§ 1434. — Procedures for designation and implementation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1434]
TITLE 16--CONSERVATION
CHAPTER 32--MARINE SANCTUARIES
Sec. 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.
(Pub. L. 92-532, title III, Sec. 304, Oct. 23, 1972, 86 Stat. 1063; Pub.
L. 94-62, Sec. 4, July 25, 1975, 89 Stat. 303; Pub. L. 94-326, Sec. 4,
June 30, 1976, 90 Stat. 725; Pub. L. 95-153, Sec. 3, Nov. 4, 1977, 91
Stat. 1255; Pub. L. 96-332, Sec. 3, Aug. 29, 1980, 94 Stat. 1059; Pub.
L. 97-109, Dec. 26, 1981, 95 Stat. 1512; Pub. L. 98-498, title I,
Sec. 102, Oct. 19, 1984, 98 Stat. 2298; Pub. L. 100-627, title II,
Sec. 202, Nov. 7, 1988, 102 Stat. 3214; Pub. L. 102-587, title II,
Sec. 2104, Nov. 4, 1992, 106 Stat. 5041; Pub. L. 104-283, Sec. 9(h),
Oct. 11, 1996, 110 Stat. 3368; Pub. L. 106-513, Secs. 6(a)-(f),
19(a)(2), (b)(4), Nov. 13, 2000, 114 Stat. 2383-2385, 2392, 2393; Pub.
L. 106-555, title II, Sec. 205(b), Dec. 21, 2000, 114 Stat. 2769; Pub.
L. 106-562, title III, Sec. 307(a), Dec. 23, 2000, 114 Stat. 2807.)
References in Text
The Submerged Lands Act, referred to in subsec. (a)(2)(C)(iv), is
act May 22, 1953, ch. 65, 67 Stat. 29, as amended, which is classified
generally to subchapters I and II (Secs. 1301 et seq., 1311 et seq.) of
chapter 29 of Title 43, Public Lands. For complete classification of
this Act to the Code, see Short Title note set out under section 1301 of
Title 43, and Tables.
The National Environmental Policy Act of 1969, referred to in
subsec. (a)(2)(A), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as
amended, which is classified generally to chapter 55 (Sec. 4321 et seq.)
of Title 42, The Public Health and Welfare. For complete classification
of this Act to the Code, see Short Title note set out under section 4321
of Title 42 and Tables.
This Act, referred to in subsec. (b)(1), means Pub. L. 92-532, which
enacted this chapter, chapter 32A (Sec. 1447 et seq.) of this title, and
chapters 27 (Sec. 1401 et seq.) and 41 (Sec. 2801 et seq.) of Title 33,
Navigation and Navigable Waters.
Amendments
2000--Subsec. (a)(1)(C). Pub. L. 106-555, Sec. 205(b)(1), struck out
``the Secretary shall'' before ``submit a copy''.
Pub. L. 106-513, Sec. 6(a), amended subpar. (C) generally. Prior to
amendment, subpar. (C) required the Secretary to submit certain
documents to committees of the House and Senate.
Subsec. (a)(2). Pub. L. 106-513, Sec. 6(b), amended heading and text
of par. (2) generally. Prior to amendment, text read as follows: ``The
Secretary shall--
``(A) prepare a draft environmental impact statement, as
provided by the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), on the proposal that includes the resource assessment
report required under section 1433(b)(3) of this title, maps
depicting the boundaries of the proposed designated area, and the
existing and potential uses and resources of the area; and
``(B) make copies of the draft environmental impact statement
available to the public.''
Subsec. (a)(2)(E). Pub. L. 106-555, Sec. 205(b)(2), substituted
``determinations'' for ``findings''.
Subsec. (a)(5). Pub. L. 106-513, Sec. 19(b)(4), substituted
``Magnuson-Stevens Act'' for ``Magnuson Act''.
Subsec. (a)(6). Pub. L. 106-513, Sec. 19(a)(2), substituted
``Resources'' for ``Merchant Marine and Fisheries''.
Subsec. (b)(2). Pub. L. 106-513, Sec. 6(c), inserted ``or System''
after ``of the sanctuary''.
Subsec. (d)(4). Pub. L. 106-513, Sec. 6(d), added par. (4).
Subsec. (e). Pub. L. 106-513, Sec. 6(e), substituted ``management
techniques and strategies,'' for ``management techniques,'' and inserted
at end ``This review shall include a prioritization of management
objectives.''
Subsec. (f). Pub. L. 106-513, Sec. 6(f), added subsec. (f).
Subsec. (f)(2). Pub. L. 106-562 substituted ``subparagraphs (A) and
(B) of paragraph (1)'' for ``paragraph (2)''.
1996--Subsec. (b)(3). Pub. L. 104-283 struck out ``(A)'' before ``In
computing the forty-five-day'', redesignated cls. (i) and (ii) as
subpars. (A) and (B), respectively, adjusted margins, and struck out
former subpars. (B) and (C) which read as follows:
``(B) When the committee to which a joint resolution has been
referred has reported such a resolution, it shall at any time thereafter
be in order to move to proceed to the consideration of the resolution.
The motion shall be privileged and shall not be debatable. An amendment
to the motion shall not be in order, and it shall not be in order to
move to reconsider the vote by which the motion was agreed to or
disagreed to.
``(C) This subsection is enacted by Congress as an exercise of the
rulemaking power of each House of Congress, respectively, and as such is
deemed a part of the rules of each House, respectively, but applicable
only with respect to the procedure to be followed in the case of
resolutions described in this subsection. This subsection supersedes
other rules only to the extent that they are inconsistent therewith, and
is enacted with full recognition of the constitutional right of either
House to change the rules (so far as those relate to the procedure of
that House) at any time, in the same manner, and to the same extent as
in the case of any other rule of such House.''
1992--Subsec. (a)(1)(C). Pub. L. 102-587, Sec. 2104(a)(2),
substituted ``documents, including an executive summary, consisting of--
'' for ``a prospectus on the proposal which shall contain--''.
Subsec. (a)(5). Pub. L. 102-587, Sec. 2104(a)(3), substituted
``Exclusive Economic Zone'' for ``United States Fishery Conservation
Zone'' and inserted at end ``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.''
Subsec. (a)(6). Pub. L. 102-587, Sec. 2104(a)(1), substituted
``documents'' for ``prospectus'' wherever appearing.
Subsec. (b)(1). Pub. L. 102-587, Sec. 2104(b)(1), substituted at end
``, 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.'' for the dash after ``unless'' and
subpars. (A) and (B) which read as follows:
``(A) the designation or any of its terms is disapproved by
enactment of a joint resolution of disapproval described in paragraph
(3); or
``(B) in the case of a natural 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.''
Subsec. (b)(2). Pub. L. 102-587, Sec. 2104(b)(2), substituted
``actions taken under paragraph (1)'' for ``actions taken under
paragraph (1)(A) or (B)'' and ``terms of the designation not certified
under paragraph (1)'' for ``terms of the designation not disapproved
under paragraph (1)(A) or not certified under paragraph (1)(B)''.
Subsec. (b)(3), (4). Pub. L. 102-587, Sec. 2104(b)(3), redesignated
par. (4) as (3) and struck out former par. (3) which defined a
Congressional resolution of disapproval for purposes of this subsection.
Subsec. (c)(1). Pub. L. 102-587, Sec. 2104(c), amended par. (1)
generally. Prior to amendment, par. (1) read as follows: ``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 if the lease, permit, license, or
right--
``(A) was in existence on October 19, 1984, with respect to any
national marine sanctuary designated before that date; or
``(B) is in existence on the date of designation of any national
marine sanctuary, with respect to any national marine sanctuary
designated after October 19, 1984.''
Subsecs. (d), (e). Pub. L. 102-587, Sec. 2104(d), added subsecs. (d)
and (e).
1988--Subsec. (b)(1). Pub. L. 100-627 inserted requirement that
notice be published in the Federal Register of proposed marine sanctuary
site designation within 30 months after notice of active candidacy of
site for sanctuary designation or that within such period findings be
published why notice has not been published.
1984--Pub. L. 98-498 amended section generally, substituting
provisions relating to procedures for designation and implementation of
a marine sanctuary for provisions relating to authorization of
appropriations. See section 1438 of this title.
1981--Pub. L. 97-109 inserted provisions authorizing appropriations
of not to exceed $2,235,000 for fiscal year 1982, and not to exceed
$2,235,000 for fiscal year 1983.
1980--Pub. L. 96-332 inserted provisions authorizing appropriations
of not to exceed $2,250,000 for fiscal year 1981.
1977--Pub. L. 95-153 inserted provision authorizing appropriations
not to exceed $500,000 for fiscal year 1978.
1976--Pub. L. 94-326 inserted provision authorizing to be
appropriated not to exceed $500,000 for fiscal year 1977.
1975--Pub. L. 94-62 substituted provisions authorizing to be
appropriated not to exceed $10,000,000 for each of fiscal years 1973,
1974, and 1975, for provisions authorizing to be appropriated for fiscal
year in which this Act was enacted and for next two fiscal years
thereafter not to exceed $10,000,000 for each such fiscal year, and
inserted provisions authorizing to be appropriated not to exceed
$6,200,000 for fiscal year 1976, and not to exceed $1,550,000 for the
transition period (July 1, through Sept. 30, 1976).
Effective Date of 2000 Amendments
Pub. L. 106-562, title III, Sec. 307(c), Dec. 23, 2000, 114 Stat.
2807, provided that: ``Subsection (a) [amending this section] shall take
effect January 1, 2001.''
Amendment by Pub. L. 106-555 effective immediately after the
National Marine Sanctuaries Amendments Act of 2000, Pub. L. 106-513,
takes effect, see section 205(c) of Pub. L. 106-555, set out as a note
under section 1433 of this title.
Section Referred to in Other Sections
This section is referred to in sections 1432, 1435 of this title.
