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U.S. Code as of:
01/19/04
Section 1434. Procedures for designation and implementation
(a) Sanctuary proposal
(1) Notice
In proposing to designate a national marine sanctuary, the
Secretary shall -
(A) issue, in the Federal Register, a notice of the proposal,
proposed regulations that may be necessary and reasonable to
implement the proposal, and a summary of the draft management
plan;
(B) provide notice of the proposal in newspapers of general
circulation or electronic media in the communities that may be
affected by the proposal; and
(C) no later than the day on which the notice required under
subparagraph (A) is submitted to the Office of the Federal
Register, submit a copy of that notice and the draft sanctuary
designation documents prepared pursuant to paragraph (2),
including an executive summary, to the Committee on Resources
of the House of Representatives, the Committee on Commerce,
Science, and Transportation of the Senate, and the Governor of
each State in which any part of the proposed sanctuary would be
located.
(2) Sanctuary designation documents
The Secretary shall prepare and make available to the public
sanctuary designation documents on the proposal that include the
following:
(A) A draft environmental impact statement pursuant to the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(B) A resource assessment that documents -
(i) present and potential uses of the area, including
commercial and recreational fishing, research and education,
minerals and energy development, subsistence uses, and other
commercial, governmental, or recreational uses;
(ii) after consultation with the Secretary of the Interior,
any commercial, governmental, or recreational resource uses
in the areas that are subject to the primary jurisdiction of
the Department of the Interior; and
(iii) information prepared in consultation with the
Secretary of Defense, the Secretary of Energy, and the
Administrator of the Environmental Protection Agency, on any
past, present, or proposed future disposal or discharge of
materials in the vicinity of the proposed sanctuary.
Public disclosure by the Secretary of such information shall be
consistent with national security regulations.
(C) A draft management plan for the proposed national marine
sanctuary that includes the following:
(i) The terms of the proposed designation.
(ii) Proposed mechanisms to coordinate existing regulatory
and management authorities within the area.
(iii) The proposed goals and objectives, management
responsibilities, resource studies, and appropriate
strategies for managing sanctuary resources of the proposed
sanctuary, including interpretation and education, innovative
management strategies, research, monitoring and assessment,
resource protection, restoration, enforcement, and
surveillance activities.
(iv) An evaluation of the advantages of cooperative State
and Federal management if all or part of the proposed
sanctuary is within the territorial limits of any State or is
superjacent to the subsoil and seabed within the seaward
boundary of a State, as that boundary is established under
the Submerged Lands Act (43 U.S.C. 1301 et seq.).
(v) An estimate of the annual cost to the Federal
Government of the proposed designation, including costs of
personnel, equipment and facilities, enforcement, research,
and public education.
(vi) The proposed regulations referred to in paragraph
(1)(A).
(D) Maps depicting the boundaries of the proposed sanctuary.
(E) The basis for the determinations made under section
1433(a) of this title with respect to the area.
(F) An assessment of the considerations under section
1433(b)(1) of this title.
(3) Public hearing
No sooner than thirty days after issuing a notice under this
subsection, the Secretary shall hold at least one public hearing
in the coastal area or areas that will be most affected by the
proposed designation of the area as a national marine sanctuary
for the purpose of receiving the views of interested parties.
(4) Terms of designation
The terms of designation of a sanctuary shall include the
geographic area proposed to be included within the sanctuary, the
characteristics of the area that give it conservation,
recreational, ecological, historical, research, educational, or
esthetic value, and the types of activities that will be subject
to regulation by the Secretary to protect those characteristics.
The terms of designation may be modified only by the same
procedures by which the original designation is made.
(5) Fishing regulations
The Secretary shall provide the appropriate Regional Fishery
Management Council with the opportunity to prepare draft
regulations for fishing within the Exclusive Economic Zone as the
Council may deem necessary to implement the proposed designation.
Draft regulations prepared by the Council, or a Council
determination that regulations are not necessary pursuant to this
paragraph, shall be accepted and issued as proposed regulations
by the Secretary unless the Secretary finds that the Council's
action fails to fulfill the purposes and policies of this chapter
and the goals and objectives of the proposed designation. In
preparing the draft regulations, a Regional Fishery Management
Council shall use as guidance the national standards of section
301(a) of the Magnuson-Stevens Act (16 U.S.C. 1851) to the extent
that the standards are consistent and compatible with the goals
and objectives of the proposed designation. The Secretary shall
prepare the fishing regulations, if the Council declines to make
a determination with respect to the need for regulations, makes a
determination which is rejected by the Secretary, or fails to
prepare the draft regulations in a timely manner. Any amendments
to the fishing regulations shall be drafted, approved, and issued
in the same manner as the original regulations. The Secretary
shall also cooperate with other appropriate fishery management
authorities with rights or responsibilities within a proposed
sanctuary at the earliest practicable stage in drafting any
sanctuary fishing regulations.
(6) Committee action
After receiving the documents under subsection (a)(1)(C) of
this section, the Committee on Resources of the House of
Representatives and the Committee on Commerce, Science, and
Transportation of the Senate may each hold hearings on the
proposed designation and on the matters set forth in the
documents. If within the forty-five day period of continuous
session of Congress beginning on the date of submission of the
documents, either Committee issues a report concerning matters
addressed in the documents, the Secretary shall consider this
report before publishing a notice to designate the national
marine sanctuary.
(b) Taking effect of designations
(1) Notice
In designating a national marine sanctuary, the Secretary shall
publish in the Federal Register notice of the designation
together with final regulations to implement the designation and
any other matters required by law, and submit such notice to the
Congress. The Secretary shall advise the public of the
availability of the final management plan and the final
environmental impact statement with respect to such sanctuary.
The Secretary shall issue a notice of designation with respect to
a proposed national marine sanctuary site not later than 30
months after the date a notice declaring the site to be an active
candidate for sanctuary designation is published in the Federal
Register under regulations issued under this Act, or shall
publish not later than such date in the Federal Register findings
regarding why such notice has not been published. No notice of
designation may occur until the expiration of the period for
Committee action under subsection (a)(6) of this section. The
designation (and any of its terms not disapproved under this
subsection) and regulations shall 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, in the case of a national marine
sanctuary that is located partially or entirely within the
seaward boundary of any State, the Governor affected certifies to
the Secretary that the designation or any of its terms is
unacceptable, in which case the designation or the unacceptable
term shall not take effect in the area of the sanctuary lying
within the seaward boundary of the State.
(2) Withdrawal of designation
If the Secretary considers that actions taken under paragraph
(1) will affect the designation of a national marine sanctuary in
a manner that the goals and objectives of the sanctuary or System
cannot be fulfilled, the Secretary may withdraw the entire
designation. If the Secretary does not withdraw the designation,
only those terms of the designation not certified under paragraph
(1) shall take effect.
(3) Procedures
In computing the forty-five-day periods of continuous session
of Congress pursuant to subsection (a)(6) of this section and
paragraph (1) of this subsection -
(A) continuity of session is broken only by an adjournment of
Congress sine die; and
(B) the days on which either House of Congress is not in
session because of an adjournment of more than three days to a
day certain are excluded.
(c) Access and valid rights
(1) Nothing in this chapter shall be construed as terminating or
granting to the Secretary the right to terminate any valid lease,
permit, license, or right of subsistence use or of access that is
in existence on the date of designation of any national marine
sanctuary.
(2) The exercise of a lease, permit, license, or right is subject
to regulation by the Secretary consistent with the purposes for
which the sanctuary is designated.
(d) Interagency cooperation
(1) Review of agency actions
(A) In general
Federal agency actions internal or external to a national
marine sanctuary, including private activities authorized by
licenses, leases, or permits, that are likely to destroy, cause
the loss of, or injure any sanctuary resource are subject to
consultation with the Secretary.
(B) Agency statements required
Subject to any regulations the Secretary may establish each
Federal agency proposing an action described in subparagraph
(A) shall provide the Secretary with a written statement
describing the action and its potential effects on sanctuary
resources at the earliest practicable time, but in no case
later than 45 days before the final approval of the action
unless such Federal agency and the Secretary agree to a
different schedule.
(2) Secretary's recommended alternatives
If the Secretary finds that a Federal agency action is likely
to destroy, cause the loss of, or injure a sanctuary resource,
the Secretary shall (within 45 days of receipt of complete
information on the proposed agency action) recommend reasonable
and prudent alternatives, which may include conduct of the action
elsewhere, which can be taken by the Federal agency in
implementing the agency action that will protect sanctuary
resources.
(3) Response to recommendations
The agency head who receives the Secretary's recommended
alternatives under paragraph (2) shall promptly consult with the
Secretary on the alternatives. If the agency head decides not to
follow the alternatives, the agency head shall provide the
Secretary with a written statement explaining the reasons for
that decision.
(4) Failure to follow alternative
If the head of a Federal agency takes an action other than an
alternative recommended by the Secretary and such action results
in the destruction of, loss of, or injury to a sanctuary
resource, the head of the agency shall promptly prevent and
mitigate further damage and restore or replace the sanctuary
resource in a manner approved by the Secretary.
(e) Review of management plans
Not more than five years after the date of designation of any
national marine sanctuary, and thereafter at intervals not
exceeding five years, the Secretary shall evaluate the substantive
progress toward implementing the management plan and goals for the
sanctuary, especially the effectiveness of site-specific management
techniques and strategies, and shall revise the management plan and
regulations as necessary to fulfill the purposes and policies of
this chapter. This review shall include a prioritization of
management objectives.
(f) Limitation on designation of new sanctuaries
(1) Finding required
The Secretary may not publish in the Federal Register any
sanctuary designation notice or regulations proposing to
designate a new sanctuary, unless the Secretary has published a
finding that -
(A) the addition of a new sanctuary will not have a negative
impact on the System; and
(B) sufficient resources were available in the fiscal year in
which the finding is made to -
(i) effectively implement sanctuary management plans for
each sanctuary in the System; and
(ii) complete site characterization studies and inventory
known sanctuary resources, including cultural resources, for
each sanctuary in the System within 10 years after the date
that the finding is made if the resources available for those
activities are maintained at the same level for each fiscal
year in that 10 year period.
(2) Deadline
If the Secretary does not submit the findings required by
paragraph (1) before February 1, 2004, the Secretary shall submit
to the Congress before October 1, 2004, a finding with respect to
whether the requirements of subparagraphs (A) and (B) of
paragraph (1) have been met by all existing sanctuaries.
(3) Limitation on application
Paragraph (1) does not apply to any sanctuary designation
documents for -
(A) a Thunder Bay National Marine Sanctuary; or
(B) a Northwestern Hawaiian Islands National Marine
Sanctuary.
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