[Federal Register Volume 62, Number 120 (Monday, June 23, 1997)]
[Proposed Rules]
[Pages 33768-33778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16053]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 970404078-7078-01]
RIN 0648-AE41
Proposed Thunder Bay National Marine Sanctuary
AGENCY: Sanctuaries and Reserves Division (SRD), Office of Ocean and
Coastal Resource Management (OCRM), National Ocean Service (NOS),
National
[[Page 33769]]
Oceanic and Atmospheric Administration (NOAA), Department of Commerce
(DOC).
ACTION: Proposed rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
proposing to designate an approximately 808 square mile area of waters
encompassing and surrounding Thunder Bay, Lake Huron, Michigan, and the
submerged lands thereunder as a National Marine Sanctuary. This
document publishes the proposed Designation Document for the proposed
Sanctuary and summarizes the draft management plan. The draft
management plan details the proposed goals and objectives, management
responsibilities, research activities, interpretive and educational
programs, and enforcement, including surveillance activities, for the
proposed Sanctuary. By this notice, NOAA also proposes regulations to
implement the proposed designation and regulate activities consistent
with the provisions of the proposed Designation Document. The
regulations include boundary coordinates for the proposed Sanctuary.
Finally, this notice announces the public availability of the Draft
Environmental Impact Statement/Management Plan (DEIS/MP) prepared for
the proposed designation.
DATES: comments must be received by September 22, 1997.
ADDRESSES: Comments must be submitted to Stephanie R. Thornton, Chief,
Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource
Management, National Ocean Service, National Oceanic and Atmospheric
Administration, SSMC4, 1305 East-West Highway, 11th Floor, Silver
Spring, Maryland 20910.
FOR FURTHER INFORMATION CONTACT: Ellen Brody at (313) 741-2270 or Ed
Lindelof at (301) 713-3137, ext. 131.
SUPPLEMENTARY INFORMATION:
I Background
The National Marine Sanctuaries Act (NMSA), as amended, 16 U.S.C.
1431 et seq. (also known as title III of the Marine Protection,
Research, and Sanctuaries Act), authorizes the Secretary of Commerce to
designate discrete areas of the marine environment as national Marine
Sanctuaries to protect their conservation, recreational, ecological,
historical, research, educational or esthetic qualities.
In January 1982, NOAA published a program Development plan (PDP)
for the National Marine Sanctuary Program, describing the Program's
mission and goals; site identification and selection criteria; and the
nomination and designation process. Based on the PDP and Program
regulations, NOAA published a proposed Site Evaluation List (SEL) of
highly-qualified marine sites identified and recommended to NOAA by
regional resource evaluation teams (RRETs), based on the Program's
mission and goals. Comments on the proposed SEL and additional site
recommendations were solicited from the public during the autumn of
1982. The Great Lakes RRET met initially in May 1982 and selected
Thunder Bay as one of five potential SEL sites, based in part on strong
local and regional support evidenced during the public comment period.
All SEL sites meet Program criteria for further consideration as
possible national marine sanctuaries; however, placement on the SEL
does not necessarily mean that a site will become a National Marine
Sanctuary. The Secretary of Commerce will, from time to time, select
sites from the SEL as Active Candidates. Selection of a site as an
Active Candidate formally initiates the process of a site's further
consideration for Sanctuary designation. Preparation of draft and final
environmental impact statements, in accordance with the National
Environmental Policy Act (NEPA), and management plans is required in
the consideration of any proposed Sanctuary site.
Before an area may be designated as a National Marine Sanctuary,
Sec. 303 of the NMSA (16 U.S.C. 1433) requires the Secretary to find:
(1) The area is of special national significance due to its
resource or human-use values;
(2) Existing State and Federal authorities are inadequate or should
be supplemented to ensure coordinated and comprehensive conservation
and management of the area, including resource protection, scientific
research, and public education;
(3) Designation of the area as a national marine sanctuary will
facilitate the objectives in the subparagraph (2); and
(4) The area is of a size and nature that will permit comprehensive
and coordinated conservation and management.
Section 304 (16 U.S.C. 1434) requires the Secretary to publish in
the Federal Register a notice of the proposal, proposed regulations,
and summary of the draft management plan.
The authority of the Secretary to designate National Marine
Sanctuaries has been delegated to the Under Secretary of Commerce for
Oceans and Atmosphere by DOC Organization Order 10-15, section 3.01(z)
(Jan. 11, 1988). The authority to administer the other provisions of
the Act has been delegated to the Assistant Administrator for Ocean
Services and Coastal Zone Management of NOAA by Circular 83-38,
Directive 05-50 (Sept. 21, 1983, as amended).
The Thunder Bay region contains over 160 shipwrecks that span more
than a century of Great Lakes maritime history. Although many of these
wrecks have been identified, many more are thought to be in the Thunder
Bay area and have yet to be located. Collectively, Thunder Bay's
shipwrecks present a ``microcosm'' of the Great Lakes commercial
shipping industry. Based on studies undertaken to date, there is strong
evidence of Thunder Bay's national historical significance, as the
sunken vessels reflect transitions in ship architecture and
construction methods, from wooden sailboats to early iron hulled
steamers. Additional significance is attached to the collection (or
number) of shipwrecks in the Thunder Bay region, if not to individual
vessel characteristics. A large array of shipwrecks exist in the
Thunder Bay region, including virtually all types of vessels used on
the open Great Lakes. These vessels were engaged in nearly every type
of trade, thereby linking Thunder Bay inextricably to Great Lakes
commerce.
The historical themes encompassed by existing investigation of
shipwrecks in Thunder Bay (Martin 1996) include:
--Prehistoric transportation;
--Early trade and exploration by Europeans;
--Early settlement and military affairs (1679-1860);
--Westward expansion (1763-1898);
--Business and agricultural products;
--Lumber, coal, stone, and ore;
--Foreign trade and the St. Lawrence Seaway;
--Transportation technology (commercial sail);
--Transportation technology (commercial steam); and
--Transportation technology (motor-powered and unpowered--vessels).
From even the most general of observations, Thunder Bay's
collection of shipwrecks may be considered nationally significant
historically, as the wrecks present a broad history of Great Lakes
culture and commercial history. A recent study also has investigated
the potential of Thunder Bay for possible National Historic Landmark
status (Martin 1996).
On July 15, 1991, NOAA published a Federal Register notice
announcing the active candidacy of Thunder Bay as a
[[Page 33770]]
potential National Marine Sanctuary (56 FR 32178). Following this
notice, NOAA conducted two public scoping meetings (September 29 and
30, 1991) in Lansing and Alpena, Michigan, to gather information and
comments from individuals, organizations, and government agencies on
the range and significance of issues related to the Sanctuary proposal
(56 FR 51686). Over the next two to three years, there followed a
series of meetings of informal working groups to bring together local,
state, federal, and tribal agencies, organizations, and business to
discuss the scope of a National Marine Sanctuary at Thunder Bay.
In 1994, a Thunder Bay Core Group was formed, whose members
represent local, state, federal and tribal agencies. The Core Group
assisted in the development and review of management alternatives, in
cooperation with a variety of community interests. By mid-1995, the
Core Group had narrowed the management focus of a potential Thunder Bay
National Marine Sanctuary to underwater cultural resources (e.g.,
shipwrecks). This recommended focus was presented and agreed upon at a
community meeting in June 1995. Since that time, development of the
Draft Environmental Impact Statement/Draft Management Plan has
proceeded in accordance with the recommendations of the Core Group.
Comments are solicited from all interested persons. Holders of,
owners of, or future applicants for leases, permits, licenses,
approvals, other authorizations, or rights are specifically invited to
comment on how they may be affected by the proposed designation of the
Sanctuary. In particular, comments are also invited on the adequacy of
the existing regulatory regime to protect Sanctuary resources and
qualities.
After the comments received during the comment period have been
considered, NOAA, in consultation with the State of Michigan, will
determine whether to proceed with designation of the Sanctuary. If it
is decided to proceed, a final environmental impact statement and
management plan will be prepared, and a notice of designation together
with final regulations implementing the designation may be published in
the Federal Register. The designation (and any of its terms) and
regulations would take effect and become final after the close of a
review period of forty-five days of continuous session of Congress
beginning on the day on which such notice is published, unless the
Governor of the State of Michigan certifies within the forty-five-day
period to the Secretary of Commerce that the designation or any of its
terms is unacceptable. In such case the designation or unacceptable
term cannot take effect in the area of the Sanctuary lying within State
of Michigan waters.
II. Summary of Draft Environmental Impact Statement/Management Plan
The DEIS/MP for the proposed Thunder Bay National Marine Sanctuary
sets forth the Sanctuary's location and provides details on the
cultural and historical resources and uses of the Sanctuary. The DEIS/
MP describes the Sanctuary goals and objectives, research and education
programs, and details the specific activities to be taken in each
program. The DEIS/MP includes a detailed discussion, by program area,
of agency roles and responsibilities.
Goals and Objectives
The highest priority management goal would be to protect the
underwater cultural resources of the proposed Sanctuary. The specific
objectives of protection efforts are to: (1) coordinate policies and
procedures among the agencies sharing responsibility for protection and
management of resources; (2) encourage participation by interested
agencies and organizations in the development of procedures to address
specific management concerns (e.g., monitoring and emergency-response
programs); (3) develop an effective and coordinated program for the
enforcement of Sanctuary regulations; (4) promote public awareness of,
and voluntary compliance with, Sanctuary regulations and objectives,
through an educational/interpretive program stressing resource
sensitivity and wise use; (5) ensure that the appropriate management
agency incorporates research results and scientific data into effective
resource protection strategies; and (6) reduce threats to Sanctuary
resources.
The primary function of the Sanctuary's resource protection program
would be to ensure, through cooperative stewardship, the protection of
Thunder Bay's underwater cultural resources, for their long-term
integrity and use. cooperative stewardship, as described by the
Michigan Underwater Preserve Council and other organizations, involves
the active participation in resource protection activities by agencies,
organizations and businesses. The Sanctuary would support the State's
goal for increased protection of resources of historic value.
Stewardship is important to achieving this primary goal, as is
Sanctuary coordination with existing State and regional resource
protection plans. Such plans include Michigan's Underwater Preserve
Program. The Thunder Bay Underwater Preserve was created by the State,
in part, to protect abandoned property of historical value. Sanctuary
resource protection activities could include:
Coordinating management agencies (e.g., NOAA, the State of
Michigan's Department of Environmental Quality, Department of State,
and Department of Natural Resources);
Science-based decisionmaking, including baseline inventory
and assessment activities;
Developing and maintaining a mooring buoy system; and
Providing additional support for enforcement.
Research Program
Effective management of the proposed Sanctuary would require the
initiation of a Sanctuary research program. The purpose of Sanctuary
research activities is to improve understanding of the Thunder Bay
environment, and its cultural and historical resources, and to resolve
specific management problems. Research results would be used in
interpretive programs for visitors and others interested in the
Sanctuary, as well as for protection and management of the Sanctuary's
cultural and historical resources.
Specific objectives for the research program would be to: (1)
Establish a framework and procedures for administering research to
ensure that research projects are responsive to management concerns and
that results contribute to improved management of the Sanctuary; (2)
incorporate research results into the interpretive/education program in
a format useful for the general public; (3) focus and coordinate data
collection efforts on the identification, condition and location of
submerged shipwrecks within the Sanctuary; (4) encourage studies that
integrate research on submerged shipwrecks and Great Lake processes;
(5) initiate a monitoring program to assess environmental changes as
they occur due to natural and human processes; (6) identify the range
of effects on Sanctuary resources that would result from predicted
changes in human activity or natural phenomena; and (7) encourage
information exchange among all the organizations and agencies
undertaking management-related research in the Sanctuary to promote
more informed management.
The Sanctuary Research Program would complement the Michigan
Underwater Preserve Program by supporting the inventory, assessment,
and monitoring of Sanctuary underwater cultural resources. The
Sanctuary Research Program also would
[[Page 33771]]
be complementary to the Michigan Department of State goal of
documenting more fully Michigan's historic resources. An additional
benefit of the Sanctuary Research Program would be the potential
assistance in implementation of coastal management plans, through
identification and evaluation of these resources.
Priorities for Sanctuary research activities and strategies would
be incorporated into a Sanctuary Research Plan, to be developed if
Sanctuary designation occurs. Possible Sanctuary research priorities
could include:
Conducting preliminary historical research (i.e.,
completion of research on all sunken vessels identified in the Thunder
Bay vicinity). These data would be important to further analysis of the
collection of wrecks and their eventual interpretation for both popular
and scholarly audiences;
Inventory and locating historical materials, involving
research of collections at local and regional archives, as well as
those of private owners;
Conducting a full scale contextual theme study to develop
a database of Great Lakes shipwrecks, to enable further evaluation of
Thunder Bay region shipwrecks and possible formal nomination to the
U.S. Department of the Interior for National Landmark status; and
Producing a historical guide to maritime resources of the
Thunder Bay region, to be available for a variety of user groups.
These research activities would aid in interpreting Thunder Bay's
history within regional, national, and international contexts, and
would involve local communities in discovering their maritime heritage.
Additional possible research and monitoring priorities include
archaeological inventory and assessment of Thunder Bay's shipwrecks,
and investigation into impacts of zebra mussels on shipwrecks and
recreational diving.
Education Program
The Sanctuary Educational Program's primary function would be to
promote understanding, appreciation, and involvement in the protection
and stewardship of Thunder Bay's underwater cultural resources. The
goal for education programs would be to improve public awareness and
understanding of the significance of the Sanctuary and the need to
protect its resources. The management objectives designed to meet this
goal would be to: (1) Provide the public with information on the
Sanctuary and its goals and objectives, with an emphasis on the need to
use Sanctuary resources wisely to ensure their long-term viability; (2)
broaden support for Sanctuary management by offering programs suited to
visitors with a range of diverse interests; (3) provide for public
involvement by encouraging feedback on the effectiveness of education
programs; (4) collaborate with Sanctuary management staff in extension
and outreach programs; and participate in other volunteer programs; and
(5) collaborate with other organizations to provide educational
services complementary to the Sanctuary program. Possible activities
would include a wide range of programs, facilities, and services
offered through schools; interpretation; and outreach activities.
Program activities would support the priorities of the Michigan
Underwater Preserve Program, particularly those of the Thunder Bay
Underwater Preserve. Sanctuary education activities would complement
existing efforts relating to underwater cultural resources and the
Thunder Bay area's maritime heritage.
Individual educational activity priorities would be identified in
an Education Plan, to be developed if the Sanctuary is designated.
Possible education activities include:
Working cooperatively with Great Lakes educators (i.e.,
schools, colleges and universities, MSU Extension, museums) and other
agencies, organizations and businesses interested in Great Lakes
education to identify education themes based on the maritime cultural
landscape focus of the Sanctuary (e.g., industrial development, western
expansion, relationships between cultural resources and the natural
environment);
Utilizing existing information on Great Lakes education
programs to identify those which support Sanctuary education themes.
The Sanctuary could then work cooperatively to complement, and assist
in maintaining and enhancing these programs. Examples of existing
programs include the Elder Hostel program, and the signage, displays
and materials along the riverwalk trail;
Identifying and supporting a network of volunteers to help
enhance and maintain activities that are consistent with Sanctuary
education themes. The network could utilize community expertise and
interests in matching volunteers with needed activities. Training,
support, and incentives could be provided to volunteers as needs and
interests arise;
Establishing remote video hook-ups of researchers
inventorying and documenting the shipwrecks. Utilization of this
technology would provide visual access to shipwrecks for non-drivers;
and
Developing a ``Thunder Bay Shipwreck Trail.'' The
Sanctuary could select and interpret a selection of shipwrecks to
develop a ``shipwreck trail'' that would highlight Thunder Bay's
maritime heritage. Themes would be developed and matched with
appropriate wreck sites to educate visiting divers and non-divers about
such subjects as historical ship construction, Great Lakes shipping,
the effect of environmental processes on shipwrecks, and the effects of
salvage on historic shipwrecks.
Sanctuary Administration
The Sanctuary Administration Program would focus on the roles and
responsibilities of the agencies, organizations, and businesses that
would be involved in operation of the Sanctuary. Successful operation
of the proposed Sanctuary would be possible only through cooperative
efforts of appropriate local, state, federal, and tribal agencies,
organizations and businesses. This section also discusses potential
Sanctuary staff and facilities, including staff roles, office
establishment in Alpena, with possible satellite offices (if needed in
the future), and development of a Great Lakes education center, which
would enhance education opportunities for both local residents and
visitors to the region.
The Sanctuary's goal for visitor management would be to facilitate,
to the extent compatible with the primary objective of resource
protection, public and private uses of the Sanctuary not prohibited
pursuant to other authorities.
Specific management objectives would be to: (1) Provide relevant
information about Sanctuary regulations, use policies and standards;
(2) collaborate with public and private organizations in promoting
compatible uses of the Sanctuary; (3) encourage the public who use the
Sanctuary to respect sensitive Sanctuary resources; and (4) monitor and
assess the current levels of use to identify and control potential
degradation of Sanctuary resources and minimize potential user
conflicts.
The possible establishment of a Sanctuary Advisory Council (SAC) is
discussed as a mechanism to provide advice and recommendations to the
Sanctuary Manager about issues related to Sanctuary programs and
implementation. The SAC would encourage community participation in the
management of the proposed Sanctuary. Members of a Thunder Bay SAC may
not exceed fifteen in number,
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and would be determined by NOAA, in consultation with the State of
Michigan.
Finally, a five-year projection of Sanctuary activities, necessary
financial obligations, and economic impacts of the Sanctuary is
provided.
III. Proposed Designation Document
Section 304(a)(4) of the NMSA requires that the terms of
designation include the geographic area included within the Sanctuary;
the characteristics of the area that give it conservation,
recreational, ecological, historical, research, educational, or
aesthetic value; and the types of activities subject to regulation by
the Secretary to protect these characteristics. Section 304(a)(4) also
specifies that the terms of designation may be modified only by the
same procedures by which the original designation was made. Thus, the
terms of designation serve as a constitution for the Sanctuary. The
proposed Designation Document follows:
Proposed Designation Document for the Proposed Thunder Bay National
Marine Sanctuary
Under the authority of the National Marine Sanctuaries Act, as
amended, 16 U.S.C. Secs. 1431 et seq., Thunder Bay and its surrounding
waters offshore of Michigan, and the submerged lands under Thunder Bay
and its surrounding waters, as described in Article II, are hereby
designated as a National Marine Sanctuary for the purposes of providing
long-term protection and management of the conservation, recreational,
research, educational, and historical resources and qualities of the
area.
Article I: Effect of Designation
The NMSA authorizes the issuance of such regulations as are
necessary and reasonable to implement the designation, including
managing and protecting the conservation, recreational, historical,
research, and educational resources and qualities of the Thunder Bay
National Marine Sanctuary (the ``Sanctuary''). Section 1 of Article IV
of this Designation Document lists those activities that may have to be
regulated on the effective date of designation, or at some later date,
in order to protect Sanctuary resources and qualities. Listing does not
necessarily mean that an activity will be regulated; however, if an
activity is not listed it may not be regulated, except on an emergency
basis, unless Section 1 of Article IV is amended by the same procedures
by which the original Sanctuary designation was made.
Article II: Description of the Area
The Sanctuary boundary encompasses a total of approximately 808
square miles of waters, and the submerged lands thereunder, surrounding
Thunder Bay, Lake Huron, Michigan. The boundary forms an approximately
rectangular area by extending along the ordinary high water mark of the
Michigan shoreline from Presque Isle Lighthouse, at 45 21.4 N latitude,
south to Sturgeon Point Lighthouse, at 44 42.7 N latitude, and lakeward
from those points along latitude lines to 83 W longitude. the precise
boundary is set forth in Appendix I to this Designation Document.
Article III: Characteristics of the Area That Give It Particular Value
Thunder Bay and its surrounding waters contain over 160 shipwrecks
spanning more than a century of Great Lakes maritime history. Virtually
every type of vessel used on open Great Lakes areas has been documented
in the Thunder Bay region, linking Thunder Bay inextricably to Great
Lakes commerce. Most of the Great Lakes trades had a national, and
sometimes an international, significance, and resulted in uniquely
designed vessels. Although not all of Thunder Bay's shipwrecks have
been identified, based on studies undertaken to date, there is strong
evidence of the Bay's national historic significance. The sunken
vessels reflect transitions in ship architecture and construction
methods, from wooden sailboats to early iron-hulled steamers.
Several major conclusions regarding Thunder Bay's shipwrecks may be
drawn from research and analysis undertaken to date: they are
representative of the composition of the Great Lakes merchant marine
from 1840 to 1970; they provide information on the various phases of
American westward expansion; they provide information on the growth of
American extraction and use of natural resources; they illustrate the
various phases of American industrialization; one shipwreck (Issac M.
Scott) provides the vehicle for study and interpretation of a specific
event (the Great Storm of 1913) that had strong repercussions
nationally, regionally and internationally; and they provide
interpretive material for understanding American foreign inter-
continental trade within the Great Lakes.
Thunder Bay was established as the first State of Michigan
Bottomland Preserve in 1981, to protect these underwater cultural
resources. Increasing public interest in underwater cultural resources
underscores the importance of continued efforts to discover, explore,
document and study the Bay's shipwrecks.
Article IV: Scope of Regulations
Section 1. Activities Subject to Regulation. The following
activities are subject to regulation, including prohibition, to the
extent necessary and reasonable to ensure the protection and management
of the conservation, recreational, historical, research and educational
resources and qualities of the area:
a. Disturbing, moving, removing or injuring, possessing, or
attempting to disturb, move, remove, injure, or possess an underwater
cultural resource;
b. Drilling into, dredging or otherwise altering the lakebottom
associated with underwater cultural resources; or constructing, placing
or abandoning any structure, material or other matter on the lakebottom
associated with underwater cultural resources, except as an incidental
result of:
(i) Anchoring vessels;
(ii) Traditional fishing operations;
(iii) Minor projects as currently defined in R. 322.1013 of Part
325, Great Lakes Submerged Lands of Public Act 451 (1994), as amended,
that do not adversely affect underwater cultural resources; or
c. Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the NMSA or any regulations issued under
the NMSA.
2. Consistency With International Law. The regulations governing
the activities listed in section 1 of this Article shall apply to
United States-flag vessels and to persons who are citizens, nationals,
or resident aliens of the United States, and shall apply to foreign-
flag vessels and persons not citizens, nationals, or resident aliens of
the United States to the extent consistent with generally-recognized
principles of international law, and in accordance with treaties,
conventions, and other agreements to which the United States is a
party.
3. Emergencies. Where necessary to prevent or minimize the
destruction of, loss of, or injury to a Sanctuary resource or quality;
or minimize the imminent risk of such destruction, loss, or injury, any
activity, including those not listed in Section 1, is subject to
immediate temporary regulation.
Article V: Effect on Other Regulations, Leases, Permits, Licenses, and
Rights
Section 1. Fishing Regulations, Licenses, and Permits. Fishing in
the
[[Page 33773]]
Sanctuary shall not be regulated as part of the Sanctuary management
regime authorized by the Act. However, fishing in the Sanctuary may be
regulated other than under the Act by Federal, State, Tribal and local
authorities of competent jurisdiction, and designation of the Sanctuary
shall have no effect on any regulation, permit, or license issued
thereunder.
Section 2. Other. If any valid regulation issued by any Federal,
state, Tribal, or local authority of competent jurisdiction, regardless
of when issued, conflicts with a Sanctuary regulation, the regulation
deemed by the Director, Office of Ocean and Coastal Resource
Management, National Oceanic and Atmospheric Administration, or his or
her designate, in consultation with the state of Michigan, to be more
protective of Sanctuary resources and qualities shall govern.
Pursuant to section 304(c)(1) of the Act, 16 U.S.C.
Sec. 1434(c)(1), no valid lease, permit, license, approval, or other
authorization issued by any Federal, State, Tribal, or local authority
of competent jurisdiction, or any right of subsistence use or access,
may be terminated by the Secretary of Commerce, or his or her
designate, as a result of this designation, or as a result of any
Sanctuary regulation, if such lease, permit, license, approval, or
other authorization, or right of subsistence use or access was issued
or in existence as of the effective date of this designation. However,
the Secretary of Commerce, or his or her designee, in consultation with
the State of Michigan, may regulate the exercise of such authorization
or right consistent with the purposes for which the Sanctuary is
designated.
Article VI. Alteration of This Designation
The terms of designation may be modified only by the same
procedures by which the original designation is made, including public
hearings, consultation with interested Federal, Sate, Tribal, regional,
and local authorities and agencies, review by the appropriate
Congressional committees, and approval by the Governor of the State of
Michigan, and the Secretary of Commerce, or his or her designates.
Appendix I. Proposed Thunder Bay National Marine Sanctuary Boundary
Coordinates
(Appendix I will set forth the final Sanctuary boundary after
consideration of comments received on the DEIS/MP.)
End of Proposed Designation Document.
IV. Summary of Proposes Regulations
The proposed regulations would set forth the boundary of the
proposed Thunder Bay National Marine Sanctuary; prohibit a narrow range
of activities; and establish certification and permitting procedures.
Other provisions of the existing National Marine Sanctuary Program
regulations would also apply to the Sanctuary. These include the
regulations for certification of existing permits and other
authorizations, notification and review procedures to conduct otherwise
prohibited activities, setting forth the maximum per day penalties for
violating Sanctuary regulations, and establishing procedures for
administrative appeals.
Specifically, the proposed regulations would add a new Subpart R to
part 922, title 15, Code of Federal Regulations.
Proposed Sec. 922.190 and proposed appendix A to subpart R would
set forth the boundary of the Sanctuary.
Proposed Sec. 922.191 would define various terms used in the
regulations. Sanctuary resources would be defined to mean any
underwater cultural resource. Underwater cultural resource would be
defined as ``any submerged resource possessing historical, cultural, or
archaeological significance, including shipwrecks, sites, contextual
information, structures, districts, and objects significantly
associated with or representative of earlier people, cultures, maritime
heritage, and human activities and events.'' This definition would also
state that ``[h]istorical resources include `historical properties,' as
defined under the National Historic Preservation Act, as amended, and
its implementing regulations, as amended.'' That Act defines ``historic
properties'' as ``any prehistoric or historic district, site, building,
structure, or object included in, or eligible for inclusion on the
National Register, including artifacts, records, and material remains
related to such a property or resource.''
State of Michigan agency representatives suggested NOAA include
resource that are significant primarily due to their recreational
attraction and use within the definition of underwater cultural
resources, similar to provisions of Part 761, Aboriginal Records and
Antiquities of Public Law 451 (1994), as amended. However, NOAA's focus
has been on those resources that are significant due to their
historical, cultural, or archaeological significance. Further, many of
the resources within NOAA's proposed definition would include sites
that enjoy a substantial amount of recreational use. Consequently, NOAA
has preliminarily determined that the proposed definition should not be
expanded, but specifically requests comments on this issue.
Other terms appearing in the proposed regulations are defined at 15
CFR Part 922 Subpart A, and/or in the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et seq., and 16
U.S.C. 1431 et seq.
Proposed Sec. 922.192 would prohibit a narrow range of activities
and thus make it unlawful to conduct them. However, the prohibited
activities could be conducted lawfully if:
(1) Necessary for law enforcement, or to respond to an emergency
threatening life or the environment;
(2) Conducted pursuant to a valid lease, permit, license, or other
authorization issued by any Federal, State, or local authority of
competent jurisdiction, or to any valid right of subsistence use or
access, in existence as of the effective date of this designation
subject to certification by the Director of the Office of Ocean and
Coastal Resource Management under Sec. 922.193 and Sec. 922.47; or
(3) Conducted in accordance with the scope, purpose, terms and
conditions of a State or Federal permit issued pursuant to Sec. 922.193
and Sec. 922.49; a National Marine Sanctuary permit issued pursuant to
Sec. 922.193 and Sec. 922.48; or a Special Use permit issued pursuant
to section 310 of the NMSA.
The first activity prohibited would be disturbing, moving, removing
or injuring, possessing, or attempting to disturb, move, remove or
injure, or possess an underwater cultural resource, from within the
boundary of the Sanctuary. The intent of this regulation is to protect
the underwater cultural resources of the Sanctuary for the benefit of
the public through, for example, education, observation in situ, and
research.
The second activity prohibited would be drilling into, dredging or
otherwise altering the lakebottom associated with underwater cultural
resources, including contextual information; or constructing, placing
or abandoning any structure, material or other matter on the lakebottom
associated with underwater cultural resources, except as an incidental
result of:
(a) Anchoring vessels; (b) traditional fishing operations; or (c)
minor projects that the State Archaeologist certifies will not
adversely affect underwater cultural resources. Appendix B to Subpart R
lists the minor projects that may fall within this latter exception;
taken from the current version of R 322.1013 of Part 325, Great Lakes
[[Page 33774]]
Submerged Lands of Public Act 451. The intent of this regulation is to
protect the underwater cultural resources of the Sanctuary from the
harmful effects of activities such as, but not limited to, dredging,
excavations, drilling into the lakebottom, and dumping of dredged
materials.
A third prohibition would make it unlawful to interfere with,
obstruct, delay or prevent an investigation, search, seizure or
disposition of seized property in connection with enforcement of the
NMSA or any regulations issued under the NMSA.
Proposed Sec. 922.193 would provide for certification by the
Director of OCRM of activities conducted pursuant to a valid lease,
permit, license, or other authorization issued by any Federal, State,
or local authority of competent jurisdiction, or to any valid right of
subsistence use or access, in existence as of the effective date of
Sanctuary designation.
Proposed Sec. 922.194 would provide for the conduct of activities
prohibited by Sanctuary regulations at Sec. 922.192(a) (1) through (2),
provided that the activity is conducted in accordance with the scope,
purpose, manner, terms and conditions of a State of Michigan permit
(State Permit) which the State Archaeologist certifies is consistent
with the Programmatic Agreement among NOAA, the State and the Advisory
Council on Historic Preservation, developed pursuant to the NMSA and
section 106 of the National Historic Preservation Act (NHPA). Such
State Permits are deemed to have met the ``authorization'' requirements
of 15 CFR Sec. 922.49 of the National Marine Sanctuary Program
regulations. If a State Permit is not certified as consistent with the
Programmatic Agreement, the applicant would be required to follow the
procedures of 15 CFR Sec. 922.49 to obtain an individual Sanctuary
authorization of the State Permit. Such activity would also be subject
to section 106 of the NHPA. If there is only a Federal permit
applicable to the activity, the applicant must follow the procedures of
15 CFR Sec. 922.49 to obtain an individual Sanctuary authorization of
the Federal permit, subject to section 106 of the NHPA. Finally, if
there is no State or Federal permit required to conduct the prohibited
activity, the person must obtain a Sanctuary permit pursuant to 15 CFR
Sec. 922.48 of the NMSP regulations to conduct such activity, subject
to section 106 of the NHPA. For a proposed activity not prohibited by
Sanctuary regulations but that may impact Sanctuary resources, NOAA may
review state permit applications for such activity during identified
public comment periods and provide comments to the Michigan Department
of Environmental Quality, the Michigan Department of State, and other
management agencies, as appropriate.
As appropriate, the Director of OCRM would coordinate with the
State of Michigan, governing bodies of Tribes with reservations
affected by the Sanctuary, and representatives of adjacent county
governments, regarding areas of mutual concern and threats to Thunder
Bay's underwater cultural resources. The Director may enter into
memoranda of understanding regarding such coordination to further the
goals of the Sanctuary.
V. Miscellaneous Rulemaking Requirements
National Marine Sanctuaries Act
Section 304 of the NMSA also requires the Secretary to submit to
the appropriate Congressional Committees, on the same day this notice
is published, documents, including an executive summary, consisting of
the terms of the proposed designation, the proposed regulations and the
DEIS/MP. In accordance with section 304, the required documents are
being submitted to the appropriate Congressional Committees.
National Environmental Policy Act
Section 304 of the NMSA, 16 U.S.C. 1434, requires the preparation
of a draft environmental impact statement (DEIS), as provided by the
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and
that the DEIS be made available to the public. NOAA has prepared a
DEIS/MP for proposed designation of the Thunder Bay National Marine
Sanctuary. The DEIS/MP is available at the addresses listed in the
Address section of this proposed rule.
Executive Order 12866: Regulatory Impact
NOAA has concluded that this regulatory action is not significant
within the meaning of section 3(f) of Executive Order 12866 because it
will not result in:
(1) An annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, or public health and safety;
(2) A serious inconsistency or otherwise interfere with an action
taken or planned by another agency;
(3) A material alteration of the budgetary impact of entitlements,
grants, user fees, or loan programs or rights and obligations of such
recipients; or
(4) Novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
Executive Order 12612: Federalism Assessment
A Federalism Assessment (FA) was prepared for the proposed
designation document, draft management plan, and proposed implementing
regulations. The FA concluded that all were fully consistent with the
principles, criteria, and requirements set forth in sections 2 through
5 of Executive Order 12612, Federalism Considerations in Policy
Formulation Implementation (52 FR 41685, Oct. 26, 1987). Copies of the
FA are available upon request from the Office of Ocean and Coastal
Resource Management at the address listed above.
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulations of
the Department of Commerce certified to the Chief Counsel for Advocacy
of the Small Business Administration that this proposed rule issued
under authority of the National Marine Sanctuaries Act, 16 U.S.C. 1431
et seq., if adopted as proposed, will not have a significant economic
impact on a substantial number of small entities as follows:
This proposed rule implements the proposed designation of the
Thunder Bay National Marine Sanctuary (TBNMS or Sanctuary). The
primary purpose of the proposed Sanctuary would be to protect
shipwrecks and other underwater cultural resources. The proposed
Sanctuary regulations prohibit the following two activities: (1)
disturbing, moving, removing or injuring, possessing, or attempting
to disturb, move, remove or injure, or possess an underwater
cultural resource; and (2) drilling into, dredging or otherwise
altering the lakebottom associated with underwater cultural
resources, including contextual information; or constructing,
placing or abandoning any structure, material or other matter on the
lakebottom associated with underwater cultural resources, except as
an incidental result of: (i) anchoring vessels; (ii) traditional
fishing operations; or (iii) minor projects that do not adversely
affect underwater cultural resources. The regulations, if adopted as
proposed, would pertain solely to protection of underwater cultural
resources and would not be expected to have a significant impact on
a substantial number of small businesses because they would not
eliminate or curtail most existing recreational or commercial
activities (e.g., recreational diving, sport fishing and hunting,
commercial fishing, charter operations, or commercial shipping).
Although limited in number, commercial salvage companies and
businesses that sell
[[Page 33775]]
shipwreck artifacts and other archaeological materials may be
adversely impacted because they could not remove or injure
underwater cultural resources without a permit. However, such
impacts will not be significant because the entire Sanctuary is
within State of Michigan waters and commercial salvage and sale of
artifacts are already subject to state regulations. Further, the
proposed Sanctuary regulations are consistent with prohibitions
already in place under State law for the Thunder Bay Underwater
Preserve, which is encompassed by the Sanctuary, designated by the
State in 1981. There have been no significant commercial shipwreck
salvage or ``treasure hunting'' operations in the Thunder Bay region
since the State designated the Thunder Bay Underwater Preserve.
Moreover, since 1980, there have been only seven salvage permits
issued by the State for removal or alteration of shipwrecks or
associated artifacts in the region. Consequently, the rule is not
expected to significantly impact a substantial number of small
business entities.
Accordingly, a Regulatory Flexibility Analysis was not prepared.
Paperwork Reduction Act
Notwithstanding any other provisions of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection-of-information, subject to the
requirements of the Paperwork Reduction act, 44 U.S.C. 3501 et seq.,
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) control number.
This proposed rule contains a collection of information requirement
subject to the requirements of the Paperwork Reduction Act. The
collection of information requirement applies to persons seeking
permits to conduct otherwise prohibited activities and is necessary to
determine whether the final activities are consistent with the
management goals for the Sanctuary. The collection of information
requirement contained in the proposed rule has been submitted to the
Office of Management and Budget for review under section 3507 of the
Paperwork Reduction Act. The public reporting burden per respondent for
the collection of information contained in this rule is estimated to
average 10 hours annually. This estimate includes the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Comments are requested concerning: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (b) the accuracy of NOAA's burden estimate; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
Comments should be addressed to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503 (Attn: Desk Officer for NOAA); and to Richard Roberts, Room 724,
6010 Executive Boulevard, Rockville, MD 20852.
Unfunded Mandates Reform Act of 1995
This proposed rule, if adopted as proposed, would contain no
Federal mandates (under the regulatory provisions of Title II of the
Unfunded Mandates Reform Act of 1995 (UMRA)) for State, local, and
tribal governments or the private sector. Thus, this rule is not
subject to the requirements of section 202 and 205 of the UMRA.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Natural resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary
Program)
Dated: June 13, 1997.
Nancy Foster,
Assistant Administrator for Ocean Services and Coastal Zone Management.
Accordingly, for the reasons set forth above, 15 CFR Part 922 is
proposed to be amended as follows:
PART 922--[AMENDED]
1. The authority citation for Part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
2. Section 922.1 is revised as follows:
Sec. 922.1 Applicability of regulations.
Unless noted otherwise, the regulations in subparts A, D and E
apply to all thirteen National Marine Sanctuaries for which site-
specific regulations appear in subparts F through R, respectively.
Subparts B and C apply to the site evaluation list and to the
designation of future Sanctuaries.
3. Section 922.40 is revised to read as follows:
Sec. 922.40 Purpose.
The purpose of the regulations in this subpart and in subparts F
through R is to implement the designations of the thirteen National
Marine Sanctuaries for which site specific regulations appear in
subparts F through R, respectively, by regulating activities affecting
them, consistent with their respective terms of designation in order to
protect, preserve and manage and thereby ensure the health, integrity
and continued availability of the conservation, ecological,
recreational, research, educational, historical and aesthetic resources
and qualities of these areas. Additional purposes of the regulations
implementing the designation of the Florida Keys National Marine
Sanctuary are found at Sec. 922.160.
4. Section 922.41 is revised to read as follows:
Sec. 922.41 Boundaries.
The boundary for each of the thirteen National Marine Sanctuaries
covered by this part is described in subparts F through R,
respectively.
5. Section 922.42 is revised to read as follows:
Sec. 922.42 Allowed activities.
All activities (e.g., fishing, boating, diving, research,
education) may be conducted unless prohibited or otherwise regulated in
subparts F through R, subject to any emergency regulations promulgated
pursuant to Secs. 922.44, 922.111(c), or 922.165, subject to all
prohibitions, regulations, restrictions, and conditions validly imposed
by any Federal, State, or local authority of competent jurisdiction,
including Federal and State fishery management authorities, and subject
to the provisions of Sec. 312 of the Act. The Assistant Administrator
may only directly regulate fishing activities pursuant to the procedure
set forth in Sec. 304.(a)(5) of the NMSA.
6. Section 922.43 is revised to read as follows:
Sec. 922.43 Prohibited or otherwise regulated activities.
Subparts F through R set forth site-specific regulations applicable
to the activities specified therein.
7. Section 922.47 is amended by revising paragraph (b) as follows:
Sec. 922.47 Pre-existing authorizations or rights and certifications
of pre-existing authorizations or rights.
* * * * *
(b) The prohibitions listed in subparts F through P, or subpart R
do not apply to any activity authorized by a valid lease, permit,
license, approval or other authorization in existence on the effective
date of sanctuary designation, or in the case of the Florida Keys
National Marine Sanctuary the effective
[[Page 33776]]
date of the regulations in subpart P, and issued by any Federal, State
or local authority of competent jurisdiction, or by any valid right of
subsistence use or access in existence on the effective date of
Sanctuary designation, or in the case of the Florida Keys National
Marine Sanctuary the effective date of the regulations in subpart P,
provided that the holder of such authorization or right complies with
certification procedures and criteria promulgated at the time of
Sanctuary designation, or in the case of the Florida Keys National
Marine Sanctuary the effective date of the regulations in subpart P,
and with any terms and conditions on the exercise of such authorization
or right imposed by the Director as a condition of certification as the
director deems necessary to achieve the purposes for which the
Sanctuary was designated.
8. Section 922.48 is amended by revising paragraphs (a) and (b) and
(d) as follows:
Sec. 922.48 National Marine Sanctuary permits--application procedures
and issuance criteria.
(a) A person may conduct an activity prohibited by subparts F
through O, or subpart R if conducted in accordance with the scope,
purpose, terms and conditions of a permit issued under this section and
subparts F through O, or subpart R, as appropriate. Fork the Florida
Keys National Marine Sanctuary, a person may conduct an activity
prohibited by subpart P if conducted in accordance with the scope,
purpose, terms and conditions of a permit issued under Sec. 922.166.
(b) Applications for permits to conduct activities otherwise
prohibited by subparts F through O, or subpart R should be addressed to
the Director and sent to the address specified in subparts F through O,
or subpart R, as appropriate. An application must include:
* * * * *
(d) The Director, at his or her discretion, may issue a permit,
subject to such terms and conditions as he or she deems appropriate, to
conduct a prohibited activity, in accordance with the criteria found in
subparts F through O, or subpart R, as appropriate. The Director shall
further impose, at a minimum, the conditions set forth in the relevant
subpart.
* * * * *
9. Paragraphs (a) through (c) of section 922.49 are revised to read
as follows:
Sec. 922.49 Notification and review of applications for leases,
licenses, permits, approvals, or other authorizations to conduct a
prohibited activity.
(a) A person may conduct an activity prohibited by subparts L
through P, or subpart R is such activity is specifically authorized by
any valid Federal, State, or local lease, permit, license, approval, or
other authorization issued after the effective date of Sanctuary
designation, or in the case of the Florida Keys National Marine
Sanctuary after the effective date of the regulations in subpart P,
provided that:
(1) the applicant notifies the Director, in writing, of the
application for such authorization (and of any application for an
amendment, renewal, or extension of such authorization) within fifteen
(15) days of the date of filing of the application or the effective
date of Sanctuary designation, or in the case of the Florida Keys
National Marine Sanctuary the effective date of the regulations in
subpart P, whichever is later;
(2) the applicant complies with the other provisions of this
Sec. 922.49;
(3) the Director notifies the applicant and authorizing agency that
he or she does not object to issuance of the authorization (or
amendment, renewal, or extension); and
(4) the applicant complies with any terms and conditions the
Director deems reasonably necessary to protect Sanctuary resources and
qualities.
(b) Any potential applicant for an authorization described in
paragraph (a) above may request the Director to issue a finding as to
whether the activity for which an application is intended to be made is
prohibited by subparts L through P, or subpart R, as appropriate.
(c) Notification of filings of applications should be sent to the
Director, Office of Ocean and Coastal Resource Management at the
address specified in subparts L through P, or subpart R, as
appropriate. A copy of the application must accompany the notification.
* * * * *
Sec. 922.50 [Amended]
10. Section 922.50 is amended by replacing ``L through P'' with ``L
through P, and subpart R'' wherever ``L through P'' is found within
this section.
11. Part 922 is amended by adding a new subpart R immediately
following subpart Q as follows:
Subpart R--Thunder Bay National Marine Sanctuary
922.190 Boundary.
922.191 Definitions.
922.192 Prohibited or otherwise regulated activities.
922.193 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
922.194 Permit procedures and criteria.
Appendix A to Subpart R of Part 922--Thunder Bay National Marine
Sanctuary Boundary Coordinates
Appendix B to Subpart R of Part 922--Minor Projects for Purposes of
Section 922.192(a)(2)(iii)
Authority: 16 U.S.C. 1431 et seq.
Subpart R--Thunder Bay National Marine Sanctuary
Sec. 922.190 Boundary.
(a) The Thunder Bay National Marine Sanctuary (Sanctuary) consists
of an area of approximately 808 square miles of surface waters of Lake
Huron and the submerged lands thereunder, over and around the
underwater cultural resources in Thunder Bay. The boundary forms an
approximately rectangular area by extending along the ordinary high
water mark of the Michigan shoreline from Presque Isle Lighthouse, at
45 21.4 N latitude, south to Sturgeon Point lighthouse, at 44 42.7 N
latitude, and lakeward from those points along latitude lines to 83 W
longitude. The coordinates of the boundary are set forth in Appendix A
to this subpart.
(b) [Reserved].
Sec. 922.191 Definiitons.
(a) The following terms are defined for purposes of subpart R:
Minor project means any project listed in Appendix B to this
subpart.
Programmatic Agreement means the agreement among NOAA, the Federal
Advisory Council on Historic Preservation, and the State of Michigan,
developed pursuant to the NMSA and section 106 of the National Historic
Preservation Act, setting forth the procedures for review and approval
of State Permits which authorize activities prohibited by the Sanctuary
regulations.
Sanctuary resource means any underwater cultural resource as
defined in this section.
State Archaeologist means the State Archaeologist, Michigan
Historical Center, Michigan Department of State.
State Permit means leases, permits, licenses, approvals, or other
authorizations issued by the State of Michigan for the conduct of
activities or projects within the Thunder Bay National Marine Sanctuary
that are prohibited by the regulations at section 922.192.
Traditional fishing means those commercial or recreational fishing
activities that were customarily conducted within the Sanctuary prior
to its designation as identified in the
[[Page 33777]]
Environmental Impact Statement and Management Plan for the Sanctuary.
Underwater cultural resource means any submerged resource
possessing historical, cultural, or archaeological significance,
including shipwrecks, sites, contextual information, structures,
districts, and objects significantly associated with or representative
of earlier people, cultures, maritime heritage, and human activities
and events. Historical resources include ``historical properties,'' as
defined in the National Historic Preservation Act, as amended, and its
implementing regulations, as amended.
(b) Other terms appearing in the proposed regulations are defined
at 15 CFR Part 922 Subpart A, and/or in the Marine Protection,
Research, and Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et
seq., and 16 U.S.C. 1431 et seq.
Sec. 922.192 Prohibited or otherwise regulated activities.
(a) Except as specified in paragraphs (b) through (c) of this
section, the following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted:
(1) Disturbing, moving, removing or injuring, possessing, or
attempting to disturb, move, remove or injure, or possess an underwater
cultural resource.
(2) Drilling into, dredging or otherwise altering the lakebottom
associated with underwater cultural resource, including contextual
information; or constructing, placing or abandoning any structure,
material or other matter on the lakebottom associated with underwater
cultural resources, except as an incidental result of:
(i) Anchoring vessels;
(ii) Traditional fishing operations; or
(iii) Minor projects that do not adversely affect underwater
cultural resources.
(3) Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the Act or any regulations issued under
the Act.
(b) The prohibitions in paragraphs (a) (1) and (2) of this section
do not apply to valid law enforcement activities, or any activity
necessary to respond to an emergency threatening life or the
environment.
(c) The prohibitions in paragraphs (a) (1) and (2) of this section
do not apply to any activity: certified by the Director pursuant to
Sec. 922.193 and Sec. 922.47; executed in accordance with the scope,
purpose, terms and conditions of a State or Federal permit issued
pursuant to Sec. 922.193 (a) or (b), and Sec. 922.49; National Marine
Sanctuary permit issued pursuant to Sec. 922.193(c) and Sec. 922.48; or
a Special Use permit issued pursuant to section 310 of the NMSA.
Sec. 922.193 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
(a) A person may conduct an activity prohibited by Sec. 922.192
(a)(1) through (2) if such activity is specifically authorized by a
valid State, or local lease, permit, license, approval, or other
authorization in existence on the effective date of Sanctuary
designation, or by any valid right of subsistence use or access in
existence on the effective date of Sanctuary designation, provided
that:
(1) For any State or local lease, permit, license, approval, or
other authorization, or any right of subsistence use, the State
Archaeologist certifies to NOAA, within 90 days of the effective date
of designation, that the activity authorized under the State or local
lease, permit, license, approval, or other authorization, or any right
of subsistence use, is being conducted consistent with the Programmatic
Agreement, in which case such activity shall be deemed to have met the
requirements of this section and Sec. 922.47; or
(2) In the case where either (i) the State Archaeologist does not
certify that the activity authorized under a State or local ease,
permit, license, approval, or other authorization, or right of
subsistence use is being conducted consistent with the Programmatic
Agreement; or (ii) the activity is conducted pursuant only to a Federal
permit, the holder of the authorization or right complies with
paragraphs (b) through (k) of this section.
(b) For an activity described in paragraph (a)(2) of this section,
the holder of the authorization or right may conduct the activity
prohibited by Sec. 922.192(a)(1) through (2) provided that: (1) the
holder of such authorization or right notifies the Director, in
writing, within 90 days of the effective date of Sanctuary designation,
of the existence of such authorization or right and requests
certification of such authorization or right; (2) the holder complies
with the other provisions of this Sec. 922.193; and (3) the holder
complies with any terms and conditions on the exercise of such
authorization or right imposed as a condition of certification, by the
Director, to achieve the purposes for which the Sanctuary was
designated.
(c) The holder of an authorization or right described in paragraph
(a)(2) above authorizing an activity prohibited by Sec. 922.192 may
conduct the activity without being in violation of applicable
provisions of Sec. 922.192, pending final agency action on his or her
certification request, provided the holder is in compliance with this
Sec. 922.193.
(d) Any holder of an authorization or right described in paragraph
(a)(2) above may request the Director to issue a finding as to whether
the activity for which the authorization has been issued, or the right
given, is prohibited by Sec. 922.192, thus requiring certification
under this section.
(e) Requests for findings or certifications should be addressed to
the Director, Office of Ocean and Coastal Resource Management; ATTN:
Sanctuary Manager, Thunder Bay National Marine Sanctuary, [Note: This
paragraph will provide the Sanctuary Office address]. A copy of the
lease, permit, license, approval, or other authorization must accompany
the request.
(f) The Director may request additional information from the
certification requester as he or she deems reasonably necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purpose for which the Sanctuary was designated.
The information requested must be received by the Director within 45
days of the postmark date of the request. The Director may seek the
views of any persons on the certification request.
(g) The Director may amend any certification made under this
Sec. 922.193 whenever additional information becomes available
justifying such an amendment.
(h) Upon completion of review of the authorization or right and
information received with respect thereto, the Director shall
communicate, in writing, any decision on a certification request or any
action taken with respect to any certification made under this
Sec. 922.193, in writing, to both the holder of the certified lease,
permit, license, approval, other authorization, or right, and the
issuing agency, and shall set forth the reason(s) for the decision or
action taken.
(i) Any time limit prescribed in or established under this
Sec. 922.193 may be extended by the Director for good cause.
(j) The holder may appeal any action conditioning, amending,
suspending, or revoking any certification in accordance with the
procedures set forth in Sec. 922.50.
(k) Any amendment, renewal, or extension made after the effective
date
[[Page 33778]]
of Sanctuary designation, to a lease, permit, license, approval, other
authorization or right is subject to the provisions of Sec. 922.194 and
Sec. 922.49.
Sec. 922.194 Permit procedures and criteria.
(a) A person may conduct an activity prohibited by Sec. 933.192 (a)
(1) through (2) if conducted in accordance with the scope, purpose,
manner, terms and conditions of a State Permit provided that:
(1) The State Archaeologist certifies to NOAA that the activity
authorized under the State Permit will be conducted consistent with
the Programmatic Agreement, in which case such State Permit shall be
deemed to have met the requirements of Sec. 922.49; or
(2) In the case where the State Archaeologist does not certify
that the activity to be authorized under a State Permit will be
conducted consistent with the Programmatic Agreement, the person
complies with the requirements of Sec. 922.49 of this part.
(b) If no State Permit is required to conduct an activity
prohibited by Sec. 922.192(a) (1) through (2) of this subpart, a person
may conduct such activity if it is conducted in accordance with the
scope, purpose, manner, terms and conditions of a Federal permit,
provided that the person complies with the provisions of Sec. 922.49 of
this part.
(c) In instances where the conduct of an activity is prohibited by
Sec. 922.192(a) (1) through (2) of this subpart is not addressed under
a State or other Federal lease, license, permit or other authorization,
a person must obtain a Sanctuary permit from NOAA pursuant to
Sec. 922.48 of this part and the Programmatic Agreement in order to
conduct the activity.
Appendix A to Subpart R of Part 922--Thunder Bay National Marine
Sanctuary Boundary Coordinates
Note: Appendix A to subpart R will set forth the final Sanctuary
boundary coordinates after consideration of comments received on the
DEIS/MP.
Appendix B to Subpart R of Part 922--Minor Projects for Purposes of
Section 922.192(a)(2)(iii)
Pursuant to R 322.1013 of part 325, Great Lakes Submerged Lands
of Public Act 451, the Michigan Department of Environmental Quality
(Department) issues permits for projects that are of a minor nature
which are not controversial, which have minimal adverse
environmental impacts, which will be constructed of clean, non-
polluting materials, which do not impair the use of the adjacent
bottomlands by the public, and which do not adversely affect
riparian interests of adjacent owners. The following projects are
minor projects:
(a) Noncommercial single piers, docks, and boat hoists which
meet the following design criteria:
(i) Are of a length or size not greater than the length or size
of similar structures in the vicinity and on the watercourse
involved; and
(ii) Provide for the free littoral flow of water and drift
material.
(b) Spring piles and pile clusters when their design and purpose
is usual for such projects in the vicinity and on the watercourse
involved.
(c) Seawalls, bulkheads, and other permanent revetment
structures which meet all of the following purpose and design
criteria:
(i) The proposed structure fulfills an identifiable need for
erosion protection, bank stabilization, protection of uplands, or
improvements on uplands;
(ii) The structure will be constructed of suitable materials
free from pollutants, waste metal products, debris, or organic
materials;
(iii) The structure is not more than 300 feet in length and is
located in an area on the body of water where other similar
structures already exist;
(iv) The placement of backfill or other fill associated with the
construction does not exceed an average of 3 cubic yards per running
foot along the shoreline and a maximum of 300 cubic yards; and
(v) The structure or any associated fill will not be placed in a
wetland area or placed in any manner that impairs surface water flow
into or out of any wetland area.
(d) Groins 50 feet or less in length, as measures from the toe
to bluff, which meet all of the following criteria:
(i) The groin is low profile, with the lakeward end not more
than 1 foot above the existing water level; and
(ii) The groin is placed at least \1/2\ of the groin length from
the adjacent property line or closer with written approval of the
adjacent riparian.
(e) Filling for restoration of existing permitted fill, fills
placed incidental to construction of other structures, and fills
that do not exceed 300 cubic yards as a single and complete project,
where the fill is of suitable material free from pollutants, waster
metal products, debris, or organic materials.
(f) Dredging for the maintenance of previously dredged areas or
dredging of not more than 300 cubic yards as a single and complete
project when both of the following criteria are met:
(i) No reasonable expectation exists that the materials to be
dredged are polluted; and
(ii) All dredging materials will be removed to an upland site
exclusive of wetland areas.
(g) Structural repair of man-made structures, except as exempted
by R 322.1008(3), when their design and purpose meet both of the
following criteria:
(i) The repair does not alter the original use of a recently
serviceable structure; and
(ii) The repair will not adversely affect public trust values or
interests, including navigation and water quality.
(h) Fish and wildlife habitat structures which meet both of the
following criteria:
(i) Are placed so the structures do not impede or create a
navigational hazard; and
(ii) Are anchored to the bottomlands.
(i) Scientific structures such as staff gauges, water monitoring
devices, water quality testing devices, survey devices, and core
sampling devices, if the structures do not impede or create a
navigational hazard.
(j) Navigational aids which meet both of the following criteria:
(i) Are approved by the United States Coast Guard; and
(ii) Are approved under Act No. 303 of the Public Acts of 1967,
as amended, being Sec. 281.1001 et seq. of the Michigan Compiled
Laws, and known as the Marine Safety Act.
(k) Extension of a project where work is being performed under a
current permit and which will result in no damage to natural
resources.
(l) A sand trap wall which meets all of the following criteria:
(i) The wall is 300 feet or less in length along the shoreline;
(ii) The wall does not extend more than 30 feet lakeward of the
toe of bluff;
(iii) The wall if low profile, that is, it is not more than 1
foot above the existing water level; and
(iv) The wall is constructed of wood or steel or other non-
polluting material.
(m) Physical removal of man-made structures or natural
obstructions which meet all of the following criteria:
(i) The debris an spoils shall be removed to an upland site, not
in a wetland, in a manner which will not allow erosion into public
waters;
(ii) The shoreline and bottom contours shall be restored to an
acceptable condition;
(iii) Upon completion of structure removal, the site does not
constitute a safety or navigational hazard; and
(iv) Department staff shall consider fisheries and wildlife
resource values when evaluating applications for natural obstruction
removal.
[FR Doc. 97-16053 Filed 6-20-97; 8:45 am]
BILLING CODE 3510-08-M
