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APPENDIX A: Designation Document and Regulations

DESIGNATION DOCUMENTFOR THE STELLWAGEN BANK NATIONAL MARINE SANCTUARY

On November 4, 1992, the Oceans Act of 1992 became law (Pub. L. 102-587). Section 2202 of Title II of that Act, known as the National Marine Sanctuaries Program Amendments Act of 1992 ("NMSPAA"), designated an area of waters and submerged lands, including the living and non-living resources within those waters, as described in Article II, as the Stellwagen Bank National Marine Sanctuary.

Article I. Effect of Designation

Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (the "Act" or "MPRSA"), 16 U.S.C. 1431 et seq. authorizes the issuance of such final regulations as are necessary and reasonable to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, research, educational and esthetic resources and qualities of the Stellwagen Bank National Marine Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the type that either are to be regulated, or may have to be regulated subsequently in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless Section 1 of Article IV is amended to include the type of activity by the procedures outlined in section 304(a) of the MPRSA.

Article II: Description of the Area

The Stellwagen Bank National Marine Sanctuary (the "Sanctuary") boundary encompasses a total of approximately 638 square nautical miles (approximately 2181 square kilometers) of ocean waters, and the submerged lands thereunder, over and surrounding the submerged Stellwagen Bank and additional submerged features, offshore the Commonwealth of Massachusetts. The boundary encompasses the entirety of Stellwagen Bank; Tillies Bank to the northeast of Stellwagen Bank; and southern portions of Jeffreys Ledge, to the north of Stellwagen Bank. Portions of the Sanctuary are adjacent to three coastal ocean areas designated by the Commonwealth of Massachusetts as Ocean Sanctuaries. The northwestern border coincides with the North Shore Ocean Sanctuary. The southern border coincides with the seaward limit of Commonwealth jurisdictional waters adjacent to the Cape Cod Bay Ocean Sanctuary; and is also tangential to the Cape Cod Ocean Sanctuary. The western border of the Stellwagen Bank Sanctuary occurs approximately 25 miles east of Boston, Massachusetts. Appendix I to this Designation Document sets the precise Sanctuary boundary.

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

Stellwagen Bank is a glacially-deposited, primarily sandy feature measuring nearly twenty miles in length, occurring in a roughly southeast-to-northwest direction between Cape Cod and Cape Ann, Massachusetts. It is located at the extreme southwestern corner of the Gulf of Maine, and forms a partial "gateway" to Cape Cod Bay, situated shoreward and southwest of the Bank.

The presence of the Bank feature contributes to a particular combination of physical and oceanographic characteristics which results in two distinct peak productivity periods annually, when overturn and mixing of coastal waters with nutrient-rich waters from deeper strata produce a complex system of overlapping mid-water and benthic habitats. From the time of Colonial settlement, this area has supported an abundant and varied array of fisheries, which continue to provide livelihoods for an active commercial fleet. Important fisheries include bluefin tuna, herring, cod, haddock, winter and summer flounder, silver hake, pollack, ocean pout, lobster, shrimp, surf clam and sea scallop. The commercial value of fish caught (exclusive of bluefin tuna) within Sanctuary waters exceeded $15 million in 1990.

The biological productivity of the Bank also attracts a seasonal variety of large and small cetaceans, several of which are classified as endangered species. The Stellwagen Bank environment provides feeding and nursery areas for humpback, fin, and northern right whales, the latter being the most critically-endangered of all large cetacean species. The photo-identification at Stellwagen Bank of 100 or more individual right whales from a total North Atlantic population estimated in 1990 at approximately 300 to 350 indicates the importance of the Bank to this species. The predictable seasonal presence of these and other cetacean species has generated a growing commercial whalewatch industry, involving more than 40 vessels (over 1.5 million passengers), and producing revenues in excess of $17 million in 1988.

A vessel traffic separation scheme (VTSS) crosses directly over Stellwagen Bank, and accommodates approximately 2,700 commercial vessels annually in and out of Boston, Massachusetts. Existing or potential additional human activities involving the Stellwagen Bank environment include dredged materials disposal; sand and gravel extraction; offshore mariculture development; and offshore fixed artificial platform construction.

The uniqueness of the Stellwagen Bank environment as well as its accessibility draws the continuing interest of area scientific institutions, including the Center for Coastal Studies, Cetacean Research Unit, University of Massachusetts, Woods Hole Oceanographic Institution, Marine Biological Laboratory, Manomet Bird Observatory, New England Aquarium, University of Rhode Island and the National Marine Fisheries Service (NOAA). In light of the increasing levels of human activities, several issues such as: interactions between marine mammals and commercial/recreational vessels; immediate, long-term and cumulative impacts on marine mammals from whale-watching vessel activity; and the immediate, long-term and cumulative effects of discharge/disposal operations on the Bank's resources and qualities require coordinated and comprehensive monitoring and research.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation

The following activities are subject to regulation under the Act, including prohibition, to the extent necessary and reasonable to ensure the protection and management of the conservation, recreational, ecological, historical, research, educational or esthetic resources and qualities of the area:

a. Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter;

b. Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter;

c. Exploring for, developing, or producing oil, gas or minerals (e.g. clay, stone, sand, gravel, metalliferous ores and nonmetalliferous ores or any other solid material or other matter of commercial value ["industrial materials"]) in the Sanctuary;

d. Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the seabed of the Sanctuary;

e. Development or conduct in the Sanctuary of mariculture activities;

f. Taking, removing, moving, catching, collecting, harvesting, feeding, injuring, destroying or causing the loss of, or attempting to take, remove, move, catch, collect, harvest, feed, injure, destroy or cause the loss of, a marine mammal, marine reptile, seabird, historical resource or other Sanctuary resource;

g. Transferring of petroleum-based products or materials from vessel-to-vessel or "lightering", in the Sanctuary;

h. Operation of a vessel (i.e. water craft of any description capable of being used as a means of transportation) in the Sanctuary;

i. Possessing within the Sanctuary a Sanctuary resource or any other resource, regardless of where taken, removed, moved, caught, collected or harvested, that, if it had been found within the Sanctuary, would be a Sanctuary resource;

j. Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.

Section 2. 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 of this Article , is subject to immediate temporary regulation, including prohibition.

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

If any valid regulation issued by any Federal, State or local authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director, Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, or his or her designee to be more protective of Sanctuary resources and qualities shall govern.

Pursuant to section 304(c)(1) of the Act, 16 U.S.C. § 1434(c)(1), no valid lease, permit, license, approval or other authorization issued by any Federal, State or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce, or his or her designee, as a result of this designation, or as a result of any Sanctuary regulation, if such authorization or right was in existence on the effective date of this designation. However, the Secretary of Commerce, or designee, may regulate the exercise (including, but not limited to, the imposition of terms and conditions) of such authorization or right consistent with the purposes for which the Sanctuary is designated.

In no event may the Secretary or designee issue a permit authorizing, or otherwise approving: (1) the exploration for, development of, or production of industrial materials within the Sanctuary; or (2) the disposal of dredged material within the Sanctuary (except by a certification, pursuant to Section 940.10, of valid authorizations in existence on the effective date of Sanctuary designation). Any purported authorizations issued by other authorities after the effective date of Sanctuary designation for any of these activities within the Sanctuary shall be invalid.

Article VI. Alteration of this Designation

The terms of designation, as defined under Section 304(a) of the Act, may be modified only by the procedures outlined in section 304(a) of the MPRSA, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees, and Governor of the Commonwealth of Massachusetts, and approval by the Secretary of Commerce or designee.

Accordingly, for the reasons set forth above, 15 CFR Chapter IX is amended as set forth below.

1. A subchapter B heading is added to read as follows:

Subchapter B - Ocean and Coastal Resource Management

2. A new part 940 is added to subchapter B to read a follows:

PART 940 - STELLWAGEN BANK NATIONAL MARINE SANCTUARY

Section

940.1 Purpose.

940.2 Boundary.

940.3 Definitions.

940.4 Allowed activities.

940.5 Prohibited activities.

940.6 Emergency regulations.

940.7 Penalties for violations of regulations.

940.8 Response costs and damages.

940.9 National Marine Sanctuary permits - application procedures and issuance criteria.

940.10 Certification of pre-existing leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.

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

940.12 Appeals of administrative action.

 

Appendix I to Part 940 - Stellwagen Bank National Marine Sanctuary Boundary Coordinates

Authority: Sections 302, 303, 304, 305, 307, 310 and 312 of Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq.

§ 940.1 Purpose.

The purpose of the regulations in this Part is to implement the designation of the Stellwagen Bank National Marine Sanctuary by regulating activities affecting the Sanctuary consistent with the terms of that designation in order to protect and manage the conservation, ecological, recreational, research, educational, historical, cultural, and esthetic resources and qualities of the area.

§ 940.2 Boundary.

The Stellwagen Bank National Marine Sanctuary consists of an area of approximately 638 square nautical miles of Federal marine waters and the submerged lands thereunder, over and around Stellwagen Bank and other submerged features off the coast of Massachusetts. The boundary encompasses the entirety of Stellwagen Bank; Tillies Bank, to the northeast of Stellwagen Bank; and portions of Jeffreys Ledge, to the north of Stellwagen Bank. The Sanctuary boundary is identified by the following coordinates, indicating the most northeast, southeast, southwest, west-northwest, and north-northwest points: 42_45'59.83"N x 70_13'01.77"W (NE); 42_05'35.51"N x 70_02'08.14"W (SE); 42_07'44.89"N x 70_28'15.44"W; (SW); 42_32'53.52"N x 70_35'52.38"W (WNW); and 42_39'04.08"N x 70_30'11.29"W (NNW). The western border is formed by a straight line connecting the most southwest and the west-northwest points of the Sanctuary. At the most west-northwest point, the Sanctuary border follows a line contiguous with the three-mile jurisdictional boundary of Massachusetts to the most north-northwest point. From this point, the northern border is formed by a straight line connecting the most north-northwest point and the most northeast point. The eastern border is formed by a straight line connecting the most northeast and the most southeast points of the Sanctuary. The southern border follows a straight line between the most southwest point and a point located at 42_06'54.57"N x 70_16'42.71"W. From that point, the southern border then continues in a west-to-east direction along a line contiguous with the three-mile jurisdictional boundary of Massachusetts until reaching the most southeast point of the Sanctuary. The boundary coordinates of the Sanctuary, provided in latitude/longitude and LORAN, appear in Appendix I following section 940.12.

§ 940.3 Definitions.

(a)(1) Act means Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq.

(2) Administrator or Under Secretary means the Administrator of the National Oceanic and Atmospheric Administration/Under Secretary of Commerce for Oceans and Atmosphere.

(3) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration.

(4) Director means the Director of the Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration.

(5) Effective date of Sanctuary designation means the enactment date of Public Law 102-587, or November 4, 1992.

(6) Fish wastes means waste materials resulting from commercial fish processing operations.

(7) 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 resources also include "historical properties", as defined in the National Historic Preservation Act, as amended, and implementing regulations, as amended.

(8) Industrial material means clay, stone, sand, gravel, metalliferous ore, nonmetalliferous ore or any other solid material or other matter of commercial value.

(9) Injure means to change adversely, either in the long or short term, a chemical, biological, or physical attribute of, or the viability of. To "injure" therefore includes, but is not limited to, to cause the loss of and to destroy.

(10) Lightering means the at-sea transfer of petroleum-based products or materials from vessel to vessel.

(11) Person means any private individual, partnership, corporation, or other entity; or any officer, employee, agent, department, agency, or instrumentality of the Federal Government or of any State, regional, or local unit of government, or any foreign government.

(12) Sanctuary means the Stellwagen Bank National Marine Sanctuary.

(13) Sanctuary quality means a particular and essential characteristic of the Sanctuary, including but not limited to, water quality, sediment quality and air quality.

(14) Sanctuary resource means any living or non-living resource of the Sanctuary that contributes to its conservation, recreational, ecological, historical, research, educational or esthetic value, including, but not limited to, the substratum of the Stellwagen Bank and other submerged features, and the surrounding seabed, phytoplankton, zooplankton, invertebrates, fish, marine reptiles, marine mammals, seabirds, and historical and cultural resources.

(15) Take or taking means the following:

(i) For any marine reptile, marine mammal or seabird listed as either endangered or threatened pursuant to the Endangered Species Act, the term means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or to attempt to engage in any such conduct;

(ii) For any other marine reptile, marine mammal or seabird, the term means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or to attempt to engage in any such conduct.

For the purpose of both subsections (i) and (ii), the term includes, but is not limited to, any of the following activities: collecting any dead or injured marine reptile, marine mammal or seabird, or any part thereof; restraining or detaining any marine reptile, marine mammal or seabird, or any part thereof, no matter how temporarily; tagging any marine reptile, marine mammal or seabird; operating a vessel or aircraft or doing any other act that results in the disturbing or molesting of any marine reptile, marine mammal or seabird.

(16) Traditional fishing means those commercial or recreational fishing methods which have been conducted in the past within the Sanctuary.

(17) Vessel means a watercraft of any description capable of being used as a means of transportation in/on the waters of the Sanctuary.

(b) Other terms appearing in the regulations in this Part are defined at 15 CFR 922.2, 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.

 

§ 940.4 Allowed activities.

All activities except those prohibited by § 940.5 may be undertaken subject to any emergency regulations promulgated pursuant to § 940.6, 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 (see § 940.8).

If any valid regulation issued by any Federal, State, or local authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director or designee as more protective of Sanctuary resources and qualities shall govern.

Fishing activities are allowed and there are no fishing regulations under § 940.5. As required by § 304(a)(5) of the Act, the appropriate Regional Fishery Management Council shall be provided with the opportunity to prepare draft regulations applicable to fishing within the Sanctuary, and shall have the opportunity to incorporate such regulations in any existing Fishery Management Plan and implementing regulations. The Secretary shall prepare the fishing regulations in accordance with 15 CFR § 922.31, which implements the requirements for drafting fishing regulations.

§ 940.5 Prohibited activities.

(a) Except as specified in paragraphs (c) through (g) of this § 940.5, the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted:

(1) Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter except:

(i) fish, fish wastes, chumming materials or bait used in or resulting from traditional fishing operations in the Sanctuary;

(ii) biodegradable effluent incidental to vessel use and generated by marine sanitation devices approved in accordance with Section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 et seq.;

(iii) water generated by routine vessel operations (e.g., cooling water, deck wash down and graywater as defined by Section 312 of the FWPCA) excluding oily wastes from bilge pumping; or

(iv) engine exhaust.

.(2) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except those listed in paragraph (a)(1)(i) - (iv) above, that subsequently enters the Sanctuary and injures a Sanctuary resource or quality;

(3) Exploring for, developing, or producing industrial materials in the Sanctuary;

(4) Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure or material or other matter on the seabed of the Sanctuary, except as an incidental result of:

i) anchoring vessels;

(ii) traditional fishing operations; or

(iii) installation of navigation aids.

(5) Moving, removing, or injuring, or attempting to move, remove, or injure, a Sanctuary historical resource. This prohibition does not apply to moving, removing, or injury resulting incidentally from traditional fishing operations.

(6) Taking any marine reptile, marine mammal, or seabird in or above the Sanctuary, except as permitted by regulations, as amended, promulgated under the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq.

(7) Lightering in the Sanctuary.

(8) Possessing within the Sanctuary (regardless of where taken, moved or removed from), except as necessary for valid law enforcement purposes, any historical resource, or any marine mammal, marine reptile or seabird taken in violation of regulations, as amended, promulgated under the MMPA, ESA, or MBTA.

(9) Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.

(b) The regulations in this Part shall be applied to foreign persons and foreign vessels in accordance with generally recognized principles of international law, and in accordance with treaties, conventions and other international agreements to which the United States is a party.

(c) The prohibitions in paragraphs (a)(1)-(2) and (4)-(9) of this § 940.5 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment.

(d)(1) All Department of Defense military activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. Department of Defense military activities may be exempted from the prohibitions in paragraphs (a)(1)-(2) and (4)-(8) of this § 940.5 by the Director or designee after consultation between the Director or designee and the Department of Defense. If it is determined that an activity may be carried out, such activity shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. Civil engineering and other civil works projects conducted by the U.S. Army Corps of Engineers are excluded from the scope of this paragraph (d)(1).

(2) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an untoward incident, including but not limited to spills and groundings caused by the Department of Defense, the Department of Defense shall promptly coordinate with the Director or designee for the purpose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the Sanctuary resource or quality.

(e) The prohibitions in paragraphs (a)(1)-(2) and (4)-(8) do not apply to any activity executed in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to § 940.9 or a Special Use permit issued pursuant to Section 310 of the Act.

(f) The prohibitions in paragraph (a)(1)-(2) and (4)-(8) 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 § 940.10 and with any terms and conditions on the exercise of such authorization or right imposed by the Director or designee as a condition of certification as he or she deems necessary to achieve the purposes for which the Sanctuary was designated.

(g) The prohibitions in paragraphs (a)(1)-(2) and (4)-(8) of this § 940.5 do not apply to any activity authorized by any lease, permit, license, approval or other authorization issued after the effective date of Sanctuary designation and issued by any Federal, State or local authority of competent jurisdiction, provided that the applicant complies with § 940.11, the Director or designee notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director or designee deems necessary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date.

(h) Notwithstanding paragraphs (e) and (g) of this § 940.5, in no event may the Director or designee issue a permit under § 940.9 of these regulations, or under Section 310 of the Act, authorizing, or otherwise approving, the exploration for, development or production of industrial materials within the Sanctuary, or the disposal of dredged material within the Sanctuary (except by a certification, pursuant to § 940.10, of valid authorizations in existence on the effective date of Sanctuary designation) and any purported authorizations issued by other authorities after the effective date of Sanctuary designation for any of these activities within the Sanctuary shall be invalid.

§ 940.6 Emergency Regulations.

Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or to minimize the imminent risk of such destruction, loss or injury, any and all activities, are subject to immediate temporary regulation, including prohibition.

§ 940.7 Penalties for violations of regulations.

(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 $100,000. Each day of a continuing violation constitutes a separate violation.

(b) Regulations setting forth the procedures governing the 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.

§ 940.8 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.

§ 940.9 National Marine Sanctuary permits - application procedures and issuance criteria.

(a) A person may conduct an activity prohibited by paragraphs (a)(1)-(2) and (4)-(8) of § 940.5 if conducted in accordance with the scope, purpose, manner, terms and conditions of a permit issued under this § 940.9.

(b) Applications for such permits should be addressed to the Director of the Office of Ocean and Coastal Resource Management; ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910. An application must include a detailed description of the proposed activity including a timetable for completion of the activity and the equipment, personnel and methodology to be employed. The qualifications and experience of all personnel must be set forth in the application. The application must set forth the potential effects of the activity, if any, on Sanctuary resources and Sanctuary qualities. Copies of all other required licenses, permits, approvals or other authorizations must be attached.

(c) Upon receipt of an application, the Director or designee 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.

(d) The Director or designee, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by paragraphs (a)(1)-(2) and (4)-(8) of § 940.5, if the Director or designee finds that the activity will have only negligible short-term adverse effects on Sanctuary resources and qualities and will: further research related to Sanctuary resources and qualities; further the educational, natural or historical resource value of the Sanctuary; further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; assist in managing the Sanctuary. In deciding whether to issue a permit, the Director or designee may also consider such factors as: the professional qualifications and financial ability of the applicant as related to the proposed activity; the duration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; and the end value of the activity. In addition, the Director or designee may consider such other factors as he or she deems appropriate.

(e) A permit issued pursuant to this § 940.9 is nontransferable.

(f) The Director or designee may amend, suspend or revoke a permit issued pursuant to this § 940.9 for good cause. The Director or designee may deny a permit application pursuant to this § 940.9, in whole or in part, if it is determined that the permittee or applicant has acted in violation of the terms or conditions of a permit or of these regulations 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.

(g) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity.

(h) The Director or designee may, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public.

(i) The Director or designee may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress or results of any activity authorized by the permit.

(j) The applicant for or holder of a National Marine Sanctuary permit may appeal the denial, conditioning, amendment, suspension or revocation of the permit in accordance with the procedures set forth in § 940.12.

§ 940.10 Certification of pre-existing leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.

(a) The prohibitions in paragraphs (a)(1)-(2) and (4)-(8) of § 940.5 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: 1) the holder of such authorization or right notifies the Director or designee, in writing, within 90 days of the effective date of Sanctuary regulations, 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 § 940.10; 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 or designee, to achieve the purposes for which the Sanctuary was designated.

(b) The owner or holder of 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 of any valid right of subsistence use or access in existence on the effective date of Sanctuary designation, authorizing an activity prohibited by paragraphs (a)(1)-(2) and (4)-(8) of § 940.5 may conduct the activity without being in violation of § 940.5, pending final agency action on his or her certification request, provided the holder is in compliance with this § 940.10.

(c) Any holder of 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 any holder of a valid right of subsistence use or access in existence on the effective date of Sanctuary designation may request the Director or designee to issue a finding as to whether the activity for which the authorization has been issued, or the right given, is prohibited under paragraphs (a)(1)-(2) and (4)-(8) of § 940.5.

(d) Requests for findings or certifications should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910. A copy of the lease, permit, license, approval or other authorization must accompany the request.

(e) The Director or designee may request additional information from the certification requester as he or she deems necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The information requested must be received by the Director or designee within 45 days of the postmark date of the request. The Director or designee may seek the views of any persons on the certification request.

(f) The Director or designee may amend any certification made under this § 940.10 whenever additional information becomes available justifying such an amendment.

(g) The Director or designee shall communicate any decision on a certification request or any action taken with respect to any certification made under this § 940.10, 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.

(h) Any time limit prescribed in or established under this § 940.10 may be extended by the Director or designee for good cause.

(i) The holder may appeal any action conditioning, amending, suspending or revoking any certification in accordance with the procedures set forth in § 940.12.

(j) Any amendment, renewal or extension not in existence on the effective date of Sanctuary designation of a lease, permit, license, approval, other authorization or right is subject to the provisions of § 940.11.

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

(a) The prohibitions set forth in paragraphs (a)(1)-(2) and (4)-(8) of § 940.5 do not apply to any activity authorized by any valid lease, permit, license, approval or other authorization issued after the effective date of Sanctuary designation by any Federal, State or local authority of competent jurisdiction, provided that: 1) the applicant notifies the Director or designee, 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 regulations, whichever is later; 2) the applicant complies with the other provisions of this § 940.11; 3) the Director or designee 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 or designee deems necessary to protect Sanctuary resources and qualities.

(b) Any potential applicant for a lease, permit, license, approval or other authorization from any Federal, State or local authority (or for an amendment, renewal or extension of such authorization) may request the Director or designee to issue a finding as to whether the activity for which an application is intended to be made is prohibited by paragraphs (a)(1)-(2) and (4)-(8) of § 940.5.

(c) Notification of filings of applications and requests for findings should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910. A copy of the application must accompany the notification.

(d) The Director or designee 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 or designee within 45 days of the postmark date of the request. The Director or designee may seek the views of any persons on the application.

(e) The Director or designee 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 or designee 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 or designee 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 § 940.11 may be extended by the Director or designee for good cause.

(h) The applicant may appeal any objection by, or terms or conditions imposed by, the Director or designee to the Assistant Administrator of designee in accordance with the provisions set forth in § 940.12.

§ 940.12 Appeals of administrative action.

(a) 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 § 940.9 National Marine Sanctuary permit, an applicant for, or a holder of, a Section 310 of the Act Special Use permit, a § 940.10 certification requester or a § 940.11 applicant (hereinafter appellant) may appeal to the Assistant Administrator or designee: 1) the grant, denial, conditioning, amendment, suspension or revocation by the Director or designee of a National Marine Sanctuary or Special Use permit; 2) the conditioning, amendment, suspension or revocation of a certification under § 940.10; or 3) the objection to issuance or the imposition of terms and conditions under § 940.11.

(b) An appeal under paragraph (a) of this § 940.12 must be in writing, state the action(s) by the Director or designee appealed and the reason(s) for the appeal, and be received within 30 days of receipt of notice of the action by the Director or designee. Appeals should be addressed to the Assistant Administrator, Office of Ocean and Coastal Resource Management, ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910.

(c) While the appeal is pending, appellants requesting certification pursuant to § 940.10 who are in compliance with such section may continue to conduct their activities without being in violation of the prohibitions in paragraphs (a)(1)-(2) and (4)-(8) of § 940.5. All other appellants may not conduct their activities without being subject to the prohibitions in paragraphs (a)(1)-(2) and (4)-(9) of § 940.5.

(d) The Assistant Administrator or designee may request the appellant to submit such information as the Assistant Administrator or designee deems necessary in order for him or her to decide the appeal. The information requested must be received by the Assistant Administrator or designee within 45 days of the postmark date of the request. The Assistant Administrator may seek the views of any other persons. The Assistant Administrator or designee may hold an informal hearing on the appeal. If the Assistant Administrator or designee determines that an informal hearing should be held, the Assistant Administrator or designee may designate an officer before whom the hearing shall be held. 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 or designee 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 or designee.

(e) The Assistant Administrator or designee 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 or designee 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 or designee shall notify the appellant of the final decision and the reason(s) therefor in writing. The Assistant Administrator or designee's decision shall constitute final agency action for the purposes of the Administrative Procedure Act.

(f) Any time limit prescribed in or established under this § 940.12 other than the 30 day limit for filing an appeal may be extended by the Assistant Administrator, designee, or hearing officer for good cause.

Appendix I to Part 940 - Stellwagen Bank National Marine Sanctuary Boundary Coordinates. (Appendix Based on North American Datum of 1927).

638 Square Nautical Miles

POINT / LATITUDE / LONGITUDE / LORAN9960W / LORAN 9960X

E1 42 45 59.83 70 13 01.77 13,607.19 25,728.57

E2 42 05 35.51 70 02 08.14 13,753.39 25,401.78

E3 42 06 18.25 70 03 17.55 13,756.72 25,412.46

E4 42 06 29.53 70 04 03.36 13,760.30 25,417.53

E5 42 07 02.70 70 05 13.61 13,764.52 25,427.27

E6 42 07 13.80 70 06 23.75 13,770.54 25,434.45

E7 42 07 35.95 70 07 27.89 13,775.08 25,442.51

E8 42 07.42.33 70 08 26.07 13,780.35 25,448.27

E9 42 07 59.94 70 09 19.78 13,784.24 25,455.02

E10 42 08 04.95 70 10 24.40 13,790.27 25,461.28

E11 42 07 55.19 70 11 47.67 13,799.38 25,467.56

E12 42 07 59.84 70 13 03.35 13,806.58 25,474.95

E13 42 07 46.55 70 14 21.91 13,815.52 25,480.62

E14 42 07 27.29 70 15 22.95 13,823.21 25,484.05

E15 42 06 54.57 70 16 42.71 13,833.88 25,487.79

E16 42 07 44.89 70 28 15.44 13,900.14 25,563.22

E17 42 32 53.52 70 35 52.38 13,821.60 25,773.51

E18 42 33 30.24 70 35 14.96 13,814.43 25,773.54

E19 42 33 48.14 70 35 03.81 13,811.68 25,774.28

E20 42 34 30.45 70 34 22.98 13,803.64 25,774.59

E21 42 34 50.37 70 33 21.93 13,795.43 25,770.55

E22 42 35 16.08 70 32 32.29 13,787.92 25,768.31

E23 42 35 41.80 70 31 44.20 13,780.57 25,766.25

E24 42 36 23.08 70 30 58.98 13,772.14 25,766.14

E25 42 37 15.51 70 30 23.01 13,763.69 25,768.12

E26 42 37 58.88 70 30 06.60 13,758.09 25,771.07

E27 42 38 32.46 70 30 06.54 13,755.07 25,774.58

E28 42 39 04.08 70 30 11.29 13,752.75 25,778.35

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