CFR Subpart D

CFR Subpart D
in effect

15 C.F.R. § 922.30 National Marine Sanctuary general permits.

(a) Authority to issue general permits. The Director may allow a person to conduct an activity that would otherwise be prohibited by this part through issuance of a general permit, provided the applicant complies with: (1) The provisions of this subpart; and (2) The permit procedures and criteria for all national marine sanctuaries in which the proposed activity is to take place in accordance with relevant site specific regulations appearing in subparts F through T of this part. (b) Sanctuary general permit categories. The Director may issue a sanctuary general permit under this subpart and the relevant site-specific subpart, subject to such terms and conditions as he or she deems appropriate, if the Director finds that the proposed activity falls within one of the following categories or a category in the relevant site-specific subpart: (1) Research—activities that constitute scientific research or scientific monitoring of a national marine sanctuary resource or quality; (2) Education—activities that enhance public awareness, understanding, or appreciation of a national marine sanctuary or national marine sanctuary resource or quality; (3) Management—activities that assist in managing a national marine sanctuary; (4) Jade removal—the removal of loose jade from the Jade Cove area, without the use of pneumatic, mechanical, electrical, hydraulic or explosive tools, within Monterey Bay National Marine Sanctuary that cannot be collected under 15 CFR 922.132(a)(1)(ii) and (iii). Preference will be given for applications proposing to collect loose pieces of jade for research or educational purposes; (5) Tribal self-determination—activities conducted by a Washington Coast treaty tribe and/or its designee as certified by the governing body of the tribe to promote or enhance tribal self-determination, tribal government functions, the exercise of treaty rights, the economic development of the tribe, subsistence, ceremonial and spiritual activities, or the education or training of tribal members; and (6) Further FKNMS purposes—activities that further the purposes of Florida Keys National Marine Sanctuary, including those that facilitate multiple use of the sanctuary, to the extent compatible with the primary objective of resource protection.

15 C.F.R. § 922.31 National Marine Sanctuary special use permits.

(a) In general. A person may conduct a specified special use permit activity, if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, manner, terms and conditions of, a special use permit issued under this section. (b) Authority to issue. The Director, at his or her discretion, may issue a special use permit in accordance with this subpart and section 310 of the Act (16 U.S.C. 1441). (c) Public notice. The Director will not issue a special use permit for any category of activity unless the Director has published a notice in the Federal Register that such category of activity is subject to the requirements of section 310 of the Act. (d) Fees. The Director may assess and collect fees for the conduct of any activity authorized by a special use permit issued pursuant to this section. The fee will be assessed in accordance with § 922.35.

15 C.F.R. § 922.32 Application requirements and procedures.

(a) Submitting applications. Permit applications must be submitted by mail to the address listed in the subpart for the relevant national marine sanctuary or by electronic means as defined in the instructions for the ONMS permit application. Applicants proposing to conduct an activity in more than one national marine sanctuary should send the application to each NOAA office for the relevant national marine sanctuaries in which the activity is proposed. (b) Application requirements. All applications for a permit under this section must include the following information: (1) A detailed description of the proposed activity including: (i) A timetable for completion of the activity; (ii) A detailed description of the proposed location for the activity; and (iii) The equipment, personnel and methodology to be employed; (2) The qualifications and experience of all personnel; (3) The financial resources available to the applicant to conduct and complete the proposed activity and comply with any terms and conditions deemed necessary; (4) A statement as to why it is necessary to conduct the activity within a national marine sanctuary; (5) A description of the potential impacts of the activity, if any, on sanctuary resources and qualities; (6) A description of the benefits the conduct of the activity would have for the national marine sanctuary or national marine sanctuary system; (7) Copies of all other required licenses, permits, approvals, or other authorizations; and (8) Such other information as the Director may request or is specified in the relevant subpart. (c) Additional information. Upon receipt of an application, and as part of the evaluation of the permit application, the Director may: (1) Request such additional information as he or she deems necessary to act on the application; (2) Require a site visit; and (3) Seek the views of any persons. (d) Time limit for submitting additional information. Unless otherwise specified in writing by the Director, any information requested by the Director under paragraph (c) of this section must be received by the Director within 30 days of the postmark date of the request or, if email, the date of the email. Failure to provide such additional information may be deemed by the Director to constitute withdrawal of the permit application. (e) Incomplete applications. The Director may consider an application incomplete, and therefore may refuse to further consider the application, if the applicant: (1) Has failed to submit any of the information required under paragraph (b) of this section; (2) Has failed to submit any of the information requested by the Director under paragraph (c) of this section; (3) Has failed to pay any outstanding penalties that resulted from a violation of this part; or (4) Has failed to fully comply with a permit issued pursuant to this subpart.

15 C.F.R. § 922.33 Review procedures and evaluation.

(a) Review criteria. In addition to any relevant site-specific permit review criteria, the Director shall not issue a permit under this subpart or the relevant subpart, unless he or she also finds that: (1) The proposed activity will be conducted in a manner compatible with the primary objective of protection of national marine sanctuary resources and qualities, taking into account the following factors: the extent to which the conduct of the activity may diminish or enhance national marine sanctuary resources and qualities; and any indirect or cumulative effects of the activity; (2) It is necessary to conduct the proposed activity within the national marine sanctuary to achieve its stated purpose; (3) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity's stated purpose and avoid, minimize, or otherwise mitigate adverse effects on sanctuary resources and qualities as much as possible; (4) The duration of the proposed activity and its effects are no longer than necessary to achieve the activity's stated purpose; (5) The expected end value of the activity to the furtherance of national marine sanctuary goals and purposes outweighs any potential adverse impacts on sanctuary resources and qualities from the conduct of the activity; (6) The applicant is professionally qualified to conduct and complete the proposed activity; (7) The applicant has adequate financial resources available to conduct and complete the proposed activity and terms and conditions of the permit; (8) There are no other factors that would make the issuance of a permit for the activity inappropriate; and (9) For Olympic Coast National Marine Sanctuary, the activity as proposed does not adversely affect any Washington Coast treaty tribe. (b) Permit terms and conditions. The Director, at his or her discretion, may subject a permit issued under this subpart or other relevant subpart to such terms and conditions as he or she deems appropriate. A permit granted pursuant to this subpart is nontransferable. (c) Permit actions. The Director may amend, suspend, or revoke a permit issued pursuant to this part or other relevant subpart for good cause. Procedures governing permit sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904. (d) Denial of permit application. The Director may deny a permit application, in whole or in part, if it is determined that: (1) The proposed activity does not meet the review criteria specified in this subpart or the relevant subpart of any national marine sanctuary in which the proposed activity is to take place; (2) The permittee or applicant has acted in violation of the terms and conditions of a permit issued under this subpart or the relevant subpart of any national marine sanctuary in which the proposed activity is to take place; (3) The permittee or applicant has acted in violation of any regulation set forth in this subpart, the NMSA, or the FKNMSPA; (4) The proposed activity has resulted in unforeseen adverse impacts to Sanctuary resources or qualities; or (5) For other good cause. (e) Communication of actions and denials. Any action taken by the Director under paragraphs (c) and (d) of this section shall be communicated in writing to the permittee or applicant and shall set forth the reason(s) for the action taken.

15 C.F.R. § 922.34 Permit amendments.

(a) Request for amendments. Any person who has been issued a permit under this part (a permittee) may request to amend the permit at any time while that permit is valid. For purposes of this section, a permit time extension is treated as a permit amendment. A request for permit amendment must be submitted to the same NOAA office(s) as the original permit and include sufficient information to describe the requested amendment and any additional supporting information. (b) Review of amendment requests. After receiving the permittee's request for amendment, the Director will: (1) Review all reports submitted by the permittee as required by the permit terms and conditions; and (2) Request such additional information as may be necessary to evaluate the request. (c) Denial of amendment request. The Director may deny a permit amendment request, in whole or in part, if it is determined that: (1) The proposed activity does not meet the review criteria specified in this subpart or the relevant subpart of any national marine sanctuary in which the proposed activity is to take place; (2) The permittee or applicant has acted in violation of the terms or conditions of a permit issued under this subpart or the relevant subpart of any national marine sanctuary in which the proposed activity is to take place; (3) The permittee or applicant has acted in violation of any regulation set forth in this subpart, the NMSA, or the FKNMSPA; (4) The proposed activity has resulted in unforeseen adverse impacts to Sanctuary resources or qualities; or (5) For other good cause.

15 C.F.R. § 922.35 Special use permit fees.

(a) Authority to assess fees. The Director may assess a fee for the conduct of any activity authorized under a special use permit issued under § 922.31. The Director may collect assessed fees through agreement with the permit applicant. No special use permit may be effective until all assessed fees are received unless otherwise provided by the Director by a fee schedule set forth as a permit condition. (b) Components of permit fees. A fee assessed under this section may include: (1) All costs incurred, or expected to be incurred, in reviewing and processing the permit application, including, but not limited to, costs for: (i) Personnel; (ii) Personnel hours; (iii) Equipment; (iv) Environmental analysis, assessment or consultation; (v) Copying; and (vi) Overhead costs directly related to reviewing and processing the permit application; (2) All costs incurred, or expected to be incurred, as a direct result of the conduct of the activity for which the permit is being issued, including, but not limited to: (i) The cost of monitoring the conduct both during the activity and after the activity is completed in order to assess the impacts to sanctuary resources and qualities; (ii) The use of an official NOAA observer, including travel and expenses and personnel hours; and (iii) Overhead costs directly related to the permitted activity; and (3) An amount which represents the fair market value of the use of the sanctuary resource.

15 C.F.R. § 922.36 National Marine Sanctuary authorizations.

(a) Authority to issue authorizations. The Director may authorize a person to conduct an activity otherwise prohibited by subparts L through P or subpart R of this part, if such activity is specifically allowed by any valid federal, state, or local lease, permit, license, approval, or other authorization (hereafter called “agency approval”) issued after the effective date of sanctuary designation or expansion, provided the applicant complies with the provisions of this section. Such an authorization by ONMS is hereafter referred to as an “ONMS authorization.” (b) Authorization notification to the Director—(1) Notification requirement. An applicant must notify the Director in writing of the request for an ONMS authorization of an agency approval. The Director may treat an amendment or extension of such an agency approval as constituting a new agency approval for purposes of this section. (i) Notification must occur within fifteen days after the date the applicant files of filing of the application for the agency approval. (ii) Notification must be sent to the Director, Office of National Marine Sanctuaries, to the attention of the relevant Sanctuary Superintendent(s) at the address specified in subparts L through P, or subpart R through S, as appropriate. (iii) A copy of the application for the agency approval must accompany the notification. (2) Director's response to notification. The Director shall respond in writing to the applicant and provide periodic updates on pending ONMS authorization request. (c) Authorization review procedures and evaluation—(1) Additional information. The Director may request additional information from the applicant as the Director deems reasonably necessary to determine whether to issue an ONMS authorization and what terms and conditions are reasonably necessary to protect sanctuary resources and qualities. (i) The information requested must be received by the Director within 45 days of the postmark date of the Director's request. (ii) The Director may seek the views of any persons on the application. (2) Review criteria. The Director shall consider the review criteria in § 922.33(a)(1) through (9) when deciding whether to issue an ONMS authorization. (3) Director's response. The Director shall respond in writing to the applicant to inform the applicant of the Director's decision regarding the authorization request. (i) The Director may deny a request for an ONMS authorization and shall provide the reason(s) therefore. If the Director denies a request for an ONMS authorization, the applicant remains prohibited from conducting the activity in the sanctuary. (ii) The Director may issue an ONMS authorization containing terms and conditions deemed reasonably necessary to protect sanctuary resources and qualities. Failure to comply with an ONMS authorization constitutes a violation of the NMSA and these regulations, which may result in an enforcement action and assessment of penalties. (d) Authorization actions. The Director may amend, suspend, or revoke an ONMS authorization issued pursuant to this part for good cause. Procedures governing ONMS sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904. (e) Communication of actions and denials. Any action taken by the Director under paragraphs (c) and (d) of this section to deny, amend, suspend, or revoke an ONMS authorization shall be communicated in writing to the permittee or applicant and shall set forth the reason(s) for the action taken. (f) Time limits. Any time limit prescribed in or established under this section may be extended by the Director for good cause.

15 C.F.R. § 922.37 Appeals of permitting decisions.

(a) Potential appellant. The following person may appeal an action listed in paragraph (b) of this section (hereinafter referred to as “appellant”): (1) An applicant or holder of a certification of any existing lease, permit, license, or right of subsistence use or of access pursuant to § 922.10; (2) An applicant or a holder of a National Marine Sanctuary permit issued pursuant to § 922.30 or pursuant to site-specific regulations appearing in subparts F through T of this part; (3) An applicant or a holder of a special use permit issued pursuant to section 310 of the Act and § 922.31; and (4) An applicant or a holder of an ONMS authorization of an agency approval issued by any Federal, State, or local authority of competent jurisdiction pursuant to § 922.36. (5) For those National Marine Sanctuaries described in subparts F through K and S and T of this part, any interested person may also appeal the same actions described in paragraph (b)(1) of this section. (b) Actions that may be appealed. An appellant may appeal the following actions to the Assistant Administrator: (1) The denial, conditioning, amendment, suspension, or revocation by the Director of a general permit pursuant to § 922.30 or other relevant subpart, special use permit pursuant to section 310 of the Act and § 922.31, or an ONMS authorization issued pursuant to § 922.36; or a certification under § 922.10. (2) Reserved. (c) Appeal requirements. Appeals must be made in writing to the Assistant Administrator for Ocean Services and Coastal Zone Management, NOAA, 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910 and must: (1) State the action(s) by the Director being appealed; (2) State the reason(s) for the appeal; and (3) Be received within 30 days of the appellant's receipt of notice of the action by the Director. (d) Appeal procedures. (1) The Assistant Administrator may request the appellant submit such information as the Assistant Administrator deems necessary in order to render a decision on the appeal. The information requested must be received by the Assistant Administrator within 45 days of the postmark date of the request. (2) The Assistant Administrator may seek the views of any other persons when deciding an appeal. (3) The Assistant Administrator may hold an informal hearing. If an informal hearing is held: (i) The Assistant Administrator may designate an officer before whom the hearing shall be held; (ii) The hearing officer shall give notice in the Federal Register of the time, place and subject matter of the hearing; (iii) The appellant and Director may appear personally or by counsel at the hearing and submit such material and present such arguments as deemed appropriate by the hearing officer; and (iv) The hearing officer shall recommend a decision in writing to the Assistant Administrator ithin 60 days after the record for the hearing closes. (e) Deciding an appeal. (1) The Assistant Administrator shall decide the appeal using the same regulatory criteria as for the initial decision and shall base the appeal decision on the record before the Director and any information submitted at the Assistant Administrator's request pursuant to paragraph (d)(1) or (2) of this section, regarding the appeal, and, if a hearing has been held, on the record before the hearing officer and the hearing officer's recommended decision. (2) The Assistant Administrator shall notify the appellant of the final decision and the reason(s) therefore in writing. (3) The Assistant Administrator's decision shall constitute final agency action for purposes of the Administrative Procedure Act. (f) Authority to extend time limits. Any time limit prescribed in or established under this section other than the 30-day limit for filing an appeal pursuant to paragraph (c)(3) of this section may be extended by the Assistant Administrator for good cause.

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