|Re: Excluding rescue aircraft I hope|
Posted by Chuck Tribolet on December 20, 2010 at 07:20:38:|
In Reply to: Excluding rescue aircraft I hope posted by Elaine on December 19, 2010 at 19:52:45:
Here's what the current MBNMS regs say:
Flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in Appendix B to this subpart.
Federal agencies, such as NOAA, can only exercise powers specifically assigned to them by statutory law - no more, no less. Federal statutes (statutory laws) are jointly created by the Congress and the President. A statute often authorizes specific government agencies to develop policies and regulations to implement and enforce the provisions of the statute. For example, a Federal statute creating a national marine sanctuary may authorize NOAA to “restrict activities harmful to marine habitat within the Sanctuary.” The statute may not specify what activities should be restricted or how or when such activities should be restricted. The statute may task NOAA to make those determinations and create appropriate regulations to fulfill the intent of the law - “restrict activities harmful to marine habitat within the Sanctuary.” Regulations are therefore subordinate to statutory law (Acts of Congress).
Only Congress and the President can amend or alter a statute. Government agencies, such as NOAA, cannot alter statutory law and are obligated to enforce that law.
Government agencies can add, amend, or alter regulations if authorized to do so by an Act of Congress. Most regulatory changes of the National Marine Sanctuary Program are governed by three key Federal statutes: 1) the National Marine Sanctuaries Act, 2) the Administrative Procedures Act, and 3) the National Environmental Policy Act.
Court decisions can alter the interpretation and implementation of both laws and regulations. While courts cannot change statutes, they can affect the enforceability of statutes and regulations.
Some of the regulations of the Monterey Bay National Marine Sanctuary were mandated by statutory law (the National Marine Sanctuaries Act) and cannot be changed by NOAA. Other Sanctuary regulations were created by NOAA in accordance with authority delegated to NOAA by Congress. NOAA can add, amend, or change regulations within the bounds of the authority granted to it by Congress.
In summary, written laws and some regulations of the Federal government can only be changed by Congress. Agencies can only add or change regulations if they have been given such authority through an Act of Congress (a statute) or are ordered to do so by a court of competent jurisdiction. The National Marine Sanctuary Program was established by the National Marine Sanctuaries Act. That statute authorized NOAA to issue regulations for each national marine sanctuary and is the basic guide for what Sanctuaries are and what they are supposed to accomplish.
UNITED STATES CODE OF FEDERAL REGULATIONS
TITLE 15, PART 922
NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
922.1 Applicability of regulations.
922.2 Mission, goals, and special policies.
922.4 Effect of National Marine Sanctuary designation.
Subpart B--Site Evaluation List (SEL)
Subpart C--Designation of National Marine Sanctuaries
922.20 Standards and procedures for designation.
922.21 Selection of active candidates.
922.22 Development of designation materials.
922.23 Coordination with States and other Federal agencies.
922.24 Congressional documents.
922.25 Designation determination and findings.
Subpart D--Management Plan Development and Implementation
922.31 Promotion and coordination of Sanctuary use.
Subpart E--Regulations of General Applicability
922.42 Allowed activities.
922.43 Prohibited or otherwise regulated activities.
922.44 Emergency regulations.
922.46 Response costs and damages.
922.47 Pre-existing authorizations or rights and certifications of pre-existing authorizations or rights.
922.48 National Marine Sanctuary permits--application procedures and issuance criteria.
922.49 Notification and review of applications for leases, licenses, permits, approvals or other authorizations to conduct a prohibited activity.
922.50 Appeals of administrative action.
Subparts F - L and N - O are omitted since they address site-specific regulations of other National Marine Sanctuaries.
Subpart M--Monterey Bay National Marine Sanctuary
922.132 Prohibited or otherwise regulated activities.
922.133 Permit procedures and criteria.
922.134 Notification and review.
Appendix A to Subpart M of Part 922--Monterey Bay National Marine Sanctuary Boundary Coordinates
Appendix B to Subpart M of Part 922--Dredged Material Disposal Sites Adjacent to the Monterey Bay National Marine Sanctuary
Appendix C to Subpart M of Part 922--Zones Within the Sanctuary Where Overflights Below 1000 Feet Are Prohibited
Appendix D to Subpart M of Part 922--Zones and Access Routes Within the Sanctuary Where the Operation of Motorized Personal Watercraft Is Allowed
Authority: 16 U.S.C. 1431 et seq.
Section 922.1 Applicability of Regulations.
Unless noted otherwise, the regulations in subparts A, D and E apply to all ten National Marine Sanctuaries for which site-specific regulations appear in subparts F through O, respectively. Subparts B and C apply to the site evaluation list and to the designation of future Sanctuaries.
Section 922.2 Mission, Goals, and Special Policies.
(a) In accordance with the standards set forth in title III of the Marine Protection, 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 national, and in some cases international, significance due to their conservation, recreational, ecological, historical, research, educational, or aesthetic qualities.
(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 national significance;
(2) Provide authority for comprehensive 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, understanding, appreciation, and wise use of the marine environment;
(5) Facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities;
(6) Develop and implement coordinated plans for the protection and management of these areas with appropriate Federal agencies, State and local governments, Native American tribes and organizations, international organizations, and other public and private interests concerned with the continuing health and resilience of these marine areas;
(7) Create models of, and incentives for, ways to conserve and manage these areas;
(8) Cooperate with global programs encouraging conservation of marine resources; 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 carrying 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 existing special area protection mechanisms;
(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 coordinated to the extent practicable with other countries managing marine protected areas;
(e) Program regulations, policies, standards, guidelines, and procedures under the Act concerning the identification, evaluation, registration, and treatment of historical resources shall be consistent, to the extent practicable, with the declared national policy for the protection and preservation of these resources as stated in the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., the Archeological and Historical Preservation Act of 1974, 16 U.S.C. 469 et seq., and the Archeological Resources Protection Act of 1979 (ARPA), 16 U.S.C. 470aa et seq. The same degree of regulatory protection 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 Marine Sanctuaries. The management of historical resources under the authority of the Act shall be consistent, to the extent practicable, with the Federal archeological program by consulting the Uniform Regulations, ARPA (43 CFR part 7) and other relevant Federal regulations. The Secretary of the Interior's Standards and Guidelines for Archeology may also be consulted for guidance. These guidelines are available from the Office of Ocean and Coastal Management at (301) 713-3125.
Section 922.3 Definitions.
Act means title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq., also known as the National Marine Sanctuaries Act.
Active Candidate means a site selected by the Secretary from the Site Evaluation List for further consideration for possible designation as a National Marine Sanctuary.
Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration (NOAA), or designee.
Benthic community means the assemblage of organisms, substrate, and structural formations found at or near the bottom that is periodically or permanently covered by water.
Commercial fishing means any activity that results in the sale or trade for intended 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 historical or cultural feature, including archaeological sites, historic structures, shipwrecks, and artifacts.
Director means, except where otherwise specified, the Director of the Office of Ocean and Coastal Resource Management, NOAA, or designee.
Exclusive economic zone means the exclusive economic zone as defined in the Magnuson Fishery Conservation and Management Act, 16 U.S. 1801 et seq.
Fish wastes means waste materials resulting from commercial fish processing operations.
Historical resource means a resource possessing historical, cultural, archaeological or paleontological significance, including sites, structures, districts, and objects significantly associated with or representative of earlier people, cultures, and human activities and events. Historical resource also includes ``historical properties” as defined in the National Historic Preservation Act, as amended, 16 U.S.C. 470 et seq., and its implementing regulations, as amended.
Indian tribe means any American Indian tribe, band, group, or community recognized as such by the Secretary of the Interior.
Injure means to change adversely, either in the short or long term, a chemical, biological or physical attribute of, or the viability of. This includes, but is not limited to, to cause the loss of or destroy.
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 submerged lands over which the United States exercises jurisdiction, including the exclusive economic zone, consistent with international law.
Mineral means clay, stone, sand, gravel, metalliferous ore, *ore, or any other solid material or other matter of commercial value.
National historic landmark means a district, site, building, structure or object designated as such by the Secretary of the Interior under the National Historic Landmarks Program (36 CFR part 65).
National Marine Sanctuary means an area of the marine environment of special national significance due to its resource or human-use values, which is designated as such to ensure its conservation and management.
Person means any private individual, partnership, corporation or other entity; or any officer, employee, agent, department, 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 particular and essential characteristic of a Sanctuary, including, but not limited to, water, sediment, and air quality.
Sanctuary resource means any living or none-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the Sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources.
Secretary means the Secretary of the United States Department of Commerce, or designee.
Shunt means to discharge expended drilling cuttings and fluids near the ocean seafloor.
Site Evaluation List (SEL) means a list of selected natural and historical resource sites selected by the Secretary as qualifying for further evaluation for possible designation as National Marine Sanctuaries.
State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, the United States Virgin Islands, Guam, and any other commonwealth, territory, or possession of the United States.
Subsistence use means the customary and traditional use by rural residents of areas near or in the marine environment for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles; and for barter, if for food or non-edible items other than money, if the exchange is of a limited and non-commercial nature.
Take or taking means:
(1) For any marine mammal, sea turtle, or seabird listed as either endangered or threatened pursuant to the Endangered Species Act, to harass, harm, pursue, hunt, shoot, would, kill, trap, capture, collect 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 includes, but is not limited to, to collect any dead or injured marine mammal, sea turtle or seabird, or any part thereof; to restrain or detain any marine mammal, sea turtle or seabird, or any part thereof, no matter how temporarily; 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 molestation 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 purposes and which lives in a direct relationship with live bottom communities.
Vessel means a watercraft of any description capable of being used as a means of transportation in/on the waters of a Sanctuary.
Section 922.4 Effect of National Marine Sanctuary Designation.
The designation of a National Marine Sanctuary, and the regulations implementing it, are binding on any person subject to the jurisdiction of the United States. Designation does not constitute any claim to territorial jurisdiction on the part of the United States for designated sites beyond the U.S. territorial sea, and the regulations 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.
Section 922.10 General.
(a) The Site Evaluation List (SEL) was established as a comprehensive list of marine sites with high natural resource values and with historical qualities of special national significance that are highly qualified for further evaluation for possible designation as National Marine Sanctuaries.
(b) The SEL is currently inactive. Criteria for inclusion of marine sites on a revised SEL will be issued, with public notice and opportunity to comment, when the Director determines that the SEL should be reactivated.
(c) Only sites on the SEL may be considered for subsequent review as active candidates for designation.
(d) Placement of a site on the SEL, or selection of a site from the SEL as an active candidate for designation as provided for in Section 922.21, by itself shall not subject the site to any regulatory control under the Act. Such controls may only be imposed after designation.
Section 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.
Section 922.21 Selection of Active Candidates.
(a) The Secretary shall, from time to time, select a limited number of sites from the SEL for Active Candidate consideration based on a preliminary assessment of the designation standards set forth in section 303 of the Act.
(b) Selection of a site as an Active Candidate shall begin the formal Sanctuary designation-evaluation process. A notice of intent to prepare a draft environmental impact statement shall be published in the Federal Register and in newspapers in the area(s) of local concern. A brief written analysis describing the site shall be provided. The Secretary, at any time, may drop a site from consideration if the Secretary determines that the site does not meet the designation standards and criteria set forth in the Act.
Section 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 appropriate Regional Fishery Management Council(s) which shall have one hundred and twenty (120) days from the date of such notification to make recommendations and, if appropriate, prepare draft fishery regulations and to submit them to the Secretary. In preparing its recommendations and draft regulations, the Council(s) shall use as guidance the national standards of section 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 activities not proposed for regulation under section 304(a)(5) of the Act may be listed in the draft Sanctuary designation document as potentially subject to regulation, without following the procedures 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.
Section 922.23 Coordination with States and Other Federal Agencies.
(a) The Secretary shall consult and cooperate with affected States throughout the National Marine Sanctuary designation process. In particular the Secretary shall:
(1) Consult with the relevant State officials prior to selecting any site on the SEL as an Active Candidate pursuant to Section 922.21, especially concerning the relationship of any site to State waters and the consistency of the proposed designation with a federally approved State coastal zone management program. For the purposes of a consistency review by States with federally approved coastal zone management programs, designation of a National Marine Sanctuary is deemed to be a Federal activity, which, if affecting the State's coastal zone, must be undertaken in a manner consistent to the maximum extent practicable with the approved State coastal zone program as provided by section 307(c)(1) of the Coastal Zone Management Act of 1972, as amended, and implementing regulations at 15 CFR part 930, subpart.
(2) Ensure that relevant State agencies are consulted prior to holding any public hearings pursuant to section 304(a)(3) of the Act.
(3) Provide the Governor(s) of any State(s) in which a proposed Sanctuary would be located an opportunity to certify the designation or any of its terms as unacceptable as specified in section 304(b)(1) of the Act.
(b) The Secretary shall develop proposed regulations relating to activities under the jurisdiction of one or more other Federal agencies in consultation with those agencies.
Section 922.24 Congressional Documents.
In designating a National Marine Sanctuary, the Secretary shall prepare and submit to Congress those documents described in section 304 of the Act.
Section 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 Secretary, when making a designation determination, shall consider the Program's fiscal capability to manage the area as a National Marine Sanctuary.
Section 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, monitoring, evaluation, and education programs as are necessary and reasonable to carry out the purposes and policies of the Act.
(b) Consistent with Sanctuary management plans, the Secretary shall develop and implement site-specific contingency and emergency-response plans designed to protect Sanctuary resources. 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.
Section 922.31 Promotion and Coordination of Sanctuary Use.
The Secretary shall take such action as is necessary and reasonable to promote and coordinate the use of National Marine Sanctuaries for research, monitoring, and education purposes. Such action may include consulting with Federal agencies, or other persons to promote use of one or more Sanctuaries for research, monitoring and education, including coordination with the National Estuarine Research Reserve System.
Section 922.40 Purpose.
The purpose of the regulations in this subpart and in subparts F through O is to implement the designations of the ten National Marine Sanctuaries for which site-specific regulations appear in subparts F through O, respectively, by regulating activities affecting them, consistent with their respective terms of designation in order to protect, preserve and manage and thereby ensure the health, integrity and continued availability of the conservation, ecological, recreational, research, educational, historical and aesthetic resources and qualities of these areas.
Section 922.41 Boundaries.
The boundary for each of the ten National Marine Sanctuaries covered by this part is described in subparts F through O, respectively.
Section 922.42 Allowed Activities.
All activities except those site-specific activities prohibited or otherwise regulated in subparts F through O, may be conducted subject to any emergency regulations promulgated pursuant to Sections 922.44 and 922.111(c), subject to all prohibitions, restrictions and conditions validly imposed by any other authority of competent jurisdiction, and subject to the liability established by section 312 of the Act.
Section 922.43 Prohibited or Otherwise Regulated Activities.
Subparts F through O set forth site-specific regulations applicable to the activities specified therein.
Section 922.44 Emergency Regulations.
Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities are subject to immediate temporary regulation, including prohibition. The provisions of this section do not apply to the Cordell Bank National Marine Sanctuary. See Section 922.111(c) for the authority to issue emergency regulations with respect to that Sanctuary.
Section 922.45 Penalties.
(a) Each violation of the Act, any regulation in this part, or any permit issued pursuant thereto, is subject to a civil penalty of not more than $109,000. Each day of a continuing violation constitutes a separate violation.
(b) Regulations setting forth the procedures governing administrative proceedings for assessment of civil penalties, 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.
Section 922.46 Response Costs and Damages.
Under section 312 of the Act, any person who destroys, causes the loss of, or injures any Sanctuary resource is liable 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.
Section 922.47 Pre-existing Authorizations or Rights and Certifications of Pre-existing 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, licenses, or rights consistent with the purposes for which the Sanctuary was designated.
(b) The prohibitions listed in subparts F through O do not apply to any activity authorized by a valid lease, permit, license, approval or other authorization in existence on the effective date of Sanctuary designation 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, provided that the holder of such authorization or right complies with certification procedures and criteria promulgated at the time of Sanctuary designation and with any terms and conditions on the exercise of such authorization or right imposed by the Director as a condition of certification as he or she deems necessary to achieve the purpose for which the Sanctuary was designated.
Section 922.48 National Marine Sanctuary Permits -- Application Procedures and Issuance Criteria.
(a) A person may conduct an activity prohibited by this part if conducted in accordance with the scope, purpose, terms and conditions of a permit issued under this section and subparts F through O.
(b) Applications for such permits should be addressed to the Director and sent to the address specified in subparts F through O. An application must include:
(1) A detailed description of the proposed activity including a timetable for completion;
(2) The equipment, personnel and methodology to be employed;
(3) The qualifications and experience of all personnel;
(4) The potential effects of the activity, if any, on Sanctuary resources and qualities; and
(5) Copies of all other required licenses, permits, approvals or other authorizations.
(c) Upon receipt of an application, the Director may request such additional 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 outside the Federal government, and may hold a public hearing, as deemed appropriate.
(d) The Director, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct a prohibited activity, in accordance with the criteria found in subparts F through O. 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 Director may deny a permit application pursuant to this section, in whole or in part, if it is determined that the permittee or applicant has acted in violation of the terms and conditions of a permit or of the regulations set forth in this section or subparts F through O or for other good cause. Any such action shall be communicated in writing to the permittee or applicant by certified mail and shall set forth the reason(s) for the action taken. Procedures governing permit sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904.
Section 922.49 Notification and Review of Applications for Leases, Licenses, Permits, Approvals or Other Authorizations to Conduct a Prohibited Activity.
(a) The prohibitions set forth in regulations found in subparts L through O, do not apply to any activity authorized by any valid lease, permit, license, approval or other authorization issued after the effective date of Sanctuary designated by any Federal, State or local authority of competent jurisdiction, provided that:
(1) The applicant notifies the Director, in writing, of the application for such authorization (and of any application for an amendment, renewal or extension of such authorization) within fifteen (15) days of the date of application or of the effective date of Sanctuary designation, whichever is later;
(2) The applicant complies with the other provisions of this section;
(3) The Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization (or amendment, renewal or extension); and
(4) The applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities.
(b) Any potential applicant for a lease, permit, license, approval or other authorization for any Federal, State or local authority (or for an amendment, renewal or extension of such authorization) may request the Director to issue a finding as to whether the activity for which an application is intended to be made is prohibited by regulations in this part.
(c) Notifications of filings of applications and requests for findings should be addressed to the address found in subparts F through O. A copy of the application must accompany the notification.
(d) The Director may request additional information from the applicant as he or she deems necessary to determine whether to object to issuance of such lease, license, permit, approval or other authorization (or to issuance of an amendment, extension or renewal of such authorization), or what terms and conditions are necessary to protect Sanctuary resources and qualities. The information requested must be received by the Director within 45 days of the postmark date of the request. The Director may seek the views of any persons on the application.
(e) The Director shall notify, in writing, the agency to which application has been made of his or her review of the application and possible objection to issuance. After review of the application and information received with respect thereto, the Director, or designee 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 necessary to protect Sanctuary resources and qualities. The Director shall state the reason(s) for any objection or the reason(s) that any terms and conditions are deemed necessary to protect Sanctuary resources and qualities.
(f) The Director may amend the terms and conditions deemed necessary to protect Sanctuary resources and qualities whenever additional 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 objection by or terms or conditions imposed by the Director, to the Assistant Administrator in accordance with the procedures set forth in Section 922.50.
Section 922.50 Appeals of Administrative Action.
(1) Except for permit actions taken for enforcement reasons (see subpart D of 15 CFR part 904 for applicable procedures), an applicant for, or a holder of, a National Marine Sanctuary permit; an applicant for, or a holder of, a Special Use permit pursuant to section 310 of the Act; a person requesting certification of an existing lease, permit, license or right of subsistence use or access under Section 922.47; or, for those Sanctuaries described in subparts L through O, an applicant for a lease, permit, license or other authorization issued by any Federal, State, or local authority of competent jurisdiction (hereinafter appellant) may appeal to the Assistant Administrator:
(i) The granting, denial, conditioning, amendment, suspension or revocation by the Director of a National Marine Sanctuary or Special Use permit;
(ii) The conditioning, amendment, suspension or revocation of a certification under Section 922.47; or
(iii) For those Sanctuaries described in subparts L through O, the objection to issuance of or the imposition of terms and conditions on a lease, permit, license or other authorization issued by any Federal, State, or local authority of competent jurisdiction.
(2) For those National Marine Sanctuaries described in subparts F through K, any interested 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 notice of the action by the Director. Appeals should be addressed to the Assistant Administrator for Ocean Services and Coastal Zone Management, NOAA 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910.
(1) The Assistant Administrator may request the appellant to submit such information as the Assistant Administrator deems necessary in order for him or her to decide the appeal. The information requested must be received by the Assistant Administrator within 45 days of the postmark date of the request. The Assistant Administrator may seek the views of any other persons. For the Monitor National Marine Sanctuary, if the appellant has requested a hearing, the Assistant Administrator shall grant an informal hearing. For all other National Marine Sanctuaries, the Assistant Administrator may determine whether to hold an informal hearing on the appeal. If the Assistant Administrator determines 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 notice in the Federal Register of the time, place and subject matter of the hearing. The appellant and the Director may appear personally or by counsel at the hearing and submit such material and present such arguments as deemed appropriate by the hearing officer. Within 60 days after the record for the hearing closes, the hearing officer shall recommend a decision in writing to the Assistant Administrator.
(d) The Assistant Administrator shall decide the appeal using the same regulatory criteria as for the initial decision and shall base the appeal decision on the record before the Director 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 recommended decision. The Assistant Administrator shall notify the appellant of the final decision and he reason(s) therefore in writing. The Assistant Administrator'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 appeal may be extended by the Assistant Administrator or hearing office for good cause.
Subpart M—Monterey Bay National Marine Sanctuary
Section 922.130 Boundary.
The Monterey Bay National Marine Sanctuary (Sanctuary) consists of two separate areas.
1. The first area consists of an area of approximately 4016 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows 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 boundary 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 excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary 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 Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in Appendix A to this subpart.
Section 922.131 Definitions.
In addition to those definitions found at 15 CFR 922.3, the following definitions apply to this subpart:
Attract or Attracting means the conduct 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, divers, boaters, kayakers, surfers).
Clean means not containing detectable 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 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 Appendix F to this subpart. 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 preliminary 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 vessel's condition being reported to authorities; 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.
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 preliminary 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 vessel's condition being reported to authorities; 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 resources development project conducted by the U.S. Army Corps of Engineers or operating under a permit or other authorization issued by the Corps of Engineers and authorized by Federal law.
Hand Tool means a hand-held implement, 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 because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Response, Compensation 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 propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.
Motorized Personal Watercraft (MPWC) means any vessel, propelled by machinery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the vessel, in contrast 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 Capacities 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.
Section 922.132 Prohibited or otherwise regulated activities.
1. Except as specified in paragraphs (b) through (e) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
1. Exploring for, developing, or producing oil, gas, or minerals within the Sanctuary, except: jade may be collected (meaning removed) from the area bounded by the 35.92222 N latitude 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 ”authorized area”) provided that:
1. Only jade already loose from the submerged lands of the Sanctuary may be collected;
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.
1. Conduct lawful fishing activities;
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 amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
12. 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.
2. The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to an activity necessary to respond to an emergency threatening life, property, or the environment.
4. 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 pursuant to 15 CFR 922.48 and 922.133 or a Special Use permit issued pursuant to section 310 of the Act.
Section 922.133 Permit procedures and criteria.
1. A person may conduct an activity prohibited by Section 922.132(a)(1) as it pertains to jade collection in the Sanctuary, Section 922.132(a)(2) through (11), and Section 922.132(a)(13), if such activity is specifically 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.
1. Is research designed to further understanding of Sanctuary resources and qualities;
3. In deciding whether to issue a permit, 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;
4. For jade collection, preference will be given for applications proposing to collect loose pieces of jade for research or educational purposes.
1. Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries;
ATTN: Superintendent, Monterey Bay National Marine Sanctuary,
2. In addition to the information listed in 15 CFR 922.48(b), all applications must include information the Director needs to make the findings in paragraph (b) of this section and information to be considered by the Director pursuant to paragraph (c) of this section.
7. 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 permitted activities.
Section 922.134 Notification and review.
1. National Pollutant Discharge Elimination System (NPDES) permits issued by the State of California under section 13377 of the California Water Code; and
2. The MOA specifies how the process of 15 CFR 922.49 will be administered within State waters within the Sanctuary in coordination with the State permit program.
Appendix A to Subpart M of Part 922 — Monterey Bay National Marine Sanctuary Boundary Coordinates
[Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
The four zones are:
1. From mean high water out to three nautical miles (NM) between a line extending from Point Santa Cruz on a southwesterly heading bearing of 220° true and a line extending from 2.0 nmi north of Pescadero Point on a southwesterly heading bearing of 240° true;
2. From mean high water out to three nmi between a line extending from the Carmel River mouth on a westerly heading bearing of 270° true and a line extending due west along latitude 35.55488° off of Cambria;
3. From mean high water and within a five nmi arc drawn from a center point at the end of Moss Landing Pier as it appeared on the most current NOAA nautical charts as of January 1, 1993; and
4. Over the waters of Elkhorn Slough east of the Highway One bridge to Elkhorn Road.
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