Township 66 South, Range 28 East, Sec tion 2; Township 67 South, Range 26 East, Sections 16 and 20, all Tallahas see Meridian, are prohibited within the marine portions of the Great White Heron and Key West National Wildlife Refuge Management Areas described in appendix II to this subpart. (c) Wildlife management areas. (1) Ma rine portions of the Wildlife Manage ment Areas listed in appendix III to this subpart or portions thereof may be designated ‘‘idle speed only/no-wake,’’ ‘‘no-motor’’ or ‘‘no-access buffer’’ zones or ‘‘closed’’. The Director, in coopera tion with other Federal, State, or local resource management authorities, as appropriate, shall post signs conspicu ously, using mounting posts, buoys, or other means according to location and purpose, at appropriate intervals and locations, clearly delineating an area as an ‘‘idle speed only/no wake’’, a ‘‘no motor’’, or a ‘‘no-access buffer’’ zone or as ‘‘closed’’, and allowing instant, long range recognition by boaters. Such signs shall display the official logo of the Sanctuary. (2) The following activities are pro hibited within the marine portions of the Wildlife Management Areas listed in appendix III to this subpart: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00198 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 189 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.164 (i) In those marine portions of any Wildlife Management Area designated an ‘‘idle speed only/no wake’’ zone in appendix III to this subpart, operating a vessel at a speed greater that idle speed only/no wake. (ii) In those marine portions of any Wildlife Management Area designated a ‘‘no-motor’’ zone in appendix III to this subpart, using internal combus tion motors or engines for any pur poses. A vessel with an internal com bustion motor or engine may access a ‘‘no-motor’’ zone only through the use of a push pole, paddle, sail, electric motor or similar means of propulsion. (iii) In those marine portions of any Wildlife Management Area designated a ‘‘no-access buffer’’ zone in appendix III of this subpart, entering the area by vessel. (iv) In those marine portions of any Wildlife Management Area designated as closed in appendix III of this sub part, entering or using the area. (3) The Director shall coordinate with other Federal, State, or local re source management authorities, as ap propriate, in the establishment and en forcement of access restrictions de scribed in paragraph (c)(2) (i)–(iv) of this section in the marine portions of Wildlife Management Areas. (4) The Director may modify the number and location of access restric tions described in paragraph (c)(2) (i)– (iv) of this section within the marine portions of a Wildlife Management Area if the Director finds that such ac tion is reasonably necessary to mini mize disturbances to Sanctuary wild life, or to ensure protection and preser vation of Sanctuary wildlife consistent with the purposes of the Sanctuary designation and other applicable law governing the protection and preserva tion of wildlife resources in the Sanc tuary. The Director will effect such modification by: (i) Publishing in the FEDERAL REG ISTER, after notice and an opportunity for public comments in accordance, an amendment to the list of such areas set forth in appendix III to this subpart, and a notice regarding the time and place where maps depicting the precise locations of such restrictions will be made available for public inspection, and (ii) Posting official signs delineating such restrictions in accordance with paragraph (c)(1) of this section. (d) Ecological Reserves, Sanctuary Pres ervation Areas, and Special Use (Research only) Areas. (1) The following activities are prohibited within the Ecological Reserves described in appendix IV to this subpart, within the Sanctuary Preservation Areas described in appen dix V to this subpart, and within the Special Use (Research only Areas) de scribed in appendix VI to this subpart: (i) Discharging or depositing any ma terial or other matter except cooling water or engine exhaust. (ii) Possessing, moving, harvesting, removing, taking, damaging, dis turbing, breaking, cutting, spearing, or otherwise injuring any coral, marine invertebrate, fish, bottom formation, algae, seagrass or other living or dead organism, including shells, or attempt ing any of these activities. However, fish, invertebrates, and marine plants may be possessed aboard a vessel in an Ecological Reserve or Sanctuary Pres ervation Area, provided such resources can be shown not to have been har vested within, removed from, or taken within, the Ecological Reserve or Sanc tuary Preservation Area, as applicable, by being stowed in a cabin, locker, or similar storage area prior to entering and during transit through such re serves or areas, provided further that in an Ecological Reserve or Sanctuary Preservation Area located in Florida State waters, such vessel is in contin uous transit through the Ecological Reserve or Sanctuary Preservation Area. (iii) Except for catch and release fish ing by trolling in the Conch Reef, Alli gator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any means. How ever, gear capable of harvesting fish may be aboard a vessel in an Ecological Reserve or Sanctuary Preservation Area, provided such gear is not avail able for immediate use when entering and during transit through such Eco logical Reserve or Sanctuary Preserva tion Area, and no presumption of fish ing activity shall be drawn therefrom. (iv) Touching living or dead coral, in cluding but not limited to, standing on a living or dead coral formation. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00199 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 190 15 CFR Ch. IX (1–1–21 Edition) § 922.164 (v) Anchoring in the Tortugas Ecologi cal Reserve. In all other Ecological Re serves and Sanctuary Preservation Areas, placing any anchor in a way that allows the anchor or any portion of the anchor apparatus (including the anchor, chain or rope) to touch living or dead coral, or any attached living organism. When anchoring dive boats, the first diver down must inspect the anchor to ensure that it is not touch ing living or dead coral, and will not shift in such a way as to touch such coral or other attached organism. No further diving shall take place until the anchor is placed in accordance with these requirements. (vi) Except in the Tortugas Ecologi cal Reserve where mooring buoys must be used, anchoring instead of mooring when a mooring buoy is available or anchoring in other than a designated anchoring area when such areas have been designated and are available. (vii) Except for passage without interruption through the area, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of this section, violating a tem porary access restriction imposed by the Director pursuant to paragraph (d)(2) of this section. (viii) Except for passage without interruption through the area, for law enforcement purposes, or for purposes of monitoring pursuant to paragraph (d)(2) of this section: entering the Tortugas South area of the Tortugas Ecological Reserve; or entering the Tortugas North area of the Tortugas Ecological Reserve without a valid ac cess permit issued pursuant to § 922.167 or entering or leaving the Tortugas North area with a valid access permit issued pursuant to § 922.167 without no tifying FKNMS staff at the Dry Tortugas National Park office by tele phone or radio no less than 30 minutes and no more than 6 hours, before enter ing and upon leaving the Tortugas Eco logical Reserve. (ix) Tying a vessel greater than 100 feet (30.48 meters) LOA, or tying more than one vessel (other than vessels car ried on board a vessel) if the combined lengths would exceed 100 feet (30.48 me ters) LOA, to a mooring buoy or to a vessel tied to a mooring buoy in the Tortugas Ecological Reserve. (2) The Director may temporarily re strict access to any portion of any Sanctuary Preservation Area or Eco logical Reserve if the Director, on the basis of the best available data, infor mation and studies, determines that a concentration of use appears to be causing or contributing to significant degradation of the living resources of the area and that such action is rea sonably necessary to allow for recovery of the living resources of such area. The Director will provide for contin uous monitoring of the area during the pendency of the restriction. The Direc tor will provide public notice of the re striction by publishing a notice in the FEDERAL REGISTER, and by such other means as the Director may deem ap propriate. The Director may only re strict access to an area for a period of 60 days, with one additional 60 day re newal. The Director may restrict ac cess to an area for a longer period pur suant to a notice and opportunity for public comment rulemaking under the Administrative Procedure Act. Such restriction will be kept to the min imum amount of area necessary to achieve the purposes thereof. (e) Special-use Areas. (1) The Director may set aside discrete areas of the Sanctuary as Special-use Areas, and, by designation pursuant to this para graph, impose the access and use re strictions specified in paragraph (e)(3) of this section. Special-use Areas are described in appendix VI to this sub part, in accordance with the following designations and corresponding objec tives: (i) ‘‘Recovery area’’ to provide for the recovery of Sanctuary resources from degradation or other injury attrib utable to human uses; (ii) ‘‘Restoration area’’ to provide for restoration of degraded or otherwise injured Sanctuary resources; (iii) ‘‘Research-only area’’ to provide for scientific research or education re lating to protection and management, through the issuance of a Sanctuary General permit for research pursuant to § 922.166 of these regulations; and (iv) ‘‘Facilitated-use area’’ to provide for the prevention of use or user con flicts or the facilitation of access and use, or to promote public use and un derstanding, of Sanctuary resources VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00200 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 191 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.164 through the issuance of special-use per mits. (2) A Special-use Area shall be no larger than the size the Director deems reasonably necessary to accomplish the applicable objective. (3) Persons conducting activities within any Special-use Area shall com ply with the access and use restrictions specified in this paragraph and made applicable to such area by means of its designation as a ‘‘recovery area,’’ ‘‘restoration area,’’ ‘‘research-only area,’’ or ‘‘facilitated-use area.’’ Except for passage without interruption through the area or for law enforce ment purposes, no person may enter a Special-use Area except to conduct or cause to be conducted the following ac tivities: (i) In such area designated as a ‘‘re covery area’’ or a ‘‘restoration area’’, habitat manipulation related to res toration of degraded or otherwise in jured Sanctuary resources, or activi ties reasonably necessary to monitor recovery of degraded or otherwise in jured Sanctuary resources; (ii) In such area designated as a ‘‘re search only area’’, scientific research or educational use specifically author ized by and conducted in accordance with the scope, purpose, terms and con ditions of a valid National Marine Sanctuary General or Historical Re sources permit, or (iii) In such area designated as a ‘‘fa cilitated-use area’’, activities specified by the Director or specifically author ized by and conducted in accordance with the scope, purpose, terms, and conditions of a valid Special-use per mit. (4)(i) The Director may modify the number of, location of, or designations applicable to, Special-use Areas by publishing in the FEDERAL REGISTER, after notice and an opportunity for public comment in accordance with the Administrative Procedure Act, an amendment to appendix VI to this sub part, except that, with respect to such areas designated as a ‘‘recovery area,’’ ‘‘restoration area,’’ or ‘‘research only area,’’ the Director may modify the number of, location of, or designation applicable to, such areas by publishing a notice of such action in the FEDERAL REGISTER if the Director determines that immediate action is reasonably necessary to: (A) Prevent significant injury to Sanctuary resources where cir cumstances create an imminent risk to such resources; (B) Initiate restoration activity where a delay in time would signifi cantly impair the ability of such res toration activity to succeed; (C) Initiate research activity where an unforeseen natural event produces an opportunity for scientific research that may be lost if research is not ini tiated immediately. (ii) If the Director determines that a notice of modification must be promul gated immediately in accordance with paragraph (e)(4)(i) of this section, the Director will, as part of the same no tice, invite public comment and specify that comments will be received for 15 days after the effective date of the no tice. As soon as practicable after the end of the comment period, the Direc tor will either rescind, modify or allow the modification to remain unchanged through notice in the FEDERAL REG ISTER. (5) In addition to paragraph (e)(3) of this section no person shall conduct ac tivities listed in paragraph (d) of this section in ‘‘Research-only Areas.’’ (f) Additional Wildlife Management Areas, Ecological Reserves, Sanctuary Preservation Areas, or Special-use Areas, and additional restrictions in such areas, shall not take effect in Florida State waters unless first ap proved by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. (g) Anchoring on Tortugas Bank. Ves sels 50 meters or greater in registered length, are prohibited from anchoring on the portion of Tortugas Bank within the Florida Keys National Marine Sanctuary west of the Dry Tortugas National Park that is outside of the Tortugas Ecological Reserve. The boundary of the area closed to anchor ing by vessels 50 meters or greater in registered length is formed by con necting in succession the points at the following coordinates (based on the North American Datum of 1983): (1) 24 deg. 32.00′ N 83 deg. 00.05′ W (2) 24 deg. 37.00′ N 83 deg. 06.00′ W (3) 24 deg. 39.00′ N 83 deg. 06.00′ W VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00201 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 192 15 CFR Ch. IX (1–1–21 Edition) § 922.165 (4) 24 deg. 39.00′ N 83 deg. 00.05′ W (5) 24 deg. 32.00′ N 83 deg. 00.05′ W [62 FR 32161, June 12, 1997, as amended at 63 FR 43873, Aug. 17, 1998; 66 FR 4369, Jan. 17, 2001; 74 FR 38095, July 31, 2009] § 922.165 Emergency regulations. Where necessary to prevent or mini mize the destruction of, loss of, or in jury to a Sanctuary resource or qual ity, or minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to imme diate temporary regulation, including prohibition. Emergency regulations shall not take effect in Florida terri torial waters until approved by the Governor of the State of Florida. Any temporary regulation may be in effect for up to 60 days, with one 60-day ex tension. Additional or extended action will require notice and comment rule making under the Administrative Pro cedure Act, notice in local newspapers, notice to Mariners, and press releases. § 922.166 Permits other than for access to the Tortugas Ecological Re serve—application procedures and issuance criteria. (a) National Marine Sanctuary General Permit. (1) A person may conduct an ac tivity prohibited by §§ 922.163 or 922.164, other than an activity involving the survey/inventory, research/recovery, or deaccession/transfer of Sanctuary his torical resources, if such activity is specifically authorized by, and pro vided such activity is conducted in ac cordance with the scope, purpose, terms and conditions of, a National Marine Sanctuary General permit issued under this paragraph (a). (2) The Director, at his or her discre tion, may issue a General permit under this paragraph (a), subject to such terms and conditions as he or she deems appropriate, if the Director finds that the activity will: (i) Further research or monitoring related to Sanctuary resources and qualities; (ii) Further the educational value of the Sanctuary; (iii) Further the natural or historical resource value of the Sanctuary; (iv) Further salvage or recovery oper ations in or near the Sanctuary in con nection with a recent air or marine casualty; (v) Assist in managing the Sanc tuary; or (vi) Otherwise further Sanctuary pur poses, including facilitating multiple use of the Sanctuary, to the extent compatible with the primary objective of resource protection. (3) The Director shall not issue a General permit under this paragraph (a), unless the Director also finds that: (i) The applicant is professionally qualified to conduct and complete the proposed activity; (ii) The applicant has adequate finan cial resources available to conduct and complete the proposed activity; (iii) The duration of the proposed ac tivity is no longer than necessary to achieve its stated purpose; (iv) The methods and procedures pro posed by the applicant are appropriate to achieve the proposed activity’s goals in relation to the activity’s impacts on Sanctuary resources and qualities; (v) The proposed activity will be con ducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, con sidering the extent to which the con duct of the activity may diminish or enhance Sanctuary resources and qualities, any indirect, secondary or cumulative effects of the activity, and the duration of such effects; (vi) It is necessary to conduct the proposed activity within the Sanctuary to achieve its purposes; and (vii) The reasonably expected end value of the activity to the furtherance of Sanctuary goals and purposes out weighs any potential adverse impacts on Sanctuary resources and qualities from the conduct of the activity. (4) For activities proposed to be con ducted within any of the areas de scribed in § 922.164 (b)–(e), the Director shall not issue a permit unless he or she further finds that such activities will further and are consistent with the purposes for which such area was es tablished, as described in §§ 922.162 and 922.164 and in the management plan for the Sanctuary. (b) National Marine Sanctuary Survey/ Inventory of Historical Resources Permit. (1) A person may conduct an activity VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00202 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 193 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.166 prohibited by §§ 922.163 or 922.164 involv ing the survey/inventory of Sanctuary historical resources if such activity is specifically authorized by, and is con ducted in accordance with the scope, purpose, terms and conditions of, a Survey/Inventory of Historical Re sources permit issued under this para graph (b). Such permit is not required if such survey/inventory activity does not involve any activity prohibited by §§ 922.163 or 922.164. Thus, survey/inven tory activities that are non-intrusive, do not include any excavation, re moval, or recovery of historical re sources, and do not result in destruc tion of, loss of, or injury to Sanctuary resources or qualities do not require a permit. However, if a survey/inventory activity will involve test excavations or removal of artifacts or materials for evaluative purposes, a Survey/Inven tory of Historical Resources permit is required. Regardless of whether a Sur vey/Inventory permit is required, a per son may request such permit. Persons who have demonstrated their profes sional abilities under a Survey/Inven tory permit will be given preference over other persons in consideration of the issuance of a Research/Recovery permit. While a Survey/Inventory per mit does not grant any rights with re gards to areas subject to pre-existing rights of access which are still valid, once a permit is issued for an area, other survey/inventory permits will not be issued for the same area during the period for which the permit is valid. (2) The Director, at his or her discre tion, may issue a Survey/Inventory permit under this paragraph (b), sub ject to such terms and conditions as he or she deems appropriate, if the Direc tor finds that such activity: (i) Satisfies the requirements for a permit issued under paragraph (a)(3) of this section; (ii) Either will be non-intrusive, not include any excavation, removal, or re covery of historical resources, and not result in destruction of, loss of, or in jury to Sanctuary resources or quali ties, or if intrusive, will involve no more than the minimum manual alter ation of the seabed and/or the removal of artifacts or other material necessary for evaluative purposes and will cause no significant adverse impacts on Sanctuary resources or qualities; and (iii) That such activity will be con ducted in accordance with all require ments of the Programmatic Agreement for the Management of Submerged Cul tural Resources in the Florida Keys National Marine Sanctuary among NOAA, the Advisory Council on His toric Preservation, and the State of Florida (hereinafter SCR Agreement), and that such permit issuance is in ac cordance with such SCR Agreement. Copies of the SCR Agreement may also be examined at, and obtained from, the Sanctuaries and Reserves Division, Of fice of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Ad ministration, 1305 East-West Highway, 12th floor, Silver Spring, MD 20910; or from the Florida Keys National Marine Sanctuary Office, P.O. Box 500368, Mar athon, FL 33050. (c) National Marine Sanctuary Re search/Recovery of Sanctuary Historical Resources Permit. (1) A person may con duct any activity prohibited by §§ 922.163 or 922.164 involving the re search/recovery of Sanctuary historical resources if such activity is specifi cally authorized by, and is conducted in accordance with the scope, purpose, terms and conditions of, a Research/Re covery of Historical Resources permit issued under this paragraph (c). (2) The Director, at his or her discre tion, may issue a Research/Recovery of Historical Resources permit, under this paragraph (c), and subject to such terms and conditions as he or she deems appropriate, if the Director finds that: (i) Such activity satisfies the re quirements for a permit issued under paragraph (a)(3) of this section; (ii) The recovery of the resource is in the public interest as described in the SCR Agreement; (iii) Recovery of the resource is part of research to preserve historic infor mation for public use; and (iv) Recovery of the resource is nec essary or appropriate to protect the re source, preserve historical informa tion, and/or further the policies and purposes of the NMSA and the FKNMSPA, and that such permit issuance is in accordance with, and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00203 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 194 15 CFR Ch. IX (1–1–21 Edition) § 922.166 that the activity will be conducted in accordance with, all requirements of the SCR Agreement. (d) National Marine Sanctuary Special use Permit. (1) A person may conduct any commercial or concession-type ac tivity prohibited by §§ 922.163 or 922.164, if such activity is specifically author ized by, and is conducted in accordance with the scope, purpose, terms and con ditions of, a Special-use permit issued under this paragraph (d). A Special-use permit is required for the deaccession/ transfer of Sanctuary historical re sources. (2) The Director, at his or her discre tion, may issue a Special-use permit in accordance with this paragraph (d), and subject to such terms and conditions as he or she deems appropriate and the mandatory terms and conditions of sec tion 310 of the NMSA, if the Director finds that issuance of such permit is reasonably necessary to: establish con ditions of access to and use of any Sanctuary resource; or promote public use and understanding of any Sanc tuary resources. No permit may be issued unless the activity is compatible with the purposes for which the Sanc tuary was designated and can be con ducted in a manner that does not de stroy, cause the loss of, or injure any Sanctuary resource, and if for the deaccession/transfer of Sanctuary His torical Resources, unless such permit issuance is in accordance with, and that the activity will be conducted in accordance with, all requirements of the SCR Agreement. (3) The Director may assess and col lect fees for the conduct of any activity authorized by a Special-use permit issued pursuant to this paragraph (d). No Special-use permit shall be effective until all assessed fees are paid, unless otherwise provided by the Director by a fee schedule set forth as a permit condition. In assessing a fee, the Direc tor shall include: (i) All costs incurred, or expected to be incurred, in reviewing and proc essing the permit application, includ ing, but not limited to, costs for: (A) Number of personnel; (B) Personnel hours; (C) Equipment; (D) Biological assessments; (E) Copying; and (F) Overhead directly related to re viewing and processing the permit ap plication; (ii) All costs incurred, or expected to be incurred, as a direct result of the conduct of the activity for which the Special-use permit is being issued, in cluding, but not limited to: (A) The cost of monitoring the con duct both during the activity and after the activity is completed in order to assess the impacts to Sanctuary re sources and qualities; (B) The use of an official NOAA ob server, including travel and expenses and personnel hours; and (C) Overhead costs directly related to the permitted activity; and (iii) An amount which represents the fair market value of the use of the Sanctuary resource and a reasonable return to the United States Govern ment. (4) Nothing in this paragraph (d) shall be considered to require a person to obtain a permit under this para graph for the conduct of any fishing ac tivities within the Sanctuary. (e) Applications. (1) Applications for permits should be addressed to the Di rector, Office of Ocean and Coastal Re source Management; ATTN: Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O. Box 500368, Marathon, FL 33050. All applications must include: (i) A detailed description of the pro posed activity including a timetable for completion of the activity and the equipment, personnel and methodology to be employed; (ii) The qualifications and experience of all personnel; (iii) The financial resources available to the applicant to conduct and com plete the proposed activity; (iv) A statement as to why it is nec essary to conduct the activity within the Sanctuary; (v) The potential impacts of the ac tivity, if any, on Sanctuary resources and qualities; (vi) The benefit to be derived from the activity; and (vii) Such other information as the Director may request depending on the type of activity. Copies of all other re quired licenses, permits, approvals, or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00204 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 195 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.166 other authorizations must be attached to the application. (2) Upon receipt of an application, the Director may request such addi tional information from the applicant as he or she deems reasonably nec essary to act on the application and may seek the views of any persons. The Director may require a site visit as part of the permit evaluation. Unless otherwise specified, the information re quested must be received by the Direc tor within 30 days of the postmark date of the request. Failure to provide such additional information on a timely basis may be deemed by the Director to constitute abandonment or withdrawal of the permit application. (f) A permit may be issued for a pe riod not exceeding five years. All per mits will be reviewed annually to de termine the permittee’s compliance with permit scope, purpose, terms and conditions and progress toward reach ing the stated goals and appropriate action taken under paragraph (g) of this section if warranted. A permittee may request permit renewal pursuant to the same procedures for applying for a new permit. Upon the permittee’s re quest for renewal, the Director shall review all reports submitted by the permittee as required by the permit conditions. In order to renew the per mit, the Director must find that the: (1) Activity will continue to further the purposes for which the Sanctuary was designated in accordance with the criteria applicable to the initial issuance of the permit; (2) Permittee has at no time violated the permit, or these regulations; and (3) The activity has not resulted in any unforeseen adverse impacts to Sanctuary resources or qualities. (g) The Director may amend, sus pend, or revoke a permit for good cause. The Director may deny a permit application, in whole or in part, if it is determined that the permittee or ap plicant has acted in violation of a pre vious permit, of these regulations, of the NMSA or FKNMSPA, or for other good cause. Any such action shall be communicated in writing to the per mittee or applicant by certified mail and shall set forth the reason(s) for the action taken. Procedures governing permit sanctions and denials for en forcement reasons are set forth in Sub part D of 15 CFR part 904. (h) The applicant for or holder of a National Marine Sanctuary permit may appeal the denial, conditioning, amendment, suspension or revocation of the permit in accordance with the procedures set forth in § 922.50. (i) A permit issued pursuant to this section other than a Special-use permit is nontransferable. Special-use permits may be transferred, sold, or assigned with the written approval of the Direc tor. The permittee shall provide the Di rector with written notice of any pro posed transfer, sale, or assignment no less than 30 days prior to its proposed consummation. Transfers, sales, or as signments consummated in violation of this requirement shall be considered a material breach of the Special-use per mit, and the permit shall be considered void as of the consummation of any such transfer, sale, or assignment. (j) The permit or a copy thereof shall be maintained in legible condition on board all vessels or aircraft used in the conduct of the permitted activity and be displayed for inspection upon the re quest of any authorized officer. (k) Any permit issued pursuant to this section shall be subject to the fol lowing terms and conditions: (1) All permitted activities shall be conducted in a manner that does not destroy, cause the loss of, or injure Sanctuary resources or qualities, ex cept to the extent that such may be specifically authorized. (2) The permittee agrees to hold the United States harmless against any claims arising out of the conduct of the permitted activities. (3) All necessary Federal, State, and local permits from all agencies with ju risdiction over the proposed activities shall be secured before commencing field operations. (l) In addition to the terms and con ditions listed in paragraph (k) of this section, any permit authorizing the re search/recovery of historical resources shall be subject to the following terms and conditions: (1) A professional archaeologist shall be in charge of planning, field recovery operations, and research analysis. (2) An agreement with a conservation laboratory shall be in place before field VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00205 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 196 15 CFR Ch. IX (1–1–21 Edition) § 922.167 recovery operations are begun, and an approved nautical conservator shall be in charge of planning, conducting, and supervising the conservation of any ar tifacts and other materials recovered. (3) A curation agreement with a mu seum or facility for curation, public ac cess and periodic public display, and maintenance of the recovered histor ical resources shall be in place before commencing field operations (such agreement for the curation and display of recovered historical resources may provide for the release of public arti facts for deaccession/transfer if such deaccession/transfer is consistent with preservation, research, education, or other purposes of the designation and management of the Sanctuary. Deaccession/transfer of historical re sources requires a Special-use permit issued pursuant to paragraph (d) and such deaccession/transfer shall be exe cuted in accordance with the require ments of the SCR Agreement). (4) The site’s archaeological informa tion is fully documented, including measured drawings, site maps drawn to professional standards, and photo graphic records. (m) In addition to the terms and con ditions listed in paragraph (k) and (l) of this section, any permit issued pursu ant to this section is subject to such other terms and conditions, including conditions governing access to, or use of, Sanctuary resources, as the Direc tor deems reasonably necessary or ap propriate and in furtherance of the pur poses for which the Sanctuary is des ignated. Such terms and conditions may include, but are not limited to: (1) Any data or information obtained under the permit shall be made avail able to the public. (2) A NOAA official shall be allowed to observe any activity conducted under the permit. (3) The permittee shall submit one or more reports on the status, progress, or results of any activity authorized by the permit. (4) The permittee shall submit an an nual report to the Director not later than December 31 of each year on ac tivities conducted pursuant to the per mit. The report shall describe all ac tivities conducted under the permit and all revenues derived from such ac tivities during the year and/or term of the permit. (5) The permittee shall purchase and maintain general liability insurance or other acceptable security against po tential claims for destruction, loss of, or injury to Sanctuary resources aris ing out of the permitted activities. The amount of insurance or security should be commensurate with an estimated value of the Sanctuary resources in the permitted area. A copy of the insur ance policy or security instrument shall be submitted to the Director. § 922.167 Permits for access to the Tortugas Ecological Reserve. (a) A person may enter the Tortugas North area of the Tortugas Ecological Reserve other than for passage without interruption through the reserve, for law enforcement purposes, or for pur poses of monitoring pursuant to para graph (d)(2) of § 922.164 , if authorized by a valid access permit issued pursu ant to § 922.167. (b)(1) Access permits must be re quested at least 72 hours but no longer than one month before the date the permit is desired to be effective. Access permits do not require written applica tions or the payment of any fee. Per mits may be requested via telephone or radio by contacting FKNMS at any of the following numbers: Key West office: telephone: (305) 292–0311 Marathon office: telephone: (305) 743–2437 (2) The following information must be provided, as applicable: (i) Vessel name. (ii) Name, address, and telephone number of owner and operator. (iii) Name, address, and telephone number of applicant. (iv) USCG documentation, state li cense, or registration number. (v) Home port. (vi) Length of vessel and propulsion type (i.e., motor or sail). (vii) Number of divers. (viii) Requested effective date and duration of permit (2 weeks, max imum). (c) The Sanctuary Superintendent will issue a permit to the owner or to the owner’s representative for the ves sel when all applicable information has been provided. The Sanctuary Super intendent will provide a permit number VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00206 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 197 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. P, App. I to the applicant and confirm the effec tive date and duration period of the permit. Written confirmation of permit issuance will be provided upon request. [66 FR 4370, Jan. 17, 2001] § 922.168 [Reserved] APPENDIX I TO SUBPART P OF PART 922— FLORIDA KEYS NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES (APPENDIX BASED ON NORTH AMERICAN DATUM OF 1983) (1) The boundary of the Florida Keys Na tional Marine Sanctuary— (a) Begins at the northeasternmost point of Biscayne National Park located at ap proximately 25 degrees 39 minutes north lati tude, 80 degrees 05 minutes west longitude, then runs eastward to the point at 25 degrees 39 minutes north latitude, 80 degrees 04 min utes west longitude; and (b) Then runs southward and connects in succession the points at the following coordi nates: (i) 25 degrees 34 minutes north latitude, 80 degrees 04 minutes west longitude, (ii) 25 degrees 28 minutes north latitude, 80 degrees 05 minutes west longitude, and (iii) 25 degrees 21 minutes north latitude, 80 degrees 07 minutes west longitude; (iv) 25 degrees 16 minutes north latitude, 80 degrees 08 minutes west longitude; (c) Then runs southwesterly approximating the 300-foot isobath and connects in succes sion the points at the following coordinates: (i) 25 degrees 07 minutes north latitude, 80 degrees 13 minutes west longitude, (ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes west longitude, (iii) 24 degrees 39 minutes north latitude, 80 degrees 52 minutes west longitude, (iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes west longitude, (v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes west longitude, (vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes west longitude, (vii) 24 degrees 37 minutes north latitude, 83 degrees 06 minutes west longitude, (viii) 24 degrees 46 minutes north latitude, 83 degrees 06 minutes west longitude, (ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes west longitude, (x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes west longitude, (xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes west longitude, and (xii) 24 degrees 55 minutes north latitude, 80 degrees 56 minutes west longitude; (d) Then follows the boundary of Ever glades National Park in a southerly then northeasterly direction through Florida Bay, Buttonwood Sound, Tarpon Basin, and Blackwater Sound; (e) After Division Point, then departs from the boundary of Everglades National Park and follows the western shoreline of Manatee Bay, Barnes Sound, and Card Sound; (f) then follows the southern boundary of Biscayne National Park to the southeastern most point of Biscayne National Park; and (g) then follows the eastern boundary of Biscayne National Park to the beginning point specified in paragraph (a). (2) The shoreward boundary of the Florida Keys National Marine Sanctuary is the mean high-water mark except around the Dry Tortugas where the boundary is coterminous with that of the Dry Tortugas National Park, formed by connecting in succession the points at the following coordinates: (a) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 54 minutes 0 seconds west longitude; (b) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 58 minutes 0 second west longitude; (c) 24 degrees 39 minutes 0 seconds north latitude, 82 degrees 58 minutes 0 seconds west longitude; (d) 24 degrees 43 minutes 0 seconds north latitude, 82 degrees 54 minutes 0 seconds west longitude; (e) 24 degrees 43 minutes 32 seconds north latitude, 82 degrees 52 minutes 0 seconds west longitude; (f) 24 degrees 43 minutes 32 seconds north latitude, 82 degrees 48 minutes 0 seconds west longitude; (g) 24 degrees 42 minutes 0 seconds north latitude, 82 degrees 46 minutes, 0 seconds west longitude; (h) 24 degrees 40 minutes 0 seconds north latitude, 82 degrees 46 minutes 0 seconds west longitude; (i) 24 degrees 37 minutes 0 seconds north latitude, 82 degrees 48 minutes 0 seconds west longitude; and (j) 24 degrees 34 minutes 0 seconds north latitude, 82 degrees 54 minutes 0 seconds west longitude. (3) The Florida Keys National Marine Sanctuary also includes the area located within the boundary formed by connecting in succession the points at the following coordi nates: (a) 24 degrees 33 minutes north latitude, 83 degrees 09 minutes west longitude, (b) 24 degrees 33 minutes north latitude, 83 degrees 05 minutes west longitude, and (c) 24 degrees 18 minutes north latitude, 83 degrees 05 minutes west longitude; (d) 24 degrees 18 minutes north latitude, 83 degrees 09 minutes west longitude; and (e) 24 degrees 33 minutes north latitude, 83 degrees 09 minutes west longitude. [66 FR 4370, Jan. 17, 2001] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00207 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 198 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. P, App. II APPENDIX II TO SUBPART P OF PART 922—EXISTING MANAGEMENT AREAS BOUNDARY COORDINATES (1) The boundary of each of the Existing Management Areas is formed by connecting in succession the points at the following co ordinates: NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION KEY LARGO-MANAGEMENT AREA [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 25 deg.19′45″ N 80 deg.12′00″ W. 2 .......................... 25 deg.16′02″ N 80 deg.08′07″ W. 3 .......................... 25 deg.07′05″ N 80 deg.12′05″ W. 4 .......................... 24 deg.58′03″ N 80 deg.19′08″ W. 5 .......................... 25 deg.02′02″ N 80 deg.25′25″ W. 6 .......................... 25 deg.19′45″ N 80 deg.12′00″ W. LOOE KEY MANAGEMENT AREA [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.31′62″ N 81 deg.26′00″ W. 2 .......................... 24 deg.33′57″ N 81 deg.26′00″ W. 3 .......................... 24 deg.34′15″ N 81 deg.23′00″ W. 4 .......................... 24 deg.32′20″ N 81 deg.23′00″ W. 5 .......................... 24 deg.31′62″ N 81 deg.26′00″ W. UNITED STATES FISH AND WILDLIFE SERVICE GREAT WHITE HERON NATIONAL WILDLIFE REFUGE [Based on the North American Datum of 1983] Point Latitude Longitude 1 .......................... 24 deg.43.8′ N 81 deg.48.6′ W. 2 .......................... 24 deg.43.8′ N 81 deg.37.2′ W. 3 .......................... 24 deg.49.2′ N 81 deg.37.2′ W. 4 .......................... 24 deg.49.2′ N 81 deg.19.8′ W. 5 .......................... 24 deg.48.0′ N 81 deg.19.8′ W. 6 .......................... 24 deg.48.0′ N 81 deg.14.4′ W. 7 .......................... 24 deg.49.2′ N 81 deg.14.4′ W. 8 .......................... 24 deg.49.2′ N 81 deg.08.4′ W. 9 .......................... 24 deg.43.8′ N 81 deg.08.4′ W. 10 ........................ 24 deg.43.8′ N 81 deg.14.4′ W. 11 ........................ 24 deg.43.2′ N 81 deg.14.4′ W. 12 ........................ 24 deg.43.2′ N 81 deg.16.2′ W. 13 ........................ 24 deg.42.6′ N 81 deg.16.2′ W. 14 ........................ 24 deg.42.6′ N 81 deg.21.0′ W. 15 ........................ 24 deg.41.4′ N 81 deg.21.0′ W. 16 ........................ 24 deg.41.4′ N 81 deg.22.2′ W. GREAT WHITE HERON NATIONAL WILDLIFE REFUGE—Continued [Based on the North American Datum of 1983] Point Latitude Longitude 17 ........................ 24 deg.43.2′ N 81 deg.22.2′ W. 18 ........................ 24 deg.43.2′ N 81 deg.22.8′ W. 19 ........................ 24 deg.43.8′ N 81 deg.22.8′ W. 20 ........................ 24 deg.43.8′ N 81 deg.24.0′ W. 21 ........................ 24 deg.43.2′ N 81 deg.24.0′ W. 22 ........................ 24 deg.43.2′ N 81 deg.26.4′ W. 23 ........................ 24 deg.43.8′ N 81 deg.26.4′ W. 24 ........................ 24 deg.43.8′ N 81 deg.27.0′ W. 25 ........................ 24 deg.43.2′ N 81 deg.27.0′ W. 26 ........................ 24 deg.43.2′ N 81 deg.29.4′ W. 27 ........................ 24 deg.42.6′ N 81 deg.29.4′ W. 28 ........................ 24 deg.42.6′ N 81 deg.30.6′ W. 29 ........................ 24 deg.41.4′ N 81 deg.30.6′ W. 30 ........................ 24 deg.41.4′ N 81 deg.31.2′ W. 31 ........................ 24 deg.40.8′ N 81 deg.31.2′ W. 32 ........................ 24 deg.40.8′ N 81 deg.32.4′ W. 33 ........................ 24 deg.41.4′ N 81 deg.32.4′ W. 34 ........................ 24 deg.41.4′ N 81 deg.34.2′ W. 35 ........................ 24 deg.40.8′ N 81 deg.34.2′ W. 36 ........................ 24 deg.48.0′ N 81 deg.35.4′ W. 37 ........................ 24 deg.39.6′ N 81 deg.35.4′ W. 38 ........................ 24 deg.39.6′ N 81 deg.36.0′ W. 39 ........................ 24 deg.39.0′ N 81 deg.36.0′ W. 40 ........................ 24 deg.39.0′ N 81 deg.37.2′ W. 41 ........................ 24 deg.37.8′ N 81 deg.37.2′ W. 42 ........................ 24 deg.37.8′ N 81 deg.37.8′ W. 43 ........................ 24 deg.37.2′ N 81 deg.37.8′ W. 44 ........................ 24 deg.37.2′ N 81 deg.40.2′ W. 45 ........................ 24 deg.36.0′ N 81 deg.40.2′ W. 46 ........................ 24 deg.36.0′ N 81 deg.40.8′ W. 47 ........................ 24 deg.35.4′ N 81 deg.40.8′ W. 48 ........................ 24 deg.35.4′ N 81 deg.42.0′ W. 49 ........................ 24 deg.36.0′ N 81 deg.42.0′ W. 50 ........................ 24 deg.36.0′ N 81 deg.48.6′ W. 51 ........................ 24 deg.43.8′ N 81 deg.48.6′ W. KEY WEST NATIONAL WILDLIFE REFUGE [Based on the North American Datum of 1983] Point Latitude Longitude 1 .......................... 24 deg.40.0′ N 81 deg.49.0′ W. 2 .......................... 24 deg.40.0′ N 82 deg.10.0′ W. 3 .......................... 24 deg.27.0′ N 82 deg.10.0′ W. 4 .......................... 24 deg.27.0′ N 81 deg.49.0′ W. 5 .......................... 24 deg.40.0′ N 81 deg.49.0′ W. (2) When differential Global Positioning Systems data becomes available, these co ordinates may be publication in the FEDERAL REGISTER to reflect the increased accuracy of such data. [66 FR 4371, Jan. 17, 2001] APPENDIX III TO SUBPART P OF PART 922—WILDLIFE MANAGEMENT AREAS ACCESS RESTRICTIONS Area Access restrictions Bay Keys ........................................... No-motor zone (300 feet) around one key; idle speed only/no-wake zones in tidal creeks. Boca Grande Key .............................. South one-half of beach closed (beach above mean high water closed by Department of the Interior). Woman Key ....................................... One-half of beach and sand spit on southeast side closed (beach and sand spit above mean high water closed by Department of the Interior). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00208 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 199 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. P, App. V Area Access restrictions Cayo Agua Keys ................................ Idle speed only/no-wake zones in all navigable tidal creeks. Cotton Key ......................................... No-motor zone on tidal flat. Snake Creek ...................................... No-motor zone on tidal flat. Cottrell Key ........................................ No-motor zone (300 feet) around entire key. Little Mullet Key ................................. No-access buffer zone (300 feet) around entire key. Big Mullet Key ................................... No-motor zone (300 feet) around entire key. Crocodile Lake ................................... No-access buffer zone (100 feet) along shoreline between March 1 and October 1. East Harbor Key ................................ No-access buffer zone (300 feet) around northernmost island. Lower Harbor Keys ............................ Idle speed only/no-wake zones in selected tidal creeks. Eastern Lake Surprise ....................... Idle speed only/no-wake zone east of highway U.S. 1. Horseshoe Key .................................. No-access buffer zone (300 feet) around main island (main island closed by Department of the Interior). Marquesas Keys ................................ (i) No-motor zones (300 feet) around three smallest keys on western side of chain; (ii) no-access buffer zone (300 feet) around one island at western side of chain; (iii) idle speed only/no-wake zone in southwest tidal creek. Tidal flat south of Marvin Key ........... No-access buffer zone on tidal flat. Mud Keys ........................................... (i) Idle speed only/no-wake zones in the two main tidal creeks; (ii) two smaller creeks on west side closed. Pelican Shoal ..................................... No-access buffer zone out to 50 meters from shore between April 1 and August 31 (shoal closed by the Florida Game and Freshwater Fish Commission). Rodriguez Key ................................... No-motor zone on tidal flats. Dove Key ........................................... No-motor zone on tidal flats; area around the two small islands closed. Tavernier Key .................................... No-motor zone on tidal flats. Sawyer Keys ...................................... Tidal creeks on south side closed. Snipe Keys ........................................ (i) Idle speed only/no-wake zone in main tidal creek; (ii) no-motor zone in all other tidal creeks. Upper Harbor Key ............................. No-access buffer zone (300 feet) around entire key. East Content Keys ............................. Idle speed only/no-wake zones in tidal creeks between southwesternmost keys. West Content Keys ............................ Idle speed only/no-wake zones in selected tidal creeks; no-access buffer zone in one cove. Little Crane Key ................................. No-access buffer zone (300 feet) around entire key. APPENDIX IV TO SUBPART P OF PART 922—ECOLOGICAL RESERVES BOUNDARY Coordinates (1) The boundary of the Western Sambo Ec ological Reserve is formed by connecting in succession the points at the following coordi nates: WESTERN SAMBO [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.33.70′ N ...... 81 deg.40.80′ W. 2 .......................... 24 deg.28.85′ N ...... 81 deg.41.90′ W. 3 .......................... 24 deg.28.50′ N ...... 81 deg.43.70′ W. 4 .......................... 24 deg.33.50′ N ...... 81 deg.43.10′ W. 5 .......................... 24 deg.33.70′ N ...... 81 deg.40.80′ W. (2) The Tortugas Ecological Reserve con sists of two discrete areas, Tortugas North and Tortugas South. (3) The boundary of Tortugas North is formed by connecting in succession the points at the following coordinates: TORTUGAS NORTH Point Latitude Longitude 1 .......................... 24 deg.46.00′ N ...... 83 deg.06.00′ W. 2 .......................... 24 deg.46.00′ N ...... 82 deg.54.00′ W. 3 .......................... 24 deg.45.80′ N ...... 82 deg.48.00′ W. 4 .......................... 24 deg.43.53′ N ...... 82 deg.48.00′ W. 5 .......................... 24 deg.43.53′ N ...... 82 deg.52.00′ W. TORTUGAS NORTH—Continued Point Latitude Longitude 6 .......................... 24 deg.43.00′ N ...... 82 deg.54.00′ W. 7 .......................... 24 deg.39.00′ N ...... 82 deg.58.00′ W. 8 .......................... 24 deg.39.00′ N ...... 83 deg.06.00′ W. 9 .......................... 24 deg.46.00′ N ...... 83 deg.06.00′ W. (4) The boundary of Tortugas South is formed by connecting in succession the points at the following coordinates: TORTUGAS SOUTH Point Latitude Longitude 1 .......................... 24 deg.33.00′ N ...... 83 deg.09.00′ W. 2 .......................... 24 deg.33.00′ N ...... 83 deg.05.00′ W. 3 .......................... 24 deg.18.00′ N ...... 83 deg.05.00′ W. 4 .......................... 24 deg.18.00′ N ...... 83 deg.09.00′ W. 5 .......................... 24 deg.33.00′ N ...... 83 deg.09.00′ W. [66 FR 4372, Jan. 17, 2001] APPENDIX V TO SUBPART P OF PART 922—SANCTUARY PRESERVATION AREAS BOUNDARY COORDINATES The boundary of each of the Sanctuary Preservation Areas (SPAs) is formed by con necting in succession the points at the fol lowing coordinates: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00209 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 200 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. P, App. V ALLIGATOR REEF [Based on differential Global Positioning Systems data] Point Latitute Longitude 1 .......................... 24 deg.50.98′ N 80 deg.36.84′ W. 2 .......................... 24 deg.50.51′ N 80 deg.37.35′ W. 3 .......................... 24 deg.50.81′ N 80 deg.37.63′ W. 4 .......................... 24 deg.51.23′ N 80 deg.37.17′ W. 5 .......................... 24 deg.50.98′ N 80 deg.36.84′ W. Catch and release fishing by trolling only is allowed in this SPA. CARYSFORT/SOUTH CARYSFORT REEF [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 25 deg.13.78′ N 80 deg.12.00′ W. 2 .......................... 25 deg.12.03′ N 80 deg.12.98′ W. 3 .......................... 25 deg.12.24′ N 80 deg.13.77′ W. 4 .......................... 25 deg.14.13′ N 80 deg.12.78′ W. 5 .......................... 25 deg.13.78′ N 80 deg.12.00′ W. CHEECA ROCKS [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.54.42′ N 80 deg.36.91′ W. 2 .......................... 24 deg.54.25′ N 80 deg.36.77′ W. 3 .......................... 24 deg.54.10′ N 80 deg.37.00′ W. 4 .......................... 24 deg.54.22′ N 80 deg.37.15′ W. 5 .......................... 24 deg.54.42′ N 80 deg.36.91′ W. COFFINS PATCH [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.41.47′ N 80 deg.57.68′ W. 2 .......................... 24 deg.41.12′ N 80 deg.57.53′ W. 3 .......................... 24 deg.40.75′ N 80 deg.58.33′ W. 4 .......................... 24 deg.41.06′ N 80 deg.58.48′ W. 5 .......................... 24 deg.41.47′ N 80 deg.57.68′ W. CONCH REEF [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.57.48′ N 80 deg.27.47′ W. 2 .......................... 24 deg.57.34′ N 80 deg.27.26′ W. 3 .......................... 24 deg.56.78′ N 80 deg.27.52′ W. 4 .......................... 24 deg.56.96′ N 80 deg.27.73′ W. 5 .......................... 24 deg.57.48′ N 80 deg.27.47′ W. Catch and release fishing by trolling only is allowed in this SPA. DAVIS REEF [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.55.61′ N 80 deg.30.27′ W. 2 .......................... 24 deg.55.41′ N 80 deg.30.05′ W. 3 .......................... 24 deg.55.11′ N 80 deg.30.35′ W. 4 .......................... 24 deg.55.34′ N 80 deg.30.52′ W. DAVIS REEF—Continued [Based on differential Global Positioning Systems data] Point Latitude Longitude 5 .......................... 24 deg.55.61′ N 80 deg.30.27′ W. DRY ROCKS [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 25 deg.07.59′ N 80 deg.17.91′ W. 2 .......................... 25 deg.07.41′ N 80 deg.17.70′ W. 3 .......................... 25 deg.07.25′ N 80 deg.17.82′ W. 4 .......................... 25 deg.07.41′ N 80 deg.18.09′ W. 5 .......................... 25 deg.07.59′ N 80 deg.17.91′ W. GRECIAN ROCKS [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 25 deg.06.91′ N 80 deg.18.20′ W. 2 .......................... 25 deg.06.67′ N 80 deg.18.06′ W. 3 .......................... 25 deg.06.39′ N 80 deg.18.32′ W. 4 .......................... 25 deg.06.42′ N 80 deg.18.48′ W. 5 .......................... 25 deg.06.81′ N 80 deg.18.44′ W. 6 .......................... 25 deg.06.91′ N 80 deg.18.20′ W. EASTERN DRY ROCKS [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.27.92′ N 81 deg.50.55′ W. 2 .......................... 24 deg.27.73′ N 81 deg.50.33′ W. 3 .......................... 24 deg.27.47′ N 81 deg.50.80′ W. 4 .......................... 24 deg.27.72′ N 81 deg.50.86′ W. 5 .......................... 24 deg.27.92′ N 81 deg.50.55′ W. THE ELBOW [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 25 deg.08.97′ N 80 deg.15.63′ W. 2 .......................... 25 deg.08.95′ N 80 deg.15.22′ W. 3 .......................... 25 deg.08.18′ N 80 deg.15.64′ W. 4 .......................... 25 deg.08.50′ N 80 deg.16.07′ W. 5 .......................... 25 deg.08.97′ N 80 deg.15.63′ W. FRENCH REEF [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 25 deg.02.20′ N 80 deg.20.63′ W. 2 .......................... 25 deg.01.81′ N 80 deg.21.02′ W. 3 .......................... 25 deg.02.36′ N 80 deg.21.27′ W. 4 .......................... 25 deg.02.20′ N 80 deg.20.63′ W. HEN AND CHICKENS [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.56.38′ N 80 deg.32.86′ W. 2 .......................... 24 deg.56.21′ N 80 deg.32.63′ W. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00210 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 201 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. P, App. VI HEN AND CHICKENS—Continued [Based on differential Global Positioning Systems data] Point Latitude Longitude 3 .......................... 24 deg.55.86′ N 80 deg.32.95′ W. 4 .......................... 24 deg.56.04′ N 80 deg.33.19′ W. 5 .......................... 24 deg.56.38′ N 80 deg.32.86′ W. LOOE KEY [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.33.24′ N 81 deg.24.03′ W. 2 .......................... 24 deg.32.70′ N 81 deg.23.85′ W. 3 .......................... 24 deg.32.52′ N 81 deg.24.70′ W. 4 .......................... 24 deg.33.12′ N 81 deg.24.81′ W. 5 .......................... 24 deg.33.24′ N 81 deg.24.03′ W. MOLASSES REEF [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 25 deg.01.00′ N 80 deg.22.53′ W. 2 .......................... 25 deg.01.06′ N 80 deg.21.84′ W. 3 .......................... 25 deg.00.29′ N 80 deg.22.70′ W. 4 .......................... 25 deg.00.72′ N 80 deg.22.83′ W. 5 .......................... 25 deg.01.00′ N 80 deg.22.53′ W. NEWFOUND HARBOR KEY [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.37.10′ N 81 deg.23.34′ W. 2 .......................... 24 deg.36.85′ N 81 deg.23.28′ W. 3 .......................... 24 deg.36.74′ N 81 deg.23.80′ W. 4 .......................... 24 deg.37.00′ N 81 deg.23.86′ W. 5 .......................... 24 deg.37.10′ N 81 deg.23.34′ W. ROCK KEY [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.27.48′ N 81 deg.51.35′ W. 2 .......................... 24 deg.27.30′ N 81 deg.51.15′ W. 3 .......................... 24 deg.27.21′ N 81 deg.51.60′ W. 4 .......................... 24 deg.27.45′ N 81 deg.51.65′ W. 5 .......................... 24 deg.27.48′ N 81 deg.51.35′ W. SAND KEY [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.27.58′ N 81 deg.52.29′ W. 2 .......................... 24 deg.27.01′ N 81 deg.52.32′ W. 3 .......................... 24 deg.27.02′ N 81 deg.52.95′ W. 4 .......................... 24 deg.27.61′ N 81 deg.52.94′ W. 5 .......................... 24 deg.27.58′ N 81 deg.52.29′ W. Catch and release fishing by trolling only is allowed in this SPA. SOMBRERO KEY [Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.37.91′ N 81 deg.06.78′ W. 2 .......................... 24 deg.37.50′ N 81 deg.06.19′ W. 3 .......................... 24 deg.37.25′ N 81 deg.06.89′ W. 4 .......................... 24 deg.37.91′ N 81 deg.06.78′ W. Catch and release fishing by trolling only is allowed in this SPA. [66 FR 4373, Jan. 17, 2001] APPENDIX VI TO SUBPART P OF PART 922—SPECIAL-USE AREAS BOUNDARY COORDINATES AND USE DESIGNA TIONS The boundary of each of the Special-Use is formed by connecting in succession the points at the following coordinates: CONCH REEF (Research Only)—[Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.56.83′ N 80 deg.27.26′ W. 2 .......................... 24 deg.57.10′ N 80 deg.26.93′ W. 3 .......................... 24 deg.56.99′ N 80 deg.27.42′ W. 4 .......................... 24 deg.57.34′ N 80 deg.27.26′ W. 5 .......................... 24 deg.56.83′ N 80 deg.27.26′ W. EASTERN SAMBO (Research Only)—[Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.29.84′ N 81 deg.39.59′ W. 2 .......................... 24 deg.29.55′ N 81 deg.39.35′ W. 3 .......................... 24 deg.29.37′ N 81 deg.39.96′ W. 4 .......................... 24 deg.29.77′ N 81 deg.40.03′ W. 5 .......................... 24 deg.29.84′ N 81 deg.39.59′ W. LOOE KEY (Research Only)—[Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.34.17′ N 81 deg.23.01′ W. 2 .......................... 24 deg.33.98′ N 81 deg.22.96′ W. 3 .......................... 24 deg.33.84′ N 81 deg.23.60′ W. 4 .......................... 24 deg.34.23′ N 81 deg.23.68′ W. 5 .......................... 24 deg.34.17′ N 81 deg.23.01′ W. TENNESSEE REEF (Research Only)—[Based on differential Global Positioning Systems data] Point Latitude Longitude 1 .......................... 24 deg.44.77′ N 80 deg.47.12′ W. 2 .......................... 24 deg.44.57′ N 80 deg.46.98′ W. 3 .......................... 24 deg.44.68′ N 80 deg.46.59′ W. 4 .......................... 24 deg.44.95′ N 80 deg.46.74′ W. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00211 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 202 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. P, App. VII TENNESSEE REEF—Continued (Research Only)—[Based on differential Global Positioning Systems data] Point Latitude Longitude 5 .......................... 24 deg.44.77′ N 80 deg.47.12′ W. [66 FR 4376, Jan. 17, 2001] APPENDIX VII TO SUBPART P OF PART 922—AREAS TO BE AVOIDED BOUND ARY COORDINATES IN THE VICINITY OF THE FLORIDA KEYS [Reference Charts: United States 11466, 27th Edition—Sep tember 1, 1990 and United States 11450, 4th Edition—Au gust 11, 1990] Point Latitude Longitude 1 .......................... 25°45.00′ N 80°06.10′ W 2 .......................... 25°38.70′ N 80°02.70′ W 3 .......................... 25°22.00′ N 80°03.00′ W 4 .......................... 25°06.38′ N 80°10.48′ W 5 .......................... 24°56.37′ N 80°19.26′ W 6 .......................... 24°37.90′ N 80°47.30′ W 7 .......................... 24°29.20′ N 81°17.30′ W 8 .......................... 24°22.30′ N 81°43.17′ W 9 .......................... 24°28.00′ N 81°43.17′ W 10 ........................ 24°28.70′ N 81°43.50′ W 11 ........................ 24°29.80′ N 81°43.17′ W 12 ........................ 24°33.10′ N 81°35.15′ W 13 ........................ 24°33.60′ N 81°26.00′ W 14 ........................ 24°38.20′ N 81°07.00′ W 15 ........................ 24°43.20′ N 80°53.20′ W 16 ........................ 24°46.10′ N 80°46.15′ W 17 ........................ 24°51.10′ N 80°37.10′ W 18 ........................ 24°57.50′ N 80°27.50′ W 19 ........................ 25°09.90′ N 80°16.20′ W 20 ........................ 25°24.00′ N 80°09.10′ W 21 ........................ 25°31.50′ N 80°07.00′ W 22 ........................ 25°39.70′ N 80°06.85′ W 23 ........................ 25°45.00′ N 80°06.10′ W IN THE VICINITY OF KEY WEST HARBOR [Reference Chart: United States 11434, 21st Edition—August 11, 1990] Point Latitude Longitude 24 ........................ 24 deg.27.95’ N 81 deg.48.65’ W. 25 ........................ 24 deg.23.00’ N 81 deg.53.50’ W. 26 ........................ 24 deg.26.60’ N 81 deg.58.50’ W. 27 ........................ 24 deg.27.75’ N 81 deg.55.70’ W. 28 ........................ 24 deg.29.35’ N 81 deg.53.40’ W. 29 ........................ 24 deg.29.35’ N 81 deg.50.00’ W. 30 ........................ 24 deg.27.95’ N 81 deg.48.65’ W. AREA SURROUNDING THE MARQUESAS KEYS [Reference Chart: United States 11434, 21st Edition—August 11, 1990] Point Latitude Longitude 31 ........................ 24 deg.26.60’ N 81 deg.59.55’ W. 32 ........................ 24 deg.23.00’ N 82 deg.03.50’ W. 33 ........................ 24 deg.23.60’ N 82 deg.27.80’ W. 34 ........................ 24 deg.34.50’ N 82 deg.37.50’ W. 35 ........................ 24 deg.43.00’ N 82 deg.26.50’ W. 36 ........................ 24 deg.38.31’ N 81 deg.54.06’ W. 37 ........................ 24 deg.37.91’ N 81 deg.53.40’ W. AREA SURROUNDING THE MARQUESAS KEYS— Continued [Reference Chart: United States 11434, 21st Edition—August 11, 1990] Point Latitude Longitude 38 ........................ 24 deg.36.15’ N 81 deg.51.78’ W. 39 ........................ 24 deg.34.40’ N 81 deg.50.60’ W. 40 ........................ 24 deg.33.44’ N 81 deg.49.73’ W. 41 ........................ 24 deg.31.20’ N 81 deg.52.10’ W. 42 ........................ 24 deg.28.70’ N 81 deg.56.80’ W. 43 ........................ 24 deg.26.60’ N 81 deg.59.55’ W. AREA SURROUNDING THE DRY TORTUGAS ISLANDS [Reference Chart: United States 11434, 21st Edition—August 11, 1990] Point Latitude Longitude 44 ........................ 24 deg.32.00’ N 82 deg.53.50’ W. 45 ........................ 24 deg.32.00’ N 83 deg.00.05’ W. 46 ........................ 24 deg.39.70’ N 83 deg.00.05’ W. 47 ........................ 24 deg.45.60’ N 82 deg.54.40’ W. 48 ........................ 24 deg.45.60’ N 82 deg.47.02’ W. 49 ........................ 24 deg.42.80’ N 82 deg.43.90’ W. 50 ........................ 24 deg.39.50’ N 82 deg.43.90’ W. 51 ........................ 24 deg.35.60’ N 82 deg.46.40’ W. 52 ........................ 24 deg.32.00’ N 82 deg.53.50’ W. [66 FR 4377, Jan. 17, 2001, as amended at 66 FR 34534, June 29, 2001] Subpart Q—Hawaiian Islands Humpback Whale National Marine Sanctuary AUTHORITY: 16 U.S.C. 1431 et seq. and sub title C, title II, Pub. L. 102–587, 106 Stat. 5055. SOURCE: 64 FR 66570, Nov. 29, 1999, unless otherwise noted. § 922.180 Purpose. (a) The purpose of the regulations in this subpart is to implement the des ignation of the Hawaiian Islands Humpback Whale National Marine Sanctuary by regulating activities af fecting the resources of the Sanctuary or any of the qualities, values, or pur poses for which the Sanctuary was des ignated, in order to protect, preserve, and manage the conservation, ecologi cal, recreational, research, edu cational, historical, cultural, and aes thetic resources and qualities of the area. The regulations are intended to supplement and complement existing regulatory authorities; to facilitate to the extent compatible with the pri mary objective of protecting the hump back whale and its habitat, all public VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00212 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 203 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.181 and private uses of the Sanctuary, in cluding uses of Hawaiian natives cus tomarily and traditionally exercised for subsistence, cultural, and religious purposes, as well as education, re search, recreation, commercial and military activities; to reduce conflicts between compatible uses; to maintain, restore, and enhance the humpback whale and its habitat; to contribute to the maintenance of natural assem blages of humpback whales for future generations; to provide a place for humpback whales that are dependent on their Hawaiian Islands wintering habitat for reproductive activities, in cluding breeding, calving, and nursing, and for the long-term survival of their species; and to achieve the other pur poses and policies of the HINMSA and NMSA. (b) These regulations may be modi fied to fulfill the Secretary’s respon sibilities for the Sanctuary, including the provision of additional protections for humpback whales and their habitat, if reasonably necessary, and the con servation and management of other marine resources, qualities and eco systems of the Sanctuary determined to be of national significance. The Sec retary shall consult with the Governor of the State of Hawaii on any modifica tion to the regulations contained in this part. For any modification of the regulations contained in this part that would constitute a change in a term of the designation, as contained in the Designation Document for the Sanc tuary, the Secretary shall follow the applicable requirements of sections 303 and 304 of the NMSA, and sections 2305 and 2306 of the HINMSA. (c) Section 304(e) of the NMSA re quires the Secretary to review manage ment plans and regulations every five years, and make necessary revisions. Upon completion of the five year re view of the Sanctuary management plan and regulations, the Secretary will repropose the Sanctuary manage ment plan and regulations in their en tirety with any proposed changes thereto. The Governor of the State of Hawaii will have the opportunity to re view the re-proposed management plan and regulations before they take effect and if the Governor certifies any term or terms of such management plan or regulations as unacceptable, the unac ceptable term or terms will not take effect in State waters of the Sanc tuary. § 922.181 Boundary. (a) Except for excluded areas de scribed in paragraph (b) of this section, the Hawaiian Islands Humpback Whale National Marine Sanctuary consists of the submerged lands and waters off the coast of the Hawaiian Islands seaward from the shoreline, cutting across the mouths of rivers and streams: (1) To the 100-fathom (183 meter) isobath from Kailiu Point eastward to Mokolea Point, Kauai; (2) To the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to Makapuu Point, Oahu; (3) To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, south and westward to Ilio Point, Molokai; southwestward to include Penguin Banks; eastward along the east side of Lanai; to the waters sea ward of the three nautical mile limit north of Kahoolawe, to the Hanamanoia Lighthouse on Maui, and northward along the shoreline to Lipoa Point, Maui; (4) To the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Lipoa Point, Maui, and southward; (5) To the 100-fathom (183 meter) isobath from Upolu Point southward to Keahole Point, Hawaii. (b) Excluded from the Sanctuary boundary are the following commercial ports and small boat harbors: HAWAII (BIG ISLAND) Kawaihae Boat Harbor & Small Boat Basin LANAI Kaumalapau Harbor, Manele Harbor MAUI Lahaina Boat Harbor Maalaea Boat Harbor MOLOKAI Hale o Lono Harbor Kaunakakai Harbor OAHU Kuapa Pond (Hawaii Kai) VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00213 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 204 15 CFR Ch. IX (1–1–21 Edition) § 922.182 (c) The coordinates of the lateral extents of each boundary area within the Sanctuary boundary appear in ap pendix A of this subpart Q. § 922.182 Definitions. (a) Acts means the Hawaiian Islands National Marine Sanctuary Act (HINMSA; sections 2301–2307 of Pub. L. 102–587), and the National Marine Sanc tuaries Act (NMSA; also known as Title III of the Marine Protection, Re search, and Sanctuaries Act (MPRSA), as amended, 16 U.S.C. 1431 et seq.). Adverse impact means an impact that independently or cumulatively dam ages, diminishes, degrades, impairs, de stroys, or otherwise harms. Alteration of the seabed means drilling into, dredging, or otherwise altering a natural physical characteristic of the seabed of the Sanctuary; or con structing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary. Habitat means those areas that pro vide space for individual and popu lation growth and normal behavior of humpback whales, and include sites used for reproductive activities, includ ing breeding, calving and nursing. Military activities means those mili tary activities conducted by or under the auspices of the Department of De fense and any combined military ac tivities carried out by the Department of Defense and the military forces of a foreign nation. Sanctuary means the Hawaiian Is lands Humpback Whale National Ma rine Sanctuary. Sanctuary resource means any hump back whale, or the humpback whale’s habitat within the Sanctuary. Shoreline means the upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vege tation growth, or the upper limit of de bris left by the wash of the waves. Take or taking a humpback whale means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, col lect or injure a humpback whale, or to attempt to engage in any such conduct. The term includes, but is not limited to, any of the following activities: col lecting any dead or injured humpback whale, or any part thereof; restraining or detaining any humpback whale, or any part thereof, no matter how tem porarily; tagging any humpback whale; operating a vessel or aircraft or doing any other act that results in the dis turbing or molesting of any humpback whale. (b) Other terms appearing in the reg ulations in this subpart are defined at 15 CFR 922.3, and/or in the Marine Pro tection, Research, and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 et seq. § 922.183 Allowed activities. (a) All activities except those prohib ited by § 922.184 may be undertaken in the Sanctuary subject to any emer gency regulations promulgated pursu ant to § 922.185, subject to the inter agency cooperation provisions of sec tion 304(d) of the NMSA [16 U.S.C. 1434(d)] and § 922.187 of this subpart, and subject to the liability established by section 312 of the NMSA and § 922.46 of this part. All activities are also subject to all prohibitions, restrictions, and conditions validly imposed by any other Federal, State, or county author ity of competent jurisdiction. (b) Included as activities allowed under the first sentence of paragraph (a) of this § 922.183 are all classes of military activities, internal or exter nal to the Sanctuary, that are being or have been conducted before the effec tive date of these regulations, as iden tified in the Final Environmental Im pact Statement/Management Plan. Paragraphs (a)(1) through (a)(5) of § 922.184 do not apply to these classes of activities, nor are these activities sub ject to further consultation under sec tion 304(d) of the NMSA. (c) Military activities proposed after the effective date of these regulations are also included as allowed activities under the first sentence of paragraph (a) of this § 922.183. Paragraphs (a)(1) through (a)(5) of § 922.184 apply to these classes of activities unless— (1) They are not subject to consulta tion under section 304(d) of the NMSA and § 922.187 of this subpart, or (2) Upon consultation under section 304(d) of the NMSA and § 922.187 of this VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00214 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 205 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.184 subpart, NOAA’s findings and rec ommendations include a statement that paragraphs (a)(1) through (a)(5) of § 922.184 do not apply to the military activity. (d) If a military activity described in paragraphs (b) or (c)(2) of this § 922.183 is modified such that it is likely to de stroy, cause the loss of, or injure a Sanctuary resource in a manner sig nificantly greater than was considered in a previous consultation under sec tion 304(d) of the NMSA and § 922.187 of this subpart, or if the modified activity is likely to destroy, cause the loss of, or injure any Sanctuary resource not considered in a previous consultation under section 304(d) of the NMSA and § 922.187 of this subpart, the modified activity will be treated as a new mili tary activity under paragraph (c) of this section. (e) If a proposed military activity subject to section 304(d) of the NMSA and § 922.187 of this subpart is necessary to respond to an emergency situation and the Secretary of Defense deter mines in writing that failure to under take the proposed activity during the period of consultation would impair the national defense, the Secretary of the military department concerned may request the Director that the ac tivity proceed during consultation. If the Director denies such a request, the Secretary of the military department concerned may decide to proceed with the activity. In such case, the Sec retary of the military department con cerned shall provide the Director with a written statement describing the ef fects of the activity on Sanctuary re sources once the activity is completed. § 922.184 Prohibited activities. (a) The following activities are pro hibited and thus unlawful for any per son to conduct or cause to be con ducted. (1) Approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whale except as authorized under the Marine Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., and the Endan gered Species Act, as amended (ESA), 16 U.S.C. 1531 et seq.; (2) Operating any aircraft above the Sanctuary within 1,000 feet of any humpback whale except as necessary for takeoff or landing from an airport or runway, or as authorized under the MMPA and the ESA; (3) Taking any humpback whale in the Sanctuary except as authorized under the MMPA and the ESA; (4) Possessing within the Sanctuary (regardless of where taken) any living or dead humpback whale or part there of taken in violation of the MMPA or the ESA; (5) Discharging or depositing any ma terial or other matter in the Sanc tuary; altering the seabed of the Sanc tuary; or discharging or depositing any material or other matter outside the Sanctuary if the discharge or deposit subsequently enters and injures a humpback whale or humpback whale habitat, provided that such activity: (i) Requires a Federal or State per mit, license, lease, or other authoriza tion; and (ii) Is conducted: (A) Without such permit, license, lease, or other authorization, or (B) not in compliance with the terms or conditions of such permit, license, lease, or other authorization. (6) Interfering with, obstructing, de laying or preventing an investigation, search, seizure or disposition of seized property in connection with enforce ment of either of the Acts or any regu lations issued under either of the Acts. (b) The prohibitions in paragraphs (a)(1) through (a)(5) of this § 922.184 do not apply to activities necessary to re spond to emergencies threatening life, property or the environment; or to ac tivities necessary for valid law enforce ment purposes. However, while such ac tivities are not subject to paragraphs (a)(1) through (a)(5) of this § 922.184, this paragraph (b) does not exempt the activity from the underlying prohibi tion or restriction under other applica ble laws and regulations (e.g., MMPA, ESA, and CWA). (c) Any Sanctuary fishery regula tions shall not take effect in Hawaii State waters until established by the State Board of Land and Natural Re sources. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00215 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 206 15 CFR Ch. IX (1–1–21 Edition) § 922.185 § 922.185 Emergency regulations. Where necessary to prevent or mini mize the destruction of, loss of, or in jury to a Sanctuary resource, or to minimize the imminent risk of such de struction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohi bition. Before issuance of such regula tions the Director shall consult to the extent practicable with any relevant Federal agency and the Governor of the State of Hawaii. Emergency regula tions shall not take effect in State waters of the Sanctuary until approved by the Governor of Hawaii. § 922.186 Penalties; appeals. (a) Pursuant to section 307 of the NMSA, each violation of either of the Acts, or any regulation in this subpart is subject to a civil penalty of not more than $100,000. Each such violation is subject to forfeiture of property or Sanctuary resources seized in accord ance with section 307 of the NMSA. Each day of a continuing violation con stitutes a separate violation. (b) Regulations setting forth the pro cedures governing the administrative proceedings for assessment of civil pen alties for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized prop erty appear at 15 CFR Part 904. (c) A person subject to an action taken for enforcement reasons for vio lation of these regulations or either of the Acts may appeal pursuant to the applicable procedures in 15 CFR Part 904. § 922.187 Interagency Cooperation. Under section 304(d) of the NMSA, Federal agency actions internal or ex ternal to a national marine sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause the loss of, or injure any sanctuary resource are sub ject to consultation with the Director. The Federal agency proposing an ac tion shall determine whether the activ ity is likely to destroy, cause the loss of, or injure a Sanctuary resource. To the extent practicable, consultation procedures under section 304(d) of the NMSA may be consolidated with inter agency cooperation procedures re quired by other statutes, such as the ESA. The Director will attempt to pro vide coordinated review and analysis of all environmental requirements. APPENDIX A TO SUBPART Q OF PART 922—HAWAIIAN ISLANDS HUMPBACK WHALE, NATIONAL MARINE SANC TUARY BOUNDARY DESCRIPTION AND COORDINATES OF THE LATERAL BOUNDARY CLOSURES AND EXCLUDED AREAS. Appendix A provides a text and pictoral (see Figures 1–3) description of the Sanc tuary boundary with specific lateral closure points and exclusion areas. The lateral extents (bounds) of each boundary area are closed by straight lines defined by at least two points. It may be necessary to extend these lines beyond the defining points to intersect the actual 100 fathom contour or the shoreline. Each point corresponds to a bounds number indicated in Figure 2. Digital files of the Sanctuary boundary (available in three common formats, ESRI Shape File, MapInfo Table, and an ASCII Exchange For mat) are available from the Sanctuary office in Kihei, Maui, at the address listed above or by calling (808) 879–2818. These digital geog raphies are the best available representation of the verbal legal delineation and were de rived from: the Hawaiian shoreline as sup plied by State of Hawaii through the Office of Planning GIS Office, the NOAA and State of Hawaii agreed upon lateral boundary and exclusion areas, and the 100 fathom isobath digitized from the following 1:80,000 scale NOAA nautical charts-19327—West Coast of Hawaii (9th ED, 4/29/89), 19347—Channels between Molokai, Maui, Lanai, and Kahoolawe (17th ED, 12/13/97), 19351—Channels between Oahu, Molokai, and Lanai (8th ED, 7/01/1989), 19357—Island of Oahu (20th ED, 9/21/1996), and 19381—Island of Kauai (8th ED, 7/17/1993)]. For the portion of the Lanai region of the HIHWNMS west of Chart 19351,[157°42.8′ west] the 100 fathom contour was derived from the 1:250,000 chart 19340—Hawaii to Oahu (24th ED, 1/09/1993). All digital geography data have been ref erenced to WGS84 (NAD83) and have been converted to geographic (latitude and lon gitude) coordinates. SANCTUARY BOUNDARY A. As defined by the specific lateral bound aries in B, and except for excluded areas de scribed in paragraph C of this section, the Hawaiian Islands Humpback Whale National Marine Sanctuary consists of the submerged VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00216 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 207 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. Q, App. A lands and waters off the coast of the Hawai ian Islands seaward from the shoreline, cut ting across the mouths of rivers and streams (see Figure 1): 1. To the 100-fathom (183 meter) isobath from Kailiu Point eastward to Mokolea Point, Kauai; 2. To the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point, and from the Kapahulu Groin in Waikiki eastward to Makapuu Point, Oahu; 3. To the 100-fathom (183 meter) isobath from Cape Halawa, Molokai, south and west ward to Ilio Point, Molokai; southwestward to include Penguin Banks; eastward along the east side of Lanai; to the waters seaward of the three nautical mile limit north of Kahoolawe, to the Hanamanoia Lighthouse on Maui, and northward along the shoreline to Lipoa Point, Maui; 4. To the deep water area of Pailolo Chan nel from Cape Halawa, Molokai, to Lipoa Point, Maui, and southward; 5. To the 100-fathom (183 meter) isobath from Upolu Point southward to Keahole Point, Hawaii. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00217 Fmt 8010 Sfmt 8006 Y:\SGML\253053.XXX 253053 ER 2 9 N O 9 9 .0 0 0 < /G P H > 208 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. Q, App. A B. Lateral Closure Bounds for the Hawai ian Islands Humpback Whale National Ma rine Sanctuary Boundary (see Figure 2). Bound No. (Fig. 2) Geographic name No. of points Latitude Longitude 1 ................... Kailiu Pt., Kauai ............................................................................... 2 22°13′24.7″ 22°16′33.5″ ¥159°34′52.2″ ¥159°35′59.4″ 2 ................... Mokolea Pt., Kauai .......................................................................... 2 22°13′29.9″ 22°14′55.4″ ¥159°22′55.8″ –159°22′19.3″ 3 ................... Puaena Pt., N. Oahu ....................................................................... 2 21°38′24.6″ 21°36′8.4″ ¥158°8′26.0″ ¥158°6′24.5″ 4 ................... Mahie Pt., N. Oahu ......................................................................... 2 21°33′37.3″ 21°35′32.2″ ¥157°51′51.9″ ¥157°50′5.5″ 5 ................... Kapahulu Groin, S. Oahu ................................................................ 3 21°15′5.7″ 21°16′6.1″ 21°16′6.2″ ¥157°50′27.5″ ¥157°49′25.7″ ¥157°49′23.8″ VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00218 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 ER 2 9 N O 9 9 .0 0 1 < /G P H > 209 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. Q, App. A Bound No. (Fig. 2) Geographic name No. of points Latitude Longitude 6 ................... Makapuu Pt., S. Oahu .................................................................... 2 21°18′39.6″ 21°19′44.7″ ¥157°38′56.7″ ¥157°35′46.1″ 7 ................... Ilio Pt, Molokai ................................................................................. 2 21°13′25.7″ 21°13′27.0″ ¥157°18′45.8″ ¥157°15′14.4″ 8 ................... Pailolo Channel, C. Halawa to Lipoa Pt. ........................................ 2 21°1′29.8″ 21°9′29.5″ ¥156°38′22.0″ ¥156°42′37.2″ 9 ................... Hanamanoia Lighthouse, Maui ....................................................... 2 20°34′21.8″ 20°34′58.4″ ¥156°26′51.1″ ¥156°24′45.2″ 10 ................. 3 Nmi. closure around Kahoolawe .................................................. 51 20°35′58.1″ 20°35′59.9″ ¥156°29′32.0″ ¥156°29′33.0″ 20°36′3.9″ ¥156°29′35.5″ 20°36′6.6″ ¥156°29′36.9″ 20°36′16.3″ ¥156°29′43.1″ 20°36′25.7″ ¥156°29′49.9″ 20°36′34.6″ ¥156°29′57.3″ 20°36′39.9″ ¥156°30′2.2″ 20°36′43.8″ ¥156°30′5.5″ 20°36′50.8″ ¥156°30′12.1″ 20°36′59.0″ ¥156°30′16.5″ 20°37′58.7″ ¥156°30′22.7″ 20°37′18.1″ ¥156°30′29.5″ 20°37′27.0″ ¥156°30′36.8″ 20°37′35.5″ ¥156°30′44.8″ 20°37′43.4″ ¥156°30′53.4″ 20°37′50.9″ ¥156°31′2.4″ 20°37′56.4″ ¥156°31′10.0″ 20°37′59.0″ ¥156°31′13.2″ 20°38′6.0″ ¥156°31′22.7″ 20°38′8.6″ ¥156°31′26.8″ 20°38′10.8″ ¥156°31′29.9″ 20°38′17.2″ ¥156°31′39.9″ 20°38′18.9″ ¥156°31′43.0″ 20°38′23.4″ ¥156°31′48.4″ 20°38′30.3″ ¥156°31′58.0″ 20°38′36.6″ ¥156°32′7.9″ 20°38′42.4″ ¥156°32′18.3″ 20°38′43.4″ ¥156°32′20.5″ 20°38′46.4″ ¥156°32′25.9″ 20°38′51.5″ ¥156°32′36.7″ 20°38′56.0″ ¥156°32′47.7″ 20°38′59.8″ ¥156°32′59.1″ 20°39′3.0″ ¥156°33′10.7″ 20°39′4.0″ ¥156°33′15.7″ 20°39′4.4″ ¥156°33′17.0″ 20°39′5.3″ ¥156°33′21.1″ 20°39′6.8″ ¥156°33′28.7″ 20°39′8.6″ ¥156°33′40.7″ 20°39′8.9″ ¥156°33′44.4″ 20°39′9.7″ ¥156°33′49.6″ 20°39′10.1″ ¥156°33′53.8″ 20°39′11.0″ ¥156°34′0.3″ 20°39′12.1″ ¥156°34′12.4″ 20°39′12.5″ ¥156°34′24.4″ 20°39′12.4″ ¥156°34′25.4″ 20°39′12.6″ ¥156°34′30.5″ 20°39′12.2″ ¥156°34′42.6″ 20°39′11.8″ ¥156°34′47.7″ 20°39′11.7″ ¥156°34′48.9″ 20°39′11.3″ ¥156°34′55.8″ 11 ................... Technical Cosure ............................................................................ 2 20°41′39.2″ 20°41′45.0″ ¥156°37′7.5″ ¥156°38′3.6″ North of Kahoolawe. 12 ................... Upolu Pt., Hawaii (Big Island) ......................................................... 2 20°16′5.3″ 20°17′59.9″ ¥155°51′0.5″ ¥155°51′17.2″ 13 ................... Keahole Pt., Hawaii (Big Island) ..................................................... 2 19°43′39.6″ 19°43′41.5″ ¥156′3′42.7″ ¥156°4′14.5″ C. Excluded Ports and Harbors Bounds (see Figure 3). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00219 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 210 15 CFR Ch. IX (1–1–21 Edition) Pt. 922, Subpt. Q, App. A Bound No. (Fig.2) Geographic Name No. of Points Latitude Longitude 14 ................... Kawaihae Harbor, Big Island exclusion .......................................... 2 20°2′14.3″ 20°2′25.3″ ¥155°50′2.5″ ¥155°49′57.7″ 15 ................... Haleolono Harbor, Molokai exclusion ............................................. 2 21°5′3.5″ 21°5′4.8″ ¥157°14′58.6″ ¥157°14′55.2″ 16 ................... Kaunakakai Harbor, Molokai exclusion ........................................... 4 21°5′13.9″ 21°4′49.2″ 21°4′38.5″ 21°5′7.4″ ¥157°1′35.7″ ¥157°1′58.3″ ¥157°1′41.2″ ¥157°1′15.0″ 17 ................... Kaumalapau Harbor, Lanai exclusion ............................................. 2 20°47′9.2″ 20°47′1.1″ ¥156°59′32.2″ ¥156°59′31.3″ 18 ................... Manele Harbor, Lanai exclusion ..................................................... 2 20°44′33.2″ 20°44′35.2″ ¥156°53′12.9″ ¥156°53′14.1″ 19 ................... Lahaina Harbor, Maui exclusion ..................................................... 2 20°52′18.3″ 20°52′18.8″ ¥156°40′45.0″ ¥156°40′44.0″ 20 ................... Maalaea Harbor, Maui exclusion .................................................... 2 20°47′32.1″ 20°47′24.8″ ¥156°30′35.0″ ¥156°30′39.6″ VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00220 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 ER 2 9 N O 9 9 .0 0 2 < /G P H > 211 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.191 Bound No. (Fig.2) Geographic Name No. of Points Latitude Longitude 21 ................... Western closure Kuapa Pond (Hawaii Kai), Oahu ......................... 2 21°17′7.0″ 21°17′6.5″ ¥157°43′7.7″ ¥157°43′7.0″ 22 ................... Eastern closure Kuapa Pond (Hawaii Kai), Oahu .......................... 2 21°16′53.3″ 21°16′51.9″ ¥157°42′42.7″ ¥157°42′40.3″ Subpart R—Thunder Bay National Marine Sanctuary and Under water Preserve SOURCE: 65 FR 39056, June 22, 2000, unless otherwise noted. § 922.190 Boundary. (a) Except as provided in paragraph (b) of this section, the Thunder Bay National Marine Sanctuary and Under water Preserve (Sanctuary) consists of an area of approximately 4,300 square miles of waters of Lake Huron and the submerged lands thereunder, over, around, and under the underwater cul tural resources in Thunder Bay. The eastern boundary of the sanctuary be gins at the intersection of the southern Alcona County boundary and the U.S./ Canada international boundary (Point 1). The eastern boundary of the sanc tuary approximates the international boundary passing through Points 2–5. The boundary continues west through Point 6 and then back to the northeast until it intersects with the 45.83333°N line of latitude at Point 7. The north ern boundary follows the line of lati tude 45.83333°N westward until it inter sects the ¥84.33333°W line of longitude at Point 8. The western boundary ex tends south along the ¥84.33333°W line of longitude towards Point 9 until it intersects the ordinary high water mark at Cordwood Point. From there, the western boundary follows the ordi nary high water mark as defined by Part 325, Great Lakes Submerged Lands, of P.A. 451 (1994), as amended, cutting across the mouths of rivers and streams until it intersects the line formed between Point 10 and Point 11 south of Rogers City, MI. From there the boundary moves offshore through Points 11–15 in order until it intersects the ordinary high water mark along the line formed between Point 15 and Point 16. At this intersection the boundary continues to follow the ordi nary high water mark south until it intersects with the line formed be tween Point 17 and Point 18 near Stoneport Harbor Light in Presque Isle, MI. From there the boundary moves off shore through Points 18–20 in order until it intersects the ordinary high water mark along the line formed be tween Point 20 and Point 21. At this intersection the boundary continues to follow the ordinary high water mark south until it intersects the line formed between Point 22 and Point 23 near the Lafarge dock in Alpena, MI. At this intersection the boundary moves towards Point 23 until it inter sects the ordinary high water mark. At this intersection the boundary follows the ordinary high water mark south until it intersects the southern Alcona County boundary along the lined formed between Point 24 and Point 25 in Greenbush, MI. Finally, at this intersection the boundary moves east ward and offshore until it reaches Point 25. (b) Excluded from the Sanctuary boundary are the following ports: (1) Rogers City; (2) Presque Isle; and (3) Alpena. (c) The coordinates of each boundary area appear in appendix A of this sub part. [79 FR 52971, Sept. 5, 2014; 79 FR 12080, Sept. 5, 2014] § 922.191 Definitions. (a) The following terms are defined for purposes of Subpart R: Minor project means any project list ed in appendix B to this Subpart. Programmatic Agreement means the agreement among NOAA, the Federal Advisory Council on Historic Preserva tion, and the State of Michigan, devel oped 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 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00221 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 212 15 CFR Ch. IX (1–1–21 Edition) § 922.192 part, sets forth the procedures for re view 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 authoriza tion issued by the State of Michigan for the conduct of activities or projects within the Thunder Bay National Ma rine Sanctuary and Underwater Pre serve that are prohibited by the regula tions at § 922.193. Traditional fishing means those com mercial, recreational, and subsistence fishing activities that were custom arily conducted within the Sanctuary prior to its designation or expansion, as identified in the relevant Final En vironmental Impact Statement and Management Plan for this Sanctuary. Traditional fishing includes tribal fish ing rights as provided for in the 1836 Treaty of Washington and subsequent court decisions related to the Treaty. Treaty fishing rights means those rights reserved in the 1836 Treaty of Washington and in 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 cul tural resource by the Director pursu ant to § 922.198. Underwater cultural re source also means any historical rem nant of docks or piers or associated material, or materials resulting from activities of historic and prehistoric Native Americans. (b) Other terms appearing in the reg ulations are defined at 15 CFR part 922 subpart A, and/or in the National Ma rine Sanctuaries Act, as amended, 16 U.S.C. 1431 et seq. [65 FR 39056, June 22, 2000, as amended at 79 FR 52972, Sept. 5, 2014; 79 FR 12080, Sept. 5, 2014] § 922.192 Joint Management Com mittee. (a) A state/federal Joint Management Committee shall be established to oversee and engage in decision-making authority for the Thunder Bay Na tional Marine Sanctuary and Under water Preserve. (b) The Joint Management Com mittee shall be comprised of one Fed eral employee named by the NOAA Ad ministrator 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 Com mittee 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 Manage ment Plan; (3) Approve annual work plans; (4) Approve, on an annual basis, the expenditure of allocated state and fed eral 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 Sanc tuary and Underwater Preserve. (d) The Joint Management Com mittee shall meet as agreed to by the members but not less than once annu ally. (e) If the Joint Management Com mittee is unable to reach agreement on an issue, the members shall follow the ‘‘Consultation and Conflict Resolu tion’’ procedures set forth in the Interlocal Agreement between NOAA and the State of Michigan. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00222 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 213 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.194 (f) The Joint Management Com mittee may invite affected public par ties to participate in selected aspects of Sanctuary management as: (1) Parties to the Interlocal Agree ment pursuant to the Michigan Urban Cooperation Act of 1967, MCL 124.501 et seq.; and/or (2) Pursuant to the NMSA. § 922.193 Prohibited or otherwise reg ulated activities. (a) Except as specified in paragraphs (b) through (d) of this section, the fol lowing 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 under water cultural resource. (2) Drilling into, dredging or other wise altering the lakebottom associ ated with underwater cultural re sources, including contextual informa tion; or constructing, placing or aban doning any structure, material or other matter on the lakebottom associ ated with underwater cultural re sources, except as an incidental result of: (i) Anchoring vessels; (ii) Traditional fishing operations; or (iii) Minor projects (as defined in ap pendix B of this subpart) that do not adversely affect underwater cultural resources. (3) Using grappling hooks or other anchoring devices on underwater cul tural resource sites that are marked with a mooring buoy. (4) Interfering with, obstructing, de laying or preventing an investigation, search, seizure or disposition of seized property in connection with enforce ment of the Act or any regulations issued under the Act. (b) Members of a federally-recognized Indian tribe may exercise treaty-se cured rights, subject to the require ments of other applicable law, without regard to the requirements of this sub part. The Director may consult with the governing body of a tribe regarding ways the tribe may exercise such rights consistent with the purposes of the Sanctuary, provided that the rights are authorized by the tribe by regula tion, license, or permit. (c) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to valid law enforcement activi ties, or any activity necessary to re spond 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 § 922.195 or a Special Use Permit issued pursu ant to section 310 of the NMSA. (2) Specifically authorized by any valid Federal, State, or local lease, per mit, license, approval, or other author ization 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 § 922.194 and § 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 rea sonably necessary to achieve the pur poses for which the Sanctuary was des ignated. § 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 § 922.193 (a)(1) through (3) if such activity is specifically author ized by a valid Federal, State, or local lease, permit, license, approval, or other authorization in existence on the effective date of Sanctuary designa tion, or by any valid right of subsist ence use or access in existence on the effective date of Sanctuary designa tion, provided that: (1) for any State or local lease, per mit, license, approval, or other author ization, 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 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00223 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 214 15 CFR Ch. IX (1–1–21 Edition) § 922.194 Agreement, in which case such activity shall be deemed to have met the re quirements of this section and § 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, li cense, approval, or other authorization, or right of subsistence use is being con ducted consistent with the Pro grammatic Agreement; or (ii) The activity is conducted pursu ant only to a Federal permit, the hold er of the authorization or right com plies with paragraphs (b) through (k) of this section. (b) For an activity described in para graph (a)(2) of this section, the holder of the authorization or right may con duct the activity prohibited by § 922.193 (a)(1) through (3) provided that: (1) The holder of such authorization or right notifies the Director, in writ ing, within 90 days of the effective date of Sanctuary designation, of the exist ence of such authorization or right and requests certification of such author ization or right; (2) The holder complies with the other provisions of § 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 Di rector, 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 § 922.193 may conduct the activity without being in violation of applicable provisions of § 922.193, pend ing final agency action on his or her certification request, provided the holder is in compliance with this § 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 ac tivity for which the authorization has been issued, or the right given, is pro hibited by § 922.193, thus requiring cer tification under this section. (e) Requests for findings or certifi cations should be addressed to the Di rector, Office of Ocean and Coastal Re source Management; ATTN: Sanctuary Manager, Thunder Bay National Ma rine Sanctuary and Underwater Pre serve, 1305 East-West Highway, N/ORM, Silver Spring, Maryland, 20910. A copy of the lease, permit, license, approval, or other authorization must accom pany the request. (f) The Director may request addi tional information from the certifi cation requester as he or she deems reasonably necessary to condition ap propriately 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 re quest. The Director may seek the views of any persons on the certification re quest. (g) The Director may amend any cer tification made under this § 922.194 whenever additional information be comes available justifying such an amendment. (h) Upon completion of review of the authorization or right and information received with respect thereto, the Di rector shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this § 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 es tablished under this § 922.194 may be ex tended by the Director for good cause. (j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accord ance with the procedures set forth in § 922.50. (k) Any amendment, renewal, or ex tension made after the effective date of Sanctuary designation, to a lease, per mit, license, approval, other authoriza tion or right is subject to the provi sions of § 922.195 and § 922.49. (l) For any activity authorized pursu ant to § 922.193 (b), the holder of such li cense or permit shall notify the Direc tor, in writing, within 90 days of the ef fective date of Sanctuary designation, of the existence of such authorization or right. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00224 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 215 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.195 § 922.195 Permit procedures and cri teria. (a) A person may conduct an activity prohibited by § 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 con ducted consistent with the Pro grammatic Agreement, in which case such State Permit shall be deemed to have met the requirements of § 922.49; or (2) In the case where the State Ar chaeologist does not certify that the activity to be authorized under a State Permit will be conducted consistent with the Programmatic Agreement, the person complies with the require ments of § 922.49 of this part. (b) If no State Permit is required to conduct an activity prohibited by § 922.193 (a)(1) through (3) of this sub part, a person may conduct such activ ity if it is conducted in accordance with the scope, purpose, terms and con ditions of a Federal permit, provided that the person complies with the pro visions of § 922.49 of this part. (c) In instances where the conduct of an activity is prohibited by § 922.193 (a)(1) through (3) of this subpart is not addressed under a State or other Fed eral lease, license, permit or other au thorization, a person must obtain a Sanctuary permit from NOAA pursuant to § 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 under water 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 inter est; (3) Recovery of the underwater cul tural resource is part of research to preserve historic information for pub lic use; and (4) Recovery of the underwater cul tural resource is necessary or appro priate 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 Depart ment of Environmental Quality, Land and Water Management Division, P.O. Box 30458, Lansing, MI, 48909-7958. The application shall contain all of the fol lowing information: (1) The name and address of the ap plicant; (2) Research plan that describes in detail the specific research objectives and previous work done at the site. An archaeological survey must be con ducted on a site before an archae ological permit allowing excavation can be issued; (3) Description of significant previous work in the area of interest, how the proposed effort would enhance or con tribute to improving the state of knowledge, why the proposed effort should be performed in the Sanctuary, and its potential benefits to the Sanc tuary; (4) An operational plan that describes the tasks required to accomplish the project’s objectives and the profes sional qualifications of those con ducting and supervising those tasks (see § 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 de scribe the rationale for selecting the proposed methods over any alternative methods; (5) Archaeological recording, includ ing 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 docu menting: (A) The conservation facility’s equip ment; (B) Ventilation temperature and hu midity control; and (C) storage space. (ii) Documentation of intended con servation 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 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00225 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 216 15 CFR Ch. IX (1–1–21 Edition) § 922.196 Sanctuary’s federal stewardship re sponsibilities under the Federal Ar chaeology Program (36 CFR Part 79, Curation of Federally-Owned and Ad ministered Archaeological Collections); and (9) Documentation of the professional standards of an archaeologist super vising the archaeological recovery of historical artifacts. The minimum pro fessional qualifications in archaeology are a graduate degree in archaeology, anthropology, or closely related field plus: (i) At least one year of full-time pro fessional experience or equivalent spe cialized training in archeological re search, administration or management; (ii) At least four months of super vised 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 super visory level in the study of archeo logical resources in the underwater en vironment. § 922.196 Emergency regulations. (a) Where necessary to prevent or minimize the destruction of, loss of, or injury to an underwater cultural re source, or to minimize the imminent risk of such destruction, loss, or in jury, any and all activities are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect with out 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. § 922.197 Effect on affected federally recognized Indian tribes. The exercise of treaty fishing rights is not modified, altered, or in any way affected by the regulations promul gated in this Subpart. The Director shall consult with the governing body of each federally-recognized Indian tribe mentioned in the 1836 Treaty of Washington and in subsequent court decisions related to the Treaty regard ing any matter which might affect the ability of the Tribe’s members to par ticipate in treaty fishing activities in the Sanctuary. [79 FR 52972, Sept. 5, 2014; 80 FR 12080, Mar. 6, 2015] § 922.198 Procedures for determining watercraft and related items which sink on or after the date of Sanc tuary designation to be an under water cultural resource. The Director, in consultation with the State of Michigan, appropriate fed eral 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 sunk en 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 na tional significance due to architectural significance or association with indi viduals or events that are significant to local or national history. APPENDIX A TO SUBPART R OF PART 922—THUNDER BAY NATIONAL MA RINE SANCTUARY AND UNDERWATER PRESERVE BOUNDARY COORDINATES [Based on North American Datum of 1983] Point ID Latitude (north) Longitude (west) 1 ................. 44.512834 ¥82.329519 2 ................. 44.858147 ¥82.408717 3 ................. 45.208484 ¥82.490596 4 ................. 45.335902 ¥82.52064 5 ................. 45.771937 ¥83.483974 6 ................. 45.773944 ¥83.636867 7 ................. 45.833333 ¥83.586892 8 ................. 45.833333 ¥84.333333 9 * ............... 45.662858 ¥84.333333 10* ............. 45.41733 ¥83.77327 11 ............... 45.42103 ¥83.79487 12 ............... 45.42708 ¥83.79371 13 ............... 45.42343 ¥83.75318 14 ............... 45.41748 ¥83.75333 15 ............... 45.41210 ¥83.76805 16 * ............. 45.40738 ¥83.76785 17 * ............. 45.29672 ¥83.41908 18 ............... 45.29682 ¥83.40965 19 ............... 45.29010 ¥83.40965 20 ............... 45.29464 ¥83.41914 21 * ............. 45.29681 ¥83.42277 22 * ............. 45.06632 ¥83.40715 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00226 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 217 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 922, Subpt. R, App. B Point ID Latitude (north) Longitude (west) 23 * ............. 45.06560 ¥83.40810 24 * ............. 44.511734 ¥83.320169 25 ............... 44.512834 ¥82.329519 NOTE: The coordinates in the table above marked with an asterisk (*) are not part of the sanctuary boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shore line for the purpose of charting the bound ary. [79 FR 52972, Sept. 5, 2014; 80 FR 12080, Mar. 6, 2015, as amended at 80 FR 79684, Dec. 23, 2015] APPENDIX B TO SUBPART R OF PART 922—MINOR PROJECTS FOR PURPOSES OF § 922.193(a)(2)(iii) Pursuant to Michigan State Administra tive Rule R 322.1013 of Part 325, Great Lakes Submerged Lands of Public Act 451 (Michi gan State Statute), the Michigan Depart ment of Environmental Quality (Depart ment) issues permits for projects that are of a minor nature which are not controversial, which have minimal adverse environmental impact, which will be constructed of clean, non-polluting materials, which do not impair the use of the adjacent bottomlands by the public, and which do not adversely affect ri parian interests of adjacent owners. The fol lowing 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 water course involved. (c) Seawalls, bulkheads, and other perma nent revetment structures which meet all of the following purpose and design criteria: (i) the proposed structure fulfills an identi fiable need for erosion protection, bank sta bilization, protection of uplands, or improve ments on uplands; (ii) the structure will be constructed of suitable materials free from pollutants, waste metal products, debris, or organic ma terials; (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 ex ceed 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 meas ures 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 adja cent riparian. (e) Filling for restoration of existing per mitted fill, fills placed incidental to con struction 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 pre viously 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 struc tures, except as exempted by Michigan State Administrative Rule R 322.1008(3), when their design and purpose meet both of the fol lowing 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 im pede 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 amend ed, being Section 281.1001 et seq. of the Michi gan Compiled Laws, and known as the Ma rine 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 re sources. (l) A sand trap wall which meets all of the following criteria: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00227 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 218 15 CFR Ch. IX (1–1–21 Edition) § 922.200 (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 struc tures 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 man ner which will not allow erosion into public waters; (ii) The shoreline and bottom contours shall be restored to an acceptable condition; and (iii) Upon completion of structure removal, the site does not constitute a safety or navi gational hazard. Department staff shall con sider fisheries and wildlife resource values when evaluating applications for natural ob struction removal. Subpart S—Mallows Bay—Poto mac River National Marine Sanctuary SOURCE: 84 FR 32603, July 8, 2019, unless otherwise noted. § 922.200 Boundary. The Mallows Bay-Potomac River Na tional Marine Sanctuary consists of an area of approximately 18 square miles of waters of the state of Maryland and the submerged lands thereunder, over, around, and under the underwater cul tural resources in the Potomac River. The precise boundary coordinates are listed in appendix A to this subpart. The western boundary of the sanctuary approximates the border between the Commonwealth of Virginia and the State of Maryland along the western side of the Potomac River and begins at Point 1 north of the mouth of Aquia Creek in Stafford County, Virginia, near Brent Point. From this point the boundary continues to the north ap proximating the border between Vir ginia and Maryland cutting across the mouths of streams and creeks passing through the points in numerical order until it reaches Point 40 north of Tank Creek. From this point the sanctuary boundary continues east across the Po tomac River in a straight line towards Point 41 until it intersects the Mary land shoreline just north of Sandy Point in Charles County, Maryland. From this intersection the sanctuary boundary then follows the Maryland shoreline south around Mallows Bay, Blue Banks, and Wades Bay cutting across the mouths of creeks and streams along the eastern shoreline of the Potomac River until it intersects the line formed between Point 42 and Point 43 just south of Smith Point. Fi nally, from this intersection the sanc tuary boundary crosses the Potomac River to the west in a straight line until it reaches Point 43 north of the mouth of Aquia Creek in Stafford County, Virginia, near Brent Point. § 922.201 Definitions. (a) The following terms are defined for purposes of this subpart: (1) Sanctuary resource means any his torical resource with the Sanctuary boundaries, as defined in § 922.3. This includes, but is not limited to, any sunken watercraft and any associated rigging, gear, fittings, trappings, and equipment; the personal property of the officers, crew, and passengers, and any cargo; and any submerged or par tially submerged prehistoric, historic, cultural remains, such as docks, piers, fishing-related remains (e.g., weirs, fish-traps) or other cultural heritage materials. Sanctuary resource also means any archaeological, historical, and cultural remains associated with or representative of historic or pre historic American Indians and historic groups or peoples and their activities. (2) Traditional fishing means those commercial, recreational, and subsist ence fishing activities that were cus tomarily conducted within the Sanc tuary prior to its designation or expan sion, as identified in the relevant Final Environmental Impact Statement and Management Plan for this Sanctuary. (b) All other terms appearing in the regulations in this subpart are defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 et seq. § 922.202 Joint management. NOAA has primary responsibility for the management of the Sanctuary pur suant to the Act. However, NOAA shall VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00228 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 219 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.203 co-manage the Sanctuary in collabora tion with the State of Maryland and Charles County. The Director shall enter into a Memorandum of Agree ment regarding this collaboration that shall address, but not be limited to, such aspects as areas of mutual con cern, including Sanctuary programs, permitting, activities, development, and threats to Sanctuary resources. § 922.203 Prohibited or otherwise reg ulated activities. (a) Except as specified in paragraphs (b) and (c) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted: (1) Moving, removing, recovering, al tering, destroying, possessing, or oth erwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a Sanctuary re source, except as an incidental result of traditional fishing. This prohibition does not apply to possessing historical resources removed from the Sanctuary area before the effective date of the Sanctuary designation. (2) Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or perma nent, or with any monuments, stakes, posts, buoys, or other boundary mark ers related to the Sanctuary. (3) Interfering with, obstructing, de laying or preventing an investigation, search, seizure or disposition of seized property in connection with enforce ment of the Act or any regulation or any permit issued under the Act. (b) The prohibitions in paragraphs (a)(1) through (3) of this section do not apply to any activity necessary to re spond to an emergency threatening life, property or the environment; or to activities necessary for valid law en forcement purposes. (c)(1) All military activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impact on sanctuary resources and qualities. (2) Any existing military activity conducted by DoD prior to the effective date of the regulations in this subpart and as specifically identified in the Final Environmental Impact State ment and Final Management Plan for the Sanctuary (FEIS/FMP) is allowed to continue in the Sanctuary. The pro hibitions in paragraphs (a)(1) through (3) of this section do not apply to those existing military activities or to the following military activities conducted by DoD: (i) Low-level overflight of military aircraft operated by DoD; (ii) The designation of new units of special use airspace; (iii) The use or establishment of mili tary flight training routes; (iv) Air or ground access to existing or new electronic tracking communica tions sites associated with special use airspace or military flight training routes; or (v) Activities to reduce or eliminate a threat to human life or property pre sented by unexploded ordnances or mu nitions. (3) New military activities that do not violate the prohibitions in para graphs (a)(1) through (3) of this section are allowed. Any new military activity that is likely to violate sanctuary pro hibitions may become exempt through consultation between the Director and DoD pursuant to section 304(d) of the NMSA. For purposes of this paragraph (c)(3), the term ‘‘new military activ ity’’ includes but is not limited to, any existing military activity that is modi fied in any way (including change in lo cation, frequency, duration, or tech nology used) that is likely to destroy, cause the loss of, or injure a sanctuary resource, or is likely to destroy, cause the loss of, or injure a sanctuary re source in a manner or to an extent that was not considered in a previous con sultation under section 304(d) of the NMSA. (4) In the event of destruction of, loss of, or injury to a sanctuary resource or quality resulting from an incident, in cluding but not limited to spills and groundings caused by DoD, the cog nizant component shall promptly co ordinate with the Director for the pur pose of taking appropriate actions to prevent, respond to or mitigate the harm and, if possible, restore or replace the sanctuary resource or quality. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00229 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 220 15 CFR Ch. IX (1–1–21 Edition) § 922.204 § 922.204 Emergency regulations. (a) Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource, or to minimize the imminent risk of such de struction, loss, or injury, any and all activities, other than DoD activities, are subject to immediate temporary regulation, including prohibition. An emergency regulation shall not take effect without the approval of the Gov ernor of Maryland or her/his designee or designated agency. (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. § 922.205 Permit procedures and re view criteria. (a) Authority to issue general permits. The Director may allow a person to conduct an activity that would other wise be prohibited by this subpart, through issuance of a general permit, provided the applicant complies with: (1) The provisions of subpart E of this part; and (2) The relevant site-specific regula tions appearing in this subpart. (b) Sanctuary general permit categories. The Director may issue a sanctuary general permit under this subpart, sub ject to such terms and conditions as he or she deems appropriate, if the Direc tor finds that the proposed activity falls within one of the following cat egories: (1) Research—activities that con stitute scientific research on or sci entific monitoring of national marine sanctuary resources or qualities; (2) Education—activities that en hance public awareness, understanding, or appreciation of a national marine sanctuary or national marine sanc tuary resources or qualities; or (3) Management—activities that as sist in managing a national marine sanctuary. (c) Review criteria. The Director shall not issue a permit under this subpart, unless he or she also finds that: (1) The proposed activity will be con ducted in a manner compatible with the primary objective of protection of national marine sanctuary resources and qualities, taking into account the following factors: (i) The extent to which the conduct of the activity may diminish or en hance national marine sanctuary re sources and qualities; and (ii) Any indirect, secondary or cumu lative effects of the activity. (2) It is necessary to conduct the pro posed activity within the national ma rine sanctuary to achieve its stated purpose. (3) The methods and procedures pro posed by the applicant are appropriate to achieve the proposed activity’s stat ed purpose and eliminate, minimize, or mitigate adverse effects on sanctuary resources and qualities as much as pos sible. (4) The duration of the proposed ac tivity and its effects are no longer than necessary to achieve the activity’s stated purpose. (5) The expected end value of the ac tivity to the furtherance of national marine sanctuary goals and purposes outweighs any potential adverse im pacts on sanctuary resources and quali ties from the conduct of the activity. (6) The applicant is professionally qualified to conduct and complete the proposed activity. (7) The applicant has adequate finan cial resources available to conduct and complete the proposed activity and terms and conditions of the permit. (8) There are no other factors that would make the issuance of a permit for the activity inappropriate. § 922.206 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 § 922.203(a)(1) through (3) if such activity is specifically author ized by a valid Federal, state, or local lease, permit, license, approval, or other authorization, or tribal right of subsistence use or access in existence prior to the effective date of sanctuary designation and within the sanctuary designated area and complies with § 922.49 and provided that the holder of the lease, permit, license, approval, or other authorization complies with the requirements of paragraph (e) of this section. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00230 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 221 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.206 (b) In considering whether to make the certifications called for in this sec tion, the Director may seek and con sider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate. (c) The Director may amend, sus pend, or revoke any certification made under this section whenever continued operation would otherwise be incon sistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit, license, or other authorization and the issuing agency and shall set forth reason(s) for the action taken. (d) Requests for findings or certifi cations should be addressed to the Di rector, Office of National Marine Sanc tuaries; ATTN: Sanctuary Super intendent, Mallows Bay-Potomac Na tional Marine Sanctuary, 1305 East West Hwy., 11th Floor, Silver Spring, MD 20910. A copy of the lease, permit, license, approval, or other authoriza tion must accompany the request. (e) For an activity described in para graph (a) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.203(a)(1) through (3) provided that: (1) The holder of such authorization or right notifies the Director, in writ ing, within 180 days of the FEDERAL REGISTER notification announcing of effective date of the Sanctuary des ignation, of the existence of such au thorization or right and requests cer tification of such authorization or right; (2) The holder complies with the other provisions of this section; 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 Di rector, to achieve the purposes for which the Sanctuary was designated. (f) The holder of an authorization or right described in paragraph (a) of this section authorizing an activity prohib ited by § 922.203 may conduct the activ ity without being in violation of appli cable provisions of § 922.203, pending final agency action on his or her cer tification request, provided the holder is otherwise in compliance with this section. (g) The Director may request addi tional information from the certifi cation requester as he or she deems reasonably necessary to condition ap propriately 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 re quest. The Director may seek the views of any persons on the certification re quest. (h) The Director may amend any cer tification made under this section whenever additional information be comes available that he/she determines justifies such an amendment. (i) Upon completion of review of the authorization or right and information received with respect thereto, the Di rector shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this sec tion, in writing, to both the holder of the certified lease, permit, license, ap proval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken. (j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accord ance with the procedures set forth in § 922.50. (k) Any time limit prescribed in or established under this section may be extended by the Director for good cause. APPENDIX A TO SUBPART S OF PART 922—MALLOWS BAY-POTOMAC RIVER MARINE SANCTUARY BOUNDARY DE SCRIPTION AND COORDINATES OF THE LATERAL BOUNDARY CLOSURES AND EXCLUDED AREAS Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983. TABLE 1—COORDINATES FOR SANCTUARY Point ID Latitude Longitude 1 ......................................... 38.39731 ¥77.31008 2 ......................................... 38.39823 ¥77.31030 3 ......................................... 38.39856 ¥77.31059 4 ......................................... 38.39886 ¥77.31074 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00231 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 222 15 CFR Ch. IX (1–1–21 Edition) § 922.206 TABLE 1—COORDINATES FOR SANCTUARY— Continued Point ID Latitude Longitude 5 ......................................... 38.39917 ¥77.31067 6 ......................................... 38.40014 ¥77.31074 7 ......................................... 38.40090 ¥77.31145 8 ......................................... 38.40138 ¥77.31215 9 ......................................... 38.40197 ¥77.31236 10 ....................................... 38.40314 ¥77.31278 11 ....................................... 38.40658 ¥77.31377 12 ....................................... 38.40984 ¥77.31465 13 ....................................... 38.41388 ¥77.31692 14 ....................................... 38.41831 ¥77.31913 15 ....................................... 38.41974 ¥77.31930 16 ....................................... 38.42352 ¥77.31971 17 ....................................... 38.42548 ¥77.32030 18 ....................................... 38.42737 ¥77.32081 19 ....................................... 38.43091 ¥77.32240 20 ....................................... 38.43163 ¥77.32242 21 ....................................... 38.43350 ¥77.32263 22 ....................................... 38.43384 ¥77.32269 23 ....................................... 38.43430 ¥77.32265 24 ....................................... 38.43461 ¥77.32229 25 ....................................... 38.43498 ¥77.32146 26 ....................................... 38.43526 ¥77.32057 27 ....................................... 38.43522 ¥77.32040 28 ....................................... 38.47321 ¥77.31845 29 ....................................... 38.47434 ¥77.31874 30 ....................................... 38.47560 ¥77.31752 31 ....................................... 38.47655 ¥77.31686 32 ....................................... 38.47748 ¥77.31666 33 ....................................... 38.47821 ¥77.31604 34 ....................................... 38.47871 ¥77.31554 35 ....................................... 38.47885 ¥77.31563 36 ....................................... 38.47905 ¥77.31559 37 ....................................... 38.47921 ¥77.31578 38 ....................................... 38.47943 ¥77.31592 39 ....................................... 38.47985 ¥77.31592 40 ....................................... 38.48493 ¥77.31335 41 * ..................................... 38.48554 ¥77.27298 42 * ..................................... 38.39793 ¥77.25704 43 ....................................... 38.39731 ¥77.31008 NOTE 1 TO TABLE 1 OF THIS APPENDIX: The coordinates in the table above marked with an asterisk (*) are not a part of the sanc tuary boundary. These coordinates are land ward reference points used to draw a line segment that intersects with the shoreline. APPENDIX B TO SUBPART S OF PART 922—MALLOWS BAY-POTOMAC RIVER MARINE SANCTUARY TERMS OF DES IGNATION TERMS OF DESIGNATION FOR THE MALLOWS BAY–POTOMAC RIVER NATIONAL MARINE SANCTUARY Under the authority of the National Ma rine Sanctuaries Act, as amended (the ‘‘Act’’ or ‘‘NMSA’’), 16 U.S.C. 1431 et seq., certain waters and submerged lands located off the Nanjemoy Peninsula of Charles County, Maryland, and along the tidal Potomac River and its surrounding waters are hereby designated as a National Marine Sanctuary for the purposes of providing long-term pro tection and management of the historical re sources and recreational, research, edu cational, and aesthetic qualities of the area. Article I: Effect of Designation The NMSA authorizes the issuance of such regulations as are necessary and reasonable to implement the designation, including managing and protecting the historical re sources and recreational, research, and edu cational qualities of the Mallows Bay-Poto mac River National Marine Sanctuary (the ‘‘Sanctuary’’). Section 1 of Article IV of this appendix lists those activities that may have to be regulated on the effective date of des ignation, or at some later date, in order to protect Sanctuary resources and qualities. Listing an activity does not necessarily mean that it will be regulated; however, if an activity is not listed it may not be regu lated, except on an emergency basis, unless Section 1 of Article IV is amended by the same procedures by which the original Sanc tuary designation was made. Article II: Description of the Area The Mallows Bay-Potomac River National Marine Sanctuary consists of an area of ap proximately 18 square miles of waters of the State of Maryland and the submerged lands thereunder, over, around, and under the un derwater cultural resources in the Potomac River between Stafford County, Virginia, and Charles County, Maryland. The western boundary of the sanctuary approximates the border between the Commonwealth of Vir ginia and the State of Maryland for roughly 6 miles along the Potomac River, beginning north of the mouth of Aquia Creek in Staf ford County, Virginia, near Brent Point and continuing north past Widewater, VA, and Clifton Point to a point north of Tank Creek. From this point the sanctuary boundary crosses the Potomac to the east until it intersects the Maryland shoreline just north of Sandy Point in Charles County, MD. From this point the eastern boundary of the sanc tuary, approximately 8 miles in total length, follows the Maryland shoreline south past Mallows Bay, Blue Banks, and Wades Bay to a point just south of Smith Point. From this location the sanctuary boundary crosses the Potomac River to the west back to its point of origin north of the mouth of Aquia Creek near Brent Point on the Virginia side of the river. Article III: Special Characteristics of the Area Mallows Bay-Potomac River National Ma rine Sanctuary and its surrounding waters contain a diverse collection more than 100 known historic shipwreck vessels dating back to the Civil War and potentially dating back to the Revolutionary War, as well as archaeological artifacts dating back 12,000 years indicating the presence of some of the region’s earliest American Indian cultures, including the Piscataway Indian Nation and the Piscataway Conoy Confederacy and Sub VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00232 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 223 Nat’l Oceanic and Atmospheric Adm., Commerce § 922.206 Tribes of Maryland. The area is most re nowned for the remains of over 100 wooden steamships, known as the ‘‘Ghost Fleet,’’ that were built for the U.S. Emergency Fleet between 1917–1919 as part of U.S. engagement in WWI. Their construction at more than 40 shipyards in 17 states reflects the massive national wartime effort that drove the ex pansion and economic development of com munities and related maritime service indus tries including the present-day Merchant Marines. The area is contiguous to the Cap tain John Smith Chesapeake National His toric Trail, the Star Spangled Banner Na tional Historic Trail, the Potomac Heritage National Scenic Trail and the Lower Poto mac Water Trail which offer meaningful edu cational and recreational opportunities cen tered on the region’s culture, heritage and history. Additionally, the structure provided by the vessels and related infrastructure serve as important habitat to thriving popu lations of recreational fisheries, bald eagles, and other aquatic species. The area’s listing on the National Historical Register of Places in 2015 codifies the historical, archaeological and recreational significance of the Ghost Fleet and related maritime cultural heritage sites in and around Mallows Bay-Potomac River National Marine Sanctuary. Article IV: Scope of Regulations Section 1. Activities Subject to Regula tion. The following activities are subject to regulation, including prohibition, to the ex tent necessary and reasonable to ensure the protection and management of the historical resources and recreational, research and edu cational qualities of the area: a. Moving, removing, recovering, altering, destroying, possessing, or otherwise injuring, or attempting to move, remove, recover, alter, destroy, possess or otherwise injure a Sanctuary resource, except as an incidental result of traditional fishing (as defined in the regulations). b. Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or permanent, or with any monu ments, stakes, posts, buoys, or other bound ary markers related to the Sanctuary. c. Interfering with, obstructing, delaying or preventing an investigation, search, sei zure or disposition of seized property in con nection with enforcement of the Act or any regulation issued under the Act. Section 2. NOAA will not exercise its au thority under the NMSA to regulate fishing in the Sanctuary. Section 3. Emergencies. Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource; or minimize the imminent risk of such destruc tion, loss, or injury, any activity, including those not listed in Section 1, is subject to immediate temporary regulation. An emer gency regulation shall not take effect with out the approval of the Governor of Mary land or her/his designee or designated agen cy. Article V: Relation to Other Regulatory Program 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 by other Federal, State, Tribal and local authorities of competent jurisdiction, and designation of the Sanctuary shall have no effect on any regulation, permit, or li cense issued thereunder. Section 2. Other Regulations, Licenses, and Permits. If any valid regulation issued by any federal, state, Tribal, or local authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regula tion, the regulation deemed by the Director of the Office of National Marine Sanctuaries, National Oceanic and Atmospheric Adminis tration, or designee, in consultation with the State of Maryland, to be more protective of Sanctuary resources and qualities shall gov ern. Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no valid lease, permit, li cense, approval, or other authorization issued by any federal, state, Tribal, or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce, or 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. How ever, the Secretary of Commerce or designee, in consultation with the State of Maryland, may regulate the exercise of such authoriza tion or right consistent with the purposes for which the Sanctuary is designated. Section 3. Department of Defense Activi ties. DoD activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on sanc tuary resources and qualities. Any existing military activity conducted by DoD prior to the effective date of the regulations in this subpart and as specifically identified in the Final Environmental Impact Statement and Final Management Plan for the Sanctuary (FEIS/FMP) is allowed to continue in the Sanctuary. The prohibitions in § 922.203(a)(1) through (3) do not apply to those existing military activities listed in the FEIS/FMP or the military activities conducted by DoD listed in § 922.203(c)(2). New military activi ties that do not violate the prohibitions in paragraphs (a)(1) through (3) of this section are allowed. Any new military activity that is likely to violate sanctuary prohibitions VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00233 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 224 15 CFR Ch. IX (1–1–21 Edition) Pt. 923 may become exempt through consultation between the Director and DoD pursuant to section 304(d) of the NMSA. The term ‘‘new military activity’’ includes but is not lim ited to, any existing military activity that is modified in any way (including change in lo cation, frequency, duration, or technology used) that is likely to destroy, cause the loss of, or injure a sanctuary resource, or is like ly to destroy, cause the loss of, or injure a sanctuary resource in a manner or to an ex tent that was not considered in a previous consultation under section 304(d) of the NMSA. In the event of destruction of, loss of, or injury to a sanctuary resource or quality resulting from an incident, including but not limited to spills and groundings caused by DoD, the cognizant component shall prompt ly coordinate with the Director for the pur pose of taking appropriate actions to pre vent, respond to or mitigate the harm and, if possible, restore or replace the sanctuary re source or quality. Article VI. Alteration of This Designation The terms of designation may be modified only by the same procedures by which the original designation is made, including pub lic meetings, consultation according to the NMSA. PART 923—COASTAL ZONE MAN AGEMENT PROGRAM REGULA TIONS Subpart A—General Sec. 923.1 Purpose and scope. 923.2 Definitions. 923.3 General requirements. Subpart B—Uses Subject to Management 923.10 General. 923.11 Uses subject to management. 923.12 Uses of regional benefit. 923.13 Energy facility planning process. Subpart C—Special Management Areas 923.20 General. 923.21 Areas of particular concern. 923.22 Areas for preservation or restoration. 923.23 Other areas of particular concern. 923.24 Shorefront access and protection planning. 923.25 Shoreline erosion/mitigation plan ning. Subpart D—Boundaries 923.30 General. 923.31 Inland boundary. 923.32 Lakeward or seaward boundary. 923.33 Excluded lands. 923.34 Interstate boundary. Subpart E—Authorities and Organization 923.40 General. 923.41 Identification of authorities. 923.42 State establishment of criteria and standards for local implementation— Technique A. 923.43 Direct State land and water use plan ning and regulation—Technique B. 923.44 State review on a case-by-case basis of actions affecting land and water uses subject to the management program— Technique C. 923.45 Air and water pollution control re quirements. 923.46 Organizational structure. 923.47 Designated State agency. 923.48 Documentation. Subpart F—Coordination, Public Involvement and National Interest 923.50 General. 923.51 Federal-State consultation. 923.52 Consideration of the national interest in facilities. 923.53 Federal consistency procedures. 923.54 Mediation. 923.55 Full participation by State and local governments, interested parties, and the general public. 923.56 Plan coordination. 923.57 Continuing consultation. 923.58 Public hearings. Subpart G—Review/Approval Procedures 923.60 Review/approval procedures. Subpart H—Changes to Approved Management Programs 923.80 General. 923.81 Program change procedures, dead lines, public notice and comment, and application of approved changes. 923.82 Program change submissions. 923.83 Program change materials. 923.84 Program change decision criteria. 923.85 Procedural requirements of other Federal law. Subpart I—Applications for Program Development of Implementation Grants 923.90 General. 923.91 State responsibility. 923.92 Allocation. 923.93 Eligible implementation costs. 923.94 Application for program development or implementation grants. 923.95 Approval of applications. 923.96 Grant amendments. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00234 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 225 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.1 Subpart J—Allocation of Section 306 Program Administration Grants 923.110 Allocation formula. Subpart K—Coastal Zone Enhancement Grants Program 923.121 General. 923.122 Objectives. 923.123 Definitions. 923.124 Allocation of section 309 funds. 923.125 Criteria for section 309 project selec tion. 923.126 Pre-application procedures. 923.127 Formal application for financial as sistance and application review and ap proval procedures. 923.128 Revisions to assessments and strate gies. Subpart L—Review of Performance 923.131 General. 923.132 Definitions. 923.133 Procedure for conducting continuing reviews of approved State CZM pro grams. 923.134 Public participation. 923.135 Enforcement. AUTHORITY: 16 U.S.C. 1451 et seq.; 31 U.S.C. 6506; 42 U.S.C. 3334; Sections 923.92 and 923.94 are also issued under E.O. 12372, July 14, 1982, 3 CFR 1982 Comp. p. 197, as amended by E.O. 12416, April 8, 1983, 3 CFR 1983 Comp. p. 186. SOURCE: 44 FR 18595, Mar. 28, 1979, unless otherwise noted. Subpart A—General SOURCE: 61 FR 33805, June 28, 1996, unless otherwise noted. § 923.1 Purpose and scope. (a) The regulations in this part set forth the requirements for State coast al management program approval by the Assistant Administrator for Ocean Services and Coastal Zone Manage ment pursuant to the Coastal Zone Management Act of 1972, as amended (hereafter, the Act); the grant applica tion procedures for program funds; con ditions under which grants may be ter minated; and requirements for review of approved management programs. (b) Sections 306 and 307 of the Act set forth requirements which must be ful filled as a condition of program ap proval. The specifics of these require ments are set forth below under the following headings: General Require ments; Uses Subject to Management; Special Management Areas; Bound aries; Authorities and Organization; and Coordination, Public Involvement and National Interest. All relevant sec tions of the Act are dealt with under one of these groupings, but not nec essarily in the order in which they ap pear in the Act. (c) In summary, the requirements for program approval are that a State de velop a management program that: (1) Identifies and evaluates those coastal resources recognized in the Act as requiring management or protection by the State; (2) Reexamines existing policies or develops new policies to manage these resources. These policies must be spe cific, comprehensive, and enforceable; (3) Determines specific use and spe cial geographic areas that are to be subject to the management program, based on the nature of identified coast al concerns; (4) Identifies the inland and seaward areas subject to the management pro gram; (5) Provides for the consideration of the national interest in the planning for and siting of facilities that meet more than local requirements; (6) Includes sufficient legal authori ties and organizational arrangements to implement the program and to en sure conformance to it. In arriving at these elements of the management pro gram, States are obliged to follow an open process which involves providing information to and considering the in terests of the general public, special in terest groups, local governments, and regional, State, interstate, and Federal agencies; (7) Provides for public participation in permitting processes, consistency determinations, and other similar deci sions; (8) Provides a mechanism to ensure that all state agencies will adhere to the program; and (9) Contains enforceable policies and mechanisms to implement the applica ble requirements of the Coastal Nonpoint Pollution Control Program of the state required by section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00235 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 226 15 CFR Ch. IX (1–1–21 Edition) § 923.2 § 923.2 Definitions. (a) The term Act means the Coastal Zone Management Act of 1972, as amended. (b) The term Secretary means the Sec retary of Commerce and his/her des ignee. (c) The term Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Man agement, National Oceanic and Atmos pheric Administration (NOAA), or des ignee. (d)(1) The term relevant Federal agen cies means those Federal agencies with programs, activities, projects, regu latory, financing, or other assistance responsibilities in the following fields which could impact or affect a State’s coastal zone: (i) Energy production or trans mission, (ii) Recreation of a more than local nature, (iii) Transportation, (iv) Production of food and fiber, (v) Preservation of life and property, (vi) National defense, (vii) Historic, cultural, aesthetic, and conservation values, (viii) Mineral resources and extrac tion, and (ix) Pollution abatement and control. (2) The following are defined as rel evant Federal agencies: Department of Agriculture; Department of Commerce; Department of Defense; Department of Education; Department of Energy; De partment of Health and Human Serv ices; Department of Housing and Urban Development; Department of the Inte rior; Department of Transportation; Environmental Protection Agency; Federal Energy Regulatory Commis sion; General Services Administration, Nuclear Regulatory Commission; Fed eral Emergency Management Agency. (e) The term Federal agencies prin cipally affected means the same as ‘‘rel evant Federal agencies.’’ The Assistant Administrator may include other agen cies for purposes of reviewing the man agement program and environmental impact statement. (f) The term Coastal State means a State of the United States in, or bor dering on, the Atlantic, Pacific, or Arc tic Ocean, the Gulf of Mexico, Long Is land Sound, or one or more of the Great Lakes. Pursuant to section 304(3) of the Act, the term also includes Puer to Rico, the Virgin Islands, Guam, and American Samoa. Pursuant to section 703 of the Covenant to Establish a Com monwealth of the Northern Mariana Is lands in Political Union with the United States of America, the term also includes the Northern Marianas. (g) The term management program in cludes, but is not limited to, a com prehensive statement in words, maps, illustrations, or other media of com munication, including an articulation of enforceable policies and citation of authorities providing this enforce ability, prepared and adopted by the State in accordance with the provi sions of this Act and this part, setting forth objectives, policies, and stand ards to guide public and private uses of lands and waters in the coastal zone. (h) The following terms, as used in these regulations, have the same defi nition as provided in section 304 of the Act: (1) Coastal zone; (2) Coastal waters; (3) Enforceable policy; (4) Estuary; (5) Land use; and (6) Water use. (i) The term grant means a financial assistance instrument and refers to both grants and cooperative agree ments. § 923.3 General requirements. (a) The management program must be developed and adopted in accordance with the requirements of the Act and this part, after notice, and the oppor tunity for full participation by rel evant Federal and State agencies, local governments, regional organizations, port authorities, and other interested parties and persons, and be adequate to carry out the purposes of the Act and be consistent with the national policy set forth in section 303 of the Act. (b) The management program must provide for the management of those land and water uses having a direct and significant impact on coastal waters and those geographic areas which are likely to be affected by or vulnerable to sea level rise. The program must in clude provisions to assure the appro priate protection of those significant VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00236 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 227 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.11 resources and areas, such as wetlands, beaches and dunes, and barrier islands, that make the State’s coastal zone a unique, vulnerable, or valuable area. (c) The management program must contain a broad class of policies for each of the following areas: resource protection, management of coastal de velopment, and simplification of gov ernmental processes. These three broad classes must include specific policies that provide the framework for the ex ercise of various management tech niques and authorities governing coast al resources, uses, and areas. The three classes must include policies that ad dress uses of or impacts on wetlands and floodplains within the State’s coastal zone, and that minimize the de struction, loss or degradation of wet lands and preserve and enhance their natural values in accordance with the purposes of Executive Order 11990, per taining to wetlands. These policies also must reduce risks of flood loss, mini mize the impact of floods on human safety, health and welfare, and pre serve the natural, beneficial values served by floodplains, in accordance with the purposes of Executive Order 11988, pertaining to floodplains. (d) The policies in the program must be appropriate to the nature and degree of management needed for uses, areas, and resources identified as subject to the program. (e) The policies, standards, objec tives, criteria, and procedures by which program decisions will be made must provide: (1) A clear understanding of the con tent of the program, especially in iden tifying who will be affected by the pro gram and how, and (2) A clear sense of direction and pre dictability for decisionmakers who must take actions pursuant to or con sistent with the management program. Subpart B—Uses Subject to Management SOURCE: 61 FR 33806, June 28, 1996, unless otherwise noted. § 923.10 General. This subpart sets forth the require ments for management program ap provability with respect to land and water uses which, because of their di rect and significant impacts on coastal waters or those geographic areas likely to be affected by or vulnerable to sea level rise, are subject to the terms of the management program. This sub part deals in full with the following subsections of the Act: 306(d)(1)(B), Uses Subject to the Management Pro gram, 306(d)(2)(H), Energy Facility Planning, and 306(d)(12)(B), Uses of Re gional Benefit. § 923.11 Uses subject to management. (a)(1) The management program for each coastal state must include a defi nition of what shall constitute permis sible land uses and water uses within the coastal zone which have a direct and significant impact on the coastal waters. (2) The management program must identify those land and water uses that will be subject to the terms of the man agement program. These uses shall be those with direct and significant im pacts on coastal waters or on geo graphic areas likely to be affected by or vulnerable to sea level rise. (3) The management program must explain how those uses identified in paragraph (a)(2) of this section will be managed. The management program must also contain those enforceable policies, legal authorities, performance standards or other techniques or proce dures that will govern whether and how uses will be allowed, conditioned, modified, encouraged or prohibited. (b) In identifying uses and their ap propriate management, a State should analyze the quality, location, distribu tion and demand for the natural and man-made resources of their coastal zone, and should consider potential in dividual and cumulative impacts of uses on coastal waters. (c) States should utilize the following types of analyses: (1) Capability and suitability of re sources to support existing or projected uses; (2) Environmental impacts on coastal resources; (3) Compatibility of various uses with adjacent uses or resources; (4) Evaluation of inland and other lo cation alternatives; and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00237 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 228 15 CFR Ch. IX (1–1–21 Edition) § 923.12 (5) Water dependency of various uses and other social and economic consid erations. (d) Examination of the following fac tors is suggested: (1) Air and water quality; (2) Historic, cultural and esthetic re sources where coastal development is likely to affect these resources; (3) Open space or recreational uses of the shoreline where increased access to the shorefront is a particularly impor tant concern; (4) Floral and faunal communities where loss of living marine resources or threats to endangered or threatened coastal species are particularly impor tant concerns. (5) Information on the impacts of global warming and resultant sea level rise on natural resources such as beaches, dunes, estuaries, and wet lands, on salinization of drinking water supplies, and on properties, infrastruc ture and public works. § 923.12 Uses of regional benefit. The management program must con tain a method of assuring that local land use and water use regulations within the coastal zone do not unrea sonably restrict or exclude land uses and water uses of regional benefit. To this end, the management program must: (a) Identify what constitutes uses of regional benefit; and (b) Identify and utilize any one or a combination of methods, consistent with the control techniques employed by the State, to assure local land and water use regulations do not unreason ably restrict or exclude uses of regional benefit. [61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996] § 923.13 Energy facility planning proc ess. The management program must con tain a planning process for energy fa cilities likely to be located in or which may significantly affect, the coastal zone, including a process for antici pating the management of the impacts resulting from such facilities. (See sub section 304(5) of the Act.) This process must contain the following elements: (a) Identification of energy facilities which are likely to locate in, or which may significantly affect, a State’s coastal zone; (b) Procedures for assessing the suit ability of sites for such facilities de signed to evaluate, to the extent prac ticable, the costs and benefits of pro posed and alternative sites in terms of State and national interests as well as local concerns; (c) Articulation and identification of enforceable State policies, authorities and techniques for managing energy fa cilities and their impacts; and (d) Identification of how interested and affected public and private parties will be involved in the planning proc ess. [61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996] Subpart C—Special Management Areas SOURCE: 61 FR 33806, June 28, 1996, unless otherwise noted. § 923.20 General. (a) This subpart sets forth the re quirements for management program approvability with respect to areas of particular concern because of their coastal-related values or characteris tics, or because they may face pres sures which require detailed attention beyond the general planning and regu latory system which is part of the management program. As a result, these areas require special manage ment attention within the terms of the State’s overall coastal program. This special management may include regu latory or permit requirements applica ble only to the area of particular con cern. It also may include increased intergovernmental coordination, tech nical, assistance, enhanced public ex penditures, or additional public serv ices and maintenance to a designated area. This subpart deals with the fol lowing subsections of the Act: 306(d)(2)(C)—Geographic Areas of Par ticular Concern; 306(d)(2)(E)—Guide lines on Priorities of Uses; 306(d)(2)(G)—Shorefront Access and protection Planning; 306(d)(2)(I)— Shoreline Erosion/Mitigation Planning; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00238 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 229 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.22 and 306(d)(9)—Areas for Preservation and Restoration. (b) The importance of designating areas of particular concern for manage ment purposes and the number and type of areas that should be designated is directly related to the degree of comprehensive controls applied throughout a State’s coastal zone. Where a State’s general coastal man agement policies and authorities ad dress state and national concerns com prehensively and are specific with re spect to particular resources and uses, relatively less emphasis need be placed on designation of areas of particular concern. Where these policies are lim ited and non-specific, greater emphasis should be placed on areas of particular concern to assure effective manage ment and an adequate degree of pro gram specificity. § 923.21 Areas of particular concern. (a) The management program must include an inventory and designation of areas of particular concern within the coastal zone, on a generic and/or site-specific basis, and broad guidelines on priorities of uses in particular areas, including specifically those uses of lowest priority. (b) In developing criteria for inventorying and designating areas of particular concern. States must con sider whether the following represent areas of concern requiring special man agement: (1) Areas of unique, scarce, fragile or vulnerable natural habitat; unique or fragile, physical, figuration (as, for ex ample, Niagara Falls); historical sig nificance, cultural value or scenic im portance (including resources on or de termined to be eligible for the National Register of Historic Places.); (2) Areas of high natural productivity or essential habitat for living re sources, including fish, wildlife, and endangered species and the various trophic levels in the food web critical to their well-being; (3) Areas of substantial recreational value and/or opportunity; (4) Areas where developments and fa cilities are dependent upon the utiliza tion of, or access to, coastal waters; (5) Areas of unique hydrologic, geo logic or topographic significance for in dustrial or commercial development or for dredge spoil disposal; (6) Areas or urban concentration where shoreline utilization and water uses are highly competitive; (7) Areas where, if development were permitted, it might be subject to sig nificant hazard due to storms, slides, floods, erosion, settlement, salt water intrusion, and sea level rise; (8) Areas needed to protect, maintain or replenish coastal lands or resources including coastal flood plains, aquifers and their recharge areas, estuaries, sand dunes, coral and other reefs, beaches, offshore sand deposits and mangrove stands. (c) Where states will involve local governments, other state agencies, fed eral agencies and/or the public in the process of designating areas of par ticular concern, States must provide guidelines to those who will be in volved in the designation process. These guidelines shall contain the pur poses, criteria, and procedures for nominating areas of particular con cern. (d) In identifying areas of concern by location (if site specific) or category of coastal resources (if generic), the pro gram must contain sufficient detail to enable affected landowners, govern mental entities and the public to deter mine with reasonable certainty wheth er a given area is designated. (e) In identifying areas of concern, the program must describe the nature of the concern and the basis on which designations were made. (f) The management program must describe how the management program addresses and resolves the concerns for which areas are designated; and (g) The management program must provide guidelines regarding priorities of uses in these areas, including guide lines on uses of lowest priority. § 923.22 Areas for preservation or res toration. The management program must in clude procedures whereby specific areas may be designated for the pur pose of preserving or restoring them for their conservation, recreational, ec ological, historical or esthetic values, and the criteria for such designations. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00239 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 230 15 CFR Ch. IX (1–1–21 Edition) § 923.23 § 923.23 Other areas of particular con cern. (a) The management program may, but is not required to, designate spe cific areas known to require additional or special management, but for which additional management techniques have not been developed or necessary authorities have not been established at the time of program approval. If a management program includes such designations, the basis for designation must be clearly stated, and a reason able time frame and procedures must be set forth for developing and imple menting appropriate management techniques. These procedures must pro vide for the development of those items required in § 923.21. The management program must identify an agency (or agencies) capable of formulating the necessary management policies and techniques. (b) The management program must meet the requirements of § 923.22 for containing procedures for designating areas for preservation or restoration. The management program may include procedures and criteria for designating areas of particular concern for other than preservation or restoration pur poses after program approval. § 923.24 Shorefront access and protec tion planning. (a) The management program must include a definition of the term ‘‘beach’’ and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental, recreational, histor ical, esthetic, ecological or cultural value. (b) The basic purpose in focusing spe cial planning attention on shorefront access and protection is to provide pub lic beaches and other public coastal areas of environmental, recreational, historic, esthetic, ecological or cul tural value with special management attention within the purview of the State’s management program. This special management attention may be achieved by designating public shorefront areas requiring additional access or protection as areas of par ticular concern pursuant to § 923.21 or areas for preservation or restoration pursuant to § 923.22. (c) The management program must contain a procedure for assessing pub lic beaches and other public areas, in cluding State owned lands, tidelands and bottom lands, which require access or protection, and a description of ap propriate types of access and protec tion. (d) The management program must contain a definition of the term ‘‘beach’’ that is the broadest definition allowable under state law or constitu tional provisions, and an identification of public areas meeting that definition. (e) The management program must contain an identification and descrip tion of enforceable policies, legal au thorities, funding program and other techniques that will be used to provide such shorefront access and protection that the State’s planning process indi cates is necessary. § 923.25 Shoreline erosion/mitigation planning. (a) The management program must include a planning process for assessing the effects of, and studying and evalu ating ways to control, or lessen the im pact of, shoreline erosion, including po tential impacts of sea level rise, and to restore areas adversely affected by such erosion. This planning process may be within the broader context of coastal hazard mitigation planning. (b) The basic purpose in developing this planning process is to give special attention to erosion issues. This spe cial management attention may be achieved by designating erosion areas as areas of particular concern pursuant to § 923.21 or as areas for preservation or restoration pursuant to § 923.22. (c) The management program must include an identification and descrip tion of enforceable policies, legal au thorities, funding techniques and other techniques that will be used to manage the effects of erosion, including poten tial impacts of sea level rise, as the state’s planning process indicates is necessary. [61 FR 33806, June 28, 1996; 61 FR 36965, July 15, 1996] Subpart D—Boundaries SOURCE: 61 FR 33808, June 28, 1996, unless otherwise noted. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00240 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 231 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.32 § 923.30 General. This subpart sets forth the require ments for management program ap provability with respect to boundaries of the coastal zone. There are four ele ments to a State’s boundary: the in land boundary, the seaward boundary, areas excluded from the boundary, and, in most cases, interstate boundaries. Specific requirements with respect to procedures for determining and identi fying these boundary elements are dis cussed in the sections of this subpart that follow. § 923.31 Inland boundary. (a) The inland boundary of a State’s coastal zone must include: (1) Those areas the management of which is necessary to control uses which have direct and significant im pacts on coastal waters, or are likely to be affected by or vulnerable to sea level rise, pursuant to section 923.11 of these regulations. (2) Those special management areas identified pursuant to § 923.21; (3) Waters under saline influence— waters containing a significant quan tity of seawater, as defined by and uni formly applied by the State; (4) Salt marshes and wetlands—Areas subject to regular inundation of tidal salt (or Great Lakes) waters which con tain marsh flora typical of the region; (5) Beaches—The area affected by wave action directly from the sea. Ex amples are sandy beaches and rocky areas usually to the vegetation line; (6) Transitional and intertidal areas Areas subject to coastal storm surge, and areas containing vegetation that is salt tolerant and survives because of conditions associated with proximity to coastal waters. Transitional and intertidal areas also include dunes and rocky shores to the point of upland vegetation; (7) Islands—Bodies of land sur rounded by water on all sides. Islands must be included in their entirety, ex cept when uses of interior portions of islands do not cause direct and signifi cant impacts. (8) The inland boundary must be pre sented in a manner that is clear and exact enough to permit determination of whether property or an activity is located within the management area. States must be able to advise inter ested parties whether they are subject to the terms of the management pro gram within, at a maximum, 30 days of receipt of an inquiry. An inland coastal zone boundary defined in terms of po litical jurisdiction (e.g., county, town ship or municipal lines) cultural fea tures (e.g., highways, railroads), plan ning areas (e.g., regional agency juris dictions, census enumeration districts), or a uniform setback line is acceptable so long as it includes the areas indentified. (b) The inland boundary of a State’s coastal zone may include: (1) Watersheds—A state may deter mine some uses within entire water sheds which have direct and significant impact on coastal waters or are likely to be affected by or vulnerable to sea level rise. In such cases it may be ap propriate to define the coastal zone as including these watersheds. (2) Areas of tidal influence that ex tend further inland than waters under saline influence; particularly in estu aries, deltas and rivers where uses in land could have direct and significant impacts on coastal waters or areas that are likely to be affected by or vulner able to sea level rise. (3) Indian lands not held in trust by the Federal Government. (c) In many urban areas or where the shoreline has been modified exten sively, natural system relationships be tween land and water may be ex tremely difficult, if not, impossible, to define in terms of direct and signifi cant impacts. Two activities that States should consider as causing di rect and significant impacts on coastal waters in urban areas are sewage dis charges and urban runoff. In addition, States should consider dependency of uses on water access and visual rela tionships as factors appropriate for the determination of the inland boundary in highly urbanized areas. § 923.32 Lakeward or seaward bound ary. (a)(1) For states adjoining the Great Lakes, the lakeward boundary of the State’s coastal zone is the inter national boundary with Canada or the boundaries with adjacent states. For VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00241 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 232 15 CFR Ch. IX (1–1–21 Edition) § 923.33 states adjacent to the Atlantic or Pa cific Ocean, or the Gulf of Mexico, the seaward boundary is the outer limit of state title and ownership under the Submerged Lands Act (48 U.S.C. 1301 et seq.), the Act of March 2, 1917 (48 U.S.C. 749), the Covenant to Establish a Com monwealth of the Northern Mariana Is lands in Political Union with the United States of America, as approved by the Act of March 24, 1976 (48 U.S.C. 1681 note) or section 1 of the Act of No vember 10, 1963, (48 U.S.C. 1705, as ap plicable). (2) The requirement for defining the seaward boundary of a State’s coastal zone can be met by a simple restate ment of the limits defined in this sec tion, unless there are water areas which require a more exact delineation because of site specific policies associ ated with these areas. Where States have site specific policies for particular water areas, these shall be mapped, de scribed or referenced so that their loca tion can be determined reasonably eas ily by any party affected by the poli cies. (b) The seaward limits, as defined in this section, are for purposes of this program only and represent the area within which the State’s management program may be authorized and fi nanced. These limits are irrespective of any other claims States may have by virtue of other laws. § 923.33 Excluded lands. (a) The boundary of a State’s coastal zone must exclude lands owned, leased, held in trust or whose use is otherwise by law subject solely to the discretion of the Federal Government, its officers or agents. To meet this requirement, the program must describe, list or map lands or types of lands owned, leased, held in trust or otherwise used solely by Federal agencies. (b) The exclusion of Federal lands does not remove Federal agencies from the obligation of complying with the consistency provisions of section 307 of the Act when Federal actions on these excluded lands have spillover impacts that affect any land or water use or natural resource of the coastal zone within the purview of a state’s manage ment program. In excluding Federal lands from a State’s coastal zone for the purposes of this Act, a State does not impair any rights or authorities that it may have over Federal lands that exist separate from this program. § 923.34 Interstate boundary. States must document that there has been consultation and coordination with adjoining coastal States regarding delineation of any adjacent inland and lateral seaward boundary. Subpart E—Authorities and Organization SOURCE: 61 FR 33809, June 28, 1996, unless otherwise noted. § 923.40 General. (a) This subpart sets forth the re quirements for management program approvability with respect to authori ties and organization. The authorities and organizational structure on which a State will rely to administer its man agement program are the crucial underpinnings for enforcing the poli cies which guide the management of the uses and areas identified in its management program. There is a direct relationship between the adequacy of authorities and the adequacy of the overall program. The authorities need to be broad enough in both geographic scope and subject matter to ensure im plementation of the State’s enforceable policies. These enforceable policies must be sufficiently comprehensive and specific to regulate land and water uses, control development, and resolve conflicts among competing uses in order to assure wise use of the coastal zone. (Issues relating to the adequate scope of the program are dealt with in § 923.3.) (b) The entity or entities which will exercise the program’s authorities is a matter of State determination. They may be the state agency designated pursuant to section 306(d)(6) of the Act, other state agencies, regional or inter state bodies, and local governments. The major approval criterion is a de termination that such entity or enti ties are required to exercise their au thorities in conformance with the poli cies of the management program. Ac cordingly, the essential requirement is that the State demonstrate that there VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 233 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.42 is a means of ensuring such compli ance. This demonstration will be in the context of one or a combination of the three control techniques specified in section 306(d)(11) of the Act. The re quirements related to section 306(d)(12) of the Act are described in §§ 923.42 through 923.44 of this subchapter. (c) In determining the adequacy of the authorities and organization of a state’s programs, the Assistant Admin istrator will review and evaluate au thorities and organizational arrange ments in light of the requirements of this subpart and the finding of section 302(h) of the Act. (d) The authorities requirements of the Act dealt with in this subpart are those contained in subsections 306(d)(2)(D)—Means of Control; 306(d)(10)-Authorities; 306(d)(10)(A) Control Development and Resolve Con flicts; 306(d)(10)(B)-Powers of Acquisi tion; 306(d)(11)—Techniques of Control; and 307(f)—Air and Water Quality Con trol Requirements. The organization requirements of the Act dealt with in this subpart are those contained in sec tions 306(d)(2)(F)—Organizational Structure; 306(d)(6)—Designated State Agency; and 306(d)(7)—Organization. § 923.41 Identification of authorities. (a)(1) The management program must identify the means by which the state proposes to exert control over the per missible land uses and water uses with in the coastal zone which have a direct and significant impact on the coastal waters, including a listing of relevant state constitutional provisions, laws, regulations, and judicial decisions. These are the means by which the state will enforce its coastal management policies. (See section 304(6a) of the Act.) (2) The state chosen agency or agen cies (including local governments, area-wide agencies, regional agencies, or interstate agencies) must have the authority for the management of the coastal zone. Such authority includes the following powers: (i) To administer land use and water use regulations to control development to ensure compliance with the manage ment program, and to resolve conflicts among competing uses; and (ii) To acquire fee simple and less than fee simple interests in land, waters, and other property through condemnation or other means when necessary to achieve conformance with the management program. (b) In order to meet these require ments, the program must identify rel evant state constitutional provisions, statutes, regulations, case law and such other legal instruments (including executive orders and interagency agreements) that will be used to carry out the state’s management program, including the authorities pursuant to sections 306(d)(10) and 306(d)(11) of the Act which require a state to have the ability to: (1) Administer land and water use regulations in conformance with the policies of the management program; (2) Control such development as is necessary to ensure compliance with the management program; (3) Resolve conflicts among com peting uses; and (4) Acquire appropriate interest in lands, waters or other property as nec essary to achieve management objec tives. Where acquisition will be a nec essary technique for accomplishing particular program policies and objec tives, the management program must indicate for what purpose acquisition will be used (i.e., what policies or objec tives will be accomplished); the type of acquisition (e.g., fee simple, purchase of easements, condemnation); and what agency (or agencies) of government have the authority for the specified type of acquisition. § 923.42 State establishment of criteria and standards for local implementa tion—Technique A. (a) The management program must provide for any one or a combination of general techniques specified in sub section 306(d)(11) of the Act for control of land uses and water uses within the coastal zone. The first such control technique, at subsection 306(d)(11)(A) of the Act, is state establishment of cri teria and standards for local implemen tation, subject to administrative re view and enforcement (control tech nique A). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00243 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 234 15 CFR Ch. IX (1–1–21 Edition) § 923.42 (b) There are 5 principal require ments that control technique A must embody in order to be approved: (1) The State must have developed and have in effect at the time of pro gram approval enforceable policies that meet the requirements of § 923.3. These policies must serve as the stand ards and criteria for local program de velopment or the State must have sep arate standards and criteria, related to these enforceable policies, that will guide local program development. (2) During the period while local pro grams are being developed, a State must have sufficient authority to as sure that land and water use decisions subject to the management program will comply with the program’s en forceable policies. The adequacy of these authorities will be judged on the same basis as specified for direct State controls or case-by-case reviews. (3) A State must be able to ensure that coastal programs will be devel oped pursuant to the State’s standards and criteria, or failing this, that the management program can be imple mented directly by the State. This re quirement can be met if a State can ex ercise any one of the following tech niques: (i) Direct State enforcement of its standards and criteria in which case a State would need to meet the require ments of this section which address the direct State control technique; (ii) Preparation of a local program by a State agency which the local govern ment then would implement. To use this technique the State must have statutory authority to prepare and adopt a program for a local govern ment, and a mechanism by which the State can cause the local government to enforce the State-created program. Where the mechanism to assure local enforcement will be judicial relief, the program must include the authority under which judicial relief can be sought; (iii) State preparation and enforce ment of a program on behalf of a local government. Here the State must have the authority to: (A) Prepare and adopt a plan, regula tions, and ordinances for the local gov ernment and (B) Enforce such plans, regulations and ordinances; (iv) State review of local government actions on a case-by-case basis or on appeal, and prevention of actions in consistent with the standards and cri teria. Under this technique, when a local government fails to adopt an ap provable program, the State must have the ability to review activities in the coastal zone subject to the manage ment program and the power to pro hibit, modify or condition those activi ties based on the policies, standards and criteria of the management pro gram; or (v) If a locality fails to adopt a man agement program, the State may uti lize a procedure whereby the responsi bility for preparing a program shifts to an intermediate level government, such as a county. If this intermediate level of government fails to produce a program, then the State must have the ability to take one of the actions de scribed above. This alternative cannot be used where the intermediate level of government lacks the legal authority to adopt and implement regulations necessary to implement State policies, standards and criteria. (4) A State must have a procedure whereby it reviews and certifies the local program’s compliance with State standards and criteria. This procedure must include provisions for: (i) Opportunity for the public and governmental entities (including Fed eral agencies) to participate in the de velopment of local programs; and (ii) Opportunity for the public and governmental entities (including Fed eral agencies) to make their views known (through public hearings or other means) to the State agency prior to approval of local programs; and (iii) Review by the State of the ade quacy of local programs consideration of facilities identified in a State’s man agement program in which there is a national interest. (5) A State must be able to assure im plementation and enforcement of a local program once approved. To ac complish this a State must: (i) Establish a monitoring system which defines what constitutes and de tects patterns of non-compliance. In the case of uses of regional benefit and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00244 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 235 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.43 facilities in which there is a national interest, the monitoring system must be capable of detecting single instances of local actions affecting such uses or facilities in a manner contrary to the management program. (ii) Be capable of assuring compli ance when a pattern of deviation is de tected or when a facility involving identified national interests or a use of regional benefit is affected in a manner contrary to the program’s policies. When State action is required because of failure by a local government to en force its program, the State must be able to do one or a combination of the following: (A) Directly enforce the entire local program; (B) Directly enforce that portion of the local program that is being en forced improperly. State intervention would be necessary only in those local government activities that are vio lating the policies, standards or cri teria. (C) Seek judicial relief against local government for failure to properly en force; (D) Review local government actions on a case-by-case basis or on appeal and have the power to prevent those actions inconsistent with the policies and standards. (E) Provide a procedure whereby the responsibility for enforcing a program shifts to an intermediate level of gov ernment, assuming statutory authority exists to enable the immediate of gov ernment to assume this responsibility. § 923.43 Direct State land and water use planning and regulation—Tech nique B. (a) The management program must provide for any one or a combination of general techniques specified in sub section 306(d)(11) of the Act for control of land and water uses within the coastal zone. The second such control technique, at subsection 306(d)(11)(B) of the Act, is direct state land and water use planning and regulation (control technique B). (b) To have control technique B ap proved, the State must have the req uisite direct authority to plan and reg ulate land and water uses subject to the management program. This author ity can take the form of: (1) Comprehensive legislation—A sin gle piece of comprehensive legislation specific to coastal management and the requirements of this Act. (2) Networking—The utilization of authorities which are compatible with and applied on the basis of coastal management policies developed pursu ant to § 923.3. (c) In order to apply the networking concept, the State must: (1) Demonstrate that, taken to gether, existing authorities can and will be used to implement the full range of policies and management techniques identified as necessary for coastal management purposes; and (2) Bind each party which exercises statutory authority that is part of the management program to conformance with relevant enforceable policies and management techniques. Parties may be bound to conformance through an executive order, administrative direc tive or a memorandum of under standing provided that: (i) The management program au thorities provide grounds for taking ac tion to ensure compliance of networked agencies with the program. It will be sufficient if any of the following can act to ensure compliance: The State agency designated pursuant to sub section 306(d)(6) of the Act, the State’s Attorney General, another State agen cy, a local government, or a citizen. (ii) The executive order, administra tive directive or memorandum of un derstanding establishes conformance requirements of other State agency ac tivities or authorities to management program policies. A gubernatorial exec utive order will be acceptable if networked State agency heads are di rectly responsible to the Governor. (3) Where networked State agencies can enforce the management program policies at the time of section 306 ap proval without first having to revise their operating rules and regulations, then any proposed revisions to such rules and regulations which would en hance or facilitate implementation need not be accomplished prior to pro gram approval. Where State agencies cannot enforce coastal policies without VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00245 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 236 15 CFR Ch. IX (1–1–21 Edition) § 923.44 first revising their rules and regula tions, then these revisions must be made prior to approval of the State’s program by the Assistant Adminis trator. § 923.44 State review on a case-by-case basis of actions affecting land and water uses subject to the manage ment program—Technique C. (a) The management program must provide for any one or a combination of general techniques specified in sub section 306(d)(11) of the Act for control of land and water uses within the coastal zone. The third such control technique, at subsection 306(d)(11)(C) of the Act, is state administrative review for consistency with the management program of all development plans, projects, or land and water use regula tions, including exceptions and variances thereto, proposed by any state or local authority or private de veloper, with power to approve or dis approve after public notice and an op portunity for hearings (control tech nique C). (b) Under case-by-case review, States have the power to review individual de velopment plans, projects or land and water use regulations (including variances and exceptions thereto) pro posed by any State or local authority or private developer which have been identified in the management program as being subject to review for consist ency with the management program. This control technique requires the greatest degree of policy specificity be cause compliance with the program will not require any prior actions on the part of anyone affected by the pro gram. Specificity also is needed to avoid challenges that decisions (made pursuant to the management program) are unfounded, arbitrary or capricious. (c) To have control technique C ap proved, a State must: (1) Identify the plans, projects or reg ulations subject to review, based on their significance in terms of impacts on coastal resources, potential for in compatibility with the State’s coastal management program, and having greater than local significance; (2) Identify the State agency that will conduct this review; (3) Include the criteria by which iden tified plans, projects and regulations will be approved or disapproved; (4) Have the power to approve or dis approve identified plans, projects or regulations that are inconsistent with the management program, or the power to seek court review thereof; and (5) Provide public notice of reviews and the opportunity for public hearing prior to rendering a decision on each case-by-case review. § 923.45 Air and water pollution con trol requirements. The program must incorporate, by reference or otherwise, all require ments established by the Federal Water Pollution Control Act, as amended (Clean Water Act or CWA), or the Clean Air Act, as amended (CAA), or established by the Federal Govern ment or by any state or local govern ment pursuant to such Acts. Such re quirements must be the water pollu tion control and air pollution control requirements applicable to such pro gram. Incorporation of the air and water quality requirements pursuant to the CWA and CAA should involve their consideration during program de velopment, especially with respect to use determinations and designation of areas for special management. In addi tion, this incorporation will prove to be more meaningful if close coordina tion and working relationships between the State agency and the air and water quality agencies are developed and maintained throughout the program development process and after program approval. § 923.46 Organizational structure. The State must be organized to im plement the management program. The management program must describe the organizational structure that will be used to implement and administer the management program including a discussion of those state and other agencies, including local governments, that will have responsibility for admin istering, enforcing and/or monitoring those authorities or techniques re quired pursuant to the following sub sections of the Act: 306(d)(3)(B); 306(d)(10); 306(d)(10) (A) and (B); 306(d) VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00246 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 237 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.48 (11) and (12); and 307(f). The manage ment program must also describe the relationship of these administering agencies to the state agency designated pursuant to subsection 306(d)(6) of the Act. § 923.47 Designated State agency. (a) For program approval, the Gov ernor of the state must designate a sin gle state agency to receive and admin ister the grants for implementing the management program. (1) This entity must have the fiscal and legal capability to accept and ad minister grant funds, to make con tracts or other arrangements (such as passthrough grants) with participating agencies for the purpose of carrying out specific management tasks and to account for the expenditure of the im plementation funds of any recipient of such monies, and (2) This entity must have the admin istrative capability to monitor and evaluate the management of the State’s coastal resources by the var ious agencies and/or local governments with specified responsibilities under the management program (irrespective of whether such entities receive section 306 funds); to make periodic reports to the Office of Ocean and Coastal Re source Management (OCRM), the Gov ernor, or the State legislature, as ap propriate, regarding the performance of all agencies involved in the program. The entity also must be capable of pre senting evidence of adherence to the management program or justification for deviation as part of the review by OCRM of State performance required by section 312 of the Act. (b)(1) The 306 agency designation is designed to establish a single point of accountability for prudent use of ad ministrative funds in the furtherance of the management and for monitoring of management activities. Designation does not imply that this single agency need be a ‘‘super agency’’ or the prin cipal implementation vehicle. It is, however, the focal point for proper ad ministration and evaluation of the State’s program and the entity to which OCRM will look when moni toring and reevaluating a State’s pro gram during program implementation. (2) The requirement for the single designated agency should not be viewed as confining or otherwise limiting the role and responsibilities which may be assigned to this agency. It is up to the State to decide in what manner and to what extent the designated State agen cy will be involved in actual program implementation or enforcement. In de termining the extent to which this agency should be involved in program implementation or enforcement, spe cific factors should be considered, such as the manner in which local and re gional authorities are involved in pro gram implementation, the administra tive structure of the State, the au thorities to be relied upon and the agencies administering such authori ties. Because the designated State agency may be viewed as the best vehi cle for increasing the unity and effi ciency of a management program, the State may want to consider the fol lowing in selecting which agency to designate: (i) Whether the designated State en tity has a legislative mandate to co ordinate other State or local programs, plans and/or policies within the coastal zone; (ii) To what extent linkages already exist between the entity, other agen cies, and local governments; (iii) To what extent management or regulatory authorities affecting the coastal zone presently are adminis tered by the agency; and (iv) Whether the agency is equipped to handle monitoring, evaluation and enforcement responsibilities. § 923.48 Documentation. A transmittal letter signed by the Governor is required for the submission of a management program for federal approval. The letter must state that the Governor: (a) Has reviewed and approved as State policy, the management pro gram, and any changes thereto, sub mitted for the approval of the Assist ant Administrator. (b) Has designated a single State agency to receive and administer im plementation grants; (c) Attests to the fact that the State has the authorities necessary to imple ment the management program; and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00247 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 238 15 CFR Ch. IX (1–1–21 Edition) § 923.50 (d) Attests to the fact that the State is organized to implement the manage ment program. Subpart F—Coordination, Public Involvement and National Interest SOURCE: 61 FR 33812, June 28, 1996, unless otherwise noted. § 923.50 General. (a) Coordination with governmental agencies having interests and respon sibilities affecting the coastal zone, and involvement of interest groups as well as the general public is essential to the development and administration of State coastal management pro grams. The coordination requirements of this subpart are intended to achieve a proper balancing of diverse interests in the coastal zone. The policies of sec tion 303 of the Act require that there be a balancing of variety, sometimes conflicting, interests, including: (1) The preservation, protection, de velopment and, where possible, the res toration or enhancement of coastal re sources; (2) The achievement of wise use of coastal land and water resources with full consideration for ecological, cul tural, historic, and aesthetic values and needs for compatible economic de velopment; (3) The involvement of the public, of Federal, state and local governments and of regional agencies in the develop ment and implementation of coastal management programs; (4) The management of coastal devel opment to improve, safeguard, and re store coastal water quality; and (5) The study and development of plans for addressing the adverse effects of coastal hazards, including erosion, flooding, land subsidence and sea level rise. (b) In order to be meaningful, coordi nation with and participation by var ious units and levels of government in cluding regional commissions, interest groups, and the general public should begin early in the process of program development and should continue throughout on a timely basis to assure that such efforts will result in sub stantive inputs into a State’s manage ment program. State efforts should be devoted not only to obtaining informa tion necessary for developing the man agement program but also to obtaining reactions and recommendations re garding the content of the manage ment program and to responding to concerns by interested parties. The re quirements for intergovernmental co operation and public participation con tinue after program approval. (c) This subpart deals with require ments for coordination with govern mental entities, interest groups and the general public to assure that their interests are fully expressed and con sidered during the program develop ment process and that procedures are created to insure continued consider ation of their views during program implementation. In addition, this sub part deals with mediation procedures for serious disagreements between States and Federal agencies that occur during program development and im plementation. This subpart addresses the requirements of the following sub sections of the Act: 306(d)(1)—Oppor tunity for Full Participation; 306(d)(3)(A)—Plan Coordination; 306(d)(3)(B)—Continued State-Local Consultation; 306(d)(4)—Public Hear ings; 306(d)(8)—Consideration of the Na tional Interest in Facilities; 307(b)— Federal Consultation; and 307(h)—Me diation. § 923.51 Federal-State consultation. (a) The management program must be developed and adopted with the op portunity of full participation by rel evant Federal agencies and with ade quate consideration of the views of Federal agencies principally affected by such program. (b) By providing relevant Federal agencies with the opportunity for full participation during program develop ment and for adequately considering the views of such agencies, States can effectuate the Federal consistency pro visions of subsections 307 (c) and (d) of the Act once their programs are ap proved. (See 15 CFR part 930 for a full discussion of the Federal consistency provisions of the Act.) (c) In addition to the consideration of relevant Federal agency views required during program development, Federal VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00248 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 239 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.52 agencies have the opportunity to pro vide further comment during the pro gram review and approval process. (See subpart G for details on this process.) Moreover, in the event of a serious dis agreement between a relevant Federal agency and designated State agency during program development or during program implementation, the medi ation provisions of subsection 307(h) of the Act are available. (See § 923.54 for details on mediation.) (d) In order to provide an opportunity for participation by relevant Federal agencies and give adequate consider ation to their views, each state must: (1) Contact each relevant Federal Agency listed in § 923.2(d) and such other Federal agencies as may be rel evant, owing to a State’s particular circumstances, early in the develop ment of its management program. The purpose of such contact is to develop mutual arrangements or under standings regarding that agency’s par ticipation during program develop ment; (2) Provide for Federal agency input on a timely basis as the program is de veloped. Such input shall be related both to information required to de velop the management program and to evaluation of and recommendations concerning various elements of the management program; (3) Solicit statements from the head of Federal agencies identified in Table 1 of § 923.52(c)(1) as to their interpreta tion of the national interest in the planning for and siting of facilities which are more than local in nature; (4) Summarize the nature, frequency, and timing of contacts with relevant Federal agencies; (5) Evaluate Federal comments re ceived during the program develop ment process and, where appropriate in the opinion of the State, accommodate the substance of pertinent comments in the management program. States must consider and evaluate relevant Federal agency views or comments about the following: (i) Management of coastal resources for preservation, conservation, devel opment, enhancement or restoration purposes; (ii) Statements of the national inter est in the planning for or siting of fa cilities which are more than local in nature; (iii) Uses which are subject to the management program; (iv) Areas which are of particular concern to the management program; (v) Boundary determinations; (vi) Shorefront access and protecting planning, energy facility planning and erosion planning processes; and (vii) Federally developed or assisted plans that must be coordinated with the management program pursuant to subsection 306(d)(3) of the Act. (6) Indicate the nature of major com ments by Federal agencies provided during program development (either by including copies of comments or by summarizing comments) and discuss any major differences or conflicts be tween the management program and Federal views that have not been re solved at the time of program submis sion. § 923.52 Consideration of the national interest in facilities. (a) The management program must provide for adequate consideration of the national interest involved in plan ning for, and managing the coastal zone, including the siting of facilities such as energy facilities which are of greater than local significance. In the case of energy facilities, the State must have considered any applicable national or interstate energy plan or program. (b) The primary purpose of this re quirement is to assure adequate consid eration by States of the national inter est involved in the planning for and siting of facilities (which are necessary to meet other than local requirements) during: (1) The development of the State’s management program, (2) The review and approval of the program by the Assistant Adminis trator, and (3) The implementation of the pro gram as such facilities are proposed. (c) In order to fulfill this require ment, States must: (1) Describe the national interest in the planning for and siting of facilities considered during program develop ment. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00249 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 240 15 CFR Ch. IX (1–1–21 Edition) § 923.53 (2) Indicate the sources relied upon for a description of the national inter est in the planning for and siting of the facilities. (3) Indicate how and where the con sideration of the national interest is reflected in the substance of the man agement program. In the case of energy facilities in which there is a national interest, the program must indicate the consideration given any national or interstate energy plans or programs which are applicable to or affect a state’s coastal zone. (4) Describe the process for continued consideration of the national interest in the planning for and siting of facili ties during program implementation, including a clear and detailed descrip tion of the administrative procedures and decisions points where such inter est will be considered. § 923.53 Federal consistency proce dures. (a) A State must include in its man agement program submission, as part of the body of the submission an appen dix or an attachment, the procedures it will use to implement the Federal con sistency requirements of subsections 307 (c) and (d) of the Act. At a min imum, the following must be included: (1) An indication of whether the state agency designated pursuant to sub section 306(d)(6) of the Act or a single other agency will handle consistency review (see 15 CFR 930.18); (2) A list of Federal license and per mit activities that will be subject to review (see 15 CFR 930.53); (3) For States anticipating coastal zone effects from Outer Continental Shelf (OCS) activities, the license and permit list also must include OCS plans which describe in detail Federal license and permit activities (see 15 CFR 930.74); and (4) The public notice procedures to be used for certifications submitted for Federal License and permit activities and, where appropriate, for OCS plans (see 15 CFR 930.61 through 930.62 and 930.78). (b) Beyond the minimum require ments contained in paragraph (a) of this section, States have the option of including: (1) A list of Federal activities, in cluding development projects, which in the opinion of the State agency are likely to significantly affect the coast al zone and thereby will require a Fed eral agency consistency determination (see 15 CFR 930.35); and (2) A description of the types of infor mation and data necessary to assess the consistency of Federal license and permit activities and, where appro priate, those described in detail in OCS plans (see 15 CFR 930.56 and 930.75). § 923.54 Mediation. (a) Section 307(h) of the Act provides for mediation of serious disagreement between any Federal agency and a coastal state in the development and implementation of a management pro gram. In certain cases, mediation by the Secretary, with the assistance of the Executive Office of the President, may be an appropriate forum for con flict resolution. (b) State-Federal differences should be addressed initially by the parties in volved. Whenever a serious disagree ment cannot be resolved between the parties concerned, either party may re quest the informal assistance of the Assistant Administrator in resolving the disagreement. This request shall be in writing, stating the points of dis agreement and the reason therefore. A copy of the request shall be sent to the other party to the disagreement. (c) If a serious disagreement persists, the Secretary or other head of a rel evant Federal agency, or the Governor or the head of the state agency des ignated by the Governor as administra tively responsible for program develop ment (if a state still is receiving sec tion 305 program development grants) or for program implementation (if a state is receiving section 306 program implementation grants) may notify the Secretary in writing of the existence of a serious disagreement, and may re quest that the Secretary seek to medi ate the serious disagreement. A copy of the written request must be sent to the agency with which the requesting agency disagrees and to the Assistant Administrator. (d) Secretarial mediation efforts shall last only so long as the parties agree to participate. The Secretary VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00250 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 241 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.56 shall confer with the Executive Office of the President, as necessary, during the mediation process. (e) Mediation shall terminate: (1) At any time the parties agree to a resolution of the serious disagreement, (2) If one of the parties withdraws from mediation, (3) In the event the parties fail to reach a resolution of the serious dis agreement within 15 days following Secretarial mediation efforts, and the parties do not agree to extend medi ation beyond that period, or (4) For other good cause. (f) The availability of the mediation services provided in this section is not intended expressly or implicitly to limit the parties’ use of alternate fo rums to resolve disputes. Specifically, judicial review where otherwise avail able by law may be sought by any party to a serious disagreement with out first having exhausted the medi ation process provided herein. § 923.55 Full participation by State and local governments, interested parties, and the general public. The management program must be developed and adopted with the oppor tunity of full participation by state agencies, local governments, regional commissions and organizations, port authorities, and other interested public and private parties. To meet this re quirement, a State must: (a) Develop and make available gen eral information regarding the pro gram design, its content and its status throughout program development; (b) Provide a listing, as comprehen sive as possible, of all governmental agencies, regional organizations, port authorities and public and private or ganizations likely to be affected by or to have a direct interest in the develop ment and implementation of the man agement program; (c) Indicate the nature of major com ments received from interested or af fected parties, identified in paragraph (b)(2) of this section, and the nature of the State’s response to these com ments; and (d) Hold public meetings, workshops, etc., during the course of program de velopment at accessible locations and convenient times, with reasonable no tice and availability of materials. § 923.56 Plan coordination. (a) The management program must be coordinated with local, areawide, and interstate plans applicable to areas within the coastal zone— (1) Existing on January 1 of the year in which the state’s management pro gram is submitted to the Secretary; and (2) Which have been developed by a local government, an areawide agency, a regional agency, or an interstate agency. (b) A State must insure that the con tents of its management program has been coordinated with local, areawide and interstate plans applicable to areas within the coastal zone existing on January 1 of the year in which the State’s management program is sub mitted to the Assistant Administrator for approval. To document this coordi nation, the management program must: (1) Identify local governments, areawide agencies and regional or interstate agencies which have plans affecting the coastal zone in effect on January 1 of the year in which the management program is submitted; (2) List or provide a summary of con tacts with these entities for the pur pose of coordinating the management program with plans adopted by a gov ernmental entity as of January 1 of the year in which the management pro gram is submitted. At a minimum, the following plans, affecting a State coastal zone, shall be reviewed: Land use plans prepared pursuant to section 701 of the Housing and Urban Develop ment Act of 1968, as amended; State and areawide waste treatment facility or management plans prepared pursu ant to sections 201 and 208 of the Clean Water Act, as amended; plans and des ignations made pursuant to the Na tional Flood Insurance Act of 1968, as amended, and the Flood Disaster Pro tection Act of 1973, as amended; hazard mitigation plans prepared pursuant to section 409 of the Robert T. Stafford VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00251 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 242 15 CFR Ch. IX (1–1–21 Edition) § 923.57 Disaster Relief and Emergency Assist ance Act; any applicable interstate en ergy plans or programs developed pur suant to section 309 of the Act; re gional and interstate highway plans; plans developed by Regional Action Planning Commission; and fishery management plans developed pursuant to the Fisheries Conservation and Man agement Act. (3) Identify conflicts with those plans of a regulatory nature that are unre solved at the time of program submis sion and the means that can be used to resolve these conflicts. § 923.57 Continuing consultation. (a) As required by subsection 306(d)(3)(B) of the Act, a State must es tablish an effective mechanism for con tinuing consultation and coordination between the management agency des ignated pursuant to paragraph (6) of section 306(d) of the Act and with local governments, interstate agencies, re gional agencies, and areawide agencies within the coastal zone to assure the full participation of those local govern ments and agencies in carrying out the purposes of this Act. (b) The management program must establish a procedure whereby local governments with zoning authority are notified of State management program decisions which would conflict with any local zoning ordinance decision. (1) ‘‘Management program decision’’ refers to any major, discretionary pol icy decisions on the part of a manage ment agency, such as the determina tion of permissible land and water uses, the designation of areas or particular concern or areas for preservation or restoration, or the decision to acquire property for public uses. Regulatory actions which are taken pursuant to these major decisions are not subject to the State-local consultation mecha nisms. A State management program decision is in conflict with a local zon ing ordinance if the decision is con tradictory to that ordinance. A State management program decision that consists of additional but not con tradictory requirements is not in con flict with a local zoning ordinance, de cision or other action; (2) ‘‘Local government’’ refers to these defined in section 304(11) of the Act which have some form of zoning authority. (3) ‘‘Local zoning ordinance, decision or other action’’ refers to any local government land or water use action which regulates or restricts the con struction, alteration of use of land, water or structures thereon or there under. These actions include zoning or dinances, master plans and official maps. A local government has the right to comment on a State management program decision when such decision conflicts with the above specified ac tions; (4) Notification must be in writing and must inform the local government of its right to submit comments to the State management agency in the event the proposed State management pro gram decision conflicts with a local zoning ordinance, decision or other ac tion. The effect of providing such no tice is to stay State action to imple ment its management decision for at least a 30-day period unless the local government waives its right to com ment. (5) ‘‘Waiver’’ of the right of local gov ernment to comment (thereby permit ting a State agency to proceed imme diately with implementation of the management program decision) shall result: (i) Following State agency receipt of a written statement from a local gov ernment indicating that it either: (A) Waives its right to comment; or (B) Concurs with the management program decision; or (C) Intends to take action which con flicts or interferes with the manage ment program decision; or (ii) Following a public statement by a local government to the same effect as paragraph (b)(5)(i) of this section; or (iii) Following an action by a local government that conflicts or interferes with the management program deci sion. (6) The management program shall include procedures to be followed by a management agency in considering a local government’s comments. These procedures shall include, at a min imum, circumstances under which the agency will exercise its discretion to hold a public hearing. Where public hearings will be held, the program VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00252 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 243 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.60 must set forth notice and other hearing procedures that will be followed. Fol lowing State agency consideration of local comments (when a discretionary public hearing is not held) or following public hearing, the management agen cy shall provide a written response to the affected local government, affected local government, within a reasonable period of time and prior to implemen tation of the management program de cision, on the results of the agency’s consideration of public comments. § 923.58 Public hearings. The management program must be developed and adopted after the hold ing of public hearings. A State must: (a) Hold a minimum of two public hearings during the course of program development, at least one of which will be on the total scope of the coastal management program. Hearings on the total management program do not have to be held on the actual document submitted to the Assistant Adminis trator for section 306 approval. How ever, such hearing(s) must cover the substance and content of the proposed management program in such a man ner that the general public, and par ticularly affected parties, have a rea sonable opportunity to understand the impacts of the management program. If the hearing(s) are not on the man agement document per se, all requests for such document must be honored and comments on the document re ceived prior to submission of the docu ment to the Assistant Administrator must be considered; (b) Provide a minimum of 30 days public notice of hearing dates and loca tions; (c) Make available for public review, at the time of public notice, all agency materials pertinent to the hearings; and (d) Include a transcript or summary of the public hearing(s) with the State’s program document or submit same within thirty (30) days following submittal of the program to the Assist ant Administrator. At the same time this transcript or summary is sub mitted to the Assistant Administrator, it must be made available, upon re quest, to the public. Subpart G—Review/Approval Procedures SOURCE: 61 FR 33815, June 28, 1996, unless otherwise noted. § 923.60 Review/approval procedures. (a) All state management program submissions must contain an environ mental assessment at the time of sub mission of the management program to OCRM for threshold review. In accord ance with regulations implementing the National Environmental Policy Act of 1969, as amended, OCRM will assist the State by outlining the types of in formation required. (See 40 CFR § 1506.5 (a) and (b).) (b) Upon submission by a State of its draft management program, OCRM will determine if it adequately meets the requirements of the Act and this part. Assuming positive findings are made and major revisions to the State’s draft management program are not required, OCRM will prepare draft and final envi ronmental impact statements, in ac cordance with National Environmental Policy Act requirements. Because the review process involves preparation and dissemination of draft and final en vironmental impact statements and lengthy Federal agency review; states should anticipate that it will take at least 7 months between the time a state first submits a draft management program to OCRM for threshold review and the point at which the Assistant Administrator makes a final decision on whether to approve the manage ment program. Certain factors will contribute to lengthening or short ening this time table; these factors are discussed in OCRM guidance on the re view/approval process. The OCRM guid ance also recommends a format for the program document submitted to the Assistant Administrator for review and approval. Subpart H—Changes to Approved Management Programs SOURCE: 84 FR 38131, Aug. 6, 2019, unless otherwise noted. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00253 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 244 15 CFR Ch. IX (1–1–21 Edition) § 923.80 § 923.80 General. (a) This subpart establishes the cri teria and procedures by which any pro posed change to approved management programs shall be made. The term ‘‘program change’’ includes all terms used in section 306(e) of the Act, in cluding amendment, modification or other program change. Draft program changes submitted to NOAA for infor mal review and comment are not sub ject to these requirements. Unless oth erwise specified, the term ‘‘NOAA’’ re fers to the Office for Coastal Manage ment, within NOAA’s National Ocean Service. (The Office for Coastal Man agement was formerly known as the Office of Ocean and Coastal Resource Management and the Coastal Services Center.) (b) Pursuant to section 306(e) of the Act, a coastal state may not imple ment any change to a management program as part of its management program unless the state submits, and NOAA approves, the change for incor poration into the state’s federally-ap proved management program. A state shall not use a state or local govern ment policy or requirement as an ‘‘en forceable policy’’ under 16 U.S.C. 1453(6a) and § 930.11(h) of this sub chapter for purposes of Federal consist ency under 16 U.S.C. 1456 and part 930 of this subchapter, unless NOAA has approved the incorporation of, and sub sequent changes to, the state or local policy into the state’s management program under this subpart. State or local government law not approved by NOAA as part of a state’s management program remain legal requirements for state and local government purposes, but not for CZMA Federal consistency purposes. (c) For purposes of this subpart, pro gram changes include changes to en forceable policies as well as changes to one or more of the following manage ment program areas under part 923: Uses Subject to Management (Subpart B); Special Management Areas (Sub part C); Boundaries (Subpart D); Au thorities and Organization (Subpart E); and Coordination, Public Involvement and National Interest (Subpart F). (d) The phrase ‘‘enforceable policies’’ used in this subpart is described in 16 U.S.C. 1453(6a) and § 930.11(h) of this subchapter. Enforceable policies are the only policies states can use to de termine whether a Federal action is consistent with its management pro gram under section 307, the Federal Consistency provision, of the Act (16 U.S.C. 1456 and part 930 of this sub chapter). (e) Pursuant to section 306(e)(1) of the Act and § 923.135, NOAA may sus pend all or part of any grant or cooper ative agreement made under section 306 of the Act if the state has failed to submit a program change identified as a necessary action under section 312 of the Act and part 923, subpart L (Review of Performance) and pursuant to the requirements for NOAA to notify the Governor of a state under the enforce ment provisions of § 923.135. § 923.81 Program change procedures, deadlines, public notice and com ment, and application of approved changes. (a) Pursuant to section 306(d)(6) of the Act and § 930.11(o) of this sub chapter, all program changes shall be submitted to NOAA by: The Governor of a coastal state with an approved management program; the head of the single state agency designated under the management program to be the lead state agency for administering the CZMA; or the head of an office within the designated single state agency if the state has authorized that person to submit program changes. Program changes may be submitted to NOAA on a cyclical basis (e.g., quarterly, twice a year, annually) or as the changes occur. (1) One (1) copy shall be submitted electronically using the Program Change Form on NOAA’s Program Change website, http://coast.noaa.gov/ czmprogramchange. (i) If a state is not able to electroni cally send all or part of a program change to NOAA through NOAA’s Pro gram Change website, the state and NOAA shall agree to an alternative method (e.g., email, electronic CD, or a state website). In such instances, NOAA will, to the extent practicable, post the program change to NOAA’s Program Change website. (ii) [Reserved] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00254 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 245 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.81 (2) All deadlines and timeframes under this subpart shall start on the first full business day after the day NOAA receives a program change (Day 1). For example, if a submission is re ceived on a Thursday, day one of NOAA’s review period would be Friday; if the day of receipt is Friday and Mon day is a Federal holiday, Day 1 would be Tuesday. All days, starting with Day 1, are included in the calculation of total time for a deadline, including weekends and Federal holidays, except for the last day (e.g., Day 30 or Day 120). The day that NOAA’s decision is due shall also end on a full business day. For example, if Day 30 is a Satur day, then NOAA’s decision will be due the next Monday, or if Monday is a Federal holiday, on Tuesday. A state may request that NOAA’s review pe riod begin on a specified date following receipt by NOAA. (b) Within 5 days of receipt of a pro gram change submission, NOAA shall notify the state (via email or letter) of the date the program change was re ceived and NOAA’s expected decision deadline. NOAA will also notify the state within 10 days of receipt of a pro gram change submission if NOAA de termines the submission is incomplete. If NOAA determines a submission is in complete, NOAA shall inform the state that the program change review timeline shall not start until the miss ing information is submitted. During NOAA’s review of a program change re quest, NOAA may request additional information that NOAA needs to make its decision. (c) NOAA’s program change review period shall start on Day 1 pursuant to paragraph (a)(2) of this section, unless NOAA determines the submission is in complete pursuant to paragraph (b) of this section. NOAA shall respond to the state (via email or letter) within 30 cal endar days after the date NOAA re ceives a program change. NOAA’s ap proval is presumed if NOAA does not respond or extend its review period within the 30-day period. NOAA may extend its review period up to 120 days after receipt of a program change re quest, if NOAA so notifies the state during the 30-day period. NOAA can ex tend beyond 120 days only as necessary to meet the requirements of the Na tional Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). NOAA shall inform the state via email or let ter whether NOAA approves, approves in part, approves with qualifications or denies the incorporation of the pro gram change into the state’s manage ment program. (d) States shall, to the extent prac ticable, consult with NOAA prior to state adoption of new or revised state laws, policies, regulations, and other changes the state intends to submit to NOAA as a program change. States are encouraged to submit draft program changes to NOAA for informal review and comment prior to submitting a program change. If consulted, NOAA shall review draft submissions to iden tify issues that would need to be ad dressed in the formal submission. (e)(1) A state shall post a public no tice of its program change on the state’s management program website in a conspicuous manner, and email or mail the public notice to local and re gional offices of relevant Federal agen cies, Federal agency CZMA head quarter contacts identified on NOAA’s Federal consistency website, affected local governments and state agencies, and to individuals requesting direct no tice. To meet the requirement for di rect public notice (via email or mail), states are encouraged to maintain a coastal management listserv or mail ing list. In addition to posting the pub lic notice on the state’s website and notifying the parties described above, states may, but are not required to, publish the notice in any state bulletin or newspaper. The timing of the state’s public notice. States will draft a public notice of a submission, which shall be included as part of the contents of the program change submission form. When NOAA posts the program change submission on its Program Change website, NOAA will notify the state management program via email. The state will then post its public notice on the state web page providing a link to the submission on NOAA’s Program Change website. The state shall send the public notice and link to the state and local agencies, Federal agency con tacts, and others who have requested the state’s public notice. Day 1 for NOAA review purposes will be the first VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00255 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 246 15 CFR Ch. IX (1–1–21 Edition) § 923.82 business day after the state submits to NOAA the program change request. However, the 21-day comment period shall not start until the state posts its public notice on the state web page. If a state fails to post its public notice, then NOAA may either determine the program change submission is not com plete and the review period has not started or deny the program change re quest. (2) A state’s public notice shall: (i) Describe the changes to the man agement program; (ii) If applicable, identify any new, modified or deleted enforceable policies of the management program; (iii) Indicate that any comments on the incorporation of the program change into the state’s management program shall be submitted to NOAA through NOAA’s Program Change website within 21 calendar days of the date of the state’s public notice; and (3) NOAA shall post all program changes on its Program Change website where any interested party may review or download materials. NOAA shall also post on its Program Change website deadlines, extensions and any comments received. For each program change posted on NOAA’s website, NOAA shall notify the Federal agency CZMA headquarter contacts (identified on NOAA’s Federal consistency website) via email. In addition, any party may request through the Pro gram Change website that NOAA no tify them via email when program changes are submitted by one or more state(s). NOAA’s email shall also state that any party may, through NOAA’s Program Change website, submit com ments to NOAA on a state’s request to incorporate a program change into the state’s management program within 21 calendar days from the date of the state’s public notice. NOAA shall only consider public and Federal agency comments for program change requests that are pending for a NOAA decision; no comments shall be accepted or con sidered for program changes once NOAA issues its decision. If a state, during or after the public comment pe riod, submits directly to NOAA a re sponse to a comment before NOAA issues a decision, NOAA shall consider the state’s response and post the state’s response on the Program Change website. (4) NOAA may, at its discretion, ex tend the public comment period or hold a public hearing. NOAA shall only con sider holding a public hearing for a pro gram change that would substantially change a management program and/or be controversial. (5) NOAA shall post its program change decisions on its CZMA Program Change website and shall notify, by email, Federal agency CZMA head quarter contacts and individuals re questing such notice. A state shall post NOAA’s decision regarding a state’s program change on the state agency’s website. (f) Application of approved program changes for Federal consistency pur poses under section 307 of the Act (16 U.S.C. 1456) and part 930 of this sub chapter. The effective date for the ap proved changes will be the date on NOAA’s approval letter. NOAA will post its program change decision let ters on its Program Change website. Changes to a state’s management pro gram and enforceable policies shall apply for Federal consistency purposes to Federal actions proposed on or after the date NOAA approves the changes. Approved program changes shall not apply retroactively to state Federal consistency reviews under 15 CFR part 930 initiated prior to the date NOAA approved the changes, except as al lowed by part 930 (e.g., a Federal action was finalized or authorized and there is a substantial change, amendment or renewal proposed for the Federal ac tion on or after the date of NOAA’s ap proval of a program change, pursuant to the applicable subpart of part 930). § 923.82 Program change submissions. (a) As required by CZMA section 306(e)(3)(A), coastal states may not im plement a change as part of its ap proved management program unless the change is approved by NOAA. In ac cordance with §§ 923.81 and 923.83, states shall submit program changes to NOAA for approval using the Program Change Form on NOAA’s Program Change website. (b) All state program changes shall identify the program approval area(s) that apply to the program change. The VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00256 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 247 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.83 five program approval areas are: Uses Subject to Management (subpart B of this part); Special Management Areas (subpart C of this part); Boundaries (subpart D of this part); Authorities and Organization (subpart E of this part); and Coordination, Public In volvement and National Interest (sub part F of this part). (c) Program changes that are edi torial, non-substantive, or minor in scope. The types of program changes in paragraphs (c)(1) through (4) of this section shall be approved by NOAA and need less review as long as they satisfy the decision criteria in § 923.84 and do not raise issues under any Federal laws, as described in § 923.85: (1) Editorial or non-substantive changes (e.g., citation changes, minor technical changes, or changes to state agency name) to state laws, regula tions, enforceable policies, local gov ernment coastal management pro grams, special area management plans, and other authorities; (2) Changes that do not change a state’s coastal zone boundary or geo graphic location description(s), and are not otherwise used by the state for Federal consistency review; (3) Changes to the organization of a state’s management program if the management program’s structure and responsibilities will remain intact; and (4) Changes to enforceable policies previously approved by NOAA that make minor substantive revisions con sistent with the scope and application of the previously approved enforceable policy. If the proposed changes are not consistent with the scope and applica tion of the previously approved en forceable policy, then NOAA shall more closely review the changes under para graph (d) of this section to ensure they satisfy the decision criteria. (d) Any program change that is not described in paragraph (c) of this sec tion shall be reviewed by NOAA to en sure the state’s management program will remain approvable if the proposed program change is approved. These changes include: (1) Changes to the five program ap proval areas, including: Uses Subject to Management (subpart B of this part); Special Management Areas (subpart C of this part); Boundaries (subpart D of this part); Authorities and Organiza tion (subpart E of this part); and Co ordination, Public Involvement and National Interest (subpart F of this part); (2) Changes to enforceable policies, including modifications, additions and deletions; (3) Changes to provisions that are not enforceable policies, but which a state may use to evaluate the scope or appli cability of an enforceable policy (e.g., definitions, advisory statements); (4) Changes to local government coastal management programs or plans if those local programs or plans con tain enforceable policies that the state uses for Federal consistency review. States are not required to submit pro gram changes for local government coastal management programs or plans that do not contain enforceable poli cies for Federal consistency review; (5) Changes or additions to the state’s Federal consistency list or geo graphic location descriptions (part 930 of this subchapter); and (6) Changes or additions to Necessary Data and Information (§ 930.58 of this subchapter). (e) Changes to state Clean Air Act (CAA) and Clean Water Act (CWA) Pol lution Control Requirements. Pursuant to section 307(f) of the Act, require ments established by the CWA (33 U.S.C. 1251–1387) and the CAA (42 U.S.C. 7401–7671), or established by the Federal Government or by any state or local government pursuant to the CWA and CAA shall be incorporated in state management programs and shall be the water pollution control and air pollu tion control requirements applicable to such management program. Therefore, states are not required to submit as program changes any changes to state CAA and CWA provisions. § 923.83 Program change materials. (a) All program changes submitted to NOAA shall be submitted in accordance with § 923.81. States shall use the Pro gram Change website Form and Table to provide the following. (1) A brief general overview descrip tion of the proposed program change(s) and a current version of the docu ment(s) containing the program change VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00257 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 248 15 CFR Ch. IX (1–1–21 Edition) § 923.83 (e.g., text of the revised statute, regu lation, policy, map). The general over view description shall identify the law, regulation, policy, or other type of pro gram provision contained in the pro gram change submission. (2) A brief summary of the changes of each authority or policy identified in paragraph (a)(1) of this section, and how the management program as changed is different than the pre viously approved management pro gram. (3) Indicate which of one or more of the five management program approval areas under this part apply to the pro gram change: (i) Uses Subject to Management (sub part B); (ii) Special Management Areas (sub part C); (iii) Boundaries (subpart D); (iv) Authorities and Organization (subpart E); or (v) Coordination, Public Involvement and National Interest (subpart F). (4) States shall use the Program Change Table provided by NOAA through the Program Change website to provide: (i) The State legal citation for the policy (state code, public law number, state regulation, other official state format); (ii) The title of the policy, section, or other descriptor; (iii) Whether the change or policy is new, revised, or deleted; (iv) The date the change was effec tive in the state; (v) Identification of each enforceable policy submitted as part of the pro gram change; and (vi) The state enforceable mechanism citation that makes the policy enforce able under state law. The phrase ‘‘en forceable mechanism’’ means a state authority that makes an enforceable policy legally binding under state law, as described in this subpart and § 930.11(h) of this subchapter. Examples of an enforceable mechanism include state statutes, regulations, permitting programs, local government ordinances or court decisions. If an enforceable mechanism is changed so that an en forceable policy is no longer legally binding under state law, then the en forceable policy shall be submitted as a program change with a new underlying state enforceable mechanism; other wise the policy is no longer enforceable for purposes of state CZMA Federal consistency reviews under part 930 of this subchapter. (5) Changes or additions to the state’s Federal consistency list or geo graphic location descriptions. (i) For each new or revised listed Federal action, states shall describe the: (A) Type of Federal action; (B) Specific Federal statutory au thority; (C) Responsible Federal agency; and (D) Reasonably foreseeable effects to the uses and resources of the state’s coastal zone (§ 923.84(d)). (ii) For each new or revised geo graphic location description, states shall describe the: (A) Geographic location description, using specific geographic boundaries; (B) Listed Federal actions to be in cluded within a geographic location de scription; and (C) Reasonably foreseeable effects to the uses and resources of the state’s coastal zone (§ 923.84(d)). (6) States shall describe any changes or additions to Necessary Data and In formation approved by NOAA in ac cordance with § 930.58 of this sub chapter and explain why such informa tion is necessary in order for the state to commence its Federal consistency review period. (7) The state shall indicate that the program change meets each of NOAA’s decision criteria in § 923.84. (8) The state shall describe whether and how the program change will im pact the following: (i) Resources or interests of any fed erally-recognized Indian Tribe. (ii) Threatened or endangered species listed under the Federal Endangered Species Act (ESA); (iii) Historic properties designated under the National Historic Preserva tion Act (NHPA); (iv) Essential fish habitat designated under the Magnuson Stevens Fishery Conservation and Management Act (MSFCMA); and (v) Marine mammals managed under the Marine Mammal Protection Act (MMPA). VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00258 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 249 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.84 (9) The state shall identify the state’s website where the public notices for the notification and submission re quests are, or will be, located and where, if applicable, state documents related to the request may be viewed. (10) The state shall submit to NOAA any substantive correspondence be tween the state and Federal agencies (not including NOAA’s Office for Coast al Management) concerning the devel opment of the changes that are the subject of the program change request. (11) The state shall indicate if the program change was developed as a necessary action pursuant to section 312 of the Act (16 U.S.C. 1458—Review of performance) and, if so, shall briefly describe the necessary action. (b) [Reserved] § 923.84 Program change decision cri teria. (a) NOAA shall review all program changes on a case-by-case basis. NOAA shall determine whether a management program, if changed, would continue to satisfy the applicable program ap proval criteria of CZMA section 306(d) and subparts B through F of this part and the requirements of this subpart (subpart H). (b) Enforceable policies. In order for NOAA to approve the incorporation of a new or revised enforceable policy into a state’s management program, the policy shall: (1) Be legally binding under state law; (2) Contain standards of sufficient specificity to guide public and private uses. A policy is not enforceable if it merely directs a state agency to de velop regulations or standards. (i) Definitions and information re quirements are essential elements of determining compliance with regu latory and permit standards. As such, a state law or regulation that contains numerous standards, definitions, and information requirements may be con sidered enforceable in its entirety after consultation with NOAA. If NOAA de termines that a law or regulation may be considered enforceable in its en tirety, a state shall still need to apply only the substantive standards within the statute or regulation as enforce able policies for CZMA Federal consist ency reviews. Procedural requirements are not considered to be enforceable policies for CZMA review purposes. (ii) [Reserved] (3) Apply only to areas and/or enti ties under state jurisdiction; (4) Not refer to or otherwise purport to apply to Federal agencies, Federal lands or Federal waters. The Act does not authorize states to establish regu latory standards for Federal agencies or for Federal lands or waters. A state policy that would regulate or otherwise establish standards for Federal agen cies or Federal lands or waters shall not meet the Act’s definition of ‘‘en forceable policy’’ (i.e., legally binding under state law) under 16 U.S.C. 1453(6a). States apply their NOAA-ap proved enforceable policies to Federal actions, regardless of location, through CZMA Federal consistency reviews under 16 U.S.C. 1456 and part 930 of this subchapter; (5) Not be preempted by Federal law. If a state policy is preempted by Fed eral law, the policy is not legally bind ing under state law and shall not be an enforceable policy under 16 U.S.C. 1453(6a). Policies previously approved by NOAA as enforceable policies shall no longer be enforceable if Federal law enacted after NOAA’s approval pre empts the state policy; (6) Not incorporate by reference other state or local requirements that are not identified, described and evalu ated as part of the program change re quest. Any state or local requirements incorporated by reference shall not be applicable for Federal consistency re view purposes unless separately ap proved by NOAA as enforceable poli cies; (7) Not discriminate against a par ticular type of activity or entity. En forceable policies shall be applied to all relevant public and private entities that would have similar coastal effects. Enforceable policies may be specific to a particular type of activity or entity if NOAA agrees that a state has dem onstrated that the activity or entity present unique circumstances; and (8) Not adversely affect the national interest in the CZMA objectives de scribed in 16 U.S.C. 1451 and 1452. (c) If enforceable policies previously approved by NOAA become obsolete or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 250 15 CFR Ch. IX (1–1–21 Edition) § 923.85 unenforceable through application of subsequently enacted state or Federal law, such policies will no longer be en forceable for purposes of CZMA Federal consistency review. For example, a state law change may repeal a previous policy or may change the policy in a manner that changes the scope and ap plication of the policy. In such cases, the previously approved enforceable policy is no longer applicable under state law and the new or substantially revised policy is not applicable for Fed eral consistency purposes until that policy has been submitted by the state as a program change and approved by NOAA. A previously approved enforce able policy will no longer be legally en forceable under state law if subsequent Federal law preempts the state policy. (d) Changes to a management pro gram’s Federal consistency list or a new or revised geographic location de scription under part 930 of this sub chapter, subparts C, D, E, F or I. For changes to a management program’s list of Federal actions or a new or re vised geographic location description, the state’s effects analysis shall be based on information that would allow NOAA to find that the listed activity, either within the state’s coastal zone or within a geographic location de scribed outside the state’s coastal zone, would have reasonably foreseeable ef fects on the uses or resources of the state’s coastal zone. A state’s analysis asserting impacts to uses or resources outside of the coastal zone shall not, by itself, demonstrate a coastal effect; rather, the state shall describe a causal connection of how an impact outside the coastal zone could result in a coastal effect. A state’s effects analysis shall not be based on unsupported con clusions, speculation or the mere exist ence of coastal uses or resources within a geographic location. A state’s coastal effects analysis shall, to the extent practicable, identify: (1) The affected uses (e.g., commer cial and recreational fishing, boating, tourism, shipping, energy facilities) and resources (e.g., fish, marine mam mals, reptiles, birds, landmarks). (2) Where and in what densities the uses and resources are found. (3) How the state has a specific inter est in the resource or use. States should be specific in showing the con nection to the coastal zone of the state (e.g., economic values, harvest amounts, vulnerabilities, seasonal in formation relevant to the proposed ac tivity). (4) Where the proposed activity over laps with these resources, uses and val ues. (5) Impacts to the resources or uses from the proposed activity. (6) A reasonable showing of a causal connection to the proposed activity, in cluding how the impacts from the ac tivity results in reasonably foreseeable effects on the state’s coastal uses or re sources. (7) Why any required mitigation may be inadequate. (8) Empirical data and information that supports the effects analysis and: Can be shown to be reliable; visualizes the affected area, resources and uses with maps; and shows values, trends and vulnerabilities. § 923.85 Procedural requirements of other Federal law. NOAA shall determine on a case-by case basis whether each program change requires NOAA to take addi tional actions under any other Federal requirements. (a) If a state’s program change will affect the resources or interests of any federally-recognized Indian Tribe (tribe), NOAA shall contact the af fected tribe(s) and determine if Govern ment-to-Government consultation is desired under Executive Order 13175 (Nov. 6, 2000). (b) If, for the purposes of ESA, NHPA, MSFCMA or MMPA compli ance, NOAA determines that a state’s program change will have effects on listed threatened or endangered spe cies, historic properties, essential fish habitat or marine mammals, then NOAA shall determine if consultation is needed with the applicable Federal agency under the ESA, NHPA, MSFCMA and MMPA. (c) When NOAA determines whether to consult under other Federal statutes or tribal executive orders, NOAA’s abil ity to require changes to a state’s pro posed program change are limited by the following: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 251 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.91 (1) Once NOAA approves a state’s management program, NOAA cannot require a state to change its program. NOAA can, through periodic evalua tions of a state’s management program under section 312 of the Act, establish necessary actions if NOAA finds a state is not adhering to its NOAA-approved program, but NOAA can only rec ommend that a state change its pro gram to create a different state stand ard or to address emerging issues; and (2) NOAA can approve or disapprove a program change request. When NOAA reviews a program change, NOAA has a limited ability to require a state to make changes to state policies. If NOAA disapproves a program change request, this does not require a state to change state law. Therefore, there is no effect from NOAA’s denial on the im plementation of state law at the state (or local government) level. NOAA’s denial means the disapproved state pol icy is not part of the state’s NOAA-ap proved management program and can not be used for CZMA Federal consist ency purposes. NOAA cannot use a pro gram change to require changes to other parts of a state’s management program. Subpart I—Applications for Pro gram Development or Imple mentation Grants SOURCE: 61 FR 33816, June 28, 1996, unless otherwise noted. § 923.90 General. (a) The primary purpose of develop ment grants made pursuant to section 305 of the Act is to assist coastal States in the development of com prehensive coastal management pro grams that can be approved by the As sistant Administrator. The primary purpose of implementation grants made pursuant to section 306 of the Act is to assist coastal States in imple menting coastal management pro grams following their approval, includ ing especially administrative actions to implement enforceable program policies, authorities and other manage ment techniques. The purpose of the guidelines in this subpart is to define the procedures by which grantees apply for and administer grants under the Act. These guidelines shall be used and interpreted in conjunction with appli cable Federal laws and policies, De partment of Commerce grants manage ment regulations, policies and proce dures, and any other applicable direc tives from the NOAA Grants Manage ment Division and OCRM program of fices. (b) Grants awarded to a State must be expended for the development or ad ministration, as appropriate, of a man agement program that meets the re quirements of the Act, and in accord ance with the terms of the award. (c) All applications for funding under section 305 or 306 of the Act, including proposed work programs, funding prior ities and allocations are subject to the discretion of the Assistant Adminis trator. (d) For purposes of this subpart, the term development grant means a grant awarded pursuant to subsection 305(a) of the Act. ‘‘Administrative grant’’ and ‘‘implementation grant’’ are used interchangeably and mean grants awarded pursuant to subsection 306(a) of the Act. (e) All application and preapplication forms are to be requested from and sub mitted to: National Oceanic and At mospheric Administration, Office of Ocean and Coastal Resource Manage ment, Coastal Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910. § 923.91 State responsibility. (a) Applications for program grants are required to be submitted by the Governor of a participating state or by the head of the state entity designated by the Governor pursuant to subsection 306(d)(6) of the Act. (b) In the case of a section 305 grant, the application must designate a single state agency or entity to receive devel opment grants and to be responsible for development of the State’s coastal management program. The designee need not be that entity designated by the Governor pursuant to subsection 306(d)(6) of the Act as a single agency to receive and administer implementa tion grants. (c) One State application will cover all program activities for which pro gram development or implementation VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 252 15 CFR Ch. IX (1–1–21 Edition) § 923.92 funds under this Act and matching State funds are provided, irrespective of whether these activities will be car ried out by State agencies, areawide or regional agencies, local governments, or interstate entities. (d) The designated state entity shall be fiscally responsible for all expendi tures made under the grant, including expenditures by subgrantees and con tractors. § 923.92 Allocation. (a) Subsections 303(4), 306(d)(3)(B) and 306(d)(10) of the Act foster intergovern mental cooperation in that a state, in accordance with its coastal zone man agement program, may allocate some of its coastal zone management respon sibilities to several agencies, including local governments, areawide agencies, regional agencies and interstate agen cies. Such allocations provide for con tinuing consultation and more effec tive participation and cooperation among state and local governments, interstate, regional and areawide agen cies. (b) A State may allocate a portion or portions of its grant to other State agencies, local governments, areawide or regional agencies, interstate enti ties, or Indian tribes, if the work to re sult from such allocation(s) will con tribute to the effective development or implementation of the State’s manage ment program. (1) Local governments. Should a State desire to allocate a portion of its grant to a local government, units of general-purpose local government are preferred over special-purpose units of local government. Where a State will be relying on direct State controls as provided for in subsection 306(d)(11)(B) of the Act, pass-throughs to local gov ernments for local planning, regulatory or administrative efforts under a sec tion 306 grant cannot be made, unless they are subject to adequate State overview and are part of the approved management program. Where the ap proved management program provides for other specified local activities or one-time projects, again subject to ade quate State overview, then a portion of administrative grant funds may be al located to local governments. (2) Indian Tribes. Tribal participation in coastal management efforts may be supported and encouraged through a State’s program. Individual tribes or groups of tribes may be considered re gional agencies and may be allocated a portion of a State’s grant for the devel opment of independent tribal coastal management programs or the imple mentation of specific management projects provided that: (i) The State certifies that such trib al programs or projects are compatible with its approved coastal management policies; and (ii) On excluded tribal lands, the State demonstrates that the tribal pro gram or project would or could directly affect the State’s coastal zone. § 923.93 Eligible implementation costs. (a) Costs claimed must be beneficial and necessary to the objectives of the grant project. As used herein the terms cost and grant project pertain to both the Federal and the matching share. Allowability of costs will be deter mined in accordance with the provi sions of OMB Circular A–87: Cost Prin ciples for State, Local and Indian Trib al Governments. (b) Federal funds awarded pursuant to section 306 of the Act may not be used for land acquisition purposes and may not be used for construction pur poses. These costs may be eligible, however, pursuant to section 306A of the Act. (c) The primary purpose for which implementation funds, pursuant to sec tion 306 of the Act, are to be used is to assure effective implementation and administration of the management pro gram, including especially administra tive actions to implement enforceable program policies, authorities and other management techniques. Implementa tion activities should focus on achiev ing the policies of the Act. (d) Section 306 funding in support of any of these purposes may be used to fund, among other things: (1) Personnel costs, (2) Supplies and overhead, (3) Equipment, and (4) Feasibility studies and prelimi nary engineering reports. (e) States are encouraged to coordi nate administrative funding requests VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00262 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 253 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.94 with funding possibilities pursuant to sections 306A, 308, 309, 310 and 315 of the Act, as well as with funding possibili ties pursuant to section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990. When in doubt as to the appropriate section of the Act under which to request funding, States should consult with OCRM. States should consult with OCRM on technical aspects of consolidating requests into a single application. § 923.94 Application for program de velopment or implementation grants. (a) OMB Standard Form 424 (4–92) and the NOAA Application Kit for Federal Assistance constitute the formal appli cation. An original and two (2) copies must be submitted 45 days prior to the desired grant beginning date. The ap plication must be accompanied by evi dence of compliance with E.O. 12372 re quirements including the resolution of any problems raised by the proposed project. The administrative require ments for grants and subawards, under this program, to state, local and Indian tribal governments are set out in 15 CFR part 24. The administrative re quirements for other entities are pre scribed under OMB Circular A–110: Ad ministrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations. (b) Costs claimed as charges to the grant project must be beneficial and necessary to the objectives of the grant project. As used herein, the terms ‘‘cost’’ and ‘‘grant project’’ pertain to both the Federal amount awarded and the non-federal matching share. Allow ability of costs will be determined in accordance with the provisions of OMB Circular A–87: Cost Principles for State, Local and Indian Tribal Govern ments. Eligible implementation costs also shall be determined in accordance with § 923.93 of these regulations. Al lowability of costs for non-profit orga nizations will be determined in accord ance with OMB Circular A–122: Cost Principles for Non-Profit Organiza tions. Allowability of costs for institu tions of higher education will be deter mined in accordance with OMB Cir cular A–21: Cost Principles for Edu cational Institutions. (c) In the grant application, the ap plicant must describe clearly and brief ly the activities that will be under taken with grant funds in support of implementation and administration of the management program. This de scription must include: (1) An identification of those ele ments of the approved management program that are to be supported in whole or in part by the Federal and the matching share, (2) A clear statement of the major tasks required to implement each ele ment, (3) For each task the application must: (i) Specify how it will be accom plished and by whom; (ii) Identify any sub-awardees (other State agencies, local governments, in dividuals, etc.) that will be allocated responsibility for carrying out all or portions of the task, and indicate the estimated cost of the sub-awards for each allocation; and (iii) Indicate the estimated total cost. (4) The sum of all task costs in para graph (c)(3) of this section should equal the total estimated grant project cost. (d) For program development grants, when evaluating whether a State is making satisfactory progress toward completion of an approvable manage ment program which is necessary to es tablish eligibility for subsequent grants, the Assistant Administrator will consider: (1) The progress made toward meet ing management program goals and ob jectives; (2) The progress demonstrated in completing the past year’s work pro gram; (3) The cumulative progress toward meeting the requirements for prelimi nary or final approval of a coastal management program; (4) The applicability of the proposed work program to fulfillment of the re quirements for final approval; and (5) The effectiveness of mechanisms for insuring public participation and consultation with affected Federal, State, regional and local agencies in program development. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00263 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 254 15 CFR Ch. IX (1–1–21 Edition) § 923.95 § 923.95 Approval of applications. (a) The application for a grant by any coastal State which complies with the policies and requirements of the Act and these guidelines shall be approved by the NOAA Grants Officer, upon rec ommendation by the Assistant Admin istrator, assuming available funding. (b) Should an application be found deficient, the Assistant Administrator will notify the applicant in detail of any deficiency when an application fails to conform to the requirements of the Act or these regulations. Con ferences may be held on these matters. Corrections or adjustments to the ap plication will provide the basis for re submittal of the application for further consideration and review. (c) The NOAA Grants Officer, upon recommendation by the Assistant Ad ministrator, may waive appropriate ad ministrative requirements contained in this subpart, upon finding of extenu ating circumstances relating to appli cations for assistance. § 923.96 Grant amendments. (a) Actions that require an amend ment to a grant award such as a re quest for additional Federal funds, changes in the amount of the non-Fed eral share, changes in the approved project budget as specified in 15 CFR part 24, or extension of the grant pe riod must be submitted to the Assist ant Administrator and approved in writing by the NOAA Grants Officer prior to initiation of the contemplated change. Such requests should be sub mitted at least 30 days prior to the pro posed effective date of the change and, if appropriate, accompanied by evi dence of compliance with E.O. 12372 re quirements. (b) NOAA shall acknowledge receipt of the grantee’s request within the ten (10) working days of receipt of the cor respondence. This notification shall in dicate NOAA’s decision regarding the request; or indicate a time-frame with in which a decision will be made. Subpart J—Allocation of Section 306 Program Administration Grants § 923.110 Allocation formula. (a) As required by subsection 306(a), the Secretary may make grants to any coastal state for the purpose of admin istering that state’s management pro gram, if the state matches any such grant according to the following ratios of Federal-to-state contributions for the applicable fiscal year: (1) For those states for which pro grams were approved prior to enact ment of the Coastal Zone Act Reau thorization Amendments of 1990, 1 to 1 for any fiscal year. (2) For programs approved after en actment of the Coastal Zone Act Reau thorization Amendments of 1990, 4 to 1 for the first fiscal year, 2.3 to 1 for the second fiscal year, 1.5 to 1 for the third fiscal year, and 1 to 1 for each fiscal year thereafter. (3) As required by subsection 306(b), the Secretary may make a grant to a coastal state under subsection 306(a) only if the Secretary finds that the management program of the coastal state meets all applicable requirements of this title and has been approved in accordance with subsection 306(d). (4) As required by subsection 306(c), grants under this section shall be allo cated to coastal states under approved programs based on rules and regula tions promulgated by the Secretary which shall take into account the ex tent and nature of the shoreline and area covered by the program, popu lation of the area, and other relevant factors. The Secretary shall establish, after consulting with the coastal states, maximum and minimum grants for any fiscal year to promote equity between coastal states and effective coastal management. (b) Minimum/maximum allocations. The Assistant Administrator shall establish minimum and maximum state alloca tions annually, after consultation with the coastal states. (c) Allocation formula factors and weighting. Each State eligible to re ceive a financial assistance award shall be allocated an amount of the total available Federal funding based on: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00264 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 255 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.121 (1) A minimum share (established by the Assistant Administrator) of the total funding available for allocation to eligible State coastal management programs, plus (2) A proportionate share of the re mainder to be divided as follows: (i) Sixty percent will be allocated based on each eligible State’s propor tionate share of the length of tidal shoreline and/or Great Lake shoreline mileage of all participating States based on the most recently available data from or accepted by the National Ocean Survey, and (ii) Forty percent will be allocated on each eligible State’s proportionate share of the aggregate population of all coastal counties contained in whole or in part within the designated coastal boundary of all eligible State coastal programs based on official data or the most recent U.S. census. (3) Should any State’s base allocation exceed the maximum established by the Assistant Administrator, the ex cess amount shall be subtracted from the established maximum and redis tributed proportionately among those eligible States with allocations not ex ceeding the established maximum. (d) Use of the allocation formula. The allocation formula shall be used to es tablish base level allocations for each State coastal management program el igible to receive Federal funding. (e) Adjustment for phase down of Fed eral funding. The Assistant Adminis trator may adjust base level alloca tions as necessary to implement a phase down of Federal financial sup port. Any such adjustment shall be im plemented in a manner which gives some priority to recently approved State coastal management programs. Options for implementation of a phase down will be submitted to the States for review and comment. (f) Calculation of financial assistance award levels. Actual financial assist ance award levels will be set from base level allocations, any adjustments under paragraph (e) above, and in ac cordance with the provisions of Section 312(c) and (d). (Secs. 306 and 317 of the Coastal Zone Man agement Act) [47 FR 21021, May 17, 1982, as amended at 59 FR 27985, May 31, 1994. Redesignated at 61 FR 33818, June 28, 1996] Subpart K—Coastal Zone Enhancement Grants Program AUTHORITY: Section 309 of the Coastal Zone Management Act, as amended (16 U.S.C. 1456). SOURCE: 57 FR 31116, July 14, 1992, unless otherwise noted. Redesignated at 61 FR 33818, June 28, 1996. § 923.121 General. (a) The purpose of this subpart is to set forth the criteria and procedures for awarding coastal zone enhancement grants under section 309 of the Coastal Zone Management Act, as amended (16 U.S.C. 1456). This subpart describes the criteria States must address in devel oping and implementing coastal zone enhancement objectives, the proce dures for allocating section 309 funds between weighted formula and indi vidual review of proposals of special merit, how the amount of section 309 weighted formula grants will be deter mined, the criteria NOAA will use to evaluate and rank individual proposals of special merit, and the procedures for applying for financial assistance under section 309. This subpart also allows use of section 309 funds for implemen tation of program changes for up to 2 fiscal years following the fiscal year in which a program change was approved. (b) A coastal State with an approved program under section 306 of the Coast al Zone Management Act (CZMA), as amended (16 U.S.C. 1455), is eligible for grants under this subpart if the State meets the following requirements: (1) The State must have a NOAA ap proved Assessment and Strategy, sub mitted in accordance with NOAA guid ance and 923.128; (2) The State must be found to be ad hering to its approved program and must be making satisfactory progress in performing grant tasks under sec tion 306, as indicated by not being under interim or final sanctions; and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00265 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 256 15 CFR Ch. IX (1–1–21 Edition) § 923.122 (3) The State must be making satis factory progress in carrying out its previous year’s award under section 309. (c) If the Assistant Administrator finds that a State is not undertaking the actions committed to under the terms of a section 309 grant, the Assist ant Administrator shall suspend the State’s eligibility for future funding under this section for at least one year. (d) A State’s eligibility for future funding under this section will be re stored after the State demonstrates, to the satisfaction of the Assistant Ad ministrator, that it will conform with the requirements under this part. (e) Funds awarded to States under section 309 are for the enhancement of existing coastal zone management pro grams. A State which reduces overall State financial support for its CZM program as a result of having been awarded section 309 funding may lose eligibility for funding under section 309 in subsequent years. (f) All applications for funding under section 309 of the CZMA, as amended, including proposed work programs, funding priorities and funding awards, are subject to the administrative dis cretion of the Assistant Administrator and any additional NOAA guidance. (g) Grants awarded under section 309 may be used: (1) To support up to 100 percent of the allowable costs of approved projects under section 309 of the CZMA, as amended; or (2) To implement program changes approved by the Secretary for up to two fiscal years following the fiscal year in which a program change was approved. (h) All application forms are to be re quested from and submitted to: Na tional Oceanic and Atmospheric Ad ministration, Office of Ocean and Coastal Resource Management, Coastal Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910. [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996; 62 FR 12541, Mar. 17, 1997] § 923.122 Objectives. (a) The objective of assistance pro vided under this part is to encourage each State with a federally-approved coastal management program to con tinually improve its program in speci fied areas of national importance. The Secretary is authorized to make grants to a coastal State for the development and submission for Federal approval of program changes that support attain ment of one or more coastal zone en hancement objectives. (b) As required by section 309(a) of the Act, for purposes of this part, the term coastal zone enhancement objective means any of the following objectives: (1) Protection, restoration, or en hancement of the existing coastal wet lands base, or creation of new coastal wetlands. (2) Preventing or significantly reduc ing threats to life and destruction of property by eliminating development and redevelopment in high-hazard areas, managing development in other hazard areas, and anticipating and managing the effects of potential sea level rise and Great Lakes level rise. (3) Attaining increased opportunities for public access, taking into account current and future public access needs, to coastal areas of recreational, histor ical, aesthetic, ecological, or cultural value. (4) Reducing marine debris entering the Nation’s coastal and ocean environ ment by managing uses and activities that contribute to the entry of such de bris. (5) Development and adoption of pro cedures to assess, consider, and control cumulative and secondary impacts of coastal growth and development, in cluding the collective effect on various individual uses or activities on coastal resources, such as coastal wetlands and fishery resources. (6) Preparing and implementing spe cial area management plans for impor tant coastal areas. (7) Planning for the use of ocean re sources. (8) Adoption of procedures and en forceable policies to help facilitate the siting of energy facilities and Govern ment facilities and energy-related ac tivities and Government activities which may be of greater than local sig nificance. (9) Adoption of procedures and poli cies to evaluate and facilitate the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00266 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 257 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.123 1 NOAA guidance is available from the Of fice of Ocean and Coastal Resource Manage ment, Coastal Programs Division, 1305 East West Highway (N/ORM3), Silver Spring, MD 20910. siting of public and private aqua culture facilities in the coastal zone, which will enable States to formulate, administer, and implement strategic plans for marine aquaculture. [57 FR 31116, July 14, 1992. Redesignated at 61 FR 33818, June 28, 1996, as amended at 62 FR 12541, Mar. 17, 1997] § 923.123 Definitions. (a) Program change means ‘‘routine program change’’ as defined in 15 CFR 923.84 and ‘‘amendment’’ as defined in 15 CFR 923.80, and includes the fol lowing: (1) A change to coastal zone bound aries that will improve a State’s abil ity to achieve one or more of the coast al zone enhancement objectives. (2) New or revised authorities, includ ing statutes, regulations, enforceable policies, administrative decisions, ex ecutive orders, and memoranda of agreement/understanding, that will im prove a State’s ability to achieve one or more of the coastal zone enhance ment objectives. (3) New or revised local coastal pro grams and implementing ordinances that will improve a State’s ability to achieve one or more of the coastal zone enhancement objectives. (4) New or revised coastal land acqui sition, management and restoration programs that improve a State’s abil ity to attain one or more of the coastal zone enhancement objectives. (5) New or revised Special Area Man agement Plans or plans for Areas of Particular Concern (APC), including enforceable policies and other nec essary implementing mechanisms or criteria and procedures for designating and managing APCs that will improve a State’s ability to achieve one or more of the coastal zone enhancement objec tives. (6) New or revised guidelines, proce dures and policy documents which are formally adopted by a State and pro vide specific interpretations of enforce able CZM policies to applicants, local governments and other agencies that will result in meaningful improve ments in coastal resource management and that will improve a State’s ability to attain one or more of the coastal zone enhancement objectives. (b) Assessment means a public docu ment, prepared by a State and ap proved by NOAA in accordance with guidance on Assessments and Strate gies issued by NOAA (hereafter referred to as the guidance 1), that identifies the State’s priority needs for improvement with regard to the coastal zone en hancement objectives. The Assessment determines the extent to which prob lems and opportunities exist with re gard to each of the coastal zone en hancement objectives and the effec tiveness of efforts to address those problems. The Assessment includes the factual basis for NOAA and the States to determine the priority needs for im provement of management programs in accordance with this part. (c) Strategy means a comprehensive, multi-year statement of goals and the methods for their attainment, prepared by a State in accordance with NOAA guidance and these regulations and ap proved by NOAA, that sets forth the specific program changes the State will seek to achieve in one or more of the coastal zone enhancement objectives. The Strategy will address only the pri ority needs for improvement identified by the Assistant Administrator, after careful consultation with the State. The strategy will include specific task descriptions, cost estimates and mile stones, as appropriate. (d) Weighted Formula Project means a project or task for which NOAA awards funding based on the criteria at § 923.125(a). Such tasks are essential to meeting the milestones and objectives of each state’s strategy. As funding for weighted formula tasks is more pre dictable than for projects of special merit, basic functions necessary to achieve the objectives of the strategy, such as hiring of full time staff should be included in weighted formula tasks. (e) Projects of Special Merit (PSM) means a project or task that NOAA will rank and evaluate based on cri teria at § 923.125(b). As PSM funds will be awarded competitively on an annual basis, these projects should further the objectives of the strategy but may not VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00267 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 258 15 CFR Ch. IX (1–1–21 Edition) § 923.124 be essential to meeting specific bench marks in the strategy. PSM projects should not be dependent on long term levels of funding to succeed. (f) Fiscal needs means the extent to which a State must rely solely on Fed eral funds to complete a project under section 309 because State funds are not otherwise available. (g) Technical needs means the extent to which a State lacks trained per sonnel or equipment or access to trained personnel or equipment to com plete a project under section 309. (h) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Manage ment, or the NOAA Official responsible for directing the Federal Coastal Zone Management Program. [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996] § 923.124 Allocation of section 309 funds. (a)(1) As required by section 309(e) of the Act, a State will not be required to contribute any portion of the cost of any proposal for which funding is awarded under this section. (2) As required by section 309(f) of the Act, beginning in fiscal year 1991, not less than 10 percent and not more than 20 percent of the amounts appropriated to implement sections 306 and 306A of the Act shall be retained by the Sec retary for use in implementing this section, up to a maximum of $10,000,000 annually. (b) The Assistant Administrator will annually determine the amount of funds to be devoted to section 309, which shall be not less than 10 percent nor more than 20 percent of the total amount appropriated under section 318(a)(2) of the Coastal Zone Manage ment Act, as amended (16 U.S.C. 1464), taking into account the total amount appropriated under section 318(a)(2). The total amount of funds to be de voted to section 309 shall not exceed $10,000,000 annually. (c) Of the total amount determined in paragraph (b) of this section, the As sistant Administrator will annually de termine the proportion to be awarded to eligible coastal States by weighted formula and the proportion to be awarded to eligible coastal States for projects of special merit. This deter mination will take into account the total amount appropriated under sec tion 318(a)(2) of the CZMA, as amended. (d) Weighted formula funding. (1)(i) A weighted formula funding target will be determined for each State that meets the eligibility requirements at § 923.121(b). The weighted formula fund ing target will be the State base alloca tion determined by the application of the formula at § 923.110(c), multiplied by a weighting factor derived from the Assistant Administrator’s evaluation and ranking of the quality of the State’s Strategy (as described in (d)(1) of this section), as supported by the State’s Assessment. (ii) The application of the weighting factor may result in a weighted for mula funding target that is higher or lower than the State’s base allocation. Each State’s weighted formula funding target will be adjusted to reflect the funds available. (iii) The Assistant Administrator may establish minimum and maximum weighted formula funding targets under § 923.124(d). (2) The Assistant Administrator will determine each State’s weighting fac tor based on an evaluation and ranking of the State’s Strategy that takes into consideration the following: (i) The scope and value of the pro posed program change(s) contained in the Strategy in terms of improved coastal resource management; (ii) The technical merits of the Strat egy in terms of project design and cost effectiveness; (iii) The likelihood of success that the State will have in attaining the proposed program change(s), including an evaluation of the State’s past per formance and support for the Strategy; and, (iv) The fiscal and technical needs of the State. (3) Each State will be notified indi vidually of its weighting factor, the reasons for assigning this weighting factor, and any changes thereto. In consultation with the Assistant Ad ministrator, a State may choose to make substantive changes to its ap proved Assessment and Strategy to im prove its weighting factor, in accord ance with the procedures at § 923.128. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00268 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 259 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.126 (e) Funding for projects of special merit. The Assistant Administrator will award the remaining section 309 funds, which are not awarded under § 923.124(d), to States based on an an nual evaluation and ranking of projects of special merit, as defined in § 923.123(d). Funding of projects of spe cial merit will be limited to the high est ranked projects based on the cri teria at § 923.125(b). (f) The Assistant Administrator will notify each State annually of the total amount of funds to be devoted to sec tion 309 pursuant to § 923.124(b), the proportion to be awarded by weighted formula pursuant to § 923.124(c), the State’s weighted formula funding tar get pursuant to § 923.124(d), and the total amount of funds available for funding for projects of special merit pursuant to § 923.124(e). [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996] § 923.125 Criteria for section 309 project selection. (a) Section 309 criteria for weighted for mula funding. (1) For those projects that will be funded by weighted for mula, the Assistant Administrator will determine that: (i) The project is consistent with the State’s approved Assessment and Strategy and advances the attainment of the objectives of the Strategy; (ii) Costs are reasonable and nec essary to achieve the objectives of both the project and the Strategy. Allow ability of costs will be determined in accordance with the provisions of OMB Circular A–87: Cost Principles for State and Local Governments (iii) The project is technically sound; (iv) The State has an effective plan to ensure proper and efficient adminis tration of the project; and (v) The State has submitted the re quired project information as specified in § 923.126(b)(1). (2) In reviewing projects that will be considered under the weighted formula, the Assistant Administrator will take into consideration the fiscal and tech nical needs of proposing States and the overall merit of each proposal in terms of benefits to the public. (b) Section 309 criteria for evaluation and ranking of projects of special merit. (1) After determining those projects that will be funded under weighted for mula funding, the Assistant Adminis trator will evaluate and rank State funding proposals of special merit which may be funded under 15 CFR 932.4(e). (2) In addition to meeting the criteria in paragraph (a)(1) of this section, pro posals will be evaluated and ranked under this subsection using the fol lowing criteria: (i) Merit. (90 points) The Assistant Administrator will review each appli cation to determine the following: (A) Degree to which the project sig nificantly advances the program im provements and leads to a program change identified in the State’s Strat egy. In making this determination, the Assistant Administrator shall consider the weighting factor derived from the evaluation of the quality of the State’s Strategy, as supported by the State’s Assessment, relative to the weighting factors assigned to other eligible States; (B) Overall benefit of the project to the public relative to the project’s cost; (C) Innovativeness of the proposal; (D) Transferability of the results to problems in other coastal States; and (E) The State’s past performance under section 309. (ii) Fiscal needs. (5 points) The Assist ant Administrator will review each ap plication to determine the ‘‘fiscal needs’’ of a State as defined in § 923.123(e). (iii) Technical needs. (5 points) The Assistant Administrator will review each application to determine the ‘‘technical needs’’ of a State as defined in § 923.123(f). (c) Section 309 funds not awarded to States under § 923.125(a) will be awarded to States under § 923.125(b). [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996] § 923.126 Pre-application procedures. (a) Pre-submission consultation. Each State is strongly encouraged to consult with the Assistant Administrator prior to the submission of its draft proposal (see § 923.126(b)) and formal application for section 309 funding. The purpose of the consultation will be to determine VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00269 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 260 15 CFR Ch. IX (1–1–21 Edition) § 923.126 whether the proposed projects are con sistent with the purposes and objec tives of section 309 and with the State’s approved Strategy, to resolve any ques tions concerning eligibility for funding under section 309 (see § 923.121(b)), and to discuss preliminarily the State’s recommendations regarding which projects should be funded by weighted formula and which projects should be individually evaluated and ranked as projects of special merit. (b) Draft proposals. States shall sub mit draft proposals for section 309 funding annually on a schedule to be determined by the Assistant Adminis trator. These draft proposals shall con tain all of the information needed for final application, including the fol lowing: (1) A clear and concise description of the projects that the State proposes to be funded under section 309. This de scription shall explain the relationship of each proposed project to the State’s approved Assessment and Strategy and how each proposed project will accom plish all or part of a program change that the State has identified in its Strategy. In addition, each project de scription shall include: (i) A specific timetable for comple tion of each project; (ii) A description of the activities that will be undertaken to complete each project and by whom; (iii) The identification of any sub awardees, pursuant to § 923.94(d)(3)(ii); and (iv) The estimated total cost for each project. (2) Section 309 funds may be used for any of the following allowable uses which support the attainment of a pro gram change: (i) Personnel costs; (ii) Supplies and overhead; (iii) Travel; (iv) Equipment (pursuant to 15 CFR part 24); (v) Projects, studies and reports; and (vi) Contractual costs including sub contracts, subawards, personal service contracts with individuals, memoranda of agreement/understanding, and other forms of passthrough funding for the purpose of carrying out the provisions of section 309. (3) Funds may not be used for land acquisition or low cost construction projects. (4) The State may recommend which projects should be funded by weighted formula under § 923.125(a) and which projects should be funded as projects of special merit under § 923.125(b). (5) The draft proposal shall contain documentation of fiscal needs and technical needs, if any. This docu mentation shall include: (i) For fiscal needs, information on the current State budget (surplus or deficit), the budget of the applying agency (increase or decrease over pre vious fiscal year), future budget projec tions, and what efforts have been made by the applying agency, if any, to se cure additional State funds from the Legislature and/or from off-budget sources such as user fees; and (ii) For technical needs, identifica tion of the technical knowledge, skills and equipment that are needed to carry out proposed projects and that are not available to the applying agency, and what efforts the applying agency has made, if any, to obtain the trained per sonnel and equipment it needs (for ex ample, through agreements with other State agencies). (6) The Assistant Administrator may request additional documentation of fiscal and technical needs. (7) Following the first year of funding under section 309, the draft proposal shall describe how the past year’s work contributed to the attainment of a pro gram change as defined in § 923.123(a) in one or more of the coastal zone en hancement objectives. (8) If the sum of estimated project costs for projects the State rec ommends be funded under § 923.125(a) exceeds the State’s weighted formula funding target pursuant to § 923.124(d), NOAA shall determine, in consultation with the State, which projects are ap propriate for funding with weighted formula funds. (c) Review of draft proposals. (1) The Assistant Administrator will make the final determination of which projects should be funded by weighted formula and which projects should be funded as projects of special merit, taking into account the State’s recommendations. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00270 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 261 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.131 (2) The Assistant Administrator may seek advice from technical experts in the fields of the coastal zone enhance ment objectives as to the technical soundness and overall merit of section 309 project proposals. (3) The Assistant Administrator will make the final determinations on project selection using the criteria at § 923.125(a) and evaluate and rank projects of special merit based on the criteria at § 923.125(b). (4) If the Assistant Administrator de termines that a State’s project pro posal(s) for weighted formula funding fails to meet the criteria at § 923.125(a), the Assistant Administrator may ei ther reduce or deny the amount avail able to the State under § 923.124(d). (5) Each state will be notified of the results of the review of draft proposals, as described in paragraphs (c) (3) and (4) of this section, in time to include approved section 309 projects in their applications for financial assistance pursuant to subpart I of 15 CFR part 923. [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996] § 923.127 Formal application for finan cial assistance and application re view and approval procedures. (a) Applications for financial assist ance under this part must be developed and submitted on the same schedule as applications for financial assistance under subpart I of 15 CFR part 923. (b) Applications for financial assist ance under this part must be in a sepa rate section of the application and must contain the information specified at § 923.126(b)(1) for each approved sec tion 309 project. (c) Applications will be reviewed for conformance with the regulations at subpart I of 15 CFR part 923. (d) States will be notified of their section 309 awards at the time they are notified of their section 306/306A awards. (e) If the Assistant Administrator seeks technical advice pursuant to § 923.126(c)(2), anonymous copies of the project reviews provided to the Assist ant Administrator on projects proposed by a State will be made available to the State upon request after October 1 of each year. [57 FR 31116, July 14, 1992. Redesignated and amended at 61 FR 33818, 33819, June 28, 1996] § 923.128 Revisions to assessments and strategies. (a) A State, in consultation with the Assistant Administrator, may propose to revise its approved Strategy. Revi sion(s) to an approved Strategy must be submitted to and approved by the Assistant Administrator prior to the initiation of the contemplated change. (b) The Assistant Administrator will review such proposed revision(s) and determine if public review and com ment is required. This determination will be based on the extent to which the proposed revision(s) changes the original scope of the State’s Strategy. (c) If the Assistant Administrator de termines that public review and com ment is necessary, he/she will notify the State of his/her determination. The State will be required to provide public review and comment in accordance with NOAA guidance. (d) A State that wants to revise sub stantively the program changes identi fied in its approved Strategy or to ad dress new enhancement objectives not identified as a priority in the original Assessment, also must revise the As sessment through a public process as described in NOAA’s guidance. (e) The Assistant Administrator, in consultation with the State, may re duce a state’s weighting factor as signed to its Strategy as a result of failure to meet the milestones in its Strategy. (f) The Assistant Administrator will notify the State of his/her decision to approve or deny the proposed revi sion(s) to the Strategy, and any change in the weighting factor assigned to its Strategy. Subpart L—Review of Performance AUTHORITY: Section 312 of the Coastal Zone Management Act, as amended (16 U.S.C. 1458). § 923.131 General. This subpart sets forth the require ments for review of approved State VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00271 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 262 15 CFR Ch. IX (1–1–21 Edition) § 923.132 coastal zone management (CZM) pro grams pursuant to section 312 of the Act (16 U.S.C. 1458). This subpart de fines ‘‘continuing review’’ and other important terms, and sets forth the procedures for: (a) Conducting continuing reviews of approved State CZM programs; (b) Providing for public participa tion; (c) Invoking interim sanctions for non-adherence to an approved coastal zone management program or a portion of such program; and (d) Withdrawing program approval and financial assistance. [57 FR 31113, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996] § 923.132 Definitions. (a) Continuing review means moni toring State performance on an ongo ing basis. As part of the continuing re view, evaluations of approved CZM pro grams will be conducted and written findings will be produced at least once every three years. (b) Adherence means to comply with the approved CZM program and finan cial assistance award or work program. (c) Interim sanction means suspension and redirection of any portion of finan cial assistance extended to any coastal State under this title, if the Secretary determines that the coastal State is failing to adhere to the management program or a State plan developed to manage a national estuarine reserve, or a portion of the program or plan ap proved by the Secretary, or the terms of any grant or cooperative agreement funded under this title. (d) Approved CZM program means those elements of the program ap proved by the Secretary, under 15 CFR part 923 (Development and Approval Provisions), including any changes to those elements made by approved amendments and routine program im plementation. (e) Financial assistance award means a legal instrument that creates a rela tionship between the Federal govern ment and another entity (recipient). The principal purpose of the award is the transfer of money or services in order to accomplish a public purpose authorized by Federal statute. The term ‘‘financial assistance award’’ en compasses grants, loans, and coopera tive agreements. The following ele ments constitute the award: (1) The work program described in the approved application; (2) The budget; (3) The standard terms and condi tions of the award; (4) Any special award conditions in cluded with the award; (5) The statutes and regulations under which the award is authorized; and (6) Applicable OMB cost principles and administrative requirements. (f) Work program means a description of the tasks to be undertaken by a State for a given time period for the purpose of implementing and enforcing an approved CZM program. The work program is submitted as a part of a Federal financial assistance applica tion, or separately in the absence of Federal financial assistance. (g) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Manage ment, or the NOAA Official responsible for directing the Federal Coastal Zone Management Program. [47 FR 21021, May 17, 1982, as amended at 57 FR 31113, July 14, 1992. Redesignated at 61 FR 33818, June 28, 1996] § 923.133 Procedure for conducting continuing reviews of approved State CZM programs. (a) As required by section 312(a), the Secretary shall conduct a continuing review of the performance of coastal States with respect to coastal manage ment. Each review shall include a writ ten evaluation with an assessment and detailed findings concerning the extent to which the State has implemented and enforced the program approved by the Secretary, addressed the coastal management needs identified in sec tion 303(2)(A) through (K), and adhered to the terms of any grant, loan, or co operative agreement funded under this title (16 U.S.C. 1451–1464). (b) Continuing review procedures. (1) Each State will submit a financial as sistance application or work program, whichever is applicable, on a timetable negotiated with the Assistant Adminis trator, describing the tasks to be un dertaken by the State for the purpose VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00272 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 263 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.133 of implementing and enforcing its ap proved CZM program. (2) For the purpose of evaluation, the States will submit performance reports as specified in the Special Award Con ditions, or, if the State is not receiving an award, as negotiated with the As sistant Administrator. The reports will address all areas identified in each State’s Performance Report Guide lines. (3) The Assistant Administrator will collect information on the State CZM programs on a continuing basis. At the beginning of each evaluation, the As sistant Administrator will analyze available information, identify infor mation gaps, and formulate any addi tional information needs that will be the subject of a supplemental informa tion request to the State. (4) The Assistant Administrator may conduct a site visit as a part of the evaluation. (5) Draft findings of the evaluation will be transmitted to the State. The State will have a minimum of two weeks from receipt of the draft find ings to review them and provide com ments to the Assistant Administrator. This review time may be extended upon request from the State. (6) Within two weeks from receipt of the draft findings, a State may request a meeting with the Assistant Adminis trator to discuss the draft findings and the State’s comments. (7) The Assistant Administrator will issue final findings to the State CZM program manager and the head of the State CZM agency within 120 days of the last public meeting in the State. Copies of the final findings will be sent to all persons and organizations who participated in the evaluation. Partici pants may be asked to complete a card or sign-in sheet provided by the evalua tion team indicating that they wish to receive the final findings. Notice of the availability of the final findings will also be published in the FEDERAL REG ISTER. (8) The final findings will contain a section entitled ‘‘Response to Written Comments.’’ This section will include a summary of all written comments re ceived during the evaluation and NOAA’s response to the comments. If appropriate, NOAA’s response will indi cate whether NOAA agrees or disagrees with the comment and how the com ment has been addressed in the final findings. (9) The Assistant Administrator may conduct issue or problem-specific eval uations between scheduled evaluations of approved State CZM programs. Such issue or problem-specific evaluations will be conducted to follow-up on po tentially serious problems or issues identified in the most recent scheduled evaluation or to evaluate evidence of potentially serious problems or issues that may arise during day-to-day mon itoring of State performance of grants tasks or other program implementa tion activities in the interim between scheduled evaluations. If the Assistant Administrator conducts an issue or problem specific evaluation, he/she will comply with the procedures and public participation requirements of §§ 923.133 and 923.134. (c) Requirements for continuing review of approved State CZM programs—(1) Scope of continuing reviews. The con tinuing review of a State’s approved CZM program will include an evalua tion of the extent to which the State has: (i) Implemented and enforced the program approved by the Secretary; (ii) Addressed the coastal manage ment needs identified in section 303(2) (A)–(K) (16 U.S.C. 1452); and (iii) Adhered to the terms of financial assistance awards. (2) Procedure for assessing adherence to the approved CZM program. (i) In re viewing adherence of a State to its ap proved CZM program, the Assistant Administrator will evaluate all aspects of the ‘‘approved CZM program’’ as de fined in § 923.132(d). The evaluation will examine the extent to which: (A) The State is implementing and enforcing its approved CZM program; (B) The management agency is effec tively playing a leadership role in coastal issues, monitoring the actions of appropriate State and local agencies for compliance with the approved CZM program, and assuring the opportunity for full participation of all interested entities in CZM program implementa tion; and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00273 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 264 15 CFR Ch. IX (1–1–21 Edition) § 923.134 (C) The management agency is effec tively carrying out the provisions of Federal consistency. (ii) The findings concerning the State’s adherence to its approved CZM program will be used in negotiating the next financial assistance award or work program, whichever is applicable. (3) Procedure for assessing how the State has addressed the coastal man agement needs identified in section 303(2) (A)–(K). The assessment of the extent to which the State has ad dressed the coastal management needs identified in section 303(2) (A)–(K) will occur as follows: (i) The State, in its performance re port, will provide the Assistant Admin istrator with a listing of all actions it is taking during the performance re port period to address the national coastal management needs and how these actions relate to conditions in the State and the objectives and prior ities in the State CZM program. (ii) The Assistant Administrator, in the evaluation findings, will assess the extent to which the State’s actions are targeted to meeting identified ‘‘needs’’ and the effectiveness of the actions in addressing those needs. Based on this assessment, the Assistant Adminis trator will make findings and rec ommendations of the extent to which each State is addressing the coastal management needs identified in sec tion 303. (iii) The findings concerning how the State has addressed the coastal man agement needs of section 303 will be used by the Assistant Administrator in negotiating the next financial assist ance award. (4) Procedure for assessing adherence to the terms of financial assistance awards. (i) Adherence to financial and adminis trative terms of each financial assist ance award will be determined by the NOAA Grants Office and the Depart ment of Commerce Inspector General. Adherence to programmatic terms of each financial assistance award will be determined by the Assistant Adminis trator and the NOAA Grants Office. These determinations will be made in accordance with the requirements out lined in these regulations, the findings of a financial audit of the award, and the following criteria: (A) Compliance with the statute, reg ulations, and applicable OMB circulars; (B) Submission of required reports and satisfactory completion of work products as described in the approved application and within the timeframe specified; (C) Compliance with Standard Terms and Conditions and Special Award Con ditions within the specified time frames; (D) Use of award funds only for ap proved projects; and (E) Substantive modification of ap proved projects only with the prior agreement of NOAA. (ii) The findings concerning adher ence to the terms of financial assist ance awards will be used in negotiating the next financial assistance award, if any. (d) Requirements for continuing review of State coastal energy impact programs— (1) Scope of continuing reviews. The con tinuing review of State coastal energy impact programs will include the fol lowing elements: (i) An evaluation of the State’s ad herence to the terms of financial as sistance awards; (ii) An evaluation of the relationship between coastal energy impact projects and the approved CZM program; (iii) A description of energy activi ties in coastal areas and the impact re sulting from these activities; and (iv) An evaluation of the effective ness of the coastal energy impact pro gram in dealing with these con sequences. (2) Procedure for assessing adherence to the terms of financial assistance awards. See § 923.133(c)(4). [47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996] § 923.134 Public participation. (a) As required by section 312(b) of the Act, in evaluating a coastal State’s performance, the Secretary shall con duct the evaluation in an open and public manner, and provide full oppor tunity for public participation, includ ing holding public meetings in the State being evaluated and providing opportunities for the submission of written and oral comments by the pub lic. The Secretary shall provide the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00274 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 265 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.135 public with at least 45 days notice of such public meetings by placing a no tice in the FEDERAL REGISTER, by pub lication of timely notices in news papers of general circulation within the State being evaluated, and by com munications with persons and organi zations known to be interested in the evaluation. Each evaluation shall be prepared in report form and shall in clude written responses to the written comments received during the evalua tion process. (b) Requirements. (1) The Assistant Administrator will publish a Notice of Intent to Evaluate in the FEDERAL REGISTER at least 45 days before the public meeting(s). The notice will in clude a Statement of the availability of the State’s performance report and the supplemental information request. (2) Each State will issue a notice of the public meeting(s) in its evaluation by placing a notice in the newspaper(s) of largest circulation in the coastal area where the meeting(s) is being held and by taking other reasonable action to communicate with persons and orga nizations known to be interested in the evaluation, such as sending a notice of the meeting(s) to persons on its mail ing list and publishing a notice in its newsletter, at least 45 days before the date of the public meeting(s). The State will provide a copy of such notice to the Assistant Administrator. States are encouraged to republish the news paper notice at least 15 days before the date of the public meeting(s). The State will inform the public that oral or written comments will be accepted and that attendance at the public meeting(s) is not necessary for submis sion of written comments. (3) Notice of the availability of final findings will be published in the FED ERAL REGISTER. The notice will state that copies of the final findings will be available to the public upon written re quest. Copies of the final findings will be sent to persons and organizations who participated in the evaluation, in accordance with 923.133(b)(7). [47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996] § 923.135 Enforcement. (a) Procedures and criteria for invoking and lifting interim sanctions. (1) As re quired by section 312(c) of the Act: (i) The Secretary may suspend pay ment of any portion of financial assist ance extended to any coastal State, and may withdraw any unexpended portion of such assistance, if the Sec retary determines that the coastal State is failing to adhere to— (A) The management program or a State plan developed to manage a na tional estuarine reserve established under section 315 of the Act (16 U.S.C. 1461), or a portion of the program or plan approved by the Secretary; or (B) The terms of any grant or cooper ative agreement funded under this title (16 U.S.C. 1451–1464). (ii) Financial assistance may not be suspended under paragraph (a)(1)(i) of this section unless the Secretary pro vides the Governor of the coastal State with— (A) Written specifications and a schedule for the actions that should be taken by the State in order that such suspension of financial assistance may be withdrawn; and (B) Written specifications stating how those funds from the suspended fi nancial assistance shall be expended by the coastal State to take the actions referred to in paragraph (a)(1)(ii)(A) of this section. (iii) The suspension of financial as sistance may not last for less than 6 months or more than 36 months after the date of suspension. (2) Requirements. (i) The Assistant Ad ministrator will identify the need for interim sanctions through the con tinuing review process. The Assistant Administrator will use the criteria at § 923.135(a)(3) in determining when to invoke interim sanctions. (ii) The Assistant Administrator will issue the State a preliminary finding of non-adherence with the approved CZM program, or a portion thereof, and/or with a term or terms of a grant or co operative agreement. This preliminary finding of non-adherence may be con tained in the draft evaluation findings, or in a preliminary notification letter to the State CZM program manager. If the preliminary finding is contained in a preliminary notification letter, the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00275 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 266 15 CFR Ch. IX (1–1–21 Edition) § 923.135 Assistant Administrator will comply with the applicable public participa tion requirements of section 312(b) and NOAA’s regulations at § 923.134. The draft evaluation findings or prelimi nary notification letter containing a preliminary finding of non-adherence will explain that if the finding of non adherence is issued, the State is sub ject to suspension of financial assist ance and, if the State fails to take the actions specified pursuant to section 312(c) and this part, to withdrawal of program approval and financial assist ance. (iii) The State will be given 30 days from receipt of the draft evaluation findings or preliminary notification letter to comment on and rebut the preliminary finding of non-adherence. During this 30-day period, the State may request up to 15 additional days to respond, for a maximum of 45 days from receipt of the draft evaluation findings or preliminary notification letter. (iv) After considering the State’s comments, the Assistant Adminis trator will decide whether or not to issue a final finding of non-adherence. If the Assistant Administrator decides to issue a final finding of non-adher ence, he/she will do so in the final eval uation findings issued pursuant to sec tion 312(b) or in a final notification let ter as provided by paragraph (a)(2)(ii) of this section. The Assistant Adminis trator may invoke interim sanctions provided by section 312(c) immediately or at any time after issuing the final evaluation findings or final notifica tion letter containing the finding of non-adherence, but not later than the next regularly scheduled evaluation. (v) If the Assistant Administrator de cides to invoke interim sanctions, he/ she will do so by sending the final eval uation findings or final notification letter to the Governor of the State and the State CZM program manager. The final evaluation findings or final notifi cation letter will contain the informa tion required in section 312(c)(2) (A) and (B). This information will include the amount of financial assistance to be suspended and redirected, the ac tions the State should take in order to have the suspension withdrawn, how the suspended funds shall be expended to take the required actions, and a schedule for taking the required ac tions. The final evaluation findings or final notification letter will also con tain the length of the suspension, which may not last for less than 6 months or more than 36 months. The Assistant Administrator will establish the length of the suspension based on the amount of time that is reasonably necessary for the State to take the re quired actions. If the State can take the required actions faster than ex pected, the suspension can be with drawn early (but not in less than six months). (vi) The State must respond to the final evaluation findings or final notifi cation letter by developing a proposed work program to accomplish the re quired actions on the schedule set forth in the final evaluation findings or final notification letter. The State may pro pose an alternative approach to accom plishing the required actions and/or an alternative schedule. The Assistant Ad ministrator’s approval of the State’s work program will signify his/her agreement with the approach and schedule for accomplishing the actions necessary to withdraw the suspension. (vii) The Assistant Administrator will monitor State performance under the work program. This may involve additional direction to the State through the grant administration proc ess and/or a visit to the State by appro priate NOAA program staff, evaluation staff and/or other experts to work with the State on a specific problem or issue. The Assistant Administrator will consider proposals to revise the work program on a case-by-case basis, pro viding that the State will still be able to accomplish the necessary actions within a maximum of 36 months. (viii) The State must document that it has taken the required actions on the schedule established under this sec tion. The State must provide its docu mentation in writing to the Assistant Administrator. The Assistant Adminis trator may conduct a follow-up evalua tion or otherwise revisit the State at his/her discretion. (ix) If the Assistant Administrator determines that the required actions VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00276 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 267 Nat’l Oceanic and Atmospheric Adm., Commerce § 923.135 have been taken, the Assistant Admin istrator will promptly notify the Gov ernor and the State program manager, in writing, that NOAA has withdrawn the suspension of financial assistance. If, however, the State does not take the required actions, then the Assist ant Administrator will invoke the final sanction provisions of section 312(d) on program termination and withdrawal of all financial assistance. (3) Criteria for invoking interim sanc tions. (i) The Assistant Administrator may consider the following indicators of non-adherence to an approved State CZM program in determining whether to invoke interim sanctions. (A) Ineffective or inconsistent imple mentation of legally enforceable policies included in the CZM program. Indicators of ineffective or inconsistent imple mentation could include: evidence of non-compliance with core authorities by the regulated community; insuffi cient monitoring and inspecting of coastal development to ensure that it conforms to program requirements and applicable conditions; or inadequate enforcement action when development is found not to be in compliance with the program or permit under which it is authorized or is found to be an unpermitted activity. In applying this indicator, NOAA will consider any available evidence of the impacts of in effective or inconsistent implementa tion on coastal resources. (B) Inadequate monitoring of the ac tions of State and local agencies for com pliance with the program. Indicators of inadequate monitoring of these agen cies could include: evidence of non compliance of networked agencies with the CZM program, unresolved conflicts between agencies regarding what con stitutes compliance with the program, or lack of a mechanism to ensure that all State agencies will adhere to the program or to approved local coastal programs pursuant to NOAA’s regula tions at 15 CFR 923.40 (and pursuant to new section 306(d)(15), after November 5, 1993 and after states have been given reasonable opportunity to comply with NOAA’s implementing guidance). (C) Non-compliance of local coastal pro grams with the approved State program. Indicators of non-compliance could in clude: Local permitting or zoning deci sions that are inconsistent with State standards or criteria, widespread granting of variances such as to render a zoning program ineffective in meet ing State standards or criteria, changes to local comprehensive plans or zoning maps that are inconsistent with State standards or criteria, or in adequate monitoring and enforcement, as described in paragraph (a)(3)(i)(A) of this section. (D) Ineffective implementation of Fed eral consistency authority. Indicators of ineffective implementation could in clude: Not reviewing Federal activities, Federal licenses and permits, including offshore oil and gas exploration and de velopment, and Federal financial as sistance to State and local govern ments for consistency with the ap proved CZM program or employing re view procedures that are not in accord ance with State and NOAA regulations. (E) Inadequate opportunity for inter governmental cooperation and public par ticipation in management program imple mentation. Indicators of inadequate op portunity could include: not carrying out procedures necessary to insure ade quate consideration of the national in terest in facilities which are necessary to meet requirements which are other than local in nature, not implementing effectively mechanisms for continuing consultation and coordination, not pro viding required notice that a manage ment program decision would conflict with a local zoning ordinance, decision or other action pursuant to section 306(d)(3)(B)(i) and 15 CFR 923.57, or not providing opportunities for public par ticipation in permitting processes, con sistency determinations and other similar decisions pursuant to new sec tion 306(d)(14) after November 5, 1993 and after states have been given rea sonable opportunity to comply with NOAA’s implementing guidance. (F) Non-adherence to the terms of a grant or cooperative agreement, including the schedule for funded activities. The Assistant Administrator will also con sider the extent to which priorities for expenditure of Federal funds reflect an appropriate priority for activities nec essary to implement and enforce core program authorities effectively. (G) Not submitting changes to the approved program for Federal approval VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00277 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 268 15 CFR Ch. IX (1–1–21 Edition) § 923.135 on a schedule developed pursuant to 15 CFR 923.81(a) and 923.84(b)(1)(i) or de veloping and implementing changes to the approved program without Federal approval which are inconsistent with the Act or the approved program or which result in a reduced level of pro tection of coastal resources. (ii) The Assistant Administrator may consider whether an indication of non adherence is of recent origin (in which case the State may be given a reason able opportunity to correct it) or has been repeatedly brought to the State’s attention without corrective action in determining whether to invoke interim sanctions. (b) Withdrawal of program approval and financial assistance. (1) As required by sections 312(d) and 312(e) of the Act: (i) The Secretary shall withdraw ap proval of the management program of any coastal State and shall withdraw financial assistance available to that State under this title as well as any unexpended portion of such assistance, if the Secretary determines that the coastal State has failed to take the ac tions referred to in paragraph (a)(1)(ii)(A) of this section. (ii) Management program approval and financial assistance may not be withdrawn under paragraph (b)(1)(i) of this section, unless the Secretary gives the coastal State notice of the pro posed withdrawal and an opportunity for a public hearing on the proposed ac tion. Upon the withdrawal of manage ment program approval under para graph (b)(1)(i) of this section, the Sec retary shall provide the coastal State with written specifications of the ac tions that should be taken, or not en gaged in, by the State in order that such withdrawal may be canceled by the Secretary. (2) Requirements. (i) If the Assistant Administrator determines that the State has not taken the actions re quired in § 923.135(a)(2), the Assistant Administrator will provide the Gov ernor and the State CZM program man ager with written notice of this finding and NOAA’s obligation to withdraw program approval and financial assist ance under this title. The State will be given 30 days from receipt of this no tice to respond with evidence that it has taken the actions specified pursu ant to § 923.135(a)(2). During this 30-day period, the State may request up to 30 additional days to respond, for a max imum of 60 days from receipt of notice. (ii) If the State does not respond sat isfactorily within the time allowed, the agency will notify the State of intent to take the proposed action. This no tice will be published in the FEDERAL REGISTER and will inform the State of its right to a public hearing. (iii) If the State does not request a public hearing or submit satisfactory evidence that it has taken the actions specified pursuant to § 923.135(a)(2) within 30 days of publication of this no tice, and the Assistant Administrator determines that the State has failed to take the actions specified pursuant to § 923.135(a)(2), the Assistant Adminis trator will withdraw program approval and financial assistance and will notify the State in writing of the decision and the reasons for it. The notification will set forth actions that must be taken by the State which would cause the As sistant Administrator to cancel the withdrawal. (iv) If the State requests a public hearing within 30 days of publication of the notice of intent to withdraw pro gram approval and financial assistance, the Assistant Administrator will pub lish 30 days advance notice of the hear ing in the FEDERAL REGISTER and the newspaper(s) of largest circulation in the State’s coastal zone. The hearing will be held in a location convenient to the citizens of the State’s coastal zone and a record of the hearing will be maintained. Within 30 days of the com pletion of the hearing, the agency will make the determination as set forth in paragraph (b)(2)(iii) of this section. (3) If program approval and financial assistance are withdrawn pursuant to this section, a notice will be placed in the FEDERAL REGISTER and Federal consistency under section 307 of the Act will cease to apply to the State’s CZM program. [47 FR 21021, May 17, 1982, as amended at 57 FR 31114, July 14, 1992. Redesignated and amended at 61 FR 33818, June 28, 1996] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00278 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 269 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 930 PART 930—FEDERAL CONSISTENCY WITH APPROVED COASTAL MAN AGEMENT PROGRAMS Subpart A—General Information Sec. 930.1 Overall objectives. 930.2 Public participation. 930.3 Review of the implementation of the federal consistency requirement. 930.4 Conditional concurrences. 930.5 State enforcement action. 930.6 State agency responsibility. Subpart B—General Definitions 930.10 Index to definitions for terms defined in part 930. 930.11 Definitions. Subpart C—Consistency for Federal Agency Activities 930.30 Objectives. 930.31 Federal agency activity. 930.32 Consistent to the maximum extent practicable. 930.33 Identifying Federal agency activities affecting any coastal use or resource. 930.34 Federal and State agency coordina tion. 930.35 Negative determinations for proposed activities. 930.36 Consistency determinations for pro posed activities. 930.37 Consistency determinations and Na tional Environmental Policy Act (NEPA) requirements. 930.38 Consistency determinations for ac tivities initiated prior to management program approval. 930.39 Content of a consistency determina tion. 930.40 Multiple Federal agency participa tion. 930.41 State agency response. 930.42 Public participation. 930.43 State agency objection. 930.44 Availability of mediation for disputes concerning proposed activities. 930.45 Availability of mediation for pre viously reviewed activities. 930.46 Supplemental coordination for pro posed activities. Subpart D—Consistency for Activities Requiring a Federal License or Permit 930.50 Objectives. 930.51 Federal license or permit. 930.52 Applicant. 930.53 Listed federal license or permit ac tivities. 930.54 Unlisted federal license or permit ac tivities. 930.55 Availability of mediation for license or permit disputes. 930.56 State agency guidance and assistance to applicants. 930.57 Consistency certifications. 930.58 Necessary data and information. 930.59 Multiple permit review. 930.60 Commencement of State agency re view. 930.61 Public participation. 930.62 State agency concurrence with a con sistency certification. 930.63 State agency objection to a consist ency certification. 930.64 Federal permitting agency responsi bility. 930.65 Remedial action for previously re viewed activities. 930.66 Supplemental coordination for pro posed activities. Subpart E—Consistency for Outer Conti nental Shelf (OCS) Exploration, Devel opment and Production Activities 930.70 Objectives. 930.71 Federal license or permit activity de scribed in detail. 930.72 Person. 930.73 OCS plan. 930.74 OCS activities subject to State agen cy review. 930.75 State agency assistance to persons. 930.76 Submission of an OCS plan, necessary data and information and consistency certification. 930.77 Commencement of State agency re view and public notice. 930.78 State agency concurrence or objec tion. 930.79 Effect of State agency concurrence. 930.80 Federal permitting agency responsi bility. 930.81 Multiple permit review. 930.82 Amended OCS plans. 930.83 Review of amended OCS plans; public notice. 930.84 Continuing State agency objections. 930.85 Failure to substantially comply with an approved OCS plan. Subpart F—Consistency for Federal Assist ance to State and Local Governments 930.90 Objectives. 930.91 Federal assistance. 930.92 Applicant agency. 930.93 Intergovernmental review process. 930.94 State review process for consistency. 930.95 Guidance provided by the State agen cy. 930.96 Consistency review. 930.97 Federal assisting agency responsi bility. 930.98 Federally assisted activities outside of the coastal zone or the described geo graphic area. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00279 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 270 15 CFR Ch. IX (1–1–21 Edition) § 930.1 930.99 Availability of mediation for federal assistance disputes. 930.100 Remedial action for previously re viewed activities. 930.101 Supplemental coordination for pro posed activities. Subpart G—Secretarial Mediation 930.110 Objectives. 930.111 OCRM mediation. 930.112 Request for Secretarial mediation. 930.113 Public hearings. 930.114 Secretarial mediation efforts. 930.115 Termination of mediation. 930.116 Judicial review. Subpart H—Appeal to the Secretary for Re view Related to the Objectives of the Act and National Security Interests 930.120 Objectives. 930.121 Consistent with the objectives or purposes of the Act. 930.122 Necessary in the interest of national security. 930.123 Definitions. 930.124 Computation of time. 930.125 Notice of appeal and application fee to the Secretary. 930.126 Consistency appeal processing fees. 930.127 Briefs and supporting materials. 930.128 Public notice, comment period, and public hearing. 930.129 Dismissal, remand, stay, and proce dural override. 930.130 Closure of the decision record and issuance of decision. 930.131 Review initiated by the Secretary. Subpart I—Consistency of Federal Activities Having Interstate Coastal Effects 930.150 Objectives. 930.151 Interstate coastal effect. 930.152 Application. 930.153 Coordination between States in de veloping coastal management policies. 930.154 Listing activities subject to routine interstate consistency review. 930.155 Federal and State agency coordina tion. 930.156 Content of a consistency determina tion or certification and State agency re sponse. 930.157 Mediation and informal negotia tions. AUTHORITY: 16 U.S.C. 1451 et seq. SOURCE: 65 FR 77154, Dec. 8, 2000, unless otherwise noted. Subpart A—General Information § 930.1 Overall objectives. The objectives of this part are: (a) To describe the obligations of all parties who are required to comply with the federal consistency require ment of the Coastal Zone Management Act; (b) To implement the federal consist ency requirement in a manner which strikes a balance between the need to ensure consistency for federal actions affecting any coastal use or resource with the enforceable policies of ap proved management programs and the importance of federal activities (the term ‘‘federal action’’ includes all types of activities subject to the fed eral consistency requirement under subparts C, D, E, F and I of this part.); (c) To provide flexible procedures which foster intergovernmental co operation and minimize duplicative ef fort and unnecessary delay, while mak ing certain that the objectives of the federal consistency requirement of the Act are satisfied. Federal agencies, State agencies, and applicants should coordinate as early as possible in de veloping a proposed federal action, and may mutually agree to intergovern mental coordination efforts to meet the requirements of these regulations, provided that public participation re quirements are met and applicable State management program enforce able policies are considered. State agencies should participate in the ad ministrative processes of federal agen cies concerning federal actions that may be subject to state review under subparts C, D, E, F and I of this part. (d) To interpret significant terms in the Act and this part; (e) To provide procedures to make certain that all Federal agency and State agency consistency decisions are directly related to the enforceable poli cies of approved management pro grams; (f) To provide procedures which the Secretary, in cooperation with the Ex ecutive Office of the President, may use to mediate serious disagreements which arise between Federal and State agencies during the administration of approved management programs; and (g) To provide procedures which per mit the Secretary to review federal li cense or permit activities, or federal assistance activities, to determine whether they are consistent with the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00280 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 271 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.5 objectives or purposes of the Act, or are necessary in the interest of na tional security. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006] § 930.2 Public participation. State management programs shall provide an opportunity for public par ticipation in the State agency’s review of a Federal agency’s consistency de termination or an applicant’s or per son’s consistency certification. § 930.3 Review of the implementation of the federal consistency require ment. As part of the responsibility to con duct a continuing review of approved management programs, the Director of the Office of Ocean and Coastal Re source Management (Director) shall re view the performance of each State’s implementation of the federal consist ency requirement. The Director shall evaluate instances where a State agen cy is believed to have either failed to object to inconsistent federal actions, or improperly objected to consistent federal actions. This evaluation shall be incorporated within the Director’s general efforts to ascertain instances where a State has not adhered to its approved management program and such lack of adherence is not justified. § 930.4 Conditional concurrences (a) Federal agencies, applicants, per sons and applicant agencies should co operate with State agencies to develop conditions that, if agreed to during the State agency’s consistency review pe riod and included in a Federal agency’s final decision under subpart C or in a Federal agency’s approval under sub parts D, E, F or I of this part, would allow the State agency to concur with the federal action. If instead a State agency issues a conditional concur rence: (1) The State agency shall include in its concurrence letter the conditions which must be satisfied, an explanation of why the conditions are necessary to ensure consistency with specific en forceable policies of the management program, and an identification of the specific enforceable policies. The State agency’s concurrence letter shall also inform the parties that if the require ments of paragraphs (a)(1) through (3) of the section are not met, then all par ties shall treat the State agency’s con ditional concurrence letter as an objec tion pursuant to the applicable subpart and notify, pursuant to § 930.63(e), ap plicants, persons and applicant agen cies of the opportunity to appeal the State agency’s objection to the Sec retary of Commerce within 30 days after receipt of the State agency’s con ditional concurrence/objection or 30 days after receiving notice from the Federal agency that the application will not be approved as amended by the State agency’s conditions; and (2) The Federal agency (for subpart C), applicant (for subparts D and I), person (for subpart E) or applicant agency (for subpart F) shall modify the applicable plan, project proposal, or ap plication to the Federal agency pursu ant to the State agency’s conditions. The Federal agency, applicant, person or applicant agency shall immediately notify the State agency if the State agency’s conditions are not acceptable; and (3) The Federal agency (for subparts D, E, F and I) shall approve the amend ed application (with the State agency’s conditions). The Federal agency shall immediately notify the State agency and applicant or applicant agency if the Federal agency will not approve the application as amended by the State agency’s conditions. (b) If the requirements of paragraphs (a)(1) through (3) of this section are not met, then all parties shall treat the State agency’s conditional concurrence as an objection pursuant to the appli cable subpart. § 930.5 State enforcement action. The regulations in this part are not intended in any way to alter or limit other legal remedies, including judicial review or State enforcement, otherwise available. State agencies and Federal agencies should first use the various remedial action and mediation sections of this part to resolve their differences or to enforce State agency concur rences or objections. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00281 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 272 15 CFR Ch. IX (1–1–21 Edition) § 930.6 § 930.6 State agency responsibility. (a) This section describes the respon sibilities of the ‘‘State agency’’ de scribed in § 930.11(o). A designated State agency is required to uniformly and comprehensively apply the en forceable policies of the State’s man agement program, efficiently coordi nate all State coastal management re quirements, and to provide a single point of contact for Federal agencies and the public to discuss consistency issues. Any appointment by the State agency of the State’s consistency re sponsibilities to a designee agency must be described in the State’s man agement program. In the absence of such description, all consistency deter minations, consistency certifications and federal assistance proposals shall be sent to and reviewed by the State agency. A State may have two State agencies designated pursuant to § 306(d)(6) of the Act where the State has two geographically separate feder ally-approved management programs. (b) The State agency is responsible for commenting on and concurring with or objecting to Federal agency consistency determinations and nega tive determinations (see subpart C of this part), consistency certifications for federal licenses, permits, and Outer Continental Shelf plans (see subparts D, E and I of this part), and reviewing the consistency of federal assistance activities proposed by applicant agen cies (see subpart F of this part). The State agency shall be responsible for securing necessary review and com ment from other State, regional, or local government agencies, and, where applicable, the public. Thereafter, only the State agency is authorized to com ment officially on or concur with or ob ject to a federal consistency deter mination or negative determination, a consistency certification, or determine the consistency of a proposed federal assistance activity. (c) If described in a State’s manage ment program, the issuance or denial of relevant State permits can con stitute the State agency’s consistency concurrence or objection if the State agency ensures that the State permit ting agencies or the State agency re view individual projects to ensure con sistency with all applicable State man agement program policies and that ap plicable public participation require ments are met. The State agency shall monitor such permits issued by an other State agency. Subpart B—General Definitions § 930.10 Index to definitions for terms defined in part 930. Term Section Act .................................................................. 930.11(a) Any coastal use or resource ......................... 930.11(b) Appellant ........................................................ 930.123 Applicant ........................................................ 930.52 Applicant agency ........................................... 930.92 Assistant Administrator .................................. 930.11(c) Associated facilities ....................................... 930.11(d) Coastal zone .................................................. 930.11(e) Consistent to the maximum extent prac ticable. 930.32 Consistent with the objectives or purposes of the Act. 930.121 Development project ...................................... 930.31(b) Director .......................................................... 930.11(f) Effect on any coastal use or resource .......... 930.11(g) Enforceable policy ......................................... 930.11(h) Executive Office of the President .................. 930.11(i) Failure substantially to comply with an OCS plan. 930.85(c) Federal agency .............................................. 930.11(j) Federal agency activity .................................. 930.31 Federal assistance ........................................ 930.91 Federal license or permit ............................... 930.51 Federal license or permit activity described in detail. 930.71 Interstate coastal effect ................................. 930.151 Major amendment .......................................... 930.51(c) Management program ................................... 930.11(k) Necessary in the interest of national security 930.122 OCS plan ....................................................... 930.73 OCRM ............................................................ 930.11(l) Person ........................................................... 930.72 Secretary ....................................................... 930.11(m) Section ........................................................... 930.11(n) State agency .................................................. 930.11(o) [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006] § 930.11 Definitions. (a) Act. The term ‘‘Act’’ means the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451–1464). (b) Any coastal use or resource. The phrase ‘‘any coastal use or resource’’ means any land or water use or natural resource of the coastal zone. Land and water uses, or coastal uses, are defined in sections 304(10) and (18) of the act, respectively, and include, but are not limited to, public access, recreation, fishing, historic or cultural preserva tion, development, hazards manage ment, marinas and floodplain manage ment, scenic and aesthetic enjoyment, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00282 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 273 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.11 and resource creation or restoration projects. Natural resources include bio logical or physical resources that are found within a State’s coastal zone on a regular or cyclical basis. Biological and physical resources include, but are not limited to, air, tidal and nontidal wetlands, ocean waters, estuaries, riv ers, streams, lakes, aquifers, sub merged aquatic vegetation, land, plants, trees, minerals, fish, shellfish, invertebrates, amphibians, birds, mam mals, reptiles, and coastal resources of national significance. Coastal uses and resources also includes uses and re sources appropriately described in a management program. (c) Assistant Administrator. The term ‘‘Assistant Administrator’’ means the Assistant Administrator for Ocean Services and Coastal Zone Manage ment, NOAA. (d) Associated facilities. The term ‘‘as sociated facilities’’ means all proposed facilities which are specifically de signed, located, constructed, operated, adapted, or otherwise used, in full or in major part, to meet the needs of a fed eral action (e.g., activity, development project, license, permit, or assistance), and without which the federal action, as proposed, could not be conducted. The proponent of a federal action shall consider whether the federal action and its associated facilities affect any coastal use or resource and, if so, whether these interrelated activities satisfy the requirements of the applica ble subpart (subparts C, D, E, F or I). (e) Coastal Zone. The term ‘‘coastal zone’’ has the same definition as pro vided in § 304(1) of the Act. (f) Director. The term ‘‘Director’’ means the Director of the Office of Ocean and Coastal Resource Manage ment (OCRM), National Ocean Service, NOAA. (g) Effect on any coastal use or resource (coastal effect). The term ‘‘effect on any coastal use or resource’’ means any reasonably foreseeable effect on any coastal use or resource resulting from a Federal agency activity or federal li cense or permit activity (including all types of activities subject to the fed eral consistency requirement under subparts C, D, E, F and I of this part.) Effects are not just environmental ef fects, but include effects on coastal uses. Effects include both direct effects which result from the activity and occur at the same time and place as the activity, and indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects are effects resulting from the incremental impact of the federal ac tion when added to other past, present, and reasonably foreseeable actions, re gardless of what person(s) undertake(s) such actions. (h) Enforceable policy. ‘‘The term ‘‘enforceable policy’’ means State poli cies which are legally binding through constitutional provisions, laws, regula tions, land use plans, ordinances, or ju dicial or administrative decisions, by which a State exerts control over pri vate and public land and water uses and natural resources in the coastal zone,’’ 16 U.S.C. 1453(6a), and which are incorporated in a management pro gram as approved by OCRM either as part of program approval or as a pro gram change under 15 CFR part 923, subpart H. An enforceable policy shall contain standards of sufficient speci ficity to guide public and private uses. Enforceable policies need not establish detailed criteria such that a proponent of an activity could determine the con sistency of an activity without inter action with the State agency. State agencies may identify management measures which are based on enforce able policies, and, if implemented, would allow the activity to be con ducted consistent with the enforceable policies of the program. A State agen cy, however, must base its objection on enforceable policies. (i) Executive Office of the President. The term ‘‘Executive Office of the President’’ means the office, council, board, or other entity within the Exec utive Office of the President which shall participate with the Secretary in seeking to mediate serious disagree ments which may arise between a Fed eral agency and a coastal State. (j) Federal agency. The term ‘‘Federal agency’’ means any department, agen cy, board, commission, council, inde pendent office or similar entity within the executive branch of the federal VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00283 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 274 15 CFR Ch. IX (1–1–21 Edition) § 930.30 government, or any wholly owned fed eral government corporation. (k) Management program. The term ‘‘management program’’ has the same definition as provided in section 304(12) of the Act, except that for the purposes of this part the term is limited to those management programs adopted by a coastal State in accordance with the provisions of section 306 of the Act, and approved by the Assistant Adminis trator. (l) OCRM. The term ‘‘OCRM’’ means the Office of Ocean and Coastal Re source Management, National Ocean Service, National Oceanic and Atmos pheric Administration (‘‘NOAA’’), U.S. Department of Commerce. (m) Secretary. The term ‘‘Secretary’’ means the Secretary of Commerce and/ or designee. (n) Section. The term ‘‘Section’’ means a section of the Coastal Zone Management Act of 1972, as amended. (o) State agency. The term ‘‘State agency’’ means the agency of the State government designated pursuant to section 306(d)(6) of the Act to receive and administer grants for an approved management program, or a single des ignee State agency appointed by the 306(d)(6) State agency. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006] Subpart C—Consistency for Federal Agency Activities § 930.30 Objectives. The provisions of this subpart are in tended to assure that all Federal agen cy activities including development projects affecting any coastal use or re source will be undertaken in a manner consistent to the maximum extent practicable with the enforceable poli cies of approved management pro grams. The provisions of subpart I of this part are intended to supplement the provisions of this subpart for Fed eral agency activities having inter state coastal effects. § 930.31 Federal agency activity. (a) The term ‘‘Federal agency activ ity’’ means any functions performed by or on behalf of a Federal agency in the exercise of its statutory responsibil ities. The term ‘‘Federal agency activ ity’’ includes a range of activities where a Federal agency makes a pro posal for action initiating an activity or series of activities when coastal ef fects are reasonably foreseeable, e.g., a Federal agency’s proposal to physically alter coastal resources, a plan that is used to direct future agency actions, a proposed rulemaking that alters uses of the coastal zone. ‘‘Federal agency activity’’ does not include the issuance of a federal license or permit to an ap plicant or person (see subparts D and E of this part) or the granting of federal assistance to an applicant agency (see subpart F of this part). (b) The term federal ‘‘development project’’ means a Federal agency activ ity involving the planning, construc tion, modification, or removal of public works, facilities, or other structures, and includes the acquisition, use, or disposal of any coastal use or resource. (c) The Federal agency activity cat egory is a residual category for federal actions that are not covered under sub parts D, E, or F of this part. (d) A general permit proposed by a Federal agency is subject to this sub part if the general permit does not in volve case-by-case or individual issuance of a license or permit by a Federal agency. When proposing a gen eral permit, a Federal agency shall provide a consistency determination to the relevant management programs and request that the State agency(ies) provide the Federal agency with re view, and if necessary, conditions, based on specific enforceable policies, that would permit the State agency to concur with the Federal agency’s con sistency determination. State agency concurrence shall remove the need for the State agency to review individual uses of the general permit for consist ency with the enforceable policies of management programs. Federal agen cies shall, pursuant to the consistent to the maximum extent practicable standard in § 930.32, incorporate State conditions into the general permit. If the State agency’s conditions are not incorporated into the general permit or a State agency objects to the general permit, then the Federal agency shall notify potential users of the general permit that the general permit is not VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00284 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 275 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.32 available for use in that State unless an applicant under subpart D of this part or a person under subpart E of this part, who wants to use the general per mit in that State provides the State agency with a consistency certification under subpart D of this part and the State agency concurs. When subpart D or E of this part applies, all provisions of the relevant subpart apply. (e) The terms ‘‘Federal agency activ ity’’ and ‘‘Federal development project’’ also include modifications of any such activity or development project which affect any coastal use or resource, provided that, in the case of modifications of an activity or develop ment project which the State agency has previously reviewed, the effect on any coastal use or resource is substan tially different than those previously reviewed by the State agency. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 826, Jan. 5, 2006] § 930.32 Consistent to the maximum extent practicable. (a)(1) The term ‘‘consistent to the maximum extent practicable’’ means fully consistent with the enforceable policies of management programs un less full consistency is prohibited by existing law applicable to the Federal agency. (2) Section 307(e) of the Act does not relieve Federal agencies of the consist ency requirements under the Act. The Act was intended to cause substantive changes in Federal agency decision making within the context of the dis cretionary powers residing in such agencies. Accordingly, whenever le gally permissible, Federal agencies shall consider the enforceable policies of management programs as require ments to be adhered to in addition to existing Federal agency statutory mandates. If a Federal agency asserts that full consistency with the manage ment program is prohibited, it shall clearly describe, in writing, to the State agency the statutory provisions, legislative history, or other legal au thority which limits the Federal agen cy’s discretion to be fully consistent with the enforceable policies of the management program. (3) For the purpose of determining consistent to the maximum extent practicable under paragraphs (a)(1) and (2) of this section, federal legal author ity includes Federal appropriation Acts if the appropriation Act includes lan guage that specifically prohibits full consistency with specific enforceable policies of management programs. Fed eral agencies shall not use a general claim of a lack of funding or insuffi cient appropriated funds or failure to include the cost of being fully con sistent in Federal budget and planning processes as a basis for being con sistent to the maximum extent prac ticable with an enforceable policy of a management program. The only cir cumstance where a Federal agency may rely on a lack of funding as a limi tation on being fully consistent with an enforceable policy is the Presi dential exemption described in section 307(c)(1)(B) of the Act (16 U.S.C. 1456(c)(1)(B)). In cases where the cost of being consistent with the enforceable policies of a management program was not included in the Federal agency’s budget and planning processes, the Federal agency should determine the amount of funds needed and seek addi tional federal funds. Federal agencies should include the cost of being fully consistent with the enforceable poli cies of management programs in their budget and planning processes, to the same extent that a Federal agency would plan for the cost of complying with other federal requirements. (b) A Federal agency may deviate from full consistency with an approved management program when such devi ation is justified because of an emer gency or other similar unforeseen cir cumstance (‘‘exigent circumstance’’), which presents the Federal agency with a substantial obstacle that pre vents complete adherence to the ap proved program. Any deviation shall be the minimum necessary to address the exigent circumstance. Federal agencies shall carry out their activities con sistent to the maximum extent prac ticable with the enforceable policies of a management program, to the extent that the exigent circumstance allows. Federal agencies shall consult with State agencies to the extent that an exigent circumstance allows and shall attempt to seek State agency concur rence prior to addressing the exigent VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00285 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 276 15 CFR Ch. IX (1–1–21 Edition) § 930.33 circumstance. Once the exigent cir cumstances have passed, and if the Federal agency is still carrying out an activity with coastal effects, Federal agencies shall comply with all applica ble provisions of this subpart to ensure that the activity is consistent to the maximum extent practicable with the enforceable policies of management programs. Once the Federal agency has addressed the exigent circumstance or completed its emergency response ac tivities, it shall provide the State agency with a description of its actions and their coastal effects. (c) A classified activity that affects any coastal use or resource is not ex empt from the requirements of this subpart, unless the activity is exempt ed by the President under section 307(c)(1)(B) of the Act. Under the con sistent to the maximum extent prac ticable standard, the Federal agency shall provide to the State agency a de scription of the project and coastal ef fects that it is legally permitted to re lease or does not otherwise breach the classified nature of the activity. Even when a Federal agency may not be able to disclose project information, the Federal agency shall conduct the clas sified activity consistent to the max imum extent practicable with the en forceable policies of management pro grams. The term classified means to protect from disclosure national secu rity information concerning the na tional defense or foreign policy, pro vided that the information has been properly classified in accordance with the substantive and procedural require ments of an executive order. Federal and State agencies are encouraged to agree on a qualified third party(ies) with appropriate security clearance(s) to review classified information and to provide non-classified comments re garding the activity’s reasonably fore seeable coastal effects. § 930.33 Identifying Federal agency ac tivities affecting any coastal use or resource. (a) Federal agencies shall determine which of their activities affect any coastal use or resource of States with approved management programs. (1) Effects are determined by looking at reasonably foreseeable direct and in direct effects on any coastal use or re source. An action which has minimal or no environmental effects may still have effects on a coastal use (e.g., ef fects on public access and recreational opportunities, protection of historic property) or a coastal resource, if the activity initiates an event or series of events where coastal effects are reason ably foreseeable. Therefore, Federal agencies shall, in making a determina tion of effects, review relevant man agement program enforceable policies as part of determining effects on any coastal use or resource. (2) If the Federal agency determines that a Federal agency activity has no effects on any coastal use or resource, and a negative determination under § 930.35 is not required, then the Fed eral agency is not required to coordi nate with State agencies under section 307 of the Act. (3)(i) De minimis Federal agency ac tivities. Federal agencies are encour aged to review their activities, other than development projects within the coastal zone, to identify de minimis ac tivities, and request State agency con currence that these de minimis activi ties should not be subject to further State agency review. De minimis activi ties shall only be excluded from State agency review if a Federal agency and State agency have agreed. The State agency shall provide for public partici pation under section 306(d)(14) of the Act when reviewing the Federal agen cy’s de minimis activity request. If the State agency objects to the Federal agency’s de minimis finding then the Federal agency must provide the State agency with either a negative deter mination or a consistency determina tion pursuant to this subpart. OCRM is available to facilitate a Federal agen cy’s request. (ii) De minimis activities are activi ties that are expected to have insignifi cant direct or indirect (cumulative and secondary) coastal effects and which the State agency concurs are de mini mis. (4) Environmentally beneficial activi ties. The State agency and Federal agencies may agree to exclude environ mentally beneficial Federal agency ac tivities (either on a case-by-case basis or for a category of activities) from VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 277 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.34 further State agency consistency re view. Environmentally beneficial ac tivity means an activity that protects, preserves, or restores the natural re sources of the coastal zone. The State agency shall provide for public partici pation under section 306(d)(14) of the Act for the State agency’s consider ation of whether to exclude environ mentally beneficial activities. (5) General consistency determina tions, phased consistency determina tions, and national or regional consist ency determinations under § 930.36 are also available to facilitate federal State coordination. (b) Federal agencies shall consider all development projects within the coast al zone to be activities affecting any coastal use or resource. All other types of activities within the coastal zone are subject to Federal agency review to determine whether they affect any coastal use or resource. (c) Federal agency activities and de velopment projects outside of the coastal zone, are subject to Federal agency review to determine whether they affect any coastal use or resource. (d) Federal agencies shall broadly construe the effects test to provide State agencies with a consistency de termination under § 930.34 and not a negative determination under § 930.35 or other determinations of no effects. Early coordination and cooperation be tween a Federal agency and the State agency can enable the parties to focus their efforts on particular Federal agency activities of concern to the State agency. § 930.34 Federal and State agency co ordination. (a)(1) Federal agencies shall provide State agencies with consistency deter minations for all Federal agency ac tivities affecting any coastal use or re source. To facilitate State agency re view, Federal agencies should coordi nate with the State agency prior to providing the determination. (2) Use of existing procedures. Federal agencies are encouraged to coordinate and consult with State agencies through use of existing procedures in order to avoid waste, duplication of ef fort, and to reduce Federal and State agency administrative burdens. Where necessary, these existing procedures should be modified to facilitate coordi nation and consultation under the Act. (b) Listed activities. State agencies are strongly encouraged to list in their management programs Federal agency activities which, in the opinion of the State agency, will have reasonably foreseeable coastal effects and there fore, may require a Federal agency consistency determination. Listed Fed eral agency activities shall be de scribed in terms of the specific type of activity involved (e.g., federal reclama tion projects). In the event the State agency chooses to describe Federal agency activities that occur outside of the coastal zone, which the State agen cy believes will have reasonably fore seeable coastal effects, it shall also de scribe the geographic location of such activities (e.g., reclamation projects in coastal floodplains). (c) Unlisted activities. State agencies should monitor unlisted Federal agen cy activities (e.g., by use of intergov ernmental review process established pursuant to E.O. 12372, review of NEPA documents, and the FEDERAL REG ISTER) and should notify Federal agen cies of unlisted Federal agency activi ties which Federal agencies have not subjected to a consistency review but which, in the opinion of the State agency, will have reasonably foresee able coastal effects and therefore, may require a Federal agency consistency determination. The provisions in para graphs (b) and (c) of this section are recommended rather than mandatory procedures for facilitating federal State coordination of Federal agency activities which affect any coastal use or resource. State agency notification to the Federal agency (by listed or un listed notification) is neither a sub stitute for nor does it eliminate Fed eral agency responsibility to comply with the consistency requirement, and to provide State agencies with consist ency determinations for all develop ment projects in the coastal zone and for all other Federal agency activities which the Federal agency finds affect any coastal use or resource, regardless of whether the State agency has listed the activity or notified the Federal agency through case-by-case moni toring. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00287 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 278 15 CFR Ch. IX (1–1–21 Edition) § 930.35 (d) State guidance and assistance to Federal agencies. As a preliminary mat ter, a decision that a Federal agency activity affects any coastal use or re source should lead to early consulta tion with the State agency (i.e., before the required 90-day period). Federal agencies should obtain the views and assistance of the State agency regard ing the means for determining that the proposed activity will be conducted in a manner consistent to the maximum extent practicable with the enforceable policies of a management program. As part of its assistance efforts, the State agency shall make available for public inspection copies of the management program document. Upon request by the Federal agency, the State agency shall identify any enforceable policies applicable to the proposed activity based upon the information provided to the State agency at the time of the re quest. § 930.35 Negative determinations for proposed activities. (a) If a Federal agency determines that there will not be coastal effects, then the Federal agency shall provide the State agencies with a negative de termination for a Federal agency ac tivity: (1) Identified by a State agency on its list, as described in § 930.34(b), or through case-by-case monitoring of un listed activities; or (2) Which is the same as or is similar to activities for which consistency de terminations have been prepared in the past; or (3) For which the Federal agency un dertook a thorough consistency assess ment and developed initial findings on the coastal effects of the activity. (b) Content of a negative determination. A negative determination may be sub mitted to State agencies in any writ ten form so long as it contains a brief description of the activity, the activi ty’s location and the basis for the Fed eral agency’s determination that the activity will not affect any coastal use or resource. In determining effects, Federal agencies shall follow § 930.33(a)(1), including an evaluation of the relevant enforceable policies of a management program and include the evaluation in the negative determina tion. The level of detail in the Federal agency’s analysis may vary depending on the scope and complexity of the ac tivity and issues raised by the State agency, but shall be sufficient for the State agency to evaluate whether coastal effects are reasonably foresee able. (c) A negative determination under paragraph (a) of this section shall be provided to the State agency at least 90 days before final approval of the activ ity, unless both the Federal agency and the State agency agree to an alter native notification schedule. A State agency is not obligated to respond to a negative determination. If a State agency does not respond to a Federal agency’s negative determination with in 60 days, State agency concurrence with the negative determination shall be presumed. State agency concurrence shall not be presumed in cases where the State agency, within the 60-day pe riod, requests an extension of time to review the matter. Federal agencies shall approve one request for an exten sion period of 15 days or less. If a State agency objects to a negative deter mination, asserting that coastal effects are reasonably foreseeable, the Federal agency shall consider submitting a consistency determination to the State agency or otherwise attempt to resolve any disagreement within the remainder of the 90-day period. If a Federal agen cy, in response to a State agency’s ob jection to a negative determination, agrees that coastal effects are reason ably foreseeable, the State agency and Federal agency should attempt to agree to complete the consistency re view within the 90-day period for the negative determination or consider an alternative schedule pursuant to § 930.36(b)(1). Federal agencies should consider postponing final Federal agen cy action, beyond the 90-day period, until a disagreement has been resolved. State agencies are not required to pro vide public notice of the receipt of a negative determination or the resolu tion of an objection to a negative de termination, unless a Federal agency submits a consistency determination pursuant to § 930.34. (d) General negative determinations. In cases where Federal agencies will be performing a repetitive activity that a VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00288 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 279 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.36 Federal agency determines will not have reasonably foreseeable coastal ef fects, whether performed separately or cumulatively, a Federal agency may provide a State agency(ies) with a gen eral negative determination, thereby avoiding the necessity of issuing sepa rate negative determinations for each occurrence of the activity. A general negative determination must adhere to all requirements for negative deter minations under § 930.35. In addition, a general negative determination must describe in detail the activity covered by the general negative determination and the expected number of occur rences of the activity over a specific time period. If a Federal agency issues a general negative determination, it may periodically assess whether the general negative determination is still applicable. (e) In the event of a serious disagree ment between a Federal agency and a State agency regarding a determina tion related to whether a proposed ac tivity affects any coastal use or re source, either party may seek the Sec retarial mediation or OCRM mediation services provided for in subpart G. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006] § 930.36 Consistency determinations for proposed activities. (a) Federal agencies shall review their proposed Federal agency activi ties which affect any coastal use or re source in order to develop consistency determinations which indicate whether such activities will be undertaken in a manner consistent to the maximum ex tent practicable with the enforceable policies of approved management pro grams. Federal agencies should consult with State agencies at an early stage in the development of the proposed ac tivity in order to assess whether such activities will be consistent to the maximum extent practicable with the enforceable policies of such programs. (b) Timing of consistency determina tions. (1) Federal agencies shall provide State agencies with a consistency de termination at the earliest practicable time in the planning or reassessment of the activity. A consistency determina tion should be prepared following de velopment of sufficient information to reasonably determine the consistency of the activity with the management program, but before the Federal agency reaches a significant point of decision making in its review process, i.e., while the Federal agency has the ability to modify the activity. The consistency determination shall be provided to State agencies at least 90 days before final approval of the Federal agency activity unless both the Federal agen cy and the State agency agree to an al ternative notification schedule. (2) Federal and State agencies may mutually agree upon procedures for ex tending the notification requirement beyond 90 days for activities requiring a substantial review period, and for shortening the notification period for activities requiring a less extensive re view period, provided that public par ticipation requirements are met. (c) General consistency determinations. In cases where Federal agencies will be performing repeated activity other than a development project (e.g., ongo ing maintenance, waste disposal) which cumulatively has an effect upon any coastal use or resource, the Federal agency may develop a general consist ency determination, thereby avoiding the necessity of issuing separate con sistency determinations for each incre mental action controlled by the major activity. A Federal agency may provide a State agency with a general consist ency determination only in situations where the incremental actions are re petitive and do not affect any coastal use or resource when performed sepa rately. A Federal agency and State agency may mutually agree on a gen eral consistency determination for de minimis activities (see § 930.33(a)(3)) or any other repetitive activity or cat egory of activity(ies). If a Federal agency issues a general consistency de termination, it shall thereafter peri odically consult with the State agency to discuss the manner in which the in cremental actions are being under taken. (d) Phased consistency determinations. In cases where the Federal agency has sufficient information to determine the consistency of a proposed development project or other activity from planning to completion, the Federal agency shall provide the State agency with VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00289 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 280 15 CFR Ch. IX (1–1–21 Edition) § 930.37 one consistency determination for the entire activity or development project. In cases where federal decisions related to a proposed development project or other activity will be made in phases based upon developing information that was not available at the time of the original consistency determina tion, with each subsequent phase sub ject to Federal agency discretion to implement alternative decisions based upon such information (e.g., planning, siting, and design decisions), a consist ency determination will be required for each major decision. In cases of phased decisionmaking, Federal agencies shall ensure that the development project or other activity continues to be con sistent to the maximum extent prac ticable with the management program. (e) National or regional consistency de terminations. (1) A Federal agency may provide States with consistency deter minations for Federal agency activities that are national or regional in scope (e.g., rulemaking, national plans), and that affect any coastal use or resource of more than one State. Many States share common coastal management issues and have similar enforceable policies, e.g., protection of a particular coastal resource. The Federal agency’s national or regional consistency deter mination should, at a minimum, ad dress the common denominator of these policies, i.e., the common coastal effects and management issues, and thereby address different States’ poli cies with one discussion and deter mination. If a Federal agency decides not to use this section, it must issue consistency determinations to each State agency pursuant to § 930.39. (2) Federal agency activities with coastal effects shall be consistent to the maximum extent practicable with the enforceable policies of each State’s management program. Thus, the Fed eral agency’s national or regional con sistency determination shall contain sections that would apply to individual States to address coastal effects and enforceable policies unique to par ticular States, if common coastal ef fects and enforceable policies cannot be addressed under paragraph (e)(1). Early coordination with coastal States will enable the Federal agency to identify particular coastal management con cerns and policies. In addition, the Fed eral agency could address the concerns of each affected State by providing for State conditions for the proposed ac tivity. Further, the consistency deter mination could identify the coordina tion efforts and describe how the Fed eral agency responded to State agency concerns. § 930.37 Consistency determinations and National Environmental Policy Act (NEPA) requirements. A Federal agency may use its NEPA documents as a vehicle for its consist ency determination or negative deter mination under this subpart. However, a Federal agency’s federal consistency obligations under the Act are inde pendent of those required under NEPA and are not necessarily fulfilled by the submission of a NEPA document. State agencies shall not require Federal agencies to submit NEPA documents as information required pursuant to § 930.39. If a Federal agency includes its consistency determination or negative determination in a NEPA document, the Federal agency shall ensure that the NEPA document includes the infor mation and adheres to the timeframes required by this subpart. Federal agen cies and State agencies should mutu ally agree on how to best coordinate the requirements of NEPA and the Act. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006] § 930.38 Consistency determinations for activities initiated prior to man agement program approval. (a) A consistency determination is required for ongoing Federal agency activities other than development projects initiated prior to management program approval, which are governed by statutory authority under which the Federal agency retains discretion to re assess and modify the activity. In these cases the consistency determination must be made by the Federal agency at the earliest practicable time following management program approval, and the State agency must be provided with a consistency determination no later than 120 days after management program approval for ongoing activi ties which the State agency lists or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00290 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 281 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.39 identifies through monitoring as sub ject to consistency with the manage ment program. (b) A consistency determination is required for major, phased federal de velopment project decisions described in § 930.36(d) which are made following management program approval and are related to development projects initi ated prior to program approval. In making these new decisions, Federal agencies shall consider effects on any coastal use or resource not fully evalu ated at the outset of the project. This provision shall not apply to phased fed eral decisions which were specifically described, considered and approved prior to management program approval (e.g., in a final environmental impact statement issued pursuant to NEPA). § 930.39 Content of a consistency de termination. (a) The consistency determination shall include a brief statement indi cating whether the proposed activity will be undertaken in a manner con sistent to the maximum extent prac ticable with the enforceable policies of the management program. The state ment must be based upon an evaluation of the relevant enforceable policies of the management program. A descrip tion of this evaluation shall be in cluded in the consistency determina tion, or provided to the State agency simultaneously with the consistency determination if the evaluation is con tained in another document. Where a Federal agency is aware, prior to its submission of its consistency deter mination, that its activity is not fully consistent with a management pro gram’s enforceable policies, the Fed eral agency shall describe in its con sistency determination the legal au thority that prohibits full consistency as required by § 930.32(a)(2). Where the Federal agency is not aware of any in consistency until after submission of its consistency determination, the Fed eral agency shall submit its description of the legal authority that prohibits full consistency to the State agency as soon as possible, or before the end of the 90-day period described in § 930.36(b)(1). The consistency deter mination shall also include a detailed description of the activity, its associ ated facilities, and their coastal ef fects, and comprehensive data and in formation sufficient to support the Federal agency’s consistency state ment. The amount of detail in the eval uation of the enforceable policies, ac tivity description and supporting infor mation shall be commensurate with the expected coastal effects of the ac tivity. The Federal agency may submit the necessary information in any man ner it chooses so long as the require ments of this subpart are satisfied. (b) Federal agencies shall be guided by the following in making their con sistency determinations. The activity its effects on any coastal use or re source, associated facilities (e.g., pro posed siting and construction of access road, connecting pipeline, support buildings, and the effects of the associ ated facilities (e.g., erosion, wetlands, beach access impacts), must all be con sistent to the maximum extent prac ticable with the enforceable policies of the management program. (c) In making their consistency de terminations, Federal agencies shall ensure that their activities are con sistent to the maximum extent prac ticable with the enforceable, policies of the management program. However, Federal agencies should give consider ation to management program provi sions which are in the nature of rec ommendations. (d) When Federal agency standards are more restrictive than standards or requirements contained in the manage ment program, the Federal agency may continue to apply its stricter stand ards. In such cases the Federal agency shall inform the State agency in the consistency determination of the stat utory, regulatory or other basis for the application of the stricter standards. (e) State permit requirements. Federal law, other than the CZMA, may require a Federal agency to obtain a State per mit. Even when Federal agencies are not required to obtain State permits, Federal agencies shall still be con sistent to the maximum extent prac ticable with the enforceable policies that are contained in such State per mit programs that are part of a man agement program. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00291 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 282 15 CFR Ch. IX (1–1–21 Edition) § 930.40 § 930.40 Multiple Federal agency par ticipation. Whenever more than one Federal agency is involved in a Federal agency activity or its associated facilities af fecting any coastal use or resource, or is involved in a group of Federal agen cy activities related to each other be cause of their geographic proximity, the Federal agencies may prepare one consistency determination for all the federal activities involved. In such cases, Federal agencies should consider joint preparation or lead agency devel opment of the consistency determina tion. In either case, the consistency de termination shall be transmitted to the State agency at least 90 days before final decisions are taken by any of the participating agencies and shall com ply with the requirements of § 930.39. § 930.41 State agency response. (a) A State agency shall inform the Federal agency of its concurrence with or objection to the Federal agency’s consistency determination at the ear liest practicable time, after providing for public participation in the State agency’s review of the consistency de termination. The Federal agency may presume State agency concurrence if the State agency’s response is not re ceived within 60 days from receipt of the Federal agency’s consistency deter mination and supporting information required by § 930.39(a). The 60-day re view period begins when the State agency receives the consistency deter mination and supporting information required by § 930.39(a). If the informa tion required by § 930.39(a) is not in cluded with the determination, the State agency shall notify the Federal agency in writing within 14 days of re ceiving the determination and sup porting information that the 60-day re view period has not begun, identify missing information required by § 930.39(a), and that the 60-day review period will begin when the missing in formation is received by the State agency. If the State agency has not no tified the Federal agency that informa tion required by § 930.39(a) is missing within the 14 day notification period, then the 60-day review period shall begin on the date the State agency re ceived the consistency determination and accompanying information. The State agency’s determination of wheth er the information required by § 930.39(a) is complete is not a sub stantive review of the adequacy of the information provided. Thus, if a Fed eral agency has submitted a consist ency determination and information required by § 930.39(a), then the State agency shall not assert that the 60-day review period has not begun because the information contained in the items required by § 930.39(a) is substantively deficient. The failure to submit infor mation not required by 930.39(a) shall not be a basis for asserting that the 60 day review period has not begun. (b) State agency concurrence shall not be presumed in cases where the State agency, within the 60-day period, requests an extension of time to review the matter. Federal agencies shall ap prove one request for an extension pe riod of 15 days or less. In considering whether a longer or additional exten sion period is appropriate, the Federal agency should consider the magnitude and complexity of the information con tained in the consistency determina tion. (c) Final Federal agency action shall not be taken sooner than 90 days from the receipt by the State agency of the consistency determination unless the State concurs or concurrence is pre sumed, pursuant to paragraphs (a) and (b), with the activity, or unless both the Federal agency and the State agen cy agree to an alternative period. (d) Time limits on concurrences. A State agency cannot unilaterally place an expiration date on its concurrence. If a State agency believes that an expi ration date is necessary, State and Federal agencies may agree to a time limit. If there is no agreement, later phases of, or modifications to, the ac tivity that will have effects not evalu ated at the time of the original consist ency determination will require either a new consistency determination, a supplemental consistency determina tion under § 930.46, or a phased review under § 930.36(d) of this subpart. (e) State processing fees. The Act does not require Federal agencies to pay State processing fees. State agencies shall not assess a Federal agency with a fee to process the Federal agency’s VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00292 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 283 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.43 consistency determination unless pay ment of such fees is required by other federal law or otherwise agreed to by the Federal agency and allowed by the Comptroller General of the United States. In no case may a State agency stay the consistency review period or base its objection on the failure of a Federal agency to pay a fee. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006] § 930.42 Public participation. (a) Management programs shall pro vide for public participation in the State agency’s review of consistency determinations. Public participation, at a minimum, shall consist of public notice for the area(s) of the coastal zone likely to be affected by the activ ity, as determined by the State agency. (b) Timing of public notice. States shall provide timely public notice after the consistency determination has been received by the State agency, ex cept in cases where earlier public no tice on the consistency determination by the Federal agency or the State agency meets the requirements of this section. A public comment period shall be provided by the State sufficient to give the public an opportunity to de velop and provide comments on wheth er the project is consistent with man agement program enforceable policies and still allow the State agency to issue its concurrence or objection with in the 60 day State response period. (c) Content of public notice. The public notice shall: (1) Specify that the proposed activity is subject to review for consistency with the enforceable policies of the management program; (2) Provide sufficient information to serve as a basis for comment; (3) Specify a source for additional in formation, e.g., a State agency web site; and (4) Specify a contact for submitting comments to the State agency. (d) Procedural options that may be used by the State agency for issuance of public notice include, but are not limited to, public notice through an of ficial State gazette, a local newspaper serving areas of coastal zone likely to be affected by the activity, individual State mailings, public notice through a management program newsletter, and electronic notices, e.g., web sites. How ever, electronic notices, e.g., web sites, shall not be the sole source of a public notification, but may be used in con junction with other means. Web sites may be used to provide a location for the public to obtain additional infor mation. States shall not require that the Federal agency provide public no tice. Federal and State agencies are en couraged to issue joint public notices, and hold joint public hearings, to mini mize duplication of effort and to avoid unnecessary delays, so long as the joint notice meets the other requirements of this section. § 930.43 State agency objection. (a) In the event the State agency ob jects to the Federal agency’s consist ency determination, the State agency shall accompany its response to the Federal agency with its reasons for the objection and supporting information. The State agency response shall de scribe: (1) How the proposed activity will be inconsistent with specific enforceable policies of the management program; and (2) The specific enforceable policies (including citations). (3) The State agency should also de scribe alternative measures (if they exist) which, if adopted by the Federal agency, would allow the activity to proceed in a manner consistent to the maximum extent practicable with the enforceable policies of the management program. Failure to describe alter natives does not affect the validity of the State agency’s objection. (b) If the State agency’s objection is based upon a finding that the Federal agency has failed to supply sufficient information, the State agency’s re sponse must describe the nature of the information requested and the neces sity of having such information to de termine the consistency of the Federal agency activity with the enforceable policies of the management program. (c) State agencies shall send to the Director a copy of objections to Fed eral agency consistency determina tions. (d) In the event of an objection, Fed eral and State agencies should use the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00293 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 284 15 CFR Ch. IX (1–1–21 Edition) § 930.44 remaining portion of the 90-day notice period (see § 930.36(b)) to attempt to re solve their differences. If resolution has not been reached at the end of the 90-day period, Federal agencies should consider using the dispute resolution mechanisms of this part and post poning final federal action until the problems have been resolved. At the end of the 90-day period the Federal agency shall not proceed with the ac tivity over a State agency’s objection unless: (1) the Federal agency has concluded that under the ‘‘consistent to the max imum extent practicable’’ standard de scribed in section 930.32 consistency with the enforceable policies of the management program is prohibited by existing law applicable to the Federal agency and the Federal agency has clearly described, in writing, to the State agency the legal impediments to full consistency (See §§ 930.32(a) and 930.39(a)), or (2) the Federal agency has concluded that its proposed action is fully con sistent with the enforceable policies of the management program, though the State agency objects. (e) If a Federal agency decides to pro ceed with a Federal agency activity that is objected to by a State agency, or to follow an alternative suggested by the State agency, the Federal agen cy shall notify the State agency of its decision to proceed before the project commences. § 930.44 Availability of mediation for disputes concerning proposed ac tivities. In the event of a serious disagree ment between a Federal agency and a State agency regarding the consistency of a proposed federal activity affecting any coastal use or resource, either party may request the Secretarial me diation or OCRM mediation services provided for in subpart G. § 930.45 Availability of mediation for previously reviewed activities. (a) Federal and State agencies shall cooperate in their efforts to monitor federally approved activities in order to make certain that such activities continue to be undertaken in a manner consistent to the maximum extent practicable with the enforceable poli cies of the management program. (b) The State agency may request that the Federal agency take appro priate remedial action following a seri ous disagreement resulting from a Fed eral agency activity, including those activities where the State agency’s concurrence was presumed, which was: (1) Previously determined to be con sistent to the maximum extent prac ticable with the management program, but which the State agency later main tains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent to the maximum extent practicable with the enforceable poli cies of the management program; or (2) Previously determined not to be a Federal agency activity affecting any coastal use or resource, but which the State agency later maintains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, the activity affects any coastal use or resource and is not con sistent to the maximum extent prac ticable with the enforceable policies of the management program. The State agency’s request shall include sup porting information and a proposal for recommended remedial action. (c) If, after a reasonable time fol lowing a request for remedial action, the State agency still maintains that a serious disagreement exists, either party may request the Secretarial me diation or OCRM mediation services provided for in subpart G of this part. § 930.46 Supplemental coordination for proposed activities. (a) For proposed Federal agency ac tivities that were previously deter mined by the State agency to be con sistent with the management program, but which have not yet begun, Federal agencies shall further coordinate with the State agency and prepare a supple mental consistency determination if the proposed activity will affect any coastal use or resource substantially different than originally described. Substantially different coastal effects are reasonably foreseeable if: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00294 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 285 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.51 (1) The Federal agency makes sub stantial changes in the proposed activ ity that are relevant to management program enforceable policies; or (2) There are significant new cir cumstances or information relevant to the proposed activity and the proposed activity’s effect on any coastal use or resource. (3) Substantial changes were made to the activity during the period of the State agency’s initial review and the State agency did not receive notice of the substantial changes during its re view period, and these changes are rel evant to management program enforce able policies and/or affect coastal uses or resources. (b) The State agency may notify the Federal agency and the Director of pro posed activities which the State agen cy believes should be subject to supple mental coordination. The State agen cy’s notification shall include informa tion supporting a finding of substan tially different coastal effects than originally described and the relevant enforceable policies, and may rec ommend modifications to the proposed activity (if any) that would allow the Federal agency to implement the pro posed activity consistent with the en forceable policies of the management program. State agency notification under this paragraph (b) does not re move the requirement under paragraph (a) of this section for Federal agencies to notify State agencies. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006] Subpart D—Consistency for Activi ties Requiring a Federal Li cense or Permit § 930.50 Objectives. The provisions of this subpart are in tended to ensure that any required fed eral license or permit activity affect ing any coastal use or resource is con ducted in a manner consistent with ap proved management programs. The provisions of subpart I of this part are intended to supplement the provisions of this subpart for federal license or permit activities having interstate coastal effects. § 930.51 Federal license or permit. (a) The term ‘‘federal license or per mit’’ means any authorization that an applicant is required by law to obtain in order to conduct activities affecting any land or water use or natural re source of the coastal zone and that any Federal agency is empowered to issue to an applicant. The term ‘‘federal li cense or permit’’ does not include OCS plans, and federal license or permit ac tivities described in detail in OCS plans, which are subject to subpart E of this part, or leases issued pursuant to lease sales conducted by a Federal agency (e.g., outer continental shelf (OCS) oil and gas lease sales conducted by the Minerals Management Service or oil and gas lease sales conducted by the Bureau of Land Management). Lease sales conducted by a Federal agency are Federal agency activities under subpart C of this part. (b) The term also includes the fol lowing types of renewals and major amendments which affect any coastal use or resource: (1) Renewals and major amendments of federal license or permit activities not previously reviewed by the State agency; (2) Renewals and major amendments of federal license or permit activities previously reviewed by the State agen cy which are filed after and are subject to management program changes not in existence at the time of original State agency review; and (3) Renewals and major amendments of federal license or permit activities previously reviewed by the State agen cy which will cause an effect on any coastal use or resource substantially different than those originally re viewed by the State agency. (c) The term ‘‘major amendment’’ of a federal license or permit activity means any subsequent federal approval that the applicant is required to obtain for modification to the previously re viewed and approved activity and where the activity permitted by issuance of the subsequent approval will affect any coastal use or resource, or, in the case of a major amendment subject to § 930.51(b)(3), affect any coastal use or resource in a way that is VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00295 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 286 15 CFR Ch. IX (1–1–21 Edition) § 930.52 substantially different than the de scription or understanding of effects at the time of the original activity. (d) The term ‘‘renewals’’ of a federal license or permit activity means any subsequent re-issuance, re-approval or extension of an existing license or per mit that the applicant is required to obtain for an activity described under paragraph (b) of this section. (e) The determination of substan tially different coastal effects under paragraphs (b)(3), and (c) of this section is made on a case-by-case basis by the Federal agency after consulting with the State agency, and applicant. The Federal agency shall give considerable weight to the opinion of the State agency. The terms ‘‘major amend ment,’’ ‘‘renewals’’ and ‘‘substantially different’’ shall be construed broadly to ensure that the State agency has the opportunity to review activities and coastal effects not previously reviewed. (f) This subpart applies to active appli cations. If an applicant withdraws its application to the Federal agency, then the consistency process is terminated. If the applicant reapplies to the Fed eral agency, then a new consistency re view process will start. If a Federal agency stops or stays the Federal li cense or permit application process, then the consistency review period will be stopped or stayed for the same amount of time as for the Federal ap plication process. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006] § 930.52 Applicant. The term ‘‘applicant’’ means any in dividual, public or private corporation, partnership, association, or other enti ty organized or existing under the laws of any nation, State, or any State, re gional, or local government, who, fol lowing management program approval, either files an application for a re quired individual federal license or per mit, or who files a consistency certifi cation for a required general federal li cense or permit under § 930.31(d) to con duct an activity affecting any coastal use or resource. The term ‘‘applicant’’ does not include Federal agencies ap plying for federal licenses or permits. Federal agency activities requiring fed eral licenses or permits are subject to subpart C of this part. § 930.53 Listed federal license or per mit activities. (a) State agencies shall develop a list of federal license or permit activities which affect any coastal use or re source, including reasonably foresee able effects, and which the State agen cy wishes to review for consistency with the management program. The list shall be included as part of the management program, and the federal license or permit activities shall be de scribed in terms of the specific licenses or permits involved (e.g., Corps of En gineers 404 permits, Coast Guard bridge permits). In the event the State agency chooses to review federal license or permit activities, with reasonably fore seeable coastal effects, outside of the coastal zone, it must generally describe the geographic location of such activi ties. (1) The geographic location descrip tion should encompass areas outside of the coastal zone where coastal effects from federal license or permit activi ties are reasonably foreseeable. The State agency should exclude geo graphic areas outside of the coastal zone where coastal effects are not rea sonably foreseeable. Listed activities may have different geographic location descriptions, depending on the nature of the activity and its coastal effects. For example, the geographic location for activities affecting water resources or uses could be described by shared water bodies, river basins, boundaries defined under the State’s coastal nonpoint pollution control program, or other ecologically identifiable areas. Federal lands located within the boundaries of a State’s coastal zone are automatically included within the geo graphic location description; State agencies do not have to describe these areas. State agencies do have to de scribe the geographic location of listed activities occurring on federal lands lo cated beyond the boundaries of a State’s coastal zone. (2) For listed activities occurring outside of the coastal zone for which a State has not generally described the geographic location of review, States must follow the conditions for review VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00296 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 287 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.54 of unlisted activities under § 930.54 of this subpart. (b) General concurrences for minor ac tivities. To avoid repeated review of minor federal license or permit activi ties which, while individually incon sequential, cumulatively affect any coastal use or resource, the State agen cy, after developing conditions allow ing concurrence for such activities, may issue a general public notice (see § 930.61) and general concurrence allow ing similar minor work in the same ge ographic area to proceed without prior State agency review. In such cases, the State agency must set forth in the management program license and per mit list the minor federal license or permit activities and the relevant con ditions which are covered by the gen eral concurrence. Minor federal license or permit activities which satisfy the conditions of the general concurrence are not subject to the consistency cer tification requirement of this subpart. Except in cases where the State agency indicates otherwise, copies of federal license or permit applications for ac tivities subject to a general concur rence must be sent by the applicant to the State agency to allow the State agency to monitor adherence to the conditions required by such concur rence. Confidential and proprietary material within such applications may be deleted. (c) The license and permit list may be amended by the State agency fol lowing consultation with the affected Federal agency and approval by the Di rector pursuant to the program change requirements found at 15 CFR part 923, subpart H. (1) Consultation with the affected Federal agency means, at least 60 days prior to submitting a program change request to OCRM, a State agency shall notify in writing the relevant regional or field Federal agency staff and the head of the affected Federal agency, and request comments on the listing change. The notification shall describe the proposed change and identify the regional Federal agency staff the State has contacted for consultation. (2) A State agency must include in its program change request to OCRM a description of any comments received from the affected Federal agency. (d) No federal license or permit de scribed on an approved list shall be issued by a Federal agency until the re quirements of this subpart have been satisfied. Federal agencies shall inform applicants for listed licenses or permits of the requirements of this subpart. § 930.54 Unlisted federal license or permit activities. (a)(1) With the assistance of Federal agencies, State agencies should mon itor unlisted federal license or permit activities (e.g., by use of intergovern mental review process established pur suant to E.O. 12372, review of NEPA documents, FEDERAL REGISTER no tices). State agencies shall notify Fed eral agencies, applicants, and the Di rector of unlisted activities affecting any coastal use or resource which re quire State agency review within 30 days from notice of the license or per mit application, that has been sub mitted to the approving Federal agen cy, otherwise the State agency waives its right to review the unlisted activ ity. The waiver does not apply in cases where the State agency does not re ceive notice of the federal license or permit application. (2) Federal agencies or applicants should provide written notice of the submission of applications for federal licenses or permits for unlisted activi ties to the State agency. Notice to the State agency may be constructive if notice is published in an official federal public notification document or through an official State clearinghouse (i.e., the FEDERAL REGISTER, draft or final NEPA EISs that are submitted to the State agency, or a State’s intergov ernmental review process). The notice, whether actual or constructive, shall contain sufficient information for the State agency to learn of the activity, determine the activity’s geographic lo cation, and determine whether coastal effects are reasonably foreseeable. (b) The State agency’s notification shall also request the Director’s ap proval to review the unlisted activity and shall contain an analysis that sup ports the State agency’s assertion that coastal effects are reasonably foresee able. Following State agency notifica tion to the Federal agency, applicant and the Director, the Federal agency VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00297 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 288 15 CFR Ch. IX (1–1–21 Edition) § 930.55 shall not issue the license or permit until the requirements of this subpart have been satisfied, unless the Director disapproves the State agency’s request to review the activity. (c) The Federal agency and the appli cant have 15 days from receipt of the State agency notice to provide com ments to the Director regarding the State agency’s request to review the activity. The sole basis for the Direc tor’s approval or disapproval of the State agency’s request will relate to whether the proposed activity’s coastal effects are reasonably foreseeable. The Director shall issue a decision, with supporting comments, to the State agency, Federal agency and applicant within 30 days from receipt of the State agency notice. The Director may extend the decision deadline beyond 30 days due to the complexity of the issues or to address the needs of the State agency, the Federal agency, or the applicant. The Director shall con sult with the State agency, the Federal agency and the applicant prior to ex tending the decision deadline, and shall limit the extension to the minimum time necessary to make its decision. The Director shall notify the relevant parties of the expected length of an ex tension. (d) If the Director disapproves the State agency’s request, the Federal agency may approve the license or per mit application and the applicant need not comply with the requirements of this subpart. If the Director approves the State agency’s request, the Federal agency and applicant must comply with the consistency certification pro cedures of this subpart. (e) Following an approval by the Di rector, the applicant shall amend the federal application by including a con sistency certification and shall provide the State agency with a copy of the certification along with necessary data and information (see §§ 930.58, 930.62 and 930.63). For the purposes of this section, concurrence by the State agency shall be conclusively presumed in the ab sence of a State agency objection with in six months from the original Federal agency notice to the State agency (see paragraph (a) of this section) or within three months from receipt of the appli cant’s consistency certification and necessary data and information, which ever period terminates last. (f) The unlisted activity procedures in this section are provided to ensure that State agencies are afforded an op portunity to review federal license or permit activities with reasonably fore seeable coastal effects. Prior to bring ing the issue before the Director, the concerned parties should discuss coast al effects and consistency. The appli cant can avoid delay by simply seeking the State agency’s expeditious concur rence rather than waiting for the Di rector’s decision. If an applicant, of its own accord or after negotiations with the State agency, provides a consist ency certification and necessary data and information to the State agency, the review shall be deemed to have re ceived the Director’s approval, and all of the provisions of this subpart shall apply and the State agency need not request the Director’s approval. If an applicant for an unlisted activity has not subjected itself to the consistency process within the 30 day notification period contained in paragraph (a) of this section, the State agency must ad here to the unlisted activity review re quirements of this section to preserve its right to review the activity. § 930.55 Availability of mediation for license or permit disputes. In the event of a serious disagree ment between a Federal and State agency regarding whether a listed or unlisted federal license or permit ac tivity is subject to the federal consist ency requirement, either party may re quest the OCRM mediation or Secre tarial mediation services provided for in subpart G of this part; notice shall be provided to the applicant. The exist ence of a serious disagreement will not relieve the Federal agency from the re sponsibility for withholding approval of a license or permit application for an activity on an approved manage ment program list (see § 930.53) or indi vidually approved by the Director (see § 930.54) pending satisfaction of the re quirements of this subpart. Similarly, the existence of a serious disagreement will not prevent the Federal agency from approving a license or permit ac tivity which has not received Director approval. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00298 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 289 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.58 § 930.56 State agency guidance and as sistance to applicants. As a preliminary matter, any appli cant for a federal license or permit se lected for review by a State agency should obtain the views and assistance of the State agency regarding the means for ensuring that the proposed activity will be conducted in a manner consistent with the management pro gram. As part of its assistance efforts, the State agency shall make available for public inspection copies of the man agement program document. Upon re quest by the applicant, the State agen cy shall identify any enforceable poli cies applicable to the proposed activ ity, based upon the information sub mitted to the State agency. § 930.57 Consistency certifications. (a) Following appropriate coordina tion and cooperation with the State agency, all applicants for required fed eral licenses or permits subject to State agency review shall provide in the application to the federal licensing or permitting agency a certification that the proposed activity complies with and will be conducted in a manner consistent with the management pro gram. At the same time, the applicant shall furnish to the State agency a copy of the certification and necessary data and information. (b) The applicant’s consistency cer tification shall be in the following form: ‘‘The proposed activity complies with the enforceable policies of (name of State) approved management pro gram and will be conducted in a man ner consistent with such program.’’ § 930.58 Necessary data and informa tion. (a) The applicant shall furnish the State agency with necessary data and information along with the consistency certification. Such information and data shall include the following: (1) A copy of the application for the federal license or permit and (i) All material relevant to a State’s management program provided to the Federal agency in support of the appli cation; and (ii) To the extent not included in paragraphs (a)(1) or (a)(1)(i) of this sec tion, a detailed description of the pro posed activity, its associated facilities, the coastal effects, and any other infor mation relied upon by the applicant to make its certification. Maps, diagrams, and technical data shall be submitted when a written description alone will not adequately describe the proposal; (2) Information specifically identified in the management program as re quired necessary data and information for an applicant’s consistency certifi cation. The management program as originally approved or amended (pursu ant to 15 CFR part 923, subpart H) may describe data and information nec essary to assess the consistency of fed eral license or permit activities. Nec essary data and information may in clude completed State or local govern ment permit applications which are re quired for the proposed activity, but shall not include the issued State or local permits. NEPA documents shall not be considered necessary data and information when a Federal statute re quires a Federal agency to initiate the CZMA federal consistency review prior to its completion of NEPA compliance. States shall not require that the con sistency certification and/or the nec essary data and information be in cluded in NEPA documents. Required data and information may not include confidential and proprietary material; and (3) An evaluation that includes a set of findings relating the coastal effects of the proposal and its associated fa cilities to the relevant enforceable policies of the management program. Applicants shall demonstrate that the activity will be consistent with the en forceable policies of the management program. Applicants shall demonstrate adequate consideration of policies which are in the nature of rec ommendations. Applicants need not make findings with respect to coastal effects for which the management pro gram does not contain enforceable or recommended policies. (b) At the request of the applicant, interested parties who have access to information and data required by this section may provide the State agency with all or part of the material re quired. Furthermore, upon request by the applicant, the State agency shall provide assistance for developing the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00299 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 290 15 CFR Ch. IX (1–1–21 Edition) § 930.59 assessment and findings required by this section. (c) When satisfied that adequate pro tection against public disclosure exists, applicants should provide the State agency with confidential and propri etary information which the State agency maintains is necessary to make a reasoned decision on the consistency of the proposal. State agency requests for such information must be related to the necessity of having such informa tion to assess adequately the coastal effects of the proposal. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 827, Jan. 5, 2006] § 930.59 Multiple permit review. (a) Applicants shall, to the extent practicable, consolidate related federal license or permit activities affecting any coastal use or resource for State agency review. State agencies shall, to the extent practicable, provide appli cants with a ‘‘one-stop’’ multiple per mit review for consolidated permits to minimize duplication of effort and to avoid unnecessary delays. (b) A State agency objection to one or more of the license or permit activi ties submitted for consolidated review shall not prevent the applicant from receiving Federal agency approval for those license or permit activities found to be consistent with the management program. § 930.60 Commencement of State agen cy review. (a) The State agency’s six-month re view period (see § 930.62(a)) of an appli cant’s consistency certification begins on the date the State agency receives the consistency certification required by § 930.57 and all the necessary data and information required by § 930.58(a). (1) If an applicant fails to submit a consistency certification, the State agency shall notify the applicant and the Federal agency, within 30 days of receipt of the incomplete submission, that a consistency certification satis fying § 930.57 was not received and that the State agency’s six-month review period will commence on the date of re ceipt of the missing certification, sub ject to paragraph (a)(2) of this section. (2) If an applicant fails to submit all necessary data and information re quired by § 930.58(a), the State agency shall notify the applicant and the Fed eral agency, within 30 days of receipt of the incomplete submission, that nec essary data and information described in § 930.58(a) was not received and that the State agency’s six-month review period will commence on the date of re ceipt of the missing necessary data and information, subject to the require ment in paragraph (a) of this section that the applicant has also submitted a consistency certification. The State agency may waive the requirement in paragraph (a) of this section that all necessary data and information de scribed in § 930.58(a) be submitted be fore commencement of the State agen cy’s six-month consistency review. In the event of such a waiver, the require ments of § 930.58(a) must be satisfied prior to the end of the six-month con sistency review period or the State agency may object to the consistency certification for insufficient informa tion. (3) Within 30 days of receipt of the consistency certification and/or nec essary data and information that was deemed missing, pursuant to para graphs (a)(1) or (2) of this section, the State agency shall notify the applicant and Federal agency that the certifi cation and necessary data and informa tion required pursuant to § 930.58 is complete, the date the certification and/or necessary data and information deemed missing was received, and, that the State agency’s consistency review commenced on the date of receipt. In the event of a State waiver under para graph (a)(2) of this section, receipt of the necessary data and information deemed missing shall not alter the date the consistency review period com menced. (b) State agencies and applicants (and persons under subpart E of this part) may mutually agree in writing to stay the six-month consistency review period. Such an agreement shall be in writing and state a specific date on when the stay will end. The State agency shall provide a copy of the writ ten agreement to the Federal agency and the Federal agency shall not pre sume State agency concurrence with an applicant’s consistency certification when such a written agreement to stay VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00300 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 291 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.62 the six-month consistency review pe riod is in effect. The State agency shall not stop, stay, or otherwise alter the consistency review period without such a written agreement with the appli cant. (c) The State agency’s determination that a certification and necessary data and information under paragraph (a) of this section is complete is not a sub stantive review of the adequacy of the information received. If an applicant has submitted all necessary data and information required by § 930.58, then a State agency’s or Federal agency’s as sertion that the submitted information is substantively deficient, or a State agency’s or Federal agency’s request for clarification of the information provided, or information or data re quested that is in addition to that re quired by § 930.58 shall not extend the date of commencement of State agency review. [71 FR 827, Jan. 5, 2006] § 930.61 Public participation. (a) Following receipt of the material described in § 930.60 the State agency shall ensure timely public notice of the proposed activity. Public notice shall be provided for the area(s) of the coast al zone likely to be affected by the pro posed activity, as determined by the State agency. At the discretion of the State agency, public participation may include one or more public hearings. The State agency shall not require an applicant or a Federal agency to hold a public hearing. State agencies should restrict the period of public notice, re ceipt of comments, hearing proceedings and final decision-making to the min imum time necessary to reasonably in form the public, obtain sufficient com ment, and develop a decision on the matter. (b) Content of public notice. The public notice shall: (1) Specify that the proposed activity is subject to review for consistency under the policies of the management program; (2) Provide sufficient information to serve as a basis for comment; (3) Specify a source for additional in formation; and (4) Specify a contact for submitting comments to the management pro gram. (c) Procedural options that may be used by the State agency for issuance of public notice include, but are not limited to, public notice through an of ficial State gazette, a local newspaper serving areas of the coastal zone likely to be affected by the activity, indi vidual State mailings, public notice through a management program news letter, and electronic notices, e.g., web sites. However, electronic notices, e.g., web sites, shall not be the sole source of a public notification, but may be used in conjunction with other means. Web sites may be used to provide a lo cation for the public to obtain addi tional information. The State agency may require the applicant to provide the public notice. State agencies shall not require that the Federal agency provide public notice. The State agen cy may rely upon the public notice pro vided by the Federal agency reviewing the application for the federal license or permit (e.g., notice of availability of NEPA documents) if such notice satis fies the minimum requirements set forth in paragraphs (a) and (b) of this section. (d) Federal and State agencies are en couraged to issue joint public notices, and hold joint public hearings, when ever possible to minimize duplication of effort and to avoid unnecessary delays. § 930.62 State agency concurrence with a consistency certification. (a) At the earliest practicable time, the State agency shall notify the Fed eral agency and the applicant whether the State agency concurs with or ob jects to a consistency certification. The State agency may issue a general concurrence for minor activities (see § 930.53(b)). Concurrence by the State agency shall be conclusively presumed if the State agency’s response is not re ceived within six months following commencement of State agency re view. (b) If the State agency has not issued a decision within three months fol lowing commencement of State agency review, it shall notify the applicant and the Federal agency of the status of VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00301 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 292 15 CFR Ch. IX (1–1–21 Edition) § 930.63 the matter and the basis for further delay. (c) If the State agency issues a con currence or is conclusively presumed to concur with the applicant’s consist ency certification, the Federal agency may approve the federal license or per mit application. Notwithstanding State agency concurrence with a con sistency certification, the federal per mitting agency may deny approval of the federal license or permit applica tion. Federal agencies should not delay processing applications pending receipt of a State agency’s concurrence. In the event a Federal agency determines that an application will not be ap proved, it shall immediately notify the applicant and the State agency. (d) During the period when the State agency is reviewing the consistency certification, the applicant and the State agency should attempt, if nec essary, to agree upon conditions, which, if met by the applicant, would permit State agency concurrence. The parties shall also consult with the Fed eral agency responsible for approving the federal license or permit to ensure that proposed conditions satisfy federal as well as management program re quirements (see also § 930.4). § 930.63 State agency objection to a consistency certification. (a) If the State agency objects to the applicant’s consistency certification within six months following com mencement of review, it shall notify the applicant, Federal agency and Di rector of the objection. A State agency may assert alternative bases for its ob jection, as described in paragraphs (b) and (c) of this section. (b) State agency objections that are based on sufficient information to evaluate the applicant’s consistency certification shall describe how the proposed activity is inconsistent with specific enforceable policies of the management program. The objection may describe alternative measures (if they exist) which, if adopted by the ap plicant, may permit the proposed ac tivity to be conducted in a manner con sistent with the enforceable policies of the management program. (c) A State agency objection may be based upon a determination that the applicant has failed, following a writ ten State agency request, to supply the information required pursuant to § 930.58 or other information necessary for the State agency to determine con sistency. If the State agency objects on the grounds of insufficient informa tion, the objection shall describe the nature of the information requested and the necessity of having such infor mation to determine the consistency of the activity with the management pro gram. The objection may describe al ternative measures (if they exist) which, if adopted by the applicant, may permit the proposed activity to be con ducted in a manner consistent with the enforceable policies of the management program. (d) Alternatives. If a State agency pro poses an alternative(s) in its objection letter, the alternative(s) shall be de scribed with sufficient specificity to allow the applicant to determine whether to, in consultation with the State agency: adopt an alternative; abandon the project; or file an appeal under subpart H. Application of the specificity requirement demands a case specific approach. More complicated activities or alternatives generally need more information than less-com plicated activities or alternatives. See § 930.121(c) for further details regarding alternatives for appeals under subpart H of this part. (e) A State agency objection shall in clude a statement to the following ef fect: Pursuant to 15 CFR part 930, subpart H, and within 30 days from receipt of this let ter, you may request that the Secretary of Commerce override this objection. In order to grant an override request, the Secretary must find that the activity is consistent with the objectives or purposes of the Coast al Zone Management Act, or is necessary in the interest of national security. A copy of the request and supporting information must be sent to the [Name of State] management program and the federal permitting or li censing agency. The Secretary may collect fees from you for administering and proc essing your request. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00302 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 293 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.66 § 930.64 Federal permitting agency re sponsibility. Following receipt of a State agency objection to a consistency certifi cation, the Federal agency shall not issue the federal license or permit ex cept as provided in subpart H of this part. § 930.65 Remedial action for pre viously reviewed activities. (a) Federal and State agencies shall cooperate in their efforts to monitor federal license or permit activities in order to make certain that such activi ties continue to conform to both fed eral and State requirements. (b) The State agency shall notify the relevant Federal agency representative for the area involved of any federal li cense or permit activity which the State agency claims was: (1) Previously determined to be con sistent with the management program, but which the State agency later main tains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent with the management pro gram; or (2) Previously determined not to be an activity affecting any coastal use or resource, but which the State agency later maintains is being conducted or is having coastal effects substantially different than originally described and, as a result, the activity affects any coastal use or resource in a manner in consistent with the management pro gram. (c) The State agency notification shall include: (1) A description of the activity in volved and the alleged lack of compli ance with the management program; (2) supporting information; and (3) a request for appropriate remedial action. A copy of the request shall be sent to the applicant and the Director. Remedial actions shall be linked to coastal effects substantially different than originally described. (d) If, after 30 days following a re quest for remedial action, the State agency still maintains that the appli cant is failing to comply substantially with the management program, the governor or State agency may file a written objection with the Director. If the Director finds that the applicant is conducting an activity that is substan tially different from the approved ac tivity, the applicant shall submit an amended or new consistency certifi cation and supporting information to the Federal agency and to the State agency, or comply with the originally approved certification. (e) An applicant shall be found to be conducting an activity substantially different from the approved activity if the State agency claims and the Direc tor finds that the activity affects any coastal use or resource substantially different than originally described by the applicant and, as a result, the ac tivity is no longer being conducted in a manner consistent with the enforceable policies of the management program. The Director may make a finding that an applicant is conducting an activity substantially different from the ap proved activity only after providing 15 days for the applicant and the Federal agency to review the State agency’s objection and to submit comments for the Director’s consideration. § 930.66 Supplemental coordination for proposed activities. (a) For federal license or permit pro posed activities that were previously determined by the State agency to be consistent with the management pro gram, but which have not yet begun, applicants shall further coordinate with the State agency and prepare a supplemental consistency certification if the proposed activity will affect any coastal use or resource substantially different than originally described. Substantially different coastal effects are reasonably foreseeable if: (1) The applicant makes substantial changes in the proposed activity that are relevant to management program enforceable policies; or (2) There are significant new cir cumstances or information relevant to the proposed activity and the proposed activity’s effect on any coastal use or resource. (3) Substantial changes were made to the activity during the period of the State agency’s initial review and the State agency did not receive notice of VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00303 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 294 15 CFR Ch. IX (1–1–21 Edition) § 930.70 the substantial changes during its re view period, and these changes are rel evant to management program enforce able policies and/or affect coastal uses or resources. (b) The State agency may notify the applicant, the Federal agency and the Director of proposed activities which the State agency believes should be subject to supplemental coordination. The State agency’s notification shall include information supporting a find ing of substantially different coastal effects than originally described and the relevant enforceable policies, and may recommend modifications to the proposed activity (if any) that would allow the applicant to implement the proposed activity consistent with the management program. State agency notification under subsection (b) does not remove the requirement under sub section (a) for applicants to notify State agencies. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006] Subpart E—Consistency for Outer Continental Shelf (OCS) Ex ploration, Development and Production Activities § 930.70 Objectives. The provisions of this subpart are in tended to ensure that all federal li cense or permit activities described in detail in OCS plans and which affect any coastal use or resource are con ducted in a manner consistent with ap proved management programs. § 930.71 Federal license or permit ac tivity described in detail. The term ‘‘federal license or permit activity described in detail’’ means any activity requiring a federal license or permit, as defined in § 930.51, which the Secretary of the Interior determines must be described in detail within an OCS plan. § 930.72 Person. The term ‘‘person’’ means any indi vidual, corporation, partnership, asso ciation, or other entity organized or existing under the laws of any State; the federal government; any State, re gional, or local government; or any en tity of such federal, State, regional or local government, who submits to the Secretary of the Interior, or designee following management program ap proval, an OCS plan which describes in detail federal license or permit activi ties. § 930.73 OCS plan. (a) The term ‘‘OCS plan’’ means any plan for the exploration or develop ment of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.), and the regulations under that Act, which is submitted to the Secretary of the Interior or designee following management program ap proval and which describes in detail federal license or permit activities. (b) The requirements of this subpart do not apply to federal license or per mit applications filed after manage ment program approval for activities described in detail in OCS plans ap proved by the Secretary of the Interior or designee prior to management pro gram approval. § 930.74 OCS activities subject to State agency review. Except for States which do not an ticipate coastal effects resulting from OCS activities, management program lists required pursuant to § 930.53 shall include a reference to OCS plans which describe in detail federal license or per mit activities affecting any coastal use or resource. § 930.75 State agency assistance to per sons. As a preliminary matter, any person intending to submit to the Secretary of the Interior an OCS plan which de scribes in detail federal license or per mit activities affecting any coastal use or resource should obtain the views and assistance of the State agency regard ing the means for ensuring that such activities will be conducted in a man ner consistent with the management program. As part of its assistance ef forts, the State agency shall make available for inspection copies of the management program document. Upon request by such persons, the State agency shall identify any enforceable VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00304 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 295 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.78 policies applicable to the proposed ac tivities, based upon the information submitted to the State agency. § 930.76 Submission of an OCS plan, necessary data and information and consistency certification. Any person submitting any OCS plan to the Secretary of the Interior or des ignee shall: (a) Any person submitting any OCS plan to the Secretary of the Interior or designee shall submit to the Secretary of the Interior or designee: (1) A copy of the OCS plan; (2) The consistency certification; (3) The necessary data and informa tion required pursuant to § 930.58; and (4) The information submitted pursu ant to the Department of the Interior’s OCS operating regulations (see 30 CFR 250.203 and 250.204) and OCS informa tion program regulations (see 30 CFR part 252). (b) The Secretary of the Interior or designee shall furnish the State agency with a copy of the information sub mitted under paragraph (a) of this sec tion (excluding confidential and propri etary information). (c) The person’s consistency certifi cation shall be in the following form: The proposed activities described in detail in this plan comply with (name of State(s)) approved management program(s) and will be conducted in a manner consistent with such program(s). [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006] § 930.77 Commencement of State agen cy review and public notice. (a)(1) Except as provided in § 930.60(a), State agency review of the person’s consistency certification begins at the time the State agency receives the cer tification and information required pursuant to § 930.76(a) and (b). If a per son has submitted the documents re quired by § 930.76(a) and (b), then a State agency’s assertion that the infor mation contained in the submitted doc uments is substantively deficient, or a State agency’s request for clarification of the information provided, or infor mation and data in addition to that re quired by § 930.76 shall not delay or oth erwise change the date on which State agency review begins. (2) To assess consistency, the State agency shall use the information sub mitted pursuant to § 930.76. If a State agency wants to augment the nec essary data and information required by § 930.76 to start the six-month review period for OCS plans, then the State can only do so if it amends its manage ment program to include the informa tion under § 930.58(a)(2). (3) After the State agency’s review begins, if the State agency requests ad ditional information, it shall describe in writing to the person and to the Sec retary of the Interior or its designee the reasons why the information pro vided under § 930.76 is not adequate to complete its review, and the nature of the information requested and the ne cessity of having such information to determine consistency with the en forceable policies of the management program. The State agency shall make its request for additional information no later than three months after com mencement of the State agency’s re view period. The State agency shall not request additional information after the three-month notification period de scribed in § 930.78(a). However, the State agency may request additional information after the three-month no tification period if the person or the Secretary of the Interior or its des ignee changes the OCS plan after the three-month notification period such that the plan describes activities or coastal effects not previously described and for which information was not pre viously provided pursuant to § 930.76. (b) Following receipt of the material described in paragraph (a) of this sec tion, the State agency shall ensure timely public notice of the proposed activities in accordance with § 930.61. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 828, Jan. 5, 2006] § 930.78 State agency concurrence or objection. (a) At the earliest practicable time, the State agency shall notify in writ ing the person, the Secretary of the In terior or designee and the Director of its concurrence with or objection to the consistency certification. State agencies should restrict the period of public notice, receipt of comments, hearing proceedings and final decision VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00305 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 296 15 CFR Ch. IX (1–1–21 Edition) § 930.79 making to the minimum time nec essary to reasonably inform the public, obtain sufficient comment, and develop a decision on the matter. If the State agency has not issued a decision within three months following commencement of State agency review, it shall notify the person, the Secretary of the Inte rior or designee and the Director of the status of review and the basis for fur ther delay in issuing a final decision. Notice shall be in written form and postmarked no later than three months following the commencement of the State agency’s review. Concurrence by the State agency shall be conclusively presumed if the notification required by this subparagraph is not provided. (b) Concurrence by the State agency shall be conclusively presumed if the State agency’s response to the consist ency certification is not received with in six months following commence ment of State agency review. (c) If the State agency objects to one or more of the federal license or permit activities described in detail in the OCS plan, it must provide a separate discussion for each objection in accord ance with § 930.63. § 930.79 Effect of State agency concur rence. (a) If the State agency issues a con currence or is conclusively presumed to concur with the person’s consistency certification, the person will not be re quired to submit additional consist ency certifications and supporting in formation for State agency review at the time federal applications are actu ally filed for the federal licenses or per mits to which such concurrence ap plies. (b) Unless the State agency indicates otherwise, copies of federal license or permit applications for activities de scribed in detail in an OCS plan which has received State agency concurrence shall be sent by the person to the State agency to allow the State agency to monitor the activities. Confidential and proprietary material within such applications may be deleted. § 930.80 Federal permitting agency re sponsibility. Following receipt of a State agency objection to a consistency certification related to federal license or permit ac tivities described in detail in an OCS plan, the Federal agency shall not issue any of such licenses or permits except as provided in subpart H of this part. § 930.81 Multiple permit review. (a) A person submitting a consist ency certification for federal license or permit activities described in detail in an OCS plan is strongly encouraged to work with other Federal agencies in an effort to include, for consolidated State agency review, consistency cer tifications and supporting data and in formation applicable to OCS-related federal license or permit activities af fecting any coastal use or resource which are not required to be described in detail in OCS plans but which are subject to State agency consistency re view (e.g., Corps of Engineer permits for the placement of structures on the OCS and for dredging and the transpor tation of dredged material, Environ mental Protection Agency air and water quality permits for offshore op erations and onshore support and proc essing facilities). In the event the per son does not consolidate such OCS-re lated permit activities with the State agency’s review of the OCS plan, such activities will remain subject to indi vidual State agency review under the requirements of subpart D of this part. (b) A State agency objection to one or more of the OCS-related federal li cense or permit activities submitted for consolidated review shall not pre vent the person from receiving Federal agency approval: (1) For those OCS-related license or permit activities found by the State agency to be consistent with the man agement program; and (2) For the license or permit activi ties described in detail in the OCS plan provided the State agency concurs with the consistency certification for such plan. Similarly, a State agency objec tion to the consistency certification for an OCS plan shall not prevent the person from receiving Federal agency approval for those OCS-related license or permit activities determined by the State agency to be consistent with the management program. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00306 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 297 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.85 § 930.82 Amended OCS plans. If the State agency objects to the person’s OCS plan consistency certifi cation, and/or if, pursuant to subpart H of this part, the Secretary does not de termine that each of the objected to federal license or permit activities de scribed in detail in such plan is con sistent with the objectives or purposes of the Act, or is necessary in the inter est of national security, and if the per son still intends to conduct the activi ties described in the OCS plan, the per son shall submit an amended plan to the Secretary of the Interior or des ignee along with a consistency certifi cation and data and information nec essary to support the amended consist ency certification. The data and infor mation shall specifically describe modifications made to the original OCS plan, and the manner in which such modifications will ensure that all of the proposed federal license or per mit activities described in detail in the amended plan will be conducted in a manner consistent with the manage ment program. When satisfied that the person has met the requirements of the OCSLA and this subpart, the Secretary of the Interior or designee shall furnish the State agency with a copy of the amended OCS plan (excluding confiden tial and proprietary information), nec essary data and information and con sistency certification. [71 FR 829, Jan. 5, 2006] § 930.83 Review of amended OCS plans; public notice. After receipt of a copy of the amend ed OCS plan, consistency certification, and necessary data and information, State agency review shall begin. The requirements of §§ 930.77, 930.78, and 930.79, apply to the review of amended OCS plans, except that the applicable time period for purposes of concurrence by conclusive presumption shall be three months instead of six months. § 930.84 Continuing State agency ob jections. If the State agency objects to the consistency certification for an amend ed OCS plan, the prohibition in § 930.80 against Federal agency approval of li censes or permits for activities de scribed in detail in such a plan applies, further Secretarial review pursuant to subpart H of this part may take place, and the development of an additional amended OCS plan and consistency cer tification may be required pursuant to §§ 930.82 through 930.83. § 930.85 Failure to substantially com ply with an approved OCS plan. (a) The Department of the Interior and State agencies shall cooperate in their efforts to monitor federally li censed or permitted activities de scribed in detail OCS plans to make certain that such activities continue to conform to both federal and State re quirements. (b) If a State agency claims that a person is failing to substantially com ply with an approved OCS plan subject to the requirements of this subpart, and such failure allegedly involves the conduct of activities affecting any coastal use or resource in a manner that is not consistent with the ap proved management program, the State agency shall transmit its claim to the Minerals Management Service region involved. Such claim shall in clude a description of the specific ac tivity involved and the alleged lack of compliance with the OCS plan, and a request for appropriate remedial ac tion. A copy of the claim shall be sent to the person. (c) If a person fails to substantially comply with an approved OCS plan, as determined by Minerals Management Service, pursuant to the Outer Conti nental Shelf Lands Act and applicable regulations, the person shall come into compliance with the approved plan or shall submit an amendment to such plan or a new plan to Minerals Manage ment Service. When satisfied that the person has met the requirements of the OCSLA and this subpart, and the Sec retary of the Interior or designee has made the determination required under 30 CFR 250.203(n)(2) or § 250.204(q)(2), as applicable, the Secretary of the Inte rior or designee shall furnish the State agency with a copy of the amended OCS plan (excluding proprietary infor mation), necessary data and informa tion and consistency certification. Sec tions 930.82 through 930.84 shall apply to further State agency review of the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00307 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 298 15 CFR Ch. IX (1–1–21 Edition) § 930.90 consistency certification for the amended or new plan. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006] Subpart F—Consistency for Fed eral Assistance to State and Local Governments § 930.90 Objectives. The provisions of this subpart are in tended to ensure that federal assist ance to applicant agencies for activi ties affecting any coastal use or re source is granted only when such ac tivities are consistent with approved management programs. The provisions of subpart I of this part are intended to supplement the provisions of this sub part for federal assistance activities having interstate coastal effects. § 930.91 Federal assistance. The term ‘‘federal assistance’’ means assistance provided under a federal pro gram to an applicant agency through grant or contractual arrangements, loans, subsidies, guarantees, insurance, or other form of financial aid. § 930.92 Applicant agency. The term ‘‘applicant agency’’ means any unit of State or local government, or any related public entity such as a special purpose district, which, fol lowing management program approval, submits an application for federal as sistance. § 930.93 Intergovernmental review process. The term ‘‘intergovernmental review process’’ describes the procedures es tablished by States pursuant to E.O. 12372, ‘‘Intergovernmental Review of Federal Programs,’’ and implementing regulations of the review of federal fi nancial assistance to applicant agen cies. § 930.94 State review process for con sistency. (a) States with approved manage ment programs should review applica tions from applicant agencies for fed eral assistance in accordance with E.O. 12372 and implementing regulations. (b) The applicant agency shall submit an application for federal assistance to the State agency for consistency re view, through the intergovernmental review process or by direct submission to the State agency, for any proposed federal assistance activity that is list ed in the management program as a type of activity that will have a rea sonably foreseeable effect on any coastal use or resource and occurring within the coastal zone (see § 930.95(a)) or within a described geographic area outside of the coastal zone (see § 930.95(b)). (c) Applicant agency evaluation. The applicant agency shall provide to the State agency, in addition to the federal application, a brief evaluation on the relationship of the proposed activity and any reasonably foreseeable coastal effects to the enforceable policies of the management program. § 930.95 Guidance provided by the State agency. (a) State agencies should include within the management program a list ing of specific types of federal assist ance programs subject to a consistency review. Such a listing, and any amend ments, will require prior State agency consultation with affected Federal agencies and approval by the Director as a program change. (b) In the event the State agency chooses to review applications for fed eral assistance activities outside of the coastal zone but with reasonably fore seeable coastal effects, the State agen cy shall develop a federal assistance provision within the management pro gram generally describing the geo graphic area (e.g., coastal floodplains) within which federal assistance activi ties will be subject to review. This pro vision, and any refinements, will re quire prior State agency consultation with affected Federal agencies and ap proval by the Director as a program change. Listed activities may have dif ferent geographic location descrip tions, depending on the nature of the activity and its effects on any coastal use or resource. For example, the geo graphic location for activities affecting water resources or uses could be de scribed by shared water bodies, river basins, boundaries defined under the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00308 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 299 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.99 coastal nonpoint pollution control pro gram, or other ecologically identifiable areas. (c) The State agency shall provide copies of any federal assistance list or geographic provision, and any refine ments, to Federal agencies and units of applicant agencies empowered to un dertake federally assisted activities within the coastal zone or described ge ographic area. (d) For review of unlisted federal as sistance activities, the State agency shall follow the same procedures as it would follow for review of listed federal assistance activities outside of the coastal zone or the described geo graphic area. (See § 930.98.) § 930.96 Consistency review. (a)(1) If the State agency does not ob ject to the proposed activity, the Fed eral agency may grant the federal as sistance to the applicant agency. Not withstanding State agency consistency approval for the proposed project, the Federal agency may deny assistance to the applicant agency. Federal agencies should not delay processing (so long as they do not approve) applications pend ing receipt of a State agency approval or objection. In the event a Federal agency determines that an application will not be approved, it shall imme diately notify the applicant agency and the State agency. (2) During the period when the State agency is reviewing the activity, the applicant agency and the State agency should attempt, if necessary, to agree upon conditions which, if met by the applicant agency, would permit State agency approval. The parties shall also consult with the Federal agency re sponsible for providing the federal as sistance to ensure that proposed condi tions satisfy federal requirements as well as management program require ments. (b) If the State agency objects to the proposed project, the State agency shall notify the applicant agency, Fed eral agency and the Director of the ob jection pursuant to § 930.63. § 930.97 Federal assisting agency re sponsibility. Following receipt of a State agency objection, the Federal agency shall not approve assistance for the activity ex cept as provided in subpart H of this part. § 930.98 Federally assisted activities outside of the coastal zone or the described geographic area. State agencies should monitor pro posed federal assistance activities out side of the coastal zone or the de scribed geographic area (e.g., by use of the intergovernmental review process, review of NEPA documents, FEDERAL REGISTER) and shall immediately no tify applicant agencies, Federal agen cies, and any other agency or office which may be identified by the State in its intergovernmental review process pursuant to E.O. 12372 of proposed ac tivities which will have reasonably foreseeable coastal effects and which the State agency is reviewing for con sistency with the management pro gram. Notification shall also be sent by the State agency to the Director. The Director, in his/her discretion, may re view the State agency’s decision to re view the activity. The Director may disapprove the State agency’s decision to review the activity only if the Direc tor finds that the activity will not af fect any coastal use or resource. The Director shall be guided by the provi sions in § 930.54(c). For purposes of this subpart, State agencies must inform the parties of objections within the time period permitted under the inter governmental review process, other wise the State agency waives its right to object to the proposed activity. § 930.99 Availability of mediation for federal assistance disputes. In the event of a serious disagree ment between a Federal agency and the State agency regarding whether a fed eral assistance activity is subject to the consistency requirement either party may request the OCRM medi ation or Secretarial mediation services provided for in subpart G of this part. The existence of a serious disagree ment will not relieve the Federal agen cy from the responsibility for with holding federal assistance for the ac tivity pending satisfaction of the re quirements of this subpart, except in VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00309 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 300 15 CFR Ch. IX (1–1–21 Edition) § 930.100 cases where the Director has dis approved a State agency decision to re view an activity. § 930.100 Remedial action for pre viously reviewed activities. (a) Federal and State agencies shall cooperate in their efforts to monitor federal assistance activities in order to make certain that such activities con tinue to conform to both federal and State requirements. (b) The State agency shall notify the relevant Federal agency representative for the area involved of any federal as sistance activity which the State agen cy claims was: (1) Previously determined to be con sistent with the management program, but which the State agency later main tains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result, is no longer consistent with the management pro gram, or (2) Previously determined not to be a project affecting any coastal use or re source, but which the State agency later maintains is being conducted or is having an effect on any coastal use or resource substantially different than originally described and, as a result the project affects a coastal use or resource in a manner inconsistent with the management program. (c) The State agency notification shall include: (1) A description of the activity in volved and the alleged lack of compli ance with the management program; (2) supporting information; and (3) a request for appropriate remedial action. A copy of the request shall be sent to the applicant agency and the Director. (d) If, after 30 days following a re quest for remedial action, the State agency still maintains that the appli cant agency is failing to comply sub stantially with the management pro gram, the State agency may file a writ ten objection with the Director. If the Director finds that the applicant agen cy is conducting an activity that is substantially different from the ap proved activity, the State agency may reinitiate its review of the activity, or the applicant agency may conduct the activity as it was originally approved. (e) An applicant agency shall be found to be conducting an activity sub stantially different from the approved activity if the State agency claims and the Director finds that the activity af fects any coastal use or resource sub stantially different than originally de termined by the State agency and, as a result, the activity is no longer being conducted in a manner consistent with the management program. The Direc tor may make a finding that an appli cant agency is conducting an activity substantially different from the ap proved activity only after providing a reasonable opportunity for the appli cant agency and the Federal agency to review the State agency’s objection and to submit comments for the Direc tor’s consideration. § 930.101 Supplemental coordination for proposed activities. (a) For federal assistance activities that were previously determined by the State agency to be consistent with the management program, but which have not yet begun, the applicant agency shall further coordinate with the State agency if the proposed activity will af fect any coastal use or resource sub stantially different than originally de scribed. Substantially different coastal effects are reasonably foreseeable if: (1) The applicant agency makes sub stantial changes in the proposed activ ity that are relevant to management program enforceable policies; or (2) There are significant new cir cumstances or information relevant to the proposed activity and the proposed activity’s effect on any coastal use or resource. (3) Substantial changes were made to the activity during the period of the State agency’s initial review and the State agency did not receive notice of the substantial changes during its re view period, and these changes are rel evant to management program enforce able policies and/or affect coastal uses or resources. (b) The State agency may notify the applicant agency, the Federal agency and the Director of proposed activities which the State agency believes should VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00310 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 301 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.114 be subject to supplemental coordina tion. The State agency’s notification shall include information supporting a finding of substantially different coast al effects than originally described and the relevant enforceable policies, and may recommend modifications to the proposed activity (if any) that would allow the applicant agency to imple ment the proposed activity consistent with the management program. State agency notification under paragraph (b) of this section does not remove the requirement under paragraph (a) of this section for applicant agencies to notify State agencies. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006] Subpart G—Secretarial Mediation § 930.110 Objectives. The purpose of this subpart is to de scribe mediation procedures which Federal and State agencies may use to attempt to resolve serious disagree ments which arise during the adminis tration of approved management pro grams. § 930.111 OCRM mediation. The availability of mediation does not preclude use by the parties of alter native means for resolving their dis agreement. In the event a serious dis agreement arises, the parties are strongly encouraged to make every ef fort to resolve the disagreement infor mally. OCRM shall be available to as sist the parties in these efforts. § 930.112 Request for Secretarial medi ation. (a) The Secretary or other head of a Federal agency, or the Governor or the State agency, may notify the Sec retary in writing of the existence of a serious disagreement, and may request that the Secretary seek to mediate the disagreement. A copy of the written re quest must be sent to the agency with which the requesting agency disagrees, to the Assistant Administrator, and to the Director. (b) Within 15 days following receipt of a request for mediation the dis agreeing agency shall transmit a writ ten response to the Secretary, and to the agency requesting mediation, indi cating whether it wishes to participate in the mediation process. If the dis agreeing agency declines the offer to enter into mediation efforts, it must indicate the basis for its refusal in its response. Upon receipt of a refusal to participate in mediation efforts, the Secretary shall seek to persuade the disagreeing agency to reconsider its de cision and enter into mediation efforts. If the disagreeing agencies do not all agree to participate, the Secretary will cease efforts to provide mediation as sistance. § 930.113 Public hearings. (a) If the parties agree to the medi ation process, the Secretary shall ap point a hearing officer who shall sched ule a hearing in the local area con cerned. The hearing officer shall give the parties at least 30 days notice of the time and place set for the hearing and shall provide timely public notice of the hearing. (b) At the time public notice is pro vided, the Federal and State agencies shall provide the public with conven ient access to public data and informa tion related to the serious disagree ment. (c) Hearings shall be informal and shall be conducted by the hearing offi cer with the objective of securing in a timely fashion information related to the disagreement. The Federal and State agencies, as well as other inter ested parties, may offer information at the hearing subject to the hearing offi cer’s supervision as to the extent and manner of presentation. A party may also provide the hearing officer with written comments. Hearings will be re corded and the hearing officer shall provide transcripts and copies of writ ten information offered at the hearing to the Federal and State agency par ties. The public may inspect and copy the transcripts and written informa tion provided to these agencies. § 930.114 Secretarial mediation efforts. (a) Following the close of the hear ing, the hearing officer shall transmit the hearing record to the Secretary. Upon receipt of the hearing record, the Secretary shall schedule a mediation VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00311 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 302 15 CFR Ch. IX (1–1–21 Edition) § 930.115 conference to be attended by represent atives from the Office of the Secretary, the disagreeing Federal and State agencies, and any other interested par ties whose participation is deemed nec essary by the Secretary. The Secretary shall provide the parties at least 10 days notice of the time and place set for the mediation conference. (b) Secretarial mediation efforts shall last only so long as the Federal and State agencies agree to partici pate. The Secretary shall confer with the Executive Office of the President, as necessary, during the mediation process. § 930.115 Termination of mediation. Mediation shall terminate: (a) At any time the Federal and State agencies agree to a resolution of the serious disagreement, (b) If one of the agencies withdraws from mediation, (c) In the event the agencies fail to reach a resolution of the disagreement within 15 days following Secretarial conference efforts, and the agencies do not agree to extend mediation beyond that period, or (d) For other good cause. § 930.116 Judicial review. The availability of the mediation services provided in this subpart is not intended expressly or implicitly to limit the parties’ use of alternate fo rums to resolve disputes. Specifically, judicial review where otherwise avail able by law may be sought by any party to a serious disagreement with out first having exhausted the medi ation process provided for in this sub part. Subpart H—Appeal to the Sec retary for Review Related to the Objectives of the Act and National Security Interests § 930.120 Objectives. This subpart sets forth the proce dures by which the Secretary may find that a federal license or permit activ ity, including those described in detail in an OCS plan, or a federal assistance activity, which a State agency has found to be inconsistent with the en forceable policies of the management program, may be federally approved be cause the activity is consistent with the objectives or purposes of the Act, or is necessary in the interest of na tional security. § 930.121 Consistent with the objec tives or purposes of the Act. A federal license or permit activity, or a federal assistance activity, is ‘‘consistent with the objectives or pur poses of the Act’’ if it satisfies each of the following three requirements: (a) The activity furthers the national interest as articulated in § 302 or § 303 of the Act, in a significant or substantial manner, (b) The national interest furthered by the activity outweighs the activity’s adverse coastal effects, when those ef fects are considered separately or cu mulatively. (c) There is no reasonable alternative available which would permit the ac tivity to be conducted in a manner con sistent with the enforceable policies of the management program. The Sec retary may consider but is not limited to considering previous appeal deci sions, alternatives described in state objection letters and alternatives and other information submitted during the appeal. The Secretary shall not consider an alternative unless the State agency submits a statement, in a brief or other supporting material, to the Secretary that the alternative would permit the activity to be con ducted in a manner consistent with the enforceable policies of the management program. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006] § 930.122 Necessary in the interest of national security. A federal license or permit activity, or a federal assistance activity, is ‘‘necessary in the interest of national security’’ if a national defense or other national security interest would be sig nificantly impaired were the activity not permitted to go forward as pro posed. Secretarial review of national security issues shall be aided by infor mation submitted by the Department of Defense or other interested Federal agencies. The views of such agencies, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00312 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 303 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.125 while not binding, shall be given con siderable weight by the Secretary. The Secretary will seek information to de termine whether the objected-to activ ity directly supports national defense or other essential national security ob jectives. § 930.123 Definitions. (a) The ‘‘appellant’’ is the applicant, person or applicant agency submitting an appeal to the Secretary pursuant to this subpart. (b) For the purposes of this subpart, the ‘‘Federal agency’’ is the agency whose proposed issuance of a license or permit or grant of assistance is the subject of the appeal to the Secretary. (c) The term ‘‘energy project’’ means projects related to the siting, construc tion, expansion, or operation of any fa cility designed to explore, develop, produce, transmit or transport energy or energy resources that are subject to review by a coastal State under sub parts D, E, F or I of this part. (d) The term ‘‘consolidated record’’ means the record of all decisions made or actions taken by the lead Federal permitting agency or by another Fed eral or State administrative agency or officer, maintained by the lead Federal permitting agency, with the coopera tion of Federal and State administra tive agencies, related to any federal authorization for the permitting, ap proval or other authorization of an en ergy project. (e) The term ‘‘lead Federal permit ting agency’’ means the Federal agency required to: issue a federal license or permit under subparts D or I of this part; approve an OCS plan under sub part E of this part; or provide federal financial assistance under subparts F or I of this part for an energy project. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 829, Jan. 5, 2006] § 930.124 Computation of time. The first day of any period of time al lowed or prescribed by these rules, shall not be included in the computa tion of the designated period of time. The last day of the time period com puted shall be included unless it is a Saturday, Sunday or a Federal holiday, in which case the period runs until the next day which is not one of the afore mentioned days. § 930.125 Notice of appeal and applica tion fee to the Secretary. (a) To obtain Secretarial review of a State agency objection, the appellant shall file a notice of appeal with the Secretary within 30 days of receipt of a State agency objection. (b) The appellant’s notice of appeal shall include a statement explaining the appellant’s basis for appeal of the State agency’s objection under §§ 930.121 and/or 930.122 of this title, in cluding any procedural arguments pur suant to § 930.129(b). Bases for appeal (including procedural arguments) not identified in the appellant’s notice of appeal shall not be considered by the Secretary. (c) The appellant’s notice of appeal shall be accompanied by payment of an application fee or a request for a waiv er of such fees. An appeal involving a project valued in excess of $1 million shall be considered a major appeal and the application fee is $500.00. All other appeals shall be considered minor ap peals and the application fee is $200.00. (d) The appellant shall send the No tice of appeal to the Secretary, Herbert C. Hoover Building, 14th Street and Constitution Avenue, NW., Wash ington, DC 20230; a copy of the notice of appeal to the objecting State agency; and to the Assistant General Counsel for Ocean Services (GCOS), 1305 East West Highway, Room 6111 SSMC 4, Sil ver Spring, Maryland 20910. (e) No extension of time will be per mitted for the filing of a notice of ap peal. (f) The Secretary shall waive any or all fees if the Secretary concludes upon review of the appellant’s fee waiver re quest that such fees impose an eco nomic hardship on appellant. The re quest for a waiver and demonstration of economic hardship shall accompany the notice of appeal. If the Secretary denies a request for a waiver and the appellant wishes to continue with the appeal, the appellant shall submit the appropriate fees to the Secretary with in 10 days of receipt of the Secretary’s denial. If the fees are not received by VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00313 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 304 15 CFR Ch. IX (1–1–21 Edition) § 930.126 the 10th day, then the Secretary shall dismiss the appeal. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 830, Jan. 5, 2006; 71 FR 75865, Dec. 19, 2006] § 930.126 Consistency appeal proc essing fees. The Secretary shall collect as a proc essing fee such other fees from the ap pellant as are necessary to recover the full costs of administering and proc essing appeals to the Secretary under section 307(c) of the Act. All processing fees shall be assessed and collected no later than 60 days after publication of the FEDERAL REGISTER Notice closing the decision record. Failure to submit processing fees shall be grounds for ex tending the time for issuance of a deci sion pursuant to section 319(a)(2) of the Act (16 U.S.C. 1465(a)(2)) and § 930.130 of this subpart. § 930.127 Briefs and supporting mate rials. (a) Within 30 days of submitting the notice of appeal, as specified in § 930.125, the appellant shall submit to the Secretary its principal brief accom panied by the appendix described in paragraph (c) of this section. Within 60 days of the appellant’s filing of the no tice of appeal, the State agency shall submit to the Secretary its principal brief accompanied by a supplemental appendix, if any, described in para graph (c) of this section. Not later than 20 days after appellant’s receipt of the State agency’s brief, appellant may submit to the Secretary a reply brief accompanied by a supplemental appen dix, if any, described in paragraph (c) of this section. (b) A principal brief shall not exceed 30 double-spaced pages; appellant’s reply brief shall not exceed 15 double spaced pages. Any table of contents, table of citations, or certifications of mailing and/or service do not count to ward the page limitations. (c) The appellant must prepare and file an appendix with its brief con taining: (1) Its consistency certification; (2) The State agency’s objection; and (3) All such supporting documenta tion and material as the appellant deems necessary for consideration by the Secretary. The State agency (or ap pellant on reply) shall cite to appel lant’s appendix or may file a supple mental appendix to include additional documentation and material as the State agency (or appellant on reply) deems necessary for consideration by the Secretary that was not included in appellant’s appendix (or the State agency’s supplemental appendix). The parties are encouraged to discuss the contents of appellant’s appendix in order to include in the appendix as much of the supporting documentation and material as any party deems nec essary for consideration by the Sec retary. In an appeal for an energy project, supporting documentation and material shall be limited to the parts of the consolidated record described in paragraph (i)(1) of this section to which the appellant or the State agency wish es to direct the Secretary’s attention. (d)(1) Both the appellant and State agency shall send two copies of their briefs and supporting materials to the Office of General Counsel for Ocean Services (GCOS), NOAA, 1305 East West Highway, Room 6111 SSMC4, Silver Spring, Maryland 20910. One copy must be in an electronic format compatible (to the extent practicable) with the website maintained by the Secretary to provide public information concerning appeals under the CZMA. (2) The appellant and State agency shall serve on each other at least one copy of their briefs, supporting mate rials, and all requests and communica tions submitted to the Secretary, at the same time that materials are sub mitted to the Secretary. (3) Each submission to the Secretary shall be accompanied by a certification of mailing and/or service on the other party. Service may be done by mail or hand delivery. Materials or briefs sub mitted to the Secretary not in compli ance with this subpart may be dis regarded and not entered into the Sec retary’s decision record of the appeal. (e)(1) The Secretary has broad au thority to implement procedures gov erning the consistency appeal process to ensure efficiency and fairness to all parties. The appeal decision record is composed of the briefs and supporting materials submitted by the State agen cy and appellant, public comments and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00314 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 305 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.128 the comments, if any, submitted by in terested Federal agencies. As noted in § 930.128(c)(1), the Secretary gives def erence to the views of interested Fed eral agencies when commenting in their areas of expertise and takes no tice of relevant administrative deci sions, including licenses or permits, re lated to an appellant’s proposed activ ity when submitted to the appeal deci sion record. The Secretary determines the content of the appeal decision record. The Secretary may determine, on the Secretary’s own initiative, that additional information is necessary to the Secretary’s decision, including doc uments prepared by Federal agencies pursuant to the National Environ mental Policy Act (42 U.S.C. 4321 et seq.) and the Endangered Species Act (16 U.S.C. 1531 et seq.), and may request such information. (2) To promote efficient use of time and resources, the Secretary may, upon the Secretary’s own initiative, require the appellant and the State agency to submit briefs and supporting materials relevant only to procedural or jurisdic tional issues presented in the Notice of Appeal or identified by the Secretary. Following a decision of the procedural or jurisdictional issues, the Secretary may require briefs on substantive issues raised by the appeal if necessary. (3) The Secretary may require the ap pellant and the State agency to submit briefs in addition to those described in paragraphs (a) and (e) of this section as necessary. (4) Any briefs not requested or re quired by the Secretary may be dis regarded and not entered into the Sec retary’s decision record of the appeal. (f) The appellant bears the burden of submitting evidence in support of its appeal and the burden of persuasion. (g) The Secretary may extend the time for submission, and length, of briefs and supporting materials for good cause. (h) Where a State agency objection is based in whole or in part on a lack of information, the Secretary shall limit the record on appeal to information previously submitted to the State agency and relevant comments there on, except as provided for in § 930.129(b) and (c). (i) Appeal Decision Record for Energy Projects. The provisions of this para graph apply only to appeals for energy projects. (1) The Secretary shall use the con solidated record maintained by the lead Federal permitting agency as the initial record for an appeal under this subpart for energy projects. (2) The appellant’s notice of appeal required by § 930.125(a) and (b) must be accompanied by two copies of the con solidated record maintained by the lead Federal permitting agency. One copy of the consolidated record must be in an electronic format compatible (to the extent practicable) with the website maintained by the Secretary to provide public information concerning appeals under the CZMA. Notwith standing § 930.125(e), the Secretary may extend the time for filing a notice of appeal in connection with an energy project for good cause shown to allow appellant additional time to prepare the consolidated record for filing. (3) The appellant and the State agen cy shall submit briefs as required by paragraphs (a), (b) and (c) of this sec tion. (4) Supplemental information may be accepted and included in the decision record by the Secretary only as al lowed by § 930.130(a)(2). [71 FR 830, Jan. 5, 2006, as amended at 71 FR 75865, Dec. 19, 2006] § 930.128 Public notice, comment pe riod, and public hearing. (a) The Secretary shall provide pub lic notice of the appeal within 30 days after the receipt of the Notice of Ap peal by publishing a Notice in the FED ERAL REGISTER and in a publication of general circulation in the immediate area of the coastal zone likely to be af fected by the proposed activity. (b) Except in the case of appeals in volving energy projects, the Secretary shall provide a 30-day period for the public and interested Federal agencies to comment on the appeal. Notice of the public and Federal agency com ment period shall be provided in the Notice required in paragraph (a) of this section. (c)(1) The Secretary shall accord greater weight to those Federal agen cies whose comments are within the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00315 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 306 15 CFR Ch. IX (1–1–21 Edition) § 930.129 subject areas of their technical exper tise. (2) The Secretary may, on the Sec retary’s own initiative or upon written request, for good cause shown, reopen the period for Federal agency com ments before the closure of the deci sion record. (d) Except in the case of appeals in volving energy projects, the Secretary may hold a public hearing in response to a request or on the Secretary’s own initiative. A request for a public hear ing must be filed with the Secretary within 30 days of the publication of the Notice in the FEDERAL REGISTER re quired in paragraph (a) of this section. If a hearing is held by the Secretary, it shall be noticed in the FEDERAL REG ISTER and guided by the procedures de scribed within § 930.113. If a hearing is held by the Secretary, the FEDERAL REGISTER notice for the hearing shall reopen the public and Federal agency comment period and shall close such comment period 10 days after the hear ing. [71 FR 831, Jan. 5, 2006] § 930.129 Dismissal, remand, stay, and procedural override. (a) The Secretary may dismiss an ap peal for good cause. A dismissal is the final agency action. Good cause shall include, but is not limited to: (1) Failure of the appellant to submit a notice of appeal within the required 30-day period. (2) Failure of the appellant to submit a brief or supporting materials within the required period; (3) Failure of the appellant to pay a required fee; (4) Denial by the Federal agency of the federal license, permit or assist ance application; or (5) Failure of the appellant to base the appeal on grounds that the pro posed activity is either consistent with the objectives or purposes of the Act, or necessary in the interest of national security. (b) If the State agency’s consistency objection is not in compliance with section 307 of the Act and the regula tions contained in subparts D, E, F, or I of this part, the Secretary shall over ride the State’s objection. The Sec retary may make this determination as a threshold matter. (c) The Secretary may stay the proc essing of an appeal in accordance with § 930.130. (d) The Secretary may remand an ap peal to the State agency for reconsider ation of the project’s consistency with the enforceable policies of the State’s management program if significant new information relevant to the State agency’s objection, not previously pro vided to the State agency during its consistency review, is submitted to the Secretary. The Secretary shall deter mine a time period for the remand to the State agency. The time period for remand must be completed within the period described in § 930.130 for the de velopment of the Secretary’s decision record. If the State agency responds that it still objects to the activity, then the Secretary shall continue to process the appeal. If the State agency concurs that the activity is consistent with the enforceable policies of the State’s management program, then the Secretary shall declare the appeal moot and notify the Federal agency that the activity may be federally ap proved. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 831, Jan. 5, 2006] § 930.130 Closure of the decision record and issuance of decision. (a)(1) With the exception of para graph (a)(2) of this section, the Sec retary shall close the decision record not later than 160 days after the date that the Secretary’s Notice of Appeal is published in the FEDERAL REGISTER under § 930.128(a). After closing the de cision record, the Secretary shall im mediately publish a notice in the FED ERAL REGISTER stating that the deci sion record has been closed. The notice shall also state that the Secretary shall not consider additional informa tion, briefs or comments. (2) The Secretary may stay the clos ing of the decision record during the 160-day period described in paragraph (a)(1) of this section: (i) For a specific period mutually agreed to in writing by the appellant and the State agency; or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00316 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 307 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.151 (ii) As the Secretary determines nec essary to receive, on an expedited basis: (A) Any supplemental information specifically requested by the Secretary to complete a consistency review under the Act; or (B) Any clarifying information sub mitted by a party to the proceeding re lated to information in the consoli dated record compiled by the lead Fed eral permitting agency. (3) The Secretary may only stay the 160-day period described in paragraph (a)(1) of this section for a period not to exceed 60 days. (b) Not later than 60 days after the date of publication of a FEDERAL REG ISTER notice stating when the decision record for an appeal has been closed, the Secretary shall issue a decision or publish a notice in the FEDERAL REG ISTER explaining why a decision cannot be issued at that time. The Secretary shall issue a decision not later than 15 days after the date of publication of a FEDERAL REGISTER notice explaining why a decision cannot be issued within the 60-day period. (c) The decision of the Secretary shall constitute final agency action for the purposes of the Administrative Procedure Act. (d) In reviewing an appeal, the Sec retary shall find that a proposed fed eral license or permit activity, or a federal assistance activity, is con sistent with the objectives or purposes of the Act, or is necessary in the inter est of national security, when the in formation in the decision record sup ports this conclusion. (e)(1) If the Secretary finds that the proposed activity is consistent with the objectives or purposes of the Act, or is necessary in the interest of na tional security, the Federal agency may approve the activity. (2) If the Secretary does not make ei ther of these findings, the Federal agency shall not approve the activity. [65 FR 77154, Dec. 8, 2000, as amended at 71 FR 831, Jan. 5, 2006] § 930.131 Review initiated by the Sec retary. (a) The Secretary may, on her own initiative, choose to consider whether a federal license or permit activity, or a federal assistance activity, is con sistent with the objectives or purposes of the Act, or is necessary in the inter est of national security. Secretarial re view shall only be initiated after the completion of State agency review pur suant to the relevant subpart. The Sec retary’s decision to review the activity may result from an independent con cern regarding the activity or a request from interested parties. If the Sec retary decides to initiate review, noti fication shall be sent to the applicant, person or applicant agency, and to the relevant Federal and State agencies. The notice shall include a statement describing the reasons for the review. (b) With the exception of application and processing fees, all other provi sions under this subpart governing the processing and administering of ap peals will apply to Secretarial reviews initiated under this section. Subpart I—Consistency of Federal Activities Having Interstate Coastal Effects § 930.150 Objectives. (a) A federal activity may affect coastal uses or resources of a State other than the State in which the ac tivity will occur. Effective coastal management is fostered by ensuring that activities having such reasonably foreseeable interstate coastal effects are conducted consistent with the en forceable policies of the management program of each affected State. (b) The application of the federal consistency requirement to activities having interstate coastal effects is ad dressed by this subpart in order to en courage cooperation among States in dealing with activities having inter state coastal effects, and to provide States, local governments, Federal agencies, and the public with a predict able framework for evaluating the con sistency of these federal activities under the Act. § 930.151 Interstate coastal effect. The term ‘‘interstate coastal effect’’ means any reasonably foreseeable ef fect resulting from a federal action oc curring in one State of the United States on any coastal use or resource of another State that has a federally VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00317 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 308 15 CFR Ch. IX (1–1–21 Edition) § 930.152 approved management program. Ef fects are not just environmental ef fects, but include effects on coastal uses. Effects include both direct effects which result from the activity and occur at the same time and place as the activity, and indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects are effects resulting from the incremental impact of the federal ac tion when added to other past, present, and reasonably foreseeable actions, re gardless of what person(s) undertake(s) such actions. The term ‘‘affects’’ means have an effect on. Effects on any coastal use or resource may also be re ferred to as ‘‘coastal effects.’’ § 930.152 Application. (a) This subpart applies to federal ac tions having interstate coastal effects, and supplements the relevant require ments contained in 15 CFR part 930, subparts C (Consistency for Federal Agency Activities), D (Consistency for Activities Requiring a Federal License or Permit), E (Consistency for OCS Ex ploration, Development and Production Activities) and F (Consistency for Fed eral Assistance to State and Local Governments). Except as otherwise provided by this subpart, the require ments of other relevant subparts of part 930 apply to activities having interstate coastal effects. (b) Federal consistency is a require ment on federal actions affecting any coastal use or resource of a State with a federally-approved management pro gram, regardless of the activities’ loca tions (including States without a feder ally approved management program). The federal consistency requirement does not alter a coastal State’s juris diction. The federal consistency re quirement does not give States the au thority to review the application of laws, regulations, or policies of any other State. Rather, the Act allows a management program to review federal actions and may preclude federal ac tion as a result of a State objection, even if the objecting State is not the State in which the activity will occur. Such objections to interstate activities under subparts D, E and F may be over ridden by the Secretary pursuant to subpart H of this part. § 930.153 Coordination between States in developing coastal management policies. Coastal States are encouraged to give high priority to: (a) Coordinating State coastal man agement planning, policies, and pro grams with respect to contiguous areas of such States; (b) Studying, planning, and imple menting unified coastal management policies with respect to such areas; and (c) Establishing an effective mecha nism, and adopting a federal-State con sultation procedure, for the identifica tion, examination, and cooperative res olution of mutual problems with re spect to activities having interstate coastal effects. § 930.154 Listing activities subject to routine interstate consistency re view. (a) Geographic location of listed activi ties. Each coastal State intending to conduct a consistency review of federal activities occurring in another State shall: (1) List those Federal agency activi ties, federal license or permit activi ties, and federal assistance activities that the State intends to routinely re view for consistency; and (2) Generally describe the geographic location for each type of listed activ ity. (b) In establishing the geographic lo cation of interstate consistency review, each State must notify and consult with the State in which the listed ac tivity will occur, as well as with rel evant Federal agencies. (c) Demonstrate effects. In describing the geographic location for interstate consistency reviews, the State agency shall provide information to the Direc tor that coastal effects from listed ac tivities occurring within the geo graphic area are reasonably foresee able. Listed activities may have dif ferent geographic location descrip tions, depending on the nature of the activity and its effects on any coastal use or resource. For example, the geo graphic location for activities affecting VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00318 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 309 Nat’l Oceanic and Atmospheric Adm., Commerce § 930.155 water resources or uses could be de scribed by shared water bodies, river basins, boundaries under the State’s coastal nonpoint pollution control pro gram, or other ecologically identifiable areas. (d) Director approval. State agencies shall submit their lists and geographic location descriptions developed under this section to the Director for ap proval as a routine program change under subpart H of 15 CFR part 923. Each State submitting this program change shall include evidence of con sultation with States in which the ac tivity will occur, evidence of consulta tion with relevant Federal agencies, and any agreements with other States and Federal agencies regarding coordi nation of activities. (e) State failure to list interstate activi ties. A coastal State that fails to list federal activities subject to interstate review, or to describe the geographic location for these activities, under paragraphs (a) through (d) of this sec tion, may not exercise its right to re view activities occurring in other States, until the State meets the list ing requirements. The listing of activi ties subject to interstate consistency review, and the description of the geo graphic location for those listed activi ties, should ensure that coastal States have the opportunity to review rel evant activities occurring in other States. States may amend their lists and geographic location descriptions pursuant to the requirements of this subpart and subpart H of 15 CFR part 923. States which have complied with paragraphs (a) through (d) of this sec tion may also use the procedure at § 930.54 to review unlisted activities. States will have a transition period of 18 months from the date this rule takes effect. In that time a State may review an interstate activity pursuant to § 930.54 of this part. After the transition period States must comply with this subpart in order to review interstate activities. § 930.155 Federal and State agency co ordination. (a) Identifying activities subject to the consistency requirement. The pro visions of this subpart are neither a substitute for nor eliminate the statu tory requirement of federal consistency with the enforceable policies of man agement programs for all activities af fecting any coastal use or resource. Federal agencies shall submit consist ency determinations to relevant State agencies for activities having coastal effects, regardless of location, and re gardless of whether the activity is list ed. (b) Notifying affected States. Federal agencies, applicants or applicant agen cies proposing activities listed for interstate consistency review, or deter mined by the Federal agency, applicant or applicant agency to have an effect on any coastal use or resource, shall notify each affected coastal State of the proposed activity. State agencies may also notify Federal agencies and applicants of listed and unlisted activi ties subject to State agency review and the requirements of this subpart. (c) Notice of intent to review. Within 30 days from receipt of the consistency determination or certification and nec essary data and information, or within 30 days from receipt of notice of a list ed federal assistance activity, each State intending to review an activity occurring in another State must notify the applicant or applicant agency (if any), the Federal agency, the State in which the activity will occur (either the State’s management program, or if the State does not have a management program, the Governor’s office), and the Director, of its intent to review the activity for consistency. The State’s notice to the parties must be received by the 30th day after receipt of the con sistency determination or certifi cation. If a State fails, within the 30 days, to notify the applicant or appli cant agency (if any), the Federal agen cy, the State in which the activity will occur, and the Director, of its intent to review the activity, then the State waives its right to review the activity for consistency. The waiver does not apply where the State intending to re view the activity does not receive no tice of the activity. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00319 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 310 15 CFR Ch. IX (1–1–21 Edition) § 930.156 § 930.156 Content of a consistency de termination or certification and State agency response. (a) The Federal agency or applicant is encouraged to prepare one deter mination or certification that will sat isfy the requirements of all affected States with approved management pro grams. (b) State agency responses shall fol low the applicable requirements con tained in subparts C, D, E and F of this part. § 930.157 Mediation and informal nego tiations. The relevant provisions contained in subpart G of this part are available for resolution of disputes between affected States, relevant Federal agencies, and applicants or applicant agencies The parties to the dispute are also encour aged to use alternative means for re solving their disagreement. OCRM shall be available to assist the parties in these efforts. PARTS 932–933 [RESERVED] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00320 Fmt 8010 Sfmt 8006 Y:\SGML\253053.XXX 253053 311 SUBCHAPTER C—REGULATIONS OF THE NATIONAL WEATHER SERVICE PART 946—MODERNIZATION OF THE NATIONAL WEATHER SERVICE Sec. 946.1 Purpose. 946.2 Definitions. 946.3 Notification of change of operations and restructuring. 946.4 Menu of services. 946.5 Change in operations—commissioning and decommissioning. 946.6 Change in operations—transferring re sponsibility and moving field offices. 946.7 Preparation of proposed certification for restructuring. 946.8 Review of proposed certification for restructuring. 946.9 Certification of restructuring. 946.10 Liaison officer. APPENDIX A TO PART 946—NATIONAL WEATHER SERVICE MODERNIZATION CRITERIA APPENDIX B TO PART 946—AIRPORT TABLES AUTHORITY: Title VII of Pub. L. 102–567, 106 Stat. 4303 15 U.S.C. 313 note SOURCE: 58 FR 64091, Dec. 3, 1993, unless otherwise noted. § 946.1 Purpose. (a) This part sets forth the proce dures for certification by the Secretary of Commerce that the closure, consoli dation, automation or relocation of any field office of the National Weath er Service (NWS) pursuant to the im plementation of the Strategic Plan for the Modernization of the NWS will not result in any degradation of weather services. Section 706 of Pub. L. 102–567 requires that no such field office be closed, consolidated, automated, or re located until such certification is made. This part distinguishes these modernization activities which require certification from those changes in op erations at a field office which do not require certification. (b) This part, including specifically these sections which specify when cer tifications are required, is intended to promote confidence that public safety is being adequately considered during the modernization process. While some of the terms used in these regulations may be identical to those used by the Office of Personnel Management, the General Services Administration, or by NOAA in personnel regulations, this part does not affect or supersede those regulations. In particular, a determina tion that the move of a field office is not a ‘‘relocation’’ for purposes of these regulations does not affect an employee’s rights to relocation assist ance, discontinued service retirement, severance pay, or grade and pay reten tion. § 946.2 Definitions. Automate (or automation) means to re place employees performing surface ob servations at a field office with auto mated weather service observation equipment. For the purposes of this definition, an employee performing surface observations at a field office is replaced when that office, after install ing such equipment, reduces or elimi nates its responsibility for taking sur face observations and removes the em ployee from that field office, or for mally requests the employee to cease performing all observational respon sibilities at that office. Automate does not include temporarily reducing the hours of operation during which a field office is responsible for surface obser vations or augmenting/backing up an ASOS when such reduction results from an unplanned decrease in staff. Category 1 radar means an existing NWS radar which is to be replaced by a NEX-RAD on the same site or on an ad jacent site from which the two radars cannot operate concurrently. A Cat egory 1 radar must be dismantled when the existing tower prevents building a replacement NEX-RAD on the same site or operationally demonstrating and commissioning a replacement NEX-RAD on an adjacent site by phys ically blocking its beam. A Category 1 radar must be turned off when it pre vents operationally demonstrating and commissioning a replacement NEX RAD on an adjacent site by creating substantial electromagnetic inter ference. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00321 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 312 15 CFR Ch. IX (1–1–21 Edition) § 946.2 Change operations at a field office means to transfer service responsi bility, commission weather observa tion systems, decommission a NWS radar, move an entire field office to a new location inside the local com muting and service area, or signifi cantly change the staffing level of a field office except where the staffing change constitutes a consolidation or automation or where there is an un planned decrease in staff. Close (or closure) means to remove all weather services, equipment, and per sonnel from a filed office. It does not include a consolidation, automation, or relocation or a move of a field office to another location within the current local commuting and service area. Commission means to officially charge a new observational technology (e.g, NEXRAD and ASOS) with responsi bility for providing weather data with in a defined service area or to charge a new weather office support system (e.g, AWIPS) with responsibility for sup porting office operations. Committee means the Modernization Transition Committee established by sec. 707 of Pub. L. 102–567. Consolidate (or consolidation) means to remove some positions from a field of fice (without closing that office) after those responsibilities have been re duced or eliminated by the commis sioning of one or more NEXRADS, the decommissioning of the radar operated by that office, if any, and the combina tion of that office’s responsibilities with those of another field office. Con solidate does not include temporarily reducing the hours during which a field office is responsible for operating a radar when such reduction results from an unplanned decrease in staff. Decommission (or permanently decom mission) means to permanently with draw existing official responsibility for providing weather data or weather of fice support from an existing tech nology which includes turning off the technology. It does not include tempo rarily withdrawing responsibility for providing radar data where this action results from: (1) System failure; (2) The need to dismantle a Category 1 radar to allow the construction of or the operational demonstration and commissioning of a replacement NEX RAD; or (3) The need to turn off a Category 1 radar to allow the operational dem onstration and commissioning of a re placement NEX-RAD. Field office means a National Weather Service Office (WSO) or a National Weather Service Forecast Office (WSFO). Inventory of services means all of those weather services from those list ed on the menu of services that are provided to the public by a field office in its service area prior to a transition action. Local Commuting Area means the pop ulation center (or two or more neigh boring ones) served by an existing field office and includes those surrounding localities that can reasonably be con sidered part of this single area for transportation purposes. The Local Commuting Area for any field office lo cated in a Metropolitan Area defined by the Office of Management and Budg et for statistical purposes shall be the Metropolitan Statistical Area or Pri mary Metropolitan Statistical Area. Menu of services means the basic weather services provided by NWS field offices as listed in § 946.4. National Implementation Plan means the plan submitted to Congress as part of the budget justification documents for Fiscal Year 1994 and for each subse quent fiscal year until the moderniza tion is complete. Regional Director means the Director of one of the six geographical regions of the NWS. Relocate (or relocation) means to move an entire field office, including all per sonnel positions, equipment and serv ice responsibility to a location outside the current local commuting or service area of that field office. Responsible Meteorologist means an employee of the NWS in charge of the office that will be responsible for pro viding weather services to the area af fected by a closure, consolidation, au tomation, or relocation of a field of fice. Restructure means to close, consoli date, automate, or relocate a field of fice. Secretary means the Secretary of Commerce or his or her delegate. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00322 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 313 Nat’l Oceanic and Atmospheric Adm., Commerce § 946.5 Service area means the geographical area for which an existing field office provides weather services or conducts observations. Strategic Plan means the 10 year stra tegic plan for the modernization of NWS which was submitted to the Con gress by the Secretary on March 10, 1989. Unplanned decrease in staff means a temporary reduction in the number of employees available for duty at a field office resulting from employee retire ment, resignation, extended sick leave or emergency leave, or voluntary ac ceptance of training or of a position outside that field office. Weather service means a service or product provided to a service area by a field office. [58 FR 64091, Dec. 3, 1993, as amended at 59 FR 44314, Aug. 29, 1994] § 946.3 Notification of changes in oper ations and restructuring. (a) Beginning with the Fiscal Year 1994 budget submission to Congress and until the modernization is complete, the NWS will submit to Congress annu ally a National Implementation Plan. The NWS may amend a Plan prior to the submission of the next Plan to in clude modifications provided that noti fication of any additional proposed changes in operations or identification of any additional proposed restruc turing actions shall be provided to Con gress at least 90 days prior to the date of the action. (b) The NWS will neither change op erations at, nor restructure, any field office after September 30, 1993, pursu ant to the implementation of the Stra tegic Plan unless it has provided notifi cation of the relevant action in the most current edition of the National Implementation Plan, or an amend ment thereof, and has complied with all requirements of these regulations. § 946.4 Menu of services. The following are the basic weather services provided by NWS field offices: (a) Surface Observations (b) Upper Air Observations (c) Radar Observations (d) Public Forecasts, Statements, and Warnings (e) Aviation Forecasts, Statements, and Warnings (f) Marine Forecasts, Statements, and Warnings (g) Hydrologic Forecasts and Warn ings (h) Fire Weather Forecasts and Warn ings (i) Agricultural Forecasts and Advisories (j) NOAA Weather Radio Broadcasts (k) Climatological Services (l) Emergency Management Support (m) Special Products and Service Programs § 946.5 Change in operations—commis sioning and decommissioning. (a) Before commissioning any new NEXRAD or ASOS weather observation system, the NWS shall prepare a Com missioning Report documenting that the system involved will perform to the Government’s specifications; the sys tem has been tested on site and per forms reliably; satisfactory mainte nance support is in place; sufficient staff with adequate training are avail able to operate the system; technical coordination with weather service users has been completed; and the sys tem satisfactorily supports field office operations. (b) The Report required by paragraph (a) of this section shall be based on the scientific and technical criteria set forth in the NWS’ NEXRAD and ASOS Commissioning Plans, as appropriate, which criteria shall be published in the FEDERAL REGISTER as the final com missioning criteria in accordance with sec. 704(b)(1) of the Act. In the case of an ASOS commissioning, the Report shall also document that the NWS has consulted with the Federal Aviation Administration (FAA) and has deter mined that the weather services pro vided after commissioning will con tinue to be in full compliance with the applicable FAA flight aviation rules. (c) Before decommissioning any NWS radar, the NWS shall prepare a Decom missioning Report documenting that all replacement radars needed to pro vide equal coverage have been commis sioned; confirmation of services with users has been completed; and that the radar being decommissioned is no VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00323 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 314 15 CFR Ch. IX (1–1–21 Edition) § 946.6 longer needed to support field office op erations. The Decommissioning Report shall be based on the scientific and technical criteria contained in the NWS’ Radar Decommissioning Plan, which criteria shall be published in the FEDERAL REGISTER as the final decom missioning criteria in accordance with the requirements of sec. 704(b)(1) of the Act. (d) If the final commissioning cri teria significantly modify the criteria upon which the previous commis sioning of a NEXRAD and/or ASOS were based, the NWS shall confirm that the relevant system conforms with the final criteria adopted. The NWS shall not decommission any NWS radar until the final criteria have been adopted. § 946.6 Change in operations—trans ferring responsibility and moving field offices. (a) After providing any notification required by § 946.3(b), NWS may change operations at a field office to imple ment the Strategic Plan, including: (1) Transferring official responsi bility for taking radar observations to a NEXRAD Weather Service Forecast Office (NWSFO) or a NEXRAD Weather Service Office (NWSO) that is being es tablished as a future Weather Forecast Office following commissioning of the NEXRAD at the new office; (2) Transferring official responsi bility for taking observations from a Category 1 radar to a backup radar or radars prior to constructing and/or op erating a replacement NEXRAD. Be fore transferring responsibility, the Re sponsible Meteorologist shall docu ment that technical coordination with users has been completed and that the transition to the replacement NEXRAD can be completed expedi tiously; (3) Transferring its service responsi bility for issuing watches, warnings, forecasts and other products to a NWSFO or NWSO; (4) Significantly reducing its staffing level by transferring or reassigning personnel to support the service re sponsibilities transferred under para graph (a)(3) of this section provided that the field office continues to assign the appropriate number of positions es tablished by the NWS Operations Man ual to carry out its observation respon sibilities; and (5) Moving an entire field office to a location within the local commuting and service area of that office. (b) A field office may not signifi cantly reduce its staffing level as signed to support any observation re sponsibility, including those respon sibilities transferred under paragraph (a)(2) of this section and those retained under paragraph (a)(4) of this section, until the Secretary has certified that the automation and/or consolidation will not degrade service in accordance with § 946.7. § 946.7 Preparation of proposed certifi cation for restructuring. (a) Whenever it becomes appropriate to restructure a field office identified in the National Implementation Plan, but prior to taking such action, the Re sponsible Meteorologist shall make a determination that there will be no degradation of service based on the final criteria published in the FEDERAL REGISTER in accordance with sec. 704 of the Act and recommend a proposed cer tification. The proposed certification may address all related restructuring actions that occur as part of a coordi nated step described in the National Implementation Plan. (b) The proposed certification shall include: (1) A description of local weather characteristics and weather-related concerns which affect the weather serv ices provided within the service area; (2) A detailed comparison of the in ventory of services provided within the service area prior to such action and the services to be provided after such action; (3) Any recent or expected mod ernization of NWS operations which will enhance services to the affected area; (4) An identification of any area within any state which will not receive NEXRAD coverage at an elevation of 10,000 feet; (5) Evidence based upon operational demonstration of modernized NWS op erations which support a determina tion that no degradation in service will result; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00324 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 315 Nat’l Oceanic and Atmospheric Adm., Commerce § 946.8 (6) Any report of the Committee issued under sec. 707(c) of the Act; and (7) The Responsible Meteorologist’s determination that there will be no degradation of service. (c) If the restructuring proposed to be certified involves the commissioning of a NEXRAD, the Responsible Meteorolo gist shall also consider the following evidence from operational demonstra tion of modernized operations in reach ing the conclusion that no degradation of service will result: (1) The Commissioning Report con taining the elements described in § 946.5(a); (2) The Decommissioning Report con taining the elements described in § 946.5(c); and (3) The Confirmation of Services Re port prepared by the NWS in accord ance with paragraph (e) of this section. (d) If the restructuring proposed to be certified involves the commis sioning of an ASOS unit, the Respon sible Meteorologist shall also consider the following evidence from oper ational demonstration of modernized operations in reaching the conclusion that no degradation of service will re sult: (1) The Commissioning Report con taining the elements described in § 946.5(a); (2) The NWS Surface Observation Modernization Report documenting that manual observations being discon tinued are no longer needed to provide mission field services; based on the final scientific and technical criteria (including all requirements and proce dures) published in the FEDERAL REG ISTER in accordance with section 704(b)(2) of the act; and (3) The Confirmation of Services Re port prepared by the NWS in accord ance with paragraph (e) of this section. (e) The Confirmation of Services Re port required by paragraphs (c) and (d) of this section shall include a list of those users who have been contacted during the confirmation process, to document that services have not been degraded. These users shall include the appropriate media and emergency man agers in the service area and the appro priate federal and state agencies in cluding specifically the FAA if the re structuring involves a field office lo cated at an airport and consultation with the FAA has not been conducted in accordance with § 946.5(b). This Re port shall be based on the scientific and technical criteria set forth in the Internal and External Communication and Coordination Plan for the Mod ernization and Associated Restruc turing of the National Weather Serv ice, which criteria shall be included in the final certification criteria pub lished in the FEDERAL REGISTER in ac cordance with sec. 704(b)(2) of the Act. (f) If the restructuring proposed to be certified involves the relocation of a field office, the Responsible Meteorolo gist shall also consider the following evidence in reaching the conclusion that no degradation of service will re sult: (1) Evidence based upon operational demonstration during earlier mod ernization actions in which an entire field office was moved from one loca tion to another including specifically the impact of such moves on services; (2) A checklist of all operational tests and inspections that will be per formed at the new location to ensure that the relocated equipment is fully operational; (3) A list of all users notified prior to the relocation, and a list of the con tacts that will be made with the rel evant users to confirm operational sta tus after the relocation; and (4) Comments received from notified users and those received during the public comment period. § 946.8 Review of proposed certifi cation for restructuring. The Responsible Meteorologist shall transmit the proposed certification and the accompanying documentation to the Regional Director for review. The Regional Director may amend or sup plement the documentation provided subsequent readers can easily identify his or her amendments or supplements. If the Regional Director agrees with the proposed certification, he or she shall endorse the proposed certifi cation, and transmit it along with all the accompanying documentation to the Secretary. A copy of any proposed certification shall be provided to the Committee upon request of the Com mittee. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00325 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 316 15 CFR Ch. IX (1–1–21 Edition) § 946.9 § 946.9 Certification of restructuring. (a) The Secretary shall publish each proposed certification in the FEDERAL REGISTER at least 60 days prior to cer tification. If, after consideration of the public comments received, the Sec retary agrees that the proposed re structuring will not result in any deg radation of service to the service area, he or she shall so certify by submitting a certification report to Congress. Upon transmittal of the certification by the secretary, NWS shall promptly publish the certification in the FED ERAL REGISTER stating where copies of the certification and the accompanying documents may be obtained. (b) The Responsible Meteorologist may restructure only after the certifi cation has been submitted to Congress. (c) Any field office for which restruc turing has been certified under this section shall also be subject to addi tional certification if that office is closed during stage 2 of the moderniza tion. No field office will close before January 1, 1996. § 946.10 Liaison officer. Prior to restructuring a field office, the Responsible Meteorologist shall designate at least one person in the af fected service area to act as a liaison officer for at least a 2-year period whose duties shall be: (a) Provide timely information re garding the activities of the NWS which may affect service to the com munity including specifically mod ernization and restructuring activities; and (b) Work with area users, including persons associated with general avia tion, civil defense, emergency pre paredness, and the news media, with respect to the provision of timely weather warnings and forecasts. APPENDIX A TO PART 946—NATIONAL WEATHER SERVICE MODERNIZATION CRITERIA I. Modernization Criteria for Actions Not Requiring Certification (A) Commissioning of New Weather Observation Systems (1) Automated Surface Observation Systems (ASOS) Purpose: Successful commissioning for full operational use requires a demonstration, by tests and other means, that the ASOS equip ment, as installed in the field office, meets its technical requirements; that the pre scribed operating, maintenance, and logistic support elements are in place; that oper ations have been properly staffed with trained personnel and that the equipment can be operated with all other installed mat ing elements of the modernized NWS system. NOTE: It may be necessary to incorporate work-arounds to complete some of the items listed below in a timely and cost-effective manner. A work-around provides for an al ternative method of meeting a commis sioning criteria through the application of a pre-approved operational procedure imple mented on a temporary basis, for example, by human augmentation of the observation for the occurrence of freezing rain, until such time as a freezing rain sensor has been accepted for operational use with ASOS. The ASOS Plan referenced below includes a proc ess for recommending, approving, and docu menting work arounds and requires that they be tracked as open items until they can be eliminated by implementation of the originally intended capability. References: The criteria and evaluation ele ments for commissioning are set forth and further detailed in the NWS-Sponsored Auto mated Surface Observing System (ASOS) Site Component Commissioning Plan (the ASOS Plan), more specifically in Addendum I, Appendix D of the ASOS Site Component Commissioning Evaluation Package (the ASOS Package). Criteria: a. ASOS Acceptance Test: The site component acceptance test, which includes objective tests to demonstrate that the ASOS, as installed at the given site, meets its technical specifications, has been suc cessfully completed in accordance with item 1a, p. D–2 of Appendix D of the ASOS Pack age. b. Sensor Siting: Sensor sitings provide representative observations in accordance with Appendix C of the ASOS Package, Guid ance for Evaluating Representativeness of ASOS Observations and item 1b, p. D–2 of Appendix D of the ASOS Package. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00326 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 317 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 946, App. A c. Initialization Parameters: Initialization parameters are in agreement with source in formation provided by the ASOS Program Office, in accordance with item 1c, pp. D–2 & D–3 of Appendix D of the ASOS Package. d. Sensor Performance Verification: Sensor performance has been verified in accordance with the requirements stated in the ASOS Site Technical Manual and item 1d, p. D–3 of the ASOS Package. e. Field Modification Kits/Firmware In stalled: All critical field modification kits and firmware for the site as required by at tachments 3a & b (pp. D–45 & D–46) or memo randum issued to the regions, have been in stalled on the ASOS in accordance with item 1e, p. D–4 of Appendix of the ASOS Package. f. Operations and Maintenance Documenta tion: A full set of operations and mainte nance documentation is available in accord ance with items 2a-h, pp. D–5 & D–6 of Appen dix D of the ASOS Package. g. Notification of and Technical Coordina tion with Users: All affected users have been notified of the initial date for ASOS oper ations and have received a technical coordi nation package in accordance with item 2i, pp. D–6 & D–7 of Appendix D of the ASOS Package. h. Availability of Trained Operations Per sonnel: Adequate operations staff are avail able, training materials are available, and required training has been completed, per section 3.2.3.1 of the ASOS Plan, in accord ance with items 3a-c, p. D–8 of Appendix D of the ASOS package. i. Maintenance Capability: Proper mainte nance personnel and support systems and ar rangements are available in accordance with items 4a-e, pp. D–9 & D–10 of Appendix D of the ASOS Package. j. Performance of Site Interfaces: The equipment can be operated in all of its re quired modes and in conjunction with all of its interfacing equipment per the detailed checklists of items 5a-b, pp. D–11 & D–19 of Appendix D of the ASOS Package. k. Support of Associated NWS Forecasting and Warning Services: The equipment pro vides proper support of NWS forecasting and warning services and archiving, including op eration of all specified automatic and manu ally augmented modes per the checklist, items 6a-e, pp. D–20 to D–29, of Appendix D of the ASOS Package. l. Service Backup Capabilities: Personnel, equipment, and supporting services are available and capable of providing required backup readings and services in support of operations when primary equipment is inop erable in accordance with items 7a-g, pp. D– 30 to D–32, of Appendix D of the ASOS Pack age. m. Augmentation Capabilities: Personnel are available and trained to provide aug mentation of ASOS observations in accord ance with augmentation procedures, items 8a-c, p. D–33 of Appendix D of the ASOS Package. n. Representativeness of Observations: Ob servations are representative of the hydrometeorological conditions of the ob serving location as determined by a period of observation of at least 60 days prior to com missioning in accordance with Appendix C and item 6e, pp. D–27 to D–29 of Appendix D of the ASOS Package. (2) WSR–88D Radar System Purpose: Successful commissioning for full operational use requires a demonstration, by tests and other means, that the WSR–88D radar system, as installed in the field office, meets its technical requirements; that the prescribed operating, maintenance, and lo gistic support elements are in place; that op erations have been properly staffed with trained personnel; and that the equipment can be operated with all other installed mat ing elements of the modernized NWS system. NOTE: It may be necessary to incorporate work-arounds to complete some of the items listed below in a timely and cost-effective manner. A work-around provides for an al ternative method of meeting a commis sioning criteria through the application for a pre-approved operational procedure imple mented on a temporary basis. The WSR–88D Plan referenced below includes a process for recommending, approving, and documenting work arounds and requires that they be tracked as open items until they can be eliminated by implementation of the origi nally intended capability. Reference: The criteria and evaluation ele ments for commissioning are set forth and further detailed in the NWS-Sponsored WSR– 88D Site Component Commissioning Plan (the 88D Plan) and an Attachment to that Plan, called the WSR–88D Site Component Commissioning Evaluation Package (the WSR–88D Package). Criteria: a. WSR–88D Radar Acceptance Test: The site component acceptance test, which includes objective tests to dem onstrate that the WSR–88D radar, as in stalled at the given site, meets its technical specifications, has been successfully com pleted in accordance with items 1a-f, p. A–2 of Appendix A of the WSR–88D Package. b. Availability of Trained Operations and Maintenance Personnel: Adequate operations and maintenance staffs are available, train ing materials are available, and required training has been completed in accordance with items 2a-h, pp. A–3 & A–4 of Appendix A of the WSR–88D Package. c. Satisfactory Operation of System Inter faces: The system can be operated in all of its required modes and in conjunction with all of its interfacing equipment in accord ance with items 3a-e, p. A–5 of Appendix A of the WSR–88D Package. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00327 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 318 15 CFR Ch. IX (1–1–21 Edition) Pt. 946, App. A d. Satisfactory Support of Associated NWS Forecasting and Warning Services: The sys tem provides proper support of NWS fore casting and warning services, including at least 96 percent availability of the radar coded message for a period of 30 consecutive days prior to commissioning in accordance with items 4a-kk, pp. A–6 to A–17 of Appen dix A of the WSR–88D Package. e. Service Backup Capabilities: Service backup capabilities function properly when the primary system is inoperable in accord ance with items 5a-e, p. A–18 of Appendix A of the WSR–88D Package. f. Documentation for Operations and Main tenance: A full set of operations and mainte nance documentation is available in accord ance with items 6a-n, pp. A–19 to A–25 of Ap pendix A of the WSR–88D Package. g. Spare Parts and Test Equipment: A full complement of spare parts and test equip ment is available on site in accordance with items 7a-e, p. A–26, of Appendix A of the WSR–88D Package. (B) Decommissioning an Outdated NWS Radar Purpose: Successful decommissioning of an old radar requires assurance that the exist ing radar is no longer needed to support de livery of services and products and local of fice operations. References: The criteria and evaluation ele ments for decommissioning are set forth and further detailed in the NWS-Sponsored Net work and Local Warning Radars (Including Adjunct Equipment) Site Component Decom missioning Plan (the Plan), more specifically in Appendix B to that Plan, called the Site Component Decommissioning Evaluating Package, and in Section 3.3 of the Internal and External Communication and Coordina tion Plan for the Modernization and Associ ated Restructuring of the Weather Service. Criteria: a. Replacing WSR–88D(s) Commis sioning/User Service Confirmation: The re placing WSR–88D(s) have been commissioned and user confirmation of services has been successfully completed, i.e., all valid user complaints related to actual system per formance have been satisfactorily resolved, in accordance with items 1a-c, p. B–10 of Ap pendix B of the Plan. b. Operation Not Dependent on Existing Radar: The outdated radar is not required for service coverage, in accordance with items 2a-c, p. B–11 of Appendix B of the Plan. c. Notification of Users: Adequate notifica tion of users has been provided, in accord ance with items 3a-f, pp. B–12 & B–13 of Ap pendix B of the Plan. d. Disposal of Existing Radar: Preparations for disposal of the old existing radar have been completed, in accordance with items 4a d, pp. B–14 & B–15 of Appendix B of the Plan. (C) Evaluating Staffing Needs for Field Offices in Affected Areas References: The criteria and evaluation ele ments are set forth and further detailed in the ASOS and WSR–88D Evaluation Pack ages and in the Human Resources and Posi tion Management Plan for the National Weather Service Modernization and Associ ated Restructuring (the Human Resources Plan). Criteria: 1. Availability of Trained Oper ations and Maintenance Personnel at a NEXRAD Weather Service Forecast Office or NEXRAD Weather Service Office: Adequate operations and maintenance staffs are avail able to commission a WSR–88D, specifically criterion b. set forth in section I.A.2. of this Appendix which includes meeting the Stage 1 staffing levels set forth in chapter 3 of the Human Resources Plan. 2. Availability of Trained Operations and Maintenance Personnel at any field office re ceiving an ASOS: Adequate operations and maintenance staff are available to meet the requirements for commissioning an ASOS, specifically criteria h and i set forth in sec tion I.A.1 of this Appendix. II. CRITERIA FOR MODERNIZATION ACTIONS REQUIRING CERTIFICATION (A) Modernization Criteria Common to all Types of Certifications (Except as Noted) 1. Notification: Advanced notification and the expected date of the proposed certifi cation have been provided in the National Implementation Plan. 2. Local Weather Characteristics and Weather Related Concerns: A description of local weather characteristics and weather re lated concerns which affect the weather serv ices provided to the affected service area is provided. 3. Comparison of Services: A comparison of services before and after the proposed action demonstrates that all services currently pro vided to the affected service area will con tinue to be provided with no degradation of services. 4. Recent or Excepted Modernization of NWS Operations in the Affected Service Area: A description of recent or expected modernization of NWS operations in the af fected service area is provided. 5. NEXRAD Network Coverage: NEXRAD network coverage or gaps in coverage at 10,000 feet over the affected service area are identified. 6. Air Safety Appraisal (applies only to re location and closure of field offices at an air port): Verification that there will be no deg radation of service that affects aircraft safe ty has been made by conducting an air safety appraisal in consultation with the Federal Aviation Administration. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00328 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 319 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 946, App. A 7. Evaluation of Services to In-state Users (applies only to relocation and closure of the only field office in a state): Verification that there will be no degradation of weather serv ices provided to the state has been made by evaluating the effect on weather services provided to in-State users. 8. Liaison Officer: Arrangements have been made to retain a Liaison Officer in the af fected service area for at least two years to provide timely information regarding the ac tivities of the NWS which may affect service to the community, including modernization and restructuring; and to work with area weather service users, including persons as sociated with general aviation, civil defense, emergency preparedness, and the news media, with respect to the provision of time ly weather warnings and forecasts. 9. Meteorologist-In-Charge’s (MIC) Rec ommendation to Certify: The MIC of the fu ture WFO that will have responsibility for the affected service area has recommended certification in accordance with 15 CFR 946.7(a). 10. Regional Director’s Certification: The cognizant Regional Director has approved the MIC’s recommended certification of no degradation of service to the affected service area in accordance with 15 CFR 946.8. (B) Modernization Criteria Unique to Consolidation Certifications 1. WSR–88D Commissioning: All necessary WSR–88D radars have been successfully com missioned in accordance with the criteria set forth in section I.A.2. of this Appendix. 2. User Confirmation of Services: All valid user complaints related to actual system performance have been satisfactorily re solved in accordance with section 3.3 of the Internal and External Communication and Coordination Plan for the Modernization and Associated Restructuring of the National Weather Service. 3. Decommissioning of Existing Radar: The existing radar, if any, has been successfully decommissioned in accordance with the cri teria set forth in section I.B. of this Appen dix. (C) Modernization Criteria Unique to Relocation Certifications 1. Approval of Proposed Relocation Check list: The cognizant regional director has ap proved a proposed relocation checklist set ting forth the necessary elements in the re location process to assure that all affected users will be given advanced notification of the relocation, that delivery of NWS services and products will not be interrupted during the office relocation, and that the office to be relocated will resume full operation at the new facility expeditiously so as to mini mize the service backup period. Specific Elements: a. Notification of and Technical Coordination with Users: The pro posed relocation checklist provides for the notification of and technical coordination with all affected users. b. Identification and Preparation of Backup Sites: The proposed relocation checklist identifies the necessary backup sites and the steps necessary to prepare to use backup sites to ensure service coverage during the move and checkout period. c. Start of Service Backup: The proposed relocation checklist provides for invocation of service backup by designated sites prior to office relocation. d. Systems, Furniture and Communica tions: The proposed relocation checklist identifies the steps necessary to move all systems and furniture to the new facility and to install communications at the new fa cility. e. Installation and Checkout: The proposed relocation checklist identifies all steps to in stall and checkout systems and furniture and to connect to communications at the new facility. f. Validation of Systems Operability and Service Delivery: The proposed relocation checklist provides for validation of system operability and service delivery from the new facility. 2. Publishing of the Proposed Relocation Checklist and Evidence form Completed Moves: The proposed relocation checklist and the evidence from other similar office moves that have been completed, have been published in the FEDERAL REGISTER for pub lic comment. The evidence from the other of fice moves indicates that they have been suc cessfully completed. 3. Resolution of Public Comments Re ceived: All responsive public comments re ceived from publication, in the FEDERAL REGISTER, of the checklists and of the evi dence from completed moves are satisfac torily answered. (D) Modernization Criteria Unique to Automation Certifications 1. Compliance with flight aviation rules (applies on airports only): Consultation with the Federal Aviation Administration (FAA) has verified that the weather services pro vided after the commissioning of the rel evant ASOS unit(s) will be in full compliance with applicable Federal Aviation Regula tions promulgated by the FAA. 2. ASOS Commissioning: The relevant ASOS unit(s) have been successfully commis sioned in accordance with the criteria set forth in section I.A.1 of Appendix A to the Weather Service Modernization Regulations, 15 CFR part 946. 3. User Confirmation of Services: Any valid user complaints related to actual system performance received since commissioning of the ASOS have been satisfactorily resolved VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00329 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 320 15 CFR Ch. IX (1–1–21 Edition) Pt. 946, App. A and the issues addressed in the MIC’s rec ommendation for certification. 4. Aviation Observation Requirement: At sites subject to automation certification, all surface observations and reports required for aviation services can be generated by an ASOS augmented as necessary by non-NWS personnel. a. The ASOS observation will be aug mented/backed-up to the level specified in Appendix B as described in the Summary Chart of the FAA’s Weather Observation Service Standards. b. The transition checklist has been signed by the appropriate Region Systems Oper ations Division Chief (applies to service level A, B and C airports only). c. Thunderstorm occurrence is reported in the ASOS observation through the use of a lightning sensor (applies to service level D airports only, excluding Homer, Alaska). d. Freezing rain occurrence is reported in the ASOS observation through the use of a freezing rain sensor. Among service level D airports, this criterion is not applicable to Ely, Nevada and Lander, Wyoming. 5. Pilot Education and Outreach Com pleted: The Air Safety Foundation has con ducted a pilot education and outreach effort to educate pilots on the use of automated ob servations and measure their understanding and acceptance of automated observing sys tems, and the MTC has had an opportunity to review the results of this effort (applies to service level D airports only). 6. General Surface Observation Require ment: The total observations available are adequate to support the required inventory of services to users in the affected area. All necessary hydrometeorological data and in formation are available through ASOS as augmented in accordance with this section, through those elements reported as supple mentary data by the relevant Weather Fore cast Office(s), or through other complemen tary sources. The adequacy of the total sur face observation is addressed in the MTC’s recommendation for certification. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00330 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 321 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 946, App. A (E) Modernization Criteria Unique to Closure Certifications 1. Consolidation Certification: If the field office proposed for closure has or will be con solidated, as defined in § 946.2 of the basic modernization regulations, this action has been completed as evidenced by the approved VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00331 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 ER 2 1 JY 9 7 .0 0 0 < /G P H > 322 15 CFR Ch. IX (1–1–21 Edition) Pt. 946, App. B certification or can be completed as evi denced by all of the documentation that all of the requirements of sections II.A. and II.B of this Annex have been completed. 2. Automation Certification: If the field of fice proposed for closure has or will be auto mated, as defined in § 946.2 of the basic mod ernization regulations, this action has been completed as evidenced by the approved cer tification or can be completed as evidenced by documentation that all of the require ments of sections II.A. and II.C. of this Annex has been completed. 3. Remaining Services and/or Observations: All remaining service and/or observational responsibilities, if applicable to the field of fice proposed for closure, have been trans mitted as addressed in the MIC’s rec ommendation for certification. 4. User Confirmation of Services: Any valid user complaints received related to provision of weather services have been satisfactorily resolved and the issues addressed in the MIC’s recommendation for certification. 5. Warning and Forecast Verification: Warning and forecast verification statistics, produced in accordance with the Closure Cer tification Verification Plan, have been uti lized in support of the MIC’s recommenda tion for certification. [59 FR 9923, Mar. 2, 1994, as amended at 61 FR 39865, July 31, 1996; 61 FR 53311, Oct. 11, 1996; 62 FR 38903, July 21, 1997] APPENDIX B TO PART 946—AIRPORT TABLES ‘‘A’’ Level Service Airports: *Akron, OH ............................................. CAK *Albany, NY ........................................... ALB *Atlanta, GA ........................................... ATL *Baltimore, MD ....................................... BWI *Boston, MA ........................................... BOS Charlotte, NC ......................................... CLT *Chicago-O’Hare (AV), IL ...................... ORD Cincinnati, OH ........................................ CVG Columbus, OH ....................................... CMH *Dayton, OH ........................................... DAY *Des Moines, IA ..................................... DSM *Detroit, MI ............................................. DTW *Fairbanks, AK ....................................... FAI *Fresno, CA ........................................... FAT *Greensboro, NC ................................... GSO *Hartford, CT .......................................... BDL Indianapolis, IN ...................................... IND *Kansas City, MO .................................. MCI *Lansing, MI ........................................... LAN Las Vegas, NV ....................................... LAS Los Angeles (AV), CA ........................... LAX *Louisville, KY ........................................ SDF *Milwaukee, WI ...................................... MKE *Minneapolis, MN ................................... MSP *Newark, NJ ........................................... EWR *Oklahoma City, OK .............................. OKC Phoenix, AZ ........................................... PHX *Portland, OR ......................................... PDX *Providence, RI ...................................... PVD *Raleigh, NC .......................................... RDU *Richmoind, VA ...................................... RIC *Rochester, NY ...................................... ROC *Rockford, IL .......................................... RFD *San Antonio, TX ................................... SAT San Diego, CA ....................................... SAN *San Francisco, CA ............................... SFO *Spokane, WA ....................................... GEG *Syracuse, NY ....................................... SYR Tallahassee, FL ..................................... TUL Tulsa, OK ............................................... TUL ‘‘B’’ Level Service Airports: *Baton Rouge, LA .................................. BTR *Billings, MT ........................................... BIL *Charleston, WV .................................... CRW *Chattanooga, TN .................................. CHA Colorado Springs, CO ........................... COS Daytona Beach, FL ................................ DAB El Paso, TX ............................................ ELP Flint, MI .................................................. FNT Fort Wayne, IN ...................................... FWA Honolulu, HI ........................................... HNL *Huntsville, AL ....................................... HSV *Knoxville, TN ........................................ TYS *Lincoln, NE ........................................... LNK Lubbock, TX ........................................... LBB *Madison, WI ......................................... MSN *Moline, IL .............................................. MLI *Montgomery, AL ................................... MGM *Muskegon, MI ....................................... MKG *Norfolk, VA ........................................... ORF Peoria, IL ............................................... PIA *Savannah, GA ...................................... SAV *South Bend, IN ..................................... SBN Tucson, AZ ............................................ TUS *West Palm Beach, FL .......................... PBI *Youngstown, OH .................................. YNG ‘‘C’’ Level Service Airports: Abilene, TX ............................................ ABI Allentown, PA ........................................ ABE Asheville, NC ......................................... AVL Athens, GA ............................................ AHN Atlantic City, NJ ..................................... ACY Augusta, GA .......................................... AGS Austin, TX .............................................. AUS Bakersfield, CA ...................................... BFL Bridgeport, CT ....................................... BDR Bristol, TN .............................................. TRI Casper, WY ........................................... CPR Columbia, MO ........................................ COU Columbus, GA ....................................... CSG Dubuque, IA ........................................... DBQ Elkins, WV ............................................. EKN Erie, PA .................................................. ERI Eugene, OR ........................................... EUG Evansville, IN ......................................... EVV Fargo, ND .............................................. FAR Fort Smith, AR ....................................... FSM Grand Island, NE ................................... GRI Helena, MT ............................................ HLN Huntington, WV ...................................... HTS Huron, SD .............................................. HON Kahului, HI ............................................. OGG Key West, FL ......................................... EYW Lewiston, ID ........................................... LWS Lexington, KY ........................................ LEX VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00332 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 323 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 946, App. B Lynchburg, VA ....................................... LYH Macon, GA ............................................. MCN Mansfield, OH ........................................ MFD Meridian, MS .......................................... MEI Olympia, WA .......................................... OLM Port Arthur, TX ....................................... BPT Portland, ME .......................................... PWM Rapid City, SD ....................................... RAP Redding, CA .......................................... RDD Reno, NV ............................................... RNO Roanoke, VA .......................................... ROA Rochester, MN ....................................... RST Salem, OR ............................................. SLE Santa Maria, CA .................................... SMX Sioux City, IA ......................................... SUX Springfield, IL ......................................... SPI Stockton, CA .......................................... SCK Toledo, OH ............................................ TOL Waco, TX ............................................... ACT Waterloo, IA ........................................... ALO Wilkes-Barre, PA ................................... AVP Williamsport, PA .................................... IPT Wilmington, DE ...................................... ILG Worcester, MA ....................................... ORH Yakima, WA ........................................... YKM ‘‘D’’ Level Service Airports: Alamosa, CO ......................................... ALS Alpena, MI .............................................. APN Astoria, OR ............................................ AST Beckley, WV .......................................... BKW Caribou, ME ........................................... CAR Concordia, KS ........................................ CNK Concord, NH .......................................... CON Ely, NV ................................................... ELY Havre, MT .............................................. HVR Homer, AK ............................................. HOM Houghton Lake, MI ................................ HTL International Falls, MN ........................... INL Kalispell, MT .......................................... FCA Lander, WY ............................................ LND Norfolk, NE ............................................ OFK Sault Ste. Marie, MI ............................... SSM Scottsbluff, NE ....................................... BFF Sheridan, WY ......................................... SHR St. Cloud, MN ........................................ STC Tupelo, MS ............................................ TUP Valentine, NE ......................................... VTN Victoria, TX ............................................ VCT Wichita, Falls, TX ................................... SPS Williston, ND .......................................... ISN Winnemucca, NV ................................... WMC * Long-line RVR designated site. [62 FR 38905, July 21, 1997] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00333 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 324 SUBCHAPTER D—GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE PART 950—ENVIRONMENTAL DATA AND INFORMATION Sec. 950.1 Scope and purpose. 950.2 Environmental Data and Information Service (EDIS). 950.3 National Climatic Center (NCC). 950.4 National Oceanographic Data Center (NODC). 950.5 National Geophysical and Solar-Ter restrial Data Center (NGSDC). 950.6 Environmental Science Information Center (ESIC). 950.7 Center for Environmental Assessment Services (CEAS). 950.8 Satellite Data Services Division (SDSD). 950.9 Computerized Environmental Data and Information Retrieval Service. APPENDIX A TO PART 950—SCHEDULE OF USER FEES FOR ACCESS TO NOAA ENVIRON MENTAL DATA AUTHORITY: (5 U.S.C. 552, 553). Reorganiza tion Plan No. 4 of 1970. SOURCE: 44 FR 54468, Sept. 20, 1979, unless otherwise noted. § 950.1 Scope and purpose. This part describes the Environ mental Data and Information Service (EDIS), a major program element of the National Oceanic and Atmospheric Administration, and EDIS manage ment of environmental data and infor mation. § 950.2 Environmental Data and Infor mation Service (EDIS). The Environmental Data and Infor mation Service is the first Federal or ganization created specifically to man age environmental data and informa tion. EDIS acquires, processes, ar chives, analyzes, and disseminates worldwide environmental (atmos pheric, marine, solar, and solid Earth) data and information for use by com merce, industry, the scientific and en gineering communities, and the gen eral public, as well as by Federal, State, and local governments. It also provides experiment design and data management support to large-scale en vironmental experiments; assesses the impact of environmental fluctuations on food production, energy production and consumption, environmental qual ity, and other economic systems; and manages or provides functional guid ance for NOAA’s scientific and tech nical publication and library activities. In addition, EDIS operates related World Data Center-A subcenters and participates in other international data and information exchange pro grams. To carry out this mission, EDIS operates a network of specialized serv ice centers and a computerized envi ronmental data and information re trieval service. § 950.3 National Climatic Center (NCC). The National Climatic Center ac quires, processes, archives, analyzes, and disseminates climatological data; develops analytical and descriptive products to meet user requirements; and provides facilities for the World Data Center-A (Meteorology). It is the collection center and custodian of all United States weather records, the largest of the EDIS centers, and the largest climatic center in the world. (a) Climatic data available from NCC include: (1) Hourly Surface Observations from Land Stations (ceiling, sky cover, visi bility, precipitation or other weather phenomena, obstructions to vision, pressure, temperature, dew point, wind direction, wind speed, gustiness). (2) Three-Hourly and Six-Hourly Sur face Observations from Land Stations, Ocean Weather Stations, and Moving Ships (variable data content). (3) Upper Air Observations (radiosondes, rawinsondes, rocketsondes, low-level soundings, pilot-balloon winds, aircraft reports). (4) Radar Observations (radar log sheets, radar scope photography). (5) Selected Maps and Charts (Na tional Meteorological Center products). (6) Derived and Summary Data (grid points, computer tabulations, digital summary data). (7) Special Collections (Barbados Oceanographic and Meteorological Ex periment meteorological data, Global VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00334 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 325 Nat’l Oceanic and Atmospheric Adm., Commerce § 950.6 Atmospheric Research Program basic data set, solar radiation data, many others). (b) Queries should be addressed to: National Climatic Center, National Oceanic and Atmospheric Administra tion, Asheville, NC 28801, tel. 704–258– 2850, Ext. 683. § 950.4 National Oceanographic Data Center (NODC). The National Oceanographic Data Center acquires, processes, archives, analyzes, and disseminates oceano graphic data; develops analytical and descriptive products to meet user re quirements; and provides facilities for the World Data Center-A (Oceanog raphy). It was the first NODC estab lished and houses the world’s largest usuable collection of marine data. (a) Oceanographic data available from NODC include: (1) Mechanical and expendable bathytheremograph data in analog and digital form. (2) Oceanographic station data for surface and serial depths, giving values of temperature, salinity, oxygen, inor ganic phosphate, total phosphorus, ni trite-nitrogen, nitrate-nitrogen, sili cate-silicon, and pH. (3) Continuously recorded salinity temperature-depth data in digital form. (4) Surface current information ob tained by using drift bottle or cal culated from ship set and drift. (5) Biological data, giving values of plankton standing crop, chlorophyll concentrations, and rates of primary productivity. (6) Other marine environmental data obtained by diverse techniques, e.g., in strumented buoy data, and current meter data. (b) Queries should be addressed to: National Oceanographic Data Center, National Oceanic and Atmospheric Ad ministration, Washington, DC 20235, tel. 202–634–7500. § 950.5 National Geophysical and Solar-Terrestrial Data Center (NGSDC). The National Geophysical and Solar Terrestrial Data Center acquires, proc esses, archives, analyzes, and dissemi nates solid Earth and marine geo physical data as well as ionospheric, solar, and other space environment data; develops analytical, climato logical, and descriptive products to meet user requirements; and provides facilities for World Data Center-A (Solid-Earth Geophysics, Solar Terres trial Physics, and Glaciology). (a) Geophysical and solar-terrestrial data available from NGSDC include: (1) Marine geology and geophysics. Bathymetric measurement; seismic re flection profiles; gravimetric measure ments; geomagnetic total field meas urements; and geological data, includ ing data on heat flow, cores, samples, and sediments. (2) Solar-Terrestrial physics. Ionosphere data, including ionograms, frequency plots, riometer and field strength strip charts, and tabulations; solar activity data; geomagnetic vari ation data, including magnetograms; auroral data; cosmic ray data; and airglow data. (3) Seismology. Seismograms; accelerograms; digitized strong-motion accelerograms; earthquake data list (events since January 1900); earthquake data service with updates on a monthly basis. (4) Geomagnetic main field. Magnetic survey data and secular-change data tables. (b) Queries should be addressed to: National Geophysical and Solar-Ter restrial Data Center, National Oceanic and Atmospheric Administration, Boulder, CO 80303, tel. 303–499–1000, ext. 6215. § 950.6 Environmental Science Infor mation Center (ESIC). ESIC is NOAA’s information spe cialist, librarian, and publisher. ESIC coordinates NOAA’s library and infor mation services and its participation in the national network of scientific in formation centers and libraries. Com puterized literature searches provide information from over 80 data bases. The complete list of data bases is available on request. All ESIC informa tion facilities provide the normal li brary tailored information and ref erence services. As NOAA’s publisher of scientific and technical information, ESIC reviews, edits, and processes NOAA manuscripts for publication. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00335 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 326 15 CFR Ch. IX (1–1–21 Edition) § 950.7 (a) Services available from ESIC in clude: (1) Reference services. Some services are provided on a cost-recovery basis to non-NOAA individuals. (2) Publication copy services. Copies of NOAA publications are provided on re quest from qualified users, including governments, universities, non-profit organizations, professional societies, chambers of commerce, public informa tion media, and individuals and organi zations having cooperative or exchange agreements with NOAA. (3) Bibliographies. Special bibliog raphies are prepared on request. When provided to non-NOAA individuals, service is on a full cost-recovery basis. (4) Current awareness services. Periodi cally provides announcements of titles of newly published NOAA scientific and technical publications. (5) Lending services. Materials are loaned to other libraries and to NOAA employees. (6) On-site use of library collections. (7) Publishing services. Includes pro viding refereeing, reviewing, editing, and publishing services for NOAA au thors of manuscripts destined for both NOAA and non-NOAA publication se ries. (b) Queries should be addressed to: Environmental Science Information Center, National Oceanic and Atmos pheric Administration, Rockville, MD 20852, tel. 301–443–8137. § 950.7 Center for Environmental As sessment Services (CEAS). EDIS assists National decision makers in solving problems by pro viding data analyses, applications, as sessments, and interpretations to meet their particular requirements. Many of these services are provided by the EDIS Center for Environmental Assessment Services (CEAS). (a) The following are examples of CEAS projects and services: (1) CEAS prepares data-based studies and weekly assessments of potential ef fects of climatic fluctuations on Na tional and global grain production. (2) CEAS provides environmental analyses and assessments to support ef ficient and effective planning, site se lection, design, construction, and oper ation of supertanker ports and offshore drilling rigs. Such planning depends heavily upon environmental assess ments. (3) During the heating season, CEAS issues monthly and seasonal projec tions of natural gas demand for multi State regions of the conterminous United States. Similar projections are made for electricity during the cooling season. (4) CEAS has developed and makes available when needed a statistical oil spill trajectory risk model based on historical meteorological and oceano graphic data. (5) The center has analyzed the po tential ecological effects of the planned disposal of huge volumes of saturated brine into Gulf waters for the National Strategic Petroleum Reserve and may be called on to provide similar services in other subject areas. (6) CEAS provides experiment design, data analysis, and data management support to project managers and pro duces merged, validated multidisci plinary data sets for international and national study (such undertakings as the recent key role in the Global At mospheric Research Program (GARP) experiments). (7) CEAS provides special data or in formation as required. Currently the Center is assembling an inventory of cruises and a global oceanographic data base from observations taken dur ing the First GARP Global Experiment (FGGE). (b) Additional information on these or related services can be obtained by writing: Director, Center for Environ mental Assessment Services, National Oceanic and Atmospheric Administra tion, Washington, DC 20235; or by call ing (202) 634–7251. § 950.8 Satellite Data Services Division (SDSD). The Satellite Data Services Division of the EDIS National Climatic Center provides environmental and earth re sources satellite data to other users once the original collection purposes (i.e., weather forecasting) have been satisfied. The division also provides photographs collected during NASA’s SKYLAB missions. (a) Satellite data available from SDSD include: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00336 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 327 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 950, App. A (1) Data from the TIROS (Television InfraRed Observational Satellite) se ries of experimental spacecraft; much of the imagery gathered by spacecraft of the NASA experimental NIMBUS se ries; full-earth disc photographs from NASA’s Applications Technology Sat ellites (ATS) I and III geostationary re search spacecraft; tens of thousands of images from the original ESSA and current NOAA series of Improved TIROS Operational Satellites; and both full-disc and sectorized images from the Synchronous Meteorological Sat ellites (SMS) 1 and 2, the current oper ational geostationary spacecraft. In ad dition to visible light imagery, infrared data are available from the NIMBUS, NOAA, and SMS satellites. Each day, SDSD receives about 239 negatives from the polar-orbiting NOAA space craft, more than 235 SMS–1 and 2 nega tives, and several special negatives and movie film loops. (2) Photographs (both color and black-and-white) taken during the three SKYLAB missions (May through June, 1973, July through September, 1973, and November 1973 through Feb ruary 1974). (b) Queries should be addressed to: Satellite Data Services Division, World Weather Building, Room 606, Wash ington, DC 20233, tel. 301–763–8111. § 950.9 Computerized Environmental Data and Information Retrieval Service. The Environmental Data Index (ENDEX) provides rapid, automated re ferral to multidiscipline environmental data files of NOAA, other Federal agen cies, state and local governments, and universities, research institutes, and private industry. A computerized, in formation retrieval service provides a parallel subject-author-abstract refer ral service. A telephone call to any EDIS data or information center or NOAA library will allow a user access to these services. APPENDIX A TO PART 950—SCHEDULE OF USER FEES FOR ACCESS TO NOAA ENVIRONMENTAL DATA Name of product/data/publication/information/service Current fee ($) New fee ($) NOAA National Center for Environmental Information Department of Commerce Certification ......................................................................................... 116.00 119.00 General Certification ...................................................................................................................... 92.00 103.00 Paper Copy ................................................................................................................................... 3.00 8.00 Data Poster ................................................................................................................................... 18.00 17.00 Shipping Service ........................................................................................................................... 8.00 8.00 Rush order fee .............................................................................................................................. 60.00 63.00 Super Rush Order Fee .................................................................................................................. 100.00 105.00 Foreign Handling Fee .................................................................................................................... 43.00 45.00 NEXRAD Doppler radar Color Prints ............................................................................................ 21.00 22.00 Paper Copy from Electronic Media ............................................................................................... 8.00 8.00 Offline In-Situ Digital Data ............................................................................................................. 175.00 127.00 Microfilm Copy (roll to paper) per frame from existing film .......................................................... 20.00 20.00 Satellite Image Product ................................................................................................................. 92.00 61.00 Offline Satellite, Radar, and Model Digital Data (average unit size is 1 terabyte) ....................... 753.00 388.00 Conventional CD–ROM/DVD ........................................................................................................ 110.00 79.00 Specialized CD–ROM/DVD ........................................................................................................... 208.00 175.00 CD–ROM/DVD Copy, Offline ........................................................................................................ 43.00 62.00 CD–ROM/DVD Copy, Online Store .............................................................................................. 16.00 28.00 Facsimile Service .......................................................................................................................... 89.00 89.00 Order Handling .............................................................................................................................. 11.00 20.00 Non-Digital Order Consultation ..................................................................................................... 10.00 9.00 Digital Order Consultation ............................................................................................................. 28.00 26.00 Non-Serial Publications ................................................................................................................. 32.00 * Non-Standard Data; Select/Copy to CD, DVD or Electronic Transfer, Specialized, Offline ........ 77.00 * Digital and Non-Digital Off-the-Shelf Products, Online ................................................................. 13.00 * Digital and Non-Digital Off-the-Shelf Products, Offline ................................................................. 17.00 * Order Consultation Fee ................................................................................................................. 4.00 * Handling and Packing Fee ............................................................................................................ 12.00 * Mini Poster .................................................................................................................................... 2.00 * Icosahedron Globe ........................................................................................................................ 1.00 * Convert Data to Standard Image .................................................................................................. 8.00 * Single Orbit OLS & Subset ........................................................................................................... 19.00 20.00 Single Orbit OLS & Subset, Additional Orbits .............................................................................. 6.00 6.00 Geolocated Data ........................................................................................................................... 50.00 * VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00337 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 328 15 CFR Ch. IX (1–1–21 Edition) Pt. 960 Name of product/data/publication/information/service Current fee ($) New fee ($) NOAA National Center for Environmental Information Subset of Pre-existing Geolocated Data ....................................................................................... 32.00 * Global Nighttime Lights Annual Composite from One Satellite .................................................... 74,032.00 * Daily or Nightly Global Mosaics (visible & thermal band, single spectral band or environmental data) ........................................................................................................................................... 332.00 * Global Nighttime Lights Monthly Composite—one satellite .......................................................... 8,259.00 8,705.00 Research Data Series CD–ROM/DVD .......................................................................................... 25.00 25.00 NOS Bathymetric Maps and Miscellaneous Archived Publication Inventory ............................... 8.00 * Global Annual Composite of Nighttime Lights in Monthly Increments From One Satellite .......... 10,794.00 * High Definition Geomagnetic Model ............................................................................................. 20,262.00 22,540.00 High Definition Geomagnetic Model—Real Time (HDGM–RT) .................................................... 26,204.00 29,059.00 Provision of Global Nighttime VIIRS day/night band data in geotiff Format ................................ 55,727.00 56,130.00 Provision of Global Nighttime VIIRS day/night band data in HDF5 Format ................................. 27,888.00 29,975.00 Provision of regional data from the VIIRS instrument on a daily basis ........................................ 14,306.00 14,720.00 * Indicates a product no longer offered. [84 FR 11412, Mar. 27, 2019] PART 960—LICENSING OF PRIVATE REMOTE SENSING SPACE SYSTEMS Subpart A—General Sec. 960.1 Purpose. 960.2 Jurisdiction. 960.3 Applicability to existing licenses. 960.4 Definitions. Subpart B—License Application Submission and Categorization 960.5 Application submission. 960.6 Application categorization. Subpart C—License Application Review and License Conditions 960.7 License grant or denial. 960.8 Standard license conditions for all tiers. 960.9 Additional standard license conditions for Tier 2 systems. 960.10 Additional standard and temporary license conditions for Tier 3 systems. 960.11 No additional conditions. 960.12 Applicant-requested waiver before li cense issuance. 960.13 Licensee-requested modification after license issuance. 960.14 Routine compliance and monitoring. 960.15 Term of license. Subpart D—Prohibitions and Enforcement 960.16 Prohibitions. 960.17 Investigations and enforcement. Subpart E—Appeals Regarding Licensing Decisions 960.18 Grounds for adjudication by the Sec retary. 960.19 Administrative appeal procedures. APPENDIX A TO PART 960—APPLICATION IN FORMATION REQUIRED APPENDIX B TO PART 960—APPLICATION SUB MISSION INSTRUCTIONS APPENDIX C TO PART 960—LICENSE TEMPLATE APPENDIX D TO PART 960—MEMORANDUM OF UNDERSTANDING AUTHORITY: 51 U.S.C. 60124. SOURCE: 85 FR 30806, May 20, 2020, unless otherwise noted. Subpart A—General § 960.1 Purpose. (a) The regulations in this part im plement the Secretary’s authority to license the operation of private remote sensing space systems under the Land Remote Sensing Policy Act of 1992, as amended, codified at 51 U.S.C. 60101 et seq., and are intended to promote con tinued U.S. private sector innovation and leadership in the global remote sensing industry. (b) In carrying out this part, the Sec retary takes into account the following considerations: (1) Technological changes in remote sensing; (2) Non-technological changes in the remote sensing space industry, such as to business models and practices; (3) The relative burden to licensees and benefits to national security and international policies of license condi tions; (4) Changes in the methods to miti gate risks to national security and international policies; (5) International obligations of the United States; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00338 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 329 Nat’l Oceanic and Atmospheric Adm., Commerce § 960.4 (6) The availability of data from sources in other nations; (7) The remote sensing regulatory en vironment in other nations; and (8) The potential for overlapping reg ulatory burdens imposed by other U.S. Government agencies. § 960.2 Jurisdiction. (a) The regulations in this part set forth the requirements for the oper ation of private remote sensing space systems within the United States or by a U.S. person. (b) Instruments used primarily for mission assurance or other technical purposes, including but not limited to navigation, attitude control, moni toring spacecraft health, separation events, or payload deployments, such as traditional star trackers, sun sen sors, and horizon sensors, shall not be subject to this part. (c) In the case of a system that is used for remote sensing and other pur poses, as determined by the Secretary, the scope of the license issued under this part will not extend to the oper ation of instruments that do not sup port remote sensing. (d) The Secretary does not authorize the use of spectrum for radio commu nications by a private remote sensing space system. § 960.3 Applicability to existing li censes. (a) After reviewing each license ex isting prior to July 20, 2020, on July 20, 2020, the Secretary will either: (1) Replace the existing license with one developed in accordance with this part, retaining any applicable waivers and modifications; or (2) If the Secretary determines that an existing licensee no longer requires a license under this part the Secretary will notify the existing licensee that the license is terminated. (b) The replacement license or termi nation determination will be effective 30 days after delivery by the Secretary to existing licensees. Existing licensees who object to their existing license being replaced or terminated must no tify the Secretary in writing within those 30 days, and specify their objec tion in the notification. § 960.4 Definitions. For purposes of this part, the fol lowing terms have the following mean ings: Act means the Land Remote Sensing Policy Act of 1992, as amended, codified at 51 U.S.C. 60101, et seq. Anomaly means an unexpected event or abnormal characteristic affecting the operations of a system that could indicate a significant technical mal function or security threat. Anomalies include any significant deviation from the orbit and data collection character istics of the system. Appellant means a person to whom the Secretary has certified an appeal request. Applicant means a person who sub mits an application to operate a pri vate remote sensing space system. Application means a document sub mitted by a person to the Secretary that contains all the information de scribed in appendix A of this part. Available means readily and consist ently obtainable by an entity or indi vidual other than the U.S. Government or a foreign government. Ground sample distance or GSD refers to the common measurement for de scribing the spatial resolution of unenhanced data created from most re mote sensing instruments, typically measured in meters. A resolution ‘‘finer than’’ X meters GSD means the resolution is a number lower than X. For example, 5 meters GSD is finer than 10 meters GSD. In writing or written means written communication, physically or elec tronically signed (if applicable), trans mitted via email, forms submitted on the Secretary’s website, or traditional mail. License means a license granted by the Secretary under the Act. Licensee means a person to whom the Secretary has granted a license under the Act. Material fact means a fact an appli cant provides in the application, or a fact in Parts C or D of a license. Memorandum of Understanding or MOU means the April 25, 2017 version of the ‘‘Memorandum of Understanding Among the Departments of Commerce, State, Defense, and Interior, and the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00339 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 330 15 CFR Ch. IX (1–1–21 Edition) § 960.5 Office of the Director of National Intel ligence, Concerning the Licensing and Operations of Private Remote Sensing Satellite Systems,’’ which is included as appendix D of this part. In the event that any provisions of the MOU con flict with this part, this part shall gov ern. Modification means any change in the text of a license after issuance. Operate means to have decision-mak ing authority over the functioning of a remote sensing instrument. If there are multiple entities involved, the entity with the ultimate ability to decide what unenhanced data to collect with the instrument and to execute that de cision, directly or through a legal ar rangement with a third party such as a ground station or platform owner, is considered to be operating that system. Person or private sector party means any entity or individual other than agencies or instrumentalities of the U.S. Government. Private remote sensing space system or system means an instrument that is ca pable of conducting remote sensing and which is not owned by an agency or in strumentality of the U.S. Government. A system must contain a remote sens ing instrument and all additional com ponents that support operating the re mote sensing instrument, receipt of unenhanced data, and data preprocessing, regardless of whether the component is owned or managed by the applicant or licensee, or by a third party through a legal arrangement with the applicant or licensee. Remote sensing means the collection of unenhanced data by an instrument in orbit of the Earth which can be proc essed into imagery of surface features of the Earth. Secretary means the Secretary of Commerce, or his or her designee. Significant or substantial foreign agree ment means a contract or legal ar rangement with a foreign national, en tity, or consortium involving foreign nations or entities, only if executing such contract or arrangement would require a license modification under § 960.13. Subsidiary or affiliate means a person who directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common con trol with, the applicant or licensee. Substantially the same means that one item is a market substitute for an other, taking into account all applica ble factors. When comparing data, fac tors include but are not limited to the data’s spatial resolution, spectral bandwidth, number of imaging bands, temporal resolution, persistence of im aging, local time of imaging, geo graphic or other restrictions imposed by foreign governments, and all appli cable technical system factors listed in the application in appendix A of this part. Unenhanced data means the output from a remote sensing instrument, in cluding imagery products, which is ei ther unprocessed or preprocessed. Preprocessing includes rectification of system and sensor distortions in data as it is received directly from the in strument in preparation for delivery to a user, registration of such data with respect to features of the Earth, and calibration of spectral response with respect to such data, but does not in clude conclusions, manipulations, or calculations derived from such data, or a combination of such data with other data. U.S. person means: (1) Any individual who is a citizen or lawful permanent resident of the United States; and (2) Any corporation, partnership, joint venture, association, or other en tity organized or existing under the laws of the United States or any State, the District of Columbia, Puerto Rico, American Samoa, the United States Virgin Islands, Guam, the Northern Mariana Islands, and any other com monwealth, territory, or possession of the United States. Waiver means any change from the standard license text in § 960.8, § 960.9, or § 960.10, which change is included in a license upon license issuance, in re sponse to a request by the applicant pursuant to § 960.12. Subpart B—License Application Submission and Categorization § 960.5 Application submission. (a) Before submitting an application, a person may consult informally with VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00340 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 331 Nat’l Oceanic and Atmospheric Adm., Commerce § 960.6 the Secretary to discuss matters under this part, including whether a license is likely to be required for a system. (b) A person may submit an applica tion for a license in accordance with the specific instructions found in ap pendix B of this part. The application must contain fully accurate and re sponsive information, as described in appendix A of this part. Responses an applicant provides to each prompt in the application constitute material facts. (c) Within seven days of the submis sion, the Secretary shall determine, after consultation with the Secretaries of Defense and State, whether the sub mission is a complete application meeting the requirements of appendix A of this part. If the submission is a complete application, the Secretary shall immediately notify the applicant in writing. If the submission is not a complete application, the Secretary shall inform the applicant in writing of what additional information or clari fication is required to complete the ap plication. (d) If any information the applicant submitted becomes inaccurate or in complete at any time after submission to the Secretary but before license grant or denial, the applicant must contact the Secretary and submit cor rect and updated information as in structed by the Secretary. The Sec retary will determine whether the change is significant. If the Secretary determines that the change is signifi cant, the Secretary will notify the ap plicant within seven days of receipt of the correct and updated information that the revision constitutes a new ap plication submission under paragraph (b) of this section, and that the pre vious application is deemed to have been withdrawn. (e) Upon request by the applicant, the Secretary shall provide an update on the status of their application re view. § 960.6 Application categorization. (a) Within seven days of the Sec retary’s notification to the applicant under § 960.5(c) that the application is complete, the Secretary shall deter mine, after consultation with the Sec retaries of Defense and State as appro priate, the category for the system as follows: (1) If the application proposes a sys tem with the capability to collect unenhanced data substantially the same as unenhanced data already available from entities or individuals not licensed under this part, such as foreign entities, the Secretary shall categorize the application as Tier 1; (2) If the application proposes a sys tem with the capability to collect unenhanced data substantially the same as unenhanced data already available, but only from entities or in dividuals licensed under this part, the Secretary shall categorize the applica tion as Tier 2; and (3) If the application proposes a sys tem with the capability to collect unenhanced data not substantially the same as unenhanced data already available from any domestic or foreign entity or individual, the Secretary shall categorize the application as Tier 3. (b) If the Secretary of Defense or State disagrees with the Secretary’s determination in paragraph (a) of this section, the Secretary of Defense or State may notify the Secretary and re quest the Secretary’s reconsideration. Such a request for reconsideration may not be delegated below the Assistant Secretary level. If the Secretary of De fense or State disagrees with the Sec retary’s reconsideration decision, the Secretary of Defense or State may ap peal that tier categorization pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU, but only at the Advisory Com mittee on Private Remote Sensing Space Systems level or higher. The Secretary shall categorize the system in accordance with the decision result ing from such MOU procedures. (c) The system shall remain in the tier assigned to it under paragraph (a) in this section until such time as the Secretary determines, after consulta tion with the Secretaries of Defense and State as appropriate, that the sys tem belongs in a lower-numbered tier due to the advancement of non-U.S. commercial remote sensing capabili ties or due to other facts, or until the Secretary grants the licensee’s request for a license modification that results VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00341 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 332 15 CFR Ch. IX (1–1–21 Edition) § 960.7 in re-categorization under § 960.13. When the Secretary determines that a lower-numbered tier is appropriate due to reasons other than a modification under § 960.13, the Secretary will notify the applicant or licensee in writing that the system falls under a lower numbered tier than the one previously assigned under this section. Upon re ceiving that notification, the applicant or licensee will be responsible for com plying only with the license conditions applicable to the new tier. Subpart C—Application Review and License Conditions § 960.7 License grant or denial. (a) Based on the Secretary’s review of the application, the Secretary must de termine whether the applicant will comply with the requirements of the Act, this part, and the license. The Secretary will presume that the appli cant will comply, unless the Secretary has specific, credible evidence to the contrary. If the Secretary determines that the applicant will comply, the Secretary shall grant the license. (b) The Secretary shall make the de termination in paragraph (a) of this section within 60 days of the notifica tion under § 960.5(c), and shall notify the applicant in writing whether the li cense is granted or denied. (c) If the Secretary has not notified the applicant whether the license is granted or denied within 60 days, the applicant may submit a request that the license be granted. Within three days of this request, the Secretary shall grant the license, unless the Sec retary determines with specific, cred ible evidence that the applicant will not comply with the requirements of the Act, this part, or the license, in which case the Secretary will deny the license, or the Secretary and the appli cant mutually agree to extend this re view period. § 960.8 Standard license conditions for all tiers. All licenses granted under this part shall specify that the licensee shall: (a) Comply with the Act, this part, the license, applicable domestic legal obligations, and the international obli gations of the United States; (b) Operate the system in such man ner as to preserve the national security of the United States and to observe international obligations and policies, as articulated in the other conditions included in this license; (c) Upon request, offer to the govern ment of any country (including the United States) unenhanced data col lected by the system concerning the territory under the jurisdiction of such government without delay and on rea sonable terms and conditions, unless doing so would be prohibited by law or license conditions; (d) Upon termination of operations under the license, make disposition of any satellites in space in a manner sat isfactory to the President; (e) Notify the Secretary in writing of each of the following events, no later than seven days after the event: (1) The launch and deployment of each system component, to include confirmation that the component matches the orbital parameters and data collection characteristics of the system, as described in Part D of the li cense; (2) Each disposal of an on-orbit com ponent of the system; (3) The detection of an anomaly; and (4) The licensee’s financial insol vency or dissolution; (f) Request and receive approval for a license modification before taking any action that would change a material fact in the license; (g) Certify that all material facts in the license remain accurate pursuant to the procedures in § 960.14 no later than October 15th of each year; (h) Cooperate with compliance, moni toring, and enforcement authorities de scribed in the Act and this part, and permit the Secretary to access, at all reasonable times and with no shorter notice than 48 hours, any component of the system for the purpose of ensuring compliance with the Act, this part, and the license; and (i) Refrain from disseminating unenhanced data, or processed data or products derived from the licensee’s system, of the State of Israel at a reso lution finer than the resolution most recently specified by the Secretary in the FEDERAL REGISTER as being avail able from commercial sources. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00342 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 333 Nat’l Oceanic and Atmospheric Adm., Commerce § 960.10 § 960.9 Additional standard license conditions for Tier 2 systems. If the Secretary has categorized the system as Tier 2 under § 960.6, the li cense shall specify that the licensee shall comply with the conditions listed in § 960.8 and further shall comply with the following conditions until the Sec retary notifies the licensee that the system belongs in a lower-numbered tier: (a) Comply with limited-operations directives issued by the Secretary, in accordance with a determination made by the Secretary of Defense or the Sec retary of State pursuant to the proce dures in Section IV(D) of the MOU, that require licensees to temporarily limit data collection and/or dissemina tion during periods of increased con cerns for national security and where necessary to meet international obliga tion or foreign policy interests; and: (1) Be able to comply with limited operations directives at all times. This includes: (i) The ability to implement National Institute of Standards and Technology approved encryption, in accordance with the manufacturer’s security pol icy, wherein the key length is at least 256 bits, for communications to and from the on-orbit components of the system related to tracking, telemetry, and control and for transmissions throughout the system of the data specified in the limited-operations di rective; and (ii) Implementing measures, con sistent with industry best practice for entities of similar size and business op erations, that prevent unauthorized ac cess to the system and identify any un authorized access in the event of a lim ited-operations directive; (2) Provide and continually update the Secretary with a point of contact and an alternate point of contact for limited-operations directives; and (3) During any such limited-oper ations directive, permit the Secretary to immediately access any component of the system for the purpose of ensur ing compliance with the limited-oper ations directive, the Act, this part, and the license. (b) Conduct resolved imaging of other artificial resident space objects (ARSO) orbiting the Earth only with the writ ten consent of the registered owner of the ARSO to be imaged and with notifi cation to the Secretary at least five days prior to imaging. For purposes of this paragraph (b), ‘‘resolved imaging’’ means the imaging of another ARSO that results in data depicting the ARSO with a resolution of 3 x 3 pixels or greater. § 960.10 Additional standard and tem porary license conditions for Tier 3 systems. (a) If the Secretary has categorized the system as Tier 3 under § 960.6, the license shall specify that the licensee shall comply with the conditions listed in § 960.8 and further shall comply with the following conditions until the Sec retary notifies the licensee that the system belongs in a lower-numbered tier for which the following conditions are not required: (1) Comply with limited-operations directives issued by the Secretary, in accordance with a determination made by the Secretary of Defense or the Sec retary of State pursuant to the proce dures in Section IV(D) of the MOU, that require licensees to temporarily limit data collection and/or dissemina tion during periods of increased con cerns for national security and where necessary to meet international obliga tions or foreign policy interests; and: (i) Be able to comply with limited-op erations directives at all times. This includes: (A) The ability to implement Na tional Institute of Standards and Tech nology-approved encryption, in accord ance with the manufacturer’s security policy, wherein the key length is at least 256 bits, for communications to and from the on-orbit components of the system related to tracking, telem etry, and control and for transmissions throughout the system of the data specified in the limited-operations di rective; and (B) Implementing measures, con sistent with industry best practice for entities of similar size and business op erations, that prevent unauthorized ac cess to the system and identify any un authorized access in the event of a lim ited-operations directive; (ii) Provide and continually update the Secretary with a point of contact VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00343 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 334 15 CFR Ch. IX (1–1–21 Edition) § 960.10 and an alternate point of contact for limited-operations directives; and (iii) During any such limited-oper ations directive, permit the Secretary to immediately access any component of the system for the purpose of ensur ing compliance with the limited-oper ations directive, the Act, this part, and the license. (2) Conduct resolved imaging of other artificial resident space objects (ARSO) orbiting the Earth only with the writ ten consent of the registered owner of the ARSO to be imaged and with notifi cation to the Secretary at least five days prior to imaging, or as may other wise be provided in a temporary license condition developed under paragraphs (b) and (c) of this section. For purposes of this paragraph (a)(2), ‘‘resolved im aging’’ means the imaging of another ARSO that results in data depicting the ARSO with a resolution of 3 x 3 pixels or greater. (3) Comply with any temporary li cense conditions developed in accord ance with paragraphs (b) and (c) of this section until their specified expiration date, including any extensions of the expiration date. (b) To determine whether additional temporary license conditions are nec essary, the Secretary shall notify the Secretaries of Defense and State of any system categorized as Tier 3 under § 960.6. The Secretaries of Defense and State shall determine whether any temporary license conditions are nec essary (in addition to the standard li cense conditions in § 960.8) to meet na tional security concerns or inter national obligations and policies of the United States regarding that system. Within 21 days of receiving the notifi cation, the Secretary of Defense or State shall notify the Secretary of any such conditions and the length of time such conditions should remain in place, which shall not exceed one year from the earlier of either when the licensee first delivers unenhanced data suitable for evaluating the system’s capabilities to the Secretary (under reasonable terms and conditions or other mutu ally agreed arrangement with the Sec retary of Defense or State), or when the Secretary of Defense or State first obtains comparably suitable data from another source, unless the length of such condition is extended in accord ance with paragraph (e) of this section. (c) The Secretary shall review the no tification from the Secretary of De fense or State under paragraph (b) of this section and aim to craft the least restrictive temporary license condi tion(s) possible, before the expiration of the 60-day application review period under § 960.7(b). In crafting such condi tions the Secretary shall consult, as appropriate, with the Secretaries of Defense and State and the applicant or licensee, to determine whether the pro posed condition would be consistent with applicable laws. In making this determination, the Secretary shall consider whether: (1) The risk addressed by the pro posed condition is specific and compel ling; (2) The proposed condition would be effective against the risk; (3) The proposed condition addresses only the data proposed to be collected that are not available from any domes tic or foreign source; (4) The U.S. Government cannot cur rently mitigate the risk without the proposed condition; (5) The U.S. Government cannot ad dress the risk by some less restrictive means than the proposed condition; and (6) The applicant or licensee can mitigate the risk by taking alternative action. (d) When considering the factors under paragraphs (c)(1) through (6) of this section, the Secretary shall accept as final the determinations made by the Secretary of Defense or State as appropriate, in such Secretary’s notifi cation to the Secretary of the need for such conditions. If the Secretary deter mines that a condition proposed by the Secretary of Defense or State would be consistent with applicable law, the Secretary shall include such condition in the license, absent any elevation of a dispute under paragraph (f) of this section. (e) The Secretary will notify the Sec retaries of Defense and State 90 days before the expiration of a temporary condition imposed under this section. If, within 30 days after such notifica tion, either the Secretary of Defense or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00344 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 335 Nat’l Oceanic and Atmospheric Adm., Commerce § 960.14 State notifies the Secretary that an ex tension is needed, the Secretary shall consult with the Secretary of Defense or State about the ongoing need for the temporary condition. The Secretary may extend the expiration date of the temporary condition for a maximum of one year, and may extend the condition no more than two times unless re quested by the Secretary of Defense or State. The authority to request such additional extensions shall not be dele gated by the Secretary of Defense or State. Therefore, absent a request spe cifically from the Secretary of Defense or State, any temporary condition may exist for no more than a total of three years. The Secretary shall grant an ex tension if the Secretary determines that: (1) The Secretary requesting the ex tension has shown that the consider ations in paragraph (c) of this section justify an extension; and (2) The Secretary has notified the af fected licensee no less than 60 days be fore the expiration of the temporary condition that an extension is being sought. (f) If, at any point during the proce dures in this section, the Secretary, the Secretary of Defense, or the Sec retary of State objects to any deter mination, they may elevate the objec tion pursuant to the interagency dis pute resolution procedures in Section IV(B) of the MOU. § 960.11 No additional conditions. No other conditions shall be included in a license granted under this part, or imposed in such a license after the li cense has been issued, except in accord ance with the provisions of § 960.13 or § 960.17. § 960.12 Applicant-requested waiver before license issuance. As part of the application, the appli cant may request that any condition listed in § 960.8, § 960.9, or § 960.10 be waived or adjusted. The Secretary may approve the request to waive or adjust any such condition if the Secretary de termines, after consultation with the Secretaries of Defense and State as ap propriate, that the Secretary may waive or adjust the condition without violating the Act or other law, and: (a) The requirement is not applicable due to the nature of the applicant or the proposed system; (b) The applicant will achieve the goal in a different way; or (c) There is other good cause to waive or adjust the condition. § 960.13 Licensee-requested modifica tion after license issuance. (a) The licensee may request in writ ing that the Secretary modify the li cense after the license is issued. Such requests should include the reason for the request and relevant supporting documentation. (b) If the Secretary determines that the requested modification of a license would result in its re-categorization from Tier 1 to Tier 2 under § 960.6, the Secretary shall notify the licensee that approval would require issuance of the conditions in § 960.9, and provide the li censee an opportunity to withdraw or revise the request. (c) If the Secretary determines that the requested modification of a license would result in its re-categorization from Tier 1 or 2 to Tier 3 under § 960.6, the Secretary shall consult with the Secretaries of Defense or State, as ap propriate, to determine whether ap proval of the request would require ad ditional temporary conditions in ac cordance with the procedures in § 960.10. If so, the Secretary shall notify the licensee that approval would re quire such additional temporary condi tions, and provide the licensee an op portunity to withdraw or revise the re quest. (d) The Secretary shall approve or deny a modification request after con sultation with the Secretaries of De fense and State as appropriate, and shall inform the licensee of the ap proval or denial within 60 days of the request, unless the Secretary and the applicant mutually agree to extend this review period. § 960.14 Routine compliance and mon itoring. (a) Annually, by the date specified in the license, the licensee will certify in writing to the Secretary that each ma terial fact in the license remains accu rate. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00345 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 336 15 CFR Ch. IX (1–1–21 Edition) § 960.15 (b) If any material fact in the license is no longer accurate at the time the certification is due, the licensee must: (1) Provide all accurate material facts; (2) Explain the reason for any dis crepancies between the terms in the li cense and the accurate material fact; and (3) Seek guidance from the Secretary on how to correct any errors, which may include requesting a license modi fication. § 960.15 Term of license. (a) The license term begins when the Secretary transmits the signed license to the licensee, regardless of the oper ational status of the system. (b) The license is valid until the Sec retary confirms in writing that the li cense is terminated, because the Sec retary has determined that one of the following has occurred: (1) The licensee has successfully dis posed of, or has taken all actions nec essary to successfully dispose of, all on-orbit components of the system, and is in compliance with all other require ments of the Act, this part, and the li cense; (2) The licensee never had system components on orbit and has requested to end the license term; (3) The license is terminated pursu ant to § 960.17; or (4) The licensee has executed one of the following transfers, subsequent to the Secretary’s approval of such trans fer: (i) Ownership of the system, or the operations thereof, to an agency or in strumentality of the U.S. Government; or (ii) Operations to a person who is not a U.S. person and who will not operate the system from the United States. Subpart D—Prohibitions and Enforcement § 960.16 Prohibitions. Any person who operates a system from the United States and any person who is a U.S. person shall not, directly or through a subsidiary or affiliate: (a) Operate a system without a cur rent, valid license for that system; (b) Violate the Act, this part, or any license condition; (c) Submit false information, inter fere with, mislead, obstruct, or other wise frustrate the Secretary’s actions and responsibilities under this part in any form at any time, including in the application, during application review, during the license term, in any compli ance and monitoring activities, or in enforcement activities; or (d) Fail to obtain approval for a li cense modification before taking any action that would change a material fact in the license. § 960.17 Investigations and enforce ment. (a) The Secretary may investigate, provide penalties for noncompliance, and prevent future noncompliance, by using the authorities specified at 51 U.S.C. 60123(a). (b) When the Secretary undertakes administrative enforcement pro ceedings as authorized by 51 U.S.C. 60123(a)(3) and (4), the parties will fol low the procedures provided at 15 CFR part 904. Subpart E—Appeals Regarding Licensing Decisions § 960.18 Grounds for adjudication by the Secretary. (a) In accordance with the procedures in this subpart, a person may appeal the following adverse actions for adju dication by the Secretary: (1) The denial of a license; (2) The categorization of a system in a tier; (3) The failure to make a final deter mination on a license grant or denial or a licensee’s modification request within the timelines provided in this part; (4) The imposition of a license condi tion; (5) The denial of a licensee-requested license modification; and (6) The replacement of an existing li cense with a license granted under § 960.3(a)(1) or termination of an exist ing license under § 960.3(a)(2). (b) The only acceptable grounds for appeal of the actions in paragraph (a) of this section are as follows: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00346 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 337 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 960, App. A (1) The Secretary’s action was arbi trary, capricious, or contrary to law; or (2) The action was based on a clear factual error. (c) No appeal is allowed to the extent that there is involved the conduct of military or foreign affairs functions. § 960.19 Administrative appeal proce dures. (a) A person wishing to appeal an ac tion specified at § 960.18(a) may do so within 21 days of the action by submit ting a written request to the Sec retary. (b) The request must include a de tailed explanation of the reasons for the appeal, citing one of the grounds specified in § 960.18(b). (c) Upon receipt of a request under paragraph (a) of this section, the Sec retary shall review the request to cer tify that it meets the requirements of this subpart and chapter 7 of title 5 of the United States Code. If it does, the Secretary shall coordinate with the ap pellant to schedule a hearing before a hearing officer designated by the Sec retary. If the Secretary does not cer tify the request, the Secretary shall notify the person in writing that no ap peal is allowed, and this notification shall constitute a final agency action. (d) The hearing shall be held in a timely manner. It shall provide the ap pellant and the Secretary an oppor tunity to present evidence and argu ments. (e) Hearings may be closed to the public, and other actions taken as the Secretary deems necessary, to prevent the disclosure of any information re quired by law to be protected from dis closure. (f) At the close of the hearing, the hearing officer shall recommend a deci sion to the Secretary addressing all factual and legal arguments. (g) Based on the record of the hearing and the recommendation of the hearing officer, and after consultation, as ap propriate, with the Secretaries of De fense and State in decisions impli cating national security and inter national obligations and policy, respec tively, the Secretary shall make a de cision adopting, rejecting, or modi fying the recommendation of the hear ing officer. This decision constitutes a final agency action, and is subject to judicial review under chapter 7 of title 5 of the United States Code. APPENDIX A TO PART 960—APPLICATION INFORMATION REQUIRED To apply for a license to operate a remote sensing space system under 51 U.S.C. 60101, et seq. and this part, you must provide: 1. Material Facts: Fully accurate and re sponsive information to the following prompts under ‘‘Description of Applicant (Operator)’’ and ‘‘Description of System.’’ If a question is not applicable, write ‘‘N/A’’ and explain, if necessary. 2. Affirmation: Confirm by indicating below that there will be, at all times, meas ures in place to ensure positive control of any spacecraft in the system that have pro pulsion, if applicable to your system. Such measures include encryption of telemetry, command, and control communications or alternative measures consistent with indus try best practice. 3. Your response to each prompt below con stitutes a material fact. If any information you submit becomes inaccurate or incom plete before a license grant or denial, you must promptly contact the Secretary and submit correct and updated information as instructed by the Secretary. PART A: DESCRIPTION OF APPLICANT (OPERATOR) 1. General Applicant Information a. Name of Applicant (entity or indi vidual): b. Location and address of Applicant: c. Applicant contact information (for ex ample, general corporate or university con tact information): d. Contact information for a specific indi vidual to serve as the point of contact with Commerce: e. Contact information for a specific indi vidual to serve as the point of contact with Commerce for limited-operations directives, if different than main point of contact, in the event that the applicant will receive a li cense in Tier 2 or Tier 3: f. Place of incorporation and, if incor porated outside the United States, an ac knowledgement that you will operate your system within the United States and are therefore subject to the Secretary’s jurisdic tion under this part: 2. Ownership interests in the Applicant: a. If there is majority U.S. ownership: Re port any domestic entity or individual with an ownership interest in the Applicant total ing at least 50 percent: b. If there is not majority U.S. ownership: Report all foreign entities or individuals VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00347 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 338 15 CFR Ch. IX (1–1–21 Edition) Pt. 960, App. A whose ownership interest in the Applicant is at least 10 percent: c. Report any ownership interest in the Ap plicant by any foreign entity or individual on the Department of Commerce’s Bureau of Industry and Security’s Denied Persons List or Entity List or on the Department of the Treasury’s Office of Foreign Asset Control’s Specially Designated Nationals and Blocked Person List: 3. Identity of any subsidiaries and affili ates playing a role in the operation of the System, including a brief description of that role: PART B: DESCRIPTION OF SYSTEM 1. General System Information a. Name of system: b. Brief mission description: 2. Remote Sensing Instrument(s) param eters a. Sensor type (Electro Optical, Multi Spectral (MSI), Hyperspectral (HSI), Syn thetic Aperture Radar (SAR), Light Detec tion and Ranging (LIDAR), Thermal Infrared (TIR), etc.): b. Imaging/frame rate in Hertz; pulse rep etition frequency for SAR or LIDAR: c. Spatial resolution in meters (show cal culation for the anticipated finest ground spatial distance (GSD), impulse response (IPR), or other relevant appropriate unit of resolution): d. Spectral range in nanometers: e. Collection volume in area per unit time per spacecraft: Provide an estimate of the maximum number of square kilometers of which the system can provide data/imagery per hour or per minute. If this is a fast-fram ing system, consider each recorded frame as a separate image collected: f. Ability of the remote sensing instrument to slew, point, or digitally look off-axis from the x, y, and z axes of travel: 3. If any entity or individual other than the Applicant will own, control, or manage any remote sensing instrument in the System: a. Identity and contact information of that entity or individual: b. Relationship to Applicant (i.e., operating under Applicant’s instructions under a con tract): 4. Spacecraft Upon Which the Remote Sensing Instrument(s) is (are) Carried a. Description: b. Estimated launch date(s) in calendar quarter: c. Number of spacecraft (system total and maximum in-orbit at one time): d. For each spacecraft, provide the fol lowing (or if an entire constellation will have substantially the same orbital charac teristics, provide these values for the entire constellation and note whether or not all spacecraft will be evenly spaced) i. Altitude range in kilometers: ii. Inclination range in degrees: iii. Period (time of a single orbit): iv. Longitude of the ascending node: v. Eccentricity: vi. Argument of perigee: vii. Propulsion (yes/no). (If ‘‘yes,’’ you must complete the affirmation in the begin ning of this application): viii. Ability of the spacecraft to slew, point, or digitally look off-axis from the x, y, and z axes of travel: 5. If any entity or individual other than the Applicant will own, control, or manage any spacecraft in the System a. Identity and contact information of that entity or individual: b. Whether that entity or individual is a U.S. person: c. Relationship to Applicant (i.e., operating under Applicant’s instructions under a con tract): 6. Ground Components a. Location of Mission Control Center(s) with the ability to operate the system, in cluding where commands are generated: b. Location of other Ground Station com ponents of the system, meaning facilities that communicate commands to the instru ment or receive unenhanced data from it, and facilities that conduct data preprocessing: c. If any entity or individual other than the Applicant will own, control, or manage any mission control center(s) with the ability to operate the System i. Identity and contact information of that entity or individual: ii. Relationship to Applicant (i.e., oper ating under Applicant’s instructions under a contract): 7. Information Applicable to Multi-Spec tral Imaging (MSI) and/or Hyper-Spectral Imaging (HSI). Applicants must complete this section only if the response in Part B section 2.a. is ‘‘MSI’’ and/or ‘‘HSI.’’ a. Number of spectral bands: b. Individual spectral bandwidths (to in clude range of the upper and lower ends of each spectral band in nanometers): 8. Noise Equivalent Target (NET). Appli cants must complete this section only if the response in Part B 2.c. is 5 meters or less, and the answer in Part B section 2.a. is nei ther ‘‘SAR’’ nor ‘‘LIDAR.’’ NET is the pri mary parameter used by the U.S. Govern ment to describe an Electro Optical sensor’s light sensitivity performance for a target at the same distance from the sensor as is spec ified as the minimum operating altitude in Part B section 4.d.i. If NET cannot be cal culated, simply report the expected min imum detectable ground target radiance in watts: 9. Information Applicable to Light Detec tion and Ranging (LIDAR) if used for remote sensing. Responses should include the cal culations used to derive the reported param eters. Applicants must complete this section VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00348 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 339 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 960, App. C 1 NEDT (noise equivalent differential tem perature) is the key figure of merit which is used to qualify midwave (MWIR) and longwave (LWIR) infrared cameras. It is a signal-to-noise figure which represents the temperature difference which would produce a signal equal to the camera’s temporal noise. It therefore represents approximately the min imum temperature difference which the cam era can resolve. It is calculated by dividing the temporal noise by the response per de gree (responsivity) and is usually expressed in units of milliKelvins. The value is a func tion of the camera’s f/number, its integra tion time, and the temperature at which the measurement is made. only if the response in Part B section 2.a. is ‘‘LIDAR.’’ a. Type (linear scanning or flash LIDAR (Geiger)): b. Laser wavelength and pulse frequency: c. Laser pulse width: d. Spectral linewidth: e. Z/Elevation accuracy in meters: 10. Information Applicable to Synthetic Aperture Radar (SAR). Applicants must complete this section only if the response in Part B section 2.a. is ‘‘SAR.’’ a. Azimuth resolution (ground plane): b. Range resolution (ground plane): c. SAR Signal-To-Noise Ratio (SNR): d. Polarization Capability (i.e. dual polar ization, quad polarization): e. Complex data: Preservation of phase his tory data in standard format? (yes/no): f. Center frequency: g. Squint and Graze angles (include max imum and minimum), or other parameters that determine the size and shape of the area of regard of the sensor collection footprint at the ground: 11. Information Applicable to Thermal In frared (TIR). TIR is defined as collecting in the spectral range of 3.0–5.0 and/or 8.0–12.0 micrometers. Applicants must complete this section only if the response in Part B section 2.a. is ‘‘TIR.’’ a. Estimated relative thermometric accu racy in degrees Kelvin (± × degrees of actual): b. Noise Equivalent Differential Tempera ture (NEDT), or if NEDT cannot be cal culated, simply provide the expected tem perature sensitivity in terms of minimum re solvable temperature difference in degrees 1: PART C: REQUESTS FOR STANDARD LICENSE CONDITION WAIVERS OR ADJUSTMENTS Standard license conditions are listed at §§ 960.8. 960.9, and 960.10 for Tier 1, Tier 2, and Tier 3 systems, respectively. If requesting that any of these be waived or adjusted, please identify the specific standard license condition and explain why one of the fol lowing circumstances applies: 1. The requirement is not applicable due to the nature of the Applicant or the proposed system; 2. The Applicant will achieve the goal in a different way; or 3. There is other good cause to waive or ad just the condition. Optional: You may submit evidence of the availability of unenhanced data that is sub stantially the same as unenhanced data you propose to produce with your system. The Secretary will take any such evidence into account, in addition to other evidence of availability, when determining the appro priate tier for your system under § 960.6. APPENDIX B TO PART 960—APPLICATION SUBMISSION INSTRUCTIONS A person may apply to operate a private remote sensing space system by submitting the information to the Secretary as de scribed in appendix A of this part. This infor mation can be submitted in any one of the following three ways: 1. Complete the fillable form at the Sec retary’s designated website, presently at www.nesdis.noaa.gov/crsra. 2. Respond to the prompts in appendix A of this part and email your responses to crsra@noaa.gov. 3. Respond to the prompts in appendix A of this part and mail your responses to: Com mercial Remote Sensing Regulatory Affairs, 1335 East-West Highway SSMC–1/G–101, Sil ver Spring, MD 20910. APPENDIX C TO PART 960—LICENSE TEMPLATE PART A: DETERMINATION AND LICENSE GRANT 1. The Secretary determines that [licensee name], as described in Part C, will comply with the requirements of the Act, the regula tions at this part, and the conditions in this license. 2. Accordingly, the Secretary hereby grants [licensee name] (hereinafter ‘‘Li censee’’), as described in Part C, this license to operate [system name] (hereinafter ‘‘the System’’), as described in Part D, subject to the terms and conditions of this license. This license is valid until its term ends in accord ance with § 960.15. The Licensee must request and receive approval for a license modifica tion before taking any action that would contradict a material fact listed in Part C or D of this license. 3. The Secretary makes this determina tion, and grants this license, under the Sec retary’s authority in 51 U.S.C. 60123 and reg ulations at this part. This license does not authorize the System’s use of spectrum for radio communications or the conduct of any non-remote sensing operations that are pro posed to be undertaken by the Licensee. This VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00349 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 340 15 CFR Ch. IX (1–1–21 Edition) Pt. 960, App. C license is not alienable and creates no prop erty right in the Licensee. PART B: LICENSE CONDITIONS The Licensee (Operator) must, at all times: [Depending upon the categorization of the application as Tier 1, 2, or 3, Commerce will insert the applicable standard license condi tions, found at § 960.8, § 960.9, and/or § 960.10, and, for a Tier 3 license, any applicable tem porary conditions resulting from the process in § 960.10, in this part of the license.] PART C: DESCRIPTION OF LICENSEE Every term below constitutes a material fact. You must request and receive approval of a license modification before taking any action that would contradict a material fact. 1. General Licensee Information a. Name of Licensee (entity or individual): b. Location and address of Licensee: c. Licensee contact information (for exam ple, general corporate or university contact information): d. Contact information for a specific indi vidual to serve as the point of contact with Commerce: e. If Tier 2 or Tier 3, contact information for a specific individual to serve as the point of contact with Commerce for limited-oper ations directives, if different than main point of contact: f. Place of incorporation and, if incor porated outside the United States, confirma tion that the Licensee acknowledged as part of the application that the Licensee will op erate its system within the United States and is therefore subject to the Secretary’s jurisdiction under this part: 2. Identity of any subsidiaries and affili ates playing a role in the operation of the System, including a brief description of that role: PART D: DESCRIPTION OF SYSTEM 1. General System Information a. Name of system: b. Brief mission description: 2. Remote Sensing Instrument(s) param eters a. Sensor type (Electro Optical, Multi Spectral (MSI), Hyperspectral (HSI), Syn thetic Aperture Radar (SAR), Light Detec tion and Ranging (LIDAR), Thermal Infrared (TIR), etc.): b. Imaging/frame rate in Hertz; pulse rep etition frequency for SAR; or number of looks for LIDAR: c. Spatial resolution in meters: d. Spectral range in nanometers: e. Collection volume in area per unit time per spacecraft: An estimate of the maximum number of square kilometers of which the system can provide data/imagery per hour or per minute: f. Ability of the remote sensing instrument to slew, point, or digitally look off-axis from the x, y, and z axes of travel: 3. If any entity or individual other than the Licensee will own, control, or manage any remote sensing instrument in the System: a. Identity and contact information of that entity or individual: b. Relationship to Licensee (i.e., operating under Licensee’s instructions under a con tract): 4. Spacecraft Upon Which the Remote Sensing Instrument(s) is (are) Carried a. Description: b. Estimated launch date(s) in calendar quarter: c. Number of spacecraft (system total and maximum in-orbit at one time): d. For each spacecraft: i. Altitude range in kilometers: ii. Inclination range in degrees: iii. Period (time of a single orbit): iv. Longitude of the ascending node: v. Eccentricity: vi. Argument of perigee: vii. Propulsion (yes/no): viii. Ability of the spacecraft to slew, point, or digitally look off-axis from the x, y, and z axes of travel: 5. If any entity or individual other than the Licensee will own, control, or manage any spacecraft in the System a. Identity and contact information of that entity or individual: b. Whether that entity or individual is a U.S. person: c. Relationship to Licensee (i.e., operating under Licensee’s instructions under a con tract): 6. Ground Components a. Location of Mission Control Center(s) with the ability to operate the system, in cluding where commands are generated: b. Location of other Ground Station com ponents of the system, meaning facilities that communicate commands to the instru ment or receive unenhanced data from it, and facilities that conduct data preprocessing: c. If any entity or individual other than the Licensee will own, control, or manage any mission control center(s) with the ability to operate the System i. Identity and contact information of that entity or individual: ii. Relationship to Licensee (i.e., operating under Licensee’s instructions under a con tract): 7. Information Applicable to Multi-Spec tral Imaging (MSI) and/or Hyper-Spectral Imaging (HSI). a. Number of spectral bands: b. Individual spectral bandwidths (to in clude range of the upper and lower ends of each spectral band in nanometers): VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00350 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 341 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 960, App. D APPENDIX D TO PART 960—MEMORANDUM OF UNDERSTANDING Memorandum of Understanding Among the Departments of Commerce, State, Defense, and Interior, and the Office of the Director of National Intelligence, Concerning the Li censing and Operations of Private Remote Sensing Satellite Systems. April 25, 2017. I. AUTHORITIES AND ROLES This Memorandum of Understanding (MOU) is undertaken pursuant to the Na tional and Commercial Space Programs Act, 51 U.S.C, 60101 et seq. (‘‘the Act’’), 15 CFR part 960, National Security Presidential Di rective 27 (NSPD–27), and Presidential Policy Directive-4 PPD–4) (‘‘applicable directives’’), or to any renewal of, or successor to, the Act and the applicable directives. The principal Parties to this MOU are the Department of Commerce (DOC), Depart ment of State (DOS), Department of Defense (DOD), and Department of the Interior (DOI). The Office of the Director of National Intel ligence (ODNI) and the Joint Chiefs of Staff (JCS) provide supporting advice pertaining to their areas of expertise. The Secretary of commerce is responsible for administering the licensing of private remote sensing sat ellite systems pursuant to the Act and appli cable directives, and fulfills this responsi bility through the National Oceanic and At mospheric Administration (NOAA). For re mote sensing issues, the Act also grants the authority to the Secretary of State to deter mine conditions necessary to meet inter national obligations and foreign policies, and to the Secretary of Defense to determine conditions necessary to meet the national security concerns raised by any remote sens ing license application submitted pursuant to the Act and applicable directives, or to any amendment, renewal, or successor there to. In addition, pursuant to this MOU, NOAA shall also consult with the Director of Na tional Intelligence (DNI) for the views of the Intelligence Community (IC) and with the Chairman of the Joint Chiefs of Staff for the views of the DOD joint operational commu nity. II. PURPOSE The purpose of this MOU is to establish the interagency consultation process for adjudi cating remote sensing licensing actions, and the consultation process for the interruption of normal commercial operations pursuant to the Act and applicable directives. III. POLICY In consultation with affected departments and agencies, including the DNI and JCS, the Secretary of Commerce will impose con straints on private remote sensing systems when necessary to meet the international obligations, foreign policy concerns, and/or national security concerns of the United States, and shall accord with the determina tions of the Secretary of State and the Sec retary of Defense, and with applicable laws and directives. Procedures for implementing this policy are established below, with each Party to this MOU separately establishing and documenting its internal timelines and decision authorities below the Cabinet level. IV. PROCEDURES FOR DEPARTMENT/AGENCY REVIEW A. Consultation During Review of Licensing Actions Pursuant to the Act and applicable direc tives, or to any renewal thereof or successor thereto, the Secretary of Commerce shall re view any application and make a determina tion within 120 days of receipt of such appli cation. If final action has not occurred with in such time, then the Secretary shall in form the applicant of any pending issues and of actions required to resolve them. The DOC will provide copies of requests for licensing actions to DOS, DOD, DOI, ODNl, and JCS within 3 working days. Each of these entities will inform DOC, through NOAA, of the of fice of primary responsibility, including pri mary and backup points of contact, for li cense action coordination. (1) DOC will defer its decision on licensing requests until the other reviewing agencies have had a reasonable time to review them, as provided in this section. Within 10 work ing days of receipt, if DOS, DOD, DOI, ODNI, or JCS wants more information or time to review, then it shall notify, in writing, DOC/ NOAA (a) of any additional information that it believes is necessary to properly evaluate the licensing action, or (b) of the additional time, not to exceed 10 working days, nec essary to complete the review. This notifica tion shall state the specific reasons why the additional information is sought, or why more time is needed. (2) After receiving a complete license pack age, including any additional information that was requested as described above, DOS, DOD, DOI, ODNI and JCS will provide their final recommendations on the license pack age within 30 days, or otherwise may request from DOC/NOAA additional time necessary to provide a recommendation. If DOS deter mines that imposition of conditions on the actions being reviewed is necessary to meet the international obligations and foreign policies of the United States, or DOD deter mines that imposition of conditions are nec essary to address the national security con cerns of the United States, the MOU Party identifying the concern will promptly notify, in writing, DOC/NOAA and those depart ments and agencies responsible for the man agement of operational land imaging space VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00351 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 342 15 CFR Ch. IX (1–1–21 Edition) Pt. 960, App. D capabilities of the United States. Such noti fication shall: (a) Describe the specific na tional security interests, or the specific international obligations or foreign policies at risk, if the applicant’s system is approved as proposed; (b) set forth the specific basis for the conclusion that operation of the ap plicant’s system as proposed will not pre serve the identified national security inter ests or the identified international obliga tions or foreign policies; and (c) either speci fy the additional conditions that will be nec essary to preserve the relevant U.S. inter ests, or set forth in detail why denial is re quired to preserve such interests. All notifi cations under this paragraph must be in writing. B. Interagency Dispute Resolution for Licensing Actions (1) Committees. The following committees are established, described here from the low est level to the highest, to adjudicate dis agreements concerning proposed commercial remote sensing system licenses. (a) Operating Committee on Private Re mote Sensing Space Systems. An Operating Committee on Private Remote Sensing Space Systems (RSOC) is established. The Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator shall appoint its Chair. Its other principal mem bers shall be representatives of DOS, DOD, and DOI, or their subordinate agencies, who along with their subject matter experts, can speak on behalf of their department or agen cy. Representatives of the ODNI and the JCS shall participate as supporting members to provide independent advice pertaining to their areas of expertise. The RSOC may in vite representatives of United States Gov ernment departments or agencies that are not normally represented in the RSOC to participate in the activities of that Com mittee when matters of interest to such de partments or agencies are under consider ation. (b) Advisory Committee on Private Re mote Sensing Space Systems. An Advisory Committee on Private Remote Sensing Space Systems (ACPRS) is established and shall have as its principal members the As sistant Secretary of Commerce for Environ mental Observation and Prediction, who shall be Chair of the Committee, and Assist ant Secretary representatives of DOS, DOD, and DOI. Appointed representatives of ODNI and JCS shall participate as supporting members to provide independent advice per taining to their areas of expertise. Regard less of the department or agency representa tive’s rank and position, such representative shall speak at the ACPRS on behalf of his/ her department or agency. The ACPRS may invite Assistant Secretary level representa tion of United States Government depart ments or agencies that are not represented in the ACPRS to participate in the activities of that Committee when matters of interest to such departments or agencies are under consideration. (c) Review Board for Private Remote Sens ing Space Systems. The Board shall have, as its principal members, the Under Secretary of commerce for Oceans and Atmosphere, who shall be Chair of the Board, and Under Secretary or equivalent representatives of DOS, DOD, and DOI. The Director of Na tional Intelligence and Chairman of the Joint Chiefs of Staff shall be represented at an appropriate level as supporting members to provide independent advice pertaining to their areas of expertise. The Board may in vite the representatives of United States Government departments or agencies that are not represented on the Board, to partici pate in the activities of the Board when mat ters of interest to such departments or agen cies are under consideration. (2) Resolution Procedures. (a) If, following the various intra-depart mental review processes, the principal mem bers of the RSOC do not agree on approving a license or on necessary conditions that would allow for its approval, then the RSOC shall meet to review the license application. The RSOC shall work to resolve differences in the recommendations with the goal of ap proving licenses with the least restrictive conditions needed to meet the international obligations, foreign policies, or national se curity concerns of the United States. If the issues cannot be resolved, then the Chair of the RSOC shall prepare a proposed license that reflects the Committee’s views as close ly as possible, and provide it to the principal members of the RSOC for approval. The pro posed license prepared by the RSOC chair shall contain the conditions determined nec essary by DOS or DOD. Principal members have 5 working days to object to the pro posed license and seek a decision at a higher level. In the absence of a timely escalation, the license proposed by the RSOC Chair will be issued. (b) If any of the principal Parties disagrees with the proposed license provided by the RSOC Chair, they may escalate the matter to the ACPRS for resolution, Principal Par ties must escalate the matter within 5 work ing days of such a decision. Escalations must be in writing from the principal ACPRS member, and must cite the specific national security, foreign policy, or international ob ligation concern. Upon receipt of a request to escalate, DOC will suspend any further ac tion on the license action until ACPRS reso lution. The ACPRS shall meet to review all departments’ information and recommenda tions, and shall work to resolve interagency disagreements. Following this meeting, the Chair of the ACPRS shall, within 11 working VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00352 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 343 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 960, App. D days from the date of receiving notice of es calation, provide the reviewing departments a proposed license that contains the condi tions determined by DOS or DOD. Within 5 working days of receipt of the proposed li cense, an ACPRS principal member may ob ject to the prepared license and seek to esca late the matter to the Review Board. In the absence of an escalation within 5 working days, the license prepared by the ACPRS Chair will be issued. (c) If any of the principal Parties disagrees with the license prepared by the ACPRS Chair, it may escalate the matter to the Re view Board for resolution. Principal Parties must escalate the matter within 5 working days of such a decision. Escalations must be in writing from the principal Review Board member, and must cite the specific national security, foreign policy, or international ob ligation concern. Upon receipt of a request to escalate, DOC will suspend any further ac tion on the license action until Review Board resolution. The Review Board shall meet to review information and rec ommendations that are provided by the ACPRS, and such other private remote sens ing matters as appropriate. The Chair of the Board shall provide reviewing departments and agencies a proposed license within 11 working days from the date of receiving no tice of escalation. The proposed license pre pared by the Review Board chair shall con tain the conditions determined necessary by DOS or DOD. If no principal Parties object to the proposed license within 5 working days, it will be issued. (d) If, within 5 working days of receipt of the draft license, a principal Party disagrees with any conditions imposed on the license, that Party’s Secretary will promptly notify the Secretary of Commerce and the other principal Parties in writing of such disagree ment and the reasons therefor, and a copy will be provided to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology. (e) Upon notification of such a disagree ment, DOC will suspend further action on the license that would be inconsistent with the Secretary of State or the Secretary of Defense determination. If the Secretary of Commerce believes the limits defined by an other Secretary are inappropriate, then the Secretary of Commerce or Deputy Secretary shall consult with his or her counterpart in the relevant department within 10 working days regarding unresolved issues. If the rel evant Secretaries are unable to resolve any issues, the Secretary of Commerce will no tify the Assistant to the President for Na tional Security Affairs, who, in coordination with the Assistant to the President for Science and Technology, will seek to achieve consensus among departments and agencies, or failing that, by referral to the President. All efforts will be taken to resolve the dis pute within 3 weeks of its submission to the Assistant to the President for National Secu rity Affairs and the Assistant to the Presi dent for Science and Technology. C. Interagency Dispute Resolution Concerning Other Commercial Remote Sensing Matters Nothing in this MOU precludes any Party to this MOU from addressing through other appropriate channels, consistent with the Act and applicable directives, any matter re garding commercial remote sensing unre lated to (1) adjudicating remote sensing li censing actions, or (2) the interruption of normal commercial operations. Such mat ters may be raised using standard coordina tion processes, including by referral to the Assistant to the President for National Secu rity Affairs, who, in coordination with the Assistant to the President for Science and Technology, will seek to achieve consensus among the departments and agencies, or fail ing that, by referral to the President, when appropriate. D. Consultation During Review of Interruption of Normal Commercial Operations (1) This section establishes the process to limit the licensee’s data collection and/or distribution where necessary to meet inter national obligations or foreign policy inter ests, as determined by the Secretary of State, or during periods of increased concern for national security, as determined by the Secretary of Defense in consultation with the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff. DOC will provide DOS, DOD, ODNI, and JCS cop ies of licensee correspondence and docu ments that describe how the licensee will comply with such interruptions of its com mercial operations. (2) Conditions should be imposed for the smallest area and for the shortest period necessary to protect the international obli gations and foreign policies or national secu rity concerns at issue. Alternatives to prohi bitions on collection and/or distribution shall be considered as ‘‘modified operations,’’ such as delaying or restricting the trans mission or distribution of data, restricting disseminated data quality, restricting the field of view of the system, obfuscation, encryption of the data, or other means to control the use of the data, provided the li censee has provisions to implement such measures. (3) Except where urgency precludes it, DOS, DOD, DOC, ODNI and JCS will consult to attempt to come to an agreement con cerning appropriate conditions to be imposed on the licensee in accordance with deter minations made by DOS or DOD. Consulta tions shall be managed so that, in the event an agreement cannot be reached at the staff VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00353 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 344 15 CFR Ch. IX (1–1–21 Edition) Pt. 970 level, sufficient time will remain to allow the Secretary of Commerce to consult per sonally with the Secretary of State, the Sec retary of Defense, the Director of National Intelligence, or the Chairman of the Joint Chiefs of Staff as appropriate, prior to the issuance of a determination by the Secretary of State, or the Secretary of Defense, in ac cordance with (4) below. That function shall not be delegated below the Secretary or act ing Secretary. (4) After such consultations, or when the Secretary of State or the Secretary of De fense, specifically determines that urgency precludes consultation with the Secretary of Commerce, the Secretary of State shall de termine the conditions necessary to meet international obligations and foreign policy concerns, and the Secretary of Defense shall determine the conditions necessary to meet national security concerns. This function shall not be delegated below the Secretary or acting Secretary. (5) The Secretary of State or the Secretary of Defense will provide to the Secretary of Commerce a determination regarding the conditions required to be imposed on the li censees. The determination will describe the international obligations, specific foreign policy, or national security interest at risk. Upon receipt of the determination, DOC shall immediately notify the licensees of the im position of limiting conditions on commer cial operations. Copies of the determination and any implementing DOC action will be provided promptly to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology. (6) If the Secretary of Commerce believes the conditions determined by another Sec retary are inappropriate, he or she will, si multaneous with notification to, and imposi tion of such conditions on, the licensee, so notify the Secretary of State or the Sec retary of Defense, the Assistant to the Presi dent for National Security Affairs, and the Assistant to the President for Science and Technology. The Assistant to the President for National Security Affairs, in coordina tion with the Assistant to the President for Science and Technology, may initiate as soon as possible a Principals-level consult ative process to achieve a consensus or, fail ing that, refer the matter the President for decision. All efforts will be taken to resolve the disagreement within 7 working days of its submission to the Assistant to the Presi dent for National Security Affairs and the Assistant to the President for Science and Technology. E. Coordination Before Release of Information Provided or Generated by Other United States Government Departments or Agencies Before releasing any information provided or generated by another department or agen cy to a licensee or potential licensee, to the public, or to an administrative law judge, the agency proposing the release must con sult with the agency that provided or gen erated the information. The purpose of such consultations will be to review the propriety of any proposed release of information that may be privileged or restricted because it is classified, pre-decisional, deliberative, pro prietary, or protected for other reasons. No information shall be released without the ap proval of the department or agency that pro vided or generated it unless required by law. F. No Legal Rights No legal rights or remedies, or legally en forceable causes of action, are created or in tended to be created by this MOU. PART 970—DEEP SEABED MINING REGULATIONS FOR EXPLORATION LICENSES Subpart A—General Sec. 970.100 Purpose. 970.101 Definitions. 970.102 Nature of licenses. 970.103 Prohibited activities and restric tions. Subpart B—Applications 970.200 General. CONTENTS 970.201 Statement of financial resources. 970.202 Statement of technological experi ence and capabilities. 970.203 Exploration plan. 970.204 Environmental and use conflict analysis. 970.205 Vessel safety. 970.206 Statement of ownership. 970.207 Antitrust information. 970.208 Fee. PROCEDURES 970.209 Substantial compliance with appli cation requirements. 970.210 Reasonable time for full compliance. 970.211 Consultation and cooperation with Federal agencies. 970.212 Public notice, hearing and comment. 970.213 Amendment to an application. Subpart C—Procedures for Applications Based on Exploration Commenced Before June 28, 1980; Resolution of Conflicts Among Overlapping Appli cations; Applications by New Entrants 970.300 Purposes and definitions. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00354 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 345 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.100 970.301 Requirements for applications based on pre-enactment exploration. 970.302 Procedures and criteria for resolving conflicts. 970.303 Procedures for new entrants. 970.304 Action on portions of applications or amendments not in conflict. Subpart D—Certification of Applications 970.400 General. 970.401 Financial responsibility. 970.402 Technological capability. 970.403 Previous license and permit obliga tions. 970.404 Adequate exploration plan. 970.405 Appropriate exploration site size and location. 970.406 Fee payment. 970.407 Denial of certification. 970.408 Notice of certification. Subpart E—Issuance/Transfer/Terms, Conditions and Restrictions 970.500 General. ISSUANCE/TRANSFER; MODIFICATION/REVISION; SUSPENSION/REVOCATION 970.501 Proposal to issue or transfer and of terms, conditions and restrictions. 970.502 Consultation and cooperation with Federal agencies. 970.503 Freedom of the high seas. 970.504 International obligations of the United States. 970.505 Breach of international peace and security involving armed conflict. 970.506 Environmental effects. 970.507 Safety at sea. 970.508 Denial of issuance or transfer. 970.509 Notice of issuance or transfer. 970.510 Objections to terms, conditions and restrictions. 970.511 Suspension or modification of activi ties; suspension or revocation of licenses. 970.512 Modification of terms, conditions and restrictions. 970.513 Revision of a license. 970.514 Scale requiring application proce dures. 970.515 Duration of a license. 970.516 Approval of license transfers. TERMS, CONDITIONS, AND RESTRICTIONS 970.517 Diligence requirements. 970.518 Environmental protection require ments. 970.519 Resource conservation requirements. 970.520 Freedom of the high seas require ments. 970.521 Safety at sea requirements. 970.522 Monitoring requirements. 970.523 Special terms, conditions, and re strictions. 970.524 Other Federal requirements. Subpart F—Resource Development Concepts 970.600 General. 970.601 Logical mining unit. 970.602 Diligent exploration. 970.603 Conservation of resources. Subpart G—Environmental Effects 970.700 General. 970.701 Significant adverse environmental effects. 970.702 Monitoring and mitigation of envi ronmental effects. Subpart H—Safety of Life and Property at Sea 970.800 General. 970.801 Criteria for safety of life and prop erty at sea. Subpart I—Miscellaneous 970.900 Other applicable regulations. Subparts J–W [Reserved] Subpart X—Pre-enactment Exploration 970.2401 Definitions. 970.2402 Notice of pre-enactment explo ration. Subpart Y—Pre-license Exploration 970.2501 Notice of pre-license exploration voyages. 970.2502 Post voyage report. 970.2503 Suspension of exploration activi ties. Subpart Z—Miscellaneous 970.2601 Additional information. AUTHORITY: 30 U.S.C. 1401 et seq. Subpart A—General SOURCE: 46 FR 45896, Sept. 15, 1981, unless otherwise noted. § 970.100 Purpose. (a) General. The purpose of this part is to implement those responsibilities and authorities of the National Oceanic and Atmospheric Administration (NOAA), pursuant to Public Law 96–283, the Deep Seabed Hard Mineral Re sources Act (the Act), to issue to eligi ble United States citizens licenses for the exploration for deep seabed hard minerals. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00355 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 346 15 CFR Ch. IX (1–1–21 Edition) § 970.101 (b) Purposes of the Act. In preparing these regulations NOAA has been mindful of the purposes of the Act, as set forth in section 2(b) thereof. These include: (1) Encouraging the successful con clusion of a comprehensive Law of the Sea Treaty, which will give legal defi nition to the principle that the hard mineral resources of the deep seabed are the common heritage of mankind and which will assure, among other things, nondiscriminatory access to such resources for all nations; (2) Establishing, pending the ratifica tion by, and entering into force with respect to, the United States of such a treaty, an interim program to regulate the exploration for and commercial re covery of hard mineral resources of the deep seabed by United States citizens; (3) Accelerating the program of envi ronmental assessment of exploration for and commercial recovery of hard mineral resources of the deep seabed and assuring that such exploration and recovery activities are conducted in a manner which will encourage the con servation of such resources, protect the quality of the environment, and pro mote the safety of life and property at sea; (4) Encouraging the continued devel opment of technology necessary to re cover the hard mineral resources of the deep seabed; and (5) Pending the ratification by, and entry into force with respect to, the United States of a Law of the Sea Trea ty, providing for the establishment of an international revenue-sharing fund the proceeds of which will be used for sharing with the international commu nity pursuant to such treaty. (c) Regulatory approach. (1) These reg ulations incorporate NOAA’s recogni tion that the deep seabed mining indus try is still evolving and that more in formation must be developed to form the basis for future decisions by indus try and by NOAA in its implementa tion of the Act. They also recognize the need for flexibility in order to promote the development of deep seabed mining technology, and the usefulness of al lowing initiative by miners to develop mining techniques and systems in a manner compatible with the require ments of the Act and regulations. In this regard, the regulations reflect an approach, pursuant to the Act, whereby their provisions ultimately will be ad dressed and evaluated on the basis of exploration plans submitted by appli cants. (2) In addition, these regulations re flect NOAA’s recognition that the dif ference in scale and effects between ex ploration for and commercial recovery of hard mineral resources normally re quires that they be distinguished and addressed separately. This distinction is also based upon the evolutionary stage of the seabed mining industry referenced above. Thus, NOAA will issue separate regulations pertaining to commercial recovery, in part 971 of this chapter. [46 FR 45896, Sept. 15, 1981; 47 FR 5966, Feb. 9, 1982] § 970.101 Definitions. For purposes of this part, the term: (a) Act means the Deep Seabed Hard Mineral Resources Act (Pub. L. 96–283; 94 Stat. 553; 30 U.S.C. 1401 et seq.); (b) Administrator means the Adminis trator of the National Oceanic and At mospheric Administration, or a des ignee; (c) Applicant means an applicant for an exploration license pursuant to the Act and this part; (d) Affiliate means any person: (1) In which the applicant or licensee owns or controls more than 5% inter est; (2) Which owns or controls more than 5% interest in the applicant or li censee; or (3) Which is under common ownership or control with the applicant or li censee. (e) Commercial recovery means: (1) Any activity engaged in at sea to recover any hard mineral resource at a substantial rate for the primary pur pose of marketing or commercially using such resource to earn a net prof it, whether or not such net profit is ac tually earned; (2) If such recovered hard mineral re source will be processed at sea, such processing; and (3) If the waste of such activity to re cover any hard mineral resource, or of such processing at sea, will be disposed of at sea, such disposal; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00356 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 347 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.101 (f) Continental Shelf means: (1) The seabed and subsoil of the sub marine areas adjacent to the coast, but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the ex ploitation of the natural resources of such submarine area; and (2) The seabed and subsoil of similar submarine areas adjacent to the coast of islands; (g) Controlling interest, for purposes of paragraph (t)(3) of this section, means a direct or indirect legal or beneficial interest in or influence over another person arising through ownership of capital stock, interlocking directorates or officers, contractual relations, or other similar means, which substan tially affect the independent business behavior of such person; (h) Deep seabed means the seabed, and the subsoil thereof to a depth of ten meters, lying seaward of and outside: (1) The Continental Shelf of any na tion; and (2) Any area of national resource ju risdiction of any foreign nation, if such area extends beyond the Continental Shelf of such nation and such jurisdic tion is recognized by the United States; (i) Exploration means: (1) Any at-sea observation and eval uation activity which has, as its objec tive, the establishment and docu mentation of: (i) The nature, shape, concentration, location, and tenor of a hard mineral resource; and (ii) The environmental, technical, and other appropriate factors which must be taken into account to achieve commercial recovery; and (2) The taking from the deep seabed of such quantities of any hard mineral resource as are necessary for the de sign, fabrication and testing of equip ment which is intended to be used in the commercial recovery and proc essing of such resource; (j) Hard mineral resource means any deposit or accretion on, or just below, the surface of the deep seabed of nod ules which include one or more min erals, at least one of which contains manganese, nickel, cobalt, or copper; (k) International agreement means a comprehensive agreement concluded through negotiations at the Third United Nations Conference on the Law of the Sea, relating to (among other matters) the exploration for and com mercial recovery of hard mineral re sources and the establishment of an international regime for the regulation thereof; (l) Licensee means the holder of a li cense issued under this part to engage in exploration; (m) New entrant means any applicant, with respect to: (1) Any application which has not been accorded a pre-enactment ex plorer priority of right under § 970.301; or (2) Any amendment which has not been accorded a pre-enactment ex plorer priority of right under § 970.302. (n) NOAA means the National Oce anic and Atmospheric Administration; (o) Permittee means the holder of per mit issued under NOAA regulations to engage in commercial recovery; (p) Person means any United States citizen, any individual, and any cor poration, partnership, joint venture, association, or other entity organized or existing under the laws of any na tion; (q) Pre-enactment explorer means a person who was engaged in exploration prior to the date of enactment of the Act (June 28, 1980); (r) Reciprocating state means any for eign nation designated as such by the Administrator under section 118 of the Act; (s) United States means the several States, the District of Columbia, the Commonwealth of Puerto Rico, Amer ican Samoa, the United States Virgin Islands, Guam, and any other Common wealth, territory, or possession of the United States; and (t) United States citizen means (1) Any individual who is a citizen of the United States; (2) Any corporation, partnership, joint venture, association, or other en tity organized or existing under the laws of any of the United States; and (3) Any corporation, partnership, joint venture, association, or other en tity (whether organized or existing under the laws of any of the United States or a foreign nation) if the con trolling interest in such entity is held VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00357 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 348 15 CFR Ch. IX (1–1–21 Edition) § 970.102 by an individual or entity described in paragraph (t)(1) or (t)(2) of this section. [46 FR 45896, Sept. 15, 1981, as amended at 47 FR 5967, Feb. 9, 1982] § 970.102 Nature of licenses. (a) A license issued under this part will authorize the holder thereof to en gage in exploration within a specific portion of the sea floor consistent with the provisions of the Act, this part, and the specific terms, conditions and re strictions applied to the license by the Administrator. (b) Any license issued under this part will be exclusive with respect to the holder thereof as against any other United States citizen or any citizen, national or governmental agency of, or any legal entity organized or existing under the laws of, any reciprocating state. (c) A valid existing license will enti tle the holder, if otherwise eligible under the provisions of the Act and im plementing regulations, to a permit for commercial recovery from an area se lected within the same area of the sea floor. Such a permit will recognize the right of the holder to recover hard min eral resources, and to own, transport, use, and sell hard mineral resources re covered, under the permit and in ac cordance with the requirements of the Act. § 970.103 Prohibited activities and re strictions. (a) Prohibited activities and exceptions. (1) Except as authorized under subpart C of this part, no United States citizen may engage in any exploration or com mercial recovery unless authorized to do so under: (i) A license or a permit issued pursu ant to the Act and implementing regu lations; (ii) A license, permit, or equivalent authorization issued by a reciprocating state; or (iii) An international agreement which is in force with respect to the United States. (2) The prohibitions of paragraph (a)(1) of this section will not apply to any of the following activities: (i) Scientific research, including that concerning hard mineral resources; (ii) Mapping, or the taking of any geophysical, geochemical, oceano graphic, or atmospheric measurements or random bottom samplings of the deep seabed, if such taking does not significantly alter the surface or sub surface of the deep seabed or signifi cantly affect the environment; (iii) The design, construction, or test ing of equipment and facilities which will or may be used for exploration or commercial recovery, if such design, construction or testing is conducted on shore, or does not involve the recovery of any but incidental hard mineral re sources; (iv) The furnishing of machinery, products, supplies, services, or mate rials for any exploration or commercial recovery conducted under a license or permit issued under the Act and imple menting regulations, a license or per mit or equivalent authorization issued by a reciprocating state, or under an international agreement; and (v) Activities, other than exploration or commercial recovery activities, of the Federal Government. (3) No United States citizen may interfere or participate in interference with any activity conducted by any li censee or permittee which is author ized to be undertaken under a license or permit issued by the Administrator to a licensee or permittee under the Act or with any activity conducted by the holder of, and authorized to be un dertaken under, a license or permit or equivalent authorization issued by a reciprocating state for the exploration or commercial recovery of hard min eral resources. For purposes of this sec tion, interference includes physical in terference with activities authorized by the Act, this part, and a license issued pursuant thereto; the filing of specious claims in the United States or any other nation; and any other activ ity designed to harass deep seabed min ing activities authorized by law. Inter ference does not include the exercise of any rights granted to United States citizens by the Constitution of the United States, any Federal or State law, treaty, or agreement or regulation promulgated pursuant thereto. (4) United States citizens must exer cise their rights on the high seas with reasonable regard for the interests of VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00358 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 349 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.200 other states in their exercise of the freedoms of the high seas. (b) Restrictions on issuance of licenses or permits. The Administrator will not issue: (1) Any license or permit after the date on which an international agree ment is ratified by and enters into force with respect to the United States, except to the extent that issuance of such license or permit is not incon sistent with such agreement; (2) Any license or permit the explo ration plan or recovery plan of which, submitted pursuant to the Act and im plementing regulations, would apply to an area to which applies, or would con flict with: (i) Any exploration plan or recovery plan submitted with any pending appli cation to which priority of right for issuance applies under this part; (ii) Any exploration plan or recovery plan associated with any existing li cense or permit; or (iii) Any equivalent authorization which has been issued, or for which for mal notice of application has been sub mitted, by a reciprocating state prior to the filing date of any relevant appli cation for licenses or permits pursuant to the Act and implementing regula tions; (3) A permit authorizing commercial recovery within any area of the deep seabed in which exploration is author ized under a valid existing license if such permit is issued to a person other than the licensee for such area; (4) Any exploration license before July 1, 1981, or any permit which au thorizes commercial recovery to com mence before January 1, 1988; (5) Any license or permit the explo ration plan or recovery plan for which applies to any area of the deep seabed if, within the 3-year period before the date of application for such license or permit: (i) The applicant therefor surren dered or relinquished such area under an exploration plan or recovery plan associated with a previous license or permit issued to such applicant; or (ii) A license or permit previously issued to the applicant had an explo ration plan or recovery plan which ap plied to such area and such license or permit was revoked under section 106 of the Act; or (6) A license or permit, or approve the transfer of a license or permit, ex cept to a United States citizen. Subpart B—Applications SOURCE: 46 FR 45898, Sept. 15, 1981, unless otherwise noted. § 970.200 General. (a) Who may apply; how. Any United States citizen may apply to the Admin istrator for issuance or transfer of an exploration license. Applications must be submitted in the form and manner prescribed in this subpart. (b) Place, form and copies. Applica tions for the issuance or transfer of ex ploration licenses must be submitted in writing, verified and signed by an au thorized officer or other authorized representative of the applicant, in 30 copies, to the following address: Office of Ocean Minerals and Energy, Na tional Oceanic and Atmospheric Ad ministration, suite 410, Page 1 Build ing, 2001 Wisconsin Avenue, NW., Wash ington, DC 20235. The Administrator may waive, in whole or in part, at his discretion, the requirement that 30 copies of an application be filed with NOAA. (c) Use of application information. The contents of an application, as set forth below, must provide NOAA with the in formation necessary to make deter minations required by the Act and this part pertaining to the issuance or transfer of an exploration license. Thus, each portion of the application should identify the requirement in this part to which it responds. In addition, the information will be used by NOAA in its function under the Act of con sultation and cooperation with other Federal agencies or departments in re lation to their programs and authori ties, in order to reduce the number of separate actions required to satisfy Federal agencies’ responsibilities. (d) Pre-application consultation. To as sist in the development of adequate ap plications and assure that applicants understand how to respond to the pro visions of this subpart, NOAA will be available for pre-application consulta tions with potential applicants. This VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00359 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 350 15 CFR Ch. IX (1–1–21 Edition) § 970.201 includes consultation on the proce dures in subpart C. In appropriate cir cumstances, NOAA will provide written confirmation to the applicant of any oral guidance resulting from such con sultations. (e) Priority of right. (1) Priority of right for issuance of licenses to pre-en actment explorers will be established pursuant to subpart C of this part. (2) Priority of right for issuance of li censes to new entrants will be estab lished on the basis of the chronological order in which license applications, which are in substantial compliance with the requirements established under this subpart, pursuant to § 970.209, are filed with the Adminis trator. (3) Applications must be received by the Office of Ocean Minerals and En ergy on behalf of the Administrator be fore a priority can be established. (4) Upon (i) a determination that: (A) An application is not in substan tial compliance in accordance with § 970.209 or subpart C, as applicable; (B) An application has not been brought into substantial compliance in accordance with § 970.210 or subpart C, as applicable; (C) A license has been relinquished or surrendered in accordance with § 970.903; or (ii) A decision to: (A) Deny certification of a license pursuant to § 970.407; or (B) Deny issuance of a license pursu ant to § 970.508, and after the exhaustion of any admin istrative or judicial review of such de termination or decision, the priority of right for issuance of a license will lapse. (f) Request for confidential treatment of information. If an applicant wishes to have any information in his applica tion treated as confidential, he must so indicate pursuant to 15 CFR 971.802. [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 5968, Feb. 9, 1982; 54 FR 547, Jan. 6, 1989] CONTENTS § 970.201 Statement of financial re sources. (a) General. The application must contain information sufficient to dem onstrate to the Administrator the fi nancial resources of the applicant to carry out, in accordance with this part, the exploration program set forth in the applicant’s exploration plan. The information must show that the appli cant is reasonably capable of commit ting or raising sufficient resources to cover the estimated costs of the explo ration program. The information must be sufficient for the Administrator to make a determination on the appli cant’s financial responsibility pursuant to § 970.401. (b) Contents. In particular, the infor mation on financial resources must in clude: (1) A description of how the applicant intends to finance the exploration pro gram; (2) The estimated cost of the explo ration program; (3) With respect to the applicant and those entities upon which the applicant will rely to finance his exploration ac tivities, the most recent audited finan cial statement (for publicly-held com panies, the most recent annual report and Form 10–K filed with the Securities and Exchange Commission will suffice in this regard); and (4) The credit rating and bond rating of the applicant, and such financing en tities, to the extent they are relevant. § 970.202 Statement of technological experience and capabilities. (a) General. The application must contain information sufficient to dem onstrate to the Administrator the technological capability of the appli cant to carry out, in accordance with the regulations contained in this part, the exploration program set out in the applicant’s exploration plan. It must contain sufficient information for the Administrator to make a determina tion on the applicant’s technological capability pursuant to § 970.402. (b) Contents. In particular, the infor mation submitted pursuant to this sec tion must demonstrate knowledge and skills which the applicant either pos sesses or to which he can demonstrate access. The information must include: (1) A description of the exploration equipment to be used by the applicant in carrying out the exploration pro gram; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00360 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 351 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.203 (2) A description of the environ mental monitoring equipment to be used by the applicant in monitoring the environmental effects of the explo ration program; and (3) The experience on which the ap plicant will rely in using this or simi lar equipment. § 970.203 Exploration plan. (a) General. Each application must in clude an exploration plan which de scribes the applicant’s projected explo ration activities during the period to be covered by the proposed license. Generally, the exploration plan must demonstrate to a reasonable extent that the applicant’s efforts, by the end of the 10-year license period, will likely lead to the ability to apply for and ob tain a permit for commercial recovery. In particular, the plan must include sufficient information for the Adminis trator, pursuant to this part, to make the necessary determinations per taining to the certification and issuance or transfer of a license and to the development and enforcement of the terms, conditions and restrictions for a license. (b) Contents. The exploration plan must contain the following informa tion. In presenting this information, the plan should incorporate the appli cant’s proposed individual approach, including a general description of how projected participation by other enti ties will relate to the following ele ments, if appropriate. The plan must present: (1) The activities proposed to be car ried out during the period of the li cense; (2) A description of the area to be ex plored, including its delineation ac cording to § 970.601; (3) The intended exploration schedule which must be responsive to the dili gence requirements in § 970.602. Taking into account that different applicants may have different concepts and chro nologies with respect to the types of activities described, the schedule should include an approximate projec tion for the exploration activities planned. Although the details in each schedule may vary to reflect the appli cant’s particular approach, it should address in some respect approximately when each of the following types of ac tivities is projected to occur. (i) Conducting survey cruises to de termine the location and abundance of nodules as well as the sea floor configu ration, ocean currents and other phys ical characteristics of potential com mercial recovery sites; (ii) Assaying nodules to determine their metal contents; (iii) Designing and testing system components onshore and at sea; (iv) Designing and testing mining systems which simulate commercial recovery; (v) Designing and testing processing systems to prove concepts and design ing and testing systems which simulate commercial processing; (vi) Evaluating the continued feasi bility of commercial scale operations based on technical, economic, legal, po litical and environmental consider ations; and (vii) Applying for a commercial re covery permit and, to the extent known, other permits needed to con struct and operate commercial scale facilities (if application for such per mits is planned prior to obtaining a commercial recovery permit); (4) A description of the methods to be used to determine the location, abun dance, and quality (i.e., assay) of nod ules, and to measure physical condi tions in the area which will affect nod ule recovery system design and oper ations (e.g., seafloor topography, seafloor geotechnic properties, and cur rents); (5) A general description of the devel oping recovery and processing tech nology related to the proposed license, and of any planned or ongoing testing and evaluation of such technology. To the extent possible at the time of ap plication, this description should ad dress such factors as nodule collection technique, seafloor sediment rejection subsystem, mineship nodule separation scheme, pumping method, anticipated equipment test areas, and details on the testing plan; (6) An estimated schedule of expendi tures, which must be responsive to the diligence requirements as discussed in § 970.602; (7) Measures to protect the environ ment and to monitor the effectiveness VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00361 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 352 15 CFR Ch. IX (1–1–21 Edition) § 970.204 of environmental safeguards and moni toring systems for commercial recov ery. These measures must take into ac count the provisions in §§ 970.506, 970.518, 970.522 and subpart G of this part; and (8) A description of any relevant ac tivity that the applicant has completed prior to the submission of the applica tion. § 970.204 Environmental and use con flict analysis. (a) Environmental information. To en able NOAA to implement better its re sponsibility under section 109(d) of the Act to develop an environmental im pact statement (EIS) on the issuance of an exploration license, the application must include information for use in preparing NOAA’s EIS on the environ mental impacts of the activities pro posed by the applicant. The applicant must present physical, chemical and biological information for the explo ration area. This information should include relevant environmental infor mation, if any, obtained during past exploration activities, but need not du plicate information obtained during NOAA’s DOMES Project. Planned ac tivities in the area, including the test ing of integrated mining systems which simulate commercial recovery, also must be described. NOAA will need in formation with the application on loca tion and boundaries of the proposed ex ploration area, and plans for delinea tion of features of the exploration area including baseline data or plans for ac quiring them. The applicant may at his option delay submission of baseline and equipment data and system test plans. However, applicants so electing should plan to submit this latter information at least one year prior to the initial test, to allow time for the supplement to the site-specific EIS, if one is re quired, to be prepared by NOAA, cir culated, reviewed and filed with EPA. The submission of this information with the application is strongly en couraged, however, to minimize the possibility that a supplement will be required. If such latter information is submitted subsequent to the original application such tests may not be un dertaken in the absence of concurrence by NOAA (which, if applicable, will be required in a term, condition, or re striction in the license). NOAA has de veloped a technical guidance document which will provide assistance for the agency and the applicant, in consulta tion, to identify the details on informa tion needed in each case. NOAA may refer to such information for purposes of other determinations under the Act as well. NOAA also will seek to facili tate other Federal and, as necessary, state decisions on exploration activi ties by functioning as lead agency for the EIS on the application and related actions by other agencies, including those pertaining to any onshore im pacts which may result from the pro posed exploration activities. (b) Use conflict information. To assist the Administrator in making deter minations relating to potential use conflicts between the proposed explo ration and other activities in the ex ploration area, pursuant to §§ 970.503, 970.505, and 970.520, the application must include information known to the applicant with respect to such other activities. § 970.205 Vessel safety. In order to provide a basis for the necessary determinations with respect to the safety of life and property at sea, pursuant to §§ 970.507, 970.521 and subpart H of this part, the application must contain the following informa tion, except for those vessels under 300 gross tons which are engaged in ocean ographic research if they are used in exploration. (a) U.S. flag vessel. The application must contain a demonstration or affir mation that any United States flag vessel utilized in exploration activities will possess a current valid Coast Guard Certificate of Inspection (COI). To the extent that the applicant knows which United States flag vessel he will be using, the application must include a copy of the COI. (b) Foreign flag vessel. The application must also contain information on any foreign flag vessels to be used in explo ration activities, which responds to the following requirements. To the extent that the applicant knows which foreign flag vessel he will be using, the appli cation must include evidence of the fol lowing: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00362 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 353 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.208 (1) That any foreign flag vessel whose flag state is party to the International Convention for Safety of Life at Sea, 1974 (SOLAS 74) possesses current valid SOLAS 74 certificates; (2) That any foreign flag vessel whose flag state is not party to SOLAS 74 but is party to the International Conven tion for the Safety of Life at Sea, 1960 (SOLAS 60) possesses current valid SOLAS 60 certificates; and (3) That any foreign flag vessel whose flag state is not a party to either SOLAS 74 or SOLAS 60 meets all appli cable structural and safety require ments contained in the published rules of a member of the International Asso ciation of Classification Societies (IACS). (c) Supplemental certificates. If the ap plicant does not know at the time of submitting an application which ves sels he will be using, he must submit the applicable certification for each vessel before the cruise on which it will be used. § 970.206 Statement of ownership. The application must include suffi cient information to demonstrate that the applicant is a United States cit izen, as required by § 970.103(b)(6), and as defined in § 970.101(t). In particular, the application must include: (a) Name, address, and telephone number of the United States citizen re sponsible for exploration operations to whom notices and orders are to be de livered; and (b) A description of the citizen or citizens engaging in such exploration, including: (1) Whether the citizen is a natural person, partnership, corporation, joint venture, or other form of association; (2) The state of incorporation or state in which the partnership or other business entity is registered; (3) The name of registered agent or equivalent representative and places of business; (4) Certification of essential and non proprietary provisions in articles of in corporation, charter or articles of asso ciation; and (5) The name of each member of the association, partnership, or joint ven ture, including information about the participation of each partner and joint venturer and/or ownership of stock. § 970.207 Antitrust information. (a) General. Section 103(d) of the Act specifically provides for antitrust re view of applications by the Attorney General of the United States and the Federal Trade Commission. (b) Contents. In order to provide infor mation for this antitrust review, the application must contain the following: (1) A copy of each agreement between any parties to any joint venture which is applying for a license, provided that said agreement relates to deep seabed hard mineral resource exploration or mining; (2) The identity of any affiliate of any person applying for a license; and (3) For each applicant, its affiliate, or parent or subsidiary of an affiliate which is engaged in production in, or the purchase or sale in or to, the United States of copper, nickel, cobalt or manganese minerals or any metals refined from these minerals: (i) The annual tons and dollar value of any of these minerals and metals so purchased, sold or produced for the two preceding years; (ii) Copies of the annual report, bal ance sheet and income statement for the two preceding years; and (iii) Copies of each document sub mitted to the Securities and Exchange Commission. § 970.208 Fee. (a) General. Section 104 of the Act provides that no application for the issuance or transfer of an exploration license will be certified unless the ap plicant pays to NOAA a reasonable ad ministrative fee, which must reflect the reasonable administrative costs in curred in reviewing and processing the application. (b) Amount. In order to meet this re quirement, the application must in clude a fee payment of $100,000, payable to the National Oceanic and Atmos pheric Administration, Department of Commerce. If costs incurred by NOAA in reviewing and processing an applica tion are significantly less than or in excess of the original fee, the agency VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00363 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 354 15 CFR Ch. IX (1–1–21 Edition) § 970.209 subsequently will determine those dif ferences in costs and adjust the fee ac cordingly. If the costs are significantly less, NOAA will refund the difference. If they are significantly greater, the applicant will be required to submit the additional payment prior to issue or transfer of the license. In the case of an application for transfer of a license to an entity which has previously been found qualified for a license, the Ad ministrator may, on the basis of pre application consultations pursuant to § 970.200(d), reduce the fee in advance by an appropriate amount which reflects costs avoided by reliance on previous findings made in relation to the pro posed transferee. If an applicant elects to pursue the ‘banking’ option under § 970.601(d), and exercises that option by submitting two applications, only one application fee needs to be submitted with respect to each use of the ‘bank ing’ option. [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 5966, 5968, Feb. 9, 1982] PROCEDURES § 970.209 Substantial compliance with application requirements. (a) Priority of right for the issuance of licenses to new entrants will be es tablished on the basis of the chrono logical order in which license applica tions which are in substantial compli ance with the requirements established under this subpart are filed with the Administrator pursuant to § 970.200. (b) In order for an application to be in substantial compliance with the re quirements of this subpart, it must in clude information specifically identifi able with and materially responsive to each requirement contained in §§ 970.201 through 970.208. A determination on substantial compliance relates only to whether the application contains the required information, and does not con stitute a determination on certifi cation of the application, or on issuance or transfer of a license. (c) The Administrator will make a determination as to whether the appli cation is in substantial compliance. Within 30 days after receipt of an appli cation and the opening of coordinates describing the application area, he will issue written notice to the applicant regarding such determination. The no tice will identify, if applicable, in what respects the application is not in either full or substantial compliance. If the application is in substantial but not full compliance, the notice will specify the information which the applicant must submit in order to bring it into full compliance, and why the addi tional information is necessary. [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 11513, Mar. 17, 1982] § 970.210 Reasonable time for full com pliance. Priority of right will not be lost in case of any application filed which is in substantial but not full compliance, as specified in § 970.209, if the Adminis trator determines that the applicant, within 60 days after issuance to the ap plicant by the Administrator of writ ten notice that the application is in substantial but not full compliance, has brought the application into full compliance with the requirements of §§ 970.201 through 970.208. [46 FR 45898, Sept. 15, 1981; 47 FR 5966, Feb. 9, 1982] § 970.211 Consultation and cooperation with Federal agencies. (a) Promptly after his receipt of an application and the opening of coordi nates describing the application area, the Administrator will distribute a copy of the application to each other Federal agency or department which, pursuant to section 103(e) of the Act, has identified programs or activities within its statutory responsibilities which would be affected by the activi ties proposed in the application (i.e., the Departments of State, Transpor tation, Justice, Interior, Defense, Treasury and Labor, as well as the En vironmental Protection Agency, Fed eral Trade Commission, Small Business Administration and National Science Foundation). Based on its legal respon sibilities and authorities, each such agency or department may, not later than 60 days after it receives a copy of the application which is in full compli ance with this subpart, recommend cer tification of the application, issuance or transfer of the license, or denial of such certification, issuance or transfer. The advice or recommendation by the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00364 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 355 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.213 Attorney General or Federal Trade Commission on antitrust review, pur suant to § 970.207, must be submitted within 90 days after their receipt of a copy of the application which is in full compliance with this subpart. NOAA will use the benefits of this process of consultation and cooperation to facili tate necessary Federal decisions on the proposed exploration activities, pursu ant to the mandate of section 103(e) of the Act to reduce the number of sepa rate actions required to satisfy Federal agencies’ statutory responsibilities. (b) In any case in which a Federal agency or department recommends a denial, it will set forth in detail the manner in which the application does not comply with any law or regulation within its area of responsibility and will indicate how the application may be amended, or how terms, conditions or restrictions might be added to the license to assure compliance with such law or regulation. (c) A recommendation from another Federal agency or department for de nying or amending an application will not affect its having been in substan tial compliance with the requirements of this subpart, pursuant to § 970.209, for purposes of establishing priority of right. However, pursuant to section 103(e) of the Act, NOAA will cooperate with such agencies and with the appli cant with the goal of resolving the con cerns raised and satisfying the statu tory responsibilities of these agencies. [46 FR 45898, Sept. 15, 1981, as amended at 47 FR 11513, Mar. 17, 1982] § 970.212 Public notice, hearing and comment. (a) Notice and comments. The Adminis trator will publish in the FEDERAL REGISTER, for each application for an exploration license, notice that such application has been received. Subject to 15 CFR 971.802, interested persons will be permitted to examine the mate rials relevant to such application. In terested persons will have at least 60 days after publication of such notice to submit written comments to the Ad ministrator. (b) Hearings. (1) After preparation of the draft EIS on an application pursu ant to section 109(d) of the Act, the Ad ministrator shall hold a public hearing on the application and the draft EIS in an appropriate location, and may em ploy such additional methods as he deems appropriate to inform interested persons about each application and to invite their comments thereon. (2) If the Administrator determines there exists one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing will be held in the District of Columbia metropolitan area in accordance with the provisions of subpart I of 15 CFR part 971. The record developed in any such formal hearing will be part of the basis of the Adminis trator’s decisions on an application. (c) Hearings held pursuant to this section and other procedures will be consolidated insofar as practicable with hearings held and procedures em ployed by other agencies. [46 FR 45898, Sept. 15, 1981, as amended at 54 FR 547, Jan. 6, 1989] § 970.213 Amendment to an applica tion. After an application has been sub mitted to the Administrator, but be fore a determination is made on the issuance or transfer of a license, the applicant must submit an amendment to the application if required by a sig nificant change in the circumstances represented in the original application and affecting the requirements of this subpart. Applicants should consult with NOAA to determine if changes in circumstances are sufficiently signifi cant to require submission of an amendment. The application, as amended, would then serve as the basis for determinations by the Adminis trator under this part. For each amendment judged by the Adminis trator to be significant, he will provide a copy of such amendment to each other Federal agency and department which received a copy of the original application, and also will provide for public notice, hearing and comment on the amendment pursuant to § 970.212. Such amendment, however, will not af fect the priority of right established by the filing of the original application. After the issuance of or transfer of a li cense, any revision by the licensee will be made pursuant to § 970.513. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00365 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 356 15 CFR Ch. IX (1–1–21 Edition) § 970.300 Subpart C—Procedures for Appli cations Based on Exploration Commenced Before June 28, 1980; Resolution of Conflicts Among Overlapping Applica tions; Applications by New Entrants SOURCE: 47 FR 24948, July 8, 1982, unless otherwise noted. § 970.300 Purposes and definitions. (a) This subpart sets forth the proce dures which the Administrator will apply to applications filed with NOAA covering areas of the deep seabed where the applicants have engaged in explo ration prior to June 28, 1980, and to the resolution of conflicts arising out of such applications. This subpart also es tablishes the date on which NOAA will begin to accept applications or amend ments filed by new entrants, and cer tain other procedures for new entrants. (b) For the purposes of this subpart the term: (1) Amendment means an amendment to an application which changes the area applied for; (2) Application means an application for an exploration license which is filed pursuant to the Act and this subpart; (3) Conflict means the existence of more than one application or amend ment with the same priority of right: (i) Which are filed with the Adminis trator or with the Administrator and a reciprocating state; and (ii) In which the deep seabed areas applied for overlap in whole or part, to the extent of the overlap; (4) Original conflict means a conflict solely between or among applications; (5) New conflict means a conflict be tween or among amendments filed after July 22, 1982, and on or before Oc tober 15, 1982; (6) Domestic conflict means a conflict solely between or among applications or amendments which have been filed with the Administrator. (7) International conflict means a con flict arising between or among applica tions or amendments filed with the Ad ministrator and a reciprocating state. § 970.301 Requirements for applica tions based on pre-enactment explo ration. (a) Pursuant to section 101(b) of the Act, any United States citizen who was engaged in exploration before the effec tive date of the Act (June 28, 1980) qualifies as a pre-enactment explorer and may continue to engage in such ex ploration without a license: (1) If such citizen applies under this part for a license with respect to such exploration within the time period specified in paragraph (b) of this sec tion; and (2) Until such license is issued to such citizen or a final administrative or judicial determination is made af firming the denial of certification of the application for, or issuance of, such license. (b) Any application for a license based upon pre-enactment exploration must be filed, at the address specified in § 970.200(b), no later than 5:00 p.m. EST on March 12, 1982 (or such later date and time as the Administrator may announce by regulation). All such applications filed at or before that time will be deemed to be filed on such closing date. (c) Applications not filed in accord ance with this section will not be con sidered to be based on pre-enactment exploration, and may be filed only as new entrant applications under § 970.303. (d) To receive a pre-enactment ex plore priority of right for issuance of a license, and application must be, when filed, in substantial compliance with requirements described in § 970.209(b). An application which is in substantial but not full compliance will not lose its priority of right if it is brought into full compliance according to § 970.210. (e) Any application based on pre-en actment exploration must be for a rea sonably compact area with respect to which the applicant is a pre-enactment explorer, and, notwithstanding any part of § 970.601 which indicates other wise, such area must be bounded by a single continuous boundary. (f) The coordinates and any chart of the logical mining unit applied for in an application based on a pre-enact ment exploration must be submitted in a separate, sealed envelope. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00366 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 357 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.302 (g) On or before March 12, 1982, the applicants must indicate to the Admin istrator, other than in the sealed por tion of the application: (1) The size of the area applied for; (2) Whether the applicant or any per son on the applicant’s behalf has ap plied, or intends to apply, for the same area or substantially the same area to one or more nations, and the number of such other applications; and (3) Whether the other applicant is pursuing the ‘‘banking’’ option under § 970.601(d), and the number of applica tions filed, or to be filed, in pursuit of the ‘‘banking’’ option. § 970.302 Procedures and criteria for resolving conflicts. (a) General. This section governs the resolution of all conflicts between or among applications or amendments having pre-enactment explorer priority of right. (b) Identification of applicants. On June 21, 1982, the Administrator will meet with representatives of recipro cating states to identify their respec tive pre-enactment explorer applicants, and will identify the coordinates of the application areas applied for by such applicants. (c) Initial processing. On or before July 13, 1982, the Administrator will determine whether each domestic ap plication is entitled to a priority of right based on pre-enactment explo ration in accordance with § 970.301. (d) Identification of conflicts. On July 14, 1982, the Administrator will meet with representatives of reciprocating states to exchange lists of applications accorded pre-enactment explorer prior ities of right, and will identify any con flicts existing among such applica tions. (e) Notification to applicants of con flicts. If the Administrator identifies a conflict, he will send, no later than July 22, 1982, written notice of the con flict to each domestic applicant in volved in the conflict. The notice will: (1) Identify each applicant involved in the conflict in question: (2) Identify the coordinates of the portions of the application areas which are in conflict; (3) Indicate that the applicant may request from the Administrator the co ordinates of the application areas from any other applications filed with the Administrator or with a reciprocating state (such coordinates will be provided subject to appropriate confidentiality arrangements); (4) State whether; (i) Each domestic application in volved in the conflict is in substantial or, if known, full compliance with the requirements described in § 970.209(b); and (ii) Each foreign application involved in the conflict meets, if known, the legal requirements of the reciprocating state in which it is filed; (5) Notify each domestic applicant in volved in a conflict that he may, after July 22, 1982, and on or before Novem ber 16, 1982, resolve the conflict volun tarily according to paragraph (f) of this section, and that on or after November 17, 1982, any unresolved conflict shall be resolved in accordance with para graph (j) or (k) of this section, as appli cable; and (6) In the case of an international conflict, include a copy of any applica ble conflict resolution procedures in force between the United States and its reciprocating states pursuant to sec tion 118 of the Act. (f) Voluntary resolution of conflicts. Each U.S. applicant involved in a con flict may resolve the conflict after July 22, 1982, and on or before Novem ber 16, 1982, by: (1) Unilaterally, or by agreement with each other applicant involved in the conflict, filing an amendment to the application eliminating the con flict; or (2) Agreeing in writing with the other applicant(s) involved in the conflict to submit it to an agreed binding conflict resolution procedure. (g) Amendments. (1) Amendments must be filed in accordance with the requirements for applications described in § 970.200. (2) The Administrator will: (i) Accept no amendment prior to July 23, 1982; (ii) Accord pre-enactment explorer priority of right only to amendments which: (A) Pertain to areas with respect to which the applicant has engaged in pre enactment exploration; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00367 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 358 15 CFR Ch. IX (1–1–21 Edition) § 970.302 (B) Resolve an existing conflict with respect to that application; (C) Do not apply for an area included in an application filed pursuant to § 970.301 which is accorded pre-enact ment explorer priority of right or an application identified pursuant to § 970.302(b) which has been filed with a reciprocating state; and (D) Are filed on or before October 15, 1982; and (iii) Accord amendments which meet the requirements of this paragraph (g) the same priority of right as the appli cations to which they pertain. (3) The area applied for in an amend ment need not be adjacent to the area applied for in the original application. (4) Amendments not accorded pre-en actment explorer priority of right may be filed as new entrant amendments under § 970.303. (h) Notification of amendments and new conflicts. The Administrator will: (1) No later than October 25, 1982, no tify each reciprocating state of any amendment accorded pre-enactment explorer priority of right pursuant to paragraph (g) of this section and, in co operation with such states, identify any new conflicts; (2) No later than October 27, 1982, no tify each domestic applicant who is in volved in a new conflict. The notice will: (i) Identify each applicant with whom each new conflict has arisen; (ii) Identify the coordinates of each area in which the applicant is involved in a new conflict; (iii) Indicate that the applicant may request from the Administrator the co ordinates of each area included in an amendment accorded pre-enactment explorer priority of right pursuant to paragraph (g) of this section, or for which notice has been received from a reciprocating state (such coordinates will be provided subject to appropriate confidentiality arrangements); (iv) Notify the applicant that he may, on or before November 16, 1982, resolve the conflict voluntarily accord ing to paragraph (f) of this section, and that on or after November 17, 1982, any unresolved conflict shall be resolved in accordance with paragraph (j) or (k) of this section, as applicable; and (v) In the case of an international conflict, include a copy of any applica ble conflict resolution procedures in force between the United States and its reciprocating states pursuant to sec tion 118 of the Act. (i) Government assistance in resolving international conflicts. If, by October 26 1982, the applicants have not resolved, or agreed in writing to a specified bind ing procedure to resolve, an original international conflict, or new inter national conflict, the Administrator, the Secretary of State of the United States, and appropriate officials of the government of the reciprocating state to which the other applicant involved in the conflict applied will use their good offices to assist the applicants to resolve the conflict. After November 16, 1982, any unresolved international con flicts will be resolved in accordance with paragraph (k) of this section. (j) Unresolved domestic conflict—(1) Procedure. (i) In the case of an original domestic conflict or a new domestic conflict, the applicants will be allowed until April 15, 1983, to resolve the con flict or agree in writing to submit the conflict to a specified binding conflict resolution procedure. If, by April 15, 1983, all applicants involved in an origi nal or new domestic conflict have not resolved that conflict, or agreed in writing to submit the conflict to a specified binding conflict resolution procedure, the conflict will be resolved in a formal hearing held in accordance with subpart I of 15 CFR part 971, ex cept that: (A) The General Counsel of NOAA will not, as a matter of right, be a party to the hearing; however, the Gen eral Counsel may be admitted to the hearing by the administrative law judge as a party or as an interested person pursuant to 15 CFR 971.901 (f)(2) or (f)(3); and (B) The administrative law judge will take such actions as he deems nec essary and appropriate to conclude the hearing and transmit a recommended decision to the Administrator in an ex peditious manner. (ii) Notwithstanding the above, at any time on or after November 17, 1982, and on or before April 14, 1983, the ap plicants involved in the conflict may, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00368 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 359 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.302 by agreement, request the Adminis trator to resolve the conflict in a for mal hearing as described above. (2) Decision principles for NOAA formal conflict resolution. (i) The Adminis trator shall determine which applicant involved in a conflict between or among pre-enactment explorer applica tions or amendments shall be awarded all or part of each area in conflict. (ii) The determination of the Admin istrator shall be based on the applica tion of principles of equity which take into consideration, with respect to each applicant involved in the conflict, the following factors: (A) The continuity and extent of ac tivities relevant to each area in con flict and the application area of which it is a part; (B) The date on which each applicant involved in the conflict, or predecessor in interest or component organization thereof, commenced activities at sea in the application area; (C) The financial cost of activities relevant to each area in conflict and to the application area of which it is a part, measured in constant dollars; (D) The time when the activities were carried out, and the quality of the activities; and (E) Such additional factors as the Ad ministrator determines to be relevant, but excluding consideration of the fu ture work plans of the applicants in volved in any conflict. (iii) For the purposes of this para graph (j) of this section, the word ac tivities means the undertakings, com mitments of resources investigations, findings, research, engineering develop ment and other activities relevant to the identification, discovery, and sys tematic analysis and evaluation of hard mineral resources and to the de termination of the technical and eco nomic feasibility of commercial recov ery. (iv) When considering the factors specified in paragraph (j)(2)(ii) of this section, the Administrator shall hear, and shall (except for purposes of appor tionment pursuant to paragraph (j)(2)(v) of this section) limit his con sideration to, all evidence based on the activities specified in paragraph (j)(2)(ii) of this section which were con ducted on or before January 1, 1982, Provided, however, That an applicant must prove at-sea activities in the area in conflict prior to June 28, 1980, as a pre-condition to presentation of fur ther evidence to the Administrator re garding activities in the area in con flict. (v) In making his determination, the Administrator may award the entire area in conflict to one applicant in volved in the conflict, or he may appor tion the area among any or all of the applicants involved in the conflict. If, after applying the principles of equity, the Administrator determines that the area in conflict should be apportioned, the Administrator shall (to the max imum extent practicable consistent with the Administrator’s application of the principles of equity) apportion the area in a manner designed to satisfy the plan of work set forth in the appli cation of each applicant which is awarded part of the area. (vi) Each applicant involved in the conflict must file an amendment to its application if necessary to implement the determination made by the Admin istrator. (k) Unresolved international conflicts. (1) If, by November 17, 1982, all appli cants involved in an original or new international conflict have not re solved that conflict, or agreed in writ ing to submit the conflict to a specified binding conflict resolution procedure, the applicants shall proceed in accord ance with the conflict resolution proce dures agreed to between the United States and its reciprocating states pur suant to section 118 of the Act. (2) Each applicant whose application is involved in an international conflict shall be responsible for actions re quired in the conduct of the conflict resolution procedures, including bear ing a proportional cost of imple menting the procedures, representing himself in any proceedings, and assist ing in the selection of arbitrators if necessary. (l) Continued opportunity for voluntary resolutions. Each applicant may resolve any conflict by voluntary procedures at any time while that conflict per sists. (m) Effect on priorities of new entrants. (1) A pre-enactment explorer is entitled VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00369 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 360 15 CFR Ch. IX (1–1–21 Edition) § 970.303 to a priority of right over a new en trant for any area in which the pre-en actment explorer has engaged in explo ration prior to June 28, 1980 if, with re spect to that area, the pre-enactment explorer files an application in accord ance with this part on or after January 25, 1982 and on or before the closing date for pre-enactment explorer appli cations established under § 970.301(b). (2) Any amendment which is filed by a pre-enactment explorer on or before October 15, 1982, relates back to the date of filing of the original applica tion and shall give the pre-enactment explorer priority of right over all new entrants if the amendment is accorded a pre-enactment explorer priority of right under paragraph (g) of this sec tion. [47 FR 24948, July 8, 1982, as amended at 54 FR 548, Jan. 6, 1989] § 970.303 Procedures for new entrants. (a) Filing of new entrant applications or amendments; priority of right. New en trant applications or amendments must be filed in accordance with § 970.200. A new entrant may file an ap plication or amendment only at or after 1500 hours G.m.t. (11:00 a.m. EDT) January 3, 1983. All applications or amendments filed at that time shall be deemed to be filed simultaneously, and, if in accordance with § 970.209, shall have priority of right over any applica tion or amendment filed subsequently. Priority of right for any application or amendment filed after that time will be established as described in § 970.209. (b) Conflicts. (1) If a domestic conflict exists between or among new entrant applications or amendments, the appli cants involved in the conflict shall re solve it. (2) If an international conflict exists between or among new entrant applica tions or amendments, the conflict shall be resolved in accordance with applica ble conflict resolution procedures agreed to between the United States and its reciprocating States pursuant to section 118 of the Act. The Adminis trator will provide each domestic ap plicant involved in an international conflict a copy of any such procedures in force when the Administrator issues notice to the applicant that an inter national conflict exists. Each applicant whose application is involved in an international conflict shall be respon sible for actions required in the con duct of the conflict resolution proce dures, including bearing a proportional cost of implementing the procedures, representing himself in any pro ceedings, and assisting in the selection of arbitrators if necessary. § 970.304 Action on portions of applica tions or amendments not in con flict. If an applicant so requests, the Ad ministrator will proceed in accordance with this part to review that portion of an area included in an application or amendment that is not involved in a conflict. However, the Administrator will proceed with such review only if the applicant advises the Adminis trator in writing that the applicant will continue to seek a license for the proposed exploration activities in the portion of the application area that is not in conflict. To the extent prac ticable, the deadlines for certification of an application or amendment and issuance of a license provided in §§ 970.400 and 970.500, respectively, will run from the date of filing of the origi nal application. Subpart D—Certification of Applications SOURCE: 46 FR 45902, Sept. 15, 1981, unless otherwise noted. § 970.400 General. (a) Certification is an intermediate step between receipt of an application for issuance or transfer of a license and its actual issuance or transfer. It is a determination which focuses on the eli gibility of the applicant. (b) Before the Administrator may certify an application for issuance or transfer of a license, he must deter mine that issuance of the license would not violate any of the restrictions in § 970.103(b). He also must make written determinations with respect to the re quirements set forth in §§ 970.401 through 970.406. This will be done after consultation with other departments and agencies pursuant to § 970.211. (c) To the maximum extent possible, the Administrator will endeavor to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00370 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 361 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.407 complete certification of an applica tion within 100 days after submission of an application which is in full compli ance with subpart B of this part. If final certification or denial of certifi cation has not occurred within 100 days after such submission of the applica tion, the Administrator will inform the applicant in writing of the pending un resolved issues, the agency’s efforts to resolve them, and an estimate of the time required to do so. § 970.401 Financial responsibility. (a) Before the Administrator may certify an application for an explo ration license he must find that the ap plicant has demonstrated that, upon issuance or transfer of the license, the applicant will be financially respon sible to meet all obligations which he may require to engage in the explo ration proposed in the application. (b) In order for the Administrator to make this determination, the applicant must show to the Administrator’s sat isfaction that he is reasonably capable of committing or raising sufficient re sources to carry out, in accordance with the provisions contained in this part, the exploration program set forth in his exploration plan. § 970.402 Technological capability. (a) Before the Administrator may certify an application for an explo ration license, he must find that the applicant has demonstrated that, upon issuance or transfer of the license, the applicant will possess, or have access to or a reasonable expectation of ob taining, the technological capability to engage in the proposed exploration. (b) In order for the Administrator to make this determination, the applicant must demonstrate to the Administra tor’s satisfaction that the applicant will possess or have access to, at the time of issuance or transfer of the li cense, the technology and expertise, as needed, to carry out the exploration program set forth in his exploration plan. § 970.403 Previous license and permit obligations. In order to certify an application, the Administrator must find that the ap plicant has satisfactorily fulfilled all past obligations under any license or permit previously issued or transferred to the applicant under the Act. § 970.404 Adequate exploration plan. Before he may certify an application, the Administrator must find that the proposed exploration plan of the appli cant meets the requirements of § 970.203. § 970.405 Appropriate exploration site size and location. Before the Administrator may certify an application, he must approve the size and location of the exploration area selected by the applicant. The Ad ministrator will approve the size and location of the area unless he deter mines that the area is not a logical mining unit pursuant to § 970.601. § 970.406 Fee payment. Before the Administrator may certify an application, he must find that the applicant has paid the license fee as specified in § 970.208. § 970.407 Denial of certification. (a) The Administrator may deny cer tification of an application if he finds that the requirements of this subpart have not been met. If, in the course of reviewing an application for certifi cation, the Administrator becomes aware of the fact that one or more of the requirements for issuance or trans fer under §§ 970.503 through 970.507 will not be met, he may also deny certifi cation of the application. (b) When the Administrator proposes to deny certification he will send to the applicant, and publish in the FED ERAL REGISTER, written notice of inten tion to deny certification. Such notice will include: (1) The basis upon which the Admin istrator proposes to deny certification; and (2) If the basis for the proposed denial is a deficiency which the Adminis trator believes the applicant can cor rect: (i) The action believed necessary to correct the deficiency; and (ii) The time within which any cor rectable deficiency must be corrected (the period of time may not exceed 180 VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00371 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 362 15 CFR Ch. IX (1–1–21 Edition) § 970.408 days except as specified by the Admin istrator for good cause). (c) The Administrator will deny cer tification: (1) On the 30th day after the date the notice is sent to the applicant, under paragraph (b) of this section, unless be fore such 30th day the applicant files with the Administrator a written re quest for an administrative review of the proposed denial; or (2) On the last day of the period es tablished under paragraph (b)(2)(ii) of this section in which the applicant must correct a deficiency, if such defi ciency has not been corrected before such day and an administrative review requested pursuant to paragraph (c)(1) of this section is not pending or in progress. (d) If a timely request for administra tive review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with Subpart I of 15 CFR part 971. If the proposed denial is the result of a correctable deficiency, the administrative review will proceed con currently with any attempts to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently. (e) If the Administrator denies cer tification, he will send to the applicant written notice of the denial, including the reasons therefor. (f) Any final determination by the Administrator granting or denying cer tification is subject to judicial review as provided in Chapter 7 of Title 5, United States Code. [46 FR 45902, Sept. 15, 1981, as amended at 54 FR 547, Jan. 6, 1989] § 970.408 Notice of certification. Upon making a final determination to certify an application for an explo ration license, the Administrator will promptly send written notice of his de termination to the applicant. Subpart E—Issuance/Transfer/ Terms, Conditions and Restrictions SOURCE: 46 FR 45903, Sept. 15, 1981, unless otherwise noted. § 970.500 General. (a) Proposal. After certification of an application pursuant to Subpart D of this part, the Administrator will pro ceed with a proposal to issue or trans fer a license for the exploration activi ties described in the application. (b)(1) Terms, conditions and restric tions. Within 180 days (or such longer period as the Administrator may estab lish for good cause shown in writing) after certification, the Administrator will propose terms and conditions for, and restrictions on, the proposed explo ration which are consistent with the provisions of the Act and this part as set forth in §§ 970.517 through 970.524. Proposed and final terms, conditions and restrictions will be uniform in all licenses, except to the extent that dif fering physical and environmental con ditions require the establishment of special terms, conditions and restric tions for the conservation of natural resources, protection of the environ ment, or the safety of life and property at sea. The Administrator will propose these in writing to the applicant. Also, public notice thereof will be provided pursuant to § 970.501, and they will be included with the draft of the EIS on the issuance of a license which is re quired by section 109(d) of the Act. (2) If the Administrator does not pro pose terms, conditions and restrictions within 180 days after certification, he will notify the applicant in writing of the reasons for the delay and will indi cate the approximate date on which the proposed terms, conditions and re strictions will be completed. (c) Findings. Before issuing or trans ferring an exploration license, the Ad ministrator must make written find ings in accordance with the require ments of §§ 970.503 through 970.507. These findings will be made after con sidering all information submitted with respect to the application and proposed issuance or transfer. He will make a final determination on issuance or transfer of a license, and will publish a final EIS on that action, within 180 days (or such longer period of time as he may establish for good cause shown in writing) following the date on which proposed terms, condi tions and restrictions, and the draft EIS, are published. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00372 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 363 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.504 ISSUANCE/TRANSFER; MODIFICATION/ REVISION; SUSPENSION/REVOCATION § 970.501 Proposal to issue or transfer and of terms, conditions and re strictions. (a) Notice and comment. The Adminis trator will publish in the FEDERAL REGISTER notice of each proposal to issue or transfer, and of terms and con ditions for, and restrictions on, an ex ploration license. Subject to 15 CFR 971.802, interested persons will be per mitted to examine the materials rel evant to such proposals. Interested per sons will have at least 60 days after publication of such notice to submit written comments to the Adminis trator. (b) Hearings. (1) The Administrator will hold a public hearing in an appro priate location and may employ such additional methods as he deems appro priate to inform interested persons about each proposal and to invite their comments thereon. (2) If the Administrator determines there exists one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing will be held in the District of Columbia metropolitan area in accordance with the provisions of subpart I of 15 CFR part 971. The record developed in any such formal hearing will be part of the basis for the Admin istrator’s decisions on issuance or transfer of, and of terms, conditions and restrictions for the license. (c) Hearings held pursuant to this section will be consolidated insofar as practicable with hearings held by other agencies. [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989] § 970.502 Consultation and cooperation with Federal agencies. Prior to the issuance or transfer of an exploration license, the Adminis trator will continue the consultation and cooperation with other Federal agencies which were initiated pursuant to § 970.211. This consultation will be to assure compliance with, among other statutes, the Endangered Species Act of 1973, as amended, the Marine Mam mal Protection Act of 1972, as amend ed, and the Fish and Wildlife Coordina tion Act. He also will consult, prior to any issuance, transfer, modification or renewal of a license, with any affected Regional Fishery Management Council established pursuant to section 302 of the Fishery Conservation and Manage ment Act of 1976 (16 U.S.C. 1852) if the activities undertaken pursuant to such license could adversely affect any fish ery within the Fishery Conservation Zone, or any anadromous species or Continental Shelf fishery resource sub ject to the exclusive management au thority of the United States beyond such zone. § 970.503 Freedom of the high seas. (a) Before issuing or transferring an exploration license, the Administrator must find that the exploration pro posed in the application will not unrea sonably interfere with the exercise of the freedoms of the high seas by other nations, as recognized under general principles of international law. (b) In making this finding, the Ad ministrator will recognize that explo ration for hard mineral resources of the deep seabed is a freedom of the high seas. In the exercise of this right, each licensee must act with reasonable regard for the interests of other na tions in their exercise of the freedoms of the high seas. (c)(1) In the event of a conflict be tween the exploration program of an applicant or licensee and a competing use of the high seas by another nation or its nationals, the Administrator, in consultation and cooperation with the Department of State and other inter ested agencies, will enter into negotia tions with that nation to resolve the conflict. To the maximum extent pos sible the Administrator will endeavor to resolve the conflict in a manner that will allow both uses to take place in a manner in which neither will unreason ably interfere with the other. (2) If both uses cannot be conducted harmoniously in the area subject to the exploration plan, the Adminis trator will decide whether to issue or transfer the license. § 970.504 International obligations of the United States. Before issuing or transferring an ex ploration license, the Administrator VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00373 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 364 15 CFR Ch. IX (1–1–21 Edition) § 970.505 must find that the exploration pro posed in the application will not con flict with any international obligation of the United States established by any treaty or international convention in force with respect to the United States. § 970.505 Breach of international peace and security involving armed conflict. Before issuing or transferring an ex ploration license, the Administrator must find that the exploration pro posed in the application will not create a situation which may reasonably be expected to lead to a breach of inter national peace and security involving armed conflict. § 970.506 Environmental effects. Before issuing or transferring an ex ploration license, the Administrator must find that the exploration pro posed in the application cannot reason ably be expected to result in a signifi cant adverse effect on the quality of the environment, taking into account the analyses and information in any applicable EIS prepared pursuant to section 109(c) or 109(d) of the Act. This finding also will be based upon the con siderations and approach in § 970.701. § 970.507 Safety at sea. Before issuing or transferring an ex ploration license, the Administrator must find that the exploration pro posed in the application will not pose an inordinate threat to the safety of life and property at sea. This finding will be based on the requirements re flected in §§ 970.205 and 970.801. § 970.508 Denial of issuance or trans fer. (a) The Administrator may deny issuance or transfer of a license if he finds that the applicant or the pro posed exploration activities do not meet the requirements of this part for the issuance or transfer of a license. (b) When the Administrator proposes to deny issuance or transfer, he will send to the applicant, and publish in the FEDERAL REGISTER, written notice of such intention to deny issuance or transfer. Such notice will include: (1) The basis upon which the Admin istrator proposes to deny issuance or transfer; and (2) If the basis for the proposed denial is a deficiency which the Adminis trator believes the applicant can cor rect: (i) The action believed necessary to correct the deficiency; and (ii) The time within which any cor rectable deficiency must be corrected (the period of time may not exceed 180 days except as specified by the Admin istrator for good cause). The FEDERAL REGISTER notice will not include the coordinates of the proposed exploration area. (c) The Administrator will deny issuance or transfer: (1) On the 30th day after the date the notice is sent to the applicant under paragraph (b) of this section, unless be fore such 30th day the applicant files with the Administrator a written re quest for an administrative review of the proposed denial; or (2) On the last day of the period es tablished under paragraph (b)(2)(ii) of this section in which the applicant must correct a deficiency, if such defi ciency has not been corrected before such day and an administrative review requested pursuant to paragraph (c)(1) of this section is not pending or in progress. (d) If a timely request for administra tive review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with subpart I of 15 CFR part 971. If the proposed denial is the result of a correctable deficiency, the administrative review will proceed con currently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently. (e) If the Administrator denies issuance or transfer, he will send to the applicant written notice of the denial, including the reasons therefor. (f) Any final determination by the Administrator granting or denying VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00374 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 365 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.511 issuance of a license is subject to judi cial review as provided in chapter 7 of title 5, United States Code. [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989] § 970.509 Notice of issuance or trans fer. If the Administrator finds that the requirements of this part have been met, he will issue or transfer the li cense along with the appropriate terms, conditions and restrictions. No tification thereof will be made in writ ing to the applicant and in the FED ERAL REGISTER. § 970.510 Objections to terms, condi tions and restrictions. (a) The licensee may file a notice of objection to any term, condition or re striction in the license. The licensee may object on the grounds that any term, condition or restriction is incon sistent with the Act or this part, or on any other grounds which may be raised under applicable provisions of law. If the licensee does not file notice of an objection within the 60-day period im mediately following the licensee’s re ceipt of the notice of issuance or trans fer under § 970.509, he will be deemed conclusively to have accepted the terms, conditions and restrictions in the license. (b) Any notice of objection filed under paragraph (a) of this section must be in writing, must contain the precise legal basis for the objection, and must provide information relevant to any underlying factual issues deemed by the licensee as necessary to the Administrator’s decision upon the objection. (c) Within 90 days after receipt of the notice of objection, the Administrator will act on the objection and publish in the FEDERAL REGISTER, as well as pro vide to the licensee, written notice of his decision. (d) If, after the Administrator takes final action on an objection, the li censee demonstrates that a dispute re mains on a material issue of fact, the Administrator will provide for a formal hearing which will proceed in accord ance with subpart I of 15 CFR part 971. (e) Any final determination by the Administrator on an objection to terms, conditions or restrictions in a license after the formal hearing pro vided in paragraph (d) of this section is subject to judicial review as provided in chapter 7 of title 5, United States Code. [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989] § 970.511 Suspension or modification of activities; suspension or revoca tion of licenses. (a) The Administrator may: (1) In addition to, or in lieu of, the imposition of any civil penalty under subpart J of 15 CFR part 971, or in addi tion to the imposition of any fine under subpart J, suspend or revoke any license issued under this part, or sus pend or modify any particular activi ties under such a license, if the licensee substantially fails to comply with any provision of the Act, this part, or any term, condition or restriction of the li cense; and (2) Suspend or modify particular ac tivities under any license, if the Presi dent determines that such suspension or modification is necessary: (i) To avoid any conflict with any international obligation of the United States established by any treaty or convention in force with respect to the United States; or (ii) To avoid any situation which may reasonably be expected to lead to a breach of international peace and se curity involving armed conflict. (b) Any action taken by the Adminis trator in accordance with paragraph (a)(1) will proceed pursuant to the pro cedures in 15 CFR 971.1003. Any action taken in accordance with paragraph (a)(2) will proceed pursuant to para graphs (c) through (i) of this section, other than paragraph (h)(2). (c) Prior to taking any action speci fied in paragraph (a)(2) of this section the Administrator will publish in the FEDERAL REGISTER, and send to the li censee, written notice of the proposed action. The notice will include: (1) The basis of the proposed action; and (2) If the basis for the proposed ac tion is a deficiency which the Adminis trator believes the licensee can cor rect: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00375 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 366 15 CFR Ch. IX (1–1–21 Edition) § 970.512 (i) The action believed necessary to correct the deficiency; and (ii) The time within which any cor rectable deficiency must be corrected (this period of time may not exceed 180 days except as specified by the Admin istrator for good cause). (d) The Administrator will take the proposed action: (1) On the 30th day after the date the notice is sent to the licensee, under paragraph (c) of this section, unless be fore such 30th day the licensee files with the Administrator a written re quest for an administrative review of the proposed action; or (2) On the last day of the period es tablished under paragraph (c)(2)(ii) of this section in which the licensee must correct the deficiency, if such defi ciency has not been corrected before such day and an administrative review requested pursuant to paragraph (d)(1) of this section is not pending or in progress. (e) If a timely request for administra tive review of the proposed action is made by the licensee under paragraph (d)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with subpart I of 15 CFR part 971. If the proposed action is the result of a correctable deficiency, the administrative review will proceed con currently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently. (f) The Administrator will serve on the licensee, and publish in the FED ERAL REGISTER, written notice of the action taken including the reasons therefor. (g) Any final determination by the Administrator to take the proposed ac tion is subject to judicial review as provided in chapter 7 of title 5, United States Code. (h) The issuance of any notice of pro posed action under this section will not affect the continuation of exploration activities by a licensee, except as pro vided in paragraph (i) of this section. (i) The provisions of paragraphs (c), (d), (e) and (h) of this section will not apply when: (1) The President determines by Ex ecutive Order that an immediate sus pension of a license, or immediate sus pension or modification of particular activities under such license, is nec essary for the reasons set forth in para graph (a)(2) of this section; or (2) The Administrator determines that immediate suspension of such a li cense, or immediate suspension or modification of particular activities under a license, is necessary to prevent a significant adverse effect on the envi ronment or to preserve the safety of life or property at sea, and the Admin istrator issues an emergency order in accordance with § 971.1003(d)(4). (j) The Administrator will imme diately rescind the emergency order as soon as he has determined that the cause for the order has been removed. [46 FR 45903, Sept. 15, 1981, as amended at 54 FR 548, Jan. 6, 1989] § 970.512 Modification of terms, condi tions and restrictions. (a) After issuance or transfer of any license, the Administrator, after con sultation with interested agencies and the licensee, may modify any term, condition, or restriction in such license for the following purposes: (1) To avoid unreasonable inter ference with the interests of other na tions in their exercise of the freedoms of the high seas, as recognized under general principles of international law. This determination will take into ac count the provisions of § 970.503; (2) If relevant data and other infor mation (including, but not limited to, data resulting from exploration activi ties under the license) indicate that modification is required to protect the quality of the environment or to pro mote the safety of life and property at sea; (3) To avoid a conflict with any inter national obligation of the United States, established by any treaty or convention in force with respect to the United States, as determined in writ ing by the President; or (4) To avoid any situation which may reasonably be expected to lead to a breach of international peace and secu rity involving armed conflict, as deter mined in writing by the President. (b) The procedures for objection to the modification of a term, condition or restriction will be the same as those VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00376 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 367 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.515 for objection to an original term, con dition or restriction under § 970.510, ex cept that the period for filing notice of objection will run from the receipt of notice of proposed modification. Public notice of proposed modifications under this section will be made according to § 970.514. On or before the date of publi cation of public notice, written notice will be provided to the licensee. [46 FR 45903, Sept. 15, 1981; 47 FR 5966, Feb. 9, 1982] § 970.513 Revision of a license. (a) During the term of an exploration license, the licensee may submit to the Administrator an application for a re vision of the license or the exploration plan associated with it. NOAA recog nizes that changes in circumstances encountered, and in information and technology developed, by the licensee during exploration may require such revisions. In some cases it may even be advisable to recognize at the time of filing the original license application that although the essential informa tion for issuing or transferring a li cense as specified in §§ 970.201 through 920.208 must be included in such appli cation, some details may have to be provided in the future in the form of a revision. In such instances, the Admin istrator may issue or transfer a license which would authorize exploration ac tivities and plans only to the extent described in the application. (b) The Administrator will approve such application for a revision upon a finding in writing that the revision will comply with the requirements of the Act and this part. (c) A change which would require an application to and approval by the Ad ministrator as a revision is a major change in one or more of: (1) The bases for certifying the origi nal application pursuant to §§ 970.401 through 970.406; (2) The bases for issuing or transfer ring the license pursuant to §§ 970.503 through 970.507; or (3) The terms, conditions and restric tions issued for the license pursuant to §§ 970.517 through 970.524. A major change is one which is of such significance so as to raise a question as to: (i) The applicant’s ability to meet the requirements of the sections cited in paragraphs (c) (1) and (2) of this sec tion; or (ii) The sufficiency of the terms, con ditions and restrictions to accomplish their intended purpose. § 970.514 Scale requiring application procedures. (a) A proposal by the Administrator to modify a term, condition or restric tion in a license pursuant to § 970.512, or an application by a licensee for revi sion of a license or exploration plan pursuant to § 970.513, is significant, and the full application requirements and procedures will apply, if it would result in other than an incidental: (1) Increase in the size of the explo ration area; or (2) Change in the location of the area. An incidental increase or change is that which equals two percent or less of the original exploration area, so long as such adjustment is contiguous to the licensed area. (b) All proposed modifications or re visions other than described in para graph (a) of this section will be acted on after a notice thereof is published by the Administrator in the FEDERAL REGISTER, with a 60-day opportunity for public comment. On a case-by-case basis, the Administrator will deter mine if other procedures, such as a public hearing in a potentially affected area, are warranted. Notice of the Ad ministrator’s decision on the proposed modification will be provided to the li censee in writing and published in the FEDERAL REGISTER. § 970.515 Duration of a license. (a) Each exploration license will be issued for a period of 10 years. (b) If the licensee has substantially complied with the license and its asso ciated exploration plan and requests an extension of the license, the Adminis trator will extend the license on terms, conditions and restrictions consistent with the Act and this part for a period of not more than 5 years. In determining substantial compliance for purposes of this section, the Admin istrator may make allowance for devi ation from the exploration plan for good cause, such as significantly VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00377 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 368 15 CFR Ch. IX (1–1–21 Edition) § 970.516 changed market conditions. However, a request for extension must be accom panied by an amended exploration plan to govern the activities by the licensee during the extended period. (c) Successive extensions may be re quested, and will be granted by the Ad ministrator, based on the criteria, and for the length of time, specified in paragraph (b) of this section. § 970.516 Approval of license transfers. (a) The Administrator may transfer a license after a written request by the licensee. After a licensee submits such a request to the Administrator, the proposed transferee will be deemed an applicant for an exploration license, and will be subject to the requirements and procedures of this part. (b) The Administrator will transfer a license if the proposed transferee and exploration activities meet the re quirements of the Act and this part, and if the proposed transfer is in the public interest. The Administrator will presume that the transfer is in the pub lic interest if it meets the require ments of the Act and this part. In case of mere change in the form or owner ship of a licensee, the Administrator may waive relevant determinations for requirements for which no changes have occurred since the preceding ap plication. TERMS, CONDITIONS, AND RESTRICTIONS § 970.517 Diligence requirements. The terms, conditions and restric tions in each exploration license must include provisions to assure diligent development. The Administrator will establish these pursuant to § 970.602. § 970.518 Environmental protection re quirements. (a) Each exploration license must contain such terms, conditions and re strictions, established by the Adminis trator, which prescribe actions the li censee must take in the conduct of ex ploration activities to assure protec tion of the environment. The Adminis trator will establish these pursuant to § 970.702. (b) Before establishing the terms, conditions and restrictions pertaining to environmental protection, the Ad ministrator will consult with the Ad ministrator of the Environmental Pro tection Agency, the Secretary of State and the Secretary of the department in which the Coast Guard is operating. He also will take into account and give due consideration to the information contained in the final EIS prepared with respect to that proposed license. § 970.519 Resource conservation re quirements. For the purpose of conservation of natural resources, each license issued under this part will contain, as needed, terms, conditions and restrictions which have due regard for the preven tion of waste and the future oppor tunity for the commercial recovery of the unrecovered balance of the hard mineral resources in the license area. The Administrator will establish these pursuant to § 970.603. § 970.520 Freedom of the high seas re quirements. Each license issued under this part must include such restrictions as may be necessary and appropriate to ensure that the exploration activities do not unreasonably interfere with the inter ests of other nations in their exercise of the freedoms of the high seas, as rec ognized under general principles of international law, such as fishing, navigation, submarine pipeline and cable laying, and scientific research. The Administrator will consider the provisions in § 970.503 in establishing these restrictions. § 970.521 Safety at sea requirements. The Secretary of the department in which the Coast Guard is operating, in consultation with the Administrator, will require in any license issued under this part, in conformity with principles of international law, that vessels docu mented under the laws of the United States and used in activities author ized under the license comply with con ditions regarding the design, construc tion, alteration, repair, equipment, op eration, manning and maintenance re lating to vessel and crew safety and the promotion of safety of life and property at sea. These requirements will be es tablished with reference to subpart H of this part. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00378 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 369 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.601 § 970.522 Monitoring requirements. Each exploration license must re quire the licensee: (a) To allow the Administrator to place appropriate Federal officers or employees as observers aboard vessels used by the licensee in exploration ac tivities to: (1) Monitor such activities at such time, and to such extent, as the Ad ministrator deems reasonable and nec essary to assess the effectiveness of the terms, conditions, and restrictions of the license; and (2) Report to the Administrator whenever such officers or employees have reason to believe there is a failure to comply with such terms, conditions, and restrictions; (b) To cooperate with such officers and employees in the performance of monitoring functions; and (c) To monitor the environmental ef fects of the exploration activities in accordance with a monitoring plan ap proved and issued by the Administrator as license terms, conditions and re strictions, and to submit such informa tion as the Administrator finds to be necessary and appropriate to assess en vironmental impacts and to develop and evaluate possible methods of miti gating adverse environmental effects. This environmental monitoring plan and reporting will respond to the con cerns and procedures discussed in Sub part G of this part. § 970.523 Special terms, conditions, and restrictions. Although the general criteria and standards to be used in establishing terms, conditions, and restrictions for a license are set forth in this part, as referenced in §§ 970.517 through 970.522, the Administrator may impose special terms, conditions, and restrictions for the conservation of natural resources, protection of the environment, or the safety of life and property at sea when required by differing physical and envi ronmental conditions. § 970.524 Other Federal requirements. Pursuant to § 970.211, another Federal agency, upon review of an exploration license application submitted under this part, may indicate how terms, con ditions, and restrictions might be added to the license, to assure compli ance with any law or regulation within that agency’s area of responsibility. In response to the intent, reflected in sec tion 103(e) of the Act, to reduce the number of separate actions to satisfy the statutory responsibilities of these agencies, the Administrator may in clude such terms, conditions, and re strictions in a license. Subpart F—Resource Development Concepts SOURCE: 46 FR 45907, Sept. 15, 1981, unless otherwise noted. § 970.600 General. Several provisions in the Act relate to appropriate mining techniques or mining efficiency. These raise what could be characterized as resource de velopment issues. In particular, under section 103(a)(2)(D) of the Act, the ap plicant will select the size and location of the area of an exploration plan, which will be approved unless the Ad ministrator finds that the area is not a ‘‘logical mining unit.’’ Also, pursuant to section 108 of the Act the applicant’s exploration plan and the terms, condi tions and restrictions of each license must be designed to ensure diligent de velopment. In addition, for the purpose of conservation of natural resources, section 110 of the Act provides that each license is to contain, but only as needed, terms, conditions, and restric tions which have due regard for the prevention of waste and the future op portunity for the commercial recovery of the unrecovered balance of the re sources. § 970.601 Logical mining unit. (a) In the case of an exploration li cense, a logical mining unit is an area of the deep seabed which can be ex plored under the license, and within the 10-year license period, in an effi cient, economical and orderly manner with due regard for conservation and protection of the environment, taking into consideration the resource data, other relevant physical and environ mental characteristics, and the state of the technology of the applicant as set VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00379 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 370 15 CFR Ch. IX (1–1–21 Edition) § 970.602 forth in the exploration plan. In addi tion, it must be of sufficient size to allow for intensive exploration. (b) Approval by the Administrator of a proposed exploration logical mining unit will be based on a case-by-case re view of each application. In order to provide a proper basis for this evalua tion, the applicant’s exploration plan should describe the seabed topography, the location of mineral deposits and the nature of planned equipment and operations. Also, the exploration plan must show the relationship between the area to be explored and the appli cant’s plans for commercial recovery volume, to the extent projected in the exploration plan. (c) In delineating an exploration area, the applicant need not include unmineable areas. Thus, the area need not consist of contiguous segments, as long as each segment would be effi ciently mineable and the total pro posed area constitutes a logical mining unit. In describing the area, the appli cant must present the geodetic coordi nates of the points defining the bound aries, referred to the World Geodetic System (WGS) Datum. A boundary be tween points must be a geodesic. If grid coordinates are desired, the Universal Transverse Mercator Grid System must be used. (d) At the applicant’s option, for the purpose of satisfying a possible obliga tion under a future Law of the Sea Treaty, the applicant may propose an exploration area which includes two exploration logical mining units. The applicant should specify in the applica tion if this ‘‘banking’’ option is chosen, and any applicant choosing this option and filing an application based on pre enactment exploration under § 970.301 shall so notify the Administrator in ac cordance with § 970.301(g). (e) Applicants are advised that NOAA will not accept an application or issue a license for an exploration area larger than 150,000 square kilometers unless the applicant can demonstrate the ne cessity of a larger area based on factors such as topography, nodule abundance, distribution and ore grade. If the appli cant elects to pursue the ‘‘banking’’ option described in paragraph (d) of this section, and wishes to apply for an exploration area larger than 150,000 square kilometers, the applicant must file a second application with respect to at least the area in excess of 150,000 square kilometers, unless the applicant justifies such excess area as part of a single application under the preceding sentence. [46 FR 45907, Sept. 15, 1981, as amended at 47 FR 5968, Feb. 9, 1982] § 970.602 Diligent exploration. (a) Each licensee must pursue dili gently the activities described in his approved exploration plan. This re quirement applies to the full scope of the plan, including environmental safe guards and monitoring systems. To help assure this diligence, terms, con ditions and restrictions which the Ad ministrator issues with a license will require such periodic reasonable ex penditures for exploration by the li censee as the Administrator may es tablish, taking into account the size of the area of the deep seabed to which the exploration plan applies and the amount of funds which is estimated by the Administrator to be required dur ing exploration for commercial recov ery of hard mineral resources to begin within the time limit established by the Administrator. However, such re quired expenditures will not be estab lished at a level which would discour age exploration by persons with less costly technology than is prevalently in use. (b) In order to fulfill the diligence re quirement, the applicant first must propose to the Administrator an esti mated schedule of activities and ex penditures pursuant to § 970.203(b) (3) and (6). The schedule must show, and the Administrator must be able to make a reasonable determination, that the applicant can complete his explo ration activities within the term of the license. In this regard, there must be a reasonable relationship between the size of the exploration area and the fi nancial and technological resources re flected in the application. Also, the ex ploration must clearly point toward de veloping the ability, by the end of the 10-year license period, to apply for and obtain a permit for commercial recov ery. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00380 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 371 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.700 (c) Ultimately, the diligence require ment will involve a retrospective de termination by the Administrator, based on the licensee’s reasonable con formance to the approved exploration plan. Such determination, however, will take into account the need for some degree of flexibility in an explo ration plan. It also will include consid eration of the needs and stage of devel opment of each licensee, again based on the approved exploration plan. In addition, the determination will take account of legitimate periods of time when there is no or very low expendi ture, and will allow for a certain degree of flexibility for changes encountered by the licensee in such factors as its re source knowledge and financial consid erations. (d) In order for the Administrator to make determinations on a licensee’s adherence to the diligence require ments, the licensee must submit a re port annually reflecting his conform ance to the schedule of activities and expenditures contained in the license. In case of any changes requiring a revi sion to an approved license and explo ration plan, the licensee must advise the Administrator in accordance with § 970.513. § 970.603 Conservation of resources. (a) With respect to the exploration phase of seabed mining, the require ment for the conservation of natural resources, encompassing due regard for the prevention of waste and the future opportunity for the commercial recov ery of the unrecovered balance of the hard mineral resources in the area to which the license applies, may not be particularly relevant. Thus, since the Act requires such terms, conditions and restrictions only as needed, explo ration licenses will require such provi sions only as the Administrator deems necessary. (b) NOAA views license phase mining system tests as an opportunity to ex amine, with industry, the conservation implications of any mining patterns used. Thus, in order to develop infor mation needed for future decisions dur ing commercial recovery, NOAA will include with a license a requirement for the submission of collector track and nodule production data. Only if in formation submitted reflects that the integrated system tests are resulting in undue waste or threatening the fu ture opportunity for commercial recov ery of the unrecovered balance of hard mineral resources will the Adminis trator modify the terms, conditions or restrictions pertaining to the conserva tion of natural resources, in order to address such problems. (c) If the Administrator so modifies such terms, conditions and restrictions relating to conservation of resources, he will employ a balancing process in the consideration of the state of the technology being developed, the proc essing system utilized and the value and potential use of any waste, the en vironmental effects of the exploration activities, economic and resource data, and the national need for hard mineral resources. Subpart G—Environmental Effects SOURCE: 46 FR 45908, Sept. 15, 1981, unless otherwise noted. § 970.700 General. Congress, in authorizing the explo ration for hard mineral resources under the Act, also enacted provisions relat ing to the protection of the marine en vironment from the effects of explo ration activities. For example, before the Administrator may issue a license, pursuant to section 105(a)(4) of the Act he must find that the exploration pro posed in an application cannot reason ably be expected to result in a signifi cant adverse effect on the quality of the environment. Also, the Act re quires in section 109(b) that each li cense issued by the Administrator must contain such terms, conditions and restrictions which prescribe the ac tions the licensee must take in the conduct of exploration activities to as sure protection of the environment. Furthermore, the Act in section 105(c)(1)(B) provides for the modifica tion by the Administrator of any term, condition or restriction if relevant data and other information indicates that modification is required to protect the quality of the environment. In ad dition, section 114 of the Act specifies that each license issued under the Act must require the licensee to monitor VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00381 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 372 15 CFR Ch. IX (1–1–21 Edition) § 970.701 the environmental effects of the explo ration activities in accordance with guidelines issued by the Administrator, and to submit such information as the Administrator finds to be necessary and appropriate to assess environ mental impacts and to develop and evaluate possible methods of miti gating adverse environmental effects. § 970.701 Significant adverse environ mental effects. (a) Activities with no significant impact. NOAA believes that exploration activi ties of the type listed below are very similar or identical to activities con sidered in section 6(c)(3) of NOAA Di rectives Manual 02–10, and therefore have no potential for significant envi ronmental impact, and will require no further environmental assessment. (1) Gravity and magnetometric obser vations and measurements; (2) Bottom and sub-bottom acoustic profiling or imaging without the use of explosives; (3) Mineral sampling of a limited na ture such as those using either core, grab or basket samplers; (4) Water and biotic sampling, if the sampling does not adversely affect shellfish beds, marine mammals, or an endangered species, or if permitted by the National Marine Fisheries Service or another Federal agency; (5) Meteorological observations and measurements, including the setting of instruments; (6) Hydrographic and oceanographic observations and measurements, in cluding the setting of instruments; (7) Sampling by box core, small di ameter core or grab sampler, to deter mine seabed geological or geotechnical properties; (8) Television and still photographic observation and measurements; (9) Shipboard mineral assaying and analysis; and (10) Positioning systems, including bottom transponders and surface and subsurface buoys filed in Notices to Mariners. (b) Activities with potential impact. (1) NOAA research has identified at-sea testing of recovery equipment and the operation of processing test facilities as activities which have some potential for significant environmental impacts during exploration. However, the re search has revealed that only the fol lowing limited effects are expected to have potential for significant adverse environmental impact. (2) The programmatic EIS’s docu ments three at-sea effects of deep sea bed mining which cumulatively during commercial recovery have the poten tial for significant effect. These three effects also occur during mining sys tem tests that may be conducted under a license, but are expected to be insig nificant. These include the following: (i) Destruction of benthos in and near the collector track. Present information reflects that the impact from this ef fect during mining tests under explo ration licenses will be extremely small. (ii) Blanketing of benthic fauna and di lution of food supply away from mine site subareas. The settling of fine sediments disturbed by tests under a license of scale-model mining systems which sim ulate commercial recovery could ad versely affect benthic fauna by blan keting, diluation of their food supply, or both. Because of the anticipated slow settling rate of the sediments, the affected area could be quite large. How ever, research results are insufficient to conclude that this will indeed be a problem. (iii) Surface plume effect on fish larvae. The impact of demonstration-scale mining tests during exploration is ex pected to be insignificant. (3) If processing facilities in the United States are planned to be used for testing during exploration, NOAA also will assess their impacts in the site-specific EIS developed for each li cense. (c) NOAA approach. In making deter minations on significant adverse envi ronmental effects, the Administrator will draw on the above conclusions and other findings in NOAA’s pro grammatic environmental statement and site-specific statements issued in accordance with the Act. He will issue licenses with terms, conditions and re strictions containing, as appropriate, environmental protection or mitiga tion requirements (pursuant to § 970.518) and monitoring requirements (pursuant to § 970.522). The focus of NOAA’s environmental efforts will be on environmental research and on VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00382 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 373 Nat’l Oceanic and Atmospheric Adm., Commerce § 970.801 monitoring during mining tests to ac quire more information on the environ mental effects of deep seabed mining. If these efforts reveal that modification is required to protect the quality of the environment, NOAA then may modify terms, conditions and restrictions pur suant to § 970.512. § 970.702 Monitoring and mitigation of environmental effects. (a) Monitoring. If an application is de termined to be otherwise acceptable, the Administrator will specify an envi ronmental monitoring plan as part of the terms, conditions and restrictions developed for each license. The plan will be based on the monotoring plan proposed by the applicant and reviewed by NOAA for completeness, accuracy and statistical reliability. This moni toring strategy will be devised to in sure that the exploration activities do not deviate significantly from the ap proved exploration plan and to deter mine if the assessment of the plan’s ac ceptability was sound. The monitoring plan, among other things, will include monitoring environmental parameters relating to verficiation of NOAA’s find ings concerning potential impacts, but relating mainly to the three unresolved concerns with the potential for signifi cant environmental effect, as identified in § 970.701(b)(2). NOAA has developed a technical guidance document, which includes parameters pertaining to the upper and lower water column and operational aspects, which document will provide assistance in developing monitoring plans in consultation with applicants. (b) Mitigation. Monitoring and contin ued research may develop information on future needs for mitigating environ mental effects. If such needs are identi fied, terms, conditions and restrictions can be modified appropriately. Subpart H—Safety of Life and Property at Sea § 970.800 General. The Act contains requirements, in the context of several decisions, that relate to assuring the safety of life and property at sea. For instance, before the Administrator may issue a license, section 105(a)(5) of the Act requires that he find that the proposed explo ration will not pose an inordinate threat to the safety of life and property at sea. Also, under section 112(a) of the Act the Coast Guard, in consultation with NOAA, must require in any li cense or permit issued under the Act, in conformity with principles of inter national law, that vessels documented in the United States and used in activi ties authorized under the license com ply with conditions regarding the de sign, construction, alteration, repair, equipment, operation, manning and maintenance relating to vessel and crew safety and the safety of life and property at sea. In addition, under sec tion 105(c)(1)(B) of the Act, the Admin istrator may modify terms, conditions and restrictions for a license if re quired to promote the safety of life and property at sea. [46 FR 45909, Sept. 15, 1981] § 970.801 Criteria for safety of life and property at sea. Response to the safety at sea require ments in essence will involve vessel in spection requirements. These inspec tion requirements may be identified by reference to present laws and regula tions. The primary inspection statutes pertaining to United States flag vessels are: 46 U.S.C. 86 (Loadlines); 46 U.S.C. 395 (Inspection of seagoing barges over 100 gross tons); 46 U.S.C. 367 (Inspection of sea-going motor vessels over 300 gross tons); and 46 U.S.C. 404 (Inspec tion of vessels above 15 gross tons car rying freight for hire). All United States flag vessels will be required to meet existing regulatory requirements applicable to such vessels. This in cludes the requirement for a current valid Coast Guard Certificate of Inspec tion, as specified in § 970.205. Being United States flag, these vessels will be under United States jurisdiction on the high seas and subject to domestic en forcement procedures. With respect to foreign flag vessels, the SOLAS 74 or SOLAS 60 certificate requirements or alternative IACS requirements, as specified in § 970.205, apply. [46 FR 45909, Sept. 15, 1981] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00383 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 374 15 CFR Ch. IX (1–1–21 Edition) § 970.900 Subpart I—Miscellaneous § 970.900 Other applicable regulations. The regulations in subparts H, I and J of 15 CFR part 971 are consolidated regulations and are applicable both to licenses under this part and to permits under 15 CFR part 971. The regulations in subparts H, I and J of part 971 gov ern records to be maintained and infor mation to be submitted by licensees and permittees, public disclosure of documents received by NOAA, relin quishment and surrender of licenses and permits, amendment of regula tions, competition of time, uniform hearing procedures, and enforcement under the Act. [54 FR 548, Jan. 6, 1989] Subparts J–W [Reserved] Subpart X—Pre-enactment Exploration § 970.2401 Definitions. (a) Engage in exploration means: (1) To cause or authorize exploration to occur, including but not limited to a person’s actions as a sponsor, principal, or purchaser of exploration services; or (2) To conduct exploration on behalf of a person described in paragraph (a)(1) of this section. (b) [Reserved] [45 FR 76662, Nov. 20, 1980, as amended at 47 FR 5966, Feb. 9, 1982] § 970.2402 Notice of pre-enactment ex ploration. (a) General. NOAA encourages any United States citizen who engaged in exploration for deep seabed hard min eral resources before June 28, 1980, to file not later than February 1, 1981, a written notice with the Administrator, in care of: The Director, Office of Ocean Minerals and Energy, National Oceanic and Atmospheric Administra tion, Department of Commerce, Page Building 1, Suite 410, 2001 Wisconsin Avenue, NW., Washington, DC 20235. Such notice shall not constitute an ap plication for a license or permit and shall not confer or confirm any pri ority of right to any site. (b) Content of pre-enactment explo ration Notice. If a notice of exploration commenced prior to June 28, 1980, is filed pursuant to paragraph (a) it should be in writing and include the following: (1) Names, addresses, and telephone numbers of the United States citizens responsible for exploration operations to whom notices and orders are to be delivered; (2) A description of the citizen or citizens engaging in such exploration including: (i) Whether the citizen is a natural person, partnership, corporation, joint venture, or other form of association; (ii) The state of incorporation of state in which the partnership or other business entity is registered; (iii) The name of registered agent and places of business; (iv) Certification of essential and non-proprietary provisions in articles of incorporation, charter, or articles of association; and (v) Membership of the association, partnership, or joint venture, including information about the participation of partners and joint venturers, and/or ownership of stock. (3) A general description of the explo ration activities conducted prior to June 28, 1980, including: (i) The approximate date that the cit izen, or predecessor in interest, com menced exploration activities; (ii) A general estimate of expendi tures made on the exploration program prior to June 28, 1980; (iii) A statement of whether the cit izen intends to file an application for an exploration license pursuant to sec tion 101(b)(1)(A) of the Act after NOAA issues regulations implementing sec tion 103(a) of the Act; and (iv) A statement of whether the cit izen intends to continue to engage in exploration as allowed by section 101(b) of the Act, pending a final determina tion on his application for an explo ration license. (c) Exclusion of location information. The information submitted in the no tice of pre-enactment exploration re quired by this section shall not include the location of past or future explo ration or prospective mine sites. [45 FR 76662, Nov. 20, 1980] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00384 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 375 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 971 Subpart Y—Pre-license Exploration SOURCE: 45 FR 76662, Nov. 20, 1980, unless otherwise noted. § 970.2501 Notice of pre-license explo ration voyages. (a) General. Any United States citizen who schedules an exploration voyage to begin after November 20, 1980 shall file written notice with the Administrator which sets out: (1) The name, address and telephone number of the citizen; (2) The anticipated date of com mencement of the voyage and its planned duration; (3) The exploration activities to be carried out on the voyage, including a general description of the equipment and methods to be used, and an esti mate of the anticipated extent of sea bed disturbance and effluent discharge; and (4) If the U.S. citizen has not filed a notice of pre-enactment exploration in accordance with § 970.2402, the informa tion specified in § 970.2402(b). (b) When and where to file Notice of fu ture exploration—(1) When. (i) Except as allowed in paragraph (b)(2) of this sec tion, the notice required by paragraph (a) of this section must be filed not later than 45 days prior to the date on which the exploration voyage is sched uled to begin. (ii) With respect to filing of the infor mation referred to in paragraph (a)(4) of this section, the filing dates speci fied in paragraph (b) of this section shall prevail over the date specified in § 970.2402(a). (2) Exception. If an exploration voy age is scheduled to begin before Janu ary 5, 1981, the notice required by para graph (a) of this section must be filed on or before December 22, 1980. (3) Where. The notice required by paragraph (a) of this section must be filed in writing with the Adminis trator, at the address specified in § 970.2402(a) of this part. § 970.2502 Post voyage report. Within 30 days of the conclusion of each exploration voyage, the United States citizen engaging in the voyage shall submit to NOAA a report con taining any environmental data or in formation obtained during that voyage. § 970.2503 Suspension of exploration activities. (a) The Administrator may issue an emergency order, either in writing or orally with written confirmation, re quiring the immediate suspension of exploration activities or any particular exploration activity when, in his judg ment, immediate suspension of such activity or activities is necessary to prevent a significant adverse effect on the environment. Upon receipt of no tice of the emergency order, the United States citizen engaged in the explo ration shall immediately cease the ac tivity that is the subject of the emer gency order. During any suspension NOAA will consult with the citizen en gaged in the activity suspended con cerning appropriate measures to re move the cause of suspension. A sus pension may be rescinded at any time by written notice from the Adminis trator upon presentation of satisfac tory evidence by the citizen that the activity will no longer threaten a sig nificant adverse effect on the environ ment. (b) [Reserved] Subpart Z—Miscellaneous § 970.2601 Additional information. Any United States citizen filing no tice under § 970.2402 or § 970.2501 of this part shall provide such additional in formation as the Administrator may require as necessary and appropriate to implement section 101 of the Act. [45 FR 76662, Nov. 20, 1980] PART 971—DEEP SEABED MINING REGULATIONS FOR COMMER CIAL RECOVERY PERMITS Subpart A—General Sec. 971.100 Purpose. 971.101 Definitions. 971.102 Nature of permits. 971.103 Prohibited activities and restric tions. 971.104 OMB control number. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00385 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 376 15 CFR Ch. IX (1–1–21 Edition) Pt. 971 Subpart B—Applications 971.200 General. CONTENTS 971.201 Statement of financial resources. 971.202 Statement of technological experi ence and capabilities. 971.203 Commercial recovery plan. 971.204 Environmental and use conflict analysis. 971.205 Vessel safety and documentation. 971.206 Statement of ownership. 971.207 Antitrust information. 971.208 Fee. 971.209 Processing outside the United States. PROCEDURES 971.210 Determination whether application is complete for further processing. 971.211 Consultation and cooperation with Federal agencies. 971.212 Public notice, hearing and comment. 971.213 Amendment to an application. 971.214 Consolidated license and permit pro cedures. [Reserved] Subpart C—Certification of Applications 971.300 General. 971.301 Required findings. 971.302 Denial of certification. 971.303 Notice of certification. Subpart D—Issuance/Transfer: Terms, Conditions and Restrictions 971.400 General. ISSUANCE/TRANSFER, MODIFICATION/REVISION; SUSPENSION/REVOCATION 971.401 Proposal to issue or transfer and proposed terms, conditions and restric tions. 971.402 Consultation and cooperation with Federal and State agencies. 971.403 Freedom of the high seas. 971.404 International obligations of the United States. 971.405 Breach of international peace and security involving armed conflict. 971.406 Environmental effects. 971.407 Safety at sea. 971.408 Processing outside the United States. 971.409 Denial of issuance or transfer. 971.410 Notice of issuance or transfer. 971.411 Objections to terms, conditions and restrictions. 971.412 Changes in permits and permit terms, conditions, and restrictions. 971.413 Revision of a permit. 971.414 Modification of permit terms, condi tions, and restrictions. 971.415 Duration of a permit. 971.416 Approval of permit transfers. 971.417 Suspension or modification of activi ties; suspension or revocation of permits. TERMS, CONDITIONS AND RESTRICTIONS 971.418 Diligence requirements. 971.419 Environmental protection require ments. 971.420 Resource conservation requirements. 971.421 Freedom of the high seas require ments. 971.422 Safety at sea requirements. 971.423 Best available technology. 971.424 Monitoring requirements. 971.425 Changes of circumstances. 971.426 Annual report and records mainte nance. 971.427 Processing outside the United States. 971.428 Other necessary permits. 971.429 Special terms, conditions and re strictions. 971.430 Other Federal requirements. Subpart E—Resource Development 971.500 General. 971.501 Resource assessment, recovery plan, and logical mining unit. 971.502 Conservation of resources. 971.503 Diligent commercial recovery. Subpart F—Environmental Effects 971.600 General. 971.601 Environmental requirements. 971.602 Significant adverse environmental effects. 971.603 At-sea monitoring. 971.604 Best available technologies (BAT) and mitigation. 971.605 Stable References Areas. [Reserved] 971.606 Onshore information. Subpart G—Safety of Life and Property at Sea 971.700 General. 971.701 Criteria for safety of life and prop erty at sea. Subpart H—Miscellaneous 971.800 General. 971.801 Records to be maintained and infor mation to be submitted by licensees and permittees. 971.802 Public disclosure of documents re ceived by NOAA. 971.803 Relinquishment and surrender of li censes and permits. 971.804 Amendment to regulations for con servation, protection of the environment, and safety of life and property at sea. 971.805 Computation of time. Subpart I—Uniform Procedures 971.900 Applicability. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00386 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 377 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.101 971.901 Formal hearing procedures. Subpart J—Enforcement 971.1000 General. 971.1001 Assessment procedure. 971.1002 Hearing and appeal procedures. 971.1003 License and permit sanctions. 971.1004 Remission or mitigation of forfeit ures. 971.1005 Observers. 971.1006 Proprietary enforcement informa tion. 971.1007 Advance notice of civil actions. AUTHORITY: 30 U.S.C. 1401 et seq. SOURCE: 54 FR 525, Jan. 6, 1989, unless oth erwise noted. Subpart A—General § 971.100 Purpose. The purpose of this part is to imple ment the responsibilities and authori ties of the Administrator of the Na tional Oceanic and Atmospheric Ad ministration (NOAA) pursuant to Pub lic Law 96–283, the Deep Seabed Hard Mineral Resources Act (the Act), to issue to eligible United States citizens permits for the commercial recovery of deep seabed hard minerals. § 971.101 Definitions. For purposes of this part, the term (a) Act means the Deep Seabed Hard Mineral Resources Act (Pub. L. 96–283; 94 Stat. 553; 30 U.S.C. 1401 et seq.); (b) Administrator means the Adminis trator of the National Oceanic and At mospheric Administration, or the Ad ministrator’s designee; (c) Affected State means any State with a coastal zone management pro gram approved under Section 306 of the Coastal Zone Management Act, as amended, where coastal zone land and water uses are affected by the issuance of a commercial recovery permit under the provisions of the Act or this part; (d) Applicant means an applicant for a commercial recovery permit pursuant to the Act and this part; as used in sub parts H, I and J of this part, ‘‘appli cant’’ also means an applicant for an exploration license pursuant to the Act and part 970 of the title. ‘‘Applicant’’ also means a proposed permit trans feree; (e) Commercial recovery means— (1) Any activity engaged in at sea to recover any hard mineral resource at a substantial rate for the primary pur pose of marketing or commercially using such resource to earn a net prof it, whether or not such net profit is ac tually earned; (2) If such recovered hard mineral re source will be processed at sea, such processing; and (3) If the waste of such activity to re cover any hard mineral resource, or of such processing at sea, will be disposed of at sea, such disposal; (f) Continental Shelf means— (1) The seabed and subsoil of the sub marine areas adjacent to the coast, but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit to where the depth of the superjacent waters admits of the ex ploitation of the natural resources of such submarine area; and (2) The seabed and subsoil of similar submarine areas adjacent to the coast of islands; (g) Controlling interest, for purposes of paragraph (v)(3) of this section, means a direct or indirect legal or beneficial interest in or influence over another person arising through ownership of capital stock, interlocking directorates or officers, contractual relations, or other similar means, which substan tially affect the independent business behavior of such person; (h) Deep seabed means the seabed, and the subsoil thereof to a depth of ten meters, lying seaward of and outside— (1) The Continental Shelf of any na tion; and (2) Any area of national resource ju risdiction of any foreign nation, if such area extends beyond the Continental Shelf of such nation and such jurisdic tion is recognized by the United States; (i) Environment or environmental as used in the definitions of ‘‘irreparable harm’’ and ‘‘significant adverse envi ronmental effect’’ means or pertains to the deep seabed and ocean waters lying at and within the permit area, and in surrounding areas including transpor tation corridors to the extent that they might be affected by the commer cial recovery activities, and the living and non-living resources of those areas; (j) Exploration means— VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00387 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 378 15 CFR Ch. IX (1–1–21 Edition) § 971.102 (1) Any at-sea observation and eval uation activity which has, as its objec tive, the establishment and docu mentation of— (i) The nature, shape, concentration, location, and tenor of a hard mineral resource; and (ii) The environmental, technical, and other appropriate factors which must be taken into account to achieve commercial recovery; and (2) The taking from the deep seabed of such quantities of any hard mineral resource as are necessary for the de sign, fabrication and testing of equip ment which is intended to be used in the commercial recovery and proc essing of such resource; (k) Hard mineral resource means any deposit or accretion on, or just below, the surface of the deep seabed of nod ules which include one or more min erals, at least one of which is man ganese, nickel, cobalt, or copper; (l) Irreparable harm means significant undesirable effects to the environment occurring after the date of the permit issuance which will not be reversed after cessation or modification of the activities authorized under the permit; (m) Licensee means the holder of a li cense issued under NOAA regulations to engage in exploration; (n) NOAA means the National Oce anic and Atmospheric Administration; (o) Permittee means the holder of a permit issued or transferred under this part to engage in commercial recovery; (p) Person means any United States citizen, any individual, and any cor poration, partnership, joint venture, association, or other entity organized or existing under the laws of any na tion; (q) Reciprocating state means any for eign nation designated as such by the Administrator under section 118 of the Act; (r) Recovery plan or commercial recov ery plan means the plan submitted by an applicant for a commercial recovery permit pursuant to § 971.203; (s) Significant adverse environmental effect means: (1) Important adverse changes in ecosystem diversity, pro ductivity, or stability of the biological communities within the environment; (2) threat to human health through di rect exposure to pollutants or through consumption of exposed aquatic orga nisms; or (3) important loss of aes thetic, recreational, scientific or eco nomic values; (t) State agency means the agency re sponsible for implementing the respon sibilities of section 306(c)(5) under the Coastal Zone Management Act, as amended, and 15 CFR part 930; (u) United States means the several States, the District of Columbia, the Commonwealth of Puerto Rico, Amer ican Samoa, the United States Virgin Islands, Guam, and any other Common wealth, territory, or possession of the United States; and (v) United States citizen means— (1) Any individual who is a citizen of the United States; (2) Any corporation, partnership, joint venture, association, or other en tity organized or existing under the laws of any of the United States; and (3) Any corporation, partnership, joint venture, association, or other en tity (whether organized or existing under the laws of any of the United States or a foreign nation) if the con trolling interest in such entity is held by an individual or entity described in paragraph (v)(1) or (v)(2). § 971.102 Nature of permits. (a) A permit issued under this part authorizes the holder thereof to engage in commercial recovery within a spe cific portion of the sea floor consistent with the provisions of the Act and this part and consistent with the specific terms, conditions, and restrictions (TCRs) applied to the permit by the Administrator. (b) A permit issued under this part is exclusive with respect to the holder thereof as against any other United States citizen or any citizen, national or governmental agency of, or any legal entity organized or existing under the laws of, any reciprocating state. (c) A valid existing license under 15 CFR part 970 will entitle the holder, if otherwise eligible under the provisions of the Act and implementing regula tions, to a permit for commercial re covery from an area selected from within the license area. Such a permit will recognize the right of the holder to recover hard mineral resources, and to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00388 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 379 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.103 own, tranport, use, and sell hard min eral resources recovered under the per mit and in accordance with the re quirements of the Act and this part. § 971.103 Prohibited activities and re strictions. (a) Prohibited activities and exceptions. (1) No United States citizen may en gage in any commercial recovery un less authorized to do so under— (i) A permit issued pursuant to the Act and implementing regulations; (ii) A license, permit or equivalent authorization issued by a reciprocating state; or (iii) An international agreement which is in force with respect to the United States. (2) The prohibitions of paragraph (a)(1) of this section do not apply to any of the following activities: (i) Scientific research, including that concerning hard mineral resources; (ii) Mapping, or the taking of any geophysical, geochemical, oceano graphic, or atmospheric measurements or random bottom samplings of the deep seabed, if such taking does not significantly alter the surface or sub surface of the seabed or significantly affect the environment; (iii) The design, construction, or test ing of equipment and facilities which will or may be used for exploration or commercial recovery, if such design, construction or testing is conducted onshore, or does not involve the recov ery of any but incidental hard mineral resources; (iv) The furnishing of machinery, products, supplies, services, or mate rials for any exploration or commercial recovery conducted under a license or permit issued under the Act and imple menting regulations, a license or per mit or equivalent authorization issued by a reciprocating state, or any rel evant international agreement; and (v) Activities, other than exploration or commercial recovery activities, of the Federal Government. (3) No United States citizen may interfere or participate in interference with any activity conducted by any permittee which is authorized to be un dertaken under a permit issued by the Administrator to a permittee under the Act or with any activity conducted by the holder of, and authorized to be un dertaken under, a license or permit or equivalent authorization issued by a reciprocating state for the commercial recovery of hard mineral resources. For purposes of this section, interference includes physical interference with ac tivities authorized by the Act, this part, and a license or permit issued pursuant thereto; the filing of a spe cious claim in the United States or any other nation; and any other activity designed to harass, or which has the ef fect of harassing, persons conducting deep seabed mining activities author ized by law. Interference does not in clude the exercise of any superior rights granted to United States citi zens by the Constitution of the United States, or any Federal or State law, treaty, or agreement or regulation pro mulgated pursuant thereto. (4) United States citizens shall exer cise their rights on the high seas with reasonable regard for the interests of other states in their exercise of the freedoms of the high seas. (b) Restrictions on issuance of permits. The Administrator will not issue any permit— (1) After the date on which any rel evant international agreement is rati fied by and enters into force with re spect to the United States, except to the extent that issuance of the permit is not inconsistent with that agree ment. (2) The recovery plan of which, sub mitted pursuant to the Act and imple menting regulations, would apply to an area to which applies, or would conflict with: (i) Any exploration plan or recovery plan submitted with any pending appli cation to which priority of right for issuance applies under 15 CFR part 970 or this part; (ii) Any exploration plan or recovery plan associated with any existing li cense or permit; or (iii) An equivalent authorization which has been issued, or for which for mal notice of application has been sub mitted, by a reciprocating state prior to the filing date of any relevant appli cation for licenses or permits pursuant to the Act and implementing regula tions; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00389 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 380 15 CFR Ch. IX (1–1–21 Edition) § 971.104 (3) Authorizing commercial recovery within any area of the deep seabed in which exploration is authorized under a valid existing license if such permit is issued to a person other than the li censee for such area; (4) Which authorizes commercial re covery to commence before January 1, 1988; (5) The recovery plan for which ap plies to any area of the deep seabed if, within the 3-year period before the date of application for that permit: (i) The applicant therefor surren dered or relinquished such area under an exploration plan or recovery plan associated with a previous license or permit issued to such applicant; or (ii) A permit previously issued to the applicant had an exploration plan or recovery plan which applied to such area and such license or permit was re voked under section 106 of the Act; (6) Or approve the transfer of a per mit, except to a United States citizen; or (7) That would authorize commercial recovery activities in an area other than for which the applicant therefore holds a valid exploration license under part 970 of this title. § 971.104 OMB control number. The information collection require ments and reporting and recordkeeping requirements contained in this part were approved by the Office of Manage ment and Budget under control number 0648–0170. Subpart B—Applications § 971.200 General. (a) Who may apply; how. Any United States citizen holding a valid explo ration license may apply to the Admin istrator for issuance of a commercial recovery permit for all or part of the area to which the license applies. Any holder of a commercial recovery per mit may apply to the Administrator for transfer of the permit. Applications must be submitted in the form and manner described in this subpart. (b) Place, form and copies. An applica tion for the issuance or transfer of a commerical recovery permit must be in writing, verified and signed by an au thorized officer or other authorized representative of the applicant. The ap plication and 25 copies thereof must be submitted to: Ocean Minerals and Energy Division, Office of Ocean and Coastal Resource Manage ment, National Oceanic and Atmospheric Administration, Suite 710, 1825 Connecticut Avenue, NW., Washington, DC 20235. The Administrator may waive in whole or in part, at his discretion, the re quirement that 25 copies of an applica tion be filed with NOAA. (c) General contents. The application must contain a proposed commerical recovery plan and the financial, tech nical, environmental and other infor mation specified in this part, which in total are necessary for the Adminis trator to make the determinations re quired by the Act and this part. Al though the ultimate standards for de terminations under these rules are identical for both transferees and origi nal preexisting licensees, NOAA antici pates that applicants who are trans ferees will have to supply more infor mation with the application than li censees will [see subsection (e) in this section]. (d) Identification of requirements. Each portion of the application should iden tify the requirements of this part to which it responds. (e) Information previously submitted in connection with an exploration license. Information previously submitted as part of an exploration license applica tion, as well as information submitted during the course of license activities (such as data included in annual re ports to NOAA), may be incorporated in the commercial recovery permit ap plication by reference. (f) Request for confidential treatment of information. If an applicant wishes to have any information in its application not be subject to public disclosure, it must so request, at the time of submit ting the information, pursuant to § 971.802 which will govern disposition of the request. (g) Pre-application consultation. The Administrator will make NOAA staff available to potential applicants for pre-application consultations on how to respond to the provisions of this part. In appropriate circumstances, the Administrator will provide written confirmation to the applicant of oral VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00390 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 381 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.203 guidance resulting from such consulta tions. Such consultation is required for the purpose of § 971.207. The applicant is encouraged to consult with affected States as early as is practicable [see also §§ 971.213 and 971.606(b)]. (h) Compliance with Federal consist ency requirements. An applicant for a commercial recovery permit must com ply with all necessary requirements, including procedures, pursuant to 15 CFR part 930, subpart D. Applications and other necessary data and informa tion must be transmitted to the des ignated State agency as prescribed under 15 CFR 930.50. CONTENTS § 971.201 Statement of financial re sources. (a) General. The application must contain information sufficient to dem onstrate to the Administrator pursuant to § 971.301 that, upon issuance or trans fer of the permit, the applicant will have access to the financial resources to carry out, in accordance with this part, the commercial recovery program set forth in the applicant’s commercial recovery plan. (b) Specific. In particular, the infor mation on financial resources is ex pected to be general in nature but must include the likely sources and timing of funds to meet the applicant’s sched uled expenditures in the recovery plan. These sources may include cash flow, reserves, and outside funding. § 971.202 Statement of technological experience and capabilities. (a) General. The application must contain information sufficient to dem onstrate to the Administrator pursuant to § 971.301 that, upon issuance or trans fer of the permit, the applicant will have the technological capability to carry out, in accordance with the regu lations contained in this part, the com mercial recovery program set out in the applicant’s commercial recovery plan. (b) Specific. In particular, the infor mation submitted pursuant to this sec tion must describe the equipment, knowledge, and skills the applicant possesses, or to which it can dem onstrate access [see § 971.200(e)]. The in formation must include: (1) A description of the technology or the equipment and methods to be used by the applicant in carrying out each step in the mining process, including nodule collection, retrieval, transfer to ship, environmental monitoring, trans port to processing facilities, nodule processing, waste disposal and compli ance with applicable water quality standards. The description must in clude: (i) An analysis of the performance of experimental systems, sub-systems, or analogous machinery; (ii) The rationale for extrapolating from test results to commercial min ing. The more test data offered with the application the less analysis will be expected; and (iii) Anticipated system reliability within the context of anticipated pro duction time lost through equipment failure. (2) A functional description of the types of technical persons on whom the applicant will rely to operate its equip ment. § 971.203 Commercial recovery plan. (a) General. The application must in clude a proposed commercial recovery plan which describes the applicant’s projected commercial recovery activi ties, in a general way, for the twenty year period to be covered by the pro posed permit. Although preliminary and subject to change, the plan must be more detailed for that portion of the permit term leading up to the initi ation of commercial recovery. The plan must include sufficient information for the Administrator, pursuant to this part, to make the necessary determina tions pertaining to the certification and issuance or transfer of a permit and to the development and enforce ment of the TCRs for a permit. (b) Specific. The plan must include: (1) A description of the activities pro posed to be carried out during the pe riod of the permit; (2) The intended schedule of commer cial recovery (see ‘‘Diligent commer cial recovery,’’ § 971.503); (3) Environmental safeguards and monitoring systems, which must take VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00391 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 382 15 CFR Ch. IX (1–1–21 Edition) § 971.204 into account requirements under sub part F of this part, including best available technologies (BAT) (§ 971.604) and monitoring (§ 971.603); (4) Details of the area or areas pro posed for commercial recovery, which meet requirements for diligence (§ 971.503) and conservation of resources pursuant to subpart E (especially § 971.502); (5) A resource assessment of the area or areas proposed for commercial re covery which meets the requirements for resource assessment and logical mining unit (§ 971.501); (6) A description of the methods and technology to be used for commercial recovery and processing (see § 971.202(b)(1)); and (7) The methods to be used for dis posal of wastes from recovery and proc essing, including the areas for disposal and identification of any toxic sub stances in wastes. § 971.204 Environmental and use con flict analysis. (a) Environmental information submis sion. The application must be sup ported by sufficient marine environ mental information for the Adminis trator to prepare an environmental im pact statement (EIS) on the proposed mining activities, and to determine the appropriate permit TCRs based on en vironmental characteristics of the re quested minesite. The Administrator may require the submission of addi tional data, in the event he determines that the basis for a suitable EIS, or a determination of appropriate TCRs, is not available. (b)(1) In preparing the EIS, the Ad ministrator will attempt to charac terize the environment in such a way as to provide a basis for judging the po tential for significant adverse effects or irreparable harm triggered by com mercial mining (see subpart F). In compiling these data, the Adminis trator will utilize existing information including the relevant license EIS, ad ditional exploration data acquired by the applicant, and other data in the public domain. (2) The EIS must present adequate physical, chemical, and biological in formation for the permit area. If the permit area lies within the area of NOAA’s Deep Ocean Mining Environ mental Study (DOMES), the param eters listed in NOAA’s Technical Guid ance Document pertaining to the upper and lower water column should be in cluded. Specifically, these parameters include: (i) Upper water column— Nutrients Endangered species Salinity, temperature, density Currents. (ii) Lower water column and seafloor— Currents Suspended particulate matter dispersion Sediment characteristics (mineralogy, par ticle size, shape and density, and water content) Topography Benthos. (3) For a permit area outside the DOMES area, the applicant is encour aged to consult with NOAA at the ear liest opportunity in order to determine the specific parameters to be measured based on the location and specific envi ronmental characteristics of the per mit area. The Administrator, in con sultation with the Administrator of the Environmental Protection Agency and with the assistance of other appro priate Federal agencies, may deter mine that a programmatic EIS is re quired for any new area. (c) The application must include a monitoring plan for test mining and at sea commercial recovery activities which meets the objectives and re quirements of § 971.603. (d) Use conflict analysis. The applica tion must include information known to the applicant on other uses of the proposed mining area to support the Administrator’s determination regard ing potential use conflicts between commercial mining activities and those activities of other nations or of other U.S. citizens. (e) Onshore information. Because of NEPA requirements, the Administrator must include in the EIS on the pro posed permit the complete spectrum of activities resulting from the issuance of a permit. Therefore, onshore infor mation including the location and op eration of nodule processing facilities must be submitted with the application VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00392 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 383 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.208 in accordance with the details in § 971.606. § 971.205 Vessel safety and documenta tion. In order to provide a basis for the necessary determinations with respect to the safety of life and property at sea, pursuant to § 971.407, § 971.422 and Subpart G of this part, the application must contain the following informa tion for vessels used in commercial re covery, except for those vessels under 300 gross tons which are engaged in oceanographic research: (a) U.S. flag vessel. All mining ships and at least one of the transport ships used by each permittee must be docu mented under the laws of the United States. To the extent that the appli cant knows which United States flag vessels it will use, it must include with its application copies of the vessels’ current valid Coast Guard Certificates of Inspection. (b) Foreign flag vessels. To the extent that the applicant knows which foreign flag vessel(s) it will be using for other purposes, the application must include evidence of the following: (1) That any foreign flag vessel whose flag state is party to the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74) possesses current valid SOLAS 74 certificates; (2) That any foreign flag vessel whose flag state is not party to SOLAS 74 but is party to the International Conven tion for the Safety of Life at Sea, 1960 (SOLAS 60) possesses current valid SOLAS 60 certificates; and (3) That any foreign flag vessel whose flag state is not a party to either SOLAS 74 or SOLAS 60 meets all appli cable structural and safety require ments contained in the published rules of a member of the International Asso ciation of Classification Societies (IACS). (c) Supplemental certificates. If the ap plicant does not know at the time of submitting an application which ves sels it will be using, it must submit the applicable certification for each vessel before the cruise on which it will be used. § 971.206 Statement of ownership. (a) General. The application must in clude sufficient information to dem onstrate that the applicant is a United States citizen. (b) Specific. In particular, the applica tion must include: (1) Name, address, and telephone number of the United States citizen re sponsible for commercial recovery op erations; (2) A description of the citizen or citizens engaging in commercial recov ery, including: (i) Whether the citizen is a natural person, partnership, corporation, joint venture, or other form of association; (ii) The state of incorporation or state in which the partnership or other business entity is registered; (iii) The name and place of business of the registered agent or equivalent representative to whom notices and or ders are to be delivered; (iv) Copies of all essential and non proprietary provisions in articles of in corporation, charter or articles of asso ciation; and (v) The name of each member of the association, partnership, or joint ven ture, including information about the participation and/or ownership of stock of each partner or joint venturer. § 971.207 Antitrust information. In order to support the antitrust re view referenced in § 971.211, the applica tion must contain information suffi cient, in the applicant’s view and based on preapplication consultations pursu ant to § 971.200(g), to identify the appli cant and describe any significant exist ing market share it has with respect to the mining or marketing of the metals proposed to be recovered under the per mit. § 971.208 Fee. (a) General. Section 104 of the Act provides that no application for the issuance or transfer of a permit will be certified unless the applicant pays to NOAA an administrative fee which re flects the reasonable administrative costs incurred in reviewing and proc essing the application. (b) Amount. A fee payment of $100,000, payable to the National Oceanic and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00393 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 384 15 CFR Ch. IX (1–1–21 Edition) § 971.209 Atmospheric Administration, Depart ment of Commerce, must accompany each application. If the administrative costs of reviewing and processing the application are significantly less than or in excess of $100,000, the Adminis trator, after determining the amount of the under- or over-charge, as appli cable, will refund the difference or re quire the applicant to pay the addi tional amount before issuance or trans fer of the permit. In the case of an ap plication for transfer of a permit to, or for a significant change to a permit held by, an entity which has previously been found qualified for a permit, the Administrator may reduce the fee in advance by an appropriate amount which reflects costs avoided by reli ance on previous findings made in rela tion to the proposed transferee. § 971.209 Processing outside the United States. (a) Except as provided in this section and § 971.408, the processing of hard minerals recovered pursuant to a per mit shall be conducted within the U.S., provided that the President or his des ignee does not determine that this re striction contravenes the overriding national interests of the United States. (b) If foreign processing is proposed, the applicant shall submit a justifica tion demonstrating the basis for a find ing pursuant to § 971.408(a)(1). The jus tification shall include an analysis of each factor which the applicant con siders essential to its conclusion that processing at a site within the U.S. is not economically viable. (c) If the Administrator determines that the justification provided by the applicant is insufficient, or if the Ad ministrator receives during the public comment or hearing period what the Administrator determines to be a seri ous alternative U.S. processing site proposal, the Administrator may re quire the applicant to supply, within a specified reasonable time, additional information relevant to the § 971.408(a)(1) finding. (d) The applicant must include in its application satisfactory assurances that such resources after processing, to the extent of the permittee’s ownership therein, will be returned to the United States for domestic use if the Adminis trator determines pursuant to § 971.408 that the national interest necessitates such return. Assurances must include proposed arrangements with the host country. PROCEDURES § 971.210 Determination whether ap plication is complete for further processing. Upon receipt of an application, the Administrator will review it to deter mine whether it includes information specifically identifiable with and fully responsive to each requirement in § 971.201 through § 971.209. The Adminis trator will notify the applicant wheth er the application is complete within 60 days after it is received. The notice will identify, if applicable, in what re spects the application is not complete, and will specify the information which the applicant must submit in order to make it complete, why the additional information is necessary, and a reason able date by which the application must be completed. Application proc essing will not begin until the Admin istrator determines that the applica tion is complete. § 971.211 Consultation and cooperation with Federal agencies. (a) Promptly after receipt of an ap plication that the Administrator has determined pursuant to § 971.210 is com plete, the Administrator will distribute a copy of the application to every Fed eral agency or department which, pur suant to section 103(e) of the Act, has identified programs or activities with in its statutory responsibilities which would be affected by the activities pro posed in the application (e.g., the De partments of State, Transportation, Justice, Interior, Defense, Treasury and Labor, as well as the Environ mental Protection Agency, Federal Trade Commission, International Trade Administration and National Science Foundation). Based on its legal responsibilities and authorities, each such agency or department may, not later than 60 days after it receives a copy of the application, recommend certification of the application, issuance or transfer of the permit, or denial of such certification, issuance or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00394 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 385 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.213 transfer. The advice or recommenda tion by the Attorney General or Fed eral Trade Commission on antitrust re view, pursuant to section 103(d) of the Act, must be submitted within 90 days after their receipt of a copy of the ap plication. (b) NOAA will use this process of con sultation and cooperation to facilitate necessary Federal decisions on pro posed commercial recovery activities, pursuant to the mandate of section 103(e) of the Act to reduce the number of separate actions required to satisfy Federal agencies’ statutory respon sibilities. The Administrator will not issue or transfer the permit during the 90 day period after receipt by the At torney General and the Federal Trade Commission except upon written con firmation of the Attorney General and the Federal Trade Commission that neither intends to submit further com ments or recommendations with re spect to the application. (c) In any case in which a Federal agency or department recommends a denial, it must set forth in detail the manner in which the application does not comply with any law or regulation within its area of responsibility and how the application may be amended, or how TCRs might be added to the permit, to assure compliance with such law or regulation. (d) NOAA will cooperate with such agencies and with the applicant with the goal of resolving any concerns raised and satisfying the statutory re sponsibilities of these agencies. (e) If the Administrator decides to issue or transfer a permit with respect to which denial of the issuance or transfer has been recommended by the Attorney General or the Federal Trade Commission, or to issue or transfer a permit without imposing TCRs rec ommended by the Attorney General or the Federal Trade Commission, as ap propriate, the Administrator will, be fore or at issuance or transfer of the permit, notify the Attorney General and the Federal Trade Commission of the reasons for his decision. § 971.212 Public notice, hearing and comment. (a) Notice and comments. The Adminis trator will publish in the FEDERAL REGISTER, for each complete applica tion for issuance or transfer of a com mercial recovery permit, notice that the application has been received. Sub ject to § 971.802, interested persons will be allowed to examine the materials relevant to the application, and will have at least 60 days after publication of notice to submit written comments to the Administrator. (b) Hearings. After preparation of the draft environmental impact statement (EIS) on an application, the Adminis trator will hold a public hearing on the application and the draft EIS in an ap propriate location and may employ ad ditional methods he/she deems appro priate to inform interested persons about each application and to invite comments thereon. A hearing will be conducted in any State in which a processing plant or any of its ancillary facilities (such as a marine terminal or a waste disposal facility) are proposed to be located. (c) If the Administrator determines there exist one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing will be held in the District of Columbia metropolitan area in accordance with the provisions of Subpart I of this part. The record de veloped in any such formal hearing will be part of the basis of the Administra tor’s decisions on an application. (d) Hearings held pursuant to this section and other procedures will be consolidated, if practicable, with hear ings held and procedures employed by other Federal and State agencies. § 971.213 Amendment to an applica tion. After an application has been sub mitted to the Administrator, but be fore a determination is made on the issuance or transfer of a permit, the applicant must submit an amendment to the application if there is a signifi cant change in the circumstances rep resented in the original application which affects the requirements of this subpart. Applicants should consult with NOAA to determine if changes in circumstances are sufficiently signifi cant to require submission of an amendment. The application, as amended, would then serve as the basis VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00395 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 386 15 CFR Ch. IX (1–1–21 Edition) § 971.214 for determinations by the Adminis trator under this part. For each amendment judged by the Adminis trator to be significant, the Adminis trator will provide a copy of that amendment to each other Federal agency and department which received a copy of the original application, and also will provide for public notice, hearing and comment on the amend ment pursuant to § 971.212. After the issuance or transfer of a permit, any revision of the permit will be made pursuant to § 971.413. Any amendment or modification which would cause coastal zone effects substantially dif ferent than those originally reviewed by the state agency would be subject to Federal consistency review as pre scribed in 15 CFR part 930. § 971.214 Consolidated license and per mit procedures. [Reserved] Subpart C—Certification of Applications § 971.300 General. (a) Certification is an intermediate step between receipt of an application for issuance or transfer of a permit and actual issuance or transfer. It is a de termination which focuses on the eligi bility of the applicant. (b) Before the Administrator may certify an application for issuance or transfer of a permit, the Administrator must determine that issuance of the permit would not violate any of the re strictions in § 971.103(b). The Adminis trator also must make written deter minations with respect to the require ments with respect to the requirements set forth in § 971.301. (c) To the maximum extent possible, the Administrator will endeavor to complete certification within 100 days after receipt of a complete application. If final certification or denial of cer tification has not occurred within 100 days after receipt of the application, the Administrator will inform the ap plicant in writing of the pending unre solved issues, the efforts to resolve them, and an estimate of the time re quired to do so. § 971.301 Required findings. Before the Administrator may certify an application for a commercial recov ery permit, the Administrator must: (a) Approve the size and location of the commercial recovery area selected by the applicant, and this approval will occur unless the Administrator deter mines that (1) the area is not a logical mining unit under § 971.501, or (2) com mercial recovery activities in the pro posed area would result in a significant adverse environmental effect which cannot be avoided by imposition of rea sonable restrictions; and (b) Find that the applicant— (1) Has demonstrated that, upon issuance or transfer of the permit, the applicant will be financially respon sible to meet all obligations which may be required to engage in its proposed commercial recovery activities; (2) Has demonstrated that, upon per mit issuance or transfer, it will pos sess, or have access to, the techno logical capability to engage in the pro posed commercial recovery; (3) Has satisfactorily fulfilled all past obligations under any license or permit previously issued or transferred to the applicant under the Act; (4) Has a commercial recovery plan which meets the requirements of § 971.203; and (5) Has paid the permit fee specified in § 971.208. § 971.302 Denial of certification. (a) The Administrator may deny cer tification of an application if the Ad ministrator finds that the require ments of this subpart, or the require ments for issuance or transfer under § 971.403 through § 971.408, have not been met. (b) When the Administrator proposes to deny certification the Administrator will send to the applicant, via certified mail, return receipt requested, and publish in the FEDERAL REGISTER, writ ten notice of intention to deny certifi cation. The notice will include: (1) The basis upon which the Admin istrator proposes to deny certification; and (2) If the basis for the proposed denial is a deficiency which the Adminis trator believes the applicant can cor rect: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00396 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 387 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.400 (i) The action believed necessary to correct the deficiency; and (ii) The time within which any cor rectable deficiency must be corrected (not to exceed 180 days except as speci fied by the Administrator for good cause). (c) The Administrator will deny cer tification: (1) On the 30th day after the date the notice is received by the applicant, under paragraph (b) of the section, un less before the 30th day the applicant files with the Administrator a written request for an administrative review of the proposed denial; or (2) On the last day of the period es tablished under paragraph (b)(2)(ii) in which the applicant must correct a de ficiency, if that deficiency has not been corrected before that day and an ad ministrative review requested pursuant to paragraph (c)(1) is not pending or in progress. (d) If a timely request for administra tive review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing. If the proposed denial is the result of a correctable deficiency, the administra tive review will proceed concurrently with any attempts to correct the defi ciency, unless the parties agree other wise or the administrative law judge orders differently. (e) If the Administrator denies cer tification, he will send to the applicant written notice of the denial, including the reasons therefor. (f) Any final determination by the Administrator granting or denying cer tification is subject to judicial review as provided in chapter 7 of title 5, United States Code. § 971.303 Notice of certification. Upon making a final determination to certify an application for a commer cial recovery permit, the Adminis trator will promptly send written no tice of the determination to the appli cant. Subpart D—Issuance/Transfer: Terms, Conditions and Restrictions § 971.400 General. (a) Proposal. After certification of an application pursuant to subpart C of this part, the Administrator will pro ceed with a proposal to issue or trans fer a permit for the commercial recov ery activities described in the applica tion. (b) Terms conditions and restrictions. (1) Within 180 days after certification (or such longer period as the Adminis trator may establish for good cause shown in writing), the Administrator will propose terms and conditions for, and restrictions on, the proposed com mercial recovery which are consistent with the provisions of the Act and this part as set forth in §§ 971.418 through 971.430. Proposed and final TCRs will be uniform in all permits, except to the extent that differing physical and envi ronmental conditions and/or mining methods require the establishment of special TCRs for the conservation of natural resources, protection of the en vironment, or the safety of life and property at sea. The Administrator will propose TCRs in writing to the ap plicant, and public notice thereof will be provided pursuant to § 971.401. The proposed TCRs will be included with the draft of the EIS on permit issuance. (2) If the Administrator does not pro pose TCRs within 180 days after certifi cation, the Administrator will notify the applicant in writing of the reasons for delay and of the approximate date on which the proposed TCRs will be completed. (c) Findings. Before issuing or trans ferring a commercial recovery permit, the Administrator must make written findings in accordance with the re quirements of § 971.403 through § 971.408. These findings will be made after con sidering all information submitted with respect to the application and proposed issuance or transfer. The Ad ministrator will make a final deter mination of issuance or transfer of a permit, and will publish a final EIS on that action, within 180 days (or such longer period of time as the Adminis trator may establish for good cause shown in writing) following the date on VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00397 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 388 15 CFR Ch. IX (1–1–21 Edition) § 971.401 which proposed TCRs and the draft EIS are published. ISSUANCE/TRANSFER, MODIFICATION/ REVISION; SUSPENSION/REVOCATION § 971.401 Proposal to issue or transfer and proposed terms, conditions and restrictions. (a) Notice and comment. The Adminis trator will publish in the FEDERAL REGISTER notice of each proposal to issue or transfer, including notice of a draft EIS, and of proposed terms and conditions for, and restrictions on, a commercial recovery permit that will be included with the draft EIS [see § 971.400(b)]. Subject to § 971.802, inter ested persons will be permitted to ex amine the materials relevant to such proposals. Interested persons and af fected States will have at least 60 days after publication of such notice to sub mit written comments to the Adminis trator. (b) Hearings. (1) The Administrator will hold the public hearing(s) required by § 971.212(b) in an appropriate loca tion and may employ such additional methods as he deems appropriate to in form interested persons about each proposal and to invite their comments thereon. A copy of the notice and draft EIS will be provided to the affected State agency. Information provided by NOAA may be used to supplement in formation provided by the applicant, however it will not affect schedules for State agency review and decisions with respect to consistency determinations as required in 15 CFR part 930, subpart D. (2) If the Administrator determines there exist one or more specific and material factual issues which require resolution by formal processes, at least one formal hearing, which may be con solidated with a hearing held by an other agency, will be held in the Dis trict of Columbia metropolitan area in accordance with the provisions of sub part I of this part. The record devel oped in any such formal hearing will be part of the basis for the Administra tor’s decisions on issuance or transfer of, and on TCRs for, the permit. § 971.402 Consultation and cooperation with Federal and State agencies. Before issuance or transfer of a com mercial recovery permit, the Adminis trator will conclude any consultations in cooperation with other Federal and State agencies which were initiated pursuant to §§ 971.211 and 971.200(g). These consultations will be held to as sure compliance with, as applicable and among other statutes, the Endan gered Species Act of 1973, as amended, the Marine Mammal Protection Act of 1972, as amended, the Fish and Wildlife Coordination Act, and the Coastal Zone Management Act of 1972, as amended. The Administrator also will consult, before any issuance, transfer, modifica tion or renewal of a permit, with any affected Regional Fishery Management Council established pursuant to section 302 of the Magnuson Fishery Conserva tion and Management Act of 1976 (16 U.S.C. 1852) if the activities undertaken pursuant to the permit could adversely affect any fishery within the Fishery Conservation Zone (now known as the Exclusive Economic Zone), or any anadromous species or Continental Shelf fishery resource subject to the exclusive management authority of the United States beyond that zone. § 971.403 Freedom of the high seas. (a) Before issuing or transferring a commercial recovery permit, the Ad ministrator must find the recovery proposed in the application will not un reasonably interfere with the exercise of the freedoms of the high seas by other nations, as recognized under gen eral principles of international law. (b) In making this finding, the Ad ministrator will recognize that com mercial recovery of hard mineral re sources of the deep seabed is a freedom of the high seas. In the exercise of this right, each permittee shall act with reasonable regard for the interests of other nations in their exercise of the freedoms of the high seas. (c)(1) In the event of a conflict be tween the commercial recovery pro gram of an applicant or permittee and a competing use of the high seas by an other nation or its nationals, the Ad ministrator, in consultation and co operation with the Department of State and other interested agencies, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00398 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 389 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.408 will enter into negotiations with that nation to resolve the conflict. To the maximum extent possible the Adminis trator will endeavor to resolve the con flict in a manner that will allow both uses to take place such that neither will unreasonably interfere with the other. (2) If both uses cannot be conducted harmoniously in the area subject to the recovery plan, the Administrator will decide whether to issue or transfer the permit. § 971.404 International obligations of the United States. Before issuing or transferring a com mercial recovery permit, the Adminis trator must find that the commercial recovery proposed in the application will not conflict with any international obligation of the United States estab lished by any treaty or international convention in force with respect to the United States. § 971.405 Breach of international peace and security involving armed conflict. Before issuing or transferring a com mercial recovery permit, the Adminis trator must find that the recovery pro posed in the application will not create a situation which may reasonably be expected to lead to a breach of inter national peace and security involving armed conflict. § 971.406 Environmental effects. Before issuing or transferring a com mercial recovery permit, the Adminis trator must find that the commercial recovery proposed in the application cannot reasonably be expected to re sult in a significant adverse environ mental effect, taking into account the analyses and information in any appli cable EIS and any TCRs associated with the permit. This finding also will be based upon the requirements in sub part F. However, as also noted in sub part F, if a determination on this ques tion cannot be made on the basis of available information, and it is found that irreparable harm will not occur during a period when an approved mon itoring program is undertaken to fur ther examine the significant adverse environmental effect issue, a permit may be granted, subject to modifica tion or suspension and, if necessary and appropriate, revocation pursuant to § 971.417(a), or subject to emergency suspension pursuant to § 971.417(h). § 971.407 Safety at sea. Before issuing or transferring a com mercial recovery permit, the Adminis trator must find that the commercial recovery proposed in the application will not pose an inordiante threat to the safety of life and property at sea. This finding will be based on the re quirements in § 971.205 and subpart G. § 971.408 Processing outside the United States. (a) Before issuing or transferring a commercial recovery permit which au thorizes processing outside the U.S., the Administrator must find, after the opportunity for an agency hearing re quired by § 971.212(b), that: (1) The processing of the quantity concerned of hard mineral resource at a place other than within the United States is necessary for the economic viability of the commercial recovery activities of the permittee; and (2) Satisfactory assurances have been given by the permittee that such re sources, after processing, to the extent of the permittee’s ownership therein, will be returned to the United States for domestic use, if the Administrator so requires after determining that the national interest necessitates such re turn. (b) At or after permit issuance the Administrator may determine, or re vise a prior determination, that the na tional interest necessitates return to the U.S. of a specified amount of hard mineral resource recovered pursuant to the permit and authorized to be proc essed outside the United States. Con siderations in making this determina tion may include: (1) The national interest in an ade quate supply of minerals; (2) The foreign policy interests of the United States; and (3) The multi-national character of deep seabed mining operations. (c) As appropriate, TCRs will incor porate provisions to implement the de cision of the Administrator made pur suant to this section. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00399 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 390 15 CFR Ch. IX (1–1–21 Edition) § 971.409 (d) Environmental considerations of the proposed activity will be addressed in accordance with § 971.606(c). § 971.409 Denial of issuance or trans fer. (a) The Administrator may deny issuance or transfer of a permit if he finds that the applicant or the pro posed commercial recovery activities do not meet the rquirements of this part for the issuance or transfer of a permit. (b) When the Administrator proposes to deny issuance or transfer, he will send to the applicant, via certified mail, return receipt requested, and publish in the FEDERAL REGISTER, writ ten notice of his intention to deny issuance or transfer. The notice will in clude: (1) The basis upon which the Admin istrator proposes to deny issuance or transfer; and (2) If the basis for the proposed denial is a deficiency which the Adminis trator believes the applicant can cor rect: (i) The action believed necessary to correct the deficiency; and (ii) The time within which any cor rectable deficiency must be corrected (not to exceed 180 days except as speci fied by the Administrator for good cause). (c) The Administrator will deny issuance or transfer: (1) On the 30th day after the date the notice is received by the applicant under paragraph (b) of this section, un less before the 30th day the applicant files with the Administrator a written request for an administrative review of the proposed denial; or (2) On the last day of the period es tablished under paragraph (b)(2)(ii) in which the applicant must correct a de ficiency, if the deficiency has not been corrected before that day and an ad ministrative review requested pursuant to paragraph (c)(1) is not pending or in progress. (d) If a timely request for administra tive review of the proposed denial is made by the applicant under paragraph (c)(1) of this section, the Administrator will promptly begin a formal hearing in accordance with subpart I. If the proposed denial is the result of a cor rectable deficiency, the administrative review will proceed concurrently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently. (e) If the Administrator denies issuance or transfer, the Administrator will send to the applicant written no tice of final denial, including the rea sons therefor. (f) Any final determination by the Administrator granting or denying issuance or transfer of a permit is sub ject to judicial review as provided in chapter 7 of title 5, United States Code. § 971.410 Notice of issuance or trans fer. If the Administrator finds that the requirements of this subpart have been met, he will issue or transfer the per mit along with the appropriate TCRs. Notice of issuance or transfer will be made in writing to the applicant and published in the FEDERAL REGISTER. § 971.411 Objections to terms, condi tions and restrictions. (a) The permittee may file a notice of objection to any TCR in the permit. The permittee may object on the grounds that any TCR is inconsistent with the Act or this part, or on any other grounds which may be raised under applicable provisions of law. If the permittee does not file notice of an objection within the 60-day period im mediately following the permittee’s re ceipt of the notice of issuance or trans fer under § 971.410, the permittee will be deemed conclusively to have accepted the TCRs in the permit. (b) Any notice of objection filed under paragraph (a) of this section must be in writing, must indicate the legal or factual basis for the objection, and must provide information relevant to any underlying factual issues deemed by the permittee as necessary to the Administrator’s decision upon the objection. (c) Within 90 days after receipt of the notice of objection, the Administrator will act on the objection and publish in the FEDERAL REGISTER, as well as pro vide to the permittee, written notice of the decision. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00400 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 391 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.413 (d) If, after the Administrator takes final action on an objection, the per mittee demonstrates that a dispute re mains on a material issue of fact, the Administrator will provide for a formal hearing which will proceed in accord ance with Subpart I of this part. (e) Any final determination by the Administrator on an objection to TCRs in a permit, after the formal hearing provided in paragraph (d), is subject to judicial review as provided in chapter 7 of title 5, United States Code. § 971.412 Changes in permits and per mit terms, conditions, and restric tions. (a) During the duration of a commer cial recovery permit, changes in the permit or its associated commercial re covery plan may be initiated by either the permittee or the Administrator. (b) A significant change is one which, if approved, would result in: (1) An increase of more than five per cent in the size of the commercial re covery area; or (2) A change in the location of five percent or more of the commercial re covery area. (c) A major change is one affecting one or more of: (1) The bases for certifying the origi nal application pursuant to § 971.301; (2) The bases for issuing or transfer ring the permit pursuant to § 971.403 through § 971.408; (3) The TCRs issued as part of the permit pursuant to §§ 971.418 through 971.430; or (4) The ownership of a permittee (or the membership of the joint venture, partnership or other entity on whose behalf the permit was issued); and which change is sufficiently broad in scope to raise a question as to: (i) The permittee’s ability to meet the requirements of the sections cited in paragraphs (c)(1) and (2) of this sec tion; (ii) The sufficiency of the TCRs to ac complish their intended purpose; or (iii) The antitrust characteristic of the permittee. (d) A minor change is one that is clearly more modest in scope than the changes described in paragraph (b) or (c) of this section. (e) A permittee may not implement a significant or major change, as defined in paragraphs (b) and (c) of this sec tion, until an application for revision of the permit or its associated commer cial recovery plan has been approved by the Administrator. However, ad vance notice of proposed major changes in a permittee’s corporate membership or legal structure is not required, un less practicable, but the Administrator expects prompt notification of the oc currence of such a major change. (f) A proposed significant or major change, as defined in paragraphs (b) and (c) of this section, may trigger the need for additional review, under the Federal consistency provisions of the Coastal Zone Management Act of 1972, as amended. § 971.413 Revision of a permit. (a) During the term of a commercial recovery permit, the permittee may submit to the Administrator an appli cation for a revision of the permit or the commercial recovery plan associ ated with it to accommodate changes desired by the permittee. In some cases it may be advisable to recognize at the time of filing the original permit appli cation that, although the essential in formation for issuing or transferring a permit as specified in § 971.201 through § 971.209 must be included in such appli cation, some details may have to be provided in the future in the form of a revision. In such instances, the Admin istrator may issue or transfer a permit which would authorize commercial re covery activities and plans only to the extent described in the application. (b) An application by a permittee for a revision of a permit or its associated commercial recovery plan involving a significant change, as defined in § 971.412(b), must be followed by the full application procedures in this part, in cluding a public hearing. (c) An application by a permittee for a revision of a permit or its associated commercial recovery plan involving a major change, as defined in § 971.412(c) (See also § 971.425 of this part), will be acted on after notice thereof is pub lished by the Administrator in the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00401 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 392 15 CFR Ch. IX (1–1–21 Edition) § 971.414 FEDERAL REGISTER with a 60-day oppor tunity for public comment and con sultation with appropriate Federal agencies. (d)(1) The Administrator will approve a revision if the Administrator finds in writing that the revision will comply with the requirements of the Act and this part. (2) Notice of the Administrator’s de cision on the proposed revision will be provided to the permittee in writing and published in the FEDERAL REG ISTER. (e) A permittee may notify the Ad ministrator of minor changes, as de fined in § 971.412(d), subsequently in the annual report (See § 971.801 of this part). (f) If the relative importance of the change is unclear to the permittee, the Administrator should be notified in ad vance so that the Administrator can decide whether a revision in accord ance with § 971.412(e) is required. § 971.414 Modification of permit terms, conditions, and restrictions. (a) After issuance or transfer of any permit, the Administrator, after con sultation with appropriate Federal agencies and the permittee, may mod ify the TCRs in a permit for the fol lowing purposes: (1) To avoid unreasonable inter ference with the interests of other na tions in their exercise of the freedoms of the high seas, as recognized under general principles of international law. This determination will take into ac count the considerations listed in § 971.403; (2) If relevant data and information (including, but not limited to, data re sulting from activities under a permit) indicate that modification is required to protect the quality of the environ ment or to promote the safety of life and property at sea; (3) To avoid a conflict with any inter national obligation of the United States, established by any treaty or convention in force with respect to the United States, as determined in writ ing by the President; or (4) To avoid any situation which may reasonably be expected to lead to a breach of international peace and secu rity involving armed conflict, as deter mined in writing by the President. (b) A proposal by the Administrator to modify the TCRs in a permit is sig nificant and must be followed by the full application procedures in this part, including a public hearing, if it would result in either of the changes identi fied in § 971.412(b). (c) All proposed modifications other than those described in paragraph (b) of this section will be acted on after the Administrator provides: (1) Written notice of the proposal to the permittee; and (2) Publication of this proposal in the FEDERAL REGISTER with a 60-day oppor tunity for comment. (d)(1) The Administrator will effect a modification of the TCRs if the Admin istrator finds in writing that the pro posed modification will comply with the requirements of the Act and this part. (2) Upon adopting a TCR modifica tion, the Administrator shall issue to the permittee an amended permit in cluding the modified TCRs, and shall publish notice of issuance in the FED ERAL REGISTER. (3) The procedures for objection to modification of the TCRs are the same as those for objection to a TCR under § 971.411 of this part. § 971.415 Duration of a permit. (a) Unless suspended or revoked pur suant to §§ 971.406 and 971.417, each com mercial recovery permit will be issued for a period of 20 years and for so long thereafter as hard mineral resources are recovered annually in commercial quantities from the area listed in the permit. (b) If the permittee has substantially complied with the permit and its asso ciated recovery plan and requests an extension of the permit, the Adminis trator will extend the permit with ap propriate TCRs, consistent with the Act, for so long thereafter as hard min eral resources are recovered annually in commercial quantities from the area to which the recovery plan associated with the permit applies. The Adminis trator may make allowance for devi ation from the recovery plan for good cause, such as significantly changed market conditions. However, a request VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00402 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 393 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.417 for extension must be accompanied by an amended recovery plan to govern the activities by the permittee during the extended period. (c) Successive extensions may be re quested, and will be granted by the Ad ministrator, based on the criteria spec ified in paragraphs (a) and (b). § 971.416 Approval of permit transfers. (a) The Administrator may transfer a permit after a written request by the permittee. After a permittee submits a transfer request to the Administrator, the proposed transferee will be deemed an applicant for a commercial recovery permit, and will be subject to the re quirements and procedures of this part. (b) The Administrator will transfer a permit if the proposed transferee is a United States citizen and proposed commercial recovery activities meet the requirements of the Act and this part, and if the proposed transfer is in the public interest. The Administrator will presume that the transfer is in the public interest if it meets the require ments of the Act and this part. In case of mere change in the form or owner ship of a permittee, the Administrator may waive relevant determinations for requirements for which no changes have occurred since the preceding ap plication. § 971.417 Suspension or modification of activities; suspension or revoca tion of permits. (a) The Administrator may: (1) In addition to, or in lieu of, the imposition of any civil penalty under subpart J of this part, or in addition to the imposition of any fine under sub part J, suspend or revoke any permit issued under this part, or suspend or modify any particular activities under such a permit, if the permittee sub stantially fails to comply with any pro vision of the Act, this part, or any term, condition or restriction of the permit; and (2) Suspend or modify particular ac tivities under any permit, if the Presi dent determines that such suspension or modification is necessary: (i) To avoid any conflict with any international obligation of the United States established by any treaty or convention in force with respect to the United States; or (ii) To avoid any situtation which may reasonably be expected to lead to a breach of international peace and se curity involving armed conflict. (b) Any action taken by the Adminis trator in accordance with paragraph (a)(1) will proceed pursuant to the pro cedures in § 971.1003. Any action taken in accordance with paragraph (a)(2) will proceed pursuant to paragraphs (c) through (i) of this section, other than paragraph (h)(2). (c) Prior to taking any action speci fied in paragraph (a)(2) the Adminis trator will publish in the FEDERAL REGISTER, and send to the permittee, written notice of the proposed action. The notice will include: (1) The basis of the proposed action; and (2) If the basis for the proposed ac tion is a deficiency which the Adminis trator believes the permittee can cor rect: (i) The action necessary to correct the deficiency; and (ii) The time within which any cor rectable deficiency must be corrected (not to exceed 180 days except as speci fied by the Administrator for good cause). (d) The Administrator will take the proposed action: (1) On the 30th day after the date no tice is sent to the permittee, under paragraph (c) of this section, unless be fore the 30th day the permittee files with the Administrator a written re quest for an administrative review of the proposed action; or (2) On the last day of the period es tablished under paragraph (c)(2)(ii) in which the permittee must correct the deficiency, if such deficiency has not been corrected before that day and an administrative review requested pursu ant to paragraph (d)(1) is not pending or in progress. (e) If a timely request for administra tive review of the proposed denial is made by the permittee under para graph (d)(1) of this section, the Admin istrator will promptly begin a formal hearing in accordance with subpart I of this part. If the proposed denial is the result of a correctable deficiency, the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00403 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 394 15 CFR Ch. IX (1–1–21 Edition) § 971.418 administrative review will proceed con currently with any attempt to correct the deficiency, unless the parties agree otherwise or the administrative law judge orders differently. (f) The Administrator will serve on the permittee, and publish in the FED ERAL REGISTER, written notice of the action taken including the reasons therefor. (g) Any final determination by the Administrator to take the proposed ac tion is subject to judicial review as provided in chapter 7 of title 5, United States Code. (h) The issuance of any notice of pro posed action under this section will not affect the continuation of commercial recovery activities by a permittee. The provisions of paragraphs (c), (d), (e) and the first sentence of this paragraph (h) of this section will not apply when: (1) The President determines by Ex ecutive Order that an immediate sus pension or modification of particular activities under that permit, is nec essary for the reasons set forth in para graph (a)(2); or (2) The Administrator determines that immediate suspension of such a permit or immediate suspension or modification of particular activities under a permit, is necessary to prevent a significant adverse environmental ef fect or to preserve the safety of life or property at sea, and the Administrator issues an emergency order in accord ance with § 971.1003(d)(4). (i) The Administrator will imme diately rescind the suspension order as soon as he has determined that the cause for suspension has been removed. TERMS, CONDITIONS AND RESTRICTIONS § 971.418 Diligence requirements. The TCRs in each commercial recov ery permit must include provisions to assure diligent development consistent with § 971.503, including a requirement that recovery at commercial scale be underway within ten years from the date of permit issuance unless that deadline is extended by the Adminis trator for good cause. § 971.419 Environmental protection re quirements. (a) Each commercial recovery permit must contain TCRs established by the Administrator pursuant to subpart F which prescribe actions the permittee must take in the conduct of commer cial recovery activities to assure pro tection of the environment. Factors to be taken into account regarding the potential for significant adverse envi ronmental effects are discussed in §§ 971.601 and 971.602. (b) Before establishing the TCRs per taining to environmental protection, the Administrator will consult with the Administrator of the Environ mental Protection Agency, the Sec retary of State and the Secretary of the department in which the Coast Guard is operating. The Administrator also will take into account and give due consideration to formal comments received from the public, including those from the State agency, and to the information contained in the final site-specific EIS prepared with respect to the proposed permit. § 971.420 Resource conservation re quirements. For the purpose of conservation of natural resources, each permit issued under this part will contain, as needed, TCRs which have due regard for the prevention of waste and the future op portunity for the commercial recovery of the unrecovered balance of the hard mineral resources in the recovery area. The Administrator will establish these requirements pursuant to § 971.502. § 971.421 Freedom of the high seas re quirements. Each permit issued under this part must include appropriate restrictions to ensure that commercial recovery ac tivities do not unreasonably interfere with the interests of other nations in their exercise of the freedoms of the high seas, as recognized under general principles of international law. The Ad ministrator will consider the factors in § 971.403 in establishing these restric tions. § 971.422 Safety at sea requirements. The Secretary of the department in which the Coast Guard is operating, in VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00404 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 395 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.429 consultation with the Administrator, will require in any permit issued under this part, in conformity with principles of international law, that vessels docu mented under the laws of the United States and used in activities author ized under the permit comply with con ditions regarding design, construction, alteration, repair, equipment, oper ation, manning and maintenance relat ing to vessel and crew safety and the promotion of safety of life and property at sea. These requirements will be es tablished with reference to subpart G of this part. § 971.423 Best available technology. The Administrator will require in all activities under new permits, and wherever practicable in activities under existing permits, the use of the best available technologies for the pro tection of safety, health, and the envi ronment wherever such activities would have a significant adverse effect on safety, health, or the environment, (see §§ 971.203(b)(3), 971.602(f), and 971.604(a)), except where the Adminis trator determines that the incremental benefits are clearly insufficient to jus tify the incremental costs of using such technologies. § 971.424 Monitoring requirements. Each commercial recovery permit will require the permittee: (a) To allow the Administrator to place appropriate Federal officers or employees as observers aboard vessels used by the permittee in commercial recovery activities to: (1) Monitor activities at times, and to the extent, the Administrator deems reasonable and necessary to assess the effectiveness of the TCRs of the permit; and (2) Report to the Administrator whenever those officers or employees have reason to believe there is a failure to comply with the TCRs; (b) To cooperate with Federal officers and employees in the performance of monitoring functions; and (c) To monitor the environmental ef fects of the commercial recovery ac tivities in accordance with a moni toring plan approved and issued by NOAA as permit TCRs and to submit data and other information as nec essary to permit evaluation of environ mental effects. The environmental monitoring plan and reporting will re spond to the concerns and procedures discussed in subpart F. § 971.425 Changes of circumstances. Each permit must require the per mittee to advise the Administrator of any changes of circumstances which might constitute a revision which would be a major change under § 971.412(c). Changes in ownership, fi nancing, and use conflicts are exam ples, as are technology or methodology changes including those which might result in significant adverse environ mental effects. § 971.426 Annual report and records maintenance. Each permit will require the per mittee to submit an annual report and maintain information in accordance with § 971.801 including compliance with the commercial recovery plan and the quantities of hard mineral re sources recovered and the disposition of such resources. § 971.427 Processing outside the United States. If appropriate TCRs will incorporate provisions to implement the decision of the Administrator regarding the return of resources processed outside the United States, in accordance with § 971.408. § 971.428 Other necessary permits. Each permit will provide that secur ing the deep seabed mining permit for activities described in the recovery plan and accompanying application does not eliminate the need to secure all other necessary Federal, State, and local permits. § 971.429 Special terms, conditions and restrictions. Although the general criteria and standards to be used in establishing TCRs for a permit are set forth in this part, as referenced in §§ 971.418 through 971.428, the Administrator may impose special TCRs for the conservation of natural resources, protection of the en vironment, or the safety of life and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00405 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 396 15 CFR Ch. IX (1–1–21 Edition) § 971.430 property at sea when required by dif fering physical and environmental con ditions. § 971.430 Other Federal requirements. Pursuant to § 971.211, another Federal agency, or a State acting under Fed eral authority, upon review of a com mercial recovery permit application submitted under this part, may propose that certain TCRs be added to the per mit, to assure compliance with any law or regulation within that agency’s area of responsibility. The Administrator will include appropriate TCRs in a per mit. Subpart E—Resource Development § 971.500 General. Several provisions in the Act relate to appropriate mining techniques or mining efficiency. These raise what could be characterized as resource de velopment issues. In particular, section 103(a)(2)(C) requires a resource assess ment to be provided with the recovery plan. Section 103(a)(2)(D) of the Act provides that the applicant will select the size and location of the area of a recovery plan, which will be approved unless the Administrator finds that the area is not a ‘‘logical mining unit’’ or the commercial recovery activities in the proposed site would result in a sig nificant adverse environmental effect which cannot be avoided by the imposi tion of reasonable restrictions. Also, pursuant to section 108 of the Act, the applicant’s recovery plan and the TCRs of each permit must be designed to en sure diligent development. In addition, for the purpose of conservation of nat ural resources, section 110 of the Act provides that each permit is to con tain, as needed, terms, conditions, and restrictions which have due regard for the prevention of waste and the future opportunity for the commercial recov ery of the unrecovered balance of the resources. § 971.501 Resource assessment, recov ery plan, and logical mining unit. (a) The applicant must submit with the application a resource assessment to provide a basis for assessing the area applied for. This assessment must in clude a discussion of mineable and unmineable areas, taking into account nodule grade, nodule concentration, and other factors such as seafloor to pography. These areas may be delin eated graphically. The resources in the area must be described in relation to the applicant’s production require ments, operating period, and recovery efficiency in order to justify the area applied for. (b) The applicant shall select the size and location of the area of the recovery plan, which area shall be approved un less the Administrator finds that, among other considerations (see § 971.301(a)), the area is not a logical mining unit. In the case of a commer cial recovery permit, a logical mining unit is an area of the deep seabed: (1) In which hard mineral resources can be recovered in sufficient quan tities to satisfy the permittee’s esti mated production requirements over the initial 20-year term of the permit in an efficient, economical, and orderly manner with due regard for conserva tion and protection of the environ ment, taking into consideration the re source data, other relevant physical and environmental characteristics, and the state of the technology of the ap plicant set out in the recovery plan; (2) Which is not larger than nec essary to satisfy the permittee’s esti mated production requirements over the initial 20-year term of the permit; and (3) In relation to which the permit tee’s estimated production require ments are not found by the Adminis trator to be unreasonable. (c) Approval by the Administrator of a proposed logical mining unit will be based on a case-by-case review of each application. The area need not consist of contiguous segments, as long as each segment would be efficiently mineable and the total proposed area constitutes a logical mining unit. (d) In describing the area, the appli cant must present the geodetic coordi nates of the points defining the bound aries referred to the World Geodetic System (WGS) Datum. A boundary be tween points must be a geodesic. If grid coordinates are desired, the Universal Transverse Mercator Grid System must be used. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00406 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 397 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.503 § 971.502 Conservation of resources. (a) If the Administrator establishes terms, conditions and restrictions re lating to conservation of resources, he will employ a balancing process in the consideration of the state of the tech nology being developed, the processing system utilized and the value and po tential use of any waste, the environ mental effects of the recovery activi ties, economic and resource data, and the national need for hard mineral re sources. (b) The application must set forth how the applicant’s proposed method of collecting nodules will conserve re sources by providing for the future op portunity for commercial recovery of the unrecovered balance of the re sources in the proposed permit area. Although preliminary and subject to change, the discussion must include a plan for the chronology of areas to be mined. This is needed in order for the Administrator to determine if selective mining, expected to be carried out in the early years to improve cash flow, is part of a long range recovery plan. (c) If the applicant proposes a refin ing process that does not include the use of manganese in a productive man ner, it may not render the manganese unavailable to future users by dis persing the tailings over a vast area unless such a scheme is necessary for the financial practicability of the com mercial recovery activities of the ap plicant. A permittee must advise the Administrator in the annual report of the location, composition and quantity of manganese in tailings which remain after processing. Should national needs for manganese develop during the dura tion of a permit, e.g., in case of na tional emergency, the Administrator may cancel the exception granted in volving dispersion of tailings. Appli cants seeking an exception would be re quired to demonstrate how and in what time frame their commercial recovery processing activities could be modified to respond to new national needs. § 971.503 Diligent commercial recov ery. (a) Each permittee must pursue dili gently the activities described in its approved commercial recovery plan. This requirement applies to the full scope of the plan, including environ mental safeguards and monitoring sys tems. Permit TCRs will require peri odic reasonable expenditures for com mercial recovery by the permittee, taking into account the size of the area of the deep seabed to which the recov ery plan applies and the amount of funds estimated by the Administrator to be required to initiate commercial recovery of hard mineral resources within the time limit established by the Administrator. However, required expenditures will not be established at a level which would discourage com mercial recovery or operational effi ciency. (b) To meet the diligence require ment, the applicant must propose to the Administrator an estimated sched ule of activities and expenditures pur suant to § 971.203(b)(2). The schedule must show, and the Administrator must be able to make a reasonable de termination, that the applicant can reasonably develop the resources in the permit area within the term of the per mit. There must be a reasonable rela tionship between the size of the recov ery area and the financial and techno logical resources reflected in the appli cation. The permittee must initiate the recovery of nodules in commerical quantities within ten years of the issuance of the permit unless this dead line is extended by the Administrator for good cause. (c) Once commercial recovery is achieved, the permittee must, within reasonable limits and taking into con sideration all relevant factors, main tain commercial recovery throughout the period of the permit. However, the Administrator will, for good cause shown, authorize temporary suspension of commercial recovery activities. The duration of any suspension will not ex ceed one year, unless the Adminis trator determines that conditions jus tify an extension of the suspension. (d) Ultimately, the diligence require ment will involve a retrospective de termination by the Administrator, based on the permittee’s reasonable conformance to the approved recovery plan. This determination, however, will take into account the need for some de gree of flexibility in a recovery plan. It also will include consideration of the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00407 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 398 15 CFR Ch. IX (1–1–21 Edition) § 971.600 needs and stage of development of the permittee based on the approved recov ery plan; legitimate periods of time when there is no or very low expendi ture; and allowance for a certain de gree of flexibility for changes encoun tered by the permittee in market con ditions or other factors. (e) The permittee must submit a re port annually reflecting its conform ance to the schedule of activities and expenditures contained in the permit and its associated recovery plan. In case of any changes requiring a revi sion to an approved permit and recov ery plan, the permittee must advise the Administrator in accordance with § 971.413. Subpart F—Environmental Effects § 971.600 General. The Act contains several provisions which relate to environmental protec tion. For example, section 105(a)(4) re quires that, before the Administrator may issue a commercial recovery per mit, he must find that the commercial recovery proposed in the application cannot reasonably be expected to re sult in a significant adverse environ mental effect. In addition, each permit issued must contain TCRs which pre scribe actions the permittee must take in the conduct of commercial recovery activities to assure protection of the environment (section 109(b)). The Act also provides for modification by the Administrator of any TCR if relevant data and information indicate that modification is required to protect the quality of the environment (section 105(c)(1)(B)). The Administrator also may order an immediate suspension or modification of activities (section 106(c)), or require use of best available technologies (section 109(b)), to prevent a significant adverse environmental ef fect. Furthermore, each permit issued under the Act must require the per mittee to monitor the environmental effects of commercial recovery activi ties in accordance with guidelines issued by the Administrator, and to submit information the Administrator finds necessary and appropriate to as sess environmental effects and to de velop and evaluate possible methods of mitigating adverse effects (section 114). § 971.601 Environmental requirements. Before issuing a permit for the com mercial recovery of deep seabed hard mineral resources, the Administrator must find that: (a) The issuance of a permit cannot reasonably be expected to result in a significant adverse environmental ef fect, or, if there is insufficient informa tion to make that determination, that no irreparable harm will result during a period when monitoring of commerical recovery is undertaken to gather sufficient information in order to determine the potential for or occur rence of any significant adverse envi ronmental effect. In examining this issue, NOAA will give consideration to the following Ocean Discharge Criteria of the Clean Water Act (40 CFR part 125, subpart M), as they may pertain to discharges and other environmental perturbations related to the commer cial recovery operations: (1) The quantities, composition and potential for bioaccumulation or per sistence of the pollutants to be dis charged; (2) The potential transport of such pollutants by biological, physical or chemical processes; (3) The composition and vulnerability of the biological communities which may be exposed to such pollutants in cluding the presence of unique species or communities of species, the presence of species identified as endangered or threatened pursuant to the Endangered Species Act, or the presence of those species critical to the structure or function of the ecosystem such as those important for the food chain; (4) The importance of the receiving water area to the surrounding biologi cal community, including the presence of spawning sites, nursery/forage areas, migratory pathways, or areas nec essary for other functions or critical stages in the life cycle of an organism; (5) The existence of special aquatic sites including but not limited to ma rine sanctuaries and refuges, parks, na tional and historic monuments, na tional seashores, wilderness areas and coral reefs; (6) The potential impacts on human health through direct and indirect pathways; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00408 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 399 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.603 (7) Existing or potential recreational and commercial fishing, including finfishing and shellfishing; (8) Any applicable requirements of an approved Coastal Zone Management plan; (9) Such other factors relating to the effects of the discharge as may be ap propriate; (10) Marine water quality criteria de veloped pursuant to section 304(a)(1) of the Clean Water Act; and (b) The applicant has an approved monitoring plan (§ 971.603) and the re sources and other capabilities to imple ment it. § 971.602 Significant adverse environ mental effects. (a) Determination of significant adverse environmental effects. The Adminis trator will determine the potential for or the occurrence of any significant ad verse environmental effect or impact (for the purposes of sections 103(a)(2)(D), 105(a)(4), 106(c) and 109(b) (second sentence) of the Act), on a case-by-case basis. (b) Basis for determination. Determina tions will be based upon the best infor mation available, including relevant environmental impact statements, NOAA-collected data, monitoring re sults, and other data provided by the applicant or permittee, as well as con sideration of the criteria in § 971.601(a). (c) Related considerations. In making a determination the Administrator may take into account any TCRs or other mitigation measures. (d) Activities with no significant ad verse environmental effect. NOAA be lieves that exploration-type activities, as listed in the license regulations (15 CFR 970.701), require no further envi ronmental assessment. (e) Activities with potential for signifi cant adverse environmental effects. NOAA research has identified at-sea testing of recovery equipment, the re covery of manganese nodules in com mercial quantities from the deep sea bed, and the construction and oper ation of commercial-scale processing facilities as activities which may have some potential for significant adverse envirnomental effects. (f) Related terms, conditions and restric tions. Permits will be issued with TCRs containing environmental require ments with respect to protection (pur suant to § 971.419), mitigation (pursuant to § 971.419), or best available tech nology requirements (pursuant to § 971.423), as appropriate, and moni toring requirements (pursuant to § 971.424) to acquire more information on the environmental effects of deep seabed mining. § 971.603 At-sea monitoring. (a) An applicant must submit with its application a monitoring plan de signed to enable the Administrator to assess environmental impacts and to develop and evaluate possible methods of mitigating adverse environmental effects, to validate assessments made in the EIS, and to assure compliance with the environmental protection re quirements of this part. (b) The monitoring plan shall include a characterization of the proposed min ing system in terms of collector con tact, benthic discharge and surface dis charge. (c) The monitoring plan shall include determination of (1) the spatial and temporal characteristics of the mining ship discharges; (2) the spatial extent and severity of the benthic impact, in cluding recovery rate and pattern of benthic recolonization; and (3) any sec ondary effects that result from the im pact of the mining collector and benthic plume. (d) The monitoring of benthic impact shall involve the study of two types of areas, each selected by the permittee in consultation with NOAA, which areas shall be representative of the en vironmental characteristics of the per mittee’s site: (1) An impact reference area, located in a portion of a permit area ten tatively scheduled to be mined early in a commercial recovery plan; and (2) An interim preservational ref erence area, located in a portion of a permit area tentatively determined: to be non-mineable, not to be scheduled for mining during the commercial re covery plan, or to be scheduled for min ing late in the plan. Reference areas may be selected provi sionally prior to application for a com mercial recovery permit. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00409 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 400 15 CFR Ch. IX (1–1–21 Edition) § 971.604 (e) The following specific environ mental parameters must be proposed for examination in the applicant’s monitoring plan: (1) Discharges— (i) Salinity, temperature, density. (ii) Suspended particulates con centration and density. (iii) Particulate and dissolved nutri ents and metals. (iv) Size, configuration, and veloci ties of discharge. (2) Upper water column— (i) Nutrients. (ii) Endangered species (observa tions). (iii) Salinity, temperature, density. (iv) Currents and direct current shear. (v) Vertical distribution of light. (vi) Suspended particulate material advection and diffusion. (vii) In-situ settling velocities of sus pended particulates. (viii) Zooplankton and trace metals uptake. (ix) Fish larvae. (x) Behavior of biota, including com mercially and recreationally valuable fish. (3) Lower water column and seafloor— (i) Currents. (ii) Suspended particulate material advection and diffusion. (iii) In-situ settling velocities of sus pended particulates. (iv) Benthic scraping and blanketing, and their impacts and recovery. (f) The monitoring plan shall include provision for monitoring those areas impacted by the permittee’s mining ac tivities, even if such areas fall outside its minesite, where the proposed activi ties have the potential to cause signifi cant adverse environmental effect or irreparable harm in the outside area. (g) After the Administrator’s ap proval of the monitoring plan, this plan will become a permit TCR. The monitoring plan TCR will include, to the maximum extent practicable, iden tification of those activities or events that could cause suspension or modi fication due to environmental effects under § 971.417, or permit revocation in the event that these effects cannot be adequately mitigated. The TCR also will authorize refinement of the moni toring plan prior to testing and com mercial-scale recovery, and at other appropriate times, if refinement is nec essary to reflect accurately proposed operations or to incorporate recent re search or monitoring results. (h) If test mining is proposed, the ap plicant shall include in the monitoring plan a monitoring plan for the test(s) as well as a strategy for using the re sult to monitor more effectively com mercial-scale recovery. This moni toring shall address concerns expressed in the PEIS and in the permit EIS. (i) The monitoring plan shall include a sampling strategy that assures: that it is based on sound statistical meth ods, that equipment and methods be scientifically accepted, that the per sonnel who are planning, collecting and analyzing data be scientifically well qualified, and that the resultant data be submitted to the Administrator in accordance with formats of the Na tional Oceanographic Data Center and other formats as may be specified by the Administrator. (j) Pursuant to section 114(1) of the Act, the Administrator intends to place observers onboard mining vessels, not only to ensure that permit TCRs are followed, but also to evaluate the effectiveness of monitoring strategies, both in terms of protecting the envi ronment and in being cost-effective (See § 971.1005), and if necessary, to de velop potential mitigation measures. If modification of permit TCRs or regula tions is required to protect the quality of the environment, the Administrator may modify TCRs pursuant to § 971.414, or the regulations pursuant to § 971.804. § 971.604 Best available technologies (BAT) and mitigation. (a) The Administrator shall require in all activities under new permits, and wherever practicable in activities under existing permits, the use of the best available technologies for the pro tection of safety, health, and the envi ronment wherever such activities would have a significant adverse effect on safety, health, or the environment, except where the Administrator deter mines that the incremental benefits are clearly insufficient to justify the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00410 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 401 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.606 incremental costs of using such tech nologies. Because of the embryonic na ture of the industry, NOAA is unable either to specify particular equipment or procedures comprising BAT or to de fine performance standards. Until such experience exists, the applicant shall submit such information as is nec essary to indicate, as required above, the use of BAT, the alternatives con sidered to the specific equipment or procedures proposed, and the rationale as to why one alternative technology was selected in place of another. This analysis shall include a discussion of the relative costs and benefits of the technologies considered. (b) NOAA is not specifying particular mitigation methodologies or tech niques at this time (such as requiring the sub-surface release of mining vessel discharges), but expects applicants and permittees to develop and carry out their operations, to the extent possible, to minimize adverse environmental ef fects and to be able to demonstrate ef forts to that end. The applicant must submit a plan describing how he would mitigate a problem, if it were caused by the surface release of mining vessel discharges, including a plan for the monitoring of any discharges. Based upon monitoring results, NOAA may find it necessary in the future to speci fy particular procedures for mini mizing adverse environmental effects. These procedures would be incor porated into permit TCRs. (c) NOAA will require the permittee to report, prior to implementation, any proposed technological or operational changes that will increase or have un known environmental effects. Changes in composition, concentration or size distribution of suspended particulates discharged from the mining vessel, water depth of vessel discharges, depth of cut in the seafloor of the mining col lector, and direction or amount of sedi ment discharged at the seafloor are factors of concern to NOAA. In report ing any such change, the permittee shall submit information to indicate the use of BAT, alternatives consid ered, and rationale for selecting one technology in place of another, in a manner comparable to and to the ex tent required in paragraph (a) of this section. If proposed changes have a high potential for increasing adverse environmental effects, the Adminis trator may disapprove or require modi fication of the changes. § 971.605 Stable Reference Areas. [Re served] § 971.606 Onshore information. (a) To assist the Administrator in complying with NEPA requirements and to enable NOAA to function as lead agency in preparing permit site-spe cific environmental impact statements (EISs) and facilitating the preparation and processing of other environmental documents and permits, the applica tions must include the following infor mation: (1) The location and affected environ ment of port, transport, processing and waste disposal facilities and associated facilities (e.g., maps, land use and lay out); (2) A description of the environ mental consequences and socio-eco nomic effects of construction and oper ation of the facilities, including waste characteristics and toxicity; (3) Any mitigating measures that may be proposed; (4) Certification of consistency with the federally approved State coastal management program, where applica ble, and evidence of the status of com pliance with other State or local re quirements relating to protection of the environment; and (5) Alternative sites and technologies considered by the applicant and the considerations which eliminate their selection. (b) The applicant must consult with NOAA as early as possible concerning the information to be submitted to NOAA to prepare an adequate environ mental impact statement. The appli cant is encouraged to consult with po tentially affected States as early as is practicable [see also §§ 971.200(g) and 971.213]. (c) The requirements of paragraphs (a)(1)–(3) and (5) of this section also apply if approval of processing outside the United States is requested by the applicant, in accordance with Execu tive Order 12114 which requires the en vironmental review of major Federal actions abroad. Information detailing VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00411 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 402 15 CFR Ch. IX (1–1–21 Edition) § 971.700 the socio-economic impacts of foreign processing activities is not required. Subpart G—Safety of Life and Property at Sea § 971.700 General. The Act contains several require ments that relate to assuring the safe ty of life and property at sea. For ex ample, before the Administrator may issue a permit, he must find that the proposed recovery will not pose an in ordinate threat to the safety of life and property at sea (section 105(a)(5)). The Coast Guard, in consultation with NOAA, must require in any permit issued under the Act, in conformity with principles of international law, that vessels documented in the United States and used in activities author ized under the permit comply with con ditions regarding the design, construc tion, alteration, repair, equipment, op eration, manning and maintenance re lating to vessel and crew safety and the safety of life and property at sea (sec tion 112(a)). The Administrator may impose or modify TCRs for a permit if required to promote the safety of life and property at sea (section 105(c)(1)(B)). § 971.701 Criteria for safety of life and property at sea. Response to the safety at sea require ments in essence will involve vessel in spection requirements, as identified by present laws and regulations. The pri mary inspection statutes pertaining to United States flag vessels are: 46 App. U.S.C. 86 (Loadlines) and 46 U.S.C. 3301 (Inspection of Seagoing Barges, Sea going Motor Vessels, and Freight Ves sels). United States flag vessels will be required to meet all applicable regu latory requirements, including the re quirement for a current valid Coast Guard Certificate of Inspection (pursu ant to § 971.205(a)). United States flag vessels are under United States juris diction on the high seas and subject to domestic enforcement procedures. With respect to foreign flag vessels, the SOLAS 74 or SOLAS 60 certificate re quirements specified in § 971.205(b) apply. Subpart H—Miscellaneous § 971.800 General. The subpart contains miscellaneous provisions pursuant to the Act which are applicable to exploration licenses and commercial recovery permits. § 971.801 Records to be maintained and information to be submitted by licensees and permittees. (a)(1) In addition to the information specified elsewhere in the part and in 15 CFR part 970, each licensee and per mittee must keep such records, con sistent with standard accounting prin ciples, as specified by the Adminis trator in the license or permit. Such records shall include information which will fully disclose expenditures for exploration for, or commercial re covery of hard mineral resources in the area under license or permit, and any other information which will facilitate an effective audit of these expendi tures. (2) The Administrator and the Comp troller General of the United States, or any of their duly authorized represent atives, shall have access, for purposes of audit and examination to any books, documents, papers, and records of li censees and permittees which are nec essary and directly pertinent to verification of the expenditures re ferred to in paragraph (a)(1) of this sec tion. (b) In addition to the information specified elsewhere in this part and in 15 CFR part 970, each applicant, li censee or permittee will be required to submit to the Administrator, upon re quest, data or other information the Administrator may reasonably need for purposes of: (1) Making determinations with re spect to the issuance, revocation, modification, or suspension of the li cense or permit in question; (2) Evaluating the effectiveness of li cense or permit TCRs; (3) Compliance with the biennial Con gressional report requirement con tained in section 309 of the Act; and (4) Evaluation of the exploration or commercial recovery activities con ducted by the licensee or permittee. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00412 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 403 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.802 At a minimum, licensees and permit tees shall submit an annual written re port within 90 days after each anniver sary of the license or permit issuance or transfer, discussing exploration or commercial recovery activities and ex penditures. The report shall address diligence requirements (see § 971.503 and 15 CFR 970.602), implementation of any approved monitoring plan (see § 971.602 and 15 CFR 970.522(c) and 970.702(a)), and applicable changes which do not constitute revisions (see § 971.413(e) and 15 CFR 970.513(c)). Permittees must also report the tonnage of nodules re covered (§ 971.426) and discuss man ganese conservation measures (see § 971.502). § 971.802 Public disclosure of docu ments received by NOAA. (a) Purpose. This section provides a procedure by which persons submitting information pursuant to this part and 15 CFR part 970 may request that cer tain information not be subject to pub lic disclosure. The substantiation re quested is intended to assure that NOAA has a complete and proper basis for determining the legality and appro priateness of withholding or releasing the identified information if a public request for disclosure is received. (b) Written requests for confidential treatment. (1) Any person who submits any information pursuant to this part or 15 CFR part 970, which information is considered by that person to be pro tected by the Trade Secrets Act (18 U.S.C. 1905) or otherwise to be a trade secret or commercial or financial infor mation which is privileged or confiden tial, may request that the Adminis trator give the information confiden tial treatment. (2)(i) Any request for confidential treatment of information: (A) Should be submitted at the time of submission of information; (B) Should state the period of time for which confidential treatment is de sired (e.g., until a certain date, or until the occurrence of a certain event, or permanently); (C) Must be submitted in writing; and (D) Must include the name, mailing address, and telephone number of an agent of the submitter who is author ized to receive notice of requests for disclosure of the information pursuant to paragraph (d) of this section. (ii) If information is submitted to the Administrator without an accom panying request for confidential treat ment, the notice referred to in para graph (d)(2) of this section need not be given. If a request for confidential treatment is received after the infor mation itself is received, the Adminis trator will make efforts to the extent administratively practicable to asso ciate the request with copies of the previously submitted information in the files of NOAA and the Federal agencies to which the Administrator distributed the information. (3)(i) Information subject to a request for confidential treatment must be seg regated from information for which confidential treatment is not being re quested, and each page (or segregable portion of each page) subject to the re quest must be clearly marked with the name of the person requesting con fidential treatment, the name of the applicant, licensee or permittee, and an identifying legend such as ‘‘Propri etary Information’’ or ‘‘Confidential Treatment Requested.’’ Where this marking proves impracticable, a cover sheet containing the identifying names and legend must be securely attached to the compilation of information for which confidential treatment is re quested. Each copy of the information for which confidential treatment has been requested must be cross-ref erenced to the appropriate section of the application or other document. All information for which confidential treatment is requested pertaining to the same application or other docu ment must be submitted to the Admin istrator in a package separate from that information for which confidential treatment is not being requested. (ii) Each copy of any application or other document with respect to which confidential treatment of information has been requested must indicate, at each place in the application or docu ment where confidential information has been deleted, that confidential treatment of information has been re quested. (4) Normally, the Administrator will not make a determination as to wheth er confidential treatment is warranted VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00413 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 404 15 CFR Ch. IX (1–1–21 Edition) § 971.802 until a request for disclosure of the in formation is received. However, on a case-by-case basis, the Administrator may make a determination in advance of a request, where it would facilitate obtaining voluntarily submitted infor mation (rather than information re quired to be submitted under this part). (c) Substantiation of request for con fidential treatment. (1) Any request for confidential treatment may include a statement of the basis for believing that the information is deserving of confidential treatment, which address es the issues relevant to a determina tion of whether the information is a trade secret, or commercial or finan cial information which is privileged or confidential. To the extent permitted by applicable law, part or all of any substantiation statement submitted will be treated as confidential if so re quested, and must be segregated, marked, and submitted in accordance with the procedure described in para graph (b)(3) of this section. (2) Issues addressed in the statement should include: (i) The commercial or financial na ture of the information; (ii) The nature and extent of the competitive advantage enjoyed as a re sult of possession of the information; (iii) The nature and extent of the competitive harm which would result from public disclosure of the informa tion; (iv) The extent to which the informa tion has been disseminated to employ ees and contractors of the person sub mitting the information; (v) The extent to which persons other than the person submitting the infor mation possesses, or have access to, the same information; and (vi) The nature of the measures which have been and are being taken to protect the information from disclo sure. (d) Requests for disclosure of trade se crets, privileged, or confidential informa tion. (1) Any request for disclosure of information submitted, reported or col lected pursuant to this part must be made in accordance with 15 CFR 903.7. (2) Upon receipt of a request for dis closure of information for which con fidential treatment has been requested, the Administrator immediately will issue notice by an expeditious means (such as by telephone, confirmed by certified or registered mail, return re ceipt requested) of the request for dis closure to the person who requested confidential treatment of the informa tion or to the designated agent. The notice also will: (i) Inquire whether that person con tinues to maintain the request for con fidential treatment; (ii) Notify that person of the date (generally, not later than the close of business on the seventh working day after issuance of the notice) by which the person is strongly encouraged to deliver to the Administrator a written statement that the person either: (A) Waives or withdraws the request for confidential treatment in full or in part; or (B) Confirms that the request for confidential treatment is maintained; (iii) Inform that person that by a date the Administrator specifies (gen erally, not later than the close of busi ness on the seventh working day after issuance of the notice), the person: (A) Is strongly encouraged to deliver to the Administrator a written state ment addressing the issues listed in paragraph (c)(2) of this section, de scribing the basis for believing that the information is deserving of confiden tial treatment, if this statement was not previously submitted; (B) Is strongly encouraged to deliver to the Administrator an update of or supplement to any statement pre viously submitted under paragraph (c) of this section; and (C) May present to the Administrator in a form the Administrator deems ap propriate (such as by telephone or in an informal conference) agruments against disclosure of the information; and (iv) Inform that person that the bur den is on him to assure that any re sponse to the notice is delivered to the Administrator within the time speci fied in the notice. (3) To the extent permitted by appli cable law, part or all or of any state ment submitted in response to any no tice issued under paragraph (d)(2) will be treated as confidential if so re quested by the person submitting the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00414 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 405 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.802 response. Any response for which con fidential treatment is requested must be segregated, marked and submitted in accordance with the procedures de scribed in paragraph (b)(3) of this sec tion. (4) Upon the expiration of the time allowed for response under paragraph (d)(2) of this section, the Administrator will determine, in consultation with the General Counsel for the Depart ment of Commerce, whether confiden tial treatment is warranted based on the information then available to NOAA. (5) If the person who requested con fidential treatment waives or with draws that request, the Administrator will proceed with appropriate disclo sure of the information. (6) If the Administrator determines that confidential treatment is war ranted, he will so notify the person re questing confidential treatment, and will issue an initial denial of the re quest for disclosure of records in ac cordance with 15 CFR 903.8. (7) If the Administrator determines that confidential treatment is not war ranted for part or all of the informa tion, the Administrator immediately will issue notice by an expeditious means (such as by telephone, confirmed by certified or registered mail, return receipt requested) to the person who requested confidential treatment. The notice will state: (i) The basis for the Administrator’s determination; (ii) That the Administrator’s deter mination constitutes final agency ac tion on the request for confidential treatment; (iii) That the final agency action is subject to judicial review under chap ter 7 of title 5, United States Code; and (iv) That on the seventh working day after issuance of the notice described in this paragraph (d)(7), the Adminis trator will make the information avail able to the person who requested dis closure unless the Administrator has first been notified of the filing of an ac tion in a Federal court to obtain judi cial review of the determination, and the court has issued an appropriate order preventing or limiting disclosure. (8) The Administrator will keep a record of the date any notice is issued and the date any response is received, by the Administrator, under this para graph (d). (9) In all other respects, procedures for handling requests for records con taining information submitted to, re ported to, or collected by the Adminis trator pursuant to this part will be in accordance with 15 CFR Part 903. For example, if ten working days have passed after the receipt of a request for disclosure and, despite the exercise of due diligence by the agency, the Ad ministrator cannot make a determina tion as to whether confidential treat ment is warranted, the Administrator will issue appropriate notice in accord ance with 15 CFR 903.8(b)(5). (e) Direct submission of confidential in formation. If any person has reason to believe that it would be prejudiced by furnishing information required from it to the applicant, licensee or permittee, that person may file the required infor mation directly with the Adminis trator. Information for which the per son requests confidential treatment must be segregated, marked, and sub mitted in accordance with the proce dures described in paragraph (b)(3) of this section. (f) Protection of confidential informa tion transmitted by the Administrator to other agencies. Each copy of informa tion for which confidential treatment has been requested which is trans mitted by the Administrator to other Federal agencies will be accompanied by a cover letter containing: (1) A request that the other Federal agency maintain the information in confidence in accordance with applica ble law (including the Trade Secret Act, 18 U.S.C. 1905) and any applicable protective agreement entered into by the Administrator and the Federal agency receiving the information; (2) A request that the other Federal agency notify the Administrator imme diately upon receipt of any request for disclosure of the information; and (3) A request that all copies of the in formation be returned to the Adminis trator for secure storage or disposal promptly after the Federal agency de termines that it no longer needs the in formation for its official use. (g) When satisfied that adequate pro tection against public disclosure exists, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00415 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 406 15 CFR Ch. IX (1–1–21 Edition) § 971.803 applicants should provide the State agency with confidential and propri etary information which the State agency maintains is necessary to make a reasoned decision on the consistency of the proposal. State agency requests for such information must be related to the necessity of having such informa tion to assess adequately the coastal zone effects of the proposal. § 971.803 Relinquishment and sur render of licenses and permits. (a) Any licensee or permittee may at any time, without penalty: (1) Surrender to the Administrator a license or permit issued to the licensee or permittee; or (2) Relinquish to the Administrator, in whole or in part, any right to con duct any exploration or commercial re covery activities authorized by the li cense or permit. (b) Any licensee or permittee who surrenders, or relinquishes any right under, a license or permit will remain liable with respect to all violations and penalties incurred, and damage to per sons or property caused, by the li censee or permittee as a result of ac tivities engaged in by the licensee or permittee under the license or permit. § 971.804 Amendment to regulations for conservation, protection of the environment, and safety of life and property at sea. The Administrator may amend the regulations in this part and 15 CFR part 970 at any time as the Adminis trator determines to be necessary and appropriate in order to provide for the conservation of natural resources, pro tection of the environment, or the safe ty of life and property at sea. The amended regulations will apply to all exploration or commercial recovery ac tivities conducted under any license or permit issued or maintained pursuant to this part or 15 CFR part 970, except that amended regulations which pro vide for conservation of natural re sources will apply to activities con ducted under an existing license or per mit during the present term of that li cense or permit only if the Adminis trator determines that the amended regulations providing for conservation of natural resources will not impose se rious or irreparable economic hardship on the licensee or permittee. Any amendment to regulations under this section will be made pursuant to the procedures in subpart I of this part. § 971.805 Computation of time. Except where otherwise specified, Saturdays, Sundays and Federal Gov ernment holidays will be included in computing the time period allowed for filing any document or paper under this part or 15 CFR part 970, but when a time period expires on any of these days, that time period will be extended to include the next following Federal Government work day. Filing periods expire at the close of business on the day specified, for the office specified. Subpart I—Uniform Procedures § 971.900 Applicability. The regulations of this subpart gov ern the following hearings conducted by NOAA under this part and under 15 CFR part 970: (a) All adjudicatory hearings re quired by section 116(b) of the Act to be held on the following actions upon a finding by the Administrator that one or more specific and material issues of fact exist which require resolution by formal process, including but not lim ited to: (1) All applications for issuance or transfer of licenses or permits; (2) All proposed TCRs on a license or permit; and (3) All proposals to modify signifi cantly a license or permit; (b) Hearings conducted under section 105(b)(3) of the Act on objection by a li censee or permittee to any term, condi tion or restriction in a license or per mit, or to modification thereto, where the licensee or permittee dem onstrates, after final action by the Ad ministrator on the objection, that a dispute remains as to a material issue of fact; (c) Hearings conducted in accordance with section 106(b) of the Act pursuant to a timely request by an applicant or a licensee or permittee for review of: (1) A proposed denial of issuance or transfer of a license or permit; or (2) A proposed suspension or modi fication of particular activities under a VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00416 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 407 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.901 license or permit after a Presidential determination pursuant to section 106(a)(2)(B) of the Act; (d) Hearings conducted in accordance with section 308(c) of the Act to amend regulations for the purpose of con servation of natural resources, protec tion of the environment, and safety of life and property at sea; (e) Hearings conducted in accordance with § 971.302 or 15 CFR 970.407 on a pro posal to deny certification of an appli cation; and (f) Hearings conducted in accordance with 15 CFR part 970, subpart C to de termine priority of right among preenactment explorers. § 971.901 Formal hearing procedures. (a) General. (1) All hearings described in § 971.900 are governed by subpart C of 15 CFR part 904, as modified by this section. The rules in this subpart take precedence over 15 CFR part 904, sub part C, to the extent there is a conflict. (2) Hearings held under this section will be consolidated insofar as prac ticable with hearings held by other agencies. (3) For the purposes of this subpart, involved applicant, licensee or permittee means an applicant, licensee or per mittee the status of whose application, license, permit or activities conducted under the license or permit may be al tered by the Administrator as a result of proceedings under this subpart. (b) Decision to hold a hearing. When ever the Administrator finds that a for mal hearing is required by the provi sions of this part or 15 CFR part 970, he will provide for a formal hearing. Upon deciding to hold a formal hearing, the Administrator will refer the proceeding to the Department of Commerce Office of Administrative Law Judges for as signment to an Administrative Law Judge to serve as presiding officer for the hearing. (c) Notice of formal hearing. (1) The Administrator will publish notice of the formal hearing in the FEDERAL REGISTER at least 15 days before the be ginning of the hearing, and will send written notice by registered or cer tified mail to any involved applicant, licensee or permittee and to all persons who submitted written comments upon the action in question, or who testified at any prior informal hearing on the action or who filed a request for the formal hearing under this part or 15 CFR part 970. (2) Notice of a formal hearing will in clude, among other things: (i) Time and place of the hearing and the name of the presiding judge, as de termined under paragraph (b) of this section; (ii) The name and address of the per son(s) requesting the formal hearing or a statement that the formal hearing is being held by order of the Adminis trator; (iii) The issues in dispute which are to be resolved in the formal hearing; (iv) The due date for filing a written request to participate in the hearing in accordance with paragraphs (f)(2) and (f)(3) of this section; and (v) Reference to any prior informal hearing from which the issues to be de termined arose. (d) Powers and duties of the administra tive law judge. In addition to the powers enumerated in 15 CFR part 904. Subpart C, judges will have the power to: (1) Regulate the course of the hearing and the conduct of the parties, inter ested persons and others submitting evidence, including but not limited to the power to require the submission of part or all of the evidence in written form if the judge determines a party will not be prejudiced thereby, and if otherwise in accordance with law; (2) Rule upon requests submitted in accordance with paragraph (f)(2) of this section to participate as a party, or re quests submitted in accordance with paragraph (f)(3) of this section to par ticipate as an interested person in a proceeding, by allowing, denying, or limiting such participation; and (3) Require at or prior to any hear ing, the submission and exchange of evidence. (e) Argument. At the close of the for mal hearing, each party will be given the opportunity to submit written ar guments on the issues before the judge. (f) Hearing participation. (1) Parties to the formal hearing will include: (i) The NOAA General Counsel; (ii) Any involved applicant, licensee or permittee; and VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00417 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 408 15 CFR Ch. IX (1–1–21 Edition) § 971.901 (iii) Any other person determined by the judge, in accordance with para graph (f)(2) below, to be eligible to par ticipate as a full party. (2) Any person desiring to participate as a party in a formal hearing must submit a request to the judge to be ad mitted as a party. The request must be submitted within ten days after the date of mailing or publication of notice of a decision to hold a formal hearing, whichever occurs later. Such person will be allowed to participate if the judge finds that the interests of justice and a fair determination of the issues would be served by granting the re quest. The judge may entertain a re quest submitted after the expiration of the ten days, but such a request may only be granted upon an express find ing on the record that: (i) Special circumstances justify granting the request; (ii) The interests of justice and a fair determination of the issues would be served by granting the request; (iii) The requestor has consented to be bound by all prior written agree ments and stipulations agreed to by the existing parties, and all prior or ders entered in the proceedings; and (iv) Granting the request will not cause undue delay or prejudice the rights of the existing parties. (3)(i) Any interested person who de sires to submit evidence in a formal hearing must submit a request within ten days after the dates of mailing or publication of notice of a decision to hold a formal hearing, whichever oc curs later. The judge may waive the ten day rule for good cause, such as if the interested person, making this re quest after the expiration of the ten days, the formal hearing, and the evi dence he proposes to submit may sig nificantly affect the outcome of the proceedings. (ii) The judge may permit an inter ested person to submit evidence at any formal hearing if the judge determines that such evidence is relevant to facts in dispute concerning the issue(s) being adjudicated. The fact that an inter ested person may submit evidence under this paragraph at a hearing does not entitle the interested person to participate in other ways in the hear ing unless allowed by the judge under paragraph (f)(3)(iii) below. (iii) The judge may allow an inter ested person to submit oral testimony, oral arguments or briefs, or to cross examine witnesses or participate in other ways, if the judge determines: (A) That the interests of justice would be better served by allowing such participation by the interested person; and (B) That there are compelling cir cumstances favoring such participation by the interested person. (g) Definition of issues. (1) Whenever a formal hearing is conducted pursuant to this section the Administrator may certify the issues for decision to the judge, and if the issues are so certified, the formal hearing will be limited to those issues. (2) Whenever a formal hearing is con ducted pursuant to a request by an ap plicant, licensee or permittee for re view of a denial of certification, issuance or transfer of a license or per mit in accordance with section 106(a)(4) of the Act, or pursuant to an objection to any term, condition, or restriction in a permit in accordance with section 105(b)(3) or (c)(4) of the Act, no issues may be raised by any party or inter ested person that were not previously raised in the administrative pro ceedings on the action pursuant to any such section, unless the judge deter mines that good cause is shown for the failure to raise them. Good cause in cludes the case where the party seek ing to raise the new issues shows that it could not reasonably have ascertained the issues at a prior stage in the administrative process, or that it could not have reasonably antici pated the relevance or materiality of the information sought to be intro duced. (h) Decisions—(1) Proposed findings of fact and conclusions of law. The judge will allow each party to file with the judge proposed findings of fact, and in appropriate cases conclusions of law, together with a supporting brief ex pressing the reasons for such proposals. Such proposals and briefs must be filed within ten days after the hearing or within such additional time as the judge may allow. Such proposals and briefs must refer to all portions of the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00418 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 409 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.1000 record and to all authorities relied upon in support of each proposal. Reply briefs must be submitted within ten days after receipt of the proposed find ings and conclusions to which they re spond, unless the judge allows addi tional time. (2) Recommended decision. (i) As soon as practicable, but normally not later than 90 days after the conclusion of the formal hearing, the judge will evaluate the record of the formal hearing and prepare and file a recommended deci sion with the Administrator. The deci sion will contain findings of fact, when appropriate, conclusions regarding all material isuses of law, and a rec ommendation as to the appropriate ac tion to be taken by the Administrator. The judge will serve a copy of the deci sion on each party and upon the Ad ministrator. (ii) Within thirty days after the date the recommended decision is served, any party may file with the Adminis trator exceptions to the recommended decision. The exceptions must refer to all portions of the record and to all au thorities relied on in support of the ex ceptions. (3) Final decision. (i) As soon as prac ticable, but normally not later than 60 days after receipt of the recommended decision, the Administrator will issue a final decision. The final decision will include findings of fact and conclusions regarding material issues of law or dis cretion, as well as reasons therefor. The final decision may accept or reject all or part of the recommended deci sion. The Administrator shall assure that the record shows the ruling on each exception presented. (ii) With respect to hearings held pur suant to section 116(b), the Adminis trator may defer announcement of his findings of fact until the time he takes final action with respect to any action described in section 116(a). (iii) The Administrator will base the final decision upon the record already made except that the Administrator may issue orders: (A) Specifying the filing of supple mental briefs; or (B) Remanding the matter to the judge for the receipt of further evi dence, or otherwise assisting in the de termination of the matter. (i) Filing and service of documents. (1) Whenever the regulations in this sub part or an order issued hereunder re quire a document to be filed within a certain period of time, such document will be considered filed as of the date of the postmark, if mailed, or (if not mailed) as of the date actually deliv ered to the office where filing is re quired. Time periods will begin to run on the day following the date of the document, paper, or event which begins at the time period. (2) All submissions must be signed by the person making the submission, or by the person’s attorney or other au thorized agent or representative. (3) Service of a document must be made by delivering or mailing a copy of the document to the known address of the person being served. (4) Whenever the regulations in this subpart require service of a document, such service may effectively be made on the agent for the service of process or on the attorney for the person to be served. (5) Refusal of service of a document by the person, his agent, or attorney will be deemed effective service of the document as of the date of such re fusal. (6) A certficate of the person serving the document by personal delivery or by mailing, setting forth the manner of the service, will be proof of the service. Subpart J—Enforcement § 971.1000 General. (a) Purpose and scope. (1) Section 302 of the Act authorizes the Adminis trator to assess a civil penalty, in an amount not to exceed $25,000 for each violation, against any person found to have committed an act prohibited by section 301 of the Act. Each day of a continuing violation is a separate of fense. (2) Section 106 of the Act describes the circumstances under which the Ad ministrator may suspend or revoke a license or permit, or suspend or modify activities under a license or permit, in addition to or in lieu of imposing of a civil penalty, or in addition to impos ing a fine. (3) Section 306 of the Act makes pro visions of the customs laws relating to, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00419 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 410 15 CFR Ch. IX (1–1–21 Edition) § 971.1001 among other things, the remission or mitigation of forfeitures, applicable to forfeitures of vessels and hard mineral resources. The Administrator is au thorized to entertain petitions for ad ministrative settlement of property seizures made under the Act which would otherwise proceed to judicial forfeiture. (4) Section 114 of the Act authorizes the Administrator to place observers on vessels used by a licensee or per mittee under the Act to monitor com pliance and environmental effects of activities under the license or permit. (5) Section 117 of the Act describes the circumstances under which a per son may bring a civil action against an alleged violator or against the Admin istrator for failure to perform a nondis cretionary duty, and directs the Ad ministrator to issue regulations gov erning procedures prerequisite to such a civil action. (6) The regulations in this subpart provide uniform rules and procedures for the assessment of civil penalties (§§ 971.1001–971.1002), and license and permit sanctions (§ 971.1003); the remis sion or mitigation of forfeitures (§ 971.1004); observers (§ 971.1005); protec tion of certain information related to enforcement (§ 971.1006); and procedures requiring persons planning to bring a civil action under section 117 of the Act to give advance notice (§ 971.1007). (b) Filing and service of documents. (1) Except as otherwise provided by this subpart, filing and service of docu ments required by this subpart will be in accordance with § 971.901(i). The method for computing time periods set forth in § 971.901(i) also applies to any action or event, such as payment of a civil penalty, required by this subpart to take place within a specified period of time. (2) If an oral or written request is made to the Administrator within ten days after the expiration of a time pe riod established in this subpart for the required filing of documents, the Ad ministrator may permit a late filing if the Administrator finds reasonable grounds for an inability or failure to file within the time periods. All exten sions will be in writing. Except as pro vided by this paragraph, by 15 CFR 904.102 or by order of an administrative law judge, no requests for an extension of time may be granted. § 971.1001 Assessment procedure. Subpart B of 15 CFR part 904 governs the procedures for assessing a civil pen alty under the Act, and the rights of any person against whom a civil pen alty is assessed. § 971.1002 Hearing and appeal proce dures. (a) Beginning of hearing procedures. Following receipt of a written request for a hearing timely filed under 15 CFR 904.102, the Administrator will begin procedures under this section by for warding the request, a copy of the NOVA, and any response thereto to the Department of Commerce, Office of Ad ministrative Law Judges. (b) Subpart C of 15 CFR part 904 gov erns the hearing and appeal procedures for civil penalties assessed under the Act. § 971.1003 License and permit sanc tions. (a) Application of this section. This section governs the suspension or rev ocation of any license or permit issued under the Act, or the suspension or modification of any particular activity or activities under a license or permit, which suspension, revocation or modi fication is undertaken in addition to, or in lieu of, imposing a civil penalty under this subpart, or in addition to imposing a fine. (b) Basis for sanctions. The Adminis trator may act under this section with respect to a license or permit issued under the Act, or any particular activ ity or activities under such a license or permit, if the licensee or permittee substantially fails to comply with any provision of the Act, any regulation or order issued under the Act, or any term, condition, or restriction in the license or permit. (c) Nature of sanctions. In the Admin istrator’s discretion and subject to the requirements of this section, the Ad ministrator may take any of the fol lowing actions or combinations thereof with respect to a license or permit issued under the Act: (1) Revoke the license or permit; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00420 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 411 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.1003 (2) Suspend the license or permit, ei ther for a specified period of time or until certain stated requirements are met, or both; or (3) Modify any activity under the li cense or permit, as by imposing addi tional requirements or restraints on the activity. (d) Notice of sanction. (1) The Admin istrator will prepare a notice of sanc tion (NoS) setting forth the sanction to be imposed and the basis therefore. The NoS will state: (i) A concise statement of the facts believed to show a violation; (ii) A specific reference to the provi sions of the Act, regulation, license or permit, or order allegedly violated; (iii) The nature and duration of the proposed sanction; (iv) The effective date of the sanc tion, which is 30 days after the date of the notice unless the Administrator es tablishes a different effective date under paragraph (d)(4) or paragraph (e) of this section; (v) That the licensee or permittee has 30 calendar days from receipt of the no tice in which to request or waive a hearing, under paragraph (f) of this sec tion; and (vi) The determination made by the Administrator under paragraph (e)(1) of this section, and any time period that the Administrator provides the li censee or permittee under paragraph (e)(1) to correct a deficiency. (2) If a hearing is requested in a time ly manner, the sanction becomes effec tive as provided in the final decision of the Administrator issued pursuant to paragraph (g) of this section, unless the Administrator provides otherwise under paragraph (d)(4) of this section. (3) The NoS will be served personally or by registered or certified mail, re turn receipt requested, on the licensee or permittee. The Administrator will also publish in the FEDERAL REGISTER a notice of his intention to impose a sanction. (4) The Administrator may make the sanction effective immediately or oth erwise earlier than 30 days after the date of the NoS if the Administrator finds, and issues an emergency order summarizing such finding and the basis therefor, that an earlier date is nec essary to: (i) Prevent a significant adverse envi ronmental effect; or (ii) Preserve the safety of life and property at sea. If the Administrator acts under this paragraph (d)(4), the Administrator will serve the emergency order as pro vided in paragraph (d)(3) of this sec tion. (5) The NoS will be accompanied by a copy of this subpart and the applicable provisions of 15 CFR part 904 and 15 CFR part 971, subpart I. (e) Opportunity to correct deficiencies. (1) Prior to issuing the NoS, the Ad ministrator will determine whether the reason for the proposed sanction is a deficiency which the licensee or per mittee can correct. Such determina tion, and the basis therefor, will be set forth in the NoS. (2) If the Administrator determines that the reason for the proposed sanc tion is a deficiency which the licensee or permittee can correct, the Adminis trator will allow the licensee or per mittee a reasonable period of time, up to 180 days from the date of the NoS, to correct the deficiency. The NoS will state the effective date of the sanction, and that the sanction will take effect on that date unless the licensee or per mittee corrects the deficiency within the time prescribed or unless the Ad ministrator grants an extension of time to correct the deficiency under paragraph (e)(3) of this section. (3) The licensee or permittee may, within the time period prescribed by the Administrator under paragraph (e)(2) of the section, request an exten sion of time to correct the deficiency. The Administrator may, for good cause shown, grant an extension. If the Ad ministrator does not grant the request, either orally or in writing before the effective date of the sanction, the re quest will be considered denied. (4) When the licensee or permittee believes that the deficiency has been corrected, the licensee or permittee shall so advise the Administrator in writing. The Administrator will, as soon as practicable, determine whether or not the deficiency has been cor rected and advise the licensee or per mittee of such determination. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00421 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 412 15 CFR Ch. IX (1–1–21 Edition) § 971.1004 (5) If the Administrator determines that the deficiency has not been cor rected by the licensee or permittee within the time prescribed under para graph (e)(2) or (e)(3) of this section, the Administrator may: (i) Grant the licensee or permittee additional time to correct the defi ciency, for good cause shown; (ii) If no hearing has been timely re quested under paragraph (f)(1) of this section, notify the licensee or per mittee that the sanction will take ef fect as provided in paragraph (e)(2) or (e)(3) of this section; or (iii) If a request for hearing has been timely filed under paragraph (f)(1) of this section, and hearing proceedings have not already begun, or if the Ad ministrator determines under para graph (f)(3) of this section to hold a hearing, notify the licensee or per mittee of the Administrator’s inten tion to proceed to a hearing on the matter. (f) Opportunity for hearing. (1) The li censee or permittee has 30 days from receipt of the NoS to request a hearing. However, no hearing is required with respect to matters previously adju dicated in an administrative or judicial hearing in which the licensee or per mittee has had an opportunity to par ticipate. (2) If the licensee or permittee re quests a hearing, a written and dated request shall be served either in person or by certified or registered mail, re turn receipt requested, at the address specified in the NoS. The request shall either attach a copy of the relevant NoS or refer to the relevant NOAA case number. (3) If no hearing is requested under paragraph (f)(2) of this section, the Ad ministrator may nonetheless order a hearing if the Administrator deter mines that there are material issues of fact, law, or equity to be further ex plored. (g) Hearing and decision. (1) If a time ly request for a hearing under para graph (f) of this section is received, or if the Administrator orders a hearing under paragraph (f)(3) of this section, the Administrator will promptly begin proceedings under this section by for warding the request, a copy of the NoS and any response thereto to the De partment of Commerce Office of Ad ministrative Law Judges which will docket the matter for hearing. Written notice of the referral will promptly be given to the licensee or permittee, with the name and address of the attorney representing the Administrator in the proceedings (the agency representa tive). Thereafter, all pleading and other documents must be filed directly with the Department of Commerce Of fice of Administrative Law Judges, and a copy must be served on the opposing party (respondent or agency represent ative). (2) Except as provided in this section, the hearing and appeal procedures in 15 CFR part 904, subpart C apply to any hearing held under this section. (3) If the proposed sanction is the re sult of a correctable deficiency, the hearing will proceed concurrently with any attempt to correct the deficiency unless the parties agree otherwise or the Administrative Law Judge orders differently. (4) As soon as practicable, but nor mally not later than 90 days after the conclusion of the formal hearing, the judge will file with the Administrator a recommended decision prepared in ac cordance with § 971.901(h)(2). (5) The Administrator will issue a final decision in accordance with § 971.901(h)(3). The decision will be a final order of the Administrator. (6) The Administrator will serve no tice of the final decision on the li censee or permittee in the manner de scribed by paragraph (d)(3) of this sec tion. § 971.1004 Remission or mitigation of forfeitures. (a) Authorized enforcement officers are empowered by section 304 of the Act to seize any vessel (together with its gear, furniture, appurtenances, stores, and cargo) which reasonably ap pears to have been used in violation of the Act, if necessary to prevent evasion of the enforcement of this Act, or of any regulation, order or license or per mit issued pursuant to the Act. En forcement agents may also seize ille gally recovered or processed hard min eral resources, as well as other evi dence related to a violation. Section 306 of the Act provides for the judicial VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00422 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 413 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.1005 forfeiture of vessels and hard mineral resources. (b) Subpart F of 15 CFR part 904 gov erns procedures regarding seized prop erty that is subject to forfeiture or has been forfeited under the Act, including the remission or mitigation of forfeit ures. (c) Unless otherwise directed in a no tice concerning the seized property, a petition for relief from forfeiture under the Act and pursuant to 15 CFR 904.506(b) shall be addressed to the Ad ministrator and filed with the Ocean Minerals and Energy Division at the address specified in § 971.200(b). § 971.1005 Observers. (a) Purpose of observers. Each licensee and permittee shall allow, at such times and to such extent as the Admin istrator deems reasonable and nec essary, an observer (as used in this sec tion, the term ‘‘observer’’ means ‘‘one or more observers’’) duly authorized by the Administrator to board and accom pany any vessel used by the licensee or permittee in exploration or commer cial recovery activities (hereafter re ferred to in this section as a ‘‘vessel’’), for the purpose of observing, evalu ating and reporting on: (1) The effectiveness of the terms, conditions, and restrictions of the li cense or permit; (2) Compliance with the Act, regula tions and orders issued under the Act, and the license or permit terms, condi tions, and restrictions; and (3) The environmental and other ef fects of the licensee’s or permittee’s activities under the license or permit. (b) Notice to licensee or permittee. (1) If the Administrator plans to place an ob server aboard a vessel, the Adminis trator will so notify the affected li censee or permittee. (2) The Administrator normally will issue any such notice as far in advance of placement of the observer as is prac ticable. (3) Contents of notice. The notice given by the Administrator will in clude, among other things: (i) The name of the observer, if known at the time notice is issued; (ii) The length of time which the ob server likely will be aboard the vessel; (iii) Information concerning activi ties the observer is likely to conduct, such as: (A) Identification of special activities that the observer will monitor; (B) Planned tests of equipment used for monitoring; (C) Activities of the observer that are likely to require assistance from the vessel’s personnel or crew or use of the vessel’s equipment; and (D) Planned tests of alternative oper ating procedures or technologies for mitigation of environmental effects. (iv) Information concerning the equipment that will be brought aboard the vessel, such as a description of the monitoring equipment, and any special requirements concerning the handling, storage, location or operation of, or the power supply for, the equipment. (c) Initial monitoring period. The Ad ministrator shall require the place ment of an observer on each permit tee’s mining vessel(s) at least once dur ing the initial year of the permittee’s commercial recovery activities. (d) Licensee’s and permittee’s respon sibilities for observer placement. (1) Upon request by the Administrator, a li censee or permittee shall facilitate ob server placement by promptly noti fying the Administrator regarding the timing of planned system tests and the departure date of the next voyage, or, if the vessel is at sea, suggesting a time and method for transporting the observer to the vessel. (2) In addition, the licensee or per mittee shall notify NOAA of the date of departure of planned cruises 60 days in advance of ship departure from port for purposes of NOAA’s determination of whether to place Federal observers on board. If cruise plans are changed by more than 30 days from the date stated by the exploration or commercial re covery plan, the licensee or permittee shall notify NOAA as soon as such changes are made, or 90 days prior to the previously scheduled departure. (e) Duties of licensee, permittee, owner or operator. Each licensee, permittee, owner or operator of a vessel aboard which an observer is assigned shall: (1) Allow the observer access to and use of the vessel’s communications equipment and personnel when the ob server deems such access necessary for VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00423 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 414 15 CFR Ch. IX (1–1–21 Edition) § 971.1006 the transmission and receipt of mes sages; (2) Allow the observer access to and use of the vessel’s navigation equip ment and personnel when the observer deems such access necessary to deter mine the vessel’s location; (3) Provide all other reasonable co operation and assistance to enable the observer to carry out the observer’s du ties; and (4) Provide temporary accommoda tions and food to the observer aboard the vessel which are equivalent to those provided to officers of the vessel. (f) Reasonableness of observer activities. (1) To the maximum extent prac ticable, observation duties will be planned and carried out in a manner that minimizes interference with the licensee’s or permittee’s activities under the license or permit. (2) The Administrator will assure that equipment brought aboard a ves sel by the observer is reasonable as to size, weight, and electric power and storage requirements, taking into con sideration the necessity of the equip ment for carrying out the observer’s functions. (3) The observer will have no author ity over the operation of the vessel or its activities, or the officers, crew, or personnel of the vessel. The observer will comply with all rules and regula tions issued by the licensee or per mittee, and all orders of the Master or senior operations official, with respect to ensuring safe operation of the vessel and the safety of its personnel. (g) Non-interference with observer. Li censees, permittees and other persons are reminded that the Act (see, for ex ample, sections 301(3) and 301(4)) makes it unlawful for any person subject to section 301 of the Act to interfere with any observer in the performance of the observer’s duties. (h) Confidentiality of information. NOAA recognizes the possibility that an observer, in performing observer functions, will record information which the licensee or permittee con siders to be proprietary. NOAA intends to protect such information consistent with applicable law. The Administrator may in appropriate cases provide the licensee or permittee an opportunity: (1) To review those parts of the ob server’s report which may contain pro prietary information; and (2) To request confidential treatment of such information under § 971.802. § 971.1006 Proprietary enforcement in formation. (a) Proprietary and privileged infor mation seized or maintained under Title III of the Act concerning a person or vessel engaged in commercial recov ery will not be made available for gen eral or public use or inspection. (b) Although presentation of evidence in a proceeding under this subpart is not deemed general or public use of in formation, the Administrator will, con sistent with due process, move to have records sealed, under 15 CFR part 904 subpart C, or other applicable provi sions of law, in any administrative or judicial proceeding where the use of proprietary or privileged information is required to serve the purpose of the Act. § 971.1007 Advance notice of civil ac tions. (a) Actions against alleged violators. (1) No civil action may be filed in a United States District Court under section 117 of the Act against any person for al leged violation of the Act, or any regu lation, or license or permit term, con dition, or restriction issued under the Act, until 60 days after the Adminis trator and any alleged violator receive written and dated notice of alleged vio lation. (2) The notice shall contain: (i) A concise statement of the facts believed to show a violation; (ii) A specific reference to the provi sions of the Act, regulation or license or permit allegedly violated; and (iii) Any documentary or other evi dence of the alleged violation. (b) Action against the Administrator. (1) No civil action may be filed in a United States District Court under section 117 of the Act against the Administrator for an alleged failure to perform any act or duty under the Act which is not discretionary until 60 days after re ceipt by the Administrator of a written and dated notice of intent to file the action. (2) The notice shall contain: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00424 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 415 Nat’l Oceanic and Atmospheric Adm., Commerce § 971.1007 (i) A specific reference to the provi sions of the Act, regulation or permit believed to require the Administrator to perform a nondiscretionary act or duty; (ii) A precise description of the non discretionary act or duty believed to be required by such provision; (iii) A concise statement of the facts believed to show a failure to perform the act or duty; and (iv) Any documentary or other evi dence of the alleged failure to perform the act or duty. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00425 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 416 SUBCHAPTER E—OIL POLLUTION ACT REGULATIONS PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS Subpart A—Introduction Sec. 990.10 Purpose. 990.11 Scope. 990.12 Overview. 990.13 Rebuttable presumption. 990.14 Coordination. 990.15 Considerations to facilitate restora tion. Subpart B—Authorities 990.20 Relationship to the CERCLA natural resource damage assessment regulations. 990.21 Relationship to the NCP. 990.22 Prohibition on double recovery. 990.23 Compliance with NEPA and the CEQ regulations. 990.24 Compliance with other applicable laws and regulations. 990.25 Settlement. 990.26 Emergency restoration. 990.27 Use of assessment procedures. Subpart C—Definitions 990.30 Definitions. Subpart D—Preassessment Phase 990.40 Purpose. 990.41 Determination of jurisdiction. 990.42 Determination to conduct restoration planning. 990.43 Data collection. 990.44 Notice of Intent to Conduct Restora tion Planning. 990.45 Administrative record. Subpart E—Restoration Planning Phase 990.50 Purpose. 990.51 Injury assessment—injury determina tion. 990.52 Injury assessment—quantification. 990.53 Restoration selection—developing restoration alternatives. 990.54 Restoration selection—evaluation of alternatives. 990.55 Restoration selection—developing restoration plans. 990.56 Restoration selection—use of a Re gional Restoration Plan or existing res toration project. Subpart F—Restoration Implementation Phase 990.60 Purpose. 990.61 Administrative record. 990.62 Presenting a demand. 990.63 Discounting and compounding. 990.64 Unsatisfied demands. 990.65 Opening an account for recovered damages. 990.66 Additional considerations. AUTHORITY: 33 U.S.C. 2701 et seq. SOURCE: 61 FR 500, Jan. 5, 1996, unless oth erwise noted. Subpart A—Introduction § 990.10 Purpose. The goal of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., is to make the environment and public whole for injuries to natural resources and services resulting from an incident involving a discharge or substantial threat of a discharge of oil (incident). This goal is achieved through the re turn of the injured natural resources and services to baseline and compensa tion for interim losses of such natural resources and services from the date of the incident until recovery. The pur pose of this part is to promote expedi tious and cost-effective restoration of natural resources and services injured as a result of an incident. To fulfill this purpose, this part provides a natural resource damage assessment process for developing a plan for restoration of the injured natural resources and serv ices and pursuing implementation or funding of the plan by responsible par ties. This part also provides an admin istrative process for involving inter ested parties in the assessment, a range of assessment procedures for identifying and evaluating injuries to natural resources and services, and a means for selecting restoration actions from a reasonable range of alter natives. § 990.11 Scope. The Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., provides for the designation of federal, state, and, if designated by the Governor of the state, local officials to act on behalf of the public as trustees for natural re sources and for the designation of In dian tribe and foreign officials to act as trustees for natural resources on behalf VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00426 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 417 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.14 of, respectively, the tribe or its mem bers and the foreign government. This part may be used by these officials in conducting natural resource damage assessments when natural resources and/or services are injured as a result of an incident involving an actual or substantial threat of a discharge of oil. This part is not intended to affect the recoverability of natural resource dam ages when recoveries are sought other than in accordance with this part. § 990.12 Overview. This part describes three phases of a natural resource damage assessment. The Preassessment Phase, during which trustees determine whether to pursue restoration, is described in sub part D of this part. The Restoration Planning Phase, during which trustees evaluate information on potential inju ries and use that information to deter mine the need for, type of, and scale of restoration, is described in subpart E of this part. The Restoration Implemen tation Phase, during which trustees en sure implementation of restoration, is described in subpart F of this part. § 990.13 Rebuttable presumption. Any determination or assessment of damages to natural resources made by a Federal, State, or Indian trustee in accordance with this part shall have the force and effect of a rebuttable pre sumption on behalf of the trustee in any administrative or judicial pro ceeding under OPA. § 990.14 Coordination. (a) Trustees. (1) If an incident affects the interests of multiple trustees, the trustees should act jointly under this part to ensure that full restoration is achieved without double recovery of damages. For joint assessments, trust ees must designate one or more Lead Administrative Trustee(s) to act as co ordinators. (2) If there is a reasonable basis for dividing the natural resource damage assessment, trustees may act independ ently under this part, so long as there is no double recovery of damages. (3) Trustees may develop pre-incident or incident-specific memoranda of un derstanding to coordinate their activi ties. (b) Response agencies. Trustees must coordinate their activities conducted concurrently with response operations with response agencies consistent with the NCP and any pre-incident plans de veloped under § 990.15(a) of this part. Trustees may develop pre-incident memoranda of understanding to coordi nate their activities with response agencies. (c) Responsible parties—(1) Invitation. Trustees must invite the responsible parties to participate in the natural re source damage assessment described in this part. The invitation to participate should be in writing, and a written re sponse by the responsible parties is re quired to confirm the desire to partici pate. (2) Timing. The invitation to partici pate should be extended to known re sponsible parties as soon as prac ticable, but not later than the delivery of the ‘‘Notice of Intent to Conduct Restoration Planning,’’ under § 990.44 of this part, to the responsible party. (3) Agreements. Trustees and respon sible parties should consider entering into binding agreements to facilitate their interactions and resolve any dis putes during the assessment. To maxi mize cost-effectiveness and coopera tion, trustees and responsible parties should attempt to develop a set of agreed-upon facts concerning the inci dent and/or assessment. (4) Nature and extent of participation. If the responsible parties accept the in vitation to participate, the scope of that participation must be determined by the trustees, in light of the consid erations in paragraph (c)(5) of this sec tion. At a minimum, participation will include notice of trustee determina tions required under this part, and no tice and opportunity to comment on documents or plans that significantly affect the nature and extent of the as sessment. Increased levels of participa tion by responsible parties may be de veloped at the mutual agreement of the trustees and the responsible parties. Trustees will objectively consider all written comments provided by the re sponsible parties, as well as any other recommendations or proposals that the responsible parties submit in writing to the Lead Administrative Trustee. Submissions by the responsible parties VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00427 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 418 15 CFR Ch. IX (1–1–21 Edition) § 990.15 will be included in the administrative record. Final authority to make deter minations regarding injury and res toration rest solely with the trustees. Trustees may end participation by re sponsible parties who, during the con duct of the assessment, in the sole judgment of the trustees, cause inter ference with the trustees’ ability to fulfill their responsibilities under OPA and this part. (5) Considerations. In determining the nature and extent of participation by the responsible parties or their rep resentatives, trustees may consider such factors as: (i) Whether the responsible parties have been identified; (ii) The willingness of responsible parties to participate in the assess ment; (iii) The willingness of responsible parties to fund assessment activities; (iv) The willingness and ability of re sponsible parties to conduct assess ment activities in a technically sound and timely manner and to be bound by the results of jointly agreed upon stud ies; (v) The degree of cooperation of the responsible parties in the response to the incident; and (vi) The actions of the responsible parties in prior assessments. (6) Request for alternative assessment procedures. (i) The participating respon sible parties may request that trustees use assessment procedures other than those selected by the trustees if the re sponsible parties: (A) Identify the proposed procedures to be used that meet the requirements of § 990.27 of this part, and provide rea sons supporting the technical adequacy and appropriateness of such procedures for the incident and associated inju ries; (B) Advance to the trustees the trust ees’ reasonable estimate of the cost of using the proposed procedures; and (C) Agree not to challenge the results of the proposed procedures. The request from the responsible parties may be made at any time, but no later than, fourteen (14) days of being notified of the trustees’ proposed assessment pro cedures for the incident or the injury. (ii) Trustees may reject the respon sible parties’ proposed assessment pro cedures if, in the sole judgment of the trustees, the proposed assessment pro cedures: (A) Are not technically feasible; (B) Are not scientifically or tech nically sound; (C) Would inadequately address the natural resources and services of con cern; (D) Could not be completed within a reasonable time frame; or (E) Do not meet the requirements of § 990.27 of this part. (7) Disclosure. Trustees must docu ment in the administrative record and Restoration Plan the invitation to the responsible parties to participate, and briefly describe the nature and extent of the responsible parties’ participa tion. If the responsible parties’ partici pation is terminated during the assess ment, trustees must provide a brief ex planation of this decision in the admin istrative record and Restoration Plan. (d) Public. Trustees must provide op portunities for public involvement after the trustees’ decision to develop restoration plans or issuance of any no tices to that effect, as provided in § 990.55 of this part. Trustees may also provide opportunities for public in volvement at any time prior to this de cision if such involvement may en hance trustees’ decisionmaking or avoid delays in restoration. § 990.15 Considerations to facilitate restoration. In addition to the procedures pro vided in subparts D through F of this part, trustees may take other actions to further the goal of expediting res toration of injured natural resources and services, including: (a) Pre-incident planning. Trustees may engage in pre-incident planning activities. Pre-incident plans may identify natural resource damage as sessment teams, establish trustee noti fication systems, identify support serv ices, identify natural resources and services at risk, identify area and re gional response agencies and officials, identify available baseline informa tion, establish data management sys tems, and identify assessment funding VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00428 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 419 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.23 issues and options. Potentially respon sible parties, as well as all other mem bers of the public interested in and ca pable of participating in assessments, should be included in pre-incident plan ning to the fullest extent practicable. (b) Regional Restoration Plans. Where practicable, incident-specific restora tion plan development is preferred, however, trustees may develop Re gional Restoration Plans. These plans may be used to support a claim under § 990.56 of this part. Regional restora tion planning may consist of compiling databases that identify, on a regional or watershed basis, or otherwise as ap propriate, existing, planned, or pro posed restoration projects that may provide appropriate restoration alter natives for consideration in the con text of specific incidents. Subpart B—Authorities § 990.20 Relationship to the CERCLA natural resource damage assess ment regulations. (a) General. Regulations for assessing natural resource damages resulting from hazardous substance releases under the Comprehensive Environ mental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9601 et seq., and the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 1321 et seq., are codified at 43 CFR part 11. The CERCLA regulations originally applied to natural resource damages resulting from oil discharges as well as haz ardous substance releases. This part supersedes 43 CFR part 11 with regard to oil discharges covered by OPA. (b) Assessments commenced before Feb ruary 5, 1996. If trustees commenced a natural resource damage assessment for an oil discharge under 43 CFR part 11 prior to February 5, 1996 they may complete the assessment in compliance with 43 CFR part 11, or they may elect to use this part, and obtain a rebutta ble presumption. (c) Oil and hazardous substance mix tures. For natural resource damages re sulting from a discharge or release of a mixture of oil and hazardous sub stances, trustees must use 43 CFR part 11 in order to obtain a rebuttable pre sumption. § 990.21 Relationship to the NCP. This part provides procedures by which trustees may determine appro priate restoration of injured natural resources and services, where such in juries are not fully addressed by re sponse actions. Response actions and the coordination with damage assess ment activities are conducted pursuant to the National Oil and Hazardous Sub stances Pollution Contingency Plan (NCP), 40 CFR part 300. § 990.22 Prohibition on double recov ery. When taking actions under this part, trustees are subject to the prohibition on double recovery, as provided in 33 U.S.C. 2706(d)(3) of OPA. § 990.23 Compliance with NEPA and the CEQ regulations. (a) General. The National Environ mental Policy Act (NEPA), 42 U.S.C. 4321 et seq. and Council on Environ mental Quality (CEQ) regulations im plementing NEPA, 40 CFR chapter V, apply to restoration actions by federal trustees, except where a categorical ex clusion or other exception to NEPA ap plies. Thus, when a federal trustee pro poses to take restoration actions under this part, it must integrate this part with NEPA, the CEQ regulations, and NEPA regulations promulgated by that federal trustee agency. Where state NEPA-equivalent laws may apply to state trustees, state trustees must con sider the extent to which they must in tegrate this part with their NEPA equivalent laws. The requirements and process described in this section relate only to NEPA and federal trustees. (b) NEPA requirements for federal trust ees. NEPA becomes applicable when federal trustees propose to take res toration actions, which begins with the development of a Draft Restoration Plan under § 990.55 of this part. Depend ing upon the circumstances of the inci dent, federal trustees may need to con sider early involvement of the public in restoration planning in order to meet their NEPA compliance requirements. (c) NEPA process for federal trustees. Although the steps in the NEPA proc ess may vary among different federal trustees, the process will generally in volve the need to develop restoration VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00429 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 420 15 CFR Ch. IX (1–1–21 Edition) § 990.23 plans in the form of an Environmental Assessment or Environmental Impact Statement, depending upon the trustee agency’s own NEPA regulations. (1) Environmental Assessment. (i) Pur pose. The purpose of an Environmental Assessment (EA) is to determine whether a proposed restoration action will have a significant (as defined under NEPA and § 1508.27 of the CEQ regulations) impact on the quality of the human environment, in which case an Environmental Impact Statement (EIS) evaluating the impact is re quired. In the alternative, where the impact will not be significant, federal trustees must issue a Finding of No Significant Impact (FONSI) as part of the restoration plans developed under this part. If significant impacts to the human environment are anticipated, the determination to proceed with an EIS may be made as a result, or in lieu, of the development of the EA. (ii) General steps. (A) If the trustees decide to pursue an EA, the trustees may issue a Notice of Intent to Prepare a Draft Restoration Plan/EA, or pro ceed directly to developing a Draft Restoration Plan/EA. (B) The Draft Restoration Plan/EA must be made available for public re view before concluding a FONSI or pro ceeding with an EIS. (C) If a FONSI is concluded, the res toration planning process should be no different than under § 990.55 of this part, except that the Draft Restoration Plan/EA will include the FONSI anal ysis. (D) The time period for public review on the Draft Restoration Plan/EA must be consistent with the federal trustee agency’s NEPA requirements, but should generally be no less than thirty (30) calendar days. (E) The Final Restoration Plan/EA must consider all public comments on the Draft Restoration Plan/EA and FONSI. (F) The means by which a federal trustee requests, considers, and re sponds to public comments on the Draft Restoration Plan/EA and FONSI must also be consistent with the fed eral agency’s NEPA requirements. (2) Environmental Impact Statement. (i) Purpose. The purpose of an Environ mental Impact Statement (EIS) is to involve the public and facilitate the de cisionmaking process in the federal trustees’ analysis of alternative ap proaches to restoring injured natural resources and services, where the im pacts of such restoration are expected to have significant impacts on the quality of the human environment. (ii) General steps. (A) If trustees de termine that restoration actions are likely to have a significant (as defined under NEPA and § 1508.27 of the CEQ regulations) impact on the environ ment, they must issue a Notice of In tent to Prepare a Draft Restoration Plan/EIS. The notice must be published in the FEDERAL REGISTER. (B) The notice must be followed by formal public involvement in the devel opment of the Draft Restoration Plan/ EIS. (C) The Draft Restoration Plan/EIS must be made available for public re view for a minimum of forty-five (45) calendar days. The Draft Restoration Plan/EIS, or a notice of its availability, must be published in the FEDERAL REG ISTER. (D) The Final Restoration Plan/EIS must consider all public comments on the Draft Restoration Plan/EIS, and in corporate any changes made to the Draft Restoration Plan/EIS in response to public comments. (E) The Final Restoration Plan/EIS must be made publicly available for a minimum of thirty (30) calendar days before a decision is made on the federal trustees’ proposed restoration actions (Record of Decision). The Final Res toration Plan/EIS, or a notice of its availability, must be published in the FEDERAL REGISTER. (F) The means by which a federal trustee agency requests, considers, and responds to public comments on the Final Restoration Plan/EIS must also be consistent with the federal agency’s NEPA requirements. (G) After appropriate public review on the Final Restoration Plan/EIS is completed, a Record of Decision (ROD) is issued. The ROD summarizes the trustees’ decisionmaking process after consideration of any public comments relative to the proposed restoration ac tions, identifies all restoration alter natives (including the preferred alter native(s)), and their environmental VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00430 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 421 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.26 consequences, and states whether all practicable means to avoid or minimize environmental harm were adopted (e.g., monitoring and corrective ac tions). The ROD may be incorporated with other decision documents pre pared by the trustees. The means by which the ROD is made publicly avail able must be consistent with the fed eral trustee agency’s NEPA require ments. (d) Relationship to Regional Restoration Plans or an existing restoration project. If a Regional Restoration Plan or exist ing restoration project is proposed for use, federal trustees may be able to tier their NEPA analysis to an existing EIS, as described in §§ 1502.20 and 1508.28 of the CEQ regulations. § 990.24 Compliance with other appli cable laws and regulations. (a) Worker health and safety. When taking actions under this part, trustees must comply with applicable worker health and safety considerations speci fied in the NCP for response actions. (b) Natural Resources protection. When acting under this part, trustees must ensure compliance with any applicable consultation, permitting, or review re quirements, including but not limited to: the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.; the Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq.; the Migratory Bird Treaty Act, 16 U.S.C. 703 et seq.; the National Ma rine Sanctuaries Act, 16 U.S.C. 1431 et seq.; the National Historic Preservation Act, 12 U.S.C. 470 et seq.; the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.; and the Archaeological Re sources Protection Act, 16 U.S.C. 470 et seq. § 990.25 Settlement. Trustees may settle claims for nat ural resource damages under this part at any time, provided that the settle ment is adequate in the judgment of the trustees to satisfy the goal of OPA and is fair, reasonable, and in the pub lic interest, with particular consider ation of the adequacy of the settlement to restore, replace, rehabilitate, or ac quire the equivalent of the injured nat ural resources and services. Sums re covered in settlement of such claims, other than reimbursement of trustee costs, may only be expended in accord ance with a restoration plan, which may be set forth in whole or in part in a consent decree or other settlement agreement, which is made available for public review. § 990.26 Emergency restoration. (a) Trustees may take emergency res toration action before completing the process established under this part, provided that: (1) The action is needed to avoid irre versible loss of natural resources, or to prevent or reduce any continuing dan ger to natural resources or similar need for emergency action; (2) The action will not be undertaken by the lead response agency; (3) The action is feasible and likely to succeed; (4) Delay of the action to complete the restoration planning process estab lished in this part likely would result in increased natural resource damages; and (5) The costs of the action are not un reasonable. (b) If response actions are still under way, trustees must coordinate with the On-Scene Coordinator (OSC), con sistent with the NCP, to ensure that emergency restoration actions will not interfere with or duplicate ongoing re sponse actions. Emergency restoration may not address residual oil unless: (1) The OSC’s response is complete; or (2) The OSC has determined that the residual oil identified by the trustee as part of a proposed emergency restora tion action does not merit further re sponse. (c) Trustees must provide notice to identified responsible parties of any emergency restoration actions and, to the extent time permits, invite their participation in the conduct of those actions as provided in § 990.14(c) of this part. (d) Trustees must provide notice to the public, to the extent practicable, of these planned emergency restoration actions. Trustees must also provide public notice of the justification for, nature and extent of, and results of emergency restoration actions within a reasonable time frame after comple tion of such actions. The means by VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00431 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 422 15 CFR Ch. IX (1–1–21 Edition) § 990.27 which this notice is provided is left to the discretion of the trustee. [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61492, Oct. 1, 2002] § 990.27 Use of assessment procedures. (a) Standards for assessment proce dures. Any procedures used pursuant to this part must comply with all of the following standards if they are to be in accordance with this part: (1) The procedure must be capable of providing assessment information of use in determining the type and scale of restoration appropriate for a par ticular injury; (2) The additional cost of a more complex procedure must be reasonably related to the expected increase in the quantity and/or quality of relevant in formation provided by the more com plex procedure; and (3) The procedure must be reliable and valid for the particular incident. (b) Assessment procedures available. (1) The range of assessment procedures available to trustees includes, but is not limited to: (i) Procedures conducted in the field; (ii) Procedures conducted in the lab oratory; (iii) Model-based procedures, includ ing type A procedures identified in 43 CFR part 11, subpart D, and compensa tion formulas/schedules; and (iv) Literature-based procedures. (2) Trustees may use the assessment procedures in paragraph (b)(1) of this section alone, or in any combination, provided that the standards in para graph (a) of this section are met, and there is no double recovery. (c) Selecting assessment procedures. (1) When selecting assessment procedures, trustees must consider, at a minimum: (i) The range of procedures available under paragraph (b) of this section; (ii) The time and cost necessary to implement the procedures; (iii) The potential nature, degree, and spatial and temporal extent of the in jury; (iv) The potential restoration actions for the injury; and (v) The relevance and adequacy of in formation generated by the procedures to meet information requirements of restoration planning. (2) If a range of assessment proce dures providing the same type and quality of information is available, the most cost-effective procedure must be used. Subpart C—Definitions § 990.30 Definitions. For the purpose of this rule, the term: Baseline means the condition of the natural resources and services that would have existed had the incident not occurred. Baseline data may be es timated using historical data, ref erence data, control data, or data on incremental changes (e.g., number of dead animals), alone or in combina tion, as appropriate. Cost-effective means the least costly activity among two or more activities that provide the same or a comparable level of benefits, in the judgment of the trustees. CEQ regulations means the Council on Environmental Quality regulations im plementing NEPA, 40 CFR chapter V. Damages means damages specified in section 1002(b) of OPA (33 U.S.C. 1002(b)), and includes the costs of as sessing these damages, as defined in section 1001(5) of OPA (33 U.S.C. 2701(5)). Discharge means any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dump ing, as defined in section 1001(7) of OPA (33 U.S.C. 2701(7)). Exclusive Economic Zone means the zone established by Presidential Proc lamation 5030 of March 10, 1983 (3 CFR, 1984 Comp., p. 22), including the ocean waters of the areas referred to as ‘‘eastern special areas’’ in Article 3(1) of the Agreement between the United States of America and the Union of So viet Socialist Republics on the Mari time Boundary, signed June 1, 1990, as defined in section 1001(8) of OPA (33 U.S.C. 2701(8)). Exposure means direct or indirect contact with the discharged oil. Facility means any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00432 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 423 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.30 exploring for, drilling for, producing, storing, handling, transferring, proc essing, or transporting oil. This term includes any motor vehicle, rolling stock, or pipeline used for one or more of these purposes, as defined in section 1001(9) of OPA (33 U.S.C. 2701(9)). Fund means the Oil Spill Liability Trust Fund, established by section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), as defined in section 1001(11) of OPA (33 U.S.C. 2701(11)). Incident means any occurrence or se ries of occurrences having the same or igin, involving one or more vessels, fa cilities, or any combination thereof, resulting in the discharge or substan tial threat of discharge of oil into or upon navigable waters or adjoining shorelines or the Exclusive Economic Zone, as defined in section 1001(14) of OPA (33 U.S.C. 2701(14)). Indian tribe (or tribal) means any In dian tribe, band, nation, or other orga nized group or community, but not in cluding any Alaska Native regional or village corporation, which is recog nized as eligible for the special pro grams and services provided by the United States to Indians because of their status as Indians and has govern mental authority over lands belonging to or controlled by the tribe, as defined in section 1001(15) of OPA (33 U.S.C. 2701(15)). Indirect costs means expenses that are jointly or commonly incurred to produce two or more products or serv ices. In contrast to direct costs, indi rect costs are not specifically identifi able with any of the products or serv ices, but are necessary for the organi zation to function and produce the products or services. An indirect cost rate, developed in accordance with gen erally accepted accounting principles, may be used to allocate indirect costs to specific assessment and restoration activities. Both direct and indirect costs contribute to the full cost of the assessment and restoration, as pro vided in this part. Injury means an observable or meas urable adverse change in a natural re source or impairment of a natural re source service. Injury may occur di rectly or indirectly to a natural re source and/or service. Injury incor porates the terms ‘‘destruction,’’ ‘‘loss,’’ and ‘‘loss of use’’ as provided in OPA. Lead Administrative Trustee(s) (or LAT) means the trustee(s) who is se lected by all participating trustees whose natural resources or services are injured by an incident, for the purpose of coordinating natural resource dam age assessment activities. The LAT(s) should also facilitate communication between the OSC and other natural re source trustees regarding their activi ties during the response phase. Legal costs means the costs of attor ney actions performed for the purpose of assessment or developing a restora tion plan, in accordance with this part. (1) When making a determination of the nature of attorneys’ actions for purposes of this definition, trustees must consider whether: (i) The action comprised all or part of an action specified either in this part or in OPA section 1006(c); (ii) The action was performed prior to, or in the absence of, the filing of li gation by or on behalf of the trustee in question to recover damages; and (iii) The action was performed by an attorney who was working for or on be half of the trustee agency, as opposed to a prosecutorial agency. (2) If all of the criteria in paragraph (1) of this definition are met, the costs associated with attorney’s actions are deemed assessment costs. If the cri teria are not met, the trustee must ex plain why the action was not per formed for the primary purpose of fur thering litigation in order to support a characterization of the action as an as sessment action. (3) Examples of common or routine assessment actions that may be most appropriately performed by trustee at torneys, in accordance with this part, include, but are not limited to: (i) Providing written and oral advice on the requirements of OPA, this part, and other applicable laws; (ii) Preparing public notices, includ ing the Notice of Intent to Conduct Restoration Planning issued to respon sible parties and the Notice of Avail ability of Draft Restoration Plans; (iii) Developing and managing admin istrative records; (iv) Preparing binding agreements with potentially responsible parties in VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00433 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 424 15 CFR Ch. IX (1–1–21 Edition) § 990.30 the context of the assessment, includ ing study agreements, funding agree ments, and restoration agreements; (v) Preparing co-trustee cooperative agreements; (vi) Preparing formal trustee deter minations required under this part; and (vii) Procuring title searches, title insurance, and/or conservation ease ments when property agreements are part of restoration packages. NCP means the National Oil and Haz ardous Substances Pollution Contin gency Plan (National Contingency Plan) codified at 40 CFR part 300, which addresses the identification, investiga tion, study, and response to incidents, as defined in section 1001(19) of OPA (33 U.S.C. 2701(19)). Natural resource damage assessment (or assessment) means the process of col lecting and analyzing information to evaluate the nature and extent of inju ries resulting from an incident, and de termine the restoration actions needed to bring injured natural resources and services back to baseline and make the environment and public whole for in terim losses. Natural resources means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, apper taining to, or otherwise controlled by the United States (including the re sources of the Exclusive Economic Zone), any state or local government or Indian tribe, or any foreign govern ment, as defined in section 1001(20) of OPA (33 U.S.C. 2701(20)). Navigable waters means the waters of the United States, including the terri torial sea, as defined in section 1001(21) of OPA (33 U.S.C. 2701(21)). NEPA means the National Environ mental Policy Act, 42 U.S.C. 4321 et seq. Oil means oil of any kind or in any form, including, but not limited to, pe troleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil. However, the term does not include petroleum, including crude oil or any fraction thereof, that is spe cifically listed or designated as a haz ardous substance under 42 U.S.C. 9601(14)(A) through (F), as defined in section 1001(23) of OPA (33 U.S.C. 2701(23)). On-Scene Coordinator (or OSC) means the official designated by the U.S. En vironmental Protection Agency or the U.S. Coast Guard to coordinate and di rect response actions under the NCP, or the government official designated by the lead response agency to coordi nate and direct response actions under the NCP. OPA means the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq. Pathway means any link that con nects the incident to a natural re source and/or service, and is associated with an actual discharge of oil. Person means an individual, corpora tion, partnership, association, state, municipality, commission, or political subdivision of a state, or any interstate body, as defined in section 1001(27) of OPA (33 U.S.C. 2701(27)). Public vessel means a vessel owned or bareboat chartered and operated by the United States, or by a state or political subdivision thereof, or by a foreign na tion, except when the vessel is engaged in commerce, as defined in section 1001(29) of OPA (33 U.S.C. 2701(29)). Reasonable assessment costs means, for assessments conducted under this part, assessment costs that are incurred by trustees in accordance with this part. In cases where assessment costs are in curred but trustees do not pursue res toration, trustees may recover their reasonable assessment costs provided they have determined that assessment actions undertaken were premised on the likelihood of injury and need for restoration. Reasonable assessment costs also include: administrative costs, legal costs, and other costs nec essary to carry out this part; moni toring and oversight costs; costs asso ciated with public participation; and indirect costs that are necessary to carry out this part. Recovery means the return of injured natural resources and services to base line. Response (or remove or removal) means containment and removal of oil or a hazardous substance from water and shorelines or the taking of other ac tions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00434 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 425 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.30 and beaches, as defined in section 1001(30) of OPA (33 U.S.C. 2701(30)). Responsible party means: (a) Vessels. In the case of a vessel, any person owning, operating, or demise chartering the vessel. (b) Onshore facilities. In the case of an onshore facility (other than a pipeline), any person owning or operating the fa cility, except a federal agency, state, municipality, commission, or political subdivision of a state, or any interstate body, that as the owner transfers pos session and right to use the property to another person by lease, assignment, or permit. (c) Offshore facilities. In the case of an offshore facility (other than a pipeline or a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the area in which the facility is located or the holder of a right of use and ease ment granted under applicable state law or the Outer Continental Shelf Lands Act (43 U.S.C. 1301–1356) for the area in which the facility is located (if the holder is a different person than the lessee or permittee), except a fed eral agency, state, municipality, com mission, or political subdivision of a state, or any interstate body, that as owner transfers possession and right to use the property to another person by lease, assignment, or permit. (d) Deepwater ports. In the case of a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501–1524), the licensee. (e) Pipelines. In the case of a pipeline, any person owning or operating the pipeline. (f) Abandonment. In the case of an abandoned vessel, onshore facility, deepwater port, pipeline, or offshore fa cility, the persons who would have been responsible parties immediately prior to the abandonment of the vessel or facility, as defined in section 1001(32) of OPA (33 U.S.C. 2701(32)). Restoration means any action (or al ternative), or combination of actions (or alternatives), to restore, rehabili tate, replace, or acquire the equivalent of injured natural resources and serv ices. Restoration includes: (a) Primary restoration, which is any action, including natural recovery, that returns injured natural resources and services to baseline; and (b) Compensatory restoration, which is any action taken to compensate for in terim losses of natural resources and services that occur from the date of the incident until recovery. Services (or natural resource services) means the functions performed by a natural resource for the benefit of an other natural resource and/or the pub lic. Trustees (or natural resource trustees) means those officials of the federal and state governments, of Indian tribes, and of foreign governments, designated under 33 U.S.C. 2706(b) of OPA. United States and State means the sev eral States of the United States, the District of Columbia, the Common wealth of Puerto Rico, Guam, Amer ican Samoa, the United States Virgin Islands, the Commonwealth of the Northern Marianas, and any other ter ritory or possession of the United States, as defined in section 1001(36) of OPA (33 U.S.C. 2701(36)). Value means the maximum amount of goods, services, or money an indi vidual is willing to give up to obtain a specific good or service, or the min imum amount of goods, services, or money an individual is willing to ac cept to forgo a specific good or service. The total value of a natural resource or service includes the value individuals derive from direct use of the natural resource, for example, swimming, boat ing, hunting, or birdwatching, as well as the value individuals derive from knowing a natural resource will be available for future generations. Vessel means every description of watercraft or other artificial contriv ance used, or capable of being used, as a means of transportation on water, other than a public vessel, as defined in section 1001(37) of OPA (33 U.S.C. 2701(37)). [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00435 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 426 15 CFR Ch. IX (1–1–21 Edition) § 990.40 Subpart D—Preassessment Phase § 990.40 Purpose. The purpose of this subpart is to pro vide a process by which trustees deter mine if they have jurisdiction to pur sue restoration under OPA and, if so, whether it is appropriate to do so. § 990.41 Determination of jurisdiction. (a) Determination of jurisdiction. Upon learning of an incident, trustees must determine whether there is jurisdiction to pursue restoration under OPA. To make this determination, trustees must decide if: (1) An incident has occurred, as de fined in § 990.30 of this part; (2) The incident is not: (i) Permitted under a permit issued under federal, state, or local law; or (ii) From a public vessel; or (iii) From an onshore facility subject to the Trans-Alaska Pipeline Author ity Act, 43 U.S.C. 1651, et seq.; and (3) Natural resources under the trust eeship of the trustee may have been, or may be, injured as a result of the inci dent. (b) Proceeding with preassessment. If the conditions listed in paragraph (a) of this section are met, trustees may proceed under this part. If one of the conditions is not met, trustees may not take additional action under this part, except action to finalize this deter mination. Trustees may recover all reasonable assessment costs incurred up to this point provided that condi tions in paragraphs (a)(1) and (a)(2) of this section were met and actions were taken with the reasonable belief that natural resources or services under their trusteeship might have been in jured as a result of the incident. § 990.42 Determination to conduct res toration planning. (a) Determination on restoration plan ning. If trustees determine that there is jurisdiction to pursue restoration under OPA, trustees must determine whether: (1) Injuries have resulted, or are like ly to result, from the incident; (2) Response actions have not ade quately addressed, or are not expected to address, the injuries resulting from the incident; and (3) Feasible primary and/or compen satory restoration actions exist to ad dress the potential injuries. (b) Proceeding with preassessment. If the conditions listed in paragraph (a) of this section are met, trustees may proceed under § 990.44 of this part. If one of these conditions is not met, trustees may not take additional ac tion under this part, except action to finalize this determination. However, trustees may recover all reasonable as sessment costs incurred up to this point. § 990.43 Data collection. Trustees may conduct data collection and analyses that are reasonably re lated to Preassessment Phase activi ties. Data collection and analysis dur ing the Preassessment Phase must be coordinated with response actions such that collection and analysis does not interfere with response actions. Trust ees may collect and analyze the fol lowing types of data during the Preassessment Phase: (a) Data reasonably expected to be necessary to make a determination of jurisdiction under § 990.41 of this part, or a determination to conduct restora tion planning under § 990.42 of this part; (b) Ephemeral data; and (c) Information needed to design or implement anticipated assessment pro cedures under subpart E of this part. § 990.44 Notice of Intent to Conduct Restoration Planning. (a) General. If trustees determine that all the conditions under § 990.42(a) of this part are met and trustees decide to proceed with the natural resource damage assessment, they must prepare a Notice of Intent to Conduct Restora tion Planning. (b) Contents of the notice. The Notice of Intent to Conduct Restoration Plan ning must include a discussion of the trustees’ analyses under §§ 990.41 and 990.42 of this part. Depending on infor mation available at this point, the no tice may include the trustees’ proposed strategy to assess injury and determine the type and scale of restoration. The contents of a notice may vary, but will typically discuss: (1) The facts of the incident; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00436 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 427 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.51 (2) Trustee authority to proceed with the assessment; (3) Natural resources and services that are, or are likely to be, injured as a result of the incident; (4) Potential restoration actions rel evant to the expected injuries; and (5) If determined at the time, poten tial assessment procedures to evaluate the injuries and define the appropriate type and scale of restoration for the in jured natural resources and services. (c) Public availability of the notice. Trustees must make a copy of the No tice of Intent to Conduct Restoration Planning publicly available. The means by which the notice is made publicly available and whether public com ments are solicited on the notice will depend on the nature and extent of the incident and various information re quirements, and is left to the discre tion of the trustees. (d) Delivery of the notice to the respon sible parties. Trustees must send a copy of the notice to the responsible parties, to the extent known, in such a way as will establish the date of receipt, and invite responsible parties’ participa tion in the conduct of restoration plan ning. Consistent with § 990.14(c) of this part, the determination of the timing, nature, and extent of responsible party participation will be determined by the trustees on an incident-specific basis. § 990.45 Administrative record. (a) If trustees decide to proceed with restoration planning, they must open a publicly available administrative record to document the basis for their decisions pertaining to restoration. The administrative record should be opened concurrently with the publica tion of the Notice of Intent to Conduct Restoration Planning. Depending on the nature and extent of the incident and assessment, the administrative record should include documents relied upon during the assessment, such as: (1) Any notice, draft and final res toration plans, and public comments; (2) Any relevant data, investigation reports, scientific studies, work plans, quality assurance plans, and literature; and (3) Any agreements, not otherwise privileged, among the participating trustees or with the responsible par ties. (b) Federal trustees should maintain the administrative record in a manner consistent with the Administrative Procedure Act, 5 U.S.C. 551–59, 701–06. Subpart E—Restoration Planning Phase § 990.50 Purpose. The purpose of this subpart is to pro vide a process by which trustees evalu ate and quantify potential injuries (in jury assessment), and use that infor mation to determine the need for and scale of restoration actions (restora tion selection). § 990.51 Injury assessment—injury de termination. (a) General. After issuing a Notice of Intent to Conduct Restoration Plan ning under § 990.44 of this part, trustees must determine if injuries to natural resources and/or services have resulted from the incident. (b) Determining injury. To make the determination of injury, trustees must evaluate if: (1) The definition of injury has been met, as defined in § 990.30 of this part; and (2)(i) An injured natural resource has been exposed to the discharged oil, and a pathway can be established from the discharge to the exposed natural re source; or (ii) An injury to a natural resource or impairment of a natural resource serv ice has occurred as a result of response actions or a substantial threat of a dis charge of oil. (c) Identifying injury. Trustees must determine whether an injury has oc curred and, if so, identify the nature of the injury. Potential categories of in jury include, but are not limited to, ad verse changes in: survival, growth, and reproduction; health, physiology and biological condition; behavior; commu nity composition; ecological processes and functions; physical and chemical habitat quality or structure; and public services. (d) Establishing exposure and pathway. Except for injuries resulting from re sponse actions or incidents involving a substantial threat of a discharge of oil, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00437 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 428 15 CFR Ch. IX (1–1–21 Edition) § 990.52 trustees must establish whether nat ural resources were exposed, either di rectly or indirectly, to the discharged oil from the incident, and estimate the amount or concentration and spatial and temporal extent of the exposure. Trustees must also determine whether there is a pathway linking the incident to the injuries. Pathways may include, but are not limited to, the sequence of events by which the discharged oil was transported from the incident and ei ther came into direct physical contact with a natural resource, or caused an indirect injury. (e) Injuries resulting from response ac tions or incidents involving a substantial threat of a discharge. For injuries re sulting from response actions or inci dents involving a substantial threat of a discharge of oil, trustees must deter mine whether an injury or an impair ment of a natural resource service has occurred as a result of the incident. (f) Selection of injuries to include in the assessment. When selecting potential in juries to assess, trustees should con sider factors such as: (1) The natural resources and services of concern; (2) The procedures available to evalu ate and quantify injury, and associated time and cost requirements; (3) The evidence indicating exposure; (4) The pathway from the incident to the natural resource and/or service of concern; (5) The adverse change or impairment that constitutes injury; (6) The evidence indicating injury; (7) The mechanism by which injury occurred; (8) The potential degree, and spatial and temporal extent of the injury; (9) The potential natural recovery pe riod; and (10) The kinds of primary and/or com pensatory restoration actions that are feasible. § 990.52 Injury assessment—quantifica tion. (a) General. In addition to deter mining whether injuries have resulted from the incident, trustees must quan tify the degree, and spatial and tem poral extent of such injuries relative to baseline. (b) Quantification approaches. Trust ees may quantify injuries in terms of: (1) The degree, and spatial and tem poral extent of the injury to a natural resource; (2) The degree, and spatial and tem poral extent of injury to a natural re source, with subsequent translation of that adverse change to a reduction in services provided by the natural re source; or (3) The amount of services lost as a result of the incident. (c) Natural recovery. To quantify in jury, trustees must estimate, quan titatively or qualitatively, the time for natural recovery without restoration, but including any response actions. The analysis of natural recovery may consider such factors as: (1) The nature, degree, and spatial and temporal extent of injury; (2) The sensitivity and vulnerability of the injured natural resource and/or service; (3) The reproductive and recruitment potential; (4) The resistance and resilience (sta bility) of the affected environment; (5) The natural variability; and (6) The physical/chemical processes of the affected environment. § 990.53 Restoration selection—devel oping restoration alternatives. (a) General. (1) If the information on injury determination and quantifica tion under §§ 990.51 and 990.52 of this part and its relevance to restoration justify restoration, trustees may pro ceed with the Restoration Planning Phase. Otherwise, trustees may not take additional action under this part. However, trustees may recover all rea sonable assessment costs incurred up to this point. (2) Trustees must consider a reason able range of restoration alternatives before selecting their preferred alter native(s). Each restoration alternative is comprised of primary and/or compen satory restoration components that ad dress one or more specific injury(ies) associated with the incident. Each al ternative must be designed so that, as a package of one or more actions, the VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00438 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 429 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.53 alternative would make the environ ment and public whole. Only those al ternatives considered technically fea sible and in accordance with applicable laws, regulations, or permits may be considered further under this part. (b) Primary restoration—(1) General. For each alternative, trustees must consider primary restoration actions, including a natural recovery alter native. (2) Natural recovery. Trustees must consider a natural recovery alternative in which no human intervention would be taken to directly restore injured natural resources and services to base line. (3) Active primary restoration actions. Trustees must consider an alternative comprised of actions to directly restore the natural resources and services to baseline on an accelerated time frame. When identifying such active primary restoration actions, trustees may con sider actions that: (i) Address conditions that would pre vent or limit the effectiveness of any restoration action; (ii) May be necessary to return the physical, chemical, and/or biological conditions necessary to allow recovery or restoration of the injured natural resources (e.g., replacing substrate or vegetation, or modifying hydrologic conditions); or (iii) Return key natural resources and services, and would be an effective approach to achieving or accelerating a return to baseline (e.g., replacing es sential species, habitats, or public serv ices that would facilitate the replace ment of other, dependent natural re source or service components). (c) Compensatory restoration—(1) Gen eral. For each alternative, trustees must also consider compensatory res toration actions to compensate for the interim loss of natural resources and services pending recovery. (2) Compensatory restoration actions. To the extent practicable, when evalu ating compensatory restoration ac tions, trustees must consider compen satory restoration actions that provide services of the same type and quality, and of comparable value as those in jured. If, in the judgment of the trust ees, compensatory actions of the same type and quality and comparable value cannot provide a reasonable range of alternatives, trustees should identify actions that provide natural resources and services of comparable type and quality as those provided by the in jured natural resources. Where the in jured and replacement natural re sources and services are not of com parable value, the scaling process will involve valuation of lost and replace ment services. (d) Scaling restoration actions—(1) Gen eral. After trustees have identified the types of restoration actions that will be considered, they must determine the scale of those actions that will make the environment and public whole. For primary restoration actions, scaling generally applies to actions involving replacement and/or acquisition of equivalent of natural resources and/or services. (2) Resource-to-resource and service-to service scaling approaches. When deter mining the scale of restoration actions that provide natural resources and/or services of the same type and quality, and of comparable value as those lost, trustees must consider the use of a re source-to-resource or service-to-service scaling approach. Under this approach, trustees determine the scale of restora tion actions that will provide natural resources and/or services equal in quan tity to those lost. (3) Valuation scaling approach. (i) Where trustees have determined that neither resource-to-resource nor serv ice-to-service scaling is appropriate, trustees may use the valuation scaling approach. Under the valuation scaling approach, trustees determine the amount of natural resources and/or services that must be provided to produce the same value lost to the pub lic. Trustees must explicitly measure the value of injured natural resources and/or services, and then determine the scale of the restoration action nec essary to produce natural resources and/or services of equivalent value to the public. (ii) If, in the judgment of the trust ees, valuation of the lost services is practicable, but valuation of the re placement natural resources and/or services cannot be performed within a reasonable time frame or at a reason able cost, as determined by § 990.27(a)(2) VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00439 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 430 15 CFR Ch. IX (1–1–21 Edition) § 990.54 of this part, trustees may estimate the dollar value of the lost services and se lect the scale of the restoration action that has a cost equivalent to the lost value. The responsible parties may re quest that trustees value the natural resources and services provided by the restoration action following the proc ess described in § 990.14(c) of this part. (4) Discounting and uncertainty. When scaling a restoration action, trustees must evaluate the uncertainties associ ated with the projected consequences of the restoration action, and must dis count all service quantities and/or val ues to the date the demand is presented to the responsible parties. Where fea sible, trustees should use risk-adjusted measures of losses due to injury and of gains from the restoration action, in conjunction with a riskless discount rate representing the consumer rate of time preference. If the streams of losses and gains cannot be adequately adjusted for risks, then trustees may use a discount rate that incorporates a suitable risk adjustment to the riskless rate. [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] § 990.54 Restoration selection—evalua tion of alternatives. (a) Evaluation standards. Once trust ees have developed a reasonable range of restoration alternatives under § 990.53 of this part, they must evaluate the proposed alternatives based on, at a minimum: (1) The cost to carry out the alter native; (2) The extent to which each alter native is expected to meet the trustees’ goals and objectives in returning the injured natural resources and services to baseline and/or compensating for in terim losses; (3) The likelihood of success of each alternative; (4) The extent to which each alter native will prevent future injury as a result of the incident, and avoid collat eral injury as a result of implementing the alternative; (5) The extent to which each alter native benefits more than one natural resource and/or service; and (6) The effect of each alternative on public health and safety. (b) Preferred restoration alternatives. Based on an evaluation of the factors under paragraph (a) of this section, trustees must select a preferred res toration alternative(s). If the trustees conclude that two or more alternatives are equally preferable based on these factors, the trustees must select the most cost-effective alternative. (c) Pilot projects. Where additional in formation is needed to identify and evaluate the feasibility and likelihood of success of restoration alternatives, trustees may implement restoration pilot projects. Pilot projects should only be undertaken when, in the judg ment of the trustees, these projects are likely to provide the information, de scribed in paragraph (a) of this section, at a reasonable cost and in a reason able time frame. § 990.55 Restoration selection—devel oping restoration plans. (a) General. OPA requires that dam ages be based upon a plan developed with opportunity for public review and comment. To meet this requirement, trustees must, at a minimum, develop a Draft and Final Restoration Plan, with an opportunity for public review of and comment on the draft plan. (b) Draft Restoration Plan. (1) The Draft Restoration Plan should include: (i) A summary of injury assessment procedures used; (ii) A description of the nature, de gree, and spatial and temporal extent of injuries resulting from the incident; (iii) The goals and objectives of res toration; (iv) The range of restoration alter natives considered, and a discussion of how such alternatives were developed under § 990.53 of this part, and evalu ated under § 990.54 of this part; (v) Identification of the trustees’ ten tative preferred alternative(s); (vi) A description of past and pro posed involvement of the responsible parties in the assessment; and (vii) A description of monitoring for documenting restoration effectiveness, including performance criteria that will be used to determine the success of restoration or need for interim correc tive action. (2) When developing the Draft Res toration Plan, trustees must establish VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00440 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 431 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.56 restoration objectives that are specific to the injuries. These objectives should clearly specify the desired outcome, and the performance criteria by which successful restoration will be judged. Performance criteria may include structural, functional, temporal, and/or other demonstrable factors. Trustees must, at a minimum, determine what criteria will: (i) Constitute success, such that re sponsible parties are relieved of respon sibility for further restoration actions; or (ii) Necessitate corrective actions in order to comply with the terms of a restoration plan or settlement agree ment. (3) The monitoring component to the Draft Restoration Plan should address such factors as duration and frequency of monitoring needed to gauge progress and success, level of sampling needed to detect success or the need for cor rective action, and whether monitoring of a reference or control site is needed to determine progress and success. Reasonable monitoring and oversight costs cover those activities necessary to gauge the progress, performance, and success of the restoration actions developed under the plan. (c) Public review and comment. The na ture of public review and comment on the Draft and Final Restoration Plans will depend on the nature of the inci dent and any applicable federal trustee NEPA requirements, as described in §§ 990.14(d) and 990.23 of this part. (d) Final Restoration Plan. Trustees must develop a Final Restoration Plan that includes the information specified in paragraph (a) of this section, re sponses to public comments, if applica ble, and an indication of any changes made to the Draft Restoration Plan. § 990.56 Restoration selection—use of a Regional Restoration Plan or exist ing restoration project. (a) General. Trustees may consider using a Regional Restoration Plan or existing restoration project where such a plan or project is determined to be the preferred alternative among a range of feasible restoration alter natives for an incident, as determined under § 990.54 of this part. Such plans or projects must be capable of fulfilling OPA’s intent for the trustees to re store, rehabilitate, replace, or acquire the equivalent of the injured natural resources and services and compensate for interim losses. (b) Existing plans or projects—(1) Con siderations. Trustees may select a com ponent of a Regional Restoration Plan or an existing restoration project as the preferred alternative, provided that the plan or project: (i) Was developed with public review and comment or is subject to public re view and comment under this part; (ii) Will adequately compensate the environment and public for injuries re sulting from the incident; (iii) Addresses, and is currently rel evant to, the same or comparable nat ural resources and services as those identified as having been injured; and (iv) Allows for reasonable scaling rel ative to the incident. (2) Demand. (i) If the conditions of paragraph (b)(1) of this section are met, the trustees must invite the respon sible parties to implement that compo nent of the Regional Restoration Plan or existing restoration project, or ad vance to the trustees the trustees’ rea sonable estimate of the cost of imple menting that component of the Re gional Restoration Plan or existing restoration project. (ii) If the conditions of paragraph (b)(1) of this section are met, but the trustees determine that the scale of the existing plan or project is greater than the scale of compensation re quired by the incident, trustees may only request funding from the respon sible parties equivalent to the scale of the restoration determined to be appro priate for the incident of concern. Trustees may pool such partial recov eries until adequate funding is avail able to successfully implement the ex isting plan or project. (3) Notice of Intent To Use a Regional Restoration Plan or Existing Restoration Project. If trustees intend to use an ap propriate component of a Regional Res toration Plan or existing restoration project, they must prepare a Notice of Intent to Use a Regional Restoration Plan or Existing Restoration Project. Trustees must make a copy of the no tice publicly available. The notice must include, at a minimum: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00441 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 432 15 CFR Ch. IX (1–1–21 Edition) § 990.60 (i) A description of the nature, de gree, and spatial and temporal extent of injuries; and (ii) A description of the relevant component of the Regional Restoration Plan or existing restoration project; and (iii) An explanation of how the condi tions set forth in paragraph (b)(1) of this section are met. Subpart F—Restoration Implementation Phase § 990.60 Purpose. The purpose of this subpart is to pro vide a process for implementing res toration. § 990.61 Administrative record. (a) Closing the administrative record for restoration planning. Within a reason able time after the trustees have com pleted restoration planning, as pro vided in §§ 990.55 and 990.56 of this part, they must close the administrative record. Trustees may not add docu ments to the administrative record once it is closed, except where such documents: (1) Are offered by interested parties that did not receive actual or construc tive notice of the Draft Restoration Plan and the opportunity to comment on the plan; (2) Do not duplicate information al ready contained in the administrative record; and (3) Raise significant issues regarding the Final Restoration Plan. (b) Opening an administrative record for restoration implementation. Trustees may open an administrative record for implementation of restoration, as pro vided in § 990.45 of this part. The costs associated with the administrative record are part of the costs of restora tion. Ordinarily, the administrative record for implementation of restora tion should document, at a minimum, all Restoration Implementation Phase decisions, actions, and expenditures, including any modifications made to the Final Restoration Plan. § 990.62 Presenting a demand. (a) General. After closing the admin istrative record for restoration plan ning, trustees must present a written demand to the responsible parties. De livery of the demand should be made in a manner that establishes the date of receipt by the responsible parties. (b) When a Final Restoration Plan has been developed. Except as provided in paragraph (c) of this section and in § 990.14(c) of this part, the demand must invite the responsible parties to either: (1) Implement the Final Restoration Plan subject to trustee oversight and reimburse the trustees for their assess ment and oversight costs; or (2) Advance to the trustees a speci fied sum representing all trustee direct and indirect costs of assessment and restoration, discounted as provided in § 990.63(a) of this part. (c) Regional Restoration Plan or exist ing restoration project. When the trust ees use a Regional Restoration Plan or an existing restoration project under § 990.56 of this part, the demand will in vite the responsible parties to imple ment a component of a Regional Res toration Plan or existing restoration project, or advance the trustees’ esti mate of damages based on the scale of the restoration determined to be appro priate for the incident of concern, which may be the entire project or a portion thereof. (d) Response to demand. The respon sible parties must respond within nine ty (90) calendar days in writing by pay ing or providing binding assurance they will reimburse trustees’ assess ment costs and implement the plan or pay assessment costs and the trustees’ estimate of the costs of implementa tion. (e) Additional contents of demand. The demand must also include: (1) Identification of the incident from which the claim arises; (2) Identification of the trustee(s) as serting the claim and a statement of the statutory basis for trusteeship; (3) A brief description of the injuries for which the claim is being brought; (4) An index to the administrative record; (5) The Final Restoration Plan or No tice of Intent to Use a Regional Res toration Plan or Existing Restoration Project; and (6) A request for reimbursement of: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00442 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 433 Nat’l Oceanic and Atmospheric Adm., Commerce § 990.65 (i) Reasonable assessment costs, as defined in § 990.30 of this part and dis counted as provided in § 990.63(b) of this part; (ii) The cost, if any, of conducting emergency restoration under § 990.26 of this part, discounted as provided in § 990.63(b) of this part; and (iii) Interest on the amounts recover able, as provided in section 1005 of OPA (33 U.S.C. 2705), which allows for pre judgment and post-judgment interest to be paid at a commercial paper rate, starting from thirty (30) calendar days from the date a demand is presented until the date the claim is paid. (f) Cost accounting procedures. Trust ees must use methods consistent with generally accepted accounting prin ciples and the requirements of § 990.27 of this part in determining past assess ment and restoration costs incurred by trustees. When cost accounting for these costs, trustees must compound these costs using the guidance in § 990.63(b) of this part. (g) Cost estimating procedures. Trust ees must use methods consistent with generally accepted cost estimating principles and meet the standards of § 990.27 of this part in estimating future costs that will be incurred to imple ment a restoration plan. Trustees also must apply discounting methodologies in estimating costs using the guidance in § 990.63(a) of this part. [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] § 990.63 Discounting and compounding. (a) Estimated future restoration costs. When determining estimated future costs of implementing a Final Restora tion Plan, trustees must discount such future costs back to the date the de mand is presented. Trustees may use a discount rate that represents the yield on recoveries available to trustees. The price indices used to project future in flation should reflect the major compo nents of the restoration costs. (b) Past assessment and emergency res toration costs. When calculating the present value of assessment and emer gency restoration costs already in curred, trustees must compound the costs forward to the date the demand is presented. To perform the compounding, trustees may use the ac tual U.S. Treasury borrowing rate on marketable securities of comparable maturity to the period of analysis. For costs incurred by state or tribal trust ees, trustees may compound using par allel state or tribal borrowing rates. (c) Trustees are referred to Appen dices B and C of OMB Circular A–94 for information about U.S. Treasury rates of various maturities and guidance in calculation procedures. Copies of Ap pendix C, which is regularly updated, and of the Circular are available from the OMB Publications Office (202–395– 7332). § 990.64 Unsatisfied demands. (a) If the responsible parties do not agree to the demand within ninety (90) calendar days after trustees present the demand, the trustees may either file a judicial action for damages or present the uncompensated claim for damages to the Oil Spill Liability Trust Fund, as provided in section 1012(a)(4) of OPA (33 U.S.C. 2712(a)(4)) or seek an appropriation from the Oil Spill Liability Trust Fund as provided in section 1012(a)(2) of OPA (33 U.S.C. 2712(a)(2)). (b) Judicial actions and claims must be filed within three (3) years after the Final Restoration Plan or Notice of In tent to Use a Regional Restoration Plan or Existing Restoration Project is made publicly available, in accordance with 33 U.S.C. 2717(f)(1)(B) and 2712(h)(2). [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] § 990.65 Opening an account for recov ered damages. (a) General. Sums recovered by trust ees in satisfaction of a natural resource damage claim must be placed in a re volving trust account. Sums recovered for past assessment costs and emer gency restoration costs may be used to reimburse the trustees. All other sums must be used to implement the Final Restoration Plan or all or an appro priate component of a Regional Res toration Plan or an existing restora tion project. (b) Joint trustee recoveries—(1) General. Trustees may establish a joint account for damages recovered pursuant to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00443 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 434 15 CFR Ch. IX (1–1–21 Edition) § 990.66 joint assessment activities, such as an account under the registry of the appli cable federal court. (2) Management. Trustees may de velop enforceable agreements to govern management of joint accounts, includ ing agreed-upon criteria and proce dures, and personnel for authorizing expenditures out of such joint ac counts. (c) Interest-bearing accounts. Trustees may place recoveries in interest-bear ing revolving trust accounts, as pro vided by section 1006(f) of OPA (33 U.S.C. 2706(f)). Interest earned on such accounts may only be used for restora tion. (d) Escrow accounts. Trustees may es tablish escrow accounts or other in vestment accounts. (e) Records. Trustees must maintain appropriate accounting and reporting procedures to document expenditures from accounts established under this section. (f) Oil Spill Liability Trust Fund. Any sums remaining in an account estab lished under this section that are not used either to reimburse trustees for past assessment and emergency res toration costs or to implement restora tion must be deposited in the Oil Spill Liability Trust Fund, as provided by section 1006(f) of OPA (33 U.S.C. 2706(f)). § 990.66 Additional considerations. (a) Upon settlement of a claim, trust ees should consider the following ac tions to facilitate implementation of restoration: (1) Establish a trustee committee and/or memorandum of understanding or other agreement to coordinate among affected trustees, as provided in § 990.14(a)(3) of this part; (2) Develop more detailed workplans to implement restoration; (3) Monitor and oversee restoration; and (4) Evaluate restoration success and the need for corrective action. (b) The reasonable costs of such ac tions are included as restoration costs. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00444 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 435 SUBCHAPTER F—QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA HYDROGRAPHIC PRODUCTS AND SERVICES PART 995—CERTIFICATION RE QUIREMENTS FOR DISTRIBUTORS OF NOAA HYDROGRAPHIC PRODUCTS Subpart A—General Sec. 995.1 Purpose and scope. 995.2 Incorporation by reference. 995.3 Availability of other publications. 995.4 Definitions. 995.5 Abbreviations. 995.6 Fees. 995.7 Liability. Subpart B—Certification and Procedures 995.10 Correspondence and applications. 995.11 Government review and approval. 995.12 Certification designation. 995.13 Transfer of certification. 995.14 Auditing. 995.15 Termination of certification. 995.16 Term of certification. Subpart C—Requirements for Certified Dis tributors and Value Added Distributors of NOAA ENC Products 995.20 General. 995.21 Registry of data users. 995.22 Training of data users. 995.23 Acquisition of data. 995.24 Distribution of data. 995.25 Quality management system. 995.26 Conversion of NOAA ENC ® files to other formats. 995.27 Format validation software testing. 995.28 Use of NOAA emblem. 995.29 Limitation on endorsements. APPENDIX A TO SUBPART C OF PART 995—CER TIFICATION APPLICATION TEMPLATES AUTHORITY: 33 U.S.C. 892b(b)(1). SOURCE: 70 FR 52909, Sept. 6, 2005, unless otherwise noted. Subpart A—General § 995.1 Purpose and scope. (a) The National Oceanic and Atmos pheric Administration (NOAA) pro duces electronic navigational charts (ENCs) as one of its products under its Nautical Charting Program. According to Federal regulations, official NOAA ENCs ® meet nautical chart carriage re quirements when used in a type-ap proved display system, such as an Elec tronic Chart Display and Information System (ECDIS). NOAA distributes these official ENCs to the public for free over its Web site on the Internet. This Part establishes the requirements by which entities may be certified to download, redistribute, repackage, or in some cases reformat, official NOAA ENCs and retain the NOAA ENC’s offi cial status. When a NOAA ENC ® re tains its official status, it will comply with Federal chart carriage require ments. These requirements for re-dis tributing NOAA ENC data or incor porating it into value-added naviga tional products are to ensure the qual ity and content of official NOAA ENCs remains intact throughout the redis tribution process. No other processes result in redistributed NOAA ENC products that comply with Federal chart carriage requirements. (b) Two types of certification are of fered. The first type, ‘‘Certified NOAA ENC Distributor’’ (CED), covers NOAA ENC downloading, exact copying, and redistribution of those copies. The sec ond type, ‘‘Certified NOAA ENC Value Added Distributor’’ (CEVAD), permits reformatting official NOAA ENCs into a System Electronic Navigational Chart (SENC) using type-approved soft ware, and distribution of that SENC. Both types of certification permit, but do not require, compression, encryption, and packaging with other data. Because NOAA ENC ® data is the primary concern of this rule, and it is mandatory for certification that the official NOAA ENCs remain unaltered for positional accuracy and informa tional content, NOAA is, in effect, cer tifying that a CED’s or CEVAD’s prod ucts contain official NOAA ENC data, and therefore meets chart carriage re quirements. (c) Any entity may continue to download from an official NOAA ENC ® Web site and use NOAA ENCs for any VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00445 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 436 15 CFR Ch. IX (1–1–21 Edition) § 995.2 purpose. As long as it is not redistrib uted, that ENC will still be considered as official Federal data. If the NOAA ENC is successfully imported unaltered into a type-approved system, it will comply with Federal nautical chart carriage requirements. While without certification anyone can download an official NOAA ENC for any use, if a NOAA ENC ® is redistributed by an uncertified entity to another entity, the NOAA ENC is no longer considered as official Federal data and thus does not comply with Federal chart carriage requirements. An example follows. (1) One example is if an uncertified individual downloads a NOAA ENC and uses it according to Federal require ments, that individual will be meeting Federal chart carriage requirements. If an uncertified tug boat company has 9 boats in its fleet and an individual on one of the boats downloads a NOAA ENC and uses it according to Federal requirements that individual will be meeting Federal chart carriage re quirements. However, if that same uncertified tug boat company downloads a NOAA ENC and redistrib utes it to its 9 boats, the NOAA ENC will not be considered official Federal data and therefore the 9 boats will not be meeting Federal carriage require ments. The company should become a CED or CEVAD under this part in order to be able to redistribute NOAA ENC’s and retain the official status of those ENC’s. (2) To reiterate, NOAA ENCs must not be redistributed by an uncertified entity if the end output needs to have official NOAA ENCs in it that will comply with Federal carriage require ments. Any company, entity or indi vidual must be certified if the goal is to redistribute NOAA ENCs and have those NOAA ENCs remain as official Federal data and as such continue to meet Federal carriage requirements administered by the Coast Guard. § 995.2 Incorporation by reference. Certain material listed in this sec tion is incorporated by reference with the approval of the Director of the Fed eral Register under 5 U.S.C. 552(a) and 1 CFR part 51. The materials listed in this section are incorporated by ref erence in the corresponding sections noted. The materials are available for purchase at the corresponding address es noted below, and all are available for inspection at the National Archives and Records Administration (NARA) or at the U.S. Department of Commerce, 1401 Constitution Avenue, NW., Wash ington, DC 20230. For information on the availability of this material at NARA, call (202) 741–6030, or go to: http://www.archives.gov/federallregister/ codeloflfederallregulations/ ibrllocations.html. (a) The material listed below is avail able for purchase from the Inter national Hydrographic Bureau, 4 quai Antoine 1er, B.P. 445, MC 98011 MONACO CEDEX; telephone: (377) 93.10.81.00; fax: (377) 93.10.81.40; e-mail: info@ihb.mc. Orders may be submitted by letter, fax, or e-mail. (1) IHO Technical Resolution A3.11— ‘‘ENC/SENC Distribution Option’’, as published in the ‘‘Resolutions of the International Hydrographic Organiza tion’’ updated June 2005, incorporation by reference approved for § 995.26. (2) [Reserved] (b) [Reserved] § 995.3 Availability of other publica tions. (a) For further guidance you may ob tain the following: (1) IEC 61174—The International Elec trotechnical Commission identified and described the necessary performance tests and checks for an International Maritime Organization (IMO) compli ant ECDIS. The IMO Performance Standards permit National Maritime Safety Administrations to consider ECDIS as the functional equivalent to charts required by Regulation V, Chap ter 20 of the 1974 SOLAS Convention. IEC Publication 61174, dated August 1998, can be purchased from the IEC Web site: http://www.iec.ch. (2) IHO Special Publication S57—The IHO Transfer Standard for Hydro graphic Data, edition 3.1, dated Novem ber 2000, describes the data structure and format to be used for the exchange of ENC data, product specification for the production of ENC data, and an up dating profile. IHO S–57 documentation is available for free download at http:// www.iho.shom.fr. Send written requests VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00446 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 437 Nat’l Oceanic and Atmospheric Adm., Commerce § 995.5 to the International Hydrographic Bu reau, 4 quai Antoine 1er, B.P. 445, MC 98011 MONACO CEDEX; telephone: (377) 93.10.81.00; e-mail: info@ihb.mc. (3) IHO Special Publication S58—The IHO Validation Checks for Hydro graphic Data, edition 2.0, dated October 2003, describes the validation checks to be used on ENC data. This document was formally published as S–57 Appen dix B.1, Annex C, but has been renamed to S–58 due to the S–57 publication hav ing been frozen (i.e. will not change) for a fixed time period. IHO S–58 docu mentation is available for free download at http://www.iho.shom.fr. Send written requests to the Inter national Hydrographic Bureau, 4 quai Antoine 1er, B.P. 445, MC 98011 MONACO CEDEX; telephone: (377) 93.10.81.00; e-mail: info@ihb.mc. (b) [Reserved] § 995.4 Definitions. Certified NOAA ENC Distributor (CED) means an entity that is certified as a distributor of NOAA ENC files by NOAA. This certification indicates that the distributor meets certain re quirements (in Subparts A, B, and D of this part) that ensure timely and accu rate dissemination of NOAA ENC data. Certified NOAA ENC Value Added Dis tributor (CEVAD) means an entity that creates a derived product that has been produced from NOAA ENC files using a process certified by NOAA. This certifi cation indicates that the CEVAD meets certain requirements (in Subparts A, C, and D of this part) that ensure timely and accurate dissemination of NOAA ENC data in a non-ENC format. Derived product means a navigational product produced by transforming the NOAA ENC files to another format while preserving the content and accu racy. It may contain information from other sources. Distributor means a person or com pany that redistributes a NOAA ENC to end users in its original format. Electronic Chart Display and Informa tion System (ECDIS) means the inter nationally adopted computer-assisted navigation system which, when com plying with all of the required speci fications, can be accepted as the up-to date chart required by V/20 of the 1974 SOLAS Convention. Electronic Navigational Chart (ENC) means a database, standardized as to content, structure, and format, issued for use with ECDIS on the authority of government authorized hydrographic offices. The ENC contains all the chart information necessary for safe naviga tion and may contain supplementary information in addition to that con tained in the paper chart (e.g., sailing directions), which may be considered necessary for safe navigation. Entity means one person, one person within a company, or one company. NOAA ENC ® means Electronic Navi gational Charts produced by the Na tional Oceanic and Atmospheric Ad ministration. NOAA ENC files comply with the IHO S–57 standard, Edition 3.1 and the ENC Product Specification. The phrase ‘‘NOAA ENC’’ is a reg istered trademark and may not be used without permission. Redistributed means to distribute again, either as a direct copy or in a different way. A redistributed NOAA ENC is one that has been downloaded from an official NOAA ENC Web site by one entity and provided to another en tity. System Electronic Navigational Chart (SENC) means a database resulting from the transformation of the ENC by ECDIS for appropriate use, updates to the ENC by appropriate means and other data added by the mariner. It is this database that is actually accessed by ECDIS for the display generation and other navigational functions, and is equivalent to an up-to-date paper chart. The SENC may also contain in formation from other sources. Value Added Distributor means a per son or company that redistributes a NOAA ENC with additional data in cluded or in a different format to cre ate newly derived products used by end users. § 995.5 Abbreviations. CED Certified NOAA ENC Distributor CEVAD Certified NOAA ENC Value Added Distributor CRC Cyclical Redundancy Checksum ECDIS Electronic Chart Display and Information System ENC Electronic Navigational Chart IEC International Electrotechnical Commission VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00447 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 438 15 CFR Ch. IX (1–1–21 Edition) § 995.6 IHO International Hydrographic Orga nization IMO International Maritime Organi zation ISO International Organization for Standardization NOAA National Oceanic and Atmos pheric Administration NOS National Ocean Service OCS Office of Coast Survey SENC System Electronic Naviga tional Chart SOLAS Safety of Life at Sea VAD Value Added Distributor § 995.6 Fees. (a) The Office of Coast Survey, NOAA, may charge a fee for costs in curred to process each request for cer tification pursuant to 33 U.S.C. 892b(b)(1)(C) and 892b(b)(2). The amount of the fee, if one is charged, will be de termined by the Director, Office of Coast Survey, and charged to all Appli cants based on the time and effort in volved. (b) If a fee is charged, it will be charged for each application for certifi cation submitted by an Applicant. A fee may also be charged for resubmis sions of revised requests that were ini tially unacceptable and are sent in within 90 days as described in § 995.11(b)(2). § 995.7 Liability. Distributors and value added dis tributors certified under this part shall indemnify and hold harmless the U.S. Government for any loss, claim, dam age, or liability of any kind, the extent caused by the negligence of certified distributors or value added distributors or their employees, arising out of the use by a distributor or value added dis tributor, or any party acting on its be half or under its authorization, of NOAA data. Subpart B—Certification and Procedures § 995.10 Correspondence and applica tions. (a) Distributors or value-added dis tributors desiring certification from NOAA shall provide a written request and application for certification to the Office of Coast Survey, Attention: Dis tribution Certification, N/CS, 1315 East West Highway, Silver Spring, Maryland 20910. Such a distributor or value-added distributor is hereafter referred to as Applicant. The Office of Coast Survey (OCS) is the approving office for cer tification under these requirements. (b) Applicant shall provide an appli cation for certification that describes how each element in the applicable sec tions of this part has been met. The ap plication will also contain an acknowl edgment, signed by a company prin cipal, of all terms and conditions de scribed in this part. (c) Applicant shall use the appro priate template provided in Appendix A to subpart C of this part to prepare their request for certification. (d) Applicant shall provide, with its application, a point of contact with mailing address, phone number, and e mail address. Applicant shall imme diately notify NOAA, through the Of fice of Coast Survey, of any changes to point of contact information. Failure to do so will be considered a violation of this part and may lead to termi nation of certification. § 995.11 Government review and ap proval. (a) An application will be reviewed by NOAA within 90 days of receipt. If all requirements, as defined by this part, are adequately addressed, certifi cation will be granted. If for any rea son NOAA will be unable to process the application for certification within the 90-day time frame, Applicant will be notified and a revised date will be pro vided for a decision on the request. (b)(1) NOAA will determine if the re quest for certification is complete and that it demonstrates that Applicant has met all of the applicable require ments described in this part. (2) In the event that a request is in complete or does not demonstrate that Applicant has met all of the applicable requirements, NOAA will consider the application unacceptable. NOAA will notify the Applicant of the deficiencies in writing. Applicant may re-submit a revised application within 90 days of receipt of NOAA’s denial notice. NOAA will review applications received with in the 90-day resubmission period in the time frame described in paragraph VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00448 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 439 Nat’l Oceanic and Atmospheric Adm., Commerce § 995.15 (a) of this section. After the second re view, if the application is still unac ceptable, Applicant will be again noti fied of the deficiencies in writing and the process continues as stated is this section. § 995.12 Certification designation. An Applicant that has been certified by NOAA as a CED may use the phrase ‘‘Certified NOAA ENC Distributor’’ on products and marketing materials. An Applicant that has been certified by NOAA as a CEVAD may use the phrase ‘‘Certified NOAA ENC Value Added Distributor’’ on products and mar keting materials. Use of these phrases must include labeling to identify the product’s contents and suitable use. (See § 995.24(a)(4), (5) and (6) and (b)(3), (4) and (5)). Use of the NOAA emblem is described in § 995.28 and is not auto matically granted with certification. § 995.13 Transfer of certification. A CED or CEVAD may not transfer its certification to another entity. If it is transferred the existing certification will be terminated. (a) If prior to certification it is known that another entity will be as sisting the entity applying for certifi cation in the production or redistribu tion of the data, that other entity must be documented in the application proc ess. Listed entities will be considered as falling under the umbrella of the parent company’s certification. The name of the entity and its duties should be included as part of the appli cation. (b) If, subsequent to certification, a CED or CEVAD wishes to add another entity to assist it, a request in writing with the name of the entity and its du ties shall be provided to the Office of Coast Survey, NOAA for acceptance. The Office of Coast Survey, NOAA will provide written notification of accept ance to the CED or CEVAD within 30 days of receipt of the request. § 995.14 Auditing. NOAA reserves the right to audit CED or CEVAD to ensure that the cer tification requirements are being met. Such an audit may consist of: visits to the production facilities, product test ing, confirmation of ISO 9001 certifi cation, or confirmation of type ap proval for conversion software, and so forth. § 995.15 Termination of certification. (a) In the event that NOAA deter mines that a CED or CEVAD is not meeting the requirements described in this part, the Office of Coast Survey, NOAA (OCS) will provide initial writ ten notification of potential termi nation to the CED or CEVAD. OCS/ NOAA will state in its notification to CED or CEVAD that termination of certification is under consideration. (b) The initial notification of poten tial termination will be provided in writing by OCS to the CED or CEVAD, and shall state the reason for the po tential termination. Reasons for termi nation may include, but are not lim ited to: (1) CED or CEVAD contracts or in any way seeks to transfer the produc tion or redistribution of all or part of the NOAA official data in the product to another entity. (2) CED or CEVAD fails to, or is un able (in the opinion of NOAA) to carry out its responsibilities as described in this part. (c) CED or CEVAD may submit writ ten comments to OCS within 30 days of receipt of the OCS’s initial written no tification of potential termination, ex plaining why CED or CEVAD’s certifi cation should not be terminated. (1) The written comments shall be submitted to: Director, Office of Coast Survey, National Ocean Service, NOAA (N/CS), 1315 East West Highway, Silver Spring, MD 20910. (2) The written comments shall con tain at least: (i) Identification and contact infor mation of the CED or CEVAD; (ii) A statement that CED or CEVAD is responding to an initial written noti fication of potential termination by OCS; and (iii) A thorough but concise argu ment as to why CED or CEVAD be lieves that its certification should not be terminated. (d) The Director of OCS will take all timely written comments into account before taking final action, and in no case will the Director take final action until at least 45 days after CED or VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00449 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 440 15 CFR Ch. IX (1–1–21 Edition) § 995.16 CEVAD’s receipt of the initial written notification. A decision to terminate by the Director of OCS will state the reasons for termination and respond to all timely written comments sub mitted. Any final action taken by OCS constitutes final agency action on the matter. (e) CED or CEVAD shall notify all re cipients of its products that its certifi cation has been revoked, and that the product may no longer be valid for use. In addition, the CED or CEVAD shall provide the dates of non-compliance. § 995.16 Term of certification. The term of certification is five years from the date of issuance. At the end of the certification term, the process must be re-certified by the distributor or value added distributor submitting a request for certification as described in § 995.10. It may also be revoked prior to the end of the term under the condi tions described in § 995.15. Subpart C—Requirements for Cer tified Distributors and Value Added Distributors of NOAA ENC Products § 995.20 General. The requirements for certification as a ‘‘Certified NOAA ENC Distributor’’ (CED) and ‘‘Certified NOAA ENC Value Added Distributor’’ (CEVAD) are de scribed in this subpart. § 995.21 Registry of data users. (a) CED or CEVAD shall maintain a registry of customers receiving NOAA ENC data. CED or CEVAD shall provide said registry to NOAA on a biannual basis for internal NOAA planning and product evaluation use. NOAA agrees to treat such information as propri etary (if requested to do so by the CED or CEVAD). (b)(1) The registry shall include, but not be limited to: (i) Which NOAA ENC ® cells were pro vided to each customer; (ii) Edition number of each cell pro vided; (iii) Updates provided for each cell; (iv) Method of distribution for each customer. (2) The registry may also include in formation about the type and size of vessel that the NOAA ENC data has been provided for as well as an anony mous unique identifier for the vessel. § 995.22 Training of data users. CED or CEVAD shall provide some form of product training and education materials to the customer to ensure that the end user has a sufficient level of information about the intended use of the derived product and what is needed to properly use it (e.g., requires certain equipment). § 995.23 Acquisition of data. (a) CED or CEVAD shall obtain offi cial NOAA ENC ® files only by directly downloading them from an official NOAA ENC site on the Internet. (b)(1) After downloading NOAA ENC files, CED or CEVAD shall uncompress the files and compute a CRC checksum value for each NOAA ENC file and verify that it matches the CRC checksum value contained in the CATALOG.031 file provided with the NOAA ENC files by NOAA. This is to ensure that no NOAA ENC files have been corrupted during the download process. (2) In the event that said CRC checksum value does not match that in the CATALOG.031 file, CED or CEVAD agrees to: (i) Repeat the download process; (ii) In the event that said CRC checksum value for the repeat download does not match that in the CATALOG.031 file, immediately notify the NOAA ENC Production Manager at enc.chartproduction@noaa.gov, and; (iii) Not redistribute any NOAA ENC that does not have a valid CRC checksum. § 995.24 Distribution of data. (a) Distribution of data by CEDs—(1) Format of redistributed data—(i) General. Except as listed in paragraphs (a)(1)(ii) and (iii) of this section, CED agrees to redistribute NOAA ENC data only in the original form provided by NOAA after uncompressing and shall not change the file format (S–57 Edition 3.1 ENC or other formats specified by NOAA), or contents, or alter the NOAA ENC data in any way. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00450 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 441 Nat’l Oceanic and Atmospheric Adm., Commerce § 995.24 (ii) Compression. The NOAA ENC files may be compressed using a lossless compression technique provided that CED makes the decompression soft ware available to the end user as part of the redistribution service. Decom pressed files must have the same CRC checksum value as the original files. The CED agrees to make the compres sion/decompression software and docu mentation available to NOAA for test ing. (iii) Encryption. The NOAA ENC files may be encrypted by CED, providing that the encryption/decryption process does not result in any information loss and that CED makes the decryption software available to the end user as part of the redistribution service. Decrypted files must have the same CRC checksum value as the original files. CED shall make the encryption/ decryption software and documenta tion available to NOAA for testing. (2) Frequency of distribution. CED shall make all current editions of NOAA ENC files and all updates to or new editions of NOAA ENC files avail able to its customers within five work ing days of the files or updates being posted by NOAA. Documentation shall be provided to the customer concerning any time delays that may occur be tween official release of a NOAA ENC or update, and CED providing same to end users. (3) Distribution report. CED shall pro vide a bi-annual report on when NOAA ENC files were downloaded and when they were redistributed to end-users. (4) Additional data. (i) If CED provides other data to customers in addition to NOAA ENC data (e.g., ENC data from other nations, raster chart data, pri vately produced data, etc.), CED shall provide a clear indication to the cus tomer which files are official NOAA ENC data and which files are not. This may be accomplished through means such as package labeling, notifications in software, or other means. (ii) Additionally, any data that is in cluded with NOAA ENC data must not result in embarrassment to the Depart ment of Commerce or NOAA. There must be no conflict with any trade mark rights and the inclusion of non NOAA data will not constitute any en dorsement of or favoritism toward the non-NOAA data or CED. (5) Identification of type and contents. CED shall ensure that NOAA ENC ® files provided to an end user are clearly identified as to the type (e.g., direct unaltered copies) and contents (cells, updates, and ancillary files) and au thenticity of the exchange set. This may be accomplished through means such as package labeling, notifications in software, or other means. (6) Use of product. CED shall provide a clear indication to the customer the purpose of its products; for example, indicating whether or not the product, and the data contained within it, is suitable for navigation and if it meets Federal chart carriage requirements. If only some of the files meet Federal carriage requirements, CED shall pro vide clear indication which files do and which files do not. This may be accom plished through means such as package labeling, notifications in software, or other means. (b) Distribution of data by CEVADs—(1) Frequency of distribution. CEVAD shall make all current editions of NOAA ENC files and all updates to or new edi tions of NOAA ENC files available to its customers within five working days of the files or updates being posted by NOAA. Documentation shall be pro vided to the customer concerning any time delays that may occur between of ficial release of a NOAA ENC or up date, and CED providing same to end users. (2) Distribution report. CEVAD shall provide a bi-annual report to NOAA on when NOAA ENC files were downloaded and when they were redistributed or made available to end users. (3) Additional data. (i) If CEVAD pro vides products to customers that incor porate other data in addition to NOAA ENC data (e.g., ENC data from other nations, raster chart data, privately produced data, etc.), CEVAD shall pro vide a clear indication in the product which data are from official NOAA ENC data and which data are not. This shall be done in a way that allows the navigation system to give the end user an automatic notification or warning that particular data elements within the product are not from the official NOAA ENC. Any such data shall not VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00451 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 442 15 CFR Ch. IX (1–1–21 Edition) § 995.25 degrade the official NOAA ENC data or information. (ii) Additionally, any data that is in cluded with NOAA ENC data must not result in embarrassment to the Depart ment of Commerce or NOAA. There must be no conflict with any trade mark rights and the inclusion of non NOAA data will not constitute any en dorsement of or favoritism toward the non-NOAA data or CEVAD. (4) Identification of type and contents. CEVAD shall ensure that data provided to an end user clearly identify which NOAA ENC ® files are included in the product as to the type (e.g., NOAA ENCs in another form than that pro vided by NOAA without degradation to positional accuracy or informational content) and the contents (cells, up dates, and ancillary files) and authen ticity of the NOAA ENC files used. This may be accomplished through means such as package labeling, notifications in software, or other means. (5) Use of product. CEVAD shall pro vide a clear indication to the customer of the purpose of its products; for ex ample, indicating whether or not the product, and the data contained within it, is suitable for navigation and if it meets Federal chart carriage require ments. If only some of the files meet Federal carriage requirements, CEVAD shall provide clear indication which files do and which files do not. This may be accomplished through means such as package labeling, notifications in software, or other means. § 995.25 Quality management system. (a) Quality management system for CEVADs. (1) CEVAD shall operate a quality management system, based on ISO 9001–2000 or equivalent, which em braces all elements of the process used to process and redistribute NOAA ENC files. The minimum requirements for such a quality management system are those defined in this part. The quality management system must ensure that the production process complies with all relevant requirements of this part. (2) The quality management system must, at a minimum, include an ade quate account of: (i) The quality objectives and the or ganizational structure, responsibilities, and powers of management with regard to production quality; (ii) The techniques, processes, and systematic actions that will be used for quality management throughout the production process, including NOAA ENC conversion and the quality of the product being redistributed; (iii) The examination and tests that will be carried out before, during, and after processes essential for the quality of the product, and the frequency with which they will be carried out; (iv) The quality records, such as in spection records and test data, quali fication reports of personnel concerned resulting from the program specified herein; and (v) The means for monitoring the achievement of the required quality of the product and the effective operation of the quality management system. (3) Design and development changes shall be reviewed, verified, and vali dated as appropriate and approved by the ISO 9001 certification authority (or equivalent if another quality manage ment system is used) before implemen tation. (4) If the type approved conversion software is maintained by a third party, CEVAD shall ensure that no changes made to the conversion soft ware render the type approval of the conversion software invalid, and shall evaluate the effects of such changes on the end users of the product. (5) CEVAD shall analyze both inter nal information and that received from external parties in order to continually monitor and improve the production process and the product being redis tributed. (6) CEVAD shall ensure that per sonnel performing work affecting the production process are competent with regard to appropriate education, train ing, skills, and expertise. (7) CEVAD shall conduct internal au dits at planned intervals to determine whether the quality management sys tem conforms to the requirements of this part and is effectively imple mented and maintained. The audit pro gram shall take into consideration the individual processes’ importance in re lation to the product quality, as well as results of previous audits. Selection of auditors and conducting of audits VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00452 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 443 Nat’l Oceanic and Atmospheric Adm., Commerce § 995.28 shall, as far as practicable, insure ob jectivity and impartiality in the audit process. (8) CEVAD shall ensure that actions are taken without undue delay to eliminate detected non-conformities and their causes. Follow-up activities shall include the verification of the ac tions taken and the reporting of verification results. (b) [Reserved] § 995.26 Conversion of NOAA ENC ® files to other formats. (a) Conversion of NOAA ENC files to other formats—(1) Content. CEVAD may provide NOAA ENC data in forms other than that provided by NOAA. However, CEVAD shall not change the informa tion content provided by the NOAA ENC. This means that all features and their associated attribution must be preserved in the CEVADs data files without degradation to positional ac curacy or informational content. (2) Software certification. Conversion of NOAA ENC data to other formats must be accomplished within the con straints of IHO Technical Resolution A3.11: ‘‘ENC/SENC Distribution Op tion’’ (incorporated by reference, see § 995.2)—in particular, paragraph three: Distributors who are to supply the SENC service must operate under the regulations of the issuing authority. The onshore ENC to SENC conversion must be performed using type-approved software. (3) Error reporting. Any errors de tected during the conversion process shall be logged and investigated prior to releasing the data in which the er rors occurred. Any errors that appar ently originate in the NOAA ENC files shall be immediately reported to NOAA. (4) Format check. CEVAD shall ensure that the converted data conforms to the CEVAD’s own format specifications and shall test load the converted data to ensure that it will correctly load and display on the intended equipment. (b) [Reserved] § 995.27 Format validation software testing. Tests shall be performed verifying, as far as reasonable and practicable, that CEVAD’s data testing software per forms the checks, as specified by CEVAD, for verifying that the con verted data conforms to its own propri etary product specification. These tests may be combined with testing of the conversion software. § 995.28 Use of NOAA emblem. (a) Permission for the use of the NOAA emblem must be obtained by formally requesting such permission from NOAA and the Department of Commerce through NOAA’s Office of Coast Survey. (b) Use of the NOAA emblem must satisfy an interest of the Department; the use may not result in embarrass ment to the Department; there must be no conflict with any trademark rights, as stated in § 995.24(a)(4)(ii) and (b)(3)(ii); and there can be no endorse ment or favoritism toward the dis tributor or value added distributor using the emblem, or other appearance of impropriety. (c) Certification under this part does not automatically grant the dis tributor or value added distributor the right to use the NOAA logo. Use of the NOAA logo without express permission from NOAA and the Department of Commerce will be considered grounds for denial of an application for certifi cation or termination of certification. (d) Emblem use by certified distributors or certified value added distributors of NOAA electronic products. (1) After re ceiving separate, written permission from NOAA and the Department of Commerce as described in paragraph (a) of this section, a CED or CEVAD may use the NOAA emblem in product labeling and advertising materials, but only in conjunction with the phrase ‘‘Certified NOAA ENC Distributor’’ or ‘‘Certified NOAA ENC Value Added Distributor,’’ as applicable, and only after receiving separate, written per mission from NOAA and the Depart ment of Commerce as described in paragraph (d)(2) of this section. (2) If the NOAA emblem is used with products that include other data, clear indication must be provided to the cus tomer indicating that the emblem and the phrase ‘‘Certified NOAA ENC Dis tributor’’ or ‘‘Certified NOAA ENC Value Added Distributor’’ does not apply to the entire product delivered. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00453 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 444 15 CFR Ch. IX (1–1–21 Edition) § 995.29 Information on the effects of such limi tation must be provided to the cus tomer (See § 995.24(a)(4) and (5) and (b)(3) and (4).) § 995.29 Limitation on endorsements. By certifying compliance with this part, NOAA does not automatically, di rectly, or indirectly endorse any prod uct or service provided, or to be pro vided, by distributor or value added distributor or its successors, assignees, or licensees. The distributor or value added distributor shall not in any way imply that this certification is an en dorsement of any such product or serv ice without separate, written permis sion from NOAA and the Department of Commerce. APPENDIX A TO SUBPART C OF PART 995—CERTIFICATION APPLICATION TEMPLATES Notice to respondents: This information is being collected by NOAA to ascertain qualifications for certifi cation as an authorized distributor of official NOAA ENC ® data. NOAA developed these certification requirements under the author ity of Section 104 of the Hydrographic Serv ices Improvement Act Amendments of 2002, 33 U.S.C. 892b(b)(1). The information on these forms is not as sociated with performance of agency func tions. Public reporting burden for this collection of information is estimated to average 16 hours per response, including the time for re viewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, in cluding suggestions for reducing this burden, to Jim.Gardner@noaa.gov. Responses to this collection are considered voluntary, though they are required for cer tification. The information requested on these forms will not be disseminated to the public or used to support information that will be dis seminated to the public. Any disclosure of propriety information will be held in con fidentiality as regulated under the Trade Se crets Act. NOAA will not violate that Act’s prohibitions against unauthorized agency disclosures of trade secrets or other con fidential business information. Notwithstanding any other provision of the law, no person is required to, nor shall any person be subject to a penalty for failure to, comply with a collection of information subject to the requirements of the Paper work Reduction Act, unless that collection of information displays a currently valid OMB Control Number. [OMB Control #0648– 0508 Expires 05/31/2008] APPLICATION FOR CERTIFICATION AS ‘‘CERTIFIED NOAA ENC DISTRIBUTOR’’ Company Name Company Address Company Phone Number Company Fax Number Company E-Mail Address Point of Contact Point of Contact Address Point of Contact Phone Number Point of Contact Fax Number Point of Contact E-Mail Address This is a request for the above named com pany or individual (hereinafter referred to as Distributor) to be certified as a ‘‘Certified NOAA ENC Distributor’’ (CED). This docu ment describes how each of the requirements for certification is being met. Descriptive ti tles after each number in parenthesis on this application correspond to section titles in 15 CFR, chapter IX, Subchapter F, Part 995— Certification requirements for Distributors of NOAA hydrographic products. The num bers after each descriptive title refer to the section number within 15 CFR part 995. The Distributor should use these section numbers to insure that the requirements are being fully understood and met by the Distributor prior to submitting the application. (1) Correspondence and applications/requests for certification (995.10 (a)). Distributor ac knowledges and agrees to all procedures and requirements pertaining to the certification process described in 15 CFR part 995. (2) Correspondence and applications/point of contact (995.10 (d)). Distributor agrees to im mediately notify the Government of any changes to point of contact information. (3) Transfer of certification (995.13). Docu ment other entities that will be assisting in the production or redistribution of the de rived product. Provide the names and duties of those entities to meet this requirement. (4) Auditing (995.14). Distributor acknowl edges that NOAA reserves the right to audit Distributor to ensure that all requirements in 15 CFR part 995 are being met. (5) Termination of certification (995.15). Dis tributor acknowledges the conditions lead ing to and procedures for the termination of certification as described in this require ment. (6) Term of certification (995.16). Distributor acknowledges that the duration of certifi cation is five years from the date of issuance. (7) Registry of data users (995.21). Include a description of the data user registry, includ ing: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00454 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 445 Nat’l Oceanic and Atmospheric Adm., Commerce Pt. 995, Subpt. C, App. A (a) What data elements it contains, specifi cally showing how the required elements are included; (b) A hardcopy sample of the report that will be periodically submitted to NOAA; (c) A short description of how the registry is maintained. (8) Training of data users (995.22). Include a copy of any documentation provided to users that is intended to meet this requirement. (9) Acquisition of data (995.23). Distributor asserts that all procedures described in this requirement for the acquisition of NOAA ENC ® data for redistribution are being fol lowed. (10) Distribution of data/general (995.24(a)(1)(i)). Distributor asserts that all NOAA ENC ® data redistributed will be in the format described by this requirement. (11) Distribution of data/compression (995.24(a)(1)(ii)). Distributor shall indicate if data compression techniques are used. If Dis tributor uses data compression techniques, Distributor asserts that the process meets the necessary regulations described by this requirement. (12) Distribution of data/encryption (995.24(a)(1)(iii)). Distributor shall indicate if data encryption techniques are used. If Dis tributor uses data encryption techniques, Distributor asserts that the process meets the necessary regulations described by this requirement. (13) Distribution of data/frequency of distribu tion (995.24(a)(2)). Distributor asserts that any updates will be transmitted to their users within the time constraints described by this requirement. (14) Distribution of data/distribution report (995.24(a)(3)). Distributor shall provide an ex ample of the distribution report described by this requirement. (15) Distribution of data/additional data (995.24(a)(4)). Distributor shall indicate if ad ditional data is to be distributed with the NOAA ENC ® data. If so, Distributor shall provide examples of how the data users will be informed as to the official and unofficial contents of the data as described by this re quirement. (16) Distribution of data/identification of con tents (995.24(a)(5)). Distributor shall provide examples of how the contents of the NOAA ENC ® files will be identified to the users. (17) Distribution of data/use of product (995.24(a)(6)). Distributor shall provide exam ples of how the data users will be informed as to the purpose of its products as described in this requirement. (18) Use of NOAA emblem (995.28). Dis tributor acknowledges that a separate re quest for the use of the NOAA emblem must be submitted according to the procedure de scribed in this requirement. (19) Limitation on endorsements (995.29). Dis tributor acknowledges that NOAA does not automatically, directly, or indirectly en dorse any product or service provided, or to be provided, by Distributor, its successors, assignees, or licensees. Distributor shall not in any way imply that this certification is an endorsement of any such product or serv ice without separate, written permission. (20) Liability (995.7). By signing this request for certification, Distributor pledges to in demnify and hold harmless the U.S. Govern ment for any loss, claim, damage, or liabil ity of any kind, the extent caused by the negligence of Distributor or its employees, arising out of the use by the Distributor, or any Party acting on its behalf or under its authorization, of NOAA ENC ® data. Signature of this request constitutes an acknowledgement by Distributor of ALL ap plicable terms and conditions described in the certification requirements in 15 CFR part 995. Signed: lllllllllllllllllll Title: llllllllllllllllllll Date: llllllllllllllllllll [OMB Control #0648–0508 Expires 05/31/2008] APPLICATION FOR CERTIFICATION AS ‘‘CER TIFIED NOAA ENC VALUE ADDED DIS TRIBUTOR’’ Company Name Company Address Company Phone Number Company Fax Number Company E-Mail Address Point of Contact Point of Contact Address Point of Contact Phone Number Point of Contact Fax Number Point of Contact E-Mail Address This is a request for the above named com pany (hereinafter referred to as Value Added Distributor) to be certified as a ‘‘Certified NOAA ENC Value Added Distributor’’ (CEVAD). This document describes how each of the requirements for certification is being met. Descriptive titles after each number in parenthesis on this application correspond to section titles in 15 CFR, chapter IX, Sub chapter F, Part 995—Certification require ments for Distributors of NOAA hydro graphic products. The numbers after each de scriptive title refer to the section number within 15 CFR, part 995. The Distributor should use these section numbers to insure that the requirements are being fully under stood and met by the Distributor prior to submitting the application. (1) Correspondence and applications/requests for certification (995.10 (a)). Distributor ac knowledges and agrees to all procedures and requirements pertaining to the certification process described in 15 CFR part 995. (2) Correspondence and applications/point of contact (995.10 (d)). Distributor agrees to im mediately notify the Government of any changes to point of contact information. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00455 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 446 15 CFR Ch. IX (1–1–21 Edition) Pt. 995, Subpt. C, App. A (3) Transfer of certification (995.13). Docu ment other entities that will be assisting in the production or redistribution of the de rived product. Provide the names and duties of those entities to meet this requirement. (4) Auditing (995.14). Distributor acknowl edges that NOAA reserves the right to audit Distributor to ensure that all requirements in 15 CFR part 995 are being met. (5) Termination of certification (995.15). Dis tributor acknowledges the conditions lead ing to and procedures for the termination of certification as described in this require ment. (6) Term of certification (995.16). Distributor acknowledges that the duration of certifi cation is five years from the date of issuance. (7) Registry of data users (995.21). Include a description of the data user registry, includ ing: (a) What data elements it contains, specifi cally showing how the required elements are included; (b) A hardcopy sample of the report that will be periodically submitted to NOAA; (c) A short description of how the registry is maintained. (8) Training of data users (995.22). Include a copy of any documentation provided to users that is intended to meet this requirement. (9) Acquisition of data (995.23). Distributor asserts that all procedures described in this requirement for the acquisition of NOAA ENC ® data for redistribution are being fol lowed. (10) Distribution of data/frequency of distribu tion (995.24(b)(1)). Value Added Distributor asserts that any updates will be transmitted to their users within the time constraints described by this requirement. (11) Distribution of data/distribution report (995.24(b)(2)). Value Added Distributor shall provide an example of the distribution report described by this requirement. (12) Distribution of data/additional data (995.24(b)(3)). Value Added Distributor shall indicate if additional data is to be distrib uted with the NOAA ENC data. If so, Value Added Distributor shall provide examples of how the data users will be informed as to the official and unofficial contents of the data as described in this requirement. (13) Distribution of data/identification of con tents (995.24(b)(4)). Value Added Distributor shall provide examples of how the contents of the NOAA ENC files will be identified to the users. (14) Distribution of data/use of product (995.24(b)(5)). Distributor shall provide exam ples of how the data users will be informed as to the purpose of its products as described in this requirement. (15) Quality management system (995.25). Value Added Distributor shall provide a copy of the ISO 9001–2000 certification or certifi cation of compliance with an equivalent pro gram of quality management that covers the processes described in this section of the re quirements. (16) Conversion of NOAA ENC files to other formats (995.26(a)(1)). Value Added Distributor asserts that all NOAA ENC ® content and ac curacy are preserved during the conversion process as described in this section of the re quirements. (17) Conversion of NOAA ENC files to other formats/software certification (995.26(a)(2)). Value Added Distributor shall provide a copy of the type approval certificate for the soft ware used to convert the NOAA ENC files to the Value Added Distributor’s format. (18) Conversion of NOAA ENC files to other formats/error reporting (995.26(a)(3)). Value Added Distributor asserts that they shall log and report any errors in the NOAA ENC data detected during the conversion process. Value Added Distributor shall provide an ex ample of the report format that they will use. (19) Conversion of NOAA ENC files to other formats/format check (995.26(a)(4)). Value Added Distributor asserts that all data shall be checked for conformance with Value Added Distributor’s own format specifica tions and shall test load the converted data as described in this section of the require ments. (20) Format validation software testing (995.27). The validation software used by Value Added Distributor shall be tested ac cording to this requirement and the results stated in this section of the request for cer tification. (21) Use of NOAA emblem (995.28). Value Added Distributor acknowledges that a sepa rate request for the use of the NOAA emblem must be submitted according to the proce dure described in this requirement. (22) Limitation on endorsements (995.29). Value Added Distributor acknowledges that NOAA does not automatically, directly, or indirectly endorse any product or service provided, or to be provided, by Value Added Distributor, its successors, assignees, or li censees. Value Added Distributor shall not in any way imply that this certification is an endorsement of any such product or service without separate, written permission. (23) Liability (995.7). By signing this request for certification, Value Added Distributor pledges to indemnify and hold harmless the U.S. Government for any loss, claim, dam age, or liability of any kind, the extent caused by the negligence of Value Added Dis tributor or its employees, arising out of the use by the Value Added Distributor, or any party acting on its behalf or under its au thorization, of NOAA ENC data. Signature of this request constitutes an acknowledgement by Value Added Dis tributor of ALL applicable terms and condi tions described in the certification require ments. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00456 Fmt 8010 Sfmt 8002 Y:\SGML\253053.XXX 253053 447 Nat’l Oceanic and Atmospheric Adm., Commerce § 996.2 Signed: lllllllllllllllllll Title: llllllllllllllllllll Date: llllllllllllllllllll PART 996—QUALITY ASSURANCE AND CERTIFICATION REQUIRE MENTS FOR NOAA HYDRO GRAPHIC PRODUCTS AND SERV ICES Subpart A—General Sec. 996.1 Purpose and scope. 996.2 Definitions. 996.3 Fees. 996.4 Liability. Subpart B—The Quality Assurance Program for Hydrographic Products 996.10 Submission and selection of hydro graphic products for the development of standards and compliance tests. 996.11 Development of standards for a hy drographic product or class. 996.12 Development of standards compliance tests for a hydrographic product or class. 996.13 Determination of whether to offer certification for a hydrographic product or class. Subpart C—Certification of a Hydrographic Product and Decertification. 996.20 Submission of a hydrographic product for certification. 996.21 Performance of compliance testing. 996.22 Certification. 996.23 Audit and decertification of hydro graphic products. Subpart D—Other Quality Assurance Program Matters 996.30 Use of the NOAA emblem. 996.31 Termination of the Quality Assur ance Program. 996.32 Appeals. 996.33 Acceptance of program by non-Fed eral entities. AUTHORITY: 33 U.S.C. 892b. SOURCE: 70 FR 698, Jan. 5, 2005, unless oth erwise noted. Subpart A—General § 996.1 Purpose and scope. The National Oceanic and Atmos pheric Administration (NOAA) was mandated to develop and implement a quality assurance program that is equally available to all applicants, under which the Administrator may certify hydrographic products that sat isfy standards promulgated by the Ad ministrator. ‘‘Hydrographic products’’ are any publicly or commercially available products produced by a non Federal entity that include or display hydrographic data. The procedures es tablished here by which hydrographic products are proposed for certification; by which standards and compliance tests are developed, adopted, and ap plied for those products; and by which certification may be awarded or denied are the mandated Quality Assurance Program. The execution of those proce dures for specific hydrographic prod ucts is the implementation of the pro gram. § 996.2 Definitions. Agency means the National Oceanic and Atmospheric Administration. Applicant means a non-Federal entity that is submitting a hydrographic product to the Quality Assurance Pro gram for certification. Certification means a determination made by NOAA that a hydrographic product submitted by a non-Federal en tity has met the requirements estab lished by NOAA for a particular hydro graphic product or class. Department means the Department of Commerce. Hydrographic data means information acquired through hydrographic or bathymetric surveying, photo grammetry, geodetic, geospatial, or geomagnetic measurements, tide and current observations, or other meth ods, that is used in providing hydro graphic services. Hydrographic product means any pub licly or commercially available prod uct produced by a non-Federal entity that includes or displays hydrographic data. Hydrographic product class means a group of hydrographic products with similar traits, attributes, purposes, or users. Hydrographic services means (1) The management, maintenance, interpretation, certification, and dis semination of bathymetric, hydro graphic, geodetic, geospatial, geo magnetic, and tide and current infor mation, including the production of VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00457 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 448 15 CFR Ch. IX (1–1–21 Edition) § 996.3 nautical charts, nautical information databases, and other products derived from hydrographic data; (2) The development of nautical in formation systems; and (3) Related activities. Quality Assurance Program means a set of procedures by which hydro graphic products are proposed for cer tification; by which standards and compliance tests are developed, and, if suitable, are adopted by NOAA for those products; and by which certifi cation of individual products may be awarded or denied. Quality Assurance Program implemen tation means the execution of the Qual ity Assurance Program procedures for specific hydrographic products. Sponsor means a non-Federal entity that is submitting a hydrographic product to the Quality Assurance Pro gram for the development of standards and compliance tests. § 996.3 Fees. NOAA may charge for its Quality As surance Program activities such sums as may be permitted or required under this Act, or under other statutory au thorities. Such sums are non-refund able. NOAA will attempt to identify any such charges upon first submission of a hydrographic product. However, the intent to charge and the amounts may change. NOAA will promptly no tify the sponsor of any such changes, and will permit the sponsor to with draw hydrographic products from con sideration under the Quality Assurance Program should they so choose. § 996.4 Liability. The Government of the United States shall not be liable for any negligence by producers of hydrographic products certified under this part. Subpart B—The Quality Assurance Program for Hydrographic Products § 996.10 Submission and selection of hydrographic products for the de velopment of standards and compli ance tests. (a) Any non-Federal entity may sub mit a hydrographic product to be con sidered for the development of stand ards and compliance tests under this Quality Assurance Program. (b) Submission shall be made to the Quality Assurance Program address below, or to such other address as may be indicated in the future: Director (N/ CS), ATTN: Hydrographic Product Quality Assurance Program, Office of Coast Survey, NOAA, 1315 East West Highway, Silver Spring, MD 20910. (c) The submission shall include (1) Name and description of the pro posed hydrographic product. (2) The non-Federal entity submit ting the product for the development of standards and compliance tests, and contact information for that entity. This non-Federal entity shall be known as the sponsor. (3) The names and contact informa tion of proposed representatives of the affected communities who have com mitted to participate substantively in the writing of standards and compli ance tests. Affected communities might include: manufacturers, users, regulators, resellers, developers of products that use certified hydro graphic products such as datasets, and manufacturers of competing or sub stitute products. (4) The names and contact informa tion of the standards setting body, and the compliance testing body under whose authority it is proposed that the standards and compliance tests be written and adopted. (5) Information deemed relevant by the sponsor for NOAA to consider in deciding whether to proceed with the development of standards, compliance tests, and certification. Such informa tion should address at a minimum: (i) The type and magnitude of the public benefits and enhancement of public safety that would be achieved; (ii) The breadth of support for stand ards and certification among all the af fected communities; (iii) The practicality of writing and enforcing an effective and appropriate standard; (iv) The availability of suitable, simi lar products that may already meet the needs of the public; and (v) The required expertise needed to write an appropriate standard. (d) NOAA may, at its option, define a hydrographic product class of which VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00458 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 449 Nat’l Oceanic and Atmospheric Adm., Commerce § 996.11 the proposed hydrographic product is a specific instance. Standards and com pliance tests may then be prepared for the class rather than for an individual non-Federal entity’s specific product. (e) NOAA shall publicize, in the FED ERAL REGISTER or by other appropriate means, the hydrographic product or class in order to solicit comments on the proposal that standards and com pliance tests be written and certifi cation be offered for that hydrographic product or class. Comments might in clude, but are not limited to, general information; statements of interest in participating in the development of standards and compliance tests; or ob jections to acceptance of the hydro graphic product or class into this Qual ity Assurance Program. Instructions for commenting and the duration of the comment period will be included in the announcement. (f) NOAA shall decide, if its other ob ligations permit, within 60 calendar days of the close of the comment pe riod whether to proceed with the devel opment of standards, compliance tests, and certification for the proposed hy drographic product or class. NOAA may request further information, and shall have additional time as required to consider the information once re ceived. NOAA’s decision on whether to proceed shall be based on the following criteria: (1) The magnitude of the public ben efit and enhancement of public safety that would be achieved compared to the commitment of federal resources that would be required; (2) The breadth of support for stand ards and certification among all the af fected communities; (3) The practicality of writing and enforcing an effective and appropriate standard; (4) The availability of suitable, simi lar products that may already meet the needs of the public; (5) NOAA’s expertise related to the expertise needed to write an appro priate standard; (6) Availability of resources; and (7) Other relevant criteria as they be come apparent. (g) NOAA’s decision as to whether the proposed hydrographic product or class is accepted into the Quality As surance Program shall be publicly an nounced in the FEDERAL REGISTER or by other appropriate means, and a written notification shall be provided to the sponsor. The response shall in clude NOAA’s reason for its decision based on the criteria enumerated above. (h) Any party, including the sponsor, shall have an opportunity to request reconsideration of NOAA’s decision. Said request shall be submitted in writing, to the Quality Assurance Pro gram address, postmarked within 30 days of NOAA’s announcement of its decision, and shall contain written ma terial supporting the requestor’s posi tion. NOAA shall have, if its other obli gations permit, 60 calendar days from the receipt of a request for reconsider ation to either deny the request, or to reconsider and announce its decision. (i) NOAA’s decision, either the origi nal decision if unappealed within 30 days, or the decision after the request for reconsideration, shall be considered final. (j) NOAA itself may choose to iden tify a hydrographic product or class, which may or may not yet exist, but for which it intends to adopt standards, compliance tests, and to offer certifi cation. In such cases, NOAA will be considered the sponsor. The procedures to be followed for NOAA-sponsored hy drographic products or classes shall be the same as for those sponsored by non-Federal entities, including the pro cedures for announcement, comment, and reconsideration. § 996.11 Development of standards for a hydrographic product or class. (a) NOAA shall work, to the extent practicable, through existing, recog nized, standards bodies in the writing and adopting of standards for a hydro graphic product or class that NOAA has accepted into this program. It shall be the responsibility of the sponsor to propose an appropriate standards writ ing body. NOAA may accept this body at its discretion, or may select an al ternate body. NOAA will then under take, jointly with the sponsor and ac knowledged representatives of the af fected communities, to submit the pro posal for writing standards to, and to VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00459 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 450 15 CFR Ch. IX (1–1–21 Edition) § 996.11 secure the cooperation of, the selected standards writing body. (b) Once accepted as a work item by the standards writing body, NOAA shall undertake, jointly with rep resentatives of the affected commu nity, members of the standards body, other governmental representatives, and the sponsor as appropriate, to write standards for the hydrographic product or class according to the prac tices of the standards body and the technical needs of the product. Partici pation in the writing of standards shall be determined according to the proce dures of the standards writing body. (c) NOAA shall then undertake, joint ly with representatives of the affected community, members of the standards body and the body itself, other govern mental representatives, and the spon sor as appropriate, to have the result ing standard officially adopted by the standards body according to the proce dures of that body. (d) NOAA may, at its option, proceed without the participation of an exist ing, recognized, standards body should it so choose. Such action might be taken, for example, if there were no ap propriate standards body. In this even tuality, NOAA shall adhere to the fol lowing general procedure. (1) Announce, in the FEDERAL REG ISTER or by other appropriate means, NOAA’s intention to organize and chair a working group to write and publish standards for the proposed hydro graphic product or class; (2) Solicit, via the FEDERAL REGISTER or by other appropriate means, partici pation and select, reject, and/or revoke permission to participate as NOAA deems appropriate so as to proceed in an orderly and representative manner in writing a standard; (3) Initiate, schedule, host, and chair, or designate a chair for, the work of the working group; (4) Circulate, via the FEDERAL REG ISTER or by other appropriate means, the drafts of the working group; (5) Announce, via the FEDERAL REG ISTER or by other appropriate means, the NOAA proposed standard and pro vide an opportunity for public com ment; (6) Announce, via the FEDERAL REG ISTER or by other appropriate means, and make available as a standard, the final version of the standard; and (7) Provide the necessary administra tive support. (e) NOAA may, at its option, adopt an existing standard as the NOAA standard for this program. In this even tuality, NOAA shall adhere to the fol lowing general procedure. (1) Announce, in the FEDERAL REG ISTER or by other appropriate means, NOAA’s intention to adopt an existing standard for the proposed hydrographic product or class; and (2) Solicit, via the FEDERAL REGISTER or by other appropriate means includ ing public meetings, comment on the standard that NOAA proposes to adopt, and shall consider the comments re ceived. (f) Alternatively, NOAA may at its option, proceed by writing a standard by itself. Such action might be used, for example, in cases where the stand ard is obvious. Producing exact copies of existing NOAA products might be one such case. Once written, this NOAA-authored standard shall be made publicly available for comment, and comments shall be considered before NOAA publishes the final standard. (g) At the conclusion of the standards writing, whether through an existing standards body, by a NOAA-convened working group, by adopting an existing standard, or by NOAA itself, NOAA shall consider the resulting standard and comments, and either adopt or re ject the standard as the NOAA Quality Assurance Program Standard for the particular hydrographic product or class. NOAA’s decision shall be pub licly announced in the FEDERAL REG ISTER or by other appropriate means. (h) Any party may request NOAA to reconsider its decision to adopt or re ject the standard by submitting its re quest in writing to the Quality Assur ance Program address within 30 days of NOAA’s announcement of its decision. NOAA shall have, if its other obliga tions permit, 60 calendar days from the receipt of a request for reconsideration to either deny the request, or to recon sider and announce its decision. NOAA’s original decision if unappealed within 30 days, or its decision upon re consideration shall be considered final. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00460 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 451 Nat’l Oceanic and Atmospheric Adm., Commerce § 996.12 § 996.12 Development of standards compliance tests for a hydrographic product or class. (a) NOAA shall work, to the extent practicable, through existing, recog nized, compliance testing bodies in the writing and adopting of compliance tests for a hydrographic product or class. It shall be the responsibility of the sponsor to propose an appropriate compliance testing body. NOAA may accept this body at its discretion, or may select an alternate body. NOAA will then undertake, jointly with the sponsor and acknowledged representa tives of the affected communities, to secure the cooperation of the selected compliance testing body. (b) NOAA shall undertake, jointly with representatives of the affected community, members of the compli ance testing body, other governmental representatives, and the sponsor as ap propriate, to write compliance tests for the hydrographic product or class ac cording to the practices of the compli ance testing body and the Quality As surance Program standard adopted by NOAA. Participation in the writing of compliance tests may be determined according to the procedures of the com pliance testing body. (c) NOAA shall then undertake, joint ly with representatives of the affected community, members of the compli ance testing body and the body itself, other governmental representatives, and the sponsor as appropriate, to have the resulting compliance tests adopted according to the procedures of that body. (d) NOAA may, at its option, proceed without the participation of an exist ing, recognized, compliance testing body should it so choose. Such action might be taken, for example, if there were no appropriate compliance testing body. In this eventuality, NOAA will adhere to the following general proce dure: (1) Announce, in the FEDERAL REG ISTER or by other appropriate means, NOAA’s intention to organize and chair a working group to write and publish compliance tests for the hydrographic product or class; (2) Solicit, via the FEDERAL REGISTER or by other appropriate means, partici pation and select, reject, and/or revoke permission to participate as NOAA deems appropriate so as to proceed in an orderly and representative manner in writing compliance tests; (3) Initiate, schedule, host, and chair, or designate a chair for, the work of the working group; (4) Circulate, via the FEDERAL REG ISTER, or by other appropriate means, the drafts of the working group; (5) Announce, via the FEDERAL REG ISTER or by other appropriate means, a NOAA proposed final version of the compliance tests and provide an oppor tunity for public comment; (6) Announce, via the FEDERAL REG ISTER or by other appropriate means, and make available the final version of the compliance tests, and (7) Provide the necessary administra tive support. (e) NOAA may, at its option, adopt existing compliance tests as the NOAA compliance tests for this program. In this eventuality, NOAA shall adhere to the following general procedure: (1) Announce, in the FEDERAL REG ISTER or by other appropriate means, NOAA’s intention to adopt existing compliance tests for the proposed hy drographic product or class; and (2) Solicit, via the FEDERAL REGISTER or by other appropriate means includ ing public meetings, comment on the proposed compliance tests that NOAA proposes to adopt, and shall consider the comments received. (f) Alternatively, NOAA may, at its option, proceed by writing compliance tests by itself. Such action might be used, for example, in cases where the tests are obvious. Producing exact cop ies of existing NOAA products might be one such case. Once written, these NOAA-authored tests shall be made publicly available for comment, and comments shall be considered before NOAA publishes the final compliance tests. (g) At the conclusion of the compli ance test writing, whether through an existing body, by a NOAA-convened working group, by adopting existing compliance tests, or by NOAA itself, NOAA shall consider the resulting compliance tests and comments, and either adopt or reject them as the NOAA Quality Assurance Program VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00461 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 452 15 CFR Ch. IX (1–1–21 Edition) § 996.13 compliance tests for the particular hy drographic product standard. NOAA’s decision shall be publicly announced in the FEDERAL REGISTER or by other ap propriate means. (h) Any party may request NOAA to reconsider its decision to adopt or re ject the compliance tests by submit ting its request in writing to the Qual ity Assurance Program address within 30 days of NOAA’s announcement of its decision. NOAA shall have, if its other obligations permit, 60 calendar days after the receipt of a request for recon sideration to either deny the request, or to reconsider and announce its deci sion. NOAA’s original decision if unappealed within 30 days, or its deci sion upon reconsideration shall be con sidered final. § 996.13 Determination of whether to offer certification for a hydro graphic product or class. (a) Certification of a hydrographic product or class shall be at the option of NOAA. NOAA may decide at any time whether or not to offer certifi cation for a product or class. However, it is most likely that a determination will be made only after a non-Federal entity has submitted a specific product for certification. NOAA’s decision shall be based on the following criteria: (1) The suitability of the adopted standards and tests for their intended purpose; (2) The availability of a qualified en tity to perform the compliance tests; (3) Availability of resources; and (4) Other relevant criteria as they be come apparent. (b) NOAA’s decision as to whether certification for a hydrographic prod uct or class is offered shall be publicly announced in the FEDERAL REGISTER or by other appropriate means. (c) Any entity may request NOAA to reconsider its decision to offer or not offer certification by submitting its re quest in writing to the Quality Assur ance Program address within 30 days of NOAA’s announcement of its decision. NOAA shall have, if its other obliga tions permit, 60 calendar days after the receipt of a request for reconsideration to either deny the request, or to recon sider and announce its decision. (d) NOAA’s original decision if unappealed within 30 days, or its deci sion upon reconsideration, shall be con sidered final. Subpart C—Certification of a Hy drographic Product and De certification. § 996.20 Submission of a hydrographic product for certification. (a) Upon adoption by NOAA of stand ards and compliance tests, any non Federal entity may submit a hydro graphic product for certification under a particular standard. This non-Federal entity shall be known as the applicant. Submission shall be made in writing to the Quality Assurance Program ad dress. The submission shall include: (1) Name and description of the hy drographic product and its product class if any; (2) Identification and contact infor mation for the non-Federal entity sub mitting the product for certification. (3) The identification of the standard and compliance tests adopted by this Quality Assurance Program under which the hydrographic product is to be certified; (4) A proposed, qualified, competent, independent compliance testing body to perform the compliance tests, which NOAA may accept at its discretion, or for which NOAA may select an alter native testing body; (5) Other information deemed rel evant by the sponsor or requested by NOAA. (b) [Reserved] § 996.21 Performance of compliance testing. (a) NOAA and the applicant shall submit the applicant’s hydrographic product to the testing body for per formance of the compliance tests. That body shall determine compliance or non-compliance of the hydrographic product with the NOAA-adopted stand ard, and shall provide to NOAA written documentation stating the results of the compliance tests according to its usual practices. (b) Alternatively, NOAA may choose, at its option, to perform, have per formed by a NOAA-designated entity, VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00462 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 453 Nat’l Oceanic and Atmospheric Adm., Commerce § 996.23 or waive the compliance tests for a hy drographic product. This alternative may be used, for example, when there is no qualified entity to perform the compliance tests, where the compli ance tests are simple, or when self-cer tification of compliance would be ap propriate. (c) Items failing the compliance tests may be changed by the applicant and retested. Items passing the compliance test upon retest shall be deemed com pliant as if they had passed said tests initially. § 996.22 Certification. (a) A hydrographic product that has passed the compliance tests shall auto matically be considered for certifi cation by NOAA. NOAA shall make its certification determination, if its other obligations permit, within 60 calendar days following receipt of the compli ance test results. NOAA shall make a certification determination based upon the following criteria: (1) The results of the compliance tests; (2) The potential for the hydro graphic product to impair public safe ty; (3) Successful completion of any ad ministrative requirements, including the payment of required fees, as may be specified by NOAA; (4) The potential for certification to cause embarrassment to the Agency or the Department; (5) Other relevant criteria as they be come apparent. (b) Hydrographic products receiving a certification determination in the af firmative shall be designated as ‘‘cer tified’’ by NOAA. NOAA shall provide a written document to the sponsor indi cating such, and shall announce its de termination in the FEDERAL REGISTER or by other appropriate means. Certifi cation shall mean that the hydro graphic product has been found to be in compliance with the NOAA-adopted standard for that hydrographic product or class. Certification conveys no ex press or implied warranty as to the merchantability or fitness for a par ticular purpose; conveys no express or implied liability on the part of the Government of the United States for the hydrographic products; and con veys no automatic, direct or indirect NOAA endorsement of any product or service. (c) Certification shall be for a term of 3 years unless otherwise specified by the Administrator. (d) A certification may be renewed, at the request of sponsor and the op tion of NOAA, for a period of 2 years. Sponsors may request the renewal of a certification by writing to the Quality Assurance Program address at least 120 calendar days before the expiration of an existing certification. The request shall include: (1) Identifying and contact informa tion for the sponsor; (2) Identifying information for the relevant hydrographic product(s) and the standard(s) under which they were certified; (3) Evidence sufficient to assure NOAA that the hydrographic product still meets the standard under which it was certified; and (4) Other information as may be re quested by NOAA. (e) NOAA shall decide within 60 cal endar days, if its other obligations per mit, whether to renew a certification. NOAA’s decision shall be based on whether the hydrographic product con tinues to meet the applicable standard, and other relevant criteria as they be come apparent. (f) The sponsor shall have an oppor tunity to request reconsideration of NOAA’s decision. Said request shall be submitted in writing, to the Quality Assurance Program address, post marked within 30 days of NOAA’s an nouncement of its decision, and shall contain written material supporting the requestor’s position. NOAA shall have, if its other obligations permit, 30 calendar days from the receipt of a re quest for reconsideration to either deny the request, or to reconsider and announce its decision. (g) NOAA’s decision, either the origi nal decision if unappealed within 30 days, or the decision after the request for reconsideration, shall be considered final. § 996.23 Audit and decertification of hydrographic products. (a) NOAA may audit hydrographic products it has certified. NOAA may VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00463 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 454 15 CFR Ch. IX (1–1–21 Edition) § 996.30 conduct audits without advance notifi cation. However, visits to companies’ facilities will be scheduled. Audits may include, but are not limited to: (1) The producing companies as it may affect the certified product; (2) Certified products; (3) Processes used in making, distrib uting, and marketing certified prod ucts; (4) Use of the NOAA emblem; (5) Examination of manufacturers’ public claims about certified hydro graphic products; (6) Other relevant criteria as they be come apparent. (b) NOAA may decertify a hydro graphic product based on the findings of an audit. In general, a hydrographic product may be decertified if: (1) The results of an audit indicate that the product no longer meets the standards under which it was certified; (2) The product has been sub stantively changed from the product that was tested and certified; (3) Implied or actual claims about the product, and/or other data or prod ucts linked to the product, are judged by NOAA to be untrue or misleading; (4) The NOAA emblem was improp erly or inappropriately displayed; (5) Other relevant reasons as they be come apparent. (c) A producing company may decline to reveal information during an audit that it declares to be proprietary or for other reasons. In this eventuality, NOAA reserves the right to decertify based on lack of information should it deem that action appropriate. (d) The entity producing the certified hydrographic product shall be notified in writing of NOAA’s intent to decer tify that product. Said entity shall have 30 days to request reconsideration of that intended action in writing to the Quality Assurance Program ad dress. Said request shall contain the identification of the hydrographic product, the requestor, and sufficient information for NOAA to make a deter mination on the request for reconsider ation. Alternatively, the entity may correct the deficiencies cited by NOAA within 30 days, notify NOAA in writing at the Quality Assurance Program ad dress of the corrective action taken, and provide sufficient evidence for NOAA to judge the correctness and ef fectiveness of the corrective action taken. (e) If a request for reconsideration is submitted, or if the producing entity asserts that the deficiencies have been corrected, NOAA shall have 60 calendar days, if its other obligations permit, to consider the request for reconsider ation or the corrective action, at which time NOAA shall issue its decertifica tion decision. The decision and NOAA’s reason for its action shall be made pub lic in the FEDERAL REGISTER or by other appropriate means, and the pro ducing entity shall be notified in writ ing. (f) NOAA’s decertification, if unappealed or uncorrected within 30 days, shall be considered final. NOAA shall notify the producing entity of this action in writing, and announce the decertification in the FEDERAL REGISTER or by other appropriate means. (g) Upon decertification, manufactur ers shall discontinue all claims of cer tification, and shall discontinue use of the NOAA emblem. Subpart D—Other Quality Assurance Program Matters § 996.30 Use of the NOAA emblem. (a) Use of the NOAA emblem on cer tified hydrographic products requires separate written permission. Use of the NOAA emblem must satisfy an interest of the Agency, and must not result in embarrassment to the Agency or the Department. If the NOAA emblem is used on products that include other data or products, clear indication shall be made as to what is NOAA certified, and what is not NOAA certified. The inclusion of other data or products will not constitute any endorsement of, or favoritism toward, the other data or products by NOAA. Requests for use of the NOAA emblem shall be submitted in writing to the Quality Assurance Program address, and shall include: (1) Name and description of the hy drographic product(s) on which the em blem will be displayed. (2) Name and contact information for the entity requesting use of the NOAA emblem. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00464 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 455 Nat’l Oceanic and Atmospheric Adm., Commerce § 996.33 (3) Exact samples of all uses intended for the NOAA emblem including text claims with, within, or associated with the hydrographic product, its pack aging, and advertising that a reason able person might associate with the NOAA emblem. (4) Proof of NOAA certification. (5) Other relevant information as may later be specified. (b) [Reserved] § 996.31 Termination of the Quality As surance Program. (a) NOAA reserves the right to termi nate the Quality Assurance Program for a particular hydrographic product or class at any time before certifi cation is awarded if it is deemed to be in the public interest to do so. NOAA shall give written notification to the sponsor and other interested parties should it decide to exercise this option, and shall state the reasons for its ac tion. Reasons for termination may in clude, but are not limited to: (1) The inability of the standards drafting group to reach a consensus on the content of the standard; (2) Valid objections to the existence of NOAA-certification of a particular hydrographic product or class; (3) A negative impact on public safe ty should the hydrographic product re ceive certification; (4) Other relevant reasons as they be come apparent. (b) The sponsor or other interested parties shall have 30 days to request a reconsideration of the termination ac tion. Said request shall be in writing to the Quality Assurance Program ad dress, and shall include written mate rial supporting the appeal. NOAA shall have, if its other obligations permit, 60 calendar days from the receipt of a re quest for reconsideration to either deny the request, or to reconsider and announce its decision. (c) NOAA’s decision, either the origi nal decision if unappealed within 30 days, or the decision after the request for reconsideration, shall be considered final. § 996.32 Appeals. (a) Any entity may appeal a final de cision made by the Agency under this Quality Assurance Program. Said ap peal shall be submitted in writing to the Quality Assurance Program ad dress, and shall contain at least: (1) Identification and contact infor mation of the appealing entity; (2) A statement that this is an appeal to a final decision of the Quality Assur ance Program; (3) A description of what decision is being appealed; (4) A thorough but concise argument as to why the requestor believes the Quality Assurance Program decision being appealed should be set aside. (5) Other information as may later be determined to be relevant. (b) Appeals shall be arbitrated by the Assistant Administrator for Ocean Services and Coastal Zone Manage ment, NOAA, using procedures to be es tablished at the time of the appeal, and which shall be appropriate to the na ture and circumstances of the appeal. The determination from this arbitra tion shall be final for purposes of judi cial review under the Administrative Procedure Act and other statutes. § 996.33 Acceptance of program by non-Federal entities. By their voluntary entrance or par ticipation in this Quality Assurance Program or its activities, all parties acknowledge and accept the procedures established by this program, including the finality of decisions. All parties ac knowledge and accept that information submitted to NOAA under this Pro gram shall be deemed to be in the pub lic domain, and no representation is made as to the protection of confiden tial, proprietary or otherwise re stricted information. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00465 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 456 SUBCHAPTER G—REQUIREMENTS FOR CERTIFICATION BY NOAA OF NON-FEDERAL ASSETS INTO THE INTEGRATED COASTAL AND OCEAN OBSERVATION SYSTEM PART 997—REGIONAL INFORMA TION COORDINATION ENTITIES Subpart A—General Sec. 997.1 Definitions. 997.2 Acceptance of procedures by a RICE. Subpart B—Certification and Decertifica tion Process for a Regional Information Coordination Entity (RICE) 997.10 Eligibility. 997.11 Application process. 997.12 Review by NOAA. 997.13 Certification process. 997.14 Certification duration and renewal. 997.15 Audit and decertification. 997.16 Final action. Subpart C—Certification and Application Requirements for a RICE 997.20 General. 997.21 Organizational structure. 997.22 Membership policy. 997.23 Strategic operational plan. 997.24 Gaps identification. 997.25 Financial oversight. 997.26 Civil liability. AUTHORITY: 33 U.S.C. 3603 et seq. SOURCE: 79 FR 32460, June 5, 2014, unless otherwise noted. Subpart A—General § 997.1 Definitions. Certification. For purposes of these regulations, the term ‘‘certification’’ means the granting by NOAA of status to a non-federal entity as a partici pating RICE of the System authorized by section 12304 of the ICOOS Act. An applicant will not be considered to be participating in the System unless 1) it agrees to meet the certification stand ards issued by the Administrator issued herein, and 2) the Administrator declares the applicant to be part of the System as a certified RICE. Equipment. For purposes of these reg ulations, the term ‘‘equipment’’ is de fined as a tangible asset that is func tionally complete for its intended pur pose and has a capital cost of over $5,000. Both individual sensors and col lections of sensors on a platform are considered equipment and are subject to the $5,000 minimum cost. Non-Federal assets. The term ‘‘non Federal assets’’ means all relevant coastal and ocean observation tech nologies, related basic and applied technology research and development, and public education and outreach pro grams that are integrated into the Sys tem and are managed through State, regional organizations, universities, nongovernmental organizations, or the private sector. Owned and/or operated by the RICE. The term ‘‘owned and/or operated by the RICE’’ means non-Federal Assets that are either owned and/or operated directly by the RICE, or supported fi nancially in part or in full by the RICE. Regional Information Coordination En tity. The term ‘‘regional information coordination entity’’ means an organi zational body that is certified or estab lished by contract or memorandum by the lead Federal agency (NOAA) des ignated in the ICOOS Act, and that co ordinates State, Federal, local, and pri vate interests at a regional level with the responsibility of engaging the pri vate and public sectors in designing, operating, and improving regional coastal and ocean observing systems in order to ensure the provision of data and information that satisfy the needs of user groups from the respective re gions. The term ‘‘regional information coordination entity’’ includes regional associations described in the System Plan. Employee of a Regional Information Co ordination Entity. The term ‘‘Employee of a Regional Information Coordination Entity’’ means an individual identified in § 997.23(d)(3) or (f)(1) of these Regula tions and satisfies the requirements listed in § 997.26(c). System. The term ‘‘System’’ means the National Integrated Coastal and Ocean Observation System established VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00466 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 457 Nat’l Oceanic and Atmospheric Adm., Commerce § 997.14 in accordance with section 12304 of the ICOOS Act (33 U.S.C. 3603). System Plan. The term ‘‘System Plan’’ means the plan contained in the document entitled ‘‘Ocean.US Publica tion No. 9, The First Integrated Ocean Observing System (IOOS) Development Plan,’’ as updated by the Council under these regulations. § 997.2 Acceptance of procedures by a RICE. By its voluntary entrance or partici pation in the System, the RICE ac knowledges and accepts the procedures and requirements established by these regulations. Subpart B—Certification and De certification Process for a Re gional Information Coordina tion Entity (RICE) § 997.10 Eligibility. Any non-Federal entity may submit an application for certification as a RICE as defined in the ICOOS Act and these Regulations. § 997.11 Application process. (a) The applicant for certification shall submit an application package containing the information and docu mentation outlined in subpart C of this part. The submission package shall in clude the application form, available online at http://www.ioos.noaa.gov/cer tification. (b) Submission shall be made to NOAA at the address below, or to such other address as may be indicated in the future: Director U.S. IOOS Pro gram Office, NOAA, 1100 Wayne Ave, Suite 1225, Silver Spring, MD 20910. Submissions may also be made online at http://www.ioos.noaa.gov/certification. § 997.12 Review by NOAA. (a) After receiving an application package, NOAA shall have up to 90 cal endar days to review the application package and decide whether to certify the applicant. (b) Before the 90 calendar days have elapsed, NOAA may request additional information, in which case NOAA shall have up to 30 additional calendar days after that additional information has been received by NOAA, above and be yond the original 90 calendar days, to review the application package and de cide whether to certify the applicant. (c) NOAA’s decision whether to cer tify the applicant shall be based on whether the RICE demonstrates that it satisfies the current IOOC certification criteria and these regulations. § 997.13 Certification process. (a) NOAA’s decision whether to cer tify the applicant, along with the rea son for its decision, shall be delivered to the applicant via letter delivered by first class mail and by electronic means. (b) Applicants receiving a certifi cation determination in the affirma tive shall be designated as ‘‘certified’’ RICEs by NOAA. NOAA shall memori alize this status via a memorandum of agreement with the applicant. Certifi cation shall mean that a RICE is incor porated into the System. (c) A certified RICE shall provide NOAA with written notification of the RICE’s intention to substantively change its organizational structure or Strategic Operational Plan, and shall request approval from NOAA for the change. After receiving the written no tification, NOAA shall have up to 30 calendar days to review the requested change and decide whether to approve the requested change. NOAA’s decision, along with the reason for its decision, shall be included in a written notifica tion to the RICE. § 997.14 Certification duration and re newal. (a) Certification of a RICE shall be for a term of 5 years, unless otherwise specified by the NOAA Administrator. (b) Certification may be renewed, at the request of the RICE, for a period of five years. A RICE seeking to renew its certification shall provide NOAA with a written request to renew at least 120 calendar days before the expiration of the existing certification. The request shall include the application form, available online at http:// www.ioos.noaa.gov/certification, and all information providing evidence that the applicant satisfies the IOOC certifi cation criteria and NOAA regulations VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00467 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 458 15 CFR Ch. IX (1–1–21 Edition) § 997.15 promulgated to certify and integrate non-Federal assets into the System. (c) After receiving a written request for renewal of certification, NOAA shall have up to 90 calendar days to re view the request and decide whether to renew the certification. (d) Before the 90 calendar days have elapsed, NOAA may request additional information, in which case NOAA shall have up to 30 additional calendar days after that additional information has been received by NOAA, above and be yond the original 90 calendar days, to review the request and decide whether to renew the certification. (e) NOAA’s decision whether to renew the certification shall be based on whether the RICE continues to dem onstrate that it satisfies the current IOOC certification criteria and these regulations. NOAA’s decision, along with the reason for its decision, shall be included in a written notification to the RICE. § 997.15 Audit and decertification. (a) NOAA may audit a RICE that it has certified to ensure compliance with the IOOC certification criteria and these regulations. NOAA will notify the RICE of its intent to conduct an audit and will coordinate with the RICE on the audit schedule and proc ess. (b) NOAA may decertify a RICE. In general, a RICE may be decertified when: (1) The results of an audit indicate that the RICE no longer satisfies the requirements under which it was cer tified; or (2) Other relevant reasons for decerti fication become apparent. (c) NOAA’s intent to decertify a RICE, along with the identification of a specific deficiency(ies) and a rec ommended corrective action(s), shall be included in a written notification to the RICE. After receiving NOAA’s writ ten notification, a RICE shall have up to 45 calendar days to request in writ ing that NOAA reconsider its intent to decertify the RICE. The RICE’s request for reconsideration shall contain suffi cient information for NOAA to deter mine whether to grant the request for reconsideration. Alternatively, the RICE may correct the deficiency(ies) identified by NOAA within 45 calendar days, notify NOAA in writing of the corrective action(s) taken, and provide sufficient evidence for NOAA to deter mine the correctness and effectiveness of the corrective action(s) taken. (d) If a RICE submits to NOAA a written request for reconsideration or a written assertion that the identified deficiency(ies) has been corrected, NOAA shall have up to 60 calendar days after receipt of the request or asser tion, to review the request for recon sideration or the assertion of correc tive action. NOAA’s decision, along with the reason for its decision, shall be delivered to the applicant via letter delivered by first class mail and by electronic means. (e) Upon decertification, a RICE shall no longer be incorporated into the Sys tem. (f) A RICE may act voluntarily to terminate its certification at any time by notifying NOAA in writing of its de sire to do so. Upon receipt of the notifi cation by NOAA, the RICE will no longer be incorporated into the Sys tem. § 997.16 Final action. NOAA’s decision, whether to certify, renew or decertify a RICE shall be con sidered final agency action. Subpart C—Certification and Ap plication Requirements for a RICE § 997.20 General. (a) For the purposes of these certifi cation regulations, when the verb ‘‘de scribe’’ is used it indicates that the RICE shall give an account in text that responds to the requirement. This text shall contain sufficient information to demonstrate how the RICE satisfies the certification requirement. The RICE may include a link(s) to addi tional information. When the verb ‘‘document’’ is used, it indicates that the RICE shall furnish a document(s) that responds to the requirement. A text statement accompanying the doc ument(s) will normally be necessary to provide context for the document(s) and to demonstrate how the RICE sat isfies the certification requirement. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00468 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 459 Nat’l Oceanic and Atmospheric Adm., Commerce § 997.22 The RICE may include a link to a docu ment in the accompanying text state ment. (b) Documentation that addresses the certification requirements may include references to existing RICE documents. All documents and materials may be submitted directly to the U.S. IOOS Program Office or made accessible for public viewing on the RICE’s Web site. (c) To become certified, a RICE must submit an application that addresses each of the requirements listed in this subpart. § 997.21 Organizational structure. (a) To become certified, a RICE must demonstrate an organizational struc ture capable of gathering required Sys tem observation data, supporting and integrating all aspects of coastal and ocean observing and information pro grams within a region and that reflects the needs of State and local govern ments, commercial interests, and other users and beneficiaries of the System and other requirements specified in this subchapter and the System Plan. (b) The application shall: (1) Describe the RICE’s organiza tional structure (e.g., 26 U.S.C. 501(c)(3) tax-exempt organization, establish ment via MOU or MOA). (2) Document the RICE’s ability to satisfy applicable legal criteria for ac cepting and disbursing funds, and en tering into agreements. Sufficient doc umentation may be provided in the form of: Evidence of a current grant, cooperative agreement, or contract in good standing with the Federal govern ment; or evidence of fiscal agreements, standard operating procedures for fi nancial activities, and proof of an audit process. (3) Document the RICE’s measures for addressing issues of accountability and liability. For this criterion, ac countability and liability refer to the RICE’s governance and management activities. Sufficient documentation may be provided in the form of a con flict of interest policy for the Gov erning Board or governing body, which clearly states that a member of the governing board will declare any con flict of interest he or she may have and will recuse him or herself from associ ated funding decisions that may result in the Board member or a direct family member benefiting financially, and a policy statement in the RICE’s by-laws that addresses liability issues. (4) Describe the process the RICE uses to set priorities for distributing funds (e.g., requirement for Governing Board or governing body approval when responding to funding opportunities or adjusting to funding level changes in existing agreements); and (5) Document the by-laws, signed ar ticles of agreement, or any binding agreements that demonstrate how the RICE establishes and maintains a Gov erning Board or governing body. The documentation shall demonstrate: (i) How the composition of the Gov erning Board or governing body is se lected and how it is representative of regional ocean observing interests. NOAA defines ‘‘representative’’ in this specific context to include geographic, sector, expertise, and stakeholder con siderations. (ii) How and with what frequency the RICE solicits and receives advice on RICE participant diversity, stake holder coordination, and engagement strategies, to ensure the provision of data and information that satisfy the needs of user groups. (iii) How the RICE collects and as sesses user feedback to gauge the effec tiveness of the regional system and subsystems in satisfying user needs, and how the RICE responds to this user feedback in setting its priorities. Suffi cient documentation may be provided in the form of a description of the method the RICE uses in its annual planning process to assess priorities among the identified user needs in the region and to respond to those user needs, and (iv) Steps the RICE takes to ensure decisions on priorities and overall re gional system design are transparent and available. At a minimum, RICE priorities and regional system design decisions shall be made accessible for public viewing on the RICE’s Web site. § 997.22 Membership policy. The application shall describe: (a) The process by which individuals or organizations may formally partici pate in the governance activities of the RICE; VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00469 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 460 15 CFR Ch. IX (1–1–21 Edition) § 997.23 (b) The rights and responsibilities of this participation; (c) The process by which the RICE strives for organizational diversity through intra-regional geographic rep resentation, and diversity of activities and interests from both public and pri vate sectors; and (d) How the RICE allows for partici pation from adjacent regions or na tions. § 997.23 Strategic operational plan. (a)(1) To become certified, a RICE must: (i) Develop and operate under a stra tegic operational plan that will ensure the efficient and effective administra tion of programs and assets to support daily data observations for integration into the System, pursuant to the standards approved by the Council; and (ii) Work cooperatively with govern mental and non-governmental entities to identify and provide information products of the System for multiple users within the service area of the re gional information coordination enti ties. (2) The application must contain a Strategic Operational Plan, which is a high-level document that outlines how a RICE manages and operates an inte grated regional observing system. This Plan should evolve as a RICE matures, new technologies become available, re gional priorities change, and new users and stakeholders are identified. The Plan may be responsive to changing funding levels, and shall contain sec tions that each address the require ments in paragraphs (b) through (g) of this section, referencing other plans di rectly when applicable. (b) Background and Context. The Stra tegic Operational Plan shall contain a Background and Context section that describes: (1) The role of the RICE in furthering the development of the regional com ponent of the System; (2) The process by which the RICE updates the Strategic Operational Plan at least once every five years and how the RICE seeks inputs from the broader user community; and (3) The RICE’s primary partners and any contributing observing systems. For the purposes of § 997.23, NOAA de fines a primary partner as any organi zation or individual that contributes significant staff time, funding or other resources to project activities. This is not an exhaustive list of all RICE part ners but the primary partners the RICE is working with on a given project. (c) Goals and Objectives. The Strategic Operational Plan shall contain a Goals and Objective section that describe: (1) How the RICE addresses marine operations; coastal hazards; eco systems, fisheries and water quality; and climate variability and change; and (2) The major objectives that guide the RICE’s priorities for data collec tion and management, development of products and services, research and de velopment, and education and out reach. (d) Operational Plan for the Observing System. The Strategic Operational Plan shall include or reference an Oper ational Plan for the Observing System that: (1) Describes the desired outcomes of the observing system; (2) Describes the elements of the operational integrated observing sys tem that will deliver those outcomes; (3) Documents to NOAA’s satisfac tion that the individual(s) responsible for RICE operations has the necessary qualifications and possesses relevant professional education and work expe rience to deliver observations success fully. At a minimum the Strategic Operational Plan shall: (i) Identify the individual(s) respon sible for overall RICE management; (ii) Identify, as applicable, the indi vidual(s) responsible for observations system management across the region; (iii) Provide the curriculum vitae for each identified individual; and (iv) Identify the procedures used to evaluate the capability of the indi vidual(s) identified in § 997.23(d)(3) to conduct the assigned duties respon sibly; and (4) Describes how the RICE manages ongoing regional system operations and maintenance. At a minimum the Strategic Operational Plan shall: (i) Describe the RICE’s standard op erating procedures for calibrating, validating, operating, and maintaining VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00470 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 461 Nat’l Oceanic and Atmospheric Adm., Commerce § 997.23 1 NOAA Data Sharing Policy for Grants and Cooperative Agreements Procedural Direc tive, Version 2.0 https://www.nosc.noaa.gov/ EDMC/documents/EDMClPD DSPNGlfinallv2.pdf. equipment owned and/or operated by the RICE regularly and in accordance with manufacturer guidance or indus try best practice. Equipment is defined in § 997.1; and (ii) Describe the RICE’s standard op erating procedures for maintaining equipment inventories, shipping logs and instrument history logs for equip ment owned and/or operated by the RICE. (e) Development of a Strategy to Sus tain and Enhance the System. The Stra tegic Operational Plan shall describe its strategy for balancing changes in regional priorities with the need to maintain established data sets, the pri mary value of which may be in their long-term records. At a minimum the description shall: (1) Identify the guiding principles that inform the strategy; (2) Reference and show connections to a long-term (five-to-ten-year) re gional Build-out Plan for the full im plementation of the regional observing system based on the RICE’s priorities and identified user needs; and (3) Relate the annual planning proc ess the RICE uses to review its prior ities in light of funding levels and its plans for system enhancement as out lined in the regional Build-out Plan. (f) Data Management and Communica tions (DMAC) Plan. The Strategic Oper ational Plan shall include or reference a DMAC Plan that: (1) Documents to NOAA’s satisfac tion that the individual(s) responsible for management of data operations for the RICE has the necessary technical skills, and possesses relevant profes sional education and work experience to support DMAC capabilities and functionality for the System. At a min imum the DMAC Plan shall: (i) Identify the individual(s) respon sible for the coordination and manage ment of observation data across the re gion; (ii) Provide the curriculum vitae for the identified individual(s); and (iii) Identify the procedures used to evaluate the capability of the indi vidual(s) identified in § 997.23(f)(1) to conduct the assigned duties respon sibly. (2) Describes how data are ingested, managed and distributed, including a description of the flow of data through the RICE data assembly center from the source to the public dissemination/ access mechanism. The description shall include any transformations or modifications of data along the data flow pathway including, but not lim ited to, format translations or aggrega tions of component data streams into an integrated product. (3) Describes the data quality control procedures that have been applied to data, not obtained through a federal data source, that are distributed by the RICE. All data shall be quality con trolled and QARTOD procedures shall be employed for data with QARTOD manuals. For each data stream, de scribe the quality control procedure applied to the data, by the RICE or other named entity, between the data’s collection and publication by the RICE. The description will also include a ref erence to the procedure used. (4) Adheres to the NOAA Data Shar ing Procedural Directive.1 The System is an operational system; therefore the RICE should strive to provide as much data as possible, in real-time or near real-time, to support the operation of the System. When data are collected in part or in whole with funds distributed to a RICE through the U.S. IOOS Pro gram Office, the RICE should strive to make the data available as soon as logistically feasible for each data stream. When data are not collected with funds distributed to a RICE through the U.S. IOOS Program Office, the data may be made available in ac cordance with any agreement made with the data provider. (5) Describes how the RICE will im plement data management protocols promulgated by the IOOC and the U.S. IOOS Program Office in a reasonable and timely manner as defined for each protocol; and (6) Documents the RICE’s data archiving process or describes how the RICE intends to archive data at a na tional archive center (e.g., NODC, NGDC, NCDC) in a manner that follows guidelines outlined by that center. VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00471 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 462 15 CFR Ch. IX (1–1–21 Edition) § 997.24 Documentation shall be in the form of a Submission Agreement, Submission Information Form (SIF) or other, simi lar data producer-archive agreement. (g) Budget Plan. The Strategic Oper ational Plan shall include or reference a Budget Plan that: (1) Identifies who supports the RICE financially; (2) Identifies how RICE priorities guide funding decisions; and (3) Assesses funding constraints and the associated risks to the observing System that the RICE must address for the future. § 997.24 Gaps identification. (a) To become certified, a RICE must identify gaps in observation coverage needs for capital improvements of Fed eral assets and non-Federal assets of the System, or other recommendations to assist in the development of annual and long-terms plans and transmit such information to the Interagency Ocean Observing Committee via the Program Office. (b) The application shall: (1) Document that the RICE’s asset inventory contains up-to-date informa tion. This could be demonstrated by a database or portal accessible for public viewing and capable of producing a re gional summary of observing capacity; (2) Provide a regional Build-out Plan that identifies the regional priorities for products and services, based on its understanding of regional needs, and a description of the integrated system (observations, modeling, data manage ment, product development, outreach, and R&D). The RICE shall review and update the Build-out Plan at least once every five years; and (3) Document the priority regional gaps in observation coverage needs, as determined by an analysis of the RICE asset inventory and Build-out Plan. The RICE shall review and update the analysis of priority regional gaps in ob servation coverage needs at least once every five years. § 997.25 Financial oversight. (a) To become certified, a RICE must comply with all financial oversight re quirements established by the Admin istrator, including requirement relat ing to audits. (b) The application shall document compliance with the terms and condi tions set forth in 2 CFR Part 215—Uni form Administrative Requirements for Grants and Agreements with Institu tions of Higher Education, Hospitals, and Other Non-profit Organizations, Subpart C—Post Award Requirements. Subpart C prescribes standards for fi nancial management systems, among others. (Compliance with this criterion can be demonstrated by referencing any existing grant, cooperative agree ment, or contract the RICE has with NOAA.) (c) The RICE shall document annu ally the RICE’s operating and mainte nance costs for all observing platforms and sensors, etc., owned and/or oper ated by the RICE. This information shall be made available to NOAA upon request. § 997.26 Civil liability. (a) For purposes of determining li ability arising from the dissemination and use of observation data gathered pursuant to the ICOOS Act and these regulations, any non-Federal asset or regional information coordination en tity incorporated into the System by contract, lease, grant, or cooperative agreement that is participating in the System shall be considered to be part of the National Oceanic and Atmos pheric Administration. Any employee of such a non-Federal asset or regional information coordination entity, while operating within the scope of his or her employment in carrying out the pur poses of this subtitle, with respect to tort liability, is deemed to be an em ployee of the Federal Government. (b) The ICOOS Act’s grant of civil li ability protection (and thus the RICE’s limited status as part of NOAA) applies only to a RICE that: (1) Is participating in the System, meaning the RICE has been certified by NOAA in accordance with the ICOOS Act and these regulations; and (2) Has been integrated into the Sys tem by memorandum of agreement with NOAA. (c) An ‘‘employee’’ of a regional in formation coordination entity is an in dividual who satisfies all of the fol lowing requirements: VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00472 Fmt 8010 Sfmt 8010 Y:\SGML\253053.XXX 253053 463 Nat’l Oceanic and Atmospheric Adm., Commerce § 997.26 (1) The individual is employed or con tracted by a certified RICE that has been integrated into the System by memorandum of agreement with NOAA, and that is participating in the System, as defined in § 997.26(b); (2) The individual is identified by the RICE, as required in § 997.23(d)(3) and (f)(1)(i), as one of the individuals re sponsible for the collection, manage ment, or dissemination of ocean, coast al, and Great Lakes observation data; and (3) The individual is responsive to federal government control. (d) The protection afforded to em ployees of a RICE with regard to liabil ity applies only to specific individuals employed or contracted by a RICE who meet the requirements of § 997.26(c) and who are responsible for the collection, management, or dissemination of ocean, coastal, and Great Lakes obser vation data. The RICE must identify to NOAA’s satisfaction: The individual(s) responsible for overall system manage ment, as applicable, the individual(s) responsible for observations system management across the region, and the individual(s) responsible for manage ment of data operations across the re gion. In accepting certification, the RICE will concede to NOAA the power to ensure these individuals comply with the requirements of this rule in their daily operations and that they are responsive to NOAA through the agreement the RICE has with NOAA. PARTS 998–999 [RESERVED] VerDate Sep<11>2014 11:36 Sep 03, 2021 Jkt 253053 PO 00000 Frm 00473 Fmt 8010 Sfmt 8006 Y:\SGML\253053.XXX 253053