[Federal Register Volume 62, Number 20 (Thursday, January 30, 1997)]
[Rules and Regulations]
[Pages 4578-4622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1870]
[[Page 4577]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Parts 922, 929 and 937
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Florida Keys National Marine Sanctuary; Final Rule
Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 /
Rules and Regulations
[[Page 4578]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Parts 922, 929 and 937
[Docket No. 960712192-6192-01]
RIN 0648-AD85
Florida Keys National Marine Sanctuary Final Regulations
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce.
ACTION: Final rule; removal and revision of regulations; summary of
Final Management Plan.
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SUMMARY: Pursuant to the Florida Keys National Marine Sanctuary and
Protection Act and the National Marine Sanctuaries Act, NOAA has
developed the comprehensive final management plan for the Florida Keys
National Marine Sanctuary (FKNMS or the Sanctuary). NOAA hereby issues
final regulations to implement that plan and govern the conduct of
activities within the Sanctuary. This document also summarizes the
Final Management Plan--Environmental Impact Statement (FMP/EIS) for the
Sanctuary. The FMP/EIS details the goals and objectives, management
responsibilities, research activities, educational and outreach
programs, and interpretive enforcement activities for the Sanctuary.
The intended effect of the final regulations, and FMP/EIS is to protect
and manage the conservation, recreational, ecological, historical,
research, educational, and aesthetic qualities of the Sanctuary
consistent with the Florida Keys National Marine Sanctuary and
Protection Act and the National Marine Sanctuaries Act.
EFFECTIVE DATES: Congress and the Governor of the State of Florida have
forty-five days of continuous session of Congress beginning on the day
on which this document is published to review the regulations before
they take effect. After forty-five days, the regulations automatically
become final and take effect, unless the Governor of the State of
Florida certifies within the forty-five-day period to the Secretary of
Commerce that a regulation or regulations is unacceptable. In such
case, the regulation (or regulations) cannot take effect in the area of
the Sanctuary lying within the seaward boundary of the State of
Florida. In no event will Sec. 922.164(d) become effective in State
waters before July 1, 1997. A document announcing the effective dates
will be published in the Federal Register.
ADDRESSES: Requests for a copy of the FMP/EIS, the Final Regulatory
Flexibility Analysis, or the Federalism Assessment should be submitted
to the Sanctuary Superintendent, Florida Keys National Marine
Sanctuary, P.O. Box 500368, Marathon, Florida 33050.
FOR FURTHER INFORMATION CONTACT: Billy Causey, Sanctuary
Superintendent, 305/743-2437 or Edward Lindelof, East Coast Branch
Chief, 301/713-3137 Extension 131.
SUPPLEMENTARY INFORMATION:
I. Introduction
The FKNMS was designated by an act of Congress entitled the Florida
Keys National Marine Sanctuary and Protection Act (FKNMSPA, Pub. L.
101-605) which was signed into law on November 16, 1990. The FKNMSPA
directed the Secretary of Commerce to develop a comprehensive
management plan and regulations for the Sanctuary pursuant to sections
303 and 304 of the National Marine Sanctuaries Act (NMSA) (also known
as Title III of the Marine Protection, Research, and Sanctuaries Act of
1972), as amended, 16 U.S.C. 1431 et seq. The NMSA authorizes the
development of management plans and regulations for national marine
sanctuaries to protect their conservation, recreational, ecological,
historical, research, educational, or aesthetic qualities.
The authority of the Secretary to designate national marine
sanctuaries and implement designated sanctuaries was delegated to the
Under Secretary of Commerce for Oceans and Atmosphere by the Department
of Commerce, Organization Order 10-15, Sec. 3.01(z) (Jan. 11, 1988).
The authority to administer the other provisions of the NMSA was
delegated to the Assistant Administrator for Ocean Services and Coastal
Zone Management of NOAA by NOAA Circular 83-38, Directive 05-50 (Sept.
21, 1983, as amended).
II. Summary of Final Management Plan/Environmental Impact Statement
The FMP/EIS sets forth the affected environment of the Sanctuary
including the boundary and details its resources and human uses of the
Sanctuary. The FMP/EIS also describes the resource protection,
research, education and interpretive enforcement programs, and details
the specific activities to be conducted in each management program
area. The FMP/EIS includes a discussion, by program area, of agency
roles and responsibilities.
The goals and objectives for the Sanctuary are to: (1) Enhance
resource protection through comprehensive and coordinated conservation
and ecosystem management that complements existing regulatory
authorities; (2) support, promote, and coordinate scientific research
on, and monitoring of, the site-specific marine resources to improve
management decision-making in national marine sanctuaries; (3) enhance
public awareness, understanding, and the wise use of the marine
environment through public education, and interpretive enforcement; and
(4) facilitate, to the extent compatible with the primary objective of
resource protection, multiple uses of the Sanctuary.
A. Resource Protection
The highest priority management goal is to protect the marine
environment, resources, and qualities of the Sanctuary. The specific
objectives of protection efforts are to: (1) Reduce threats to
Sanctuary resources; (2) encourage participation by interested agencies
and organizations in addressing specific management concerns (e.g.,
monitoring and emergency-response programs); (3) develop an effective
and coordinated program for the interpretive enforcement of Sanctuary
regulations in addition to other regulations already in place; (4)
promote public awareness of, and voluntary compliance with, Sanctuary
regulations and objectives through an educational/interpretive program
stressing resource sensitivity and wise use; (5) ensure that the water
quality of the Florida Keys is maintained at a level consistent with
the purposes of Sanctuary designation; (6) establish cooperative
agreements and other mechanisms for coordination among all the agencies
participating in Sanctuary management; (7) ensure that the appropriate
management agencies incorporate research results and scientific data
into effective resource protection strategies; and (8) coordinate
policies and procedures among the agencies sharing responsibility for
protection and management of Sanctuary resources.
B. Research Program
Effective management of the Sanctuary requires the conduct of a
Sanctuary research program. The purpose of Sanctuary research is to
improve understanding of the Florida Keys' coastal and offshore
environment, resources, and qualities, and to resolve specific
management problems. Some of
[[Page 4579]]
these management problems involve resources common to coastal and
offshore waters, and nearby Federal, State, and local refuges and
reserves. Research results will both support management efforts to
protect Sanctuary resources and qualities, and be incorporated into
interpretative programs for visitors and others interested in the
Sanctuary.
Specific objectives for the research program are to: (1) Establish
a framework and procedures for administering research to ensure that
research projects are responsive to management concerns and that
results contribute to improved management of the Sanctuary; (2) focus
and coordinate data collection efforts on the physical, chemical,
geological, and biological oceanography of the Sanctuary; (3) encourage
studies that integrate research from the variety of coastal habitats
with nearshore and open ocean processes; (4) initiate a monitoring
program to assess environmental changes as they occur due to natural
and human processes; (5) identify the range of effects on the
environment that would result from predicted changes in human activity
or natural phenomena; (6) encourage information exchange and
cooperation among all the organizations and agencies undertaking
management-related research in the Sanctuary to promote more informed
management; and (7) incorporate research results into the interpretive/
education program in a format useful for the general public.
C. Education and Outreach
The goal for the Sanctuary education and outreach program is to
improve public awareness and understanding of the significance of the
Sanctuary and the need to protect its resources and qualities.
The management objectives designed to meet this goal are to: (1)
Provide the public with information on the Sanctuary and its goals and
objectives, with an emphasis on the need to use Sanctuary resources and
qualities wisely to ensure their long-term viability; (2) broaden
support for Sanctuary management by offering programs suited to
visitors with a diverse range of interests; (3) provide for public
involvement by encouraging feedback on the effectiveness of education
programs, collaboration with Sanctuary management staff in extension
and outreach programs, and participation in other volunteer programs;
and (4) collaborate with other organizations to provide educational
services complementary to the Sanctuary program.
D. Visitor Use
The Sanctuary goal for visitor use management is to facilitate, to
the extent compatible with the primary objective of resource
protection, public and private uses of the resources of the Sanctuary
not prohibited pursuant to other authorities.
Specific management objectives are to: (1) Provide relevant
information about Sanctuary regulations, use policies, and standards;
(2) collaborate with public and private organizations in promoting
compatible uses of the Sanctuary; (3) encourage the public who use the
Sanctuary to respect sensitive Sanctuary resources and qualities; and
(4) monitor and assess the levels of use to identify and control
potential degradation of resources and qualities, and minimize
potential user conflicts.
The Sanctuary is currently managed from offices located in Key
Largo and Key West, with the headquarters in Marathon.
III. Summary of the Final Regulations
Two sets of existing regulations are eliminated and replaced by
this final rule. Specifically, parts 929 and 937 to title 15 of the
Code of Federal Regulations, which govern activities in the Key Largo
and Looe Key National Marine Sanctuaries, respectively, are removed and
replaced by the new regulations which govern the entire FKNMS.
Consistent with the FKNMSPA, the Looe Key and Key Largo National Marine
Sanctuaries have been incorporated into the FKNMS as Existing
Management Areas (Sec. 922.164(b)(1)).
Organizationally, these final regulations are revised from the
proposed regulations in furtherance of the President's Regulatory
Reinvention Initiative to, among other things, consolidate duplicative
regulatory provisions. Consequently, the new regulations for the most
part appear in a new subpart P to 15 CFR part 922 (15 CFR 922.160--
922.167) and in Appendixes I through VIII to subpart P. Existing
Secs. 922.3, 922.42, 922.45, 922.46, 922.49 and 922.50 of 15 CFR part
922 are also applicable to the Sanctuary. In some instances, this rule
makes minor revisions to those and other sections of the National
Marine Sanctuary Program Regulations at 15 C.F.R. part 922 to make them
meld with the new subpart P.
Section 922.160 sets forth the purpose of the regulations--to
implement the comprehensive final management plan for the Sanctuary by
regulating activities affecting the Sanctuary in order to protect,
preserve, and manage the conservation, ecological, recreational,
research, educational, historical and aesthetic resources and qualities
of the area.
Section 922.161 and Appendix I describe the boundary of the
Sanctuary as established by section 5 of the FKNMSPA.
Existing Sec. 922.3 defines terms applicable to all National Marine
Sanctuaries. The Marine Protection, Research, and Sanctuaries Act also
defines other terms applicable to all National Marine Sanctuaries. The
terms ``historical resource,'' and ``sanctuary quality'' were slightly
revised to reflect the Sanctuary's definitions as they appeared in the
proposed regulations. The modified definitions further clarify the
meaning of these terms, which are applicable to all the sanctuaries
found in part 922.
Section 922.162 defines terms only applicable to the FKNMS.
Existing Sec. 922.42 specifies that all activities, including
fishing, boating, diving, research, and education, are allowed in the
National Marine Sanctuaries except to the extent that those activities
are restricted or prohibited by subparts F through P of part 922 (in
the case of the FKNMS by Secs. 922.163, 922.164), subject to any
emergency regulation (in the case of the FKNMS under Sec. 922.165), and
subject to all prohibitions, regulations, restrictions, and conditions
validly imposed by any Federal, State, or local authority of competent
jurisdiction. This section is intended to assure that if activities are
not prohibited or otherwise restricted or conditioned pursuant to this
part, or by any other Federal, State, or local authority of competent
jurisdiction, then they are expressly allowed within the Sanctuary.
Section 922.163 prohibits a variety of activities within the
Sanctuary and in limited instances, outside the Sanctuary, thus making
it unlawful for any person to conduct them or cause them to be
conducted.
The first activity prohibited is exploring for, developing, or
producing minerals or hydrocarbons within the Sanctuary. The FKNMSPA
already prohibits these activities. The Sanctuary's significant natural
resources and qualities are especially sensitive to potential impacts
from outer continental shelf minerals or hydrocarbon activities and
should be protected. Specifically, the corals, seagrasses, and
mangroves of the Florida Keys and the Sanctuary's water quality are
especially vulnerable to oil and gas activities in the area. The
prohibition on oil, gas and mineral activities will help protect the
Sanctuary's resources and qualities.
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This specific prohibition is consistent with the general prohibition on
drilling into, dredging or otherwise altering the seabed discussed
below. The codification of the statutory prohibitions into the
Sanctuary regulations is for regulatory cohesiveness (so that all
restrictions or prohibitions found in the statute or imposed pursuant
to the statute's authority can be found in one place) rather than to
provide any additional protections.
The second activity prohibited is the removal of, injury to, or
possession of coral or live rock except as authorized by a Federal or
State permit. The intent of this prohibition is to conserve the coral
reefs, to protect the biodiversity of the Sanctuary, to protect the
habitats of commercially and ecologically important species, and to
preserve the natural functional aspects of the coral reef ecosystem.
The third activity prohibited is alteration of, or construction on,
the seabed. Such actions as drilling, dredging, and prop dredging are
prohibited by this regulation. The seabed and the water over the seabed
are the basic elements for all marine ecosystems. This prohibition
protects the seabed as well as the resources in and on the seabed, such
as shipwrecks, and seagrasses. Exceptions are made for anchoring in
manners not otherwise prohibited, traditional fishing activities not
otherwise prohibited, installation and maintenance of navigational
aids, harbor maintenance, repair and replacement of jetties, and
breakwaters, and construction, repair, and replacement of docks and
piers.
The fourth activity prohibited is the discharge or deposit of
materials or other matter. Exceptions are made for such things as fish
baits in connection with and during traditional fishing, biodegradable
vessel effluents, graywater, and vessel exhaust and cooling water. The
primary intent of this prohibition is to protect the Sanctuary
resources and qualities against the harmful effects of land and marine
based pollution, particularly vessel source pollution, to reduce and
prevent contamination by marine debris and related impacts associated
with pollution of the marine environment of the Sanctuary. Together
with the prohibition on the alteration of, or construction on, the
seabed, this provides a safety net for protection of specific resources
and the ecosystem.
The fifth activity prohibited is the operation of vessels in a
manner which harms significant Sanctuary resources such as operating a
vessel in such a manner as to strike or otherwise injure coral,
seagrass, other immobile organism attached to the seabed, or to injure
or take wading, nesting, or roosting seabirds or marine mammals. Also
specifically prohibited is having a vessel anchored on living coral
other than hardbottom in less than 40 feet of water when visibility is
such that the seabed can be seen, operating a vessel at a speed greater
than idle speed only/no wake within an area designated as idle speed
only/no wake, within 100 yards of navigational aids indicating emergent
or shallow reefs, residential shorelines, or stationary vessels, within
100 feet of divers flags, and operating a vessel in a manner which
endangers life, limb, marine resources, or property.
The sixth activity prohibited is diving without a red and white
``divers down'' flag or a blue and white ``alpha'' flag in Federal
waters. The intent of this prohibition on divers in conjunction with
the previous restriction on vessel operation is to help prevent injury
to humans and facilitate safe, multiple use of the Sanctuary.
The seventh activity prohibited is the release of exotic species.
Exotic species can permanently alter a natural ecosystem and its
assemblages by such things as out competing indigenous species and
preying on indigenous species. The intent of this prohibition is to
prevent injury to Sanctuary resources, to protect the biodiversity of
the Sanctuary, and to preserve the natural functional aspects of the
ecosystem. By protecting the natural ecosystem and assemblages, it also
addresses concerns from commercial and recreational users dependent
upon the natural ecosystem and assemblages.
The eighth activity prohibited is the tampering with official signs
or markers or navigational aids. The signs, markers and navigational
aids generally are posted to inform the users about regulations as well
as the existence of certain Sanctuary resources, primarily corals and
seagrasses, in order to prevent injury to those resources. They also
address safety concerns for humans and property. Prohibiting tampering
is reasonable and necessary for effective prevention and enforcement of
regulations.
The ninth activity prohibited is the removing or injuring of
Sanctuary historical resources. Submerged historical resources
constitute important, irreplaceable, public resources of the Sanctuary
because they contain important information about human heritage,
history, and culture. This prohibition is designed to protect these
resources and ensure their availability for present and future
research, education and other uses compatible with the NMSA and the
Abandoned Shipwreck Act (ASA).
The tenth activity prohibited is taking or possessing certain
protected wildlife. The Sanctuary is an important staging area,
breeding area, and feeding area for a variety of wildlife, including a
number of endangered and threatened species. The intent of this
prohibition is to protect Sanctuary resources and endangered and/or
threatened species.
The eleventh activity prohibited is the possession or use of
explosives and electrical charges. The intent of this prohibition is to
prevent injury to Sanctuary resources.
The twelfth activity prohibited is the harvest or possession of
marine life species (tropical fish and plants), except in accordance
with the Marine Life Rule of the Florida Administrative Code reproduced
in Appendix VIII to this subpart. The intent of this regulation is to
protect Sanctuary resources and biodiversity by adopting relevant
portions of the Florida Marine Life rule as a uniform regulation to be
applied throughout the Federal and State waters of the Sanctuary.
The thirteenth activity prohibited is interfering with law
enforcement officers. The intent of this prohibition is to prevent the
obstruction of justice.
Section 922.163 provides certain exemptions from the prohibitions
such as when a prohibited activity is conducted by a Federal, State, or
local officer while performing enforcement duties and/or while
responding to emergencies. Certain activities conducted by the U.S.
Department of Defense are also exempt. Also, a prohibited activity may
be conducted if specifically authorized by, and conducted in accordance
with a National Marine Sanctuary Permit.
Section 922.164 sets forth by Sanctuary zone, restrictions and
prohibitions above and beyond those applicable on a Sanctuary-wide
basis (most of the Sanctuary is not zoned and, therefore, only the
Sanctuary-wide prohibitions of Sec. 922.163 apply). The six type of
Sanctuary zones are: (1) Areas to be Avoided (ATBAs); (2) Existing
Management Areas; (3) Wildlife Management Areas; (4) Ecological
Reserves; (5) Sanctuary Preservation Areas; and (6) Special-use Areas.
Details on the location of these zones are specified in Appendices II,
III, IV, V and VI to subpart P, respectively. The intent of the zoning
regulations is to protect Sanctuary resources, ecosystem and
biodiversity, and provide for effective management and facilitation of
multiple, compatible uses, consistent with the purposes of the
Sanctuary. Activities located within two or more
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overlapping Sanctuary zones are concurrently subject to the regulations
applicable to each overlapping area.
Section 922.164(a) prohibits the operation of a tank vessel or a
vessel greater than 50 meters in registered length in an ATBA. The
boundary coordinates for the ATBAs are listed in Appendix VII to this
subpart. This prohibition merely codifies into the Sanctuary
regulations the prohibition in the FKNMSPA against this activity in the
ATBAs. The prohibition should prevent or minimize large or tank vessel
groundings on the coral reef, and thus minimize the risk of extensive
physical damage, spills and associated, possibly irreparable, injury to
Sanctuary resources likely to result from a grounding of a large vessel
or tank vessel.
Section 922.164(b) sets forth additional restrictions applicable to
Existing Management Areas--areas of the Sanctuary that are already
within a resource management area established by NOAA or by another
Federal authority of competent jurisdiction, and in need of a level of
protection higher than that provided by the Sanctuary-wide prohibitions
and restrictions of Sec. 922.163. The Existing Management Areas are the
Looe Key and Key Largo National Marine Sanctuaries and the Key West and
Great White Heron National Wildlife Refuges. The boundaries of these
areas are set forth in Appendix II to subpart P.
The FKNMSPA subsumed the Key Largo and Looe Key National Marine
Sanctuaries into the FKNMS. The qualities and values for which those
Sanctuaries were originally designated remain and require a continued
level of protection above and beyond those applicable Sanctuary-wide.
Therefore, consistent with the FKNMSPA, additional restrictions will
remain applicable to those two areas. In order to do so, the areas of
the two Sanctuaries have been zoned as Existing Management Areas with
portions thereof also designated as Sanctuary Preservation Areas and
Special-use Areas. Therefore, the special restrictions applicable to
the two areas appear in the restrictions applicable to Existing
Management Areas, Sanctuary Preservation Areas, and Special-use Areas.
Section 922.164(b)(1) sets forth the special restrictions
applicable to the entire Key Largo and Looe Key Existing Management
Areas: (i) Removing, taking, damaging, harmfully disturbing, breaking,
cutting, spearing or similarly injuring any coral or other marine
invertebrate, or any plant, soil, rock, or other material, except
commercial taking of spiny lobster and stone crab by trap and
recreational taking of spiny lobster by hand or by hand gear which is
consistent with these regulations and the applicable regulations
implementing the applicable National Marine Fisheries Service Fishery
Management Plans; (ii) taking any tropical fish; (iii) fishing with
wire fish traps, bottom trawls, dredges, fish sleds, or similar vessel-
towed or anchored bottom fishing gear or nets; and (iv) fishing with,
carrying or possessing, except while passing through without
interruption or for law enforcement purposes: Pole spears, air rifles,
bows and arrows, slings, Hawaiian slings, rubber powered arbaletes,
pneumatic and spring-loaded guns or similar devices known as spearguns.
Also designated Existing Management Areas are the Great White Heron
and Key West National Wildlife Refuge Management Areas. The Refuges are
subject to the continuing management and control of the Department of
the Interior, notwithstanding the exercise of concurrent regulatory
authority by NOAA in the surrounding marine environment in accordance
with this part. The development of these Sanctuary regulations was the
result of coordination with the Department of the Interior, U.S. Fish
and Wildlife Service. Such coordination will continue in the
implementation and enforcement of these rules and regulations in a
manner that complements the Sanctuary final management plan as well as
existing refuge management plans. The Sanctuary's interpretive
enforcement approach will be utilized in these areas to supplement
existing enforcement by the U.S. Fish and Wildlife Service.
Section 922.164(b)(2) incorporates existing U.S. Fish and Wildlife
Service restrictions which prohibit waterskiing, operating personal
watercraft, and operating airboats within the Great White Heron and Key
West National Wildlife Refuge Management Areas into Sanctuary
regulations. By incorporating those provisions into the Sanctuary
regulations, civil penalties can be sought for violation of Sanctuary
regulations. Presently, only criminal sanctions, which are more
difficult to prove and not always the best means of obtaining
compliance, are available.
Section 922.164(c) sets forth the procedures for designating and
changing the designation of all or part of the marine portions of the
27 Wildlife Management Areas listed in Appendix III as ``idle speed
only/no-wake'', ``no motor'', ``no access buffer'' or ``closed'' areas.
Wildlife Management Areas are areas established for the management,
protection, and preservation of wildlife resources, including such
areas established for the protection and preservation of endangered or
threatened species or their habitats, within which access is restricted
to minimize disturbances to wildlife and to ensure protection and
preservation consistent with the Sanctuary designation and other
applicable law governing the protection and preservation of wildlife
resources. Only the marine portions of these areas are within the
Sanctuary, the land portions are under the Department of the Interior's
and the State of Florida's jurisdiction and protection.
An ``idle speed only/no-wake zone'' means a portion of the
Sanctuary where the speed at which a boat is operated may be no greater
than 4 knots or may not produce a wake. A ``no motor zone'' means an
area of the Sanctuary where the use of internal combustion motors is
prohibited. A vessel with an internal combustion motor may access a no
motor zone only through the use of a push pole, paddle, sail, electric
motor or similar means of operation but is prohibited from using it's
internal combustion motor. A ``no-access buffer zone'' means a portion
of the Sanctuary where vessels are prohibited from entering regardless
of the method of propulsion. ``Closed'' means all entry or use is
prohibited.
The regulations require the Director or designee, in cooperation
with other Federal, State, or local resource management authorities, as
appropriate, to effect such designations by posting official signs
conspicuously, using mounting posts, buoys, or other means according to
location and purpose, at appropriate intervals and locations. Appendix
III also sets forth the access restrictions applicable to the marine
portions of the Wildlife Management Areas. The intent of these rules is
to protect wildlife resources from injury or harmful disturbance within
sensitive areas and habitats. It is also the intent of these
restrictions to protect Sanctuary resources and qualities through
coordination with the Department of the Interior and others in a manner
that recognizes and complements the existing management of the land
portions of these areas. For example, a closure of a beach above the
mean high water by the Department of the Interior is complemented by a
closure of adjacent marine areas in the Sanctuary regulations. More
importantly, the Sanctuary's interpretive enforcement approach will be
utilized in these areas to supplement existing enforcement by the
Department of the Interior. As discussed above, civil sanctions are
available to address violations of
[[Page 4582]]
Sanctuary regulations while only criminal sanctions are available to
address violations of the Interior's rules.
Section 922.164(d) sets forth prohibitions applicable to activities
conducted within Ecological Reserves and Sanctuary Preservation Areas.
Ecological Reserve means an area of the Sanctuary consisting of
contiguous, diverse habitats, within which uses are subject to
conditions, restrictions and prohibitions, including access
restrictions, intended to minimize human influences, to provide natural
spawning, nursery, and permanent residence areas for the replenishment
and genetic protection of marine life, and also to protect and preserve
natural assemblages of habitats and species within areas representing a
broad diversity of resources and habitats found within the Sanctuary.
Appendix IV sets forth the geographic coordinates of the Western Sambos
Ecological Reserve-the only Ecological Reserve established by the final
regulations. Another Ecological Reserve-the Dry Tortugas Ecological
Reserve will be proposed by a separate rulemaking.
Sanctuary Preservation Area means an area of the Sanctuary that
encompasses a discrete, biologically important area, within which uses
are subject to conditions, restrictions and prohibitions, including
access restrictions, to avoid concentrations of uses that could result
in significant declines in species populations or habitat, to reduce
conflicts between uses, to protect areas that are critical for
sustaining important marine species or habitats, or to provide
opportunities for scientific research. Appendix V sets forth the
geographic coordinates of the 18 Sanctuary Preservation Areas
established by the final regulations.
Above and beyond the activities prohibited Sanctuary-wide, the
following activities are prohibited in the Ecological Reserves and
Sanctuary Preservation Areas: (i) Discharging or depositing any
material or other matter except cooling water or engine exhaust; (ii)
possessing, moving, harvesting, removing, taking, damaging, disturbing,
breaking, cutting, spearing, or otherwise injuring any coral, marine
invertebrate, fish, bottom formation, algae, seagrass or other living
or dead organism, including shells, or attempting any of these
activities. However, fish, invertebrates, and marine plants may be
possessed aboard a vessel in an Ecological Reserve or Sanctuary
Preservation Area, provided such resources can be shown not to have
been harvested within, removed from, or taken within, the Ecological
Reserve or Sanctuary Preservation Area, as applicable, by being stowed
in a cabin, locker, or similar storage area prior to entering and
during transit through such reserves or areas; (iii) except for catch
and release fishing by trolling in the Conch Reef, Alligator Reef,
Sombrero Reef, and Sand Key Sanctuary Preservation Areas, fishing by
any means. However, gear capable of harvesting fish may be aboard a
vessel in an Ecological Reserve or Sanctuary Preservation Area,
provided such gear is not available for immediate use when entering and
during transit through such Ecological Reserve or Sanctuary
Preservation Area, and no presumption of fishing activity shall be
drawn therefrom (baitfishing by net for ballyhoo in SPAs will be
allowed pursuant to a Sanctuary permit); (iv) touching living or dead
coral, including but not limited to, standing on a living or dead coral
formation; (v) placing any anchor in a way that allows the anchor or
any portion of the anchor apparatus (including the anchor, chain or
rope) to touch living or dead coral, or any attached organism. When
anchoring dive boats, the first diver down must inspect the anchor to
ensure that it is not touching living or dead coral, and will not shift
in such a way as to touch such coral or other attached organisms. No
further diving shall take place until the anchor is placed in
accordance with these requirements; (vi) anchoring instead of mooring
when a mooring buoy is available or anchoring in other than a
designated anchoring area when such areas have been designated and are
available; (vii) except for passage without interruption through the
area, for law enforcement purposes, or for purposes of monitoring a
temporary access restriction or closure, violating a temporary access
restriction imposed by the Director.
Section 922.164(d)(2) authorizes the Director to temporarily
restrict access to any portion of any Sanctuary Preservation Area or
Ecological Reserve if the Director, on the basis of the best available
data, information and studies, determines that a concentration of use
appears to be causing or contributing to significant degradation of the
living resources of the area and that such action is reasonably
necessary to allow for recovery of the living resources of such area.
The Director must provide for continuous monitoring of the area during
the pendency of the restriction. The Director must provide public
notice of the restriction by publishing a notice in the Federal
Register, and by such other means as the Director may deem appropriate.
The Director may only restrict access to an area for a period of 60
days, with one additional 60-day renewal. The Director may restrict
access to an area for a longer period pursuant to a notice and
opportunity for public comment rulemaking under the Administrative
Procedure Act. Such restriction will be kept to the minimum amount of
area necessary to achieve the purposes thereof.
It should be noted that Sec. 922.164(d) will not take effect in
State waters before July 1, 1997, to allow the State of Florida Marine
Fisheries Commission to complete its rulemaking process related to the
Sambos Ecological Reserve and those Sanctuary Preservation Areas
located in State waters. If the Commission's rule is not substantively
the same as NOAA's, then NOAA will modify these regulations to conform
with those of the State or will consult with the State on whether the
non-conforming portions of the Sanctuary regulations should be
withdrawn from applying in State waters.
The intent of the establishment of, and regulation of uses within,
the Sanctuary Preservation Areas is to avoid concentrations of uses
that could result in significant declines in species populations or
habitat, to reduce conflicts between uses, to protect areas that are
critical for sustaining important marine species or habitats, or to
provide opportunities for scientific research. The intent of the
establishment of, and regulation of uses within, the Ecological
Reserves is to minimize human influences, to provide natural spawning,
nursery, and permanent residence areas for the replenishment and
genetic protection of marine life, and also to protect and preserve
natural assemblages of habitats and species within areas representing a
broad diversity of resources and habitats found within the Sanctuary.
Section 922.164(e) sets forth the procedures and criteria pursuant
to which the Director or designee may set aside discrete areas of the
Sanctuary as Special-use Areas, designate such areas as ``recovery
areas'' to provide for the recovery of Sanctuary resources from
degradation or other injury attributable to human uses; ``restoration
areas'' to provide for restoration of degraded or otherwise injured
Sanctuary resources; ``research-only areas'' to provide for scientific
research or education relating to protection and management, through
the issuance of a Sanctuary General permit for research; or
``facilitated use areas'' to provide for the prevention of use or user
conflicts or the facilitation of access and use, or to promote public
use and understanding, of Sanctuary resources through the issuance of
special-use permits, as appropriate, and impose access and use
restrictions to
[[Page 4583]]
protect the Sanctuary resources and qualities and allow for multiple,
compatible uses within the Sanctuary. Special-use Areas must be no
larger than the size the Director deems reasonably necessary to
accomplish the applicable objective. Appendix VI sets forth the
boundaries of the four Special-use Areas established by the final
regulations. All four of these areas are ``research-only areas''.
Persons conducting activities within any Special-use Area are
required to comply with the access and use restrictions specified in
Sec. 922.164(e)(3) and made applicable to such area by means of its
designation as a ``recovery area,'' ``restoration area,'' ``research-
only area,'' or ``facilitated-use area.'' Except for passage without
interruption through the area or for law enforcement purposes, no
person may enter a Special-use Area except to conduct or cause to be
conducted the following activities: (i) In such area designated as a
``recovery area'' or a ``restoration area'', habitat manipulation
related to restoration of degraded or otherwise injured Sanctuary
resources, or activities reasonably necessary to monitor recovery of
degraded or otherwise injured Sanctuary resources; (ii) in such area
designated as a ``research only area'', scientific research or
educational use specifically authorized by and conducted in accordance
with the scope, purpose, terms and conditions of a valid National
Marine Sanctuary General or Historical Resources permit; or (iii) in
such area designated as a ``facilitated-use area'', activities
specified by the Director or specifically authorized by and conducted
in accordance with the scope, purpose, terms, and conditions of a valid
Special-use permit.
The Director may modify the number of, location of, or designations
applicable to, Special-use Areas by publishing in the Federal Register,
after notice and an opportunity for public comment in accordance with
the Administrative Procedure Act, an amendment to Appendix VI, except
that, with respect to such areas designated as a ``recovery area,''
``restoration area,'' or ``research only area,'' the Director may
modify the number of, location of, or designation applicable to, such
areas by publishing a notice of such action in the Federal Register if
the Director determines that immediate action is reasonably necessary
to: (1) Prevent significant injury to Sanctuary resources where
circumstances create an imminent risk to such resources; (2) initiate
restoration activity where a delay in time would significantly impair
the ability of such restoration activity to succeed; or (3) initiate
research activity where an unforeseen natural event produces an
opportunity for scientific research that may be lost if research is not
initiated immediately. If the Director determines that a notice of
modification must be promulgated immediately, the Director must, as
part of the same notice, invite public comment and specify that
comments will be received for 15 days after the effective date of the
notice. As soon as practicable after the end of the comment period, the
Director must either rescind, modify or allow the modification to
remain unchanged through notice in the Federal Register.
Section 922.165 provides that where necessary to prevent, minimize,
or minimize the imminent risk of destruction of, loss of, or injury to
a Sanctuary resource, any and all activities are subject to immediate
temporary regulation, including prohibition. Any such temporary
regulation may be in effect for up to 60 days with one 60-day
extension. Additional or extended action is subject to the provisions
of the Administrative Procedure Act.
Section 922.45 sets forth the maximum civil penalty for violating
the NMSA or FKNMSPA, the regulations or any permit issued pursuant
thereto--$100,000. Each day of a continuing violation constitutes a
separate violation. Regulations setting forth the procedures for civil
penalties, permit sanctions, use of written warnings and release or
forfeiture of seized property appear at 15 CFR part 904.
Section 922.46 repeats the provision in section 312 of the NMSA
that any person who destroys, causes the loss of, or injures any
Sanctuary resource is liable to the United States for response costs,
damages and interest 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, damages and interest resulting from destruction, loss or injury.
The purpose of Secs. 922.45 and 922.46 is to further notify the
public of the liability for violating a Sanctuary regulation, permit
issued pursuant thereto, or the NMSA, or for causing the destruction,
loss of, or injury to Sanctuary resources.
Section 922.166(a) sets forth the procedures for applying for a
National Marine Sanctuary General Permit to conduct a prohibited
activity and the criteria governing the issuance, denial, amendment,
suspension and revocation of such permits. A General Permit may be
issued by the Director or designee if he or she finds that the activity
will: Further research or monitoring 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; or otherwise further Sanctuary
purposes, including facilitating multiple use of the Sanctuary, to the
extent compatible with the primary objective of resource protection.
The Director cannot issue a General Permit without finding that: The
applicant has the professional qualifications and financial resources
to conduct and complete the activity; the duration of the activity is
no longer than necessary and the methods and procedures are appropriate
to achieve the stated purpose; the activity will be conducted in a
manner compatible with the primary objective of protection of Sanctuary
resources and qualities; it is necessary to conduct the activity within
the Sanctuary to achieve its purposes; the reasonably expected end
value of the activity will further Sanctuary goals and purposes and
outweighs any potential adverse impacts of the activity on Sanctuary
resources. For activities proposed to be conducted within an Existing
Management Area, a Wildlife Management Area, an Ecological Reserve, a
Sanctuary Preservation Area, or a Special-use Area, the Director cannot
issue a Permit unless he or she also finds that such activities will
further and are consistent with the purposes for which such area was
established.
Section 922.166(b) sets forth the application procedures and
issuance criteria for National Marine Sanctuary Survey/Inventory of
Historical Resources Permits. Such permits are not required if such
survey/inventory activity does not involve any activity prohibited by
Secs. 922.163 or 922.164. If a survey/inventory activity will involve
test excavations or removal of artifacts or materials for evaluative
purposes, a Survey/Inventory of Historical Resources Permit is
required. A Survey/Inventory permit may be issued if the activity will
be non-intrusive, not include any excavation, removal, or recovery of
historical resources and not result in destruction of, loss of or
injury to Sanctuary resources or qualities. Such permit may also be
issued if the activities are intrusive but will involve no more than
the minimum manual alteration of the seabed and/or the removal of
artifacts or other material necessary for evaluative purposes and
[[Page 4584]]
will cause no significant adverse impacts on Sanctuary resources or
qualities. Such permit must be determined to be in the public interest
and be consistent with the Programmatic Agreement Among NOAA, the
Advisory Council on Historic Preservation, and the State of Florida on
Submerged Cultural Resources (hereinafter SCR Agreement).
Pursuant to Sec. 922.166(c), a National Marine Sanctuary Research/
Recovery of Sanctuary Historical Resources Permit may be issued for a
person to conduct any activity prohibited by Secs. 922.163 or 922.164
involving the research/recovery of Sanctuary historical resources. Such
research/recovery of resources must be determined to be in the public
interest as described in these regulations and the SCR agreement.
Intrusive research and/or recovery may destroy the resources and
therefore the consideration of such permits will be based upon a
balancing of factors and criteria to determine whether the goals of
preservation, research, education, and public access are better served
by permitting this type of activity as opposed to leaving the historic
resources in place.
Pursuant to Sec. 922.166(d) (1) and (2), National Marine Sanctuary
Special-use permits may be issued to conduct a commercial or
concession-type activity prohibited by Secs. 922.163 or 922.164. Such
permits may be issued to establish conditions of access to and use of
any Sanctuary resource, or promote public use and understanding of any
Sanctuary resources. No permit may be issued unless the proposed
activity is compatible with the purposes for which the Sanctuary was
designated and can be conducted in a manner that does not destroy,
cause the loss of, or injure and Sanctuary resource; and for the
deaccession-transfer of Sanctuary Historical Resources, unless the
activity will be conducted in accordance with all requirements of the
SCR Agreement.
Section 922.166(d)(3) allows the Director to assess and collect
fees for the conduct of any activity authorized by a Special-use permit
issued pursuant to this section. No Special-use permit can be effective
until all assessed fees are paid. This section also provides the
criteria for determining the appropriate costs and fees.
Section 922.166(e) specifies the information which must be
submitted when applying for a permit and the address for submissions
and for submitting supplementary information.
Section 922.166(f) states that a permit may be issued for a period
not exceeding five years. Renewals must follow the same procedures as
those for applying for a new permit. All permits will be reviewed
annually to determine the permittee's compliance.
Section 922.166(g) states that the Director may amend, suspend, or
revoke a permit for good cause. Further, the Director may deny a permit
if the permittee or applicant has acted in violation of a previous
permit, or for other good cause. Procedures governing permit sanctions
and denials for enforcement reasons are set forth in subpart D of 15
CFR part 904.
Pursuant to Sec. 922.166(h), the applicant for or holder of a
Sanctuary permit may appeal the denial conditioning, amendment,
suspension or revocation of a permit pursuant to the procedures set
forth in Sec. 922.50.
Pursuant to Sec. 922.166(i), a permit issued other than a Special-
use permit is nontransferable. Special-use permits may be transferred,
sold, or assigned with the written approval of the Director as
described in this section.
Section 922.166(j) requires that permits (or a copy thereof) issued
pursuant to these regulations must be maintained in legible condition
on board all vessels or aircraft used in the conduct of the permitted
activity.
Pursuant to Sec. 922.166(k), any permit issued pursuant to this
section is subject to the following terms and conditions: all permitted
activities will be conducted in a manner that does not destroy, cause
the loss of, or injury Sanctuary resources or qualities, except as
specifically authorized; the permittee agrees to hold the United States
harmless against any claims arising from permitted activities; all
necessary Federal, State and local permits from all agencies with
jurisdiction over the proposed activities shall be secured before
commencing field operations.
Pursuant to Sec. 922.166(l), in addition to Sec. 922.166(k), the
permits for research/recovery of historical resources require that a
professional archaeologist be in charge of the research-recovery
planning, field recovery operations, and research analysis; an
agreement with a conservation laboratory shall be in place before field
recovery operations begin; an approved nautical conservator shall be in
charge of conservation activities; and a curation agreement with a
museum or facility shall be in place before commencing field operations
which addresses the curation, public access, display and maintenance of
the recovered historical resources. Deaccession/transfer of historical
resources require a Special-use permit pursuant to paragraph (d). Such
Special-use permits must also be executed in accordance with the
requirements of the SCR Agreement.
In addition to the paragraphs above, Sec. 922.166(m) stipulates
that any permit issued pursuant to this section is subject to such
other terms and conditions as the Director deems necessary for the
purposes for which the Sanctuary is designated, including but not
limited to: Any data or information obtained under the permit shall be
made available to the public; a NOAA official shall be allowed to
observe any activity conducted under the permit, the permittee shall
submit one or more reports on the status, progress or results of
activity authorized under the permit; the permittee shall submit an
annual report; the permittee shall purchase and maintain general
liability insurance or other acceptable security against potential
claims for loss.
Section 922.167 sets forth procedures for requesting certification
of preexisting leases, licenses, permits, approvals, other
authorizations or rights to conduct a prohibited activity in existence
on the effective date of these regulations authorizing the conduct of
an otherwise prohibited activity. The holder of such authorization must
notify the Director within 90 days of the effective date of these
regulations of the existence of such authorization and request
certification of such authorization; the holder must comply with other
provisions of this section and must comply with any terms and
conditions on the exercise of such authorization by the Director to
achieve the purposes for which the Sanctuary was designated. The permit
holder may continue the authorized activity without being in violation
of these regulations pending final agency action on his or her
certification request. Requests for findings or certifications must be
addressed to the FKNMS office in Marathon, Florida. The Director may
request additional information from the certification requester as is
deemed necessary to determine if the activity is consistent with the
purposes for which the Sanctuary was designated. This section also
provides the appeal process for any action conditioning, amending,
suspending, or revoking certifications. Any amendment, renewal or
extension made after the effective date of this regulation is subject
to the provisions of Sec. 922.168.
Section 922.49 addresses notification and review of applications
for leases, licenses, permits, approvals or other authorizations to
conduct a prohibited activity in the FKNMS. A person may conduct an
activity prohibited by these regulations if such activity is authorized
by any valid Federal, State or local lease, permit, license, approval,
or other authority after the effective date of these
[[Page 4585]]
regulations provided that the applicant notifies the Director in
writing within 15 days of filing the application or the effective date
of these regulations, whichever is later; the applicant complies with
the other provisions of this section; the Director notifies the
applicant and authorizing agency that he or she does not object to the
issuance of the authorization; and the applicant complies with any
terms and conditions the Director deems reasonably necessary to protect
Sanctuary resources and qualities.
Pursuant to paragraph (b), any potential applicant for an
authorization described in this part may request the Director to issue
a finding as to whether the activity is prohibited by Secs. 922.163 or
922.164. Paragraph (c) provides that applications be mailed to the
address found, in the case of the FKNMS, in subpart P. Paragraph (d)
authorizes for the Director to request additional information as
necessary for the applicant to enable a determination whether to object
to issuance of an authorization described in paragraph (a) above.
Paragraph (e) requires the Director to notify the agency to which the
application was made 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.
Paragraphs (f) and (g) provide the administrative ability for the
Director to amend the terms and conditions necessary to protect
Sanctuary resources and qualities whenever additional information
becomes available and extend any time limit for good cause. Paragraph
(h) specifies that an applicant may appeal any objection by, or terms
or conditions imposed by, the Director to the Assistant Administrator
or designee in accordance with the provisions of Sec. 922.50.
Section 922.50 sets forth the appeals process for administrative
actions related to the issuance for permits except for enforcement
actions.
Major Issues Addressed in Comments and NOAA's Responses
On March 30, 1995 NOAA published a proposed Designation Document
and proposed implementing regulations and announced the availability of
the draft management plan and environmental impact statement (DMP/EIS)
(60 FR 16399). Public hearings to receive comments on the proposed
regulations, and the DMP/EIS were held on November 1 in Miami; November
3 in Key Largo; November 6 in Marathon; November 7 in Key West;
November 9 in St. Petersburg; and November 14 in Silver Spring, MD.
The nine month public review period ending on December 31, 1995,
resulted in NOAA receiving over 6,400 statements of public comment on
the DMP/EIS. In addition, the Sanctuary Advisory Council (SAC) provided
NOAA with its comments on the plan. All comments received on the DMP/
EIS were recorded in a computerized database and assigned a unique
comment identification number. These records consist of the reviewer's
name; company, organization, or agency; address; a synopsis of the
comment; and NOAA's response. Details of this public review process are
provided in the general introduction to Volume I of the final
management plan and environmental impact statement (FMP/EIS).
Comments were received about many aspects of the management plan
and EIS, however, a majority of the comments focused on a limited
number of issues. Comments were received from diverse groups and
individuals, including private businesses and organizations, elected
officials, the SAC and representatives of Federal, State, and county
agencies.
NOAA received a number of specific comments on the DMP/EIS,
including recommendations on strategies, activities, and priority
levels. Some comments were specific enough to cite page numbers and
recommended language revisions. NOAA appreciates the level of public
comment and has revised the document based on a balance of these
comments in light of the requirements of the NMSA, FKNMSPA, NEPA, and
other applicable laws. Consistent with the requirements of NEPA and the
Administrative Procedure Act (APA), this section discusses the
significant issues and substantive concerns that the commentors have
brought to NOAA's attention.
All comments received by NOAA in response to the Federal Register
notices and public hearings were considered and, where appropriate,
were incorporated. A summary of the significant comments on the
proposed regulations and DMP/EIS and NOAA's responses is set forth
below. The comments are also presented and responded to in the
administrative record.
The Need for the Florida Keys National Marine Sanctuary
Comment: There is no need for a Sanctuary.
Response: NOAA disagrees. In 1990, Congress enacted the FKNMSPA in
recognition of the need to provide comprehensive protection and
management of the diverse marine environments of the Florida Keys.
These environments possess important and unique living and non-living
resources, including seagrass meadows, mangrove islands, and extensive
living coral reefs. These habitats support rich biological communities,
possessing extensive conservation, recreational, commercial,
ecological, historical, research, educational, and aesthetic values
which give the area special national significance. Congress found these
environments to be the marine equivalent of tropical rain forests in
that they support a rich level of biological diversity, are fragile and
easily susceptible to damage from human activities, and possess high
value to human beings if properly conserved. To this end, the Act
expressly prohibits oil drilling within the Sanctuary and prevents tank
vessels or ships greater than 50 meters in length from entering the
Area to be Avoided within the Sanctuary boundary.
Past resource management efforts in the Florida Keys have only
focused on small portions of the coral reef ecosystem in a checkerboard
fashion. These efforts have not taken a holistic approach to protecting
the marine environment of the Florida Keys and as a consequence, the
coral reef resources have declined steadily over the past two decades.
Piecemeal management of the marine resources of the Florida Keys,
especially the coral reefs, seagrass communities, hardbottom habitats,
and mangrove fringed shorelines, combined with a continued decline in
the quality of the water that flows over these habitats, has resulted
in a threat to the stability of the marine environment in the Keys.
Consequently, since the economy of the Florida Keys is so closely
linked to a healthy marine environment, the status quo approach to
managing the marine resources of the Keys could result in an economic
collapse in the near future.
The Act directed NOAA to develop a comprehensive management plan
and implementing regulations for the Sanctuary in consultation with
appropriate Federal, State and local governments and with the SAC.
Pursuant to this mandate, NOAA developed a comprehensive management
plan and regulations to protect and manage the living and non-living
resources of the Sanctuary. Regulations were developed to protect
Sanctuary resources and minimize conflicts among the various users of
those resources. For example, establishing zones with special
restrictions to protect habitat in those zones and prohibiting
potentially
[[Page 4586]]
harmful activities such as prop dredging and prop scarring throughout
the Sanctuary are effective management tools. Regulations supplement,
but do not duplicate, existing management authorities with jurisdiction
in the Sanctuary.
The FKNMS will provide a comprehensive and coordinated regime to
protect, manage and conserve the nationally significant resources of
the Florida Keys so they may be enjoyed by both present and future
generations.
The Need for Management of the Sanctuary
Comment: Many commentors asserted that the Sanctuary will add
another costly layer of bureaucracy, while others commented on the
benefits of integration and the role the FKNMS has played in
interagency planning.
Response: The Sanctuary is not an extra layer of bureaucracy and
there are many ways in which the National Marine Sanctuary Program will
improve management of the Keys' marine resources. National Marine
Sanctuaries are designated to protect marine resources that are unique
and possess high national significance. Boundaries of National Marine
Sanctuaries only extend to the mean-high tide mark and do not include
land above that mark. The concept of a National Marine Sanctuary as a
``place'' seems to be overlooked by some of the public. The Sanctuary
is not a thing or an ``extra layer of bureaucracy'; and it is not a
collection of agencies, environmental groups, or user groups, it is a
very special place, deserving of protection for the use and enjoyment
of present and future generations. The waters and marine resources
surrounding the Keys are unlike any other on earth and they need and
deserve our immediate attention. We will lose our coral reefs if the
declines we've witnessed over the past two decades continue.
Congress, through the FKNMSPA, designated the Sanctuary, drew a
line around the Keys and declared to the world that the marine
resources of the Keys are special and unique. The Act also delegated to
NOAA, an agency with experience in managing marine protected areas
where the economy is highly dependent on healthy marine resources, the
responsibility to manage the Sanctuary and make the Sanctuary part of a
national program internationally known for its ability to manage marine
resources for multiple uses, both recreational and commercial; a
program that emphasizes an educational approach to management. The
FKNMSPA also places an important safeguard on the agency: ``Nothing in
this Act is intended to restrict activities that do not cause an
adverse effect to the resources or property of the Sanctuary or that do
not pose harm to users of the Sanctuary.''
The National Marine Sanctuary Program is not new to the Florida
Keys. The program has had a very successful 20 year history in the
Keys, protecting some of the most popular coral reef dive sites in the
world. The Key Largo National Marine Sanctuary, designated in 1975,
protects all the coral reefs along a 20 mile stretch in the upper Keys.
The relationship of the Sanctuary with the business community has been
excellent. The Key Largo Chamber of Commerce continues to be a
tremendous supporter of the Sanctuary where divers, dive operators,
recreational and charter fishermen, and commercial fishermen continue
to work and play.
Looe Key National Marine Sanctuary was designated in 1981,
following a lengthy designation process where local businesses, divers,
and commercial fishermen in the vicinity of Big Pine Key reacted in
opposition. Rumors, misinformation, and a basic misunderstanding of
what a ``National Marine Sanctuary'' actually is, were the fuels that
fired lengthy debates. Shortly after Looe Key became operational and
management measures were implemented, many of the fears such as
commercial fishermen being ``put out of business'' disappeared. A good
working relationship was established with the regular users of the Looe
Key Sanctuary and businesses dependent on a healthy coral reef
continued to flourish. As a result of good management, in 1985, a
travel writer for the Miami Herald declared Looe Key as one of the top
ten dive destinations in the world.
During the past 15 years the Looe Key and Key Largo National Marine
Sanctuaries have been used as models for managing marine protected
areas, both domestically and internationally. This reputation was well
known to the authors of the FKNMSPA that was passed to designate the
Sanctuary.
The National Marine Sanctuary Program protects and manages
Sanctuary resources for their continued use by present and future
generations. A goal of National Marine Sanctuaries is to facilitate
compatible use of marine resources by businesses that are economically
dependent upon them, to the extent those uses are compatible with the
primary objective of resource protection. This is the first step toward
sustainability of this marine area for present and future generations.
The Key Largo and Looe Key National Marine Sanctuaries make up
about 23 linear miles of the 220 mile long coral reef tract along the
Florida Keys. The designation of the FKNMS provides resource protection
to the remaining 197 miles of coral reef and marine ecosystem that were
not previously protected. This is not an extra layer of bureaucracy
because prior to the Sanctuary's designation little comprehensive
resource protection management existed.
National Marine Sanctuaries are known for their integrated
comprehensive management through establishing partnerships. In Florida,
the Sanctuary Program started ``reinventing government'' in 1980, by
establishing a cooperative agreement with the State of Florida,
Department of Natural Resources, for the management of the Key Largo
National Marine Sanctuary and later, the Looe Key National Marine
Sanctuary. These were areas located entirely in Federal waters, but
managed by State staff, through 100 percent Federal (NOAA) funding.
Today, more than half of the Sanctuary staff are State employees paid
entirely by Federal funds, including the education staff, Sanctuary
officers, and the lower Florida Keys' administration.
The concept of interagency partnerships has been expanded in the
management plan for the FKNMS. Dozens of representatives from local,
State, and Federal agencies came to the table to assist in the
development of the most comprehensive management plan ever attempted in
a marine protected area. They also assisted in the development of the
National Marine Sanctuary Program's first water quality protection
plan. As a special place, the Keys are deserving of the best kind of
management that could be afforded.
There are many agencies involved in various management activities
in the Keys. However, these activities have not been integrated in the
past, and consequently there has not been a holistic approach to
managing the fragile marine resources of the Keys. The potential
benefits of integrated management of marine resources are numerous
including better protection of the marine resources, savings to tax
payers by agencies sharing resources, less duplication of efforts,
opportunities for increased interagency coordination, and the list goes
on.
The regulations do not usurp the authority or jurisdiction within
the Sanctuary boundary of other agencies to impose regulations more
protective of Sanctuary resources than the Sanctuary regulations. The
State will continue to have that authority in State waters and other
Federal laws, such as the Magnuson-Stevens Fisheries Conservation and
Management Act, will
[[Page 4587]]
continue to apply. However, other agencies cannot authorize a violation
of Sanctuary regulations, just as the Sanctuary cannot authorize a
violation of State or Federal agency regulations.
The FKNMSPA prohibits oil, gas and mineral development within the
Sanctuary and prohibits tank vessels or ships greater than 50 meters in
length from entering the Area to be Avoided within the Sanctuary
boundary. No other management program provides this level of
comprehensive protection to the marine resources (e.g., seagrasses,
hard bottoms, and coral reefs) of the Florida Keys, or provides the
legislative mandate and authority to holistically manage and protect
all of the marine communities as an ecosystem. This is a charge given
specifically to NOAA and is not redundant of other management programs,
nor is it an extra layer of bureaucracy.
Furthermore, NOAA has developed regulations that complement, rather
than duplicate, existing authorities. In some cases, NOAA regulations
supplement and fill gaps in existing authorities. To this end, NOAA has
integrated its planning efforts with the Federal, State, and local
agencies in the Florida Keys. This will improve management coordination
between the agencies and will lessen the amount of agency overlap in
key management areas such as education, research, enforcement, damage
assessment, and emergency response. Through integrated planning and
implementation, the FKNMS will, at a minimum, streamline the use of
public funds and programs to achieve resource protection. This will
improve coordination between the various agencies responsible for
management of the marine environment in the Sanctuary. Increased agency
coordination will benefit Sanctuary resources and the public's use of
those resources.
Coordination of Fisheries Management
Comment: The fisheries protocol should not be implemented because
it will add another layer of regulations.
Response: NOAA disagrees. The existing fisheries management
authorities will continue to manage fisheries under State law, the
Magnuson Act, and other Federal law. However, there are three separate
sets of fisheries regulations within the boundary of the Sanctuary and
coordination of the fishing regulations within the Sanctuary was
identified as a goal early in the scoping process. Under the current
system, there is confusion in the fishing community which leads to less
compliance by the public as they may not understand which regulations
apply to a specific geographical area. Uniform regulations would make
it easier for the fisherman to comply with the rules and for the
agencies to enforce them. This management action will have a positive
result on fisheries management by State and Federal agencies. The net
result will be beneficial to Sanctuary resources and to the public.
Under the protocol, the existing authorities may accomplish this goal
under Sanctuary regulations or their own respective authorities. The
existing fishery management authorities and NOAA may agree to develop
uniform fishing regulations, but they can only be implemented as
Sanctuary regulations if there is consensus. The establishment of a
consistent set of fishing regulations for the Sanctuary will not result
in a fourth set of regulations.
Funding
Comment: There were a variety of comments on the topic of funding
of the FKNMS. Some commentors suggested the Sanctuary should be given
the necessary funding to implement the management plan and its goals.
Other commentors stated NOAA will never have adequate funding to
implement all of the programs outlined in the management plan, implying
that NOAA could never comprehensively manage the entire Sanctuary.
Others suggested that the funding for the Sanctuary be totally directed
at solving water quality issues before implementing any other
management programs. Suggestions were made that Florida Tourist
Development Council (TDC) ``bed tax'' funds be used for managing
Sanctuary activities.
Response: Clearly, implementation of all the programs contained in
the management plan would require more funding than the Sanctuary can
anticipate presently, or in the near future. However, the management
plan is comprehensive and includes suggested actions for the near and
long terms. The plan offers a wide variety of management options to
address various and diverse management problems in order to give
Sanctuary managers the ability to select the most cost effective
management tools to address immediate and future problems. It is not
NOAA's intent to request funding for immediate implementation of all
the management programs outlined in the management plan, but rather use
it as a guide for immediate and future plans of action, including the
effective use of human and financial resources.
Additionally, the human and financial resource costs for
implementing the action plans established to focus Sanctuary management
efforts will be shared among the participating Federal, State, and
local agencies responsible for various activities. For example, Monroe
County receives Boating Improvement Fund allocations that are designed
to enhance boating and have specifically been applied to channel/reef
marking needs in the Sanctuary. Further, Sanctuary volunteers perform
tasks that benefit the goals at a substantial savings to the program.
Finally, in addition to annual appropriations, the Sanctuary has the
statutory authority to receive donations to support programs. These
funds could be received from foundations, non-profit organizations, the
Sanctuary Friends organization and others.
NOAA disagrees that all funding should only be used to address
water quality or any other single issue within the Sanctuary. Congress,
through the FKNMSPA, directed the Secretary of Commerce to develop a
comprehensive plan to manage the Sanctuary and gave specific directions
as to what should be considered in the development of the plan. Many of
the impacts affecting the health of the coral reef community arise from
direct, physical injuries that can be lessened with the implementation
of the comprehensive management plan. Additionally, the FKNMSPA
requires that EPA, along with the State and NOAA, address Sanctuary
water quality issues. Many of these management actions will take years
to implement and their positive results will not be realized for some
years into the future. By implementing the comprehensive management
plan, the FKNMS will be able to address some of the immediate threats
confronting the coral reef community as a result of direct human
activity.
The State of Florida determines the use of Florida TDC funding (bed
tax) for management activities.
User Fees
Comment: Some reviewers raised concern regarding the concept of
user fees to fund various programs within the Sanctuary. While some
commentors were supportive of the concept, the majority of commentors
were against funding Sanctuary management through user fees. A small
number of reviewers raised concern that the concept was still contained
in the draft plan following a highly publicized workshop on user fees
to fund the management of National Marine Sanctuaries where NOAA
publicly announced it was not pursuing obtaining the general
legislative authority to charge ``user fees'' to manage Sanctuaries.
[[Page 4588]]
Response: NOAA acknowledges that the concept of charging user fees
to fund Sanctuary management is not popular, particularly among user
groups. The strategy (B.8) for charging user fees to fund the
management of the FKNMS has been dropped from the action plans in the
FMP/EIS. There are no regulations authorizing the collection of user
fees for general access to, or use of, the Sanctuary.
The process used to develop the draft management plan allowed all
suggestions to be considered for the draft plan. The concept of user
fees was suggested by some during the planning process and remained in
the draft plan following the ``user fee workshop'' because of the
process used to develop the draft plan. Considering that some were in
favor of ``user fees,'' NOAA felt it was necessary to get public
comment on the concept in the draft plan.
Many innovative sources of alternative funding have been identified
by the public in the workshop and otherwise. NOAA will work with the
SAC to explore some of these options.
Ecosystem-Based Approach
Comment: There were conflicting comments on what NOAA's role should
be in managing Sanctuary resources. Some recognized that NOAA has done
a good job of managing the coral reefs within the Key Largo and Looe
Key National Marine Sanctuaries and suggested that NOAA should focus
its management on the coral reef tract. Some of these same reviewers
pointed out that the primary cause of water quality decline in the
Florida Keys was originating from water management and water quality
problems in mainland South Florida and the resultant decline in water
quality in Florida Bay. In some instances, the Federal Government was
blamed for the cause of water quality decline in south Florida. Some
reviewers stated NOAA could not have any influence on the water quality
problems that were originating outside the boundary of the Sanctuary.
Other reviewers pointed to the decline of water quality in the
near-shore waters of the Florida Keys as a result of improper waste
water treatment facilities and poor management of storm water runoff
and that NOAA should focus its management on these water quality
problems.
Other reviewers recognized the importance of NOAA's role in
ecosystem management and the significance of the authority that the
FKNMS has to address water quality issues that originate both within
its boundary, as well as those problems that originate outside and
upstream of the Sanctuary. These reviewers were supportive of NOAA's
active role in the South Florida Ecosystem Restoration Task Force and
the Governor's Commission for a Sustainable South Florida.
Response: In light of its experience of the resource protection
accomplished at Key Largo and Looe Key National Marine Sanctuaries, its
role in ecosystem management in South Florida, and directions under the
NMSA and the FKNMSPA, NOAA will continue to take an ecosystem based
management approach in this Sanctuary.
The FKNMSPA directed the Federal Government and the State of
Florida to develop a comprehensive program to reduce pollution in the
waters offshore the Florida Keys to protect and restore the water
quality, coral reefs, and other living marine resources of the Florida
Keys environment. The FKNMSPA and NMSA direct NOAA's development of a
comprehensive ecosystem management plan rather than one based solely on
the coral reef tract. In order to be successful, Sanctuary managers
must be able to address impacts that occur across the range of habitats
that comprise the coral reef community in an ecosystem-based management
approach. This is especially important in addressing issues that
influence the quality of the water that affects the marine communities
of the Sanctuary. Between 1982 and 1989, NOAA sponsored research
projects that helped characterize the movement of water in and around
the two existing Sanctuaries. The studies concluded that a portion of
the water that influences the coral reef flows from Florida Bay and the
Keys, before it mixes with water from the Florida Current in the
vicinity of the reef tract. Scientists agree that the sources of the
decline in water quality that influence the health of the coral reef
resources originate upstream of the reef tract, in the direction of the
Keys and Florida Bay. No matter how intensely NOAA manages activities
on the coral reef, the health of the corals will continue to decline
until the sources of the water quality decline upstream are addressed
in a comprehensive manner.
The designation of the FKNMS gave NOAA a role in the development
and the implementation of a water quality protection program with EPA
and the State. Sanctuary legislation directed EPA, the State and NOAA
to look beyond the boundary of the Sanctuary toward the problems
occurring upstream. The designation also gave NOAA the ability to
manage in a holistic manner, all of the marine communities that are
important to maintaining the biodiversity of the Sanctuary. This was
the first step toward ecosystem management, the ability to manage all
the marine communities of the coral reef component of the south Florida
ecosystem.
NOAA disagrees with comments that it cannot influence, or does not
have a role in addressing, the water quality problems originating
outside the boundary of the Sanctuary, in Florida Bay, and mainland
South Florida. The designation of the FKNMS has given NOAA a prominent
role in the South Florida Ecosystem Restoration Task Force whose
objectives include the restoration of clean water flows into Florida
Bay. NOAA is currently funding approximately 40 percent of the research
projects in Florida Bay and the South Florida ecosystem restoration
effort. These efforts will result in a positive influence on water
quality before it enters the Sanctuary. NOAA leadership has recognized
the importance of supporting the efforts of the South Florida Ecosystem
Restoration Task Force in order to be successful in the management of
the Sanctuary.
The most prominent role for the Florida Keys in the south Florida
ecosystem restoration effort has been through the representation of the
Sanctuary on the Task Force and the roles of EPA and the State in the
Water Quality Protection Program as it is represented on the Task
Force. Without the efforts of these agencies on behalf of the FKNMS,
the Florida Keys coral reef communities would not be represented on the
South Florida Ecosystem Restoration Task Force. Thus, the Sanctuary
clearly has a role in influencing the impacts of water quality
originating outside its boundary.
Concerns over the demise of Florida Bay have been the topic of
debate for at least a decade prior to the designation of the FKNMS. At
the first SAC meeting in February 1992, members of the SAC familiar
with problems in Florida Bay raised the issue of water quality decline
in that area. Commercial fishermen and flats guides shared their
observations of decline in Florida Bay water quality. In addition, the
Water Quality Protection Program for the Sanctuary recognized that some
of the sources of the water quality problems affecting the coral reef
were originating upstream of the Florida Keys and Florida Bay. In just
over a year, all of the agencies responsible for managing components of
the South Florida region had signed an interagency agreement directed
at restoring the South Florida ecosystem.
[[Page 4589]]
The agencies had agreed that the ecosystem begins in the Kissimmee
River basin and includes Lake Okeechobee, the Everglades Agricultural
Area, the Everglades, Florida Bay, through the Keys, and all the way to
the coral reef tract. This was the first time the scope and dimension
of the ecosystem had been defined at this scale. It is with this vision
that ecosystem management must be implemented in the Sanctuary. The
proper water quality and hydrological and ecological linkages
throughout the ecosystem must be re-established in order to reverse
declines on the coral reef. Each of the agencies responsible for
management of components of the ecosystem must work to improve the
quality of water in their segment of the ecosystem, while working with
other members of the restoration task force to improve the entire
ecosystem functions.
Accountability and Power of NOAA
Comment: Some commentors were concerned about the powers of NOAA in
general, and some were particularly concerned about the powers of the
Director because decisions affecting user groups would be made by
authorities in Washington headquarters, as opposed to locally. Some
commentors indicated that NOAA should be held accountable for its
management actions.
Response: NOAA notes that under various laws and the management
plan itself, the powers of other Federal and State authorities remains
intact. Moreover, there are a number of checks and balances whereby
NOAA is held accountable for their management actions. The Congress
holds NOAA accountable through its review of individual Sanctuary
management plans and periodic reviews of the National Marine Sanctuary
Program. There are also numerous Federal statutes which ensure the
accountability of Federal programs, including the Administrative
Procedure Act. For example, with the exception of emergency
regulations, all substantive changes to Sanctuary regulations will
require prior notice and opportunity for public comment before they
become effective. In this Sanctuary, the State of Florida, as a
management partner, will continue to be a check on NOAA's authority,
including the application of Sanctuary regulations in State waters. The
EPA and the State of Florida will continue to have the lead in
addressing the Water Quality issues that affect the Sanctuary.
To user groups, perhaps the most important check on NOAA's
accountability may be SAC. The SAC is comprised of members representing
the various Sanctuary user groups (commercial fishermen, charter boat
operators, tourism industry, scientific and educational organizations,
and conservation groups, etc.). Consistent with the FKNMSPA, the SAC
provides NOAA with advice and recommendations on the management plan
and its implementation, including resource protection, research,
monitoring, education, outreach and other general policy issues related
to Sanctuary management. The SAC is also a forum to enhance
communication and cooperation between the public, user groups, the
Federal/State and local agencies, and non-governmental entities in
furtherance of coordinated, efficient and effective management of the
Sanctuary. SAC meetings are open to the public and interested persons
are given the opportunity to present oral or written statements to the
Council.
Under the NMSA and the FKNMSPA, the Secretary of Commerce is
directed to develop a Sanctuary management plan and implement it. Under
Departmental Orders, this authority has been delegated to the Director
of NOAA's Office of Ocean and Coastal Resource Management. The
regulations were drafted accordingly. While the Director has in turn
delegated most of the day to day Sanctuary management decisions to
local Sanctuary managers with appropriate reservations, the regulations
were not changed and will continue to reflect the Departmental Orders.
The Director's responsibilities for the FKNMS are commensurate with
other sanctuaries.
Designation Document/Appendix K
Comment: Many reviewers expressed concern over the Scope of
Regulations contained in the draft Designation Document for the FKNMS
(Volume III, Appendix K). The concerns were primarily that the Scope of
Regulations was too broad. For example, they were surprised to see that
the Scope included airplane flights, dock construction, and a broad
range of other activities that seemed outside the authority of the
Sanctuary. Many feared that NOAA could easily regulate activities
within the Scope of Regulations in the future with little or no public
input. Some questioned the need for a designation document as the
Sanctuary was designated by statute. Many, including the SAC, urged
NOAA to eliminate the Scope of Regulations. However, some reviewers
expressed support of the broad Scope of Regulations and urged NOAA to
retain what was presented in the draft plan.
Response: The Designation Document is a charter or constitution for
the Sanctuary. The Scope of Regulations, which is part of the
Designation Document, sets forth the types of activities which may be
subject to future regulation. Consistent with the recommendations of
the SAC and other commentors, NOAA has reduced the Scope of Regulations
to more closely track the final regulations by eliminating certain
activities.
NOAA cannot issue regulations for activities listed in the Scope of
Regulations unless NOAA complies with the provisions of the
Administrative Procedure Act. These procedures require that the public
be given notice and the opportunity for comment. The courts are a check
against decisions that are arbitrary and capricious, the State must
approve regulations that apply to State waters, and Congress maintains
continual oversight.
Degradation of Environmental Resources
Comment: NOAA received many comments providing anecdotal
information concerning the state of the Florida Keys' marine
environment. These comments were personal observations of significant
changes in reef species assemblage, visibility of the water, and number
of fish. Comments were also received to the effect that even though all
people have a right to use the resources of the Keys, people do not use
the resources equally and therefore some regulation of behavior is
necessary.
Response: The Sanctuary was designated in recognition of the
observed declines in the health of the natural marine resources of the
Keys. The primary objective of the management plan is protection of
natural resources while facilitating private and public use that does
not compromise this objective. Thus, Sanctuary management will address
such issues as water quality and habitat protection through various
strategies and techniques ecosystem-wide in an effort to preserve or
restore the resources to a more natural state.
Support for Sanctuary and Management Plan
Comment: NOAA received many comments of support for the Sanctuary,
the management plan, and NOAA's history of protecting national marine
sanctuary resources.
Response: NOAA thanks all who commented on the Sanctuary, the draft
management plan, and proposed regulations regardless of whether in
support or in opposition. NOAA has had a long history of facilitating
all compatible public and private uses of its
[[Page 4590]]
National Marine Sanctuaries, including those off Florida. The Sanctuary
will continue to encourage public involvement, interagency cooperation,
and continuous management actions to achieve resource protection.
Limit the Sanctuary Boundary to the Reef Tract
Comment: Some reviewers recognized that NOAA has done a good job of
managing the coral reefs within the Key Largo and Looe Key National
Marine Sanctuaries but suggested that NOAA should only focus its
management on the coral reef tract.
Response: The FKNMSPA directed the Federal Government and the State
of Florida to jointly develop and implement a comprehensive program to
reduce pollution in the waters offshore the Florida Keys to protect and
restore water quality, coral reefs, and other living marine resources
of the Florida Keys' environment. The Act set forth the boundary as
well as the scale of protection necessary to effectively manage natural
and cultural resources in a holistic manner. Thus, NOAA strongly
disagrees that it should just focus its management on the coral reef
tract. In order to be successful, Sanctuary managers must be able to
address impacts that occur across the range of habitats that comprise
the coral reef community in an ecosystem-based management approach.
Allowed Activities
Comment: NOAA received comments requesting that the management plan
include a list of allowed activities, not only prohibitions. The SAC
discussed a bill of rights and ultimately recommended that there be a
list of activities that would be allowed in the Sanctuary.
Response: In response to these comments, NOAA has modified the
regulations at Sec. 922.42 to state that ``all activities (e.g.,
fishing, boating, diving, research, education) may be conducted unless
prohibited or otherwise regulated. * * *.'' The change is not intended
to provide a legal defense for actions against those who violate
Sanctuary regulations, but rather to clarify that such activities are
allowed to be conducted in the Sanctuary at present and will be allowed
in the future, subject to appropriate regulation. There are also
specific exemptions to certain prohibited activities to avoid or
minimize application to fishermen and other small entities.
Property Rights and Land-Use
Comment: Many comments were received questioning what authority the
Sanctuary will have over land use and property rights.
Response: The regulations were specifically modified to exempt
Monroe County land use permits. However, in general there have been no
conflicts over property rights because Sanctuary regulations are
directed at activities in the marine environment. They may apply to
activities that directly threaten or impact marine resources within the
Sanctuary, which are those lying below mean-high tide. Sanctuary
regulations do not take away rights of property owners or affect
activities that do not adversely affect Sanctuary resources.
Special-Use Permits
Comment: Some commented that the section on Special-use Permits
needs to be more specific.
Response: This regulatory section reflects the provisions of
section 310 of the NMSA regarding Special-use Permits. The National
Marine Sanctuary Program has had the authority to issue Special-use
Permits since 1988, but has only issued few such permits to date. While
the NMSA and its legislative history indicates that section 310 is
self-implementing and does not require implementing regulations, NOAA
has considered the comments and determined that additional information
and public input would be appropriate before the development of more
regulations with more specificity than is presently in section 310. To
the extent more specificity is needed, it should be done in guidelines
for the National Marine Sanctuary Program rather than for this
particular Sanctuary. In the interim, the Program will continue to work
with individual applicants and the public on Special-use Permits.
Coordination With Other Agencies/Conflict Resolution
Comment: Some commentors expressed the need for coordination
between agencies and a mechanism to resolve conflicts between agencies
and the public. Others suggested a mechanism be established that
provides an administrative appeals process consistent with the
Administrative Procedure Act.
Response: NOAA is establishing an Interagency Group to assist in
coordinating the implementation of the final management plan for the
FKNMS. Additionally, Appendix J contains a Co-trustees Agreement that
is accompanied by a series of draft protocols and memoranda of
agreements that will serve to outline the way the agencies will conduct
the management of the Sanctuary.
The administrative appeal process for Sanctuary management
decisions is set forth at Sec. 922.50. Agency decisions, including any
amendments to Sanctuary regulations, must be done in accordance with
the procedures and requirements of the Administrative Procedure Act.
Monroe County and/or the State Should Manage the Sanctuary
Comment: Some commentors suggested that the State of Florida or
Monroe County be charged with developing a management plan and managing
the resources of the Florida Keys.
Response: Under the FKNMSPA and the NMSA, NOAA is required to
develop and implement a Sanctuary management plan. However, the
Sanctuary planning process has included the State and county as
partners in the development of the comprehensive management plan. The
continuous management process, as described in Volume I of the FMP/EIS,
includes Federal, State and county agency managers in the continuous
management of the Sanctuary. This will help NOAA assure the integration
of management programs between the various agencies in a comprehensive
manner.
Socio-Economic Impacts
Comment: Some reviewers commented that NOAA did not provide a
thorough socio-economic analysis of its actions on commercial or
recreational fishing. NOAA also received comments that the Sanctuary
will negatively impact the economy of the Keys, as well as comments
that the Sanctuary is the only hope to sustain the Keys' tourist
economy which is heavily dependent on the presence of a healthy marine
environment.
Response: NOAA prepared a socio-economic assessment for the Draft
Management Plan and Environmental Impact Statement in compliance with
the NMSA and National Environmental Policy Act (NEPA). In response to
comments, NOAA has provided a more detailed explanation of the careful
balancing of environmental and socio-economic impacts in developing the
Preferred Alternative/Management Plan section of the Volume I. A more
thorough assessment of the socio-economic impacts on various user
groups from management alternatives is found in Volume III, Appendix M.
In an effort to maximize resource protection and minimize adverse
impacts on users, NOAA considered socio-economic impacts in developing
the draft management plan. Based on the public comments and reports
[[Page 4591]]
supplied by the fishing industry, NOAA has further detailed this
analysis in the final environmental impact statement and modified the
final management plan accordingly.
Personal Watercraft
Comment: NOAA received many comments from the public reminding NOAA
that personal watercraft owners and users act responsibly and
requesting that personal watercraft not be singled out and treated
differently from other vessels. NOAA also received comments noting
frequent environmental nuisance and safety issues associated with the
operation of personal watercraft. These included: reckless operating
behavior, harassment of endangered and other species, harassment of
other boaters (including disruption of fishing on flats), and noisy
operation in canals or adjacent to residential shorelines. These
commentors requested limiting, restricting or banning the use of
personal watercraft within the Sanctuary.
The SAC recommended that NOAA work with the industry, the SAC, and
the public to establish zones for the voluntary use of personal
watercraft in specified areas within one year after issuance of the
final management plan. The SAC also recommended that if these zones
were not voluntarily established within one year, then NOAA should ban
the use of personal watercraft throughout the Sanctuary. In addition,
the SAC recommended adding to the regulations a prohibition against
reckless operation of vessels. The SAC also recommended that the
proposed vessel operation regulation (proposed Sec. 929.5(a)(5)(iv)) be
modified to restrict vessels from operating at speeds greater than idle
speed only/no-wake in designated idle speed only/no-wake zones, and
modify the minimum distance requirements in the regulation.
The personal watercraft industry commented that there was no basis
to impose severe regulatory restrictions on the use of personal
watercraft, but generally supported the strategy of restricting all
motorized vessel use in certain buffer zones and establishing idle
speed only/no wake areas. The industry also strongly endorsed the
strategy of working with NOAA to educate recreational personal
watercraft users in the Sanctuary, and develop industry standards for
rental operations in the Sanctuary.
The State of Florida questioned whether distance restrictions
delineated in the buffer zones could be adequately enforced.
Response: NOAA has developed a multi-pronged approach to address
the public's concern about the use of personal watercraft. NOAA has
accepted the SAC's recommendation to add a new section to the final
regulations (Sec. 922.163(a)(v)) which prohibits reckless operation of
all watercraft. Additionally, proposed Sec. 922.163 (a)(5)(iii) has
been modified to prohibit operating a vessel at greater than idle speed
only/no wake (except in marked channels) in designated areas within 100
yards from residential shorelines, stationary vessels and navigational
aids marking emerging or shallow reefs. NOAA has also incorporated into
its regulations the authority to enforce all idle-speed only/no wake
areas throughout the Sanctuary. NOAA will use the existing county and
State process for designating these areas. NOAA accepts that the
industry is seriously committed to self regulation and will develop
successful educational efforts geared toward changing user behavior.
The final component of NOAA's approach is a modification of the SAC's
recommendation. NOAA will begin establishing broad zones with
restrictions on the use of personal watercraft (consistent with the SAC
recommendation) in one year only if these initial efforts are not
successful at significantly reducing or eliminating the nuisance and
safety problems, as well as the threats to the natural resources.
Channel/Reef Marking Action Plan
Boater Education
Comment: Channel/reef marking must be supplemented with boater
education in order to limit impacts on shallow water marine resources.
The channel/reef marking action plan does not contain strategies that
address education.
Response: NOAA agrees that boater education is a critical component
for protection of shallow water resources of the Sanctuary. The
education and outreach strategies directed at boating impacts are
contained in other management action plans.
Marking Shallow Water Habitats and Vessel Routes
Comment: The action plan does not address marking coral reefs and
other shallow water habitats outside of channels, to warn boaters of
sensitive areas. The action plan should be revised to include
navigational aides that warn boaters and should be renamed
``Navigational Marking Action Plan'' or the ``Channel/Reef Marking
Action Plan''.
Response: NOAA agrees that providing navigational aides that warn
boaters of sensitive, shallow water habitats is a necessary component
of resource protection. NOAA will work closely with the USCG, the
State, and the county to provide appropriate internationally recognized
navigational aides to mark sensitive, shallow water habitats such as
coral reefs. NOAA also recognizes that providing a logical and clearly
marked system of channels in high traffic areas is the preferred method
of routing vessel activity away from sensitive habitats. In addition,
strategic placement of navigational aides used to warn boaters is
necessary in many areas and will be pursued. NOAA has revised the
action plan and has renamed the plan as the ``Channel/Reef Marking
Action Plan.''
Channel Marking Criteria
Comment: The criteria for determining the priorities for marking
channels as well as the locations of high priority channels should be
included in the plan. The SAC recommended draft channel marking
criteria and a list of high priority channels to be marked.
Response: The criteria for channel marking prioritization as
recommended by the SAC has been included in the final action plan.
However, including a list of high priority channels recommended by the
SAC is premature. Instead, the action plan establishes a process for
identifying and prioritizing channels to be marked.
The list of proposed channels recommended by the SAC has not been
subject to review and prioritization by those criteria. All areas to be
marked should be reviewed through the process set forth in the action
plan. Thus, the list of priority channels has not been included in the
final action plan, but the criteria and process have been included.
NOAA's Role
Comment: The draft action plan does not clearly define NOAA's role
in the channel/reef marking program.
Response: The final plan (Strategy B.4, Activity 8, Implementation)
more clearly defines NOAA's role in this effort.
Effectiveness Assessment
Comment: Expand the activity associated with the assessment of
channel marking effectiveness to include on-site monitoring and
research, in addition to aerial photography.
Response: NOAA agrees and the final action plan (Strategy B.4,
Activity 6) reflects this comment. Further, Strategy B.4, Activity 8
has been expanded to address removal of markers that are found to have
a detrimental effect.
[[Page 4592]]
Update Status
Comment: Many of the activities originally described in the action
plan have already been completed or their status needs to be updated.
Response: NOAA agrees. The final action plan reflects the current
status of activities.
Four Point Program
Comment: Some reviewers support the Boating Impact Working Group's
(BIWG) ``Four Point Program.'' The final management plan needs to be
expanded to include establishment of no access and restricted access
areas, as recommended by the BIWG.
Response: NOAA agrees that the establishment of no access and
restricted access areas is an effective method to reduce shallow water
impacts. The plan recognizes this and adopts a series of restricted
access areas associated with the Wildlife Management Areas (see
Regulatory Action Plan, Appendix III to Subpart P--Wildlife Management
Areas, and the Zoning Action Plan maps). Most of these areas are part
of or are adjacent to DOI National Wildlife Refuges, however seven non-
associated areas were added. These are the only areas that NOAA
received specific input on during the planning process. NOAA will
monitor the effectiveness of designating these areas as Wildlife
Management Areas and imposing access restrictions and will consider
adding other areas in future revisions of the plan.
Removal of Problematic Aides to Navigation
Comment: There is no mechanism in the plan to remove channel
markers that prove to be problematic because they increase vessel
impacts to shallow water areas.
Response: Strategy B.4, Activity 6 provides a mechanism to evaluate
the effectiveness of channel markers for the protection of marine
resources. Strategy B.4, Activity 8 has been expanded to address
removal of markers that are found to have a detrimental effect on
marine resources.
Channel/Reef Marking Is Expensive
Comment: The proposed channel/reef marking program is too costly at
a time when the government is trying to economize.
Response: The primary funding source identified in the plan for
channel/reef marking is the Boating Improvement Fund (BIF) and the
current aides to navigation program administered by the U.S. Coast
Guard. The BIF is an existing funding source that is administered by
Monroe County. The money is derived from a portion of State vessel
registration fees which are returned to the county where they were
generated. This money must be used for projects designed to enhance
boating, and is specifically targeted at channel/reef marking,
launching facilities and similar projects. Currently, Monroe County
receives approximately $125,000 annually from this source. Therefore,
this money is available for channel/reef marking already, and the
management plan is designed to provide a coordinated effort at
prioritizing expenditures. Additionally, the U.S. Coast Guard continues
to fund the installation and maintenance of many of the aides to
navigation used in the Sanctuary. These funds do not come directly from
NOAA.
Stay in the Channels Only
Comment: There are fears that once the channels are marked, boaters
will be prohibited from going outside of the channels. Further, in the
interim, boaters-especially fishermen-should not be penalized for prop
dredging until the markers are installed.
Response: The regulations do not prohibit vessels from navigating
outside marked channels regardless of depth. What the regulations do
prohibit is the destruction of seagrass and other shallow marine
resources as a result of imprudent operation of vessels.
Deep Water Access
Comment: Several reviewers requested that a definition of deep
water access be added to the regulations and questioned how the
Sanctuary will address areas that are accessible only at certain tides.
Response: The channel/reef marking action plan assumes a 4 ft mean
low water as a threshold criteria for deep water access. This is
consistent with current State and local regulation and criteria.
Channel/reef marking will not be a substitute for local knowledge or
normal prudent navigation skills.
Arrows on Channel/Reef Markers
Comment: Navigational aids should be clearly understandable to
guide boaters through channels and warn them of shallow areas. It was
also suggested that channel/reef markers include arrows indicating the
direction of the channel.
Response: It is necessary that standardized channel marking for the
Sanctuary conform to the international rules of the road as required by
the US Coast Guard and the State of Florida. The Coast Guard
discourages the use of arrows on posts, but will allow gated (double)
markers to mark particularly sensitive areas.
Education and Outreach Action Plan
Education v. Outreach
Comment: A number of reviewers expressed concern that the draft
management plan addresses education at the expense of outreach noting
that, while compatible, they are distinct and address different needs
and audiences.
Response: NOAA agrees, and the final management plan clearly
reflects both responsibilities. The Education Action Plan has been
renamed the Education and Outreach Action Plan.
Education Supports Resource Protection
Comment: A number of reviewers recommended the inclusion of a new
education goal to reflect the intent of the Education Program in
achieving resource protection and management goals of the Sanctuary.
The National Park Service made several suggestions on how the plan
should be modified to reflect that the educational strategies include
cultural as well as natural resources. Additionally, some reviewers
said that an adequate education program could alleviate the need for
additional regulations.
Response: The final management plan states that the intent of the
program is to educate the public about Sanctuary resources (natural and
cultural), thus complementing the protection and management goals of
the plan. Education and regulation are complimentary management tools
in resource protection. It is hoped that increased education will
result in voluntary compliance with regulations through increased
understanding.
Spanish-Speaking Staff
Comment: A number of reviewers recommended the hiring of a Spanish-
speaking staff member for the Education program.
Response: In order to address the multi-lingual nature of many
Education and Outreach activities, the contracting or hiring of a
Spanish-speaking education staff member or intern will be given
priority consideration.
Funding for Education and Outreach
Comment: Reviewers recommended increased funding of the Education
Action Plan. Additionally, the pursuit of alternative sources of
funding was also recommended.
Response: Education is a primary management tool in resource
protection and will be considered in budget allocations. The management
plan addresses alternative funding.
[[Page 4593]]
Priorities
Comment: Many reviewers expressed concern that the education
strategies ranged from an overall priority level of three to five and
had an anticipated low level of action in year one.
Response: Some of these activities are already underway in the
Sanctuary's Education and Outreach program. NOAA agrees that the
priority level for education and outreach should be elevated. As a
result, the document has been revised and updated.
Enforcement Action Plan
Interpretive Enforcement/Connection Between Enforcement & Education
Comment: Many reviewers did not understand the concept of
interpretive enforcement. Others felt that law enforcement officers
should supplement the Sanctuary's education program. Others commented
that NOAA should educate the resource users rather than using
enforcement officers to catch violators who are making mistakes.
Response: The term ``interpretive enforcement'' refers to the
merging of education functions with the enforcement officers' duties.
NOAA strongly agrees that an effective enforcement program includes not
only enforcement of violations, but education of Sanctuary users to
achieve voluntary compliance with regulations. Although Sanctuary
officers have full authority to enforce regulations, education is a
primary tool of enforcement as outlined in the Enforcement Action Plan
and the Education and Outreach Action Plan. The Sanctuary will
undertake an outreach effort to make users aware of the regulations.
For example, law enforcement officers distribute Sanctuary pamphlets in
their contact with boaters during water patrols, and use this education
opportunity to gain voluntary compliance.
Standardization
Comment: Wording in the draft management plan is ambiguous,
therefore it leaves interpretation to the enforcement officers. The
comment also charged that information received from officers is not
consistent from officer to officer.
Response: Through coordination and training of law enforcement
officers, standardized enforcement procedures, including interpretive
enforcement, will be achieved. This is outlined in the Enforcement
Action Plan.
Coordination With Existing Agencies
Comment: There are 24 agencies currently responsible for protecting
the natural and cultural resources of the Florida Keys. What is NOAA
going to do to make them do their jobs?
Response: There are numerous agencies with responsibilities and
somewhat limited ability for full enforcement of all rules everywhere.
NOAA will seek to coordinate their activities, thus achieving more
effective enforcement of all regulations. To this end, the FKNMS has
developed an agreement with other enforcement agencies such as the US
Coast Guard, the State of Florida, the US Fish and Wildlife Service,
and the National Park Service to maximize and coordinate existing
assets concerning Sanctuary enforcement. Since the Sanctuary includes
both State and Federal waters, close coordination between the State and
NOAA is essential.
Funding/Additional Enforcement
Comment: The management plan states that an additional 30 law
enforcement officers will be needed for the Sanctuary. Many reviewers
agreed that additional officers are needed to enforce laws, but
questions were raised: Where will the funding come from for these
officers? What is the timing for hiring additional officers?
Response: NOAA agrees that enforcement is important for successful
comprehensive resource protection and management. In balance with other
Sanctuary management needs, the expansion of the law enforcement
program will be phased in as funding allows. Funding is critical but
limited and must be balanced with other management goals such as
education and outreach, research and monitoring. The hiring of an
additional 30 law enforcement officers is a goal of the enforcement
program. NOAA will work actively with the State to identify alternative
funding sources for hiring additional law enforcement officers.
Mooring Buoy Action Plan
Use of Volunteers
Comment: Encourage the utilization of volunteer assistance in
mooring buoy management and reference the interaction with the
Volunteer Action Plan.
Response: The benefit of using volunteers in various stages of
mooring buoy management is recognized, and reference to utilizing
volunteers and volunteer programs was included in the draft. However,
NOAA agrees that more emphasis should be placed upon the use of
volunteers and the plan has been revised to reflect this (Strategy B15,
Activity 1, Implementation; Activity 8, Implementation). In the area of
mooring buoy maintenance, volunteers will be used at the direction of
those responsible under contract for the maintenance program.
Participation by the SAC
Comment: The SAC should be formally involved with all aspects of
mooring buoy planning and management.
Response: NOAA agrees, and the Final Management Plan reflects this
(Strategy B15, Activity 2, Activity 3, Activity 4, Activity 6, Activity
9).
Streamline Permitting
Comment: The permitting process to install mooring buoys needs to
be streamlined to assure easier ability to accept donated mooring buoys
or funding to install mooring buoys.
Response: The purpose of the mooring buoy plan is to identify
appropriate sites for installation of new mooring buoys within the
Sanctuary. Once the plan is finalized, it is NOAA's intent to obtain
approval for the installation of all buoys from all applicable
agencies.
Carrying Capacity Strategy
Comment: Considerable comment was received on the concept of
carrying capacity. Some noted that the implementation of carrying
capacity based on mooring buoy placement alone is inappropriate. This
is because it is the number of divers on a vessel that is the most
important aspect, not the number of vessels. The SAC recommended to
remove the Carrying Capacity Strategy (Strategy R.5) from the Mooring
Buoy Action Plan. This strategy should only occur in the Research and
Monitoring Action Plan. Others suggested to separate the issue of
carrying capacity from mooring buoys by developing a carrying capacity
action plan. However, comment was also received that carrying capacity
must be established for high use coral reef areas and that the use of
mooring buoys is one method to implement carrying capacity.
Response: NOAA agrees that the issue of carrying capacity is much
larger and more complex than can be addressed in the Mooring Buoy
Action Plan alone. Mooring buoys are only one possible tool that could
be used in the implementation of carrying capacity. At this time, there
are no definitive studies available that could aid in establishing
carrying capacity limits. The Research and Monitoring Action Plan will
provide the opportunity for studying this topic. Therefore, it is
necessary to undertake additional research before such limits can be
considered. NOAA has revised the management plan to remove the carrying
capacity strategy from the Mooring Buoy Action Plan. It
[[Page 4594]]
remains in the Research and Monitoring Action Plan and will be given a
high level of priority. It is not advisable to create an entire new
action plan for carrying capacity at this time.
No Anchoring in the SPAs
Comment: A large number of comments were received that recommended
a no-anchoring policy within Sanctuary Preservation Areas (SPAs) where
mooring buoys are present. The SAC recommended that the SPAs become no-
anchoring zones, but that this should be phased in as sufficient
mooring buoys are placed to accommodate existing uses. They also
recommended that this issue be divorced from the Mooring Buoy Action
Plan and be inserted into the zoning and regulatory action plans.
Response: NOAA agrees that the SPAs should become no-anchor zones.
Before this policy is implemented, there should be a sufficient number
of buoys in each SPA to accommodate a reasonable level of demand. The
Working Group established in the Mooring Buoy Action Plan (Strategy
B.15, Activity 4) will determine the sufficiency of the number of
mooring buoys in the SPAs in developing the mooring buoy management
plan. In the meantime, the regulations require boaters to use mooring
buoys when they are available in SPAs and prohibit anchoring on coral.
Thus, anchoring would be allowed on sand.
Support for Mooring Buoy Program
Comment: Numerous comments were received that indicated strong
general support for mooring buoys. Some indicated that the buoys should
not be just for divers but should consider the needs of fishermen as
well.
Response: NOAA feels that the mooring buoy program is one of the
most important proactive resource management actions that the Sanctuary
has taken. The mooring buoy program will continue to be a major
emphasis of the FKNMS. The FKNMS management team will consider mooring
buoys for fishing uses in addition to those used primarily by divers.
Installation and Management of Mooring Buoys by Non-Profits
Comment: Several comments were received that stated that the FKNMS
should leave the management of mooring buoys in the hands of existing
agencies and non-profit organizations. Federal money would be better
spent by giving it to non-profits. Some reviewers indicated that NOAA
had overestimated the cost of mooring buoy maintenance.
Response: The Mooring Buoy Action Plan calls for encouraging new
and continued efforts of non-profits and other organizations, as well
as exploring other innovative funding mechanisms for installing and
maintaining mooring buoys. The National Marine Sanctuary Program
currently maintains approximately two thirds of the mooring buoys in
the Florida Keys. It has been found to be a cost effective program
utilizing local contractors for maintenance service. The costs in the
action plan were somewhat high, as they were originally based on the
maximum deployment of mooring buoys throughout the Sanctuary, not on
current conditions. Cost was also based on a five year planning time
frame, which was not made clear in the plan. The action plan has been
revised to consider a more modest deployment of mooring buoys and has
been clarified in regard to annual maintenance costs.
Raise the Priority of Mooring Buoy Program in Management Plan
Comment: Raise the overall Sanctuary priority level for mooring
buoy activities from 3 to 2, in order to emphasize its importance.
Response: NOAA agrees that mooring buoy management is a high
priority and the final management plan reflects the change from a
medium to high level of priority.
Limit the Size of Vessels Using Mooring Buoys
Comment: Some reviewers recommended that NOAA limit the size of
vessels using mooring buoys.
Response: Considering that the size of the anchoring apparatus
increases with the size of the vessel, NOAA is hesitant to limit the
size of vessels that use mooring buoys because this action may force
large vessels to anchor thus increasing the potential impact to the
coral reefs. However, the mooring buoy action plan contains activities
that address the management of large vessel use on mooring buoys in
high use or sensitive areas and NOAA is committed to improving mooring
buoy technology to accommodate large vessel use. Additionally, NOAA has
included a restriction on damaging mooring buoys in the regulations
which places the burden on large vessel operators to assure that their
use of mooring buoys is conducted in a manner so as not to damage the
mooring buoy or hardware. This includes adding additional tag line to
the mooring buoy in rough seas.
Regulatory Action Plan/Regulations
Definitions
Comment: NOAA received comments suggesting that several definitions
be added to the list of definitions in the Sanctuary regulations.
Response: NOAA has added definitions, including those for coral,
coral area, coral reefs, hardbottom, and residential shorelines, to the
regulations.
Anchoring
Comment: NOAA has received several comments on the issue of
anchoring within the Sanctuary. Comments ranged from requests for a
Sanctuary-wide prohibition on anchoring on coral to those suggesting a
prohibition only on the shallow reefs. Commentors stated that the
bottom is often not visible in 50 feet of water, and therefore the
anchoring restriction was impractical.
Response: NOAA has revised proposed Sec. 922.163(a)(5)(ii) to
prohibit having a vessel anchored on live coral other than hardbottom
in depths less than 40 feet when visibility is such that the seabed can
be seen. This restriction does not apply to anchoring on hardbottom.
This regulation is necessary to address the impact of anchoring on
coral.
Vessel Operation
Comment: Operation of vessels, particularly personal watercraft
(jet-skis) generated considerable comment during the review process.
Many reviewers were concerned about the operation of personal
watercraft in such a way as to create a nuisance, or in a manner that
disturbed wildlife or affected the health of Sanctuary resources. One
reviewer said, ``jet skis take the magic out of the Keys.'' On the
other hand, there were numerous comments that the operation of personal
watercraft should not be singled out from the operation of other
vessels. Others commented about the adverse impacts from all vessels on
shallow water habitats and wildlife in the Sanctuary. Careless
operation of all vessels was also an issue of concern by the public.
NOAA received considerable comment from the public, the SAC, and
the State of Florida on the proposed regulations for operation of
vessels at greater than idle speed only/no wake near islands,
residential shorelines, stationary vessels, and emergent reefs.
Considerable comment was received on the proposed regulation that
restricted vessel operation at a speed greater than idle speed only or
no wake within 200 yards of mangrove fringed islands, residential
areas, flats, stationary vessels, and other features.
[[Page 4595]]
Response: NOAA recognizes the adverse impact on Sanctuary resources
and the user conflicts that can occur from the operation of all
vessels. The threat to Sanctuary resources is universal to the
operation of all vessels, not just any one type. However, the size,
maneuverability, and shallow draft of personal watercraft results in
operator behavior that makes them a greater source of user conflict and
threatens Sanctuary resources more than any other vessel, particularly
in shallow water habitat. Approximately 40 percent of the boating
accidents in Monroe County in 1995 resulted from personal watercraft.
This statistic indicates that the potential for careless operation of
personal watercraft is very high. Most of the negative public comments
about personal watercraft were behavior related examples.
The final regulations do not single out personal watercraft.
Rather, the regulations apply to operation of all vessels to
comprehensively address the potential resource impact, user conflicts
and safety problems within the Sanctuary. The final regulations specify
that, except in marked channels, vessels are prohibited from operating
above idle speed or creating a wake in areas marked idle speed only/no
wake, and within 100 yards of residential shorelines, stationary
vessels, and marked emergent reefs, and 100 feet from a divers down
flag. As regards the 100 foot distance requirement from diver down
flags, NOAA modified this from the proposed 100 yard requirement to be
consistent with State regulations.
Personal Watercraft Rentals
Comment: Many reviewers commented on the use of rented personal
watercraft. Some in support, some in opposition, and some in support
with appropriate restrictions. The SAC recommended that NOAA work with
the personal watercraft (PWC) industry to begin a process to identify
whether there is a need to establish restrictive zones. Comments from
the personal watercraft industry representatives indicate interest in
self regulation.
Response: NOAA plans to work with the PWC industry, the SAC and the
public to determine regulatory and non-regulatory steps to address the
issue, including the potential need and location of PWC rental use-
zones.
Emergency Closures
Comment: Some reviewers were concerned about the ability of the
Director or his designee to close areas or impose limited access
provisions for unspecified periods of time.
Response: Section 922.165, the authority to impose emergency
regulations, including area closures or access restrictions, has been
revised to limit the term of an emergency regulation to 60 days, with
the option of one 60-day renewal. In addition, under the Co-Trustee
Agreement, the Governor and Cabinet will be provided advance notice of
all emergency regulations. The Governor has the authority to reopen an
area in State waters by certifying his or her objection to NOAA.
Similarly, the Florida Marine Fisheries Commission will be provided
advance notice of closure of areas to fishing activities. Any closure
beyond 120 days would require providing the public the opportunity for
notice and comment as required by the Administrative Procedure Act.
Such area closures will be limited to the minimum amount of area
necessary so as to achieve the purpose of the closure and avoid or
minimize adverse impacts to Sanctuary users.
Civil Penalties
Comment: Some reviewers expressed an interest in having a penalty
schedule published in the final management plan showing a scale of
penalties for various infractions. Many reviewers have expressed
concern about the discretion of enforcement officers in handling
violations. Reviewers feared that NOAA could abuse it's authority and
charge the maximum $100,000 civil penalty per day for a minor
infraction. Some commented that civil penalties as outlined in draft
regulations implied an ``all or nothing'' approach to enforcement and
that the potential economic consequences if boaters are scared away
from using the Sanctuary because of excessive regulations should be
noted. Some commented that the penalty structure must be expanded to
include degrees of violations, both intentional and unintentional. Some
commented that the threat of enforcement for the intentional vandal
should be significant while the inadvertent accident of a well-meaning
citizen should not be the grounds for a severe penalty. Some asked who
would develop the penalty structure and what public review process the
penalty structure would go through?
Response: Civil monetary penalties are developed for Sanctuary
violations by NOAA's Office of the Assistant General Counsel for
Enforcement and Litigation, with input from the Office of Law
Enforcement, the Sanctuary program, the Regional Administrator for the
Southeast Region, and the U.S. Coast Guard. The schedule will include
enforcement actions that may be taken against violators, which may
include verbal warnings, written warnings, civil monetary penalties,
permit sanctions, and/or seizures of property. Many factors are taken
into account in determining an appropriate penalty for a particular
violation, including prior violations, the severity of the offense, and
other aggravating or mitigating circumstances. The schedules will be
available to the public before the regulations become effective and are
enforced.
Sanctuary Certification/Authorization of Permits/Leases/Licenses
Comment: Some reviewers, including the SAC, expressed concern over
the application of terms and conditions to leases, permits, licenses
particularly those in existence prior to the designation of the
Sanctuary. The public's concern was that the regulations on Sanctuary
certification of pre-existing permits (proposed Sec. 929.14) and
Sanctuary authorization of other agency permits or authorizations after
the effective date of the Sanctuary (proposed Sec. 929.15) were too
broad and appeared to give the Director the power to change existing
authorizations. Commentors indicated that such power should not be
handed over to a non-elected official without the right of appeal on
the part of the individual holding the permit, lease, license or
authorization.
Response: The State, county and other Federal agencies will
continue to exercise their authority to issue permits. The Sanctuary
will not pre-empt their authority to issue permits. In order to avoid
duplicative permits and paperwork requirement, NOAA will seek to
address Sanctuary concerns through those existing authorities. However,
those authorities cannot authorize something that the Sanctuary
prohibits. This regulatory authority is consistent with most
sanctuaries and is based on provisions of the NMSA. Although the NMSA
authorizes NOAA to regulate existing permits, including adding
conditions, such regulations may not terminate any pre-existing
permits, licenses or leases. Furthermore, Secs. 922.167(i) and
922.49(h) provide that the Director's conditions or other decisions may
be appealed. The appeal procedures are set forth in Sec. 922.50. In
addition, there are other checks and balances in place that prevent
abuse of discretion relating to permits. NOAA and the State have
developed a draft interagency agreement which identifies which
activities will be subject to certification and authorization, and how
the review process will be coordinated.
[[Page 4596]]
Sanctuary Permits--Time Limitations
Comment: Some reviewers requested that NOAA place a time limit on
itself in which to respond to a permit request. The SAC suggested a 60-
day time limit.
Response: Sanctuary concerns will be addressed for most activities
and projects in other Federal permits and, if none exist, in State
permits. Sanctuary permits are issued only if Sanctuary concerns cannot
be addressed in the existing Federal/State permit regimes. NOAA has not
imposed any time constraint for responding to permit requests. NOAA
agrees that 60 days is a reasonable time in which to respond to most
permit applications. NOAA normally responds within 3 weeks to a month
after receipt of a complete application for most permits. However, a
60-day time frame may not be appropriate for large or complex projects.
Sanctuary Permit Reporting Procedures
Comment: Some reviewers expressed concern over the reporting
requirements for permits.
Response: NOAA has not changed the permit reporting requirements.
No reports are required more often than monthly. For permits issued for
one year, the reports required are a ``quick look'' report and final
report. Longer permits require a ``quick look'', annual, and final
reports. Reports assist the Sanctuary in assessing the progress and
impacts of a permitted activity and provide information useful to
Sanctuary management.
Fee Schedule/Special Use Permits
Comment: Some reviewers suggested NOAA develop a fee schedule,
based on fair market value, for the issuance of Special-use Permits.
Response: NOAA has not included a fee schedule in the final plan.
The need for a Special-use Permit fee schedule is programmatic, not
Sanctuary specific, and the details and specifics of Special-use
Permits have not been completed by the Sanctuary and Reserves Division
of NOAA. Further, the small number of Special-use Permits issued to
date has not warranted the administrative review and development of
such a schedule. Special-use permits will continue to be considered on
a case-by-case basis.
Effectiveness of Enforcement of Regulations
Comment: There was comment expressing concern about the
effectiveness of enforcing the Sanctuary regulations.
Response: NOAA feels that effective and efficient resource
protection requires coordination with existing regulations. As a
result, the Sanctuary is developing an agreement with other enforcement
agencies such as the US Coast Guard, State of Florida, US Fish and
Wildlife Service, and the National Park Service to maximize and
coordinate existing assets concerning Sanctuary enforcement. Since the
Sanctuary includes both State and Federal waters, close coordination
between the State and NOAA is essential.
Florida Clean Vessel Act/Vessel Discharge
Comment: The State of Florida and other reviewers recommended that
NOAA establish regulations throughout Federal waters that meet the
requirements of the Florida Clean Vessel Act.
Response: NOAA has not incorporated the provisions of the Florida
Clean Vessel Act in the final regulations. This act does, however,
apply to the 65 percent of the Sanctuary in State waters. Further, the
final regulations prohibit all discharging and depositing of any
material or other matter except cooling water or engine exhaust in
Ecological Reserves or Sanctuary Preservation Areas. Thus, discharge
from marine sanitation devices in these areas is prohibited. This will
protect the shallow coral reefs from discharge of nutrients. In
addition, NOAA will work with the State of Florida and the Water
Quality Steering Committee concerning incorporation of provisions
similar to the Florida Clean Vessel Act throughout the Sanctuary.
Transiting No-Take Zones
Comment: Some fishermen expressed concern over the inability to
transit no take zones with their equipment on board and their catch
taken from outside the zones.
Response: The final regulations allow transiting an ER or SPA with
catch taken outside the ER or SPA, provided it is stowed prior to
entering and during transmit. The final regulations also allow
transiting with otherwise prohibited gear provided it is unbaited and
stowed in a cabin, locker, rod holder or similar storage area, or is
securely covered and lashed to a deck or bulkhead unbaited, prior to
entering and transiting the area.
Live Rock Harvest, Shell and Tropical Fish Collecting
Comment: Many reviewers commented on the collection and harvest of
live marine organisms and mollusc shells.
Response: Live rock harvesting is currently prohibited under State
and Federal fisheries law. The prohibition has been added to Sanctuary
regulations to protect these Sanctuary resources should the
restrictions under other laws be removed. Shell collecting and tropical
fish collecting and other consumptive activities are prohibited in the
SPAs and Ecological Reserves. In addition, the Florida Marine Life Rule
has been incorporated by reference into the Sanctuary regulations and
thereby extended into Federal waters. These regulations will address
some concerns of exploitation while minimizing economic impact. The
marine life rule is referred to in Sec. 922.163(a)(12) of the Sanctuary
regulations and is reproduced in Appendix VIII.
Diver Impact
Comment: Some commented that stronger regulations were needed to
prohibit coral touching and recommended specific regulations dealing
with diver and snorkeler impacts on the coral reefs. Some suggested
prohibiting the use of gloves or requiring float coats for snorkelers.
There was also a comment that there should be no prohibition against
impacts to dead coral.
Response: Section 922.164(d)(iv) of the Sanctuary regulations
prohibits divers and snorkelers from touching or standing on living or
dead coral formations in the SPAs and ERs. Approximately eighty to
eighty-five percent of the year-round diving and snorkeling activity
within the Sanctuary takes place in the 18 SPAs and one ER established
by the final regulations. This single regulation will address the issue
of diver impact on coral reefs without having to develop a series of
regulations on gear requirements that accomplishes the same goal. NOAA
included ``living or dead'' coral formations with the understanding
that some visitors to the Sanctuary do not know the difference between
living and dead corals. Additionally, impacts to dead coral formations
may disrupt new coral recruits. The removal or injury to corals is also
prohibited Sanctuary-wide.
Spearfishing
Comment: Some reviewers expressed concern about spearfishing within
the Sanctuary, while others urged NOAA to allow it to continue in a
managed manner.
Response: In balancing the public's concern and interest over the
issue of spearfishing within the Sanctuary, NOAA has prohibited
spearfishing in the SPAs, ERs, Research-only Special-use Areas, and
some of the Existing Management Areas. NOAA has addressed the concerns
of over-harvest
[[Page 4597]]
by this fishing technique in eighty to eighty-five percent of the total
area within the Sanctuary dived by recreational divers and snorkelers.
However, spearfishing will continue to be allowed and managed under
fisheries management regulations in the remainder of the Sanctuary.
This balance of concerns on the issue will have positive impacts on the
resources.
Military Activities Within the Sanctuary
Comment: Some commented that a prohibition on the use of explosives
within the Sanctuary should be extended to the military.
Response: The final regulations provide that all military
activities shall be carried out in a manner that avoids to the maximum
extent practicable any adverse impacts on Sanctuary resources and
qualities. Sections 922.163 and 922.164 do not apply to existing
classes of military activities as identified in the final environmental
impact statement. New military activities may also be exempted from all
or part of these two sections upon consultation with the Director. NOAA
has been assured by the Navy that live (explosive) ordinances are not
currently used within the Sanctuary. The Patricia Range is the only
target site within the Sanctuary and live explosives are not used.
Research & Monitoring Action Plan
Management Should Be Based on Good Science
Comment: Management actions should be based on good science and
should not occur until the science is done to back it up.
Response: Management actions should be based on the best available
science. However, there is always a degree of uncertainty associated
with science and, in some cases, it is imprudent to suspend management
actions until the science is completed. A precautionary approach to
management of Sanctuary resources should be taken in order to ensure
that lack of scientific certainty does not preclude implementation of
reasonable management measures. An adaptive management approach will be
used in the Sanctuary when necessary.
Studies Are Needed To Determine Sustainability
Comment: Studies are needed to determine the level of human
activity sustainable by the resources.
Response: NOAA agrees and has included a carrying capacity strategy
in the Research and Monitoring Action Plan. The strategy calls for
carrying capacity research to be conducted at several of the SPAs and
Research-only Special-use Areas.
Too Much Emphasis on Research and Monitoring
Comment: The draft management plan places too much emphasis on
research and monitoring.
Response: Research and monitoring is an essential component of
effective resource management. The reason many strategies have a
research or monitoring component is to assess the strategies''
effectiveness or feasibility in order to determine whether it needs to
be modified, continued, or terminated prior to committing additional
resources in the future.
Queen Conch Stocking
Comment: A moratorium on stocking would adversely effect the
State's queen conch stocking program.
Response: NOAA has revised Strategy F.3 by eliminating the
moratorium on stocking and replacing it with a requirement for
permitting of all stocking programs.
Monitoring of Zones
Comment: Research and monitoring of zones needs to be a top
priority.
Response: Scientific monitoring to determine the effectiveness of
the zones is a top priority for NOAA. In 1993, NOAA began to collect
baseline data on reef fish populations in and around the proposed no-
take zones in preparation for their implementation. Research in the
zones is also a top priority and will begin once the zones are
finalized. The Research and Monitoring Action Plan explains how the
zones will be used for research and monitoring.
Volunteer Research and Monitoring Programs
Comment: Some reviewers pointed out the need to incorporate
volunteer monitoring efforts such as some of those currently underway
by groups like Reef Relief, The Nature Conservancy, and R.E.E.F. They
also pointed out the importance of using the knowledge of local experts
to help better understand the health of Sanctuary resources.
Response: NOAA has incorporated the use of monitoring projects by
the public and volunteers in the Research and Monitoring Action Plan.
The long-term goals of the Sanctuary include using such monitoring
programs as a basis of detecting change in the coral reef environment.
Submerged Cultural Resources Action Plan
Prevent Treasure Hunting & No Permits for Private Profit
Comment: Several reviewers, including the National Park Service,
Minerals Management Service, and the Department of the Navy stated that
no treasure hunting should be permitted in the Sanctuary and that the
proposed Submerged Cultural Resources (SCR) permit system was in
conflict with the Federal Archaeological Program and particularly the
Abandoned Shipwreck Act (ASA) guidelines. Other reviewers indicated
that some commercial treasure salvage should be permitted, but should
be strictly regulated to prevent any harm to the natural resources of
the Sanctuary.
Response: NOAA agrees that ``treasure hunting'' that is, the search
for and recovery of intrinsically valuable artifacts with little, if
any, regard for the archaeological context and historical significance
of the finds, should not be allowed in the Sanctuary.
However, the Submerged Cultural Resources (SCR) Action Plan does
provide for public and private sector recovery of shipwrecks consistent
with protecting historical values and the environmental integrity of
the shipwrecks and sites. NOAA and the State of Florida have agreed
that the SCR plan, consistent with the multiple use mandates of the
NMSA and the ASA, should provide for the in situ preservation of highly
significant historical Sanctuary resources under strict regulations
protecting historical values and the environmental integrity of the
shipwrecks and sites and that the recovery of SCRs should only be
permitted when it is determined to be in the public's interest and done
in an environmentally and archaeologically sound manner.
No recovery permits will be issued in areas where there is coral,
seagrass or other significant natural resources. However, private
recovery of certain SCRs may be permitted in other areas of the
Sanctuary which are relatively devoid of natural resources. In such
recovery efforts, the highly significant resources will be required to
be preserved in a museum of public access consistent with the standards
of the Federal Archaeological Program. Objects of low to moderate
historic or archaeological significance may be deaccessioned or
transferred for sale or other disposition.
As regards the ASA guidelines, NOAA acknowledges that the
accommodation of commercial salvage, that is, the search for and the
recovery
[[Page 4598]]
of shipwreck artifacts using archaeological recovery techniques and
historical documentation to maximize the intrinsic value of the finds,
does appear to conflict with certain ASA guidelines suggesting that no
commercial salvage be permitted in marine sanctuaries. However, NOAA's
position is that the SCR Action Plan is consistent with the ASA
guidelines when read as a whole. In other words, there is no commercial
salvage permitted in the zoned areas and other areas of significant
natural resources. Commercial salvage will be permitted only in areas
relatively devoid of significant natural resources. NOAA does not
suggest that the FKNMS SCR Action Plan be used as a model for other
national marine sanctuaries, or for other Federal/State protected areas
or preserve systems. There are several distinguishing reasons for the
departure from those ASA Guidelines in the FKNMS: (1) 65 percent of the
Sanctuary is in State waters--under the NMSA and the ASA due deference
must be given to the State's interests in managing Sanctuary resources,
particularly abandoned shipwrecks to which the State has title; (2)
treasure hunting and commercial salvage of historic shipwrecks has been
a traditional activity in the Keys for decades and is part of the local
culture; (3) the NMSA and the ASA are multiple use statutes; (4) the
establishment of multiple use areas where commercial salvage can occur
as well as not permitting any recovery where there is coral, seagrass
or other significant natural resources is analogous to the zoning
approach proposed for protecting natural resource habitat areas; (5)
the SAC recommended that some commercial salvage be permitted in the
Sanctuary; and 6) numerous other public comments recommended that some
commercial salvage should be permitted in the Sanctuary.
Consistent with the recommendations of the SAC, the State, and
public comments, the SCR Action Plan provides a permit system which
will strictly regulate private, for profit, recovery of SCRs, to ensure
that it is done in an environmentally and archaeologically sound
manner. Private, for profit, recovery will not be allowed unless it is
in the public interest and will include public display of the recovered
SCRs. Certain SCRs will be required to be maintained in museums and
similar institutions of public access while duplicative objects may be
deaccessioned and transferred to the permittee for sale or other
disposition, but only after there has been a proper recording and
reporting of the archaeological information. Under the multiple use
mandate of the NMSA and the ASA, some SCRs may be recovered while other
more significant SCRs will remain in the Sanctuary for in situ
preservation and use by present and future generations.
Comment: The National Park Service commented that the Antiquities
Act applies in National Marine Sanctuaries and therefore an Antiquities
Act permit should be required for the excavation and recovery of SCRs.
Response: NOAA agrees that the Antiquities Act applies in the
Sanctuary. However, as the Federal agency that exercises control over
Sanctuary resources, NOAA is the appropriate Federal agency to issue
permits for the management of Sanctuary resources, including
antiquities. Moreover, as the Sanctuary SCR permits will be issued in
compliance with the NMSA, the ASA, the NHPA, and the standards and
guidelines of the Federal Archaeological Program, an additional permit
under the Antiquities Act appears unnecessarily duplicative.
Comment: The Department of the Navy objected to the SCR permits and
expressed concern about the Navy's historic shipwrecks in the Sanctuary
as well as the potential precedent for other Navy historic shipwrecks
outside the Sanctuary.
Response: The permits for private recovery and deaccession/transfer
only apply to abandoned vessels. As a trustee for such resources, NOAA
will continue to respect the interests of the owners of the vessels and
the sovereigns that represent those interests consistent with domestic
and international law. Sunken warships and other public vessels
entitled to sovereign immunity, regardless of location, remain the
property of the nation to which it belonged at the time of sinking,
unless that nation has taken formal action to abandon it or to transfer
title to another party. It is a long-standing Navy policy that it does
not abandon its public vessels. Therefore, no permits will be issued
for the private recovery of Navy vessels without the express written
permission of the Department of the Navy. In considering permits for
the private recovery of other vessels entitled to sovereign immunity,
NOAA may require the express permission of the appropriate sovereign
representatives, or otherwise consider their interests in the vessel
and its recovery.
SCR Plan/Permits & Costs to Treasure Salvors Business
Comment: At the scoping meetings, workshops, SAC meetings, other
public meetings, and in public comments the treasure salvors have
continuously asserted that the FKNMS would put them out of business and
commented that the Sanctuary should adopt the State's existing contract
system. Others commented that commercial treasure salvage should be
permitted, but should be strictly regulated to prevent harm to natural
resources from various commercial treasure salvage methodologies,
including ``mail-boxing'' (propeller dredging device).
Response: The Florida contract system and the division ratio (80
percent salvor to 20 percent State) was considered as an alternative,
but was not preferred because it is inconsistent with the Federal
Archaeological Program and with the ASA Guidelines. Prohibiting
commercial salvage throughout the Sanctuary was also considered and
rejected for reasons indicated in the response to the comments above.
The SCR Action Plan is the result of a careful balancing of resource
protection and reasonable accommodation for commercial salvage in
certain areas for certain SCRs. If the cargo from a wreck is of little
or no historical or archaeological significance and duplicative, then
nearly all of the recovered objects will likely be transferred to the
permittee. On the other hand, if the artifacts are of high historical
significance, then the permittee will have possession of the artifacts
and may seek return on the investment through other means. However, in
this instance there would be no transfer of ownership of a public
resource to a private party unless and until it is determined that the
resource is of little or no historical or archaeological value. In
developing the SCR Action Plan, NOAA considered the threats to natural
and historical resources and sought to develop strict regulations to
ensure that recovery will be environmentally and archaeologically
sound, while at the same time, taking into account the socio-economic
considerations of the commercial salvors and others. In response to
comments, changes were made to the proposed regulations and draft
management plan in an effort to make the permit management system more
pragmatic from the perspective of the commercial salvors without
compromising the primary objectives of protecting significant natural
and historic Sanctuary resources. Between the draft and the final, NOAA
issued
[[Page 4599]]
several permits to commercial salvors with pre-existing admiralty
rights. While the permit conditions may be more rigorous than the
requirements of the Admiralty Court or the State contract system, and
thus may involve additional costs, those permittees continue to work
their sites.
Comment: The Historic Shipwreck Salvage Policy Council (HSSPC)
(treasure salvors group) and other treasure salvors also raised
specific concerns about the economic burden to permittees in the SCR
Action Plan such as requiring performance bonds, general liability
insurance, permanent public display of certain SCRs, professional
nautical conservators and supervision by professional archaeologists.
Response: Pursuant to consultation with the State of Florida, NOAA
has deleted the requirement for a performance bond for all applicants.
As the treasure salvors noted, the regulations elsewhere require all
permittees to demonstrate their financial ability to carry out proposed
projects and activities requiring permits. NOAA agrees that the
underlying purpose of requiring a performance bond (to ensure that
there are ample funds to finish research-recovery work once initiated)
appears to be covered by the other regulations and that by removing the
regulatory requirement for a performance bond, there will be more
flexibility in the permit system. While the removal of the regulatory
requirement should reduce the costs for meeting the permit criteria for
most applicants, requiring such a performance bond may still be
reasonable and appropriate in certain cases where applicants
historically have not finished projects or have difficulty
demonstrating their financial ability to complete a proposed project.
General liability insurance is required by Section 310 of the NMSA.
However, NOAA has modified the regulatory provision implementing that
requirement to clarify that other security instruments may be utilized
in lieu of an insurance policy. In addition, NOAA has modified the
regulatory language to clarify that the scope of coverage required is
for potential claims for destruction, loss of or injury to Sanctuary
resources arising out of permitted activities and to clarify that the
amount of insurance or security should be equivalent to the estimated
value of the Sanctuary resources in the vicinity of the permitted area
and activities.
With regard to the requirement that SCRs be publicly displayed,
NOAA did not intend to require that all SCRs be publicly displayed for
all time. Instead, it was expected that this would be addressed in the
curation agreements and that standard museum practices would be
followed, consistent with the FAP. The regulations have therefore been
modified to indicate that public access and ``periodic'' public display
must be provided.
With regard to the requirement that a professional archaeologist be
in charge of the archaeological research and recovery, that requirement
has not been changed or modified. Recovery of historical resources
inherently involves the destruction of contextual and other important
archaeological information. The only way that such information is
preserved is through scientific recording of the recovery efforts
consistent with standard archaeological principles. It is therefore
imperative that a professional archaeologist supervise the recovery
operations. That is not to say that, as supervisor, the archaeologist
needs to be on site all the time. However, the archaeologist needs to
oversee the operations. The public's interest in the preservation of
this archaeological information justifies the additional costs to the
permittee. In addition, the administrative record indicates that many
commercial salvors already employ an archaeologist.
With regard to the requirement of a professional nautical
conservator, the regulations have been modified to delete
``professional'' and insert ``authorized'' as suggested in comments in
order to provide more flexibility in the permit system and allow for
the consideration of field experience. As the professional
archaeologist is responsible for supervising the operations, NOAA will
give due deference to the supervising archaeologist's selection for
nautical conservator in considering its authorization.
Special Use Permits; Fees/Waiver in SCR Context
Comment: The HSSPC suggested adding a third criteria for Special-
use Permits, i.e., ``to promote private sector participation when
advantageous to the taxpayers'' and shifting the costs for Special-use
Permits from the permittee to NOAA and the State. The HSSPC also
suggested that the costs for Special-use Permits should be limited to
the costs of issuing the permit. Other administrative costs such as
monitoring activities should not be included. The fair market value for
use of Sanctuary resources also should not be included.
Response: Section 310 of the NMSA provides the authority, and sets
forth the two criteria, for issuing Special-use Permits. Section 310
also provides for the assessment of associated fees which are to cover
the administrative costs as well as a fair market value return to the
public for use of public resources. This portion of the management plan
merely describes these statutory provisions and remains consistent with
section 310.
With regard to adding the third criterion, promotion of private
participation, it is not a section 310 criterion or even a general
statutory purpose or policy. However, facilitation of compatible
multiple use is a statutory policy and the SCR Action Plan has been
modified accordingly.
With regard to the assessment of costs and waiver of fees in
implementing Special-use Permit authority, NOAA has the discretionary
authority to consider waiver of costs and/or fees on a case by case
basis when permitted activities result in a public benefit, whose value
can be determined. For example, in the SCR context, the preferred
policy is that the SCR be preserved on site. Waiver of fees for the
removal of SCRs which are not under threat is unlikely. However, if it
is determined that the SCR is being threatened by remaining in the
Sanctuary, the research and recovery would appear to be in the public
interest and reduction and/or waiver may therefore be considered in the
cost and/or fee determination. The extent that private use is
furthering resource protection, research, education and similar FKNMS
management strategies is given due consideration in determining the
amount of costs and fees.
Public Access to SCRs (Land v. Sea)
Comment: The HSSPC suggested that the plan should require SCRs to
be managed in a manner that brings SCRs to the largest segment of the
populations noting that scuba divers amount to less than 1% of the
population. Several others, including the National Park Service,
commented that SCRs should be preserved in the Sanctuary but that non-
intrusive public access for research, education and recreation should
be allowed, and that intrusive public access should be strictly
regulated.
Response: The policy preference under the FKNMS SCR Action Plan,
consistent with the preservation policy in the Federal Archaeological
Program, and the resource protection mandate in the NMSA, is that SCRs
be preserved on site in the Sanctuary, unless the SCRs are under threat
and removal is required to preserve them. As indicated in the comments
above, there has been some accommodation for commercial salvage in
certain areas of the Sanctuary and for certain SCRs to facilitate
multiple use of the SCRs. However, besides being inconsistent with
resource protection,
[[Page 4600]]
the suggestion that all or most of the SCRs be removed from the
Sanctuary is not consistent with the multiple use mandates of the NMSA
and the ASA and has therefore not been incorporated. The ASA and the
NMSA are both concerned about public access to SCRs for boaters, divers
and others within the Sanctuary. The suggested change in policy appears
to primarily benefit one special interest group, the commercial
salvors. Access to Sanctuary resources for members of the public unable
to enter the Sanctuary itself is accomplished through a variety of
education and outreach and research products and mediums, including
print, film, and computer informational products. The public access
goal does not require physical access to the SCRs, nor does it require
their removal for land based exhibits. However, as previously
indicated, in this Sanctuary, the SCR Action Plan provides for
commercial salvage which will in turn result in the public display of
certain recovered SCRs in museums and similar institutions of public
access.
Inventory of SCRs: Responsibility & Expense
Comment: The HSSPC suggests that the Florida Department of State/
Bureau of Archaeological Resources have the lead responsibility in the
inventory of SCRs and that NOAA's role be limited to a financial
assistance role. The HSSPC also suggested that the inventory be
accomplished through the use of the private sector, when funding is
available, in order to lessen the burden on taxpayers.
Response: No change was made to the plan regarding NOAA's lead
responsibility for the inventory of SCRs because it is NOAA, not the
State, that is legally responsible for accomplishing this task. Section
110 of the National Historic Preservation Act requires Federal agencies
to inventory historic resources such as SCRs under the Federal
agencies' management responsibility. However, as indicated in the plan,
NOAA will work with the State and any other public and private entities
interested in activities which fulfill this responsibility.
Accordingly, the SCR Agreement has been revised to indicate that NOAA
will also consider all public and private opportunities for
accomplishing the inventory in a reasonable and cost-effective manner,
including private sector funding through permits and otherwise.
Survey/Inventory Permits
Comment: The HSSPC suggested that the regulations expressly state
that no Sanctuary permit is required for non-intrusive, non-exclusive
remote sensing activities, but also suggested that the survey/inventory
permits expressly grant exclusive rights to explore the permitted
areas. The HSSPC also suggested that these permits provide for limited
manual alteration of the seabed, including hand fanning, provided there
is no negative impact to coral, seagrass, sponges and other natural
resources.
Response: Section 922.42 of the regulations states that unless an
activity is prohibited, it is expressly allowed. In addition, the
sections on Sanctuary permits, certification, and authorizations
indicate that they are only required for conducting activities which
are prohibited by Sanctuary regulations. Non-intrusive remote sensing
is not prohibited. Therefore, the regulations expressly state that such
activity does not require a permit. The regulations will indicate that
permits may provide for limited manual alteration of the seabed,
including hand fanning, provided there is no adverse effect on
Sanctuary resources. Such activity will continue to be considered on a
case-by-case basis as part of the public interest balancing on whether
to issue a permit and for determining the appropriate conditions to
protect resources and manage multiple uses.
The HSSPC suggestion for exclusive rights for a survey-inventory
permit is not entirely consistent with the suggestion that remote
sensing not require a permit. NOAA cannot prevent non-intrusive remote
sensing in an area unless it is prohibited in the regulations and the
regulations do not prohibit remote sensing. However, NOAA and the State
of Florida are cognizant of the underlying economic concerns of
applicants and permittees in investing and expending financial
resources. Therefore, in an effort to reconcile these comments, the
regulations have been modified to indicate that NOAA will not grant
survey and inventory permits or research and recovery permits for areas
covered by existing permits, unless authorized by such permittee. There
is no entitlement to these and other permits, rather it involves the
discretionary authority of NOAA and the State of Florida in granting a
privilege which is determined to be in the public's interest.
Volunteer Action Plan
Recruitment of Volunteers
Comment: A number of reviewers, including the SAC, recommended the
development of a new strategy in the Volunteer Action Plan which
targets the recruitment, training and recognition of Sanctuary
volunteers.
Response: NOAA agrees with this comment and the management plan has
been revised accordingly.
Volunteer Coordinator
Comment: Some reviewers expressed concern that the Sanctuary's
Volunteer Coordinator is not a full-time NOAA employee and recommended
that this be changed. Others stated their satisfaction with the Nature
Conservancy's role in the volunteer program because of its stability
and broad geographic influence.
Response: The Sanctuary's Volunteer Coordinator continues to
effectively administer and oversee the Sanctuary's Volunteer Program.
In the future, NOAA will consider whether it is either necessary or
appropriate to modify the Volunteer Coordinator's role or position.
Water Quality Action Plan
Support the Water Quality Action Plan
Comment: Many reviewers of the draft management plan and
Environmental Impact Statement commented on the issue of water quality
within the Sanctuary. There was almost unanimous agreement that
deteriorating water quality is the major threat to the health of
Sanctuary resources and most supported actions to correct the problems.
Many reviewers specifically expressed support for the Water Quality
Action Plan (WQAP).
Response: NOAA agrees that the major threat to the health of the
Florida Keys coral reef ecosystem is deteriorating water quality. The
FKNMSPA directed EPA, in coordination with the State of Florida and
NOAA, to develop a Water Quality Protection Program (WQPP) for the
Sanctuary. This was the first Congressionally mandated Water Quality
Protection Program for a National Marine Sanctuary and was established
to take corrective actions to restore water quality in the Sanctuary.
The Water Quality Action Plan reflects strategies developed under the
Water Quality Protection Program.
Water Quality Is an Issue Broader Than the Sanctuary
Comment: Although the majority of the reviewers recognized that
deteriorating water quality was the major threat to marine resources,
the source or cause of problems was questioned. Many claimed the
problems originate outside Sanctuary boundaries in the upper portions
of Florida Bay, or come as a result of poor water management practices
in south Florida. Reviewers stated that the problem is outside the
FKNMS boundary, thus, the Sanctuary does not have the authority to
[[Page 4601]]
address these significant water quality issues.
Response: Some of the water quality problems in the Florida Keys
occur outside and upstream of the Sanctuary's boundary. Deteriorating
water quality in Florida Bay is largely a result of water management
practices in south Florida as has been documented by scientists. Other
scientists point to possible sources of nutrients and pollutants that
enter Florida Bay through the Everglades drainage. The Florida Keys are
at the end of the south Florida ecosystem and are the recipient of
degraded water quality that originates upstream. While EPA, the State
of Florida and other agencies will continue to address the land-based
sources of pollution and water quality in the Sanctuary, particularly
through the Water Quality Steering Committee and the South Florida
Ecosystem Task Force, NOAA has an appropriate supplementary role in
these efforts.
Water Quality Problems in Nearshore Waters
Comment: Some reviewers stated that there are no water quality
problems in the Florida Keys. Other reviewers cited the poor wastewater
treatment practices in the Florida Keys, such as septic tanks,
injection wells, and cess pits, as the main source of water quality
degradation in the Sanctuary. Storm water runoff was also viewed to as
a contributing factor to poor water quality. Some reviewers cited the
findings from a recently released State hearing officer's report.
Response: NOAA disagrees with the implication that there is not a
water quality problem in the Florida Keys. Scientists have documented
the decline of water quality in the nearshore waters of the Florida
Keys. This deterioration is caused by a variety of sources including
excessive nutrients entering the nearshore waters because of inadequate
sewage treatment practices and problems related to storm water runoff.
The findings of a State Hearing Officers were that the nearshore waters
of the Florida Keys have exceeded their carrying capacity and are in
danger of collapsing. In addition, the report identified nutrients
originating from inadequate treatment facilities as the primary cause
of nearshore water quality degradation in the Florida Keys.
The WQPP was established to take corrective actions to restore
water quality in the Sanctuary. This must be accomplished at the same
time as, or prior to, the restoration of water quality upstream in
Florida Bay in order to be successful. Improvement of water quality in
the FKNMS will not be successful if only the upstream or nearshore
portion of the ecosystem is restored. All parts of the ecosystem, all
the way to the coral reefs, must be restored and relieved of increasing
human impacts.
Implementation
Comment: Some reviewers stressed that the implementation of the
water quality action plan should supersede the implementation of other
action plans such as zoning. They emphasized cleaning up the water
quality problems before continuing with other management actions. Other
reviewers stressed the importance of addressing the deteriorating water
quality issue in the Sanctuary, but advocated implementation of a
variety of management programs, including those that protect Sanctuary
resources from continued degradation. In addition, some reviewers
supported a plan with direct action strategies to correct water quality
problems.
Response: NOAA agrees that the major issue affecting the health of
the Florida Keys coral reef ecosystem is deteriorating water quality.
Implementation of the WQAP and the WQPP for the FKNMS will lead to
improvement of the water quality in the Sanctuary. Currently, some of
the corrective actions identified in the WQPP are being implemented
both within the boundaries of the Sanctuary and upstream in the South
Florida ecosystem. These on-going activities will have a net positive
benefit to Sanctuary resources.
However, NOAA disagrees that all other management actions should be
deferred until the implementation of the WQPP and the WQAP for the
FKNMS. Many of the management actions necessary to halt the decline of
water quality in the Florida Keys will take years to implement, and the
physical stresses and impacts currently placed on Sanctuary resources
from other sources could be lessened with management actions such as
mooring buoys to prevent anchor damage, channel markers to mark boating
routes through sensitive habitats, and outreach programs to educate
users about the resources of the Florida Keys.
Mosquito Spraying
Comment: Several reviewers expressed concern about NOAA's role in
addressing current mosquito control practices in Monroe County.
Response: Representatives from FKNMS and Monroe County will work
together through the Water Quality Protection Program to refine aerial
mosquito spraying based on research findings. This action will reduce
threats to marine resources which may result from mosquito spraying
over the near-shore waters of the Florida Keys.
Zoning Action Plan
The Term Replenishment Reserve
Comment: Some reviewers expressed that the term Replenishment
Reserve is confusing because it implies that these areas are for
fisheries replenishment.
Response: NOAA has changed the name Replenishment Reserve to
Ecological Reserve (ER). Ecological Reserve more accurately represents
the purpose of this zone, that is, to restore natural ecosystem
dynamics and habitat, by setting aside a portion of the coral reef
environment (including seagrass beds, hardbottom, rubble habitat, patch
reefs and sand areas) that is protected from all forms of
``harvesting''.
Establishment of Zones
Comment: Many commented on the Zoning Action Plan and proposed
regulations regarding Sanctuary Preservation Areas, Wildlife Management
Areas, Special-use Areas, and Ecological (formerly Replenishment)
Reserves. Some recommended deleting all marine zoning; others
recommended the zoned areas be expanded; while still others supported
the zoning concept but recommended delay in implementation until there
was more detailed scientific research and economic impact analysis of
certain proposed zones. Some reviewers recommended zoned areas be
closed to all human uses, except for boat transit. Many reviewers
supported the proposed Zoning Action Plan including, in some instances,
an increase in the amount of area proposed as Ecological Reserves.
As regards the Key Largo ER, some reviewers suggested that because
of the existing protection afforded by the John Pennekamp Coral Reef
State Park and the existing Key Largo National Marine Sanctuary, that
the Key Largo ER would not provide significant additional protection
for the area and should, therefore, be eliminated. A number of
reviewers suggested that if not eliminated, the boundaries of the Key
Largo ER should be shifted to the south. Several reviewers suggested
that the elimination of the Key Largo ER be accompanied by an increase
in the size of the Carysfort SPA to protect additional patch reef and
coral habitat. Other reviewers suggested that the boundaries of the Dry
Tortugas ER be reconfigured to minimize impacts on fishers. In
addition, a number of
[[Page 4602]]
reviewers suggested reconfiguring the Dry Tortugas ER to encompass more
of the reef community as opposed to low-profile, barren habitat, but
not reducing its overall size. A number of reviewers also expressed
concerns about commercial fishing displacement as a result of
establishment of the Western Sambos ER.
Comments from some representatives of the recreational and
commercial fishing industries and some individuals recommended
elimination of all or some SPAs and ERs. These reviewers cited
unreasonable burdens and negative economic impacts resulting from the
closures, primarily due to displacement from closed areas. Examples of
the uses most commonly cited as likely to be displaced are baitfishing,
shrimping, and lobster trapping. Some recommended that bait fishing and
catch and release trolling be allowed, while others were opposed to all
fishing in SPAs.
The State of Florida Marine Fisheries Commission generally
supported the proposed zoning, but recommended the elimination of the
Key Largo ER and suggested making provisions to allow certain baitfish
harvest. Other State and Federal agencies supported the proposed zoning
and one recommended establishing an additional replenishment zone in
the back country of the Keys. Other reviewers supported the Zoning
Action Plan as proposed or recommended additional areas for inclusion.
The SAC recommended that the management plan: (1) Keep the proposed
Special Preservation Areas as configured with provisions to allow bait
fishing and catch and release trolling in selected SPAs; (2) keep the
research-only areas; and (3) keep the Western Sambos ER but eliminate
the proposed Key Largo ER; and reconfigure the Dry Tortugas ER.
Response: NOAA developed the Ecological Reserves to protect some of
the most significant habitat, but in a manner to avoid or minimize
impacts to fishers and other users. In the DMP/EIS, NOAA proposed
boundaries based on distribution of the most significant coral habitats
and spur and groove configurations and a user survey identifying where
fishing, diving and other uses occur. NOAA also used maps provided by
the SAC members that indicated specific information about the resources
and uses of the marine resources. The goal was to include the most
coral reef communities in a manner which avoids or minimizes economic
impact to users, particularly fisherman. NOAA has modified the final
regulations and management plan to reflect several of the
recommendations made in the comments. Consistent with recommendations
from the SAC and others, and upon careful weighing the environmental
and socio-economic impacts, NOAA has retained the Western Sambos ER but
revised its Zoning Plan to eliminate the Key Largo and defer the Dry
Tortugas Ecological Reserves, add the Eastern Sambos Research-only
Special-use Area and slightly expand the Carysfort SPA to include
additional intermediate reef, back reef, and patch reef areas. In
weighing the socio-economic impacts on commercial and recreational
users against the additional benefit of the Key Largo ER, NOAA
eliminated that Reserve from the final plan and regulations. The
resource protection provided by the existing protected areas, John
Pennekamp Coral Reef State Park, Key Largo National Marine Sanctuary,
and Biscayne National Park contributed to this decision. NOAA has,
however, enlarged the SPA at Carysfort Reef to protect additional patch
reef and coral habitat.
Public comment also identified serious adverse economic impacts
which would result from implementation of the no-take regulations
within the proposed boundary of the Dry Tortugas ER. Recommendations
suggested reconfiguring the boundary of that Reserve to minimize such
impacts. Others recommended the Dry Tortugas ER be reconfigured to
include additional reef communities. Consequently, NOAA did not set
forth a boundary or regulations for the Dry Tortugas ER. Rather, NOAA
will continue the process for establishing a proposed final boundary of
the Dry Tortugas ER in coordination with the National Park Service,
fishing representatives, scientists, and others to identify an
appropriate final boundary for the Reserve, which may include portions
of the Dry Tortugas National Park. NOAA and the National Park Service
will use the information gathered as part of the public review of the
draft management plan, and hold workshops with users, agency
representatives, environmental organizations, scientists, and the
public. Prior to making a final decision, the proposed final boundary
of the Dry Tortugas ER will be published for public comment.
In summary, public comments indicated that the impacts on fishers
from the proposed Replenishment Reserves were greater than considered
in the DMP/EIS. As a result, the final regulations designate the
Western Sambos area as an ER. The Key Largo and Dry Tortugas areas were
not made ERs in order to minimize adverse impacts to fishers. An area
of the Dry Tortugas with a boundary with less of an adverse impact on
fishers will be proposed to be designated at a later date.
Bait Fishing
Comment: Some reviewers recommended allowing baitfishing in SPAs
and ERs or reducing the number or size of SPAs to lessen the impact on
baitfishing.
Response: NOAA has revised the management plan to provide for the
issuance of permits for limited bait fishing in SPAs rather than reduce
the number of SPAs. NOAA will issue permits for catching ballyhoo for
bait by net.
Catch and Release Trolling
Comment: Some reviewers recommended allowing catch and release
trolling in SPAs and ERs or reducing the number or size of SPAs to
lessen the impact on this activity.
Response: Catch and release fishing will continue to be allowed
throughout greater than 98 percent of the Sanctuary. In addition, NOAA
has modified the management plan and regulations to allow catch and
release trolling in four of the eighteen SPAs: Conch Reef, Alligator
Reef, Sombrero Key, and Sand Key. This will facilitate multiple uses
and allow for comparisons to be made between SPAs, therefore
determining the impact of catch and release trolling.
Snorkeling/Diving Access
Comment: Some reviewers expressed concern about the lack of
restrictions on divers and snorkelers in the zones, asserting they harm
coral and other Sanctuary resources, while others commented that there
should be no access at all to any zones where access is restricted to
any one group.
Response: NOAA does not agree that all zones should be entirely
closed to public access. Non-consumptive use of SPAs and ERs is
compatible with the purposes for which they were established.
Consumptive activities (e.g., spearfishing, fish collecting, shell
collecting, lobstering) are prohibited in SPAs and ERs. Non-consumptive
activities (e.g., diving, snorkeling) are not expressly prohibited,
however regulations prohibit consumptive activities such as
spearfishing, and prohibit physical impacts to corals and coral reef
habitat by prohibiting contact (e.g., touching and standing).
Snorkeling and diving will be allowed in the Research-only Special-use
Areas only by permit. By being closed to snorkeling and diving, these
areas may then be
[[Page 4603]]
compared to SPAs and ERs to examine diver impacts.
Support the Zoning Plan
Comment: NOAA received a number of comments generally supporting
the Zoning Action Plan as proposed or requesting a larger proportion of
zoned areas.
Response: The zoning plan is the first attempt at large scale
marine zoning in the USA. Five years after the zones are implemented,
NOAA will lead a team to evaluate the effectiveness of zoning in
ecosystem protection. At that time the zones will be re-evaluated and
may be modified as necessary and/or appropriate.
Zoning Is Too Overbearing or Will Limit Work/Play
Comment: A number of reviewers expressed concern that the zoning
scheme is too restrictive and will unduly limit their ability to
conduct recreational and commercial activities.
Response: NOAA does not agree that the Zoning Action Plan overly
restricts traditional uses of the resources. The area encompassed by
the zones, including a Dry Tortugas ER, a boundary for which will be
proposed in the future, will comprise no more than five percent of the
Sanctuary. Moreover, non-consumptive uses (e.g., diving, snorkeling)
will not be prohibited in all zones. Consumptive uses (e.g., commercial
and sport fishing) will be restricted in SPAs and ERs and some Special-
use Areas. However, based on aerial surveys and visitor use data,
approximately 94 percent of the recreational fishers fish outside these
zones on a regular basis. Commercial fishers agreed early in the
planning process that they do not rely on SPAs as areas to conduct
their activities. The impact of ERs has been raised as a concern
because of the perceived displacement of commercial activities (e.g.,
fishers). The ERs have been re-designed to minimize impacts to such
activities through a process that relied on input from commercial
fishers. This input, in part, led NOAA to eliminate the Key Largo ER,
and postpone the establishment of a Dry Tortugas ER.
Sanctuary Preservation Areas and Ecological Reserves
Comment: Some reviewers expressed opposition to all SPAs and ERs.
Response: The purpose of a SPA is to protect a heavily used area of
the marine environment (e.g., coral reefs) where conflicts often occur
between user groups. These areas are critical for protecting the coral
reefs and biodiversity of the FKNMS. The purpose of an ER is to
minimize human influences, to provide natural spawning, nursery, and
permanent residence areas for the replenishment and genetic protection
of marine life, and to protect and preserve natural assemblages of
habitats and species, and restore natural ecosystem dynamics. The
FKNMSPA directed NOAA to consider temporal and geographic zoning.
Zoning is a proven tool for marine conservation and is consistent with
NOAA's mandate to accommodate multiple, compatible uses by providing
long-term benefits to all consumptive and non-consumptive users through
increased biodiversity.
Ecological Reserves are Redundant With Fisheries Management
Comment: Eliminate all ERs because they are redundant with
traditional fisheries management.
Response: NOAA does not agree. Zoning in the FKNMS is for habitat
protection and to preserve biodiversity, not for fisheries management.
Traditional fisheries management focuses on managing stocks of a small
number of the over 6000 species reported in the FKNMS. The primary
purpose of an ER is to protect a portion of the coral reef environment
(including seagrass beds, hardbottom, rubble habitats, patch reefs and
sand areas) from all forms of harvesting in order to restore natural
ecosystem dynamics.
The establishment of no-take areas in specific portions of the
coral reef tract should lead to replenishment of reef inhabitants that
are currently being lost, or whose balance in the ecosystem has been
altered. Moreover, with respect to fish stocks, some fisheries
scientists suggest that ERs provide ancillary benefits to fisheries,
similar to ``harvest refugia'' and other protected fisheries areas. The
ERs are an important tool for effective ecosystem management in the
FKNMS. NOAA will monitor the effectiveness of zoning in ecosystem
protection and consider modifications as necessary and reasonably
appropriate.
A Monitoring Program Is Needed To Determine the Viability of Zoning
Comment: A number of reviewers recommended the establishment of a
monitoring program to assess the viability of the zoning scheme.
Response: The Zoning Action Plan provides for the establishment of
a five-year monitoring program to assess the effectiveness of zoning in
the Sanctuary.
Western Sambos Ecological Reserve
Comment: A number of reviewers expressed concerns about commercial
fishing displacement as a result of establishment of the Western Sambos
ER.
Response: NOAA believes there will be some displacement of
fishermen, but that the long-term environmental benefits will far
outweigh short-term economic losses. The ecological value of protecting
the area does not warrant eliminating or modifying the boundary of the
ER.
Establishment of a Back Country ER and/or an Alligator Reef ER
Comment: Several reviewers recommended the establishment of an ER
in the Back Country and/or Alligator Reef. The State of Florida
recommended the establishment of a Back Country ER.
Response: A full ecosystem representation in a comprehensive zoning
plan should include Back Country marine habitats. However, given the
priorities established in the Zoning Action Plan, this cannot be
accomplished in the short-term, but will be considered for future
implementation in the five year review cycle.
Jewfish and Steamboat Creek Wildlife Management Areas
Comment: Some reviewers indicated that fishers and others regularly
transit through Jewfish Creek and Steamboat Creek and raised concern
over the proposed designation of no-access buffers in the Crocodile
Lake Wildlife Management Area.
Response: NOAA agrees. There was no intent to prohibit the use of
this area for transit. Thus, consistent with existing US Fish and
Wildlife Service regulations, the no-access designation was removed
from the final management plan and regulations.
Crocodile Lake Wildlife Management Area
Comment: Some reviewers indicated that the Crocodile Lake Wildlife
Management Area no-access restriction was too limiting.
Response: NOAA agrees and, upon consultation with the US Fish and
Wildlife Service and the Florida Game and Freshwater Fish Commission,
changed the designation of Crocodile Lake Wildlife Management Area to a
no-access buffer zone (100 feet) along the shoreline between the dates
March 1 and October 1.
Pelican Shoal Research-Only Special-Use Area
Comment: Many reviewers requested that Pelican Shoal be kept open
to public access. The Department of the Interior requested that a 50
meter buffer be established during Roseate Tern nesting season.
[[Page 4604]]
Response: NOAA agrees and has eliminated Pelican Shoal as a
Research-only Special-use Area. It has been replaced with the Eastern
Sambos Research-only Special-use Area. The new area will provide a
better research and monitoring site, while simultaneously lessening
impact on the public from limiting access to the reef around Pelican
Shoal. However, in order to complement the State's seasonal closure of
the land area, NOAA has designated a no-access 50 meter buffer as a
Wildlife Management Area around Pelican Shoal between April 1 and
August 31. These dates coincide with those established by the Florida
Game and Freshwater Fish Commission for the protection of nesting
terns.
Research Only Areas
Comment: Many comments supported the establishment of research-only
zones.
Response: NOAA agrees that some zones should be used to determine
the impacts of specific activities, such as diving and fishing. The
final management plan and regulations establish four Research-only
Special-use Areas. Pelican Shoal was eliminated as a Research-only
Special-use Area and a Research-only Special-use Area surrounding the
forereef habitat at Eastern Sambos has been added in its place. The
Eastern Sambos area will serve as a control to determine the impacts of
specific activities such as diving, snorkeling and fishing.
Furthermore, Eastern Sambos, which is located in an area of good water
quality, can be compared with the Tennessee Reef Research-only Special-
use Area, located in an area of poor water quality. The impacts
associated with water quality as compared to those from human uses can
also be determined from research and monitoring at these sites.
V. Miscellaneous Rulemaking Requirements
National Marine Sanctuaries Act
Section 304 of the NMSA requires the Secretary to submit to the
Committee on Resources of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the Senate, on
the same day as this notice is published, the final terms of the
designation, the final regulations, a FEIS, and a FMP detailing the
final goals and objectives, management responsibilities, research
activities, interpretive and educational programs, and enforcement and
surveillance activities, for the area. In accordance with Section 304,
the required documents are being submitted to the specified
Congressional Committees.
Executive Order 12866
Under Executive Order 12866, if a regulatory action is significant
as defined in section (3)(f ) of the Order, an assessment of the
potential costs and benefits of the action must be prepared and
submitted to the Office of Information and Regulatory Affairs (OIRA) of
OMB. The Administrator of NOAA has determined that although this
regulatory action is not expected to ``have an annual effect on the
economy of $100 million or more,'' or otherwise meet the definition of
a significant regulation under section 3(f) (1), (2), or (3), it is
significant under section 3(f) (4) in that certain controversial and
innovative aspects of the regulations may ``[r]aise novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in [the] Executive Order.''
Therefore, NOAA's assessment of the potential socio-economic
impacts on various user groups in the environmental impact statement
has been designed to also satisfy the Regulatory Impact Review (RIR)
requirements of Executive Order 12866. The assessment is contained in
three sections of the FMP/EIS:
(1) Volume III, Appendix M, Assessment of the Potential Costs and
Benefits of the Final Management Plan Regulations.
This appendix constitutes the primary component of both the RIR and
NOAA's FEIS. Appendix M reviews the problems and policy objectives
prompting the regulatory proposals and evaluates the major alternatives
that were considered. It demonstrates that NOAA systematically and
comprehensively considered all available alternatives in order to
ensure that the public welfare would be enhanced in the most efficient
and cost effective way possible.
(2) Volume II, pp. 175-96, The Socioeconomic Impacts of Management
Alternatives.
This section is the socio-economic impact analysis of the final
plan and supplements Appendix M.
(3) Volume I, pp 9-40, The Preferred Alternative/Management Plan.
This section is the heart of the EIS and describes the process and
reasoning of selecting the preferred alternative upon consideration of
public comments on the FMP/EIS and balancing the goals and requirements
of the NMSA and NEPA. It provides a narrative explanation of the way in
which resource protection and the public welfare were considered
together in building the FMP.
NOAA's socioeconomic assessment places special emphasis on the
marine zones established by the regulations, and the conduct of
activities in those zones. Particular attention is paid to the ERs and
SPAs, since the concept of no-take zones or reserves is the most
innovative and controversial element of the management plan and
regulations, and has aroused significant public interest and debate.
NOAA has concluded that these regulations will have broad benefits to
most users of the Florida Keys, especially the tourist industry which
is very significant from a local and State perspective. No significant
adverse socioeconomic impacts are anticipated to non-consumptive users.
Among consumptive users, most will not be affected greatly by the
marine zoning regulations but a small percentage will undergo some
costs from displacement from no-take areas. These costs are expected to
be offset with time as better habitat protection and protection of
biodiversity within the zones improves the ecological health of the
area.
Other regulations which received considerable public scrutiny
include those affecting the operation of vessels, particularly personal
watercraft (PWC) (e.g., jet-skis); and to a lesser extent the SCR
permit system regulation of commercial treasure salvage. NOAA's
approach to the PWC issue was multi-pronged and resulted in regulations
that apply to PWC as well as other vessels, and non-regulatory
management strategies which specifically apply to PWC. NOAA took public
input into account, as in its approach to all the regulations. The
final preferred alternative attempts to address user conflicts and
environmental concerns by avoiding regulatory impacts as much as
possible consistent with the major objectives of the Sanctuary. The
process is described in Vol. 1, pp. 16-17, in Appendix L (Comments
Received on the DMP/EIS and NOAA's Response), and in Appendix M.
NOAA also considered public comments, particularly those from the
commercial treasure salvage community, in revising the SCR permit
system to make it more pragmatic from the perspective of commercial
salvors while maintaining the primary objective of protecting the
submerged cultural resources. (See Vol. 1, pp. 20-24, and the relevant
sections in Appendix L and Appendix M.)
NOAA's preferred alternative in the FMP for zoning, PWC, the SCR
permit system and other issues has taken public comment into full
account and represents a considerable alteration from the draft plan so
as to disrupt users
[[Page 4605]]
as little as possible, without compromising the objectives of the
Sanctuary.
Regulatory Flexibility Act
As indicated in the FMP/EIS, and the response to comments, the
proposed Sanctuary regulations have been revised in careful
consideration of the impacts to the environment including socioeconomic
impacts on Sanctuary users, the large majority of which are small
business entities. Representatives of the user groups, including the
small entities were identified in the earliest stages of program
development and have participated throughout the public process. Small
entities were represented on the SAC, including fishing entities,
vessel-charter operators, recreation-tourism industry and commercial
treasure salvors.
The FMP/EIS sets forth the extensive public process which included
participation from the small entities operating in the Sanctuary at SAC
deliberations, as well as numerous Sanctuary user group workshops and
other public meetings. The economic impacts to the Sanctuary user
groups, which are almost entirely small entities, were considered
throughout the public process of plan-rule development. The impacts on
small entities which use the Sanctuary were considered as part of the
delicate balancing of protecting resources, and facilitating compatible
multiple use of the Sanctuary in a manner which ensures a sustainable
use of the Sanctuary for present and future generations. The
socioeconomic assessment briefly summarized the impacts on users from
various management strategy alternatives. Over 6,000 public comments
were received on the DEIS/MP and the proposed regulations. In addition
to comments from the aforementioned small entities, thousands of
comments were received from individuals working in the PWC industry.
Some representatives of the fishing industry criticized the DEIS
socioeconomic assessment of the zoning scheme.
In developing the final management plan and regulations, the SAC's
recommendations and the public comments were fully considered.
The final regulations specifically allow all activities to be
conducted in the Sanctuary other than those activities that are
specifically prohibited by the regulations or by other applicable
regulations and laws. Many of the activities that these regulations
prohibit are already prohibited by the terms of the FKNMSPA, as well as
by other State and Federal laws and regulations.
The regulatory procedures for requesting certifications for pre-
existing leases, licenses, permits, approvals, other authorizations or
rights authorizing the conduct of a prohibited activity or an activity
that would be prohibited, and for notifying NOAA of applications for
leases, licenses, permits, approvals, or other authorizations to
conduct a prohibited activity or an activity that would be prohibited
will all act to lessen any adverse economic effects on small entities.
Because the Assistant General Counsel for Legislation and
Regulation of the Department of Commerce certified to the Chief Counsel
for Advocacy of the Small Business Administration that the proposed
regulations, if adopted, would not have a significant economic impact
on a substantial number of small entities, an Initial Regulatory
Flexibility Analysis (IRFA) was not prepared. Nevertheless, because the
final regulations will affect a substantial number of small entities,
although not in an economically significant way, and particularly
because some representatives of the small entity fishing industry
criticized the DEIS socioeconomic assessment of the zoning scheme, a
Final Regulatory Flexibility Analysis (FRFA) was prepared that fully
complies with the requirements of Regulatory Flexibility Act. Those
requirements are found in section 604 of Title 5, United States Code.
Section 604(a)(1) requires that the FRFA contain a succinct
statement of the need for, and objectives of, the rule. The FKNMSPA
mandated the development of a FMP and implementing regulations in order
to protect and manage Sanctuary resources in manner which facilitates
multiple use of the Sanctuary which are compatible with the primary
objective of resource protection. The FMP/EIS and responses to comments
provide more specific details on the need for, and objectives of,
particular rules.
Section 604(a)(2) requires a summary of the significant issues
raised by the public comments in response to the IRFA, a summary of the
assessment of the agency of such issues, and a statement of any changes
made in the proposed rule as a result of such comments. While an IRFA
was not prepared, small business entities, including fisherman, charter
boat operators, commercial treasure salvors and tourist related
industries did comment on the draft regulations. NOAA's response to the
comments is set forth above, and is further explained in summary form
in the selection of the preferred alternative.
Section 604(a)(3) requires a description of, and an estimate of,
the number of small entities to which the rule will apply or an
explanation of why no such estimate is available. The small businesses
that directly use the Sanctuary and its resources and therefore will be
subject to the Sanctuary regulations include fisherman, salvors,
commercial treasure salvors, recreational charter boat operators, and
other tourist related operations. The FRFA sets forth the number of
small entities that may be affected by the regulations. The small
entities include: 1,875 fisherpersons with restricted species licenses,
535 licensed for-hire fishing firms, 100 dive charter businesses, 186
marinas, 75 boat rental businesses, 73 seafood dealers, 26 marine
salvage companies (recent casulaties), and 8 to 12 commercial treasure
salvage companies (does not include individuals who have not
incorporated).
Section 604(a)(4) requires that the FRFA contain a description of
the reporting, record keeping and other compliance requirements of the
rule, including an estimate of the classes of small entities which will
be subject to the requirement and the type of professional skills
necessary for preparation of the report or record. The Sanctuary
regulations require that permittees submit status reports for
activities covered by Sanctuary permits. The permitee must submit one
or more reports on the status, progress, or results of any activity
authorized by a permit. The permittee must submit an annual report
which describes all activities conducted under the permit and all
revenues derived from such activities during the year and/or the term
of the permit. The reporting requirement for SCR permits may be more
rigorous than the existing State contracts, but they are necessary to
preserve historical and archaeological information consistent with
existing Federal historic preservation laws. The number of small
entities which must comply with this requirement depends on the number
of applicants, and this is expected to be less than 20 applicants per
year.
Section 604(a)(5) requires a description of the steps taken to
minimize the significant economic impact on small entities consistent
with the stated objectives of applicable statutes, including a
statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency which
affect
[[Page 4606]]
the impact on small entities was rejected. Nearly every user of the
Sanctuary is a small entity. Thus, no broad accommodation for small
entities could be selected without compromising the resource protection
mandated of the NMSA and the FKNMSPA. However, as indicated in the
comments and responses, the selection of the preferred alternative and
the socio-economic impact analysis, particular regulations were revised
based on comments from user groups which are small business entities to
lessen adverse economic impacts on them where not inconsistent with the
objectives and purposes of the Sanctuary. For example, two ERs were
deleted in light of comments of the socioeconomic impacts on fishermen.
The SCR permit regulations were revised pursuant to comments of
commercial treasure salvors in order to make the permit requirements
more reasonable, practical and economically feasible from the user's
perspective.
As noted earlier, the final regulations specifically allow all
activities to be conducted in the Sanctuary other than those activities
that are specifically prohibited by the regulations or by other
applicable regulations and laws. The procedures in these regulations
for applying for National Marine Sanctuary permits to conduct otherwise
prohibited activities, for requesting certifications for pre-existing
leases, licenses, permits, approvals, other authorizations or rights
authorizing the conduct of a prohibited activity, and for notifying
NOAA of applications for leases, licenses, permits, approvals, or other
authorizations to conduct a prohibited activity would all act to lessen
any adverse economic effect on those conducting activities small
entities. The final regulations, in total, are not expected to have a
significant economic impact on a substantial number of small entities.
A copy of the FRFA may be obtained upon request (See Addresses).
Paperwork Reduction Act
Notwithstanding any other provisions of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection-of-information, subject to the
requirements of the Paperwork Reduction Act (Pub. L. No. 96-511),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) control number.
This final rule contains collection of information requirements
subject to the requirements of the Paperwork Reduction Act. These
requirements are as follows: general permits, historical resource
permits, special use permits, notifications, certifications, and
appeals. The collection of information requirement applies to persons
seeking permits to conduct otherwise prohibited activities and is
necessary to determine whether the final activities are consistent with
the management goals for the Sanctuary. The collection of information
requirement contained in the final rule has been approved by the Office
of Management and Budget. The public reporting burden per respondent
for the collection of information contained in this rule is estimated
to average 1.5 hours for general permit applications and reports, 6
hours for historical resource and special use permit applications and
reports, 0.5 hours for requests for notifications or certifications of
applications, and 0.25 hours for appeals. These estimates include the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Comments from the public on the
collection of information requirement, the burden estimates, and ways
of reducing these burdens are specifically invited and should be
addressed to the Office of Information and Regulatory Affairs, Office
of Management and Budget, Washington, D.C. 20503 (Attn: Desk Officer
for NOAA); and to Richard Roberts, Room 724, 6010 Executive Boulevard,
Rockville, MD 20852.
Executive Order 12612
A Federalism Assessment (FA) was prepared for the proposed
designation document, draft management plan, and proposed implementing
regulations. The FA concluded that all would be fully consistent with
the principles, criteria, and requirements set forth in sections 2
through 5 of Executive Order 12612, Federalism Considerations in Policy
Formulation and Implementation (52 FR 41685). Copies of the FA are
available upon request to the Office of Ocean and Coastal Resource
Management at the address listed in the address section above.
National Environmental Policy Act
In accordance with section 304(a)(2) of the Act (16 U.S.C.
1434(a)(2)), and the provisions of the National Environmental Policy
Act of 1969 (42 U.S.C. 4321-4370(a)), a draft and final EIS were
prepared for the designation and the regulations. As required by
section 304(a)(2), the EIS' include the resource assessment report
required by section 303(b)(3) of the Act (16 U.S.C. 1433(b)(3)), maps
depicting the boundaries of the designated area, and the existing and
potential uses and resources of the area. Copies of the FEIS are
available upon request to the Office of Ocean and Coastal Resource
Management at the address listed in the address section above.
Executive Order 12630
This final rule does not have takings implications within the
meaning of Executive Order 12630 because it does not appear to have an
effect on private property sufficiently severe as effectively to deny
economically viable use of any distinct legally potential property
interest to its owner or to have the effect of, or result in, a
permanent or temporary physical occupation, invasion, or deprivation.
While the prohibition on the exploration for, development, production
of minerals and hydrocarbons from the Sanctuary might have a takings
implication if it abrogated an existing lease for Outer Continental
Shelf (OCS) tracts within the Sanctuary or an approval of an
exploration or development and production plan, no OCS leases have been
sold for tracts within the Sanctuary and no exploration or production
and development plans have been filed or approved.
Unfunded Mandates Reform Act of 1995
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)) for State, local, and tribal governments or the private sector.
Thus, this rule is not subject to the requirements of section 202 and
205 of the UMRA.
List of Subjects in 50 CFR Parts 922, 929 and 937
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, natural resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
Dated: January 21, 1997.
David Evans,
Deputy Assistant Administrator for Ocean Services and Coastal Zone
Management.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
amended as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
1. The authority citation for Part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
2. Section 922.1 is revised as follows:
[[Page 4607]]
Sec. 922.1 Applicability of regulations.
Unless noted otherwise, the regulations in subparts A, D and E
apply to all eleven National Marine Sanctuaries for which site-specific
regulations appear in subparts F through P, respectively. Subparts B
and C apply to the site evaluation list and to the designation of
future Sanctuaries.
3. Section 922.3 is amended by revising the definitions of
``Historical resource'', ``National Marine Sanctuary'', and ``Sanctuary
quality'' as follows:
Sec. 922.3 Definitions.
* * * * *
Historical resource means any resource possessing historical,
cultural, archaeological or paleontological significance, including
sites, contextual information, structures, districts, and objects
significantly associated with or representative of earlier people,
cultures, maritime heritage, and human activities and events.
Historical resources include ``submerged cultural resources'', and also
include ``historical properties,'' as defined in the National Historic
Preservation Act, as amended, and its implementing regulations, as
amended.
* * * * *
Sanctuary quality means any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of
which is essential to the ecological health of the Sanctuary,
including, but not limited to, water quality, sediment quality and air
quality.
* * * * *
Sec. 922.3 [Amended]
4. In Sec. 922.3, in the first sentence of the definition of
``Sanctuary resource'' the word ``none-living'' is revised to read
``non-living''.
5. In Sec. 922.3, in the first sentence of the definition of
``State'' the word ``Samos'' is revised to read ``Samoa''.
6. In Sec. 922.3, in the first sentence of the definition of ``Take
or taking'' the word ``would'' is revised to read ``wound''.
7. Section 922.40 is revised to read as follows:
Sec. 922.40 Purpose.
The purpose of the regulations in this subpart and in subparts F
through P of this part is to implement the designations of the eleven
National Marine Sanctuaries for which site specific regulations appear
in subparts F through P of this part, respectively, by regulating
activities affecting them, consistent with their respective terms of
designation in order to protect, preserve and manage and thereby ensure
the health, integrity and continued availability of the conservation,
ecological, recreational, research, educational, historical and
aesthetic resources and qualities of these areas. Additional purposes
of the regulations implementing the designation of the Florida Keys
National Marine Sanctuary are found at Sec. 922.160.
8. Section 922.41 is revised to read as follows:
Sec. 922.41 Boundaries.
The boundary for each of the eleven National Marine Sanctuaries
covered by this part is described in subparts F through P of this part,
respectively.
9. Section 922.42 is revised to read as follows:
Sec. 922.42 Allowed Activities.
All activities (e.g., fishing, boating, diving, research,
education) may be conducted unless prohibited or otherwise regulated in
subparts F through P of this part, subject to any emergency regulations
promulgated pursuant to Secs. 922.44, 922.111(c), or Sec. 922.165,
subject to all prohibitions, regulations, restrictions, and conditions
validly imposed by any Federal, State, or local authority of competent
jurisdiction, including Federal and State fishery management
authorities, and subject to the provisions of section 312 of the Act.
The Assistant Administrator may only directly regulate fishing
activities pursuant to the procedure set forth in section 304(a)(5) of
the NMSA.
10. Section 922.43 is revised to read as follows:
Sec. 922.43 Prohibited or otherwise regulated activities.
Subparts F through P of this part set forth site-specific
regulations applicable to the activities specified therein.
11. Section 922.44 is revised to read as follows:
Sec. 922.44 Emergency Regulations.
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 and all such activities
are subject to immediate temporary regulation, including prohibition.
The provisions of this section do not apply to the Cordell Bank and
Florida Keys National Marine Sanctuaries. See Secs. 922.111(c) and
922.165, respectively, for the authority to issue emergency regulations
with respect to those sanctuaries.
12. Section 922.45 is amended by revising paragraph (a) as follows:
Sec. 922.45 Penalties.
(a) Each violation of the NMSA or FKNMSPA, 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.
* * * * *
13. Section 922.47 is amended by revising paragraph (b) as follows:
Sec. 922.47 Pre-existing authorizations or rights and certifications
of pre-existing authorizations or rights.
* * * * *
(b) The prohibitions listed in subparts F through P of this part do
not apply to any activity authorized by a valid lease, permit, license,
approval or other authorization in existence on the effective date of
Sanctuary designation, or in the case of the Florida Keys National
Marine Sanctuary the effective date of the regulations in this subpart
P, and issued by any Federal, State or local authority of competent
jurisdiction, or by any valid right of subsistence use or access in
existence on the effective date of Sanctuary designation, or in the
case of the Florida Keys National Marine Sanctuary the effective date
of the regulations in subpart P, provided that the holder of such
authorization or right complies with certification procedures and
criteria promulgated at the time of Sanctuary designation, or in the
case of the Florida Keys National Marine Sanctuary the effective date
of the regulations in subpart P of this part, and with any terms and
conditions on the exercise of such authorization or right imposed by
the Director as a condition of certification as the Director deems
necessary to achieve the purposes for which the Sanctuary was
designated.
14. Section 922.48 is amended by revising paragraphs (a) and (b) as
follows:
Sec. 922.48 National Marine Sanctuary permits--application procedures
and issuance criteria.
(a) A person may conduct an activity prohibited by subparts F
through O of this part if conducted in accordance with the scope,
purpose, terms and conditions of a permit issued under this section and
subparts F through O of this part. For the Florida Keys National Marine
Sanctuary, a person may conduct an activity prohibited by subpart P if
conducted in accordance with the scope, purpose, terms and conditions
of a permit issued under Sec. 922.166.
(b) Applications for permits to conduct activities otherwise
prohibited by subparts F through O of this part
[[Page 4608]]
should be addressed to the Director and sent to the address specified
in subparts F through O of this part. An application must include:
* * * * *
15. Section 922.49 is revised to read as follows:
Sec. 922.49 Notification and review of applications for leases,
licenses, permits, approvals, or other authorizations to conduct a
prohibited activity.
(a) A person may conduct an activity prohibited by subparts L
through P of this part if such activity is specifically authorized by
any valid Federal, State, or local lease, permit, license, approval, or
other authorization issued after the effective date of Sanctuary
designation, or in the case of the Florida Keys National Marine
Sanctuary after the effective date of the regulations in subpart P of
this part, provided that:
(1) The applicant notifies the Director, in writing, of the
application for such authorization (and of any application for an
amendment, renewal, or extension of such authorization) within fifteen
(15) days of the date of filing of the application or the effective
date of Sanctuary designation, or in the case of the Florida Keys
National Marine Sanctuary the effective date of the regulations in
subpart P of this part, whichever is later;
(2) The applicant complies with the other provisions of this
Sec. 922.49;
(3) The Director notifies the applicant and authorizing agency that
he or she does not object to issuance of the authorization (or
amendment, renewal, or extension); and
(4) The applicant complies with any terms and conditions the
Director deems reasonably necessary to protect Sanctuary resources and
qualities.
(b) Any potential applicant for an authorization described in
paragraph (a) of this section may request the Director to issue a
finding as to whether the activity for which an application is intended
to be made is prohibited by subparts L through P of this part.
(c) Notification of filings of applications should be sent to the
Director, Office of Ocean and Coastal Resource Management at the
address specified in subparts L through P of this part. A copy of the
application must accompany the notification.
(d) The Director may request additional information from the
applicant as he or she deems reasonably necessary to determine whether
to object to issuance of an authorization described in paragraph (a) of
this section, or what terms and conditions are reasonably necessary to
protect Sanctuary resources and qualities. The information requested
must be received by the Director within 45 days of the postmark date of
the request. The Director may seek the views of any persons on the
application.
(e) The Director shall notify, in writing, the agency to which
application has been made of his or her pending review of the
application and possible objection to issuance. Upon completion of
review of the application and information received with respect
thereto, the Director 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 reasonably necessary to protect
Sanctuary resources and qualities, and reasons therefor.
(f) The Director may amend the terms and conditions deemed
reasonably 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
Sec. 922.49 may be extended by the Director for good cause.
(h) The applicant may appeal any objection by, or terms or
conditions imposed by, the Director to the Assistant Administrator or
designee in accordance with the provisions of Sec. 922.50.
16. In Sec. 922.50 paragraphs (a)(1) and (a)(1)(iii) are amended by
moving ``L through O'' and adding ``L through P''.
17. Part 922 is amended by adding a new subpart P immediately
following subpart O as follows:
Subpart P--Florida Keys National Marine Sanctuary
Sec. 922.160 Purpose.
Sec. 922.161 Boundary.
Sec. 922.162 Definitions.
Sec. 922.163 Prohibited activities--Sanctuary-wide.
Sec. 922.164 Additional activity regulations by Sanctuary area.
Sec. 922.165 Emergency regulations.
Sec. 922.166 Sanctuary permits--application procedures and issuance
criteria.
Sec. 922.167 Certification of preexisting leases, licenses,
permits, approvals, other authorizations, or rights to conduct a
prohibited activity.
Appendix I to Subpart P of Part 922--Florida Keys National Marine
Sanctuary boundary coordinates
Appendix II to Subpart P of Part 922--Existing Management Areas
boundary coordinates
Appendix III to Subpart P of Part 922--Wildlife Management Areas
access restrictions
Appendix IV to Subpart P of Part 922--Ecological Reserves boundary
coordinates
Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas
boundary coordinates
Appendix VI to Subpart P of Part 922--Special-use Areas boundary
coordinates and use designations
Appendix VII to Subpart P of Part 922--Areas To Be Avoided boundary
coordinates
Appendix VIII to Subpart P of Part 922--Marine Life Rule
Subpart P--Florida Keys National Marine Sanctuary
Sec. 922.160 Purpose.
The purpose of the regulations in this part is to implement the
comprehensive management plan for the Florida Keys National Marine
Sanctuary by regulating activities affecting the resources of the
Sanctuary or any of the qualities, values, or purposes for which the
Sanctuary is designated, in order to protect, preserve and manage the
conservation, ecological, recreational, research, educational,
historical, and aesthetic resources and qualities of the area. In
particular, the regulations in this part are intended to protect,
restore, and enhance the living resources of the Sanctuary, to
contribute to the maintenance of natural assemblages of living
resources for future generations, to provide places for species
dependent on such living resources to survive and propagate, to
facilitate to the extent compatible with the primary objective of
resource protection all public and private uses of the resources of the
Sanctuary not prohibited pursuant to other authorities, to reduce
conflicts between such compatible uses, and to achieve the other
policies and purposes of the Florida Keys National Marine Sanctuary and
Protection Act and the National Marine Sanctuaries Act.
Sec. 922.161 Boundary.
The Sanctuary consists of all submerged lands and waters from the
mean high water mark to the boundary described in Appendix I to this
part, with the exception of areas within the Dry Tortugas National
Park. Appendix I to this subpart sets forth the precise Sanctuary
boundary established by the Florida Keys National Marine Sanctuary and
Protection Act. (See FKNMSPA section 5(b)(2)).
Sec. 922.162 Definitions.
(a) The following definitions apply to the Florida Keys National
Marine Sanctuary regulations. To the extent that a definition appears
in Sec. 922.3 and this section, the definition in this section governs.
Acts means the Florida Keys National Marine Sanctuary and
Protection Act, as amended, (FKNMSPA) (Pub. L. 101-
[[Page 4609]]
605), and the National Marine Sanctuaries Act (NMSA), also known as
Title III of the Marine Protection, Research, and Sanctuaries Act, as
amended, (MPRSA) (16 U.S.C. 1431 et seq.).
Adverse effect means any factor, force, or action that
independently or cumulatively damages, diminishes, degrades, impairs,
destroys, or otherwise harms any Sanctuary resource, as defined in
section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or
any of the qualities, values, or purposes for which the Sanctuary is
designated.
Airboat means a vessel operated by means of a motor driven
propeller that pushes air for momentum.
Areas To Be Avoided means the areas in which vessel operations are
prohibited pursuant to section 6(a)(1) of the FKNMSPA (see
Sec. 922.164(a)). Appendix VII to this subpart sets forth the
geographic coordinates of these areas, including any modifications
thereto made in accordance with section 6(a)(3) of the FKNMSPA.
Closed means all entry or use is prohibited.
Coral means the corals of the Class Hydrozoa (stinging and
hydrocorals); the Class Anthozoa, Subclass Hexacorallia, Order
Scleractinia (stony corals) and Antipatharia (black corals).
Coral area means marine habitat where coral growth abounds
including patch reefs, outer bank reefs, deepwater banks, and
hardbottoms.
Coral reefs means the hard bottoms, deep-water banks, patch reefs,
and outer bank reefs.
Ecological Reserve means an area of the Sanctuary consisting of
contiguous, diverse habitats, within which uses are subject to
conditions, restrictions and prohibitions, including access
restrictions, intended to minimize human influences, to provide natural
spawning, nursery, and permanent residence areas for the replenishment
and genetic protection of marine life, and also to protect and preserve
natural assemblages of habitats and species within areas representing a
broad diversity of resources and habitats found within the Sanctuary.
Appendix IV to this subpart sets forth the geographic coordinates of
these areas.
Existing Management Area means an area of the Sanctuary that is
within or is a resource management area established by NOAA or by
another Federal authority of competent jurisdiction as of the effective
date of these regulations where protections above and beyond those
provided by Sanctuary-wide prohibitions and restrictions are needed to
adequately protect resources. Appendix II to this subpart sets forth
the geographic coordinates of these areas.
Exotic species means a species of plant, invertebrate, fish,
amphibian, reptile or mammal whose natural zoogeographic range would
not have included the waters of the Atlantic Ocean, Caribbean, or Gulf
of Mexico without passive or active introduction to such area through
anthropogenic means.
Fish means finfish, mollusks, crustaceans, and all forms of marine
animal and plant life other than marine mammals and birds.
Fishing means: (1) The catching, taking, or harvesting of fish; the
attempted catching, taking, or harvesting of fish; any other activity
which can reasonably be expected to result in the catching, taking, or
harvesting of fish; or any operation at sea in support of, or in
preparation for, any activity described in this subparagraph (1).
(2) Such term does not include any scientific research activity
which is conducted by a scientific research vessel.
Hardbottom means a submerged marine community comprised of
organisms attached to exposed solid rock substrate. Hardbottom is the
substrate to which corals may attach but does not include the corals
themselves.
Idle speed only/no-wake means a speed at which a boat is operated
that is no greater than 4 knots or does not produce a wake.
Idle speed only/no-wake zone means a portion of the Sanctuary where
the speed at which a boat is operated may be no greater than 4 knots or
may not produce a wake.
Live rock means any living marine organism or an assemblage thereof
attached to a hard substrate, including dead coral or rock but not
individual mollusk shells (e.g., scallops, clams, oysters). Living
marine organisms associated with hard bottoms, banks, reefs, and live
rock may include, but are not limited to: sea anemones (Phylum
Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera);
tube worms (Phylum Annelida), including fan worms, feather duster
worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts
(Phylum Chordata); and marine algae, including Mermaid's fan and cups
(Udotea spp.), corraline algae, green feather, green grape algae
(Caulerpa spp.) and watercress (Halimeda spp.).
Marine life species means any species of fish, invertebrate, or
plant included in sections (2), (3), or (4) of Rule 46-42.001, Florida
Administrative Code, reprinted in Appendix VIII to this subpart.
Military activity means an activity conducted by the Department of
Defense with or without participation by foreign forces, other than
civil engineering and other civil works projects conducted by the U.S.
Army Corps of Engineers.
No-access buffer zone means a portion of the Sanctuary where
vessels are prohibited from entering regardless of the method of
propulsion.
No motor zone means an area of the Sanctuary where the use of
internal combustion motors is prohibited. A vessel with an internal
combustion motor may access a no motor zone only through the use of a
push pole, paddle, sail, electric motor or similar means of operation
but is prohibited from using it's internal combustion motor.
Not available for immediate use means not readily accessible for
immediate use, e.g., by being stowed unbaited in a cabin, locker, rod
holder, or similar storage area, or by being securely covered and
lashed to a deck or bulkhead.
Officially marked channel means a channel marked by Federal, State
of Florida, or Monroe County officials of competent jurisdiction with
navigational aids except for channels marked idle speed only/no wake.
Personal watercraft means any jet or air-powered watercraft
operated by standing, sitting, or kneeling on or behind the vessel, in
contrast to a conventional boat, where the operator stands or sits
inside the vessel, and that uses an inboard engine to power a water jet
pump for propulsion, instead of a propeller as in a conventional boat.
Prop dredging means the use of a vessel's propulsion wash to dredge
or otherwise alter the seabed of the Sanctuary. Prop dredging includes,
but is not limited to, the use of propulsion wash deflectors or similar
means of dredging or otherwise altering the seabed of the Sanctuary.
Prop dredging does not include the disturbance to bottom sediments
resulting from normal vessel propulsion.
Prop scarring means the injury to seagrasses or other immobile
organisms attached to the seabed of the Sanctuary caused by operation
of a vessel in a manner that allows its propeller or other running
gear, or any part thereof, to cause such injury (e.g., cutting seagrass
rhizomes). Prop scarring does not include minor disturbances to bottom
sediments or seagrass blades resulting from normal vessel propulsion.
Residential shoreline means any man-made or natural:
(1) Shoreline,
(2) Canal mouth,
[[Page 4610]]
(3) Basin, or
(4) Cove adjacent to any residential land use district, including
improved subdivision, suburban residential or suburban residential
limited, sparsely settled, urban residential, and urban residential
mobile home under the Monroe County land development regulations.
Sanctuary means the Florida Keys National Marine Sanctuary.
Sanctuary Preservation Area means an area of the Sanctuary that
encompasses a discrete, biologically important area, within which uses
are subject to conditions, restrictions and prohibitions, including
access restrictions, to avoid concentrations of uses that could result
in significant declines in species populations or habitat, to reduce
conflicts between uses, to protect areas that are critical for
sustaining important marine species or habitats, or to provide
opportunities for scientific research. Appendix V to this subpart sets
forth the geographic coordinates of these areas.
Sanctuary wildlife means any species of fauna, including avifauna,
that occupy or utilize the submerged resources of the Sanctuary as
nursery areas, feeding grounds, nesting sites, shelter, or other
habitat during any portion of their life cycles.
Seagrass means any species of marine angiosperms (flowering plants)
that inhabit portions of the seabed in the Sanctuary. Those species
include, but are not limited to: Thalassia testudinum (turtle grass);
Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass);
Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima.
Special-use Area means an area of the Sanctuary set aside for
scientific research and educational purposes, recovery or restoration
of Sanctuary resources, monitoring, to prevent use or user conflicts,
to facilitate access and use, or to promote public use and
understanding of Sanctuary resources. Appendix VI to this part sets
forth the geographic coordinates of these areas.
Tank vessel means any vessel that is constructed or adapted to
carry, or that carries, oil or hazardous material in bulk as cargo or
cargo residue, and that--
(1) Is a United States flag vessel;
(2) Operates on the navigable waters of the United States; or
(3) Transfers oil or hazardous material in a port or place subject
to the jurisdiction of the United States [46 U.S.C. 2101].
Traditional fishing means those commercial or recreational fishing
activities that were customarily conducted within the Sanctuary prior
to its designation as identified in the Environmental Impact Statement
and Management Plan for this Sanctuary.
Tropical fish means any species included in section (2) of Rule 46-
42.001, Florida Administrative Code, reproduced in Appendix VIII to
this subpart, or any part thereof.
Vessel means a watercraft of any description, including, but not
limited to, motorized and non-motorized watercraft, personal
watercraft, airboats, and float planes while maneuvering on the water,
capable of being used as a means of transportation in/on the waters of
the Sanctuary. For purposes of this part, the terms ``vessel,''
``watercraft,'' and ``boat'' have the same meaning.
Wildlife Management Area means an area of the Sanctuary established
for the management, protection, and preservation of Sanctuary wildlife
resources, including such an area established for the protection and
preservation of endangered or threatened species or their habitats,
within which access is restricted to minimize disturbances to Sanctuary
wildlife; to ensure protection and preservation consistent with the
Sanctuary designation and other applicable law governing the protection
and preservation of wildlife resources in the Sanctuary. Appendix III
to this subpart lists these areas and their access restrictions.
(b) Other terms appearing in the regulations in this part are
defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and
Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16
U.S.C. 1431 et seq.
Sec. 922.163 Prohibited activities--Sanctuary-wide.
(a) Except as specified in paragraph (b) through (e) of this
section, the following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted:
(1) Mineral and hydrocarbon exploration, development and
production. Exploring for, developing, or producing minerals or
hydrocarbons within the Sanctuary.
(2) Removal of, injury to, or possession of coral or live rock. (i)
Moving, removing, taking, harvesting, damaging, disturbing, breaking,
cutting, or otherwise injuring, or possessing (regardless of where
taken from) any living or dead coral, or coral formation, or attempting
any of these activities, except as permitted under 50 CFR part 638.
(ii) Harvesting, or attempting to harvest, any live rock from the
Sanctuary, or possessing (regardless of where taken from) any live rock
within the Sanctuary, except as authorized by a permit for the
possession or harvest from aquaculture operations in the Exclusive
Economic Zone, issued by the National Marine Fisheries Service pursuant
to applicable regulations under the appropriate Fishery Management
Plan, or as authorized by the applicable State authority of competent
jurisdiction within the Sanctuary for live rock cultured on State
submerged lands leased from the State of Florida, pursuant to
applicable State law. See Sec. 370.027, Florida Statutes and
implementing regulations.
(3) Alteration of, or construction on, the seabed. Drilling into,
dredging, or otherwise altering the seabed of the Sanctuary, or
engaging in prop-dredging; or constructing, placing or abandoning any
structure, material, or other matter on the seabed of the Sanctuary,
except as an incidental result of:
(i) Anchoring vessels in a manner not otherwise prohibited by this
part (see Secs. 922.163(a)(5)(ii) and 922.164(d)(1)(v));
(ii) Traditional fishing activities not otherwise prohibited by
this part;
(iii) Installation and maintenance of navigational aids by, or
pursuant to valid authorization by, any Federal, State, or local
authority of competent jurisdiction;
(iv) Harbor maintenance in areas necessarily associated with
Federal water resource development projects in existence on [insert
effect date of these regulations], including maintenance dredging of
entrance channels and repair, replacement, or rehabilitation of
breakwaters or jetties;
(v) Construction, repair, replacement, or rehabilitation of docks,
seawalls, breakwaters, piers, or marinas with less than ten slips
authorized by any valid lease, permit, license, approval, or other
authorization issued by any Federal, State, or local authority of
competent jurisdiction.
(4) Discharge or deposit of materials or other matter. (i)
Discharging or depositing, from within the boundary of the Sanctuary,
any material or other matter, except:
(A) Fish, fish parts, chumming materials, or bait used or produced
incidental to and while conducting a traditional fishing activity in
the Sanctuary;
(B) Biodegradable effluent incidental to vessel use and generated
by a marine sanitation device approved in accordance with Section 312
of the Federal Water Pollution Control Act, as amended, (FWPCA), 33
U.S.C. 1322 et seq.;
[[Page 4611]]
(C) Water generated by routine vessel operations (e.g., deck wash
down and graywater as defined in section 312 of the FWPCA), excluding
oily wastes from bilge pumping; or
(D) Cooling water from vessels or engine exhaust;
(ii) Discharging or depositing, from beyond the boundary of the
Sanctuary, any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality, except those
listed in paragraph (a)(4)(i)(A) through (D) of this section and those
authorized under Monroe County land use permits.
(5) Operation of vessels. (i) Operating a vessel in such a manner
as to strike or otherwise injure coral, seagrass, or any other immobile
organism attached to the seabed, including, but not limited to,
operating a vessel in such a manner as to cause prop-scarring.
(ii) Having a vessel anchored on living coral other than hardbottom
in water depths less than 40 feet when visibility is such that the
seabed can be seen.
(iii) Except in officially marked channels, operating a vessel at a
speed greater than 4 knots or in a manner which creates a wake:
(A) Within an area designated idle speed only/no wake;
(B) Within 100 yards of navigational aids indicating emergent or
shallow reefs (international diamond warning symbol);
(C) Within 100 feet of the red and white ``divers down'' flag (or
the blue and white ``alpha'' flag in Federal waters);
(D) Within 100 yards of residential shorelines; or
(E) Within 100 yards of stationary vessels.
(iv) Operating a vessel in such a manner as to injure or take
wading, roosting, or nesting birds or marine mammals.
(v) Operating a vessel in a manner which endangers life, limb,
marine resources, or property.
(6) Conduct of diving/snorkeling without flag. Diving or snorkeling
without flying in a conspicuous manner the red and white ``divers
down'' flag (or the blue and white ``alpha'' flag in Federal waters).
(7) Release of exotic species. Introducing or releasing an exotic
species of plant, invertebrate, fish, amphibian, or mammals into the
Sanctuary.
(8) Damage or removal of markers. Marking, defacing, or damaging in
any way or displacing, removing, or tampering with any official signs,
notices, or placards, whether temporary or permanent, or with any
navigational aids, monuments, stakes, posts, mooring buoys, boundary
buoys, trap buoys, or scientific equipment.
(9) Movement of, removal of, injury to, or possession of Sanctuary
historical resources. Moving, removing, injuring, or possessing, or
attempting to move, remove, injure, or possess, a Sanctuary historical
resource.
(10) Take or possession of protected wildlife. Taking any marine
mammal, sea turtle, or seabird in or above the Sanctuary, except as
authorized by 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.
(11) Possession or use of explosives or electrical charges.
Possessing, or using explosives, except powerheads, or releasing
electrical charges within the Sanctuary.
(12) Harvest or possession of marine life species. Harvesting,
possessing, or landing any marine life species, or part thereof, within
the Sanctuary, except in accordance with rules 46-42.001 through 46-
42.003, 46-42.0035, and 46-42.004 through 46-42.007, and 46.42.009 of
the Florida Administrative Code, reproduced in Appendix VIII to this
subpart, and such rules shall apply mutatis mutandis (with necessary
editorial changes) to all Federal and State waters within the
Sanctuary.
(13) Interference with law enforcement. Interfering with,
obstructing, delaying or preventing an investigation, search, seizure,
or disposition of seized property in connection with enforcement of the
Acts or any regulation or permit issued under the Acts.
(b) Notwithstanding the prohibitions in this section and in
Sec. 922.164, and any access and use restrictions imposed pursuant
thereto, a person may conduct an activity specifically authorized by,
and conducted in accordance with the scope, purpose, terms, and
conditions of, a National Marine Sanctuary permit issued pursuant to
Sec. 922.166.
(c) Notwithstanding the prohibitions in this section and in
Sec. 922.164, and any access and use restrictions imposed pursuant
thereto, a person may conduct an activity specifically authorized by a
valid Federal, State, or local lease, permit, license, approval, or
other authorization in existence on the effective date of these
regulations, or by any valid right of subsistence use or access in
existence on the effective date of these regulations, provided that the
holder of such authorization or right complies with Sec. 922.167 and
with any terms and conditions on the exercise of such authorization or
right imposed by the Director as a condition of certification as he or
she deems reasonably necessary to achieve the purposes for which the
Sanctuary was designated.
(d) Notwithstanding the prohibitions in this section and in
Sec. 922.164, and any access and use restrictions imposed pursuant
thereto, a person may conduct an activity specifically authorized by
any valid Federal, State, or local lease, permit, license, approval, or
other authorization issued after the effective date of these
regulations, provided that the applicant complies with Sec. 922.168,
the Director 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 deems reasonably
necessary to protect Sanctuary resources and qualities. Amendments,
renewals and extensions of authorizations in existence on the effective
date of these regulations constitute authorizations issued after the
effective date of these regulations.
(e)(1) All military activities shall be carried out in a manner
that avoids to the maximum extent practical any adverse impacts on
Sanctuary resources and qualities. The prohibitions in paragraph (a) of
this section and Sec. 922.164 do not apply to existing classes of
military activities which were conducted prior to the effective date of
these regulations, as identified in the Environmental Impact Statement
and Management Plan for the Sanctuary. New military activities in the
Sanctuary are allowed and may be exempted from the prohibitions in
paragraph (a) of this section and in Sec. 922.164 by the Director after
consultation between the Director and the Department of Defense
pursuant to section 304(d) of the NMSA. When a military activity is
modified such that it is likely to destroy, cause the loss of, or
injure a Sanctuary resource or quality in a manner significantly
greater than was considered in a previous consultation under section
304(d) of the NMSA, or it is likely to destroy, cause the loss of, or
injure a Sanctuary resource or quality not previously considered in a
previous consultation under section 304(d) of the NMSA, the activity is
considered a new activity for purposes of this paragraph. 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 practical any
adverse impact on Sanctuary resources and qualities.
(2) In the event of threatened or actual destruction of, loss of,
or injury to a Sanctuary resource or quality resulting
[[Page 4612]]
from an untoward incident, including but not limited to spills and
groundings caused by the Department of Defense, the cognizant component
shall promptly coordinate with the Director for the purpose of taking
appropriate actions to prevent, respond to or mitigate the harm and, if
possible, restore or replace the Sanctuary resource or quality.
(f) The prohibitions contained in paragraph (a)(5) of this section
do not apply to Federal, State and local officers while performing
enforcement duties and/or responding to emergencies that threaten life,
property, or the environment in their official capacity.
(g) Notwithstanding paragraph (b) of this section and paragraph (a)
of Sec. 922.168, in no event may the Director issue a permit under
Sec. 922.166 authorizing, or otherwise approve, the exploration for,
leasing, development, or production of minerals or hydrocarbons within
the Sanctuary, the disposal of dredged material within the Sanctuary
other than in connection with beach renourishment or Sanctuary
restoration projects, or the discharge of untreated or primary treated
sewage (except by a certification, pursuant to Sec. 922.167, of a valid
authorization in existence on the effective date of these regulations),
and any purported authorizations issued by other authorities after the
effective date of these regulations for any of these activities within
the Sanctuary shall be invalid.
Sec. 922.164 Additional activity regulations by Sanctuary area.
In addition to the prohibitions set forth in Sec. 922.163, which
apply throughout the Sanctuary, the following regulations apply with
respect to activities conducted within the Sanctuary areas described in
this section and in Appendix (II) through (VII) to this subpart.
Activities located within two or more overlapping Sanctuary areas are
concurrently subject to the regulations applicable to each overlapping
area.
(a) Areas To Be Avoided. Operating a tank vessel or a vessel
greater than 50 meters in registered length is prohibited in all areas
to be avoided, except if such vessel is a public vessel and its
operation is essential for national defense, law enforcement, or
responses to emergencies that threaten life, property, or the
environment. Appendix VII to this subpart sets forth the geographic
coordinates of these areas.
(b) Existing Management Areas.--(1) Key Largo and Looe Key
Management Areas. The following activities are prohibited within the
Key Largo and Looe Key Management Areas (also known as the Key Largo
and Looe Key National Marine Sanctuaries) described in Appendix II to
this subpart:
(i) Removing, taking, damaging, harmfully disturbing, breaking,
cutting, spearing or similarly injuring any coral or other marine
invertebrate, or any plant, soil, rock, or other material, except
commercial taking of spiny lobster and stone crab by trap and
recreational taking of spiny lobster by hand or by hand gear which is
consistent with these regulations and the applicable regulations
implementing the applicable Fishery Management Plan.
(ii) Taking any tropical fish.
(iii) Fishing with wire fish traps, bottom trawls, dredges, fish
sleds, or similar vessel-towed or anchored bottom fishing gear or nets.
(iv) Fishing with, carrying or possessing, except while passing
through without interruption or for law enforcement purposes: pole
spears, air rifles, bows and arrows, slings, Hawaiian slings, rubber
powered arbaletes, pneumatic and spring-loaded guns or similar devices
known as spearguns.
(2) Great White Heron and Key West National Wildlife Refuge
Management Areas. Operating a personal watercraft, operating an
airboat, or water skiing except within Township 66 South, Range 29
East, Sections 5, 11, 12 and 14; Township 66 South, Range 28 East,
Section 2; Township 67 South, Range 26 East, Sections 16 and 20, all
Tallahassee Meridian, are prohibited within the marine portions of the
Great White Heron and Key West National Wildlife Refuge Management
Areas described in Appendix II to this subpart:
(c) Wildlife Management Areas. (1) Marine portions of the Wildlife
Management Areas listed in Appendix III to this subpart or portions
thereof may be designated ``idle speed only/no-wake,'' ``no-motor'' or
``no-access buffer'' zones or ``closed''. The Director, in cooperation
with other Federal, State, or local resource management authorities, as
appropriate, shall post signs conspicuously, using mounting posts,
buoys, or other means according to location and purpose, at appropriate
intervals and locations, clearly delineating an area as an ``idle speed
only/no wake'', a ``no-motor'', or a ``no-access buffer'' zone or as
``closed'', and allowing instant, long-range recognition by boaters.
Such signs shall display the official logo of the Sanctuary.
(2) The following activities are prohibited within the marine
portions of the Wildlife Management Areas listed in Appendix III to
this subpart:
(i) In those marine portions of any Wildlife Management Area
designated an ``idle speed only/no wake'' zone in Appendix III to this
subpart, operating a vessel at a speed greater that idle speed only/no
wake.
(ii) In those marine portions of any Wildlife Management Area
designated a ``no-motor'' zone in Appendix III to this subpart, using
internal combustion motors or engines for any purposes. A vessel with
an internal combustion motor or engine may access a ``no-motor'' zone
only through the use of a push pole, paddle, sail, electric motor or
similar means of propulsion.
(iii) In those marine portions of any Wildlife Management Area
designated a ``no-access buffer'' zone in Appendix III of this subpart,
entering the area by vessel.
(iv) In those marine portions of any Wildlife Management Area
designated as closed in Appendix III to this subpart, entering or using
the area.
(3) The Director shall coordinate with other Federal, State, or
local resource management authorities, as appropriate, in the
establishment and enforcement of access restrictions described in
paragraph (c)(2) (i)-(iv) of this section in the marine portions of
Wildlife Management Areas.
(4) The Director may modify the number and location of access
restrictions described in paragraph (c)(2) (i)-(iv) of this section
within the marine portions of a Wildlife Management Area if the
Director finds that such action is reasonably necessary to minimize
disturbances to Sanctuary wildlife, or to ensure protection and
preservation of Sanctuary wildlife consistent with the purposes of the
Sanctuary designation and other applicable law governing the protection
and preservation of wildlife resources in the Sanctuary. The Director
will effect such modification by:
(i) Publishing in the Federal Register, after notice and an
opportunity for public comments in accordance, an amendment to the list
of such areas set forth in Appendix III to this subpart, and a notice
regarding the time and place where maps depicting the precise locations
of such restrictions will be made available for public inspection, and
(ii) Posting official signs delineating such restrictions in
accordance with paragraph (c)(1) of this section.
(d) Ecological Reserves and Sanctuary Preservation Areas. (1) The
following activities are prohibited within the Ecological Reserves
described in Appendix IV to this subpart, and within the Sanctuary
Preservation Areas, described in Appendix V to this subpart:
[[Page 4613]]
(i) Discharging or depositing any material or other matter except
cooling water or engine exhaust.
(ii) Possessing, moving, harvesting, removing, taking, damaging,
disturbing, breaking, cutting, spearing, or otherwise injuring any
coral, marine invertebrate, fish, bottom formation, algae, seagrass or
other living or dead organism, including shells, or attempting any of
these activities. However, fish, invertebrates, and marine plants may
be possessed aboard a vessel in an Ecological Reserve or Sanctuary
Preservation Area, provided such resources can be shown not to have
been harvested within, removed from, or taken within, the Ecological
Reserve or Sanctuary Preservation Area, as applicable, by being stowed
in a cabin, locker, or similar storage area prior to entering and
during transit through such reserves or areas.
(iii) Except for catch and release fishing by trolling in the Conch
Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any
means. However, gear capable of harvesting fish may be aboard a vessel
in an Ecological Reserve or Sanctuary Preservation Area, provided such
gear is not available for immediate use when entering and during
transit through such Ecological Reserve or Sanctuary Preservation Area,
and no presumption of fishing activity shall be drawn therefrom.
(iv) Touching living or dead coral, including but not limited to,
standing on a living or dead coral formation.
(v) Placing any anchor in a way that allows the anchor or any
portion of the anchor apparatus (including the anchor, chain or rope)
to touch living or dead coral, or any attached organism. When anchoring
dive boats, the first diver down must inspect the anchor to ensure that
it is not touching living or dead coral, and will not shift in such a
way as to touch such coral or other attached organisms. No further
diving shall take place until the anchor is placed in accordance with
these requirements.
(vi) Anchoring instead of mooring when a mooring buoy is available
or anchoring in other than a designated anchoring area when such areas
have been designated and are available.
(vii) Except for passage without interruption through the area, for
law enforcement purposes, or for purposes of monitoring pursuant to
paragraph (d)(2) of this section, violating a temporary access
restriction imposed by the Director pursuant to paragraph (d)(2) of
this section.
(2) The Director may temporarily restrict access to any portion of
any Sanctuary Preservation Area or Ecological Reserve if the Director,
on the basis of the best available data, information and studies,
determines that a concentration of use appears to be causing or
contributing to significant degradation of the living resources of the
area and that such action is reasonably necessary to allow for recovery
of the living resources of such area. The Director will provide for
continuous monitoring of the area during the pendency of the
restriction. The Director will provide public notice of the restriction
by publishing a notice in the Federal Register, and by such other means
as the Director may deem appropriate. The Director may only restrict
access to an area for a period of 60 days, with one additional 60 day
renewal. The Director may restrict access to an area for a longer
period pursuant to a notice and opportunity for public comment
rulemaking under the Administrative Procedure Act. Such restriction
will be kept to the minimum amount of area necessary to achieve the
purposes thereof.
(e) Special-use Areas. (1) The Director may set aside discrete
areas of the Sanctuary as Special-use Areas, and, by designation
pursuant to this paragraph, impose the access and use restrictions
specified in paragraph (e)(3) of this section. Special-use Areas are
described in Appendix VI to this subpart, in accordance with the
following designations and corresponding objectives:
(i) ``Recovery area'' to provide for the recovery of Sanctuary
resources from degradation or other injury attributable to human uses;
(ii) ``Restoration area'' to provide for restoration of degraded or
otherwise injured Sanctuary resources;
(iii) ``Research-only area'' to provide for scientific research or
education relating to protection and management, through the issuance
of a Sanctuary General permit for research pursuant to Sec. 922.166;
and
(iv) ``Facilitated-use area'' to provide for the prevention of use
or user conflicts or the facilitation of access and use, or to promote
public use and understanding, of Sanctuary resources through the
issuance of special-use permits.
(2) A Special-use Area shall be no larger than the size the
Director deems reasonably necessary to accomplish the applicable
objective.
(3) Persons conducting activities within any Special-use Area shall
comply with the access and use restrictions specified in this paragraph
and made applicable to such area by means of its designation as a
``recovery area,'' ``restoration area,'' ``research-only area,'' or
``facilitated-use area.'' Except for passage without interruption
through the area or for law enforcement purposes, no person may enter a
Special-use Area except to conduct or cause to be conducted the
following activities:
(i) in such area designated as a ``recovery area'' or a
``restoration area'', habitat manipulation related to restoration of
degraded or otherwise injured Sanctuary resources, or activities
reasonably necessary to monitor recovery of degraded or otherwise
injured Sanctuary resources;
(ii) in such area designated as a ``research only area'',
scientific research or educational use specifically authorized by and
conducted in accordance with the scope, purpose, terms and conditions
of a valid National Marine Sanctuary General or Historical Resources
permit, or
(iii) in such area designated as a ``facilitated-use area'',
activities specified by the Director or specifically authorized by and
conducted in accordance with the scope, purpose, terms, and conditions
of a valid Special-use permit.
(4)(i) The Director may modify the number of, location of, or
designations applicable to, Special-use Areas by publishing in the
Federal Register, after notice and an opportunity for public comment in
accordance with the Administrative Procedure Act, an amendment to
Appendix VI to this subpart, except that, with respect to such areas
designated as a ``recovery area,'' ``restoration area,'' or ``research
only area,'' the Director may modify the number of, location of, or
designation applicable to, such areas by publishing a notice of such
action in the Federal Register if the Director determines that
immediate action is reasonably necessary to:
(A) Prevent significant injury to Sanctuary resources where
circumstances create an imminent risk to such resources;
(B) Initiate restoration activity where a delay in time would
significantly impair the ability of such restoration activity to
succeed;
(C) Initiate research activity where an unforeseen natural event
produces an opportunity for scientific research that may be lost if
research is not initiated immediately.
(ii) If the Director determines that a notice of modification must
be promulgated immediately in accordance with paragraph (e)(4)(i) of
this section, the Director will, as part of the same notice, invite
public comment and specify that comments will be received for 15 days
after the effective date of the notice. As soon as practicable after
the
[[Page 4614]]
end of the comment period, the Director will either rescind, modify or
allow the modification to remain unchanged through notice in the
Federal Register.
Sec. 922.165 Emergency regulations.
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 and all activities are
subject to immediate temporary regulation, including prohibition. Any
such temporary regulation may be in effect for up to 60 days, with one
60-day extension. Additional or extended action will require notice and
comment rulemaking under the Administrative Procedure Act, notice in
local newspapers, notice to Mariners, and press releases.
Sec. 922.166 Permits--application procedures and issuance criteria.
(a) National Marine Sanctuary General Permit.
(1) A person may conduct an activity prohibited by Secs. 922.163 or
922.164, other than an activity involving the survey/inventory,
research/recovery, or deaccession/transfer of Sanctuary historical
resources, if such activity is specifically authorized by, and provided
such activity is conducted in accordance with the scope, purpose, terms
and conditions of, a National Marine Sanctuary General permit issued
under this paragraph (a).
(2) The Director, at his or her discretion, may issue a General
permit under this paragraph (a), subject to such terms and conditions
as he or she deems appropriate, if the Director finds that the activity
will:
(i) Further research or monitoring related to Sanctuary resources
and qualities;
(ii) Further the educational value of the Sanctuary;
(iii) Further the natural or historical resource value of the
Sanctuary;
(iv) Further salvage or recovery operations in or near the
Sanctuary in connection with a recent air or marine casualty;
(v) Assist in managing the Sanctuary; or
(vi) Otherwise further Sanctuary purposes, including facilitating
multiple use of the Sanctuary, to the extent compatible with the
primary objective of resource protection.
(3) The Director shall not issue a General permit under this
paragraph (a), unless the Director also finds that:
(i) The applicant is professionally qualified to conduct and
complete the proposed activity;
(ii) The applicant has adequate financial resources available to
conduct and complete the proposed activity;
(iii) The duration of the proposed activity is no longer than
necessary to achieve its stated purpose;
(iv) The methods and procedures proposed by the applicant are
appropriate to achieve the proposed activity's goals in relation to the
activity's impacts on Sanctuary resources and qualities;
(v) The proposed activity will be conducted in a manner compatible
with the primary objective of protection of Sanctuary resources and
qualities, considering the extent to which the conduct of the activity
may diminish or enhance Sanctuary resources and qualities, any
indirect, secondary or cumulative effects of the activity, and the
duration of such effects;
(vi) It is necessary to conduct the proposed activity within the
Sanctuary to achieve its purposes; and
(vii) The reasonably expected end value of the activity to the
furtherance of Sanctuary goals and purposes outweighs any potential
adverse impacts on Sanctuary resources and qualities from the conduct
of the activity.
(4) For activities proposed to be conducted within any of the areas
described in Sec. 922.164 (b)-(e), the Director shall not issue a
permit unless he or she further finds that such activities will further
and are consistent with the purposes for which such area was
established, as described in Secs. 922.162 and 922.164 and in the
management plan for the Sanctuary.
(b) National Marine Sanctuary Survey/Inventory of Historical
Resources Permit.
(1) A person may conduct an activity prohibited by Secs. 922.163 or
922.164 involving the survey/inventory of Sanctuary historical
resources if such activity is specifically authorized by, and is
conducted in accordance with the scope, purpose, terms and conditions
of, a Survey/Inventory of Historical Resources permit issued under this
paragraph (b). Such permit is not required if such survey/inventory
activity does not involve any activity prohibited by Secs. 922.163 or
922.164. Thus, survey/inventory activities that are non-intrusive, do
not include any excavation, removal, or recovery of historical
resources, and do not result in destruction of, loss of, or injury to
Sanctuary resources or qualities do not require a permit. However, if a
survey/inventory activity will involve test excavations or removal of
artifacts or materials for evaluative purposes, a Survey/Inventory of
Historical Resources permit is required. Regardless of whether a
Survey/Inventory permit is required, a person may request such permit.
Persons who have demonstrated their professional abilities under a
Survey/Inventory permit will be given preference over other persons in
consideration of the issuance of a Research/Recovery permit. While a
Survey/Inventory permit does not grant any rights with regards to areas
subject to pre-existing rights of access which are still valid, once a
permit is issued for an area, other survey/inventory permits will not
be issued for the same area during the period for which the permit is
valid.
(2) The Director, at his or her discretion, may issue a Survey/
Inventory permit under this paragraph (b), subject to such terms and
conditions as he or she deems appropriate, if the Director finds that
such activity:
(i) Satisfies the requirements for a permit issued under paragraph
(a)(3) of this section;
(ii) Either will be non-intrusive, not include any excavation,
removal, or recovery of historical resources, and not result in
destruction of, loss of, or injury to Sanctuary resources or qualities,
or if intrusive, will involve no more than the minimum manual
alteration of the seabed and/or the removal of artifacts or other
material necessary for evaluative purposes and will cause no
significant adverse impacts on Sanctuary resources or qualities; and
(iii) That such activity will be conducted in accordance with all
requirements of the Programmatic Agreement for the Management of
Submerged Cultural Resources in the Florida Keys National Marine
Sanctuary among NOAA, the Advisory Council on Historic Preservation,
and the State of Florida (hereinafter SCR Agreement), and that such
permit issuance is in accordance with such SCR Agreement.
The SCR Agreement is reproduced in the ``Submerged Cultural
Resources Action Plan'' set forth in Volume 1 of the Florida Keys
National Marine Sanctuary Management Plan, dated 1996. Copies of the
SCR Agreement may also be examined at, and obtained from, the
Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource
Management, National Ocean Service, National Oceanic and Atmospheric
Administration, 1305 East-West Highway, 12th floor, Silver Spring, MD
20910; or from the Florida Keys National Marine Sanctuary Office, P.O.
Box 500368, Marathon, FL 33050.
(c) National Marine Sanctuary Research/Recovery of Sanctuary
Historical Resources Permit.
[[Page 4615]]
(1) A person may conduct any activity prohibited by Secs. 922.163
or 922.164 involving the research/recovery of Sanctuary historical
resources if such activity is specifically authorized by, and is
conducted in accordance with the scope, purpose, terms and conditions
of, a Research/Recovery of Historical Resources permit issued under
this paragraph (c).
(2) The Director, at his or her discretion, may issue a Research/
Recovery of Historical Resources permit, under this paragraph (c), and
subject to such terms and conditions as he or she deems appropriate, if
the Director finds that:
(i) Such activity satisfies the requirements for a permit issued
under paragraph (a)(3) of this section;
(ii) The recovery of the resource is in the public interest as
described in the SCR Agreement;
(iii) Recovery of the resource is part of research to preserve
historic information for public use; and
(iv) Recovery of the resource is necessary or appropriate to
protect the resource, preserve historical information, and/or further
the policies and purposes of the NMSA and the FKNMSPA, and that such
permit issuance is in accordance with, and that the activity will be
conducted in accordance with, all requirements of the SCR Agreement.
(d) National Marine Sanctuary Special-use Permit.
(1) A person may conduct any commercial or concession-type activity
prohibited by Secs. 922.163 or 922.164, if such activity is
specifically authorized by, and is conducted in accordance with the
scope, purpose, terms and conditions of, a Special-use permit issued
under this paragraph (d). A Special-use permit is required for the
deaccession/transfer of Sanctuary historical resources.
(2) The Director, at his or her discretion, may issue a Special-use
permit in accordance with this paragraph (d), and subject to such terms
and conditions as he or she deems appropriate and the mandatory terms
and conditions of section 310 of the NMSA, if the Director finds that
issuance of such permit is reasonably necessary to: establish
conditions of access to and use of any Sanctuary resource; or promote
public use and understanding of any Sanctuary resources. No permit may
be issued unless the activity is compatible with the purposes for which
the Sanctuary was designated and can be conducted in a manner that does
not destroy, cause the loss of, or injure any Sanctuary resource, and
if for the deaccession/transfer of Sanctuary Historical Resources,
unless such permit issuance is in accordance with, and that the
activity will be conducted in accordance with, all requirements of the
SCR Agreement.
(3) The Director may assess and collect fees for the conduct of any
activity authorized by a Special-use permit issued pursuant to this
paragraph (d). No Special-use permit shall be effective until all
assessed fees are paid, unless otherwise provided by the Director by a
fee schedule set forth as a permit condition. In assessing a fee, the
Director shall include:
(i) all costs incurred, or expected to be incurred, in reviewing
and processing the permit application, including, but not limited to,
costs for:
(A) Number of personnel;
(B) Personnel hours;
(C) Equipment;
(D) Biological assessments;
(E) Copying; and
(F) Overhead directly related to reviewing and processing the
permit application;
(ii) all costs incurred, or expected to be incurred, as a direct
result of the conduct of the activity for which the Special-use permit
is being issued, including, but not limited to:
(A) 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;
(B) The use of an official NOAA observer, including travel and
expenses and personnel hours; and
(C) Overhead costs directly related to the permitted activity; and
(iii) an amount which represents the fair market value of the use
of the Sanctuary resource and a reasonable return to the United States
Government.
(4) Nothing in this paragraph (d) shall be considered to require a
person to obtain a permit under this paragraph for the conduct of any
fishing activities within the Sanctuary.
(e) Applications. (1) Applications for permits should be addressed
to the Director, Office of Ocean and Coastal Resource Management; ATTN:
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, PO
Box 500368, Marathon, FL 33050. All applications must include:
(i) A detailed description of the proposed activity including a
timetable for completion of the activity and the equipment, personnel
and methodology to be employed;
(ii) The qualifications and experience of all personnel;
(iii) The financial resources available to the applicant to conduct
and complete the proposed activity;
(iv) A statement as to why it is necessary to conduct the activity
within the Sanctuary;
(v) The potential impacts of the activity, if any, on Sanctuary
resources and qualities;
(vi) The benefit to be derived from the activity; and
(vii) Such other information as the Director may request depending
on the type of activity.
Copies of all other required licenses, permits, approvals, or other
authorizations must be attached to the application.
(3) Upon receipt of an application, the Director may request such
additional information from the applicant as he or she deems reasonably
necessary to act on the application and may seek the views of any
persons. The Director may require a site visit as part of the permit
evaluation. Unless otherwise specified, the information requested must
be received by the Director within 30 days of the postmark date of the
request. Failure to provide such additional information on a timely
basis may be deemed by the Director to constitute abandonment or
withdrawal of the permit application.
(f) A permit may be issued for a period not exceeding five years.
All permits will be reviewed annually to determine the permittee's
compliance with permit scope, purpose, terms and conditions and
progress toward reaching the stated goals and appropriate action taken
under paragraph (g) of this section if warranted. A permittee may
request permit renewal pursuant to the same procedures for applying for
a new permit. Upon the permittee's request for renewal, the Director
shall review all reports submitted by the permittee as required by the
permit conditions. In order to renew the permit, the Director must find
that the:
(1) Activity will continue to further the purposes for which the
Sanctuary was designated in accordance with the criteria applicable to
the initial issuance of the permit;
(2) permittee has at no time violated the permit, or these
regulations; and
(3) the activity has not resulted in any unforeseen adverse impacts
to Sanctuary resources or qualities.
(g) The Director may amend, suspend, or revoke a permit for good
cause. The Director may deny a permit application, in whole or in part,
if it is determined that the permittee or applicant has acted in
violation of a previous permit, of these regulations, of the NMSA or
FKNMSPA, or for other good cause. Any such action shall be communicated
in writing to the permittee or applicant by
[[Page 4616]]
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.
(h) 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
Sec. 922.50.
(i) A permit issued pursuant to this section other than a Special-
use permit is nontransferable. Special-use permits may be transferred,
sold, or assigned with the written approval of the Director. The
permittee shall provide the Director with written notice of any
proposed transfer, sale, or assignment no less than 30 days prior to
its proposed consummation. Transfers, sales, or assignments consummated
in violation of this requirement shall be considered a material breach
of the Special-use permit, and the permit shall be considered void as
of the consummation of any such transfer, sale, or assignment.
(j) The permit or a copy thereof shall be maintained in legible
condition on board all vessels or aircraft used in the conduct of the
permitted activity and be displayed for inspection upon the request of
any authorized officer.
(k) Any permit issued pursuant to this section shall be subject to
the following terms and conditions:
(1) All permitted activities shall be conducted in a manner that
does not destroy, cause the loss of, or injure Sanctuary resources or
qualities, except to the extent that such may be specifically
authorized.
(2) The permittee agrees to hold the United States harmless against
any claims arising out of the conduct of the permitted activities.
(3) All necessary Federal, State, and local permits from all
agencies with jurisdiction over the proposed activities shall be
secured before commencing field operations.
(l) In addition to the terms and conditions listed in paragraph (k)
of this section, any permit authorizing the research/recovery of
historical resources shall be subject to the following terms and
conditions:
(1) a professional archaeologist shall be in charge of planning,
field recovery operations, and research analysis.
(2) an agreement with a conservation laboratory shall be in place
before field recovery operations are begun, and an approved nautical
conservator shall be in charge of planning, conducting, and supervising
the conservation of any artifacts and other materials recovered.
(3) a curation agreement with a museum or facility for curation,
public access and periodic public display, and maintenance of the
recovered historical resources shall be in place before commencing
field operations (such agreement for the curation and display of
recovered historical resources may provide for the release of public
artifacts for deaccession/transfer if such deaccession/transfer is
consistent with preservation, research, education, or other purposes of
the designation and management of the Sanctuary. Deaccession/transfer
of historical resources requires a Special-use permit issued pursuant
to paragraph (d) of this section and such deaccession/transfer shall be
executed in accordance with the requirements of the SCR Agreement).
(4) The site's archaeological information is fully documented,
including measured drawings, site maps drawn to professional standards,
and photographic records.
(m) In addition to the terms and conditions listed in paragraph (k)
and (l) of this section, any permit issued pursuant to this section is
subject to such other terms and conditions, including conditions
governing access to, or use of, Sanctuary resources, as the Director
deems reasonably necessary or appropriate and in furtherance of the
purposes for which the Sanctuary is designated. Such terms and
conditions may include, but are not limited to:
(1) Any data or information obtained under the permit shall be made
available to the public.
(2) A NOAA official shall be allowed to observe any activity
conducted under the permit.
(3) The permittee shall submit one or more reports on the status,
progress, or results of any activity authorized by the permit.
(4) The permittee shall submit an annual report to the Director not
later than December 31 of each year on activities conducted pursuant to
the permit. The report shall describe all activities conducted under
the permit and all revenues derived from such activities during the
year and/or term of the permit.
(5) The permittee shall purchase and maintain general liability
insurance or other acceptable security against potential claims for
destruction, loss of, or injury to Sanctuary resources arising out of
the permitted activities. The amount of insurance or security should be
commensurate with an estimated value of the Sanctuary resources in the
permitted area. A copy of the insurance policy or security instrument
shall be submitted to the Director.
Sec. 922.167 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
(a) A person may conduct an activity prohibited by Secs. 922.163 or
922.164 if such activity is specifically authorized by a valid Federal,
State, or local lease, permit, license, approval, or other
authorization in existence on (insert the effective date of these
regulations), or by any valid right of subsistence use or access in
existence on (insert the effective date of these regulations), provided
that:
(1) The holder of such authorization or right notifies the
Director, in writing, within 90 days of (insert the effective date of
these 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
Sec. 922.167; and
(3) The holder complies with any terms and conditions on the
exercise of such authorization or right imposed as a condition of
certification, by the Director, to achieve the purposes for which the
Sanctuary was designated.
(b) The holder of an authorization or right described in paragraph
(a) of this section authorizing an activity prohibited by Sec. 922.163
or Sec. 922.164 may conduct the activity without being in violation of
applicable provisions of Sec. 922.163 or Sec. 922.164, pending final
agency action on his or her certification request, provided the holder
is in compliance with this Sec. 922.167.
(c) Any holder of an authorization or right described in paragraph
(a) above may request the Director to issue a finding as to whether the
activity for which the authorization has been issued, or the right
given, is prohibited by Sec. 922.163 or Sec. 922.164, thus requiring
certification under this section.
(d) Requests for findings or certifications should be addressed to
the Director, Office of Ocean and Coastal Resource Management; ATTN:
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O.
Box 500368, Marathon, FL 33050. A copy of the lease, permit, license,
approval, or other authorization must accompany the request.
(e) The Director may request additional information from the
certification requester as he or she deems reasonably necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purposes for which the Sanctuary was designated.
The information requested must be received by the Director within 45
days of the postmark date of the request. The
[[Page 4617]]
Director may seek the views of any persons on the certification
request.
(f) The Director may amend any certification made under this
Sec. 922.167 whenever additional information becomes available
justifying such an amendment.
(g) Upon completion of review of the authorization or right and
information received with respect thereto, the Director shall
communicate, in writing, any decision on a certification request or any
action taken with respect to any certification made under this
Sec. 922.167, 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
Sec. 922.167 may be extended by the Director 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 Sec. 922.50.
(j) Any amendment, renewal, or extension made after (insert the
effective date of these regulations), to a lease, permit, license,
approval, other authorization or right is subject to the provisions of
Sec. 922.49.
Appendix I to Subpart P of Part 922--Florida Keys National Marine
Sanctuary boundary coordinates
(Appendix based on North American Datum of 1983)
The boundary of the Florida Keys National Marine Sanctuary--
(a) begins at the northeasternmost point of Biscayne National
Park located at approximately 25 degrees 39 minutes north latitude,
80 degrees 5 minutes west longitude, then runs eastward to the 300-
foot isobath located at approximately 25 degrees 39 minutes north
latitude, 80 degrees 4 minutes west longitude;
(b) then runs southward and connects in succession the points at
the following coordinates:
(i) 25 degrees 34 minutes north latitude, 80 degrees 4 minutes
west longitude,
(ii) 25 degrees 28 minutes north latitude, 80 degrees 5 minutes
west longitude, and
(iii) 25 degrees 21 minutes north latitude, 80 degrees 7 minutes
west longitude;
(iv) 25 degrees 16 minutes north latitude, 80 degrees 8 minutes
west longitude;
(c) then runs southwesterly approximating the 300-foot isobath
and connects in succession the points at the following coordinates:
(i) 25 degrees 7 minutes north latitude, 80 degrees 13 minutes
west longitude,
(ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes
west longitude,
(iii) 24 degrees 39 minutes north latitude, 80 degrees 52
minutes west longitude,
(iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes
west longitude,
(v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes
west longitude,
(vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes
west longitude,
(vii) 24 degrees 37 minutes north latitude, 83 degrees 6 minutes
west longitude,
(viii) 24 degrees 40 minutes north latitude, 83 degrees 6
minutes west longitude,
(ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes
west longitude,
(x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes
west longitude,
(xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes
west longitude, and
(xii) 24 degrees 55 minutes north latitude, 80 degrees 56
minutes west longitude;
(d) then follows the boundary of Everglades National Park in a
southerly then northeasterly direction through Florida Bay,
Buttonwood Sound, Tarpon Basin, and Blackwater Sound;
(e) after Division Point, then departs from the boundary of
Everglades National Park and follows the western shoreline of
Manatee Bay, Barnes Sound, and Card Sound;
(f) then follows the southern boundary of Biscayne National Park
to the southeastern most point of Biscayne National Park; and
(g) then follows the eastern boundary of Biscayne National Park
to the beginning point specified in paragraph (a).
Appendix II to Subpart P of Part 922--Existing Management Areas
boundary coordinates
The Existing Management Areas are located within the following
geographic boundary coordinates:
National Oceanic and Atmospheric Administration, Preexisting
National Marine Sanctuaries:
Key Largo Management Area (Key Largo National Marine Sanctuary):
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1....................................... 25 deg.19.45'N 80 deg.12.00'W
2....................................... 25 deg.16.02'N 80 deg.08.07'W
3....................................... 25 deg.07.05'N 80 deg.12.05'W
4....................................... 24 deg.58.03'N 80 deg.19.08'W
5....................................... 25 deg.02.02'N 80 deg.25.25'W
------------------------------------------------------------------------
Looe Key Management Area (Looe Key National Marine Sanctuary):
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1....................................... 24 deg.31.62'N 81 deg.26.00'W
2....................................... 24 deg.33.57'N 81 deg.26.00'W
3....................................... 24 deg.34.15'N 81 deg.23.00'W
4....................................... 24 deg.32.20'N 81 deg.23.00'W
------------------------------------------------------------------------
United States Fish and Wildlife Service: Great White Heron
National Wildlife Refuge (based on the North American Datum of
1983):
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1....................................... 24 deg.43.8'N 81 deg.48.6'W
2....................................... 24 deg.43.8'N 81 deg.37.2'W
3....................................... 24 deg.49.2'N 81 deg.37.2'W
4....................................... 24 deg.49.2'N 81 deg.19.8'W
5....................................... 24 deg.48.0'N 81 deg.19.8'W
6....................................... 24 deg.48.0'N 81 deg.14.4'W
7....................................... 24 deg.49.2'N 81 deg.14.4'W
8....................................... 24 deg.49.2'N 81 deg.08.4'W
9....................................... 24 deg.43.8'N 81'08.4'W
10...................................... 24 deg.43.8'N 81 deg.14.4'W
11...................................... 24 deg.43.2'N 81 deg.14.4'W
12...................................... 24 deg.43.2'N 81 deg.16.2'W
13...................................... 24 deg.42.6'N 81 deg.16.2'W
14...................................... 24 deg.42.6'N 81 deg.21.0'W
15...................................... 24 deg.41.4'N 81 deg.21.0'W
16...................................... 24 deg.41.4'N 81 deg.22.2'W
17...................................... 24 deg.43.2'N 81 deg.22.2'W
18...................................... 24 deg.43.2'N 81 deg.22.8'W
19...................................... 24 deg.43.8'N 81 deg.22.8'W
20...................................... 24 deg.43.8'N 81 deg.24.0'W
21...................................... 24 deg.43.2'N 81 deg.24.0'W
22...................................... 24 deg.43.2'N 81 deg.26.4'W
23...................................... 24 deg.43.8'N 81 deg.26.4'W
24...................................... 24 deg.43.8'N 81 deg.27.0'W
25...................................... 24 deg.43.2'N 81 deg.27.0'W
26...................................... 24 deg.43.2'N 81 deg.29.4'W
27...................................... 24 deg.42.6'N 81 deg.29.4'W
28...................................... 24 deg.42.6'N 81 deg.30.6'W
29...................................... 24 deg.41.4'N 81 deg.30.6'W
30...................................... 24 deg.41.4'N 81 deg.31.2'W
31...................................... 24 deg.40.8'N 81 deg.31.2'W
32...................................... 24 deg.40.8'N 81 deg.32.4'W
33...................................... 24 deg.41.4'N 81 deg.32.4'W
34...................................... 24 deg.41.4'N 81 deg.34.2'W
35...................................... 24 deg.40.8'N 81 deg.34.2'W
36...................................... 24 deg.48.0'N 81 deg.35.4'W
37...................................... 24 deg.39.6'N 81 deg.35.4'W
38...................................... 24 deg.39.6'N 81 deg.36.0'W
39...................................... 24 deg.39.0'N 81 deg.36.0'W
40...................................... 24 deg.39.0'N 81 deg.37.2'W
41...................................... 24 deg.37.8'N 81 deg.37.2'W
42...................................... 24 deg.37.8'N 81 deg.37.8'W
43...................................... 24 deg.37.2'N 81 deg.37.8'W
44...................................... 24 deg.37.2'N 81 deg.40.2'W
45...................................... 24 deg.36.0'N 81 deg.40.2'W
46...................................... 24 deg.36.0'N 81 deg.40.8'W
47...................................... 24 deg.35.4'N 81 deg.40.8'W
48...................................... 24 deg.35.4'N 81 deg.42.0'W
49...................................... 24 deg.36.0'N 81 deg.42.0'W
50...................................... 24 deg.36.0'N 81 deg.48.6'W
------------------------------------------------------------------------
Key West National Wildlife Refuge:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1....................................... 24 deg.40'N 81 deg.49'W
2....................................... 24 deg.40'N 82 deg.10'W
3....................................... 24 deg.27'N 82 deg.10'W
4....................................... 24 deg.27'N 81 deg.49'W
------------------------------------------------------------------------
When differential Global Positioning Systems data becomes
available, these coordinates may be revised by Federal Register
notice to reflect the increased accuracy of such data.
Appendix III to Subpart P of Part 922--Wildlife Management Areas access
restrictions
Area and Access Restrictions
Bay Keys: No-motor zone (300 feet) around one key; idle speed only/
no-wake zones in tidal creeks
Boca Grande Key: South one-half of beach closed (beach above mean
high water closed by Department of Interior)
Woman Key: One-half of beach and sand spit on southeast side closed
(beach and sand spit above mean high water closed by Department of
Interior)
[[Page 4618]]
Cayo Agua Keys: Idle speed only/no-wake zones in all navigable tidal
creeks
Cotton Key: No-motor zone on tidal flat
Snake Creek: No-motor zone on tidal flat
Cottrell Key: No-motor zone (300 feet) around entire key
Little Mullet Key: No-access buffer zone (300 feet) around entire
key
Big Mullet Key: No-motor zone (300 feet) around entire key
Crocodile Lake: No-access buffer zone (100 feet) along shoreline
between March 1 and October 1
East Harbor Key: No-access buffer zone (300 feet) around
northernmost island
Lower Harbor Keys: Idle speed only/no-wake zones in selected tidal
creeks
Eastern Lake Surprise: Idle speed only/no-wake zone east of highway
U.S. 1
Horseshoe Key: No-access buffer zone (300 feet) around main island
(main island closed by Department of Interior)
Marquesas Keys: (i) No-motor zones (300 feet) around three smallest
keys on western side of chain; (ii) no-access buffer zone (300 feet)
around one island at western side of chain; (iii) idle speed only/
no-wake zone in southwest tidal creek
Tidal flat south of Marvin Key: No-access buffer zone on tidal flat
Mud Keys: (i) Idle speed only/no-wake zones in the two main tidal
creeks; (ii) two smaller creeks on west side closed
Pelican Shoal: No-access buffer zone out to 50 meters from shore
between April 1 and August 31 (shoal closed by the Florida Game and
Freshwater Fish Commission)
Rodriguez Key: No-motor zone on tidal flats
Dove Key: No-motor zone on tidal flats; area around the two small
islands closed
Tavernier Key: No-motor zone on tidal flats
Sawyer Keys: Tidal creeks on south side closed
Snipe Keys: (i) Idle speed only/no-wake zone in main tidal creek;
(ii) no-motor zone in all other tidal creeks
Upper Harbor Key: No-access buffer zone (300 feet) around entire key
East Content Keys: Idle speed only/no-wake zones in tidal creeks
between southwesternmost keys
West Content Keys: Idle speed only/no-wake zones in selected tidal
creeks; no-access buffer zone in one cove
Little Crane Key: No-access buffer zone (300 feet) around entire key
Appendix IV to Subpart P of Part 922--Ecological Reserves boundary
coordinates
One Ecological Reserve--the Western Sambos Ecological Reserve--
is designated in the area of Western Sambos reef. NOAA has committed
to designating a second Ecological Reserve within two years from
issuance of this plan in the area of the Dry Tortugas. The
establishment of a Dry Tortugas Ecological Reserve will be proposed
by a notice of proposed rulemaking with a proposed boundary
determined through a joint effort among the Sanctuary, and the
National Park Service, pursuant to a public process involving a team
consisting of managers, scientists, conservationists, and affected
user groups.
The Western Sambos Ecological Reserve (based on North American
Datum of 1983, aerial photos, charts, and Geographic Information
Systems data) is located within the following geographic boundary
coordinates:
Western Sambos
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1....................................... 24 deg.33.70'
N 81 deg.40.80'
W
2....................................... 24 deg.28.70'
N 81 deg.41.90'
W
3....................................... 24 deg.28.50'
N 81 deg.43.70'
W
4....................................... 24 deg.33.50'
N 81 deg.43.10'
W
------------------------------------------------------------------------
When differential Global Positioning Systems data becomes
available, these coordinates may be revised by Federal Register
notice to reflect the increased accuracy of such data.
Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas
Boundary Coordinates
The Sanctuary Preservation Areas (SPAs) (based on North American
Datum of 1983, aerial photos, charts, and Geographic Information
Systems data) are located within the following geographic boundary
coordinates:
Alligator Reef
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.50.8' N 80 deg.36.8' W
2............................... 24 deg.50.4' N 80 deg.37.3' W
3............................... 24 deg.50.7' N 80 deg.37.6' W
4............................... 24 deg.51.1' N 80 deg.37.5' W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this
SPA.
Carysfort/South Carysfort Reef
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 25 deg.13.6' N 80 deg.12.2' W
2............................... 25 deg.11.9' N 80 deg.12.8' W
3............................... 25 deg.12.2' N 80 deg.13.8' W
4............................... 25 deg.14.0' N 80 deg.12.7' W
------------------------------------------------------------------------
Cheeca Rocks
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.54.6' N 80 deg.37.6' W
2............................... 24 deg.54.3' N 80 deg.37.5' W
3............................... 24 deg.54.2' N 80 deg.37.7' W
4............................... 24 deg.54.5' N 80 deg.37.8' W
------------------------------------------------------------------------
Coffins Patch
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.41.5' N 80 deg.57.7' W
2............................... 24 deg.41.1' N 80 deg.57.5' W
3............................... 24 deg.40.6' N 80 deg.58.4' W
4............................... 24 deg.41.1' N 80 deg.58.6' W
------------------------------------------------------------------------
Conch Reef
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.57.5' N 80 deg.27.4' W
2............................... 24 deg.57.4' N 80 deg.27.3' W
3............................... 24 deg.57.0' N 80 deg.27.7' W
4............................... 24 deg.56.9' N 80 deg.27.6' W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this
SPA.
Davis Reef
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1....................................... 24 deg.55.6' N 80 deg.30.3' W
2....................................... 24 deg.55.3' N 80 deg.30.0' W
3....................................... 24 deg.55.1' N 80 deg.30.4' W
4....................................... 24 deg.55.4' N 80 deg.30.7' W
------------------------------------------------------------------------
Dry Rocks
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 25 deg.7.6' N 80 deg.17.9' W
2............................... 25 deg.7.4' N 80 deg.17.7' W
3............................... 25 deg.7.3' N 80 deg.17.8' W
4............................... 25 deg.7.4' N 80 deg.18.1' W
------------------------------------------------------------------------
Grecian Rocks
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 25 deg.6.9' N 80 deg.18.2' W
2............................... 25 deg.6.6' N 80 deg.17.9' W
3............................... 25 deg.6.1' N 80 deg.18.5' W
4............................... 25 deg.6.2' N 80 deg.18.6' W
5............................... 25 deg.6.8' N 80 deg.18.6' W
------------------------------------------------------------------------
Eastern Dry Rocks
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.27.9' N 81 deg.50.5' W
2............................... 24 deg.27.7' N 81 deg.50.4' W
3............................... 24 deg.27.5' N 81 deg.50.6' W
4............................... 24 deg.27.7' N 81 deg.50.8' W
------------------------------------------------------------------------
The Elbow
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 25 deg.9.1' N 80 deg.15.4' W
2............................... 25 deg.8.9' N 80 deg.15.1' W
3............................... 25 deg.8.1' N 80 deg.15.7' W
4............................... 25 deg.8.8' N 80 deg.15.7' W
------------------------------------------------------------------------
French Reef
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 25 deg.2.2' N 80 deg.20.6' W
2............................... 25 deg.1.8' N 80 deg.21.0' W
3............................... 25 deg.2.3' N 80 deg.21.2' W
------------------------------------------------------------------------
[[Page 4619]]
Hen and Chickens
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.56.4' N 80 deg.32.9' W
2............................... 24 deg.56.2' N 80 deg.32.7' W
3............................... 24 deg.55.7' N 80 deg.33.1' W
4............................... 24 deg.55.9' N 80 deg.33.3' W
------------------------------------------------------------------------
Looe Key
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.33.2' N 81 deg.24.2' W
2............................... 24 deg.32.6' N 81 deg.24.8' W
3............................... 24 deg.32.5' N 81 deg.24.7' W
4............................... 24 deg.33.1' N 81 deg.24.8' W
------------------------------------------------------------------------
Molasses Reef
------------------------------------------------------------------------
1Point Latitude Longitude
------------------------------------------------------------------------
1............................... 25 deg.0.9' N 80 deg.22.4' W
2............................... 25 deg.0.7' N 80 deg.22.0' W
3............................... 25 deg.0.2' N 80 deg.22.8' W
4............................... 25 deg.0.7' N 80 deg.22.8' W
------------------------------------------------------------------------
Newfound Harbor Key
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.37.1' N 81 deg.23.3' W
2............................... 24 deg.36.7' N 81 deg.23.8' W
3............................... 24 deg.36.8' N 81 deg.23.3' W
4............................... 24 deg.36.9' N 81 deg.23.9' W
------------------------------------------------------------------------
Rock Key
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.27.5' N 81 deg.51.3' W
2............................... 24 deg.27.3' N 81 deg.51.2' W
3............................... 24 deg.27.2' N 81 deg.51.5' W
4............................... 24 deg.27.5' N 81 deg.51.6' W
------------------------------------------------------------------------
Sand Key
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.27.6' N 81 deg.53.1' W
2............................... 24 deg.27.0' N 81 deg.53.1' W
3............................... 24 deg.27.0' N 81 deg.52.3' W
4............................... 24 deg.27.6' N 81 deg.52.3' W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this
SPA.
Sombrero Key
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.37.9' N 81 deg.6.8' W
2............................... 24 deg.37.4' N 81 deg.6.1' W
3............................... 24 deg.37.2' N 81 deg.7.0' W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this
SPA.
When differential Global Positioning Systems data becomes
available, the coordinates for all these areas may be revised by
Federal Register notice to reflect the increased accuracy of such
data.
Appendix VI to Subpart P of Part 922--Special-Use Areas Boundary
Coordinates and Use Designations
The Special-use Areas (based on North American Datum of 1983)
are located within the following geographic boundary coordinates:
Conch Reef (Research Only)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.56.8' N 80 deg.27.2' W
2............................... 24 deg.57.0' N 80 deg.27.0' W
3............................... 24 deg.57.2' N 80 deg.27.5' W
4............................... 24 deg.57.5' N 80 deg.27.4' W
------------------------------------------------------------------------
Eastern Sambos (Research Only)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.29.4' N 81 deg.39.3' W
2............................... 24 deg.29.7' N 81 deg.40.2' W
3............................... 24 deg.29.5' N 81 deg.39.6' W
4............................... 24 deg.29.8' N 81 deg.39.7' W
------------------------------------------------------------------------
Looe Key (Research Only)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.34.1' N 81 deg.23.3' W
2............................... 24 deg.34.0' N 81 deg.23.2' W
3............................... 24 deg.33.8' N 81 deg.23.8' W
4............................... 24 deg.34.0' N 81 deg.23.9' W
------------------------------------------------------------------------
Tennessee Reef (Research Only)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 24 deg.45.9' N 80 deg.45.6' W
2............................... 24 deg.45.7' N 80 deg.45.4' W
3............................... 24 deg.46.0' N 80 deg.44.9' W
4............................... 24 deg.46.2' N 80 deg.45.1' W
------------------------------------------------------------------------
Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary
Coordinates
In the Vicinity of the Florida Keys
(Reference Charts: United States 11466, 27th Edition--September 1,
1990 and United States 11450, 4th Edition--August 11, 1990.)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................... 25 deg.45.00' N 80 deg.06.10' W
2............................... 25 deg.38.70' N 80 deg.02.70' W
3............................... 25 deg.22.00' N 80 deg.03.00' W
4............................... 25 deg.00.20' N 80 deg.13.40' W
5............................... 24 deg.37.90' N 80 deg.47.30' W
6............................... 24 deg.29.20' N 81 deg.17.30' W
7............................... 24 deg.22.30' N 81 deg.43.17' W
8............................... 24 deg.28.00' N 81 deg.43.17' W
9............................... 24 deg.28.70' N 81 deg.43.50' W
10.............................. 24 deg.29.80' N 81 deg.43.17' W
11.............................. 24 deg.33.10' N 81 deg.35.15' W
12.............................. 24 deg.33.60' N 81 deg.26.00' W
13.............................. 24 deg.38.20' N 81 deg.07.00' W
14.............................. 24 deg.43.20' N 80 deg.53.20' W
15.............................. 24 deg.46.10' N 80 deg.46.15' W
16.............................. 24 deg.51.10' N 80 deg.37.10' W
17.............................. 24 deg.57.50' N 80 deg.27.50' W
18.............................. 25 deg.09.90' N 80 deg.16.20' W
19.............................. 25 deg.24.00' N 80 deg.09.10' W
20.............................. 25 deg.31.50' N 80 deg.07.00' W
21.............................. 25 deg.39.70' N 80 deg.06.85' W
22.............................. 25 deg.45.00' N 80 deg.06.10' W
------------------------------------------------------------------------
In the Vicinity of Key West Harbor
(Reference Chart: United States 11434, 21st Edition--August 11,
1990.)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
23.............................. 24 deg.27.95' N 81 deg.48.65' W
24.............................. 24 deg.23.00' N 81 deg.53.50' W
25.............................. 24 deg.26.60' N 81 deg.58.50' W
26.............................. 24 deg.27.75' N 81 deg.55.70' W
27.............................. 24 deg.29.35' N 81 deg.53.40' W
28.............................. 24 deg.29.35' N 81 deg.50.00' W
29.............................. 24 deg.27.95' N 81 deg.48.65' W
------------------------------------------------------------------------
Area Surrounding the Marquesas Keys
(Reference Chart: United States 11434, 21st Edition--August 11,
1990.)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
30.............................. 24 deg.26.60' N 81 deg.59.55' W
31.............................. 24 deg.23.00' N 82 deg.03.50' W
32.............................. 24 deg.23.60' N 82 deg.27.80' W
33.............................. 24 deg.34.50' N 82 deg.37.50' W
34.............................. 24 deg.43.00' N 82 deg.26.50' W
35.............................. 24 deg.38.31' N 81 deg.54.06' W
36.............................. 24 deg.37.91' N 81 deg.53.40' W
37.............................. 24 deg.36.15' N 81 deg.51.78' W
38.............................. 24 deg.34.40' N 81 deg.50.60' W
39.............................. 24 deg.33.44' N 81 deg.49.73' W
40.............................. 24 deg.31.20' N 81 deg.52.10' W
41.............................. 24 deg.28.70' N 81 deg.56.80' W
42.............................. 24 deg.26.60' N 81 deg.59.55' W
------------------------------------------------------------------------
Area Surrounding the Dry Tortugas Islands
(Reference Chart: United States 11434, 21st Edition--August 11,
1990.)
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
43.............................. 24 deg.32.00' N 82 deg.53.50' W
44.............................. 24 deg.32.00' N 83 deg.00.05' W
45.............................. 24 deg.39.70' N 83 deg.00.05' W
46.............................. 24 deg.45.60' N 82 deg.54.40' W
47.............................. 24 deg.45.60' N 82 deg.47.20' W
48.............................. 24 deg.42.80' N 82 deg.43.90' W
49.............................. 24 deg.39.50' N 82 deg.43.90' W
50.............................. 24 deg.35.60' N 82 deg.46.40' W
51.............................. 24 deg.32.00' N 82 deg.53.50' W
------------------------------------------------------------------------
Appendix VIII to Subpart P of Part 922--Marine Life Rule [as Excerpted
From Chapter 46-42 of the Florida Administrative Code]
46-42.001 Purpose and Intent; Designation of Restricted Species;
Definition of ``Marine Life Species.''
46-42.002 Definitions.
46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama
Starfish.
46-42.0035 Live Landing and Live Well Requirements.
[[Page 4620]]
46-42.0036 Harvest in Biscayne National Park.*
46-42.004 Size Limits.
46-42.005 Bag Limits.
46-42.006 Commercial Season, Harvest Limits.
46-42.007 Gear Specifications and Prohibited Gear.
46-42.008 Live Rock.**
46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine
Corals and Sea Fans.
** Part 42.0036 was not reproduced because it does not apply to
the Sanctuary.
** Part 42.008 was not reproduced because it is regulated
pursuant to Sec. 922.163(a)(2)(ii).
46-42.001 Purpose and Intent; Designation of Restricted Species;
Definition of ``Marine Life Species''.
(1)(a) The purpose and intent of this chapter are to protect and
conserve Florida's tropical marine life resources and assure the
continuing health and abundance of these species. The further intent
of this chapter is to assure that harvesters in this fishery use
nonlethal methods of harvest and that the fish, invertebrates, and
plants so harvested be maintained alive for the maximum possible
conservation and economic benefits.
(b) It is the express intent of the Marine Fisheries Commission
that landing of live rock propagated through aquaculture will be
allowed pursuant to the provisions of this chapter.
(2) The following fish species, as they occur in waters of the
state and in federal Exclusive Economic Zone (EEZ) waters adjacent
to state waters, are hereby designated as restricted species
pursuant to Section 370.01(20), Florida Statutes:
(a) Moray eels--Any species of the Family Muraenidae.
(b) Snake eels--Any species of the Genera Myrichthys and
Myrophis of the Family Ophichthidae.
(c) Toadfish--Any species of the Family Batrachoididae.
(d) Frogfish--Any species of the Family Antennariidae.
(e) Batfish--Any species of the Family Ogcocephalidae.
(f) Clingfish--Any species of the Family Gobiesocidae.
(g) Trumpetfish--Any species of the Family Aulostomidae.
(h) Cornetfish--Any species of the Family Fistulariidae.
(i) Pipefish/seahorses--Any species of the Family Syngnathidae.
(j) Hamlet/seabass--Any species of the Family Serranidae, except
groupers of the genera Epinephalus and Mycteroperca, and seabass of
the genus Centropristis.
(k) Basslets--Any species of the Family Grammistidae.
(l) Cardinalfish--Any species of the Family Apogonidae.
(m) High-hat, Jackknife-fish, Spotted drum, Cubbyu--Any species
of the genus Equetus of the Family Sciaenidae.
(n) Reef Croakers--Any of the species Odontocion dentex.
(o) Sweepers--Any species of the Family Pempherididae.
(p) Butterflyfish--Any species of the Family Chaetodontidae.
(q) Angelfish--Any species of the Family Pomacanthidae.
(r) Damselfish--Any species of the Family Pomacentridae.
(s) Hawkfish--Any species of the Family Cirrhitidae.
(t) Wrasse/hogfish/razorfish--Any species of the Family
Labridae, except hogfish, Lachnolaimus maximus.
(u) Parrotfish--Any species of the Family Scaridae.
(v) Jawfish--Any species of the Family Opistognathidae.
(w) Blennies--Any species of the Families Clinidae or
Blenniidae.
(x) Sleepers--Any species of the Family Eleotrididae.
(y) Gobies--Any species of the Family Gobiidae.
(z) Tangs and surgeonfish--Any species of the Family
Acanthuridae.
(aa) Filefish/triggerfish--Any species of the Family Balistes,
except gray triggerfish, Balistidae capriscus.
(bb) Trunkfish/cowfish--Any species of the Family Ostraciidae.
(cc) Pufferfish/burrfish/balloonfish--Any of the following
species:
1. Balloonfish--Diodon holocanthus.
2. Sharpnose puffer--Canthigaster rostrata.
3. Striped burrfish--Chilomycterus schoepfi.
(3) The following invertebrate species, as they occur in waters
of the state and in federal Exclusive Economic Zone (EEZ) waters
adjacent to state waters, are hereby designated as restricted
species pursuant to Section 370.01(20), Florida Statutes:
(a) Sponges--Any species of the Class Demospongia, except
sheepswool, yellow, grass, glove, finger, wire, reef, and velvet
sponges, Order Dictyoceratida.
(b) Upside-down jellyfish--Any species of the Genus Cassiopeia.
(c) Siphonophores/hydroids--Any species of the Class Hydrozoa,
except fire corals, Order Milleporina.
(d) Soft corals--Any species of the Subclass Octocorallia,
except sea fans Gorgonia flabellum and Gorgonia ventalina.
(e) Sea anemones--Any species of the Orders Actinaria,
Zoanthidea, Corallimorpharia, and Ceriantharia.
(f) Featherduster worms/calcareous tubeworms--Any species of the
Families Sabellidae and Serpulidae.
(g) Star-shells--Any of the species Astraea americana or Astraea
phoebia.
(h) Nudibranchs/sea slugs--Any species of the Subclass
Opisthobranchia.
(i) Fileclams--Any species of the Genus Lima.
(j) Octopods--Any species of the Order Octopoda, except the
common octopus, Octopodus vulgaris.
(k) Shrimp--Any of the following species:
1. Cleaner shrimp and peppermint shrimp--Any species of the
Genera Periclimenes or Lysmata.
2. Coral shrimp--Any species of the Genus Stenopus.
3. Snapping shrimp--Any species of the Genus Alpheus.
(l) Crabs--Any of the following species:
1. Yellowline arrow crab--Stenorhynchus seticornis.
2. Furcate spider or decorator crab--Stenocionops furcata.
3. Thinstripe hermit crab--Clibanarius vittatus.
4. Polkadotted hermit crab--Phimochirus operculatus.
5. Spotted porcelain crab--Porcellana sayana.
6. Nimble spray or urchin crab--Percnon gibbesi.
7. False arrow crab--Metoporhaphis calcarata.
(m) Starfish--Any species of the Class Asteroidea, except the
Bahama starfish, Oreaster reticulatus.
(n) Brittlestars--Any species of the Class Ophiuroidea.
(o) Sea urchins--Any species of the Class Echinoidea, except
longspine urchin, Diadema antillarum, and sand dollars and sea
biscuits, Order Clypeasteroida.
(p) Sea cucumbers--Any species of the Class Holothuroidea.
(q) Sea lillies--Any species of the Class Crinoidea.
(4) The following species of plants, as they occur in waters of
the state and in federal Exclusive Economic Zone (EEZ) waters
adjacent to state waters, are hereby designated as restricted
species pursuant to Section 370.01(20), Florida Statutes:
(a) Caulerpa--Any species of the Family Caulerpaceae.
(b) Halimeda/mermaid's fan/mermaid's shaving brush--Any species
of the Family Halimedaceae.
(c) Coralline red algae--Any species of the Family
Corallinaceae.
(5) For the purposes of Section 370.06(2)(d), Florida Statutes,
the term ``marine life species'' is defined to mean those species
designated as restricted species in subsections (2), (3), and (4) of
this rule.
Specific Authority 370.01(20), 370.027(2), 370.06(2)(d), F.S.
Law Implemented 370.01(20), 370.025, 370.027, 370.06(2)(d), F.S.
History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.002 Definitions.--As used in this rule chapter
(1) ``Barrier net,'' also known as a ``fence net,'' means a
seine used beneath the surface of the water by a diver to enclose
and concentrate tropical fish and which may be made of either nylon
or monofilament.
(2) ``Drop net'' means a small, usually circular, net with
weights attached along the outer edge and a single float in the
center, used by a diver to enclose and concentrate tropical fish.
(3) ``Hand held net'' means a landing or dip net as defined in
Rule 46-4.002(4), except that a portion of the bag may be
constructed of clear plastic material, rather than mesh.
(4) ``Harvest'' means the catching or taking of a marine
organism by any means whatsoever, followed by a reduction of such
organism to possession. Marine organisms that are caught but
immediately returned to the water free, alive, and unharmed are not
harvested. In addition, temporary possession of a marine animal for
the purpose of measuring it to determine compliance with the minimum
or maximum size requirements of this chapter shall not constitute
harvesting such animal, provided that it is measured
[[Page 4621]]
immediately after taking, and immediately returned to the water
free, alive, and unharmed if undersize or oversize.
(5) ``Harvest for commercial purposes'' means the taking or
harvesting of any tropical ornamental marine life species or
tropical ornamental marine plant for purposes of sale or with intent
to sell. The harvest of tropical ornamental marine life species or
tropical ornamental marine plants in excess of the bag limit shall
constitute prima facie evidence of intent to sell.
(6) ``Land,'' when used in connection with the harvest of marine
organisms, means the physical act of bringing the harvested organism
ashore.
(7) ``Live rock'' means rock with living marine organisms
attached to it.
(8) ``Octocoral'' means any erect, nonencrusting species of the
Subclass Octocorallia, except the species Gorgonia flabellum and
Gorgonia ventalina.
(9) ``Slurp gun'' means a self-contained, handheld device that
captures tropical fish by rapidly drawing seawater containing such
fish into a closed chamber.
(10) ``Total length'' means the length of a fish as measured
from the tip of the snout to the tip of the tail.
(11) ``Trawl'' means a net in the form of an elongated bag with
the mouth kept open by various means and fished by being towed or
dragged on the bottom.
``Roller frame trawl'' means a trawl with all of the following
features and specifications:
(a) A rectangular rigid frame to keep the mouth of the trawl
open while being towed.
(b) The lower horizontal beam of the frame has rollers to allow
the trawl to roll over the bottom and any obstructions while being
towed.
(c) The trawl opening is shielded by a grid of vertical bars
spaced no more than 3 inches apart.
(d) The trawl is towed by attaching a line or towing cable to a
tongue located above or at the center of the upper horizontal beam
of the frame.
(e) The trawl has no doors attached to keep the mouth of the
trawl open.
(12) ``Tropical fish'' means any species included in subsection
(2) of Rule 46-42.001, or any part thereof.
(13) ``Tropical ornamental marine life species'' means any
species included in subsections (2) or (3) of Rule 46-42.001, or any
part thereof.
(14) ``Tropical ornamental marine plant'' means any species
included in subsection (4) of Rule 46-42.001.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama Starfish.--
No person shall harvest, possess while in or on the waters of the
state, or land any of the following species
(1) Longspine urchin, Diadema antillarum.
(2) Bahama starfish, Oreaster reticulatus.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92.
46-42.0035 Live Landing and Live Well Requirements
(1) Each person harvesting any tropical ornamental marine life
species or any tropical ornamental marine plant shall land such
marine organism alive.
(2) Each person harvesting any tropical ornamental marine life
species or any tropical ornamental marine plant shall have aboard
the vessel being used for such harvest a continuously circulating
live well or aeration or oxygenation system of adequate size and
capacity to maintain such harvested marine organisms in a healthy
condition.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 7-1-92.
46-42.004 Size Limits
(1) Angelfishes.--
(a) No person harvesting for commercial purposes shall harvest,
possess while in or on the waters of the state, or land any of the
following species of angelfish, of total length less than that set
forth below:
1. One-and-one-half (1\1/2\) inches for:
a. Gray angelfish (Pomacanthus arcuatus).
b. French angelfish (Pomacanthus paru).
2. One-and-three-quarters (1\3/4\) inches for:
a. Blue angelfish (Holacanthus bermudensis).
b. Queen angelfish (Holacanthus ciliaris).
3. Two (2) inches for rock beauty (Holacanthus tricolor).
(b) No person shall harvest, possess while in or on the waters
of the state, or land any angelfish (Family Pomacanthidae), of total
length greater than that specified below:
1. Eight (8) inches for angelfish, except rock beauty
(Holacanthus tricolor).
2. Five (5) inches for rock beauty.
(c) Except as provided herein, no person shall purchase, sell,
or exchange any angelfish smaller than the limits specified in
paragraph (a) or larger than the limits specified in paragraph (b).
This prohibition shall not apply to angelfish legally harvested
outside of state waters or federal Exclusive Economic Zone (EEZ)
waters adjacent to state waters, which angelfish are entering
Florida in interstate or international commerce. The burden shall be
upon any person possessing such angelfish for sale or exchange to
establish the chain of possession from the initial transaction after
harvest, by appropriate receipt(s), bill(s) of sale, or bill(s) of
lading, and any customs receipts, and to show that such angelfish
originated from a point outside the waters of the State of Florida
or federal Exclusive Economic Zone (EEZ) waters adjacent to Florida
waters and entered the state in interstate or international
commerce. Failure to maintain such documentation or to promptly
produce same at the request of any duly authorized law enforcement
officer shall constitute prima facie evidence that such angelfish
were harvested from Florida waters or adjacent EEZ waters for
purposes of this paragraph.
(2) Butterflyfishes.--
(a) No person harvesting for commercial purposes shall harvest,
possess while in or on the waters of the state, or land any
butterflyfish (Family Chaetodontidae) of total length less than one
(1) inch.
(b) No person shall harvest, possess while in or on the waters
of the state, or land any butterflyfish of total length greater than
4 inches.
(3) Gobies--No person shall harvest, possess while in or on the
waters of the state, or land any gobie (Family Gobiidae) of total
length greater than 2 inches.
(4) Jawfishes--No person shall harvest, possess while in or on
the waters of the state, or land any jawfish (Family
Opistognathidae) of total length greater than 4 inches.
(5) Spotfin and Spanish hogfish --
(a) No person shall harvest, possess while in or on the waters
of this state, or land any Spanish hogfish (Bodianus rufus) of total
length less than 2 inches.
(b) No person shall harvest, possess while in or on the waters
of this state, or land any Spanish hogfish (Bodianus rufus) or
spotfin hogfish (Bodianus pulchellus) of total length greater than 8
inches.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.005 Bag limit
(1) Except as provided in Rule 46-42.006 or subsections (3) or
(4) of this rule (46-42.005) no person shall harvest, possess while
in or on the waters of the state, or land more than 20 individuals
per day of tropical ornamental marine life species, in any
combination.
(2) Except as provided in Rule 46-42.006, no person shall
harvest, possess while in or on the waters of the state, or land
more than one (1) gallon per day of tropical ornamental marine
plants, in any combination of species.
(3) Except as provided in Rule 46-42.006, no person shall
harvest, possess while in or on the waters of the state, or land
more than 5 angelfishes (Family Pomacanthidae) per day. Each
angelfish shall be counted for purposes of the 20 individual bag
limit specified in subsection (1) of this rule (46-42-005).
(4)(a) Unless the season is closed pursuant to paragraph (b), no
person shall harvest, possess while in or on the waters of the
state, or land more than 6 colonies per day of octocorals. Each
colony of octocoral or part thereof shall be considered an
individual of the species for purposes of subsection (1) of this
rule (46-42-005) and shall be counted for purposes of the 20
individual bag limit specified therein. Each person harvesting any
octocoral as authorized by this rule (46-42-005) may also harvest
substrate within 1 inch of the perimeter of the holdfast at the base
of the octocoral, provided that such substrate remains attached to
the octocoral.
(b) If the harvest of octocorals in federal Exclusive Economic
Zone (EEZ) waters adjacent to state waters is closed to all
harvesters prior to September 30 of any year, the season for harvest
of octocorals in state waters shall also close until the following
October 1, upon notice given by the Secretary of the Department of
Environmental Protection, in the manner provided in s.120.52(16)(d),
Florida Statutes.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 1-1-95.
[[Page 4622]]
46-42.006 Commercial Season, Harvest Limits
(1) Except as provided in Rule 46-42.008(7), no person shall
harvest, possess while in or on the waters of the state, or land
quantities of tropical ornamental marine life species or tropical
ornamental marine plants in excess of the bag limits established in
Rule 46-42.005 unless such person possesses a valid saltwater
products license with both a marine life fishery endorsement and a
restricted species endorsement issued by the Department of
Environmental Protection.
(2) Persons harvesting tropical ornamental marine life species
or tropical ornamental marine plants for commercial purposes shall
have a season that begins on October 1 of each year and continues
through September 30 of the following year. These persons shall not
harvest, possess while in or on the waters of the state, or land
tropical ornamental marine life species in excess of the following
limits:
(a) A limit of 75 angelfish (Family Pomacanthidae) per person
per day or 150 angelfish per vessel per day, whichever is less.
(b) A limit of 75 butterflyfishes (Family Chaetodontidae) per
vessel per day.
(c) There shall be no limits on the harvest for commercial
purposes of octocorals unless and until the season for all harvest
of octocorals in federal Exclusive Economic Zone (EEZ) waters
adjacent to state waters is closed. At such time, the season for
harvest of octocorals in state waters shall also close until the
following October 1, upon notice given by the Secretary of the
Department of Environmental Protection, in the manner provided in
Section 120.52(16)(d), Florida Statutes. Each person harvesting any
octocoral as authorized by this rule may also harvest substrate
within 1 inch of the perimeter of the holdfast at the base of the
octocoral, provided that such substrate remains attached to the
octocoral.
(d) A limit of 400 giant Caribbean or ``pink-tipped'' anemones
(Genus Condylactus) per vessel per day.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.007 Gear Specifications and Prohibited Gear
(1) The following types of gear shall be the only types allowed
for the harvest of any tropical fish, whether from state waters or
from federal Exclusive Economic Zone (EEZ) waters adjacent to state
waters:
(a) Hand held net.
(b) Barrier net, with a mesh size not exceeding \3/4\ inch
stretched mesh.
(c) Drop net, with a mesh size not exceeding \3/4\ inch
stretched mesh.
(d) Slurp gun.
(e) Quinaldine may be used for the harvest of tropical fish if
the person using the chemical or possessing the chemical in or on
the waters of the state meets each of the following conditions:
1. The person also possesses and maintains aboard any vessel
used in the harvest of tropical fish with quinaldine a special
activity license authorizing the use of quinaldine, issued by the
Division of Marine Resources of the Department of Environmental
Protection pursuant to Section 370.08(8), Florida Statutes.
2. The quinaldine possessed or applied while in or on the waters
of the state is in a diluted form of no more than 2% concentration
in solution with seawater. Prior to dilution in seawater, quinaldine
shall only be mixed with isopropyl alcohol or ethanol.
(f) A roller frame trawl operated by a person possessing a valid
live bait shrimping license issued by the Department of
Environmental Protection pursuant to Section 370.15, Florida
Statutes, if such tropical fish are taken as an incidental bycatch
of shrimp lawfully harvested with such trawl.
(g) A trawl meeting the following specifications used to collect
live specimens of the dwarf seahorse, Hippocampus zosterae, if towed
by a vessel no greater than 15 feet in length at no greater than
idle speed:
1. The trawl opening shall be no larger than 12 inches by 48
inches.
2. The trawl shall weigh no more than 5 pounds wet when weighed
out of the water.
(2) This rule shall not be construed to prohibit the use of any
bag or container used solely for storing collected specimens or the
use of a single blunt rod in conjunction with any allowable gear,
which rod meets each of the following specifications:
(a) The rod shall be made of nonferrous metal, fiberglass, or
wood.
(b) The rod shall be no longer than 36 inches and have a
diameter no greater than \3/4\ inch at any point.
(3) No person shall harvest in or from state waters any tropical
fish by or with the use of any gear other than those types specified
in subsection (1); provided, however, that tropical fish harvested
as an incidental bycatch of other species lawfully harvested for
commercial purposes with other types of gear shall not be deemed to
be harvested in violation of this rule, if the quantity of tropical
fish so harvested does not exceed the bag limits established in Rule
46-42.005.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92,
1-1-95.
46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine
Corals and Sea Fans; Exception; Repeal of Section 370.114, Florida
Statutes
(1) Except as provided in subsection (2), no person shall take,
attempt to take, or otherwise destroy, or sell, or attempt to sell,
any sea fan of the species Gorgonia flabellum or of the species
Gorgonia ventalina, or any hard or stony coral (Order Scleractinia)
or any fire coral (Genus Millepora). No person shall possess any
such fresh, uncleaned, or uncured sea fan, hard or stony coral, or
fire coral.
(2) Subsection (1) shall not apply to:
(a) Any sea fan, hard or stony coral, or fire coral legally
harvested outside of state waters or federal Exclusive Economic Zone
(EEZ) waters adjacent to state waters and entering Florida in
interstate or international commerce. The burden shall be upon any
person possessing such species to establish the chain of possession
from the initial transaction after harvest, by appropriate
receipt(s), bill(s) of sale, or bill(s) of lading, and any customs
receipts, and to show that such species originated from a point
outside the waters of the State of Florida or federal Exclusive
Economic Zone (EEZ) adjacent to state waters and entered the state
in interstate or international commerce. Failure to maintain such
documentation or to promptly produce same at the request of any duly
authorized law enforcement officer shall constitute prima facie
evidence that such species were harvested from Florida waters in
violation of this rule.
(b) Any sea fan, hard or stony coral, or fire coral harvested
and possessed pursuant to permit issued by the Department of
Environmental Protection for scientific or educational purposes as
authorized in Section 370.10(2), Florida Statutes.
(c) Any sea fan, hard or stony coral, or fire coral harvested
and possessed pursuant to the aquacultured live rock provisions of
Rule 46-42.008(3)(a) or pursuant to a Live Rock Aquaculture Permit
issued by the National Marine Fisheries Service under 50 CFR Part
638 and meeting the following requirements:
1. Persons possessing these species in or on the waters of the
state shall also possess a state submerged lands lease for live rock
aquaculture and a Department of Environmental Protection permit for
live rock culture deposition and removal or a federal Live Rock
Aquaculture Permit. If the person possessing these species is not
the person named in the documents required herein, then the person
in such possession shall also possess written permission from the
person so named to transport aquacultured live rock pursuant to this
exception.
2. The nearest office of the Florida Marine Patrol shall be
notified at least 24 hours in advance of any transport in or on
state waters of aquacultured live rock pursuant to this exception.
3. Persons possessing these species off the water shall maintain
and produce upon the request of any duly authorized law enforcement
officer sufficient documentation to establish the chain of
possession from harvest on a state submerged land lease for live
rock aquaculture or in adjacent Exclusive Economic Zone (EEZ) waters
pursuant to a federal Live Rock Aquaculture Permit.
4. Any sea fan, hard or stony coral, or fire coral harvested
pursuant to Rule 46-42.008(3)(a) shall remain attached to the
cultured rock.
Specific Authority 370.027(2), F.S.; Section 6, Chapter 83-134,
Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Law
Implemented 370.025, 370.027, F.S.; Section 6, Chapter 83-134, Laws
of Florida, as amended by Chapter 84-121, Laws of Florida. History--
New 1-1-95.2222.
PARTS 929 AND 937--[REMOVED]
18. Under the authority of 16 U.S.C. 1431 et seq., Parts 929 and
937 are removed.
[FR Doc. 97-1870 Filed 1-24-97; 10:59 am]
BILLING CODE 3510-12-P