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ThursdayJanuary 30, 1997

Part II

Department ofCommerceNational Oceanic and AtmosphericAdministration

15 CFR Parts 922, 929 and 937

Florida Keys National Marine Sanctuary;Final Rule

4578 Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and AtmosphericAdministration

15 CFR Parts 922, 929 and 937

[Docket No. 960712192–6192–01]

RIN 0648–AD85

Florida Keys National MarineSanctuary Final Regulations

AGENCY: Office of Ocean and CoastalResource Management (OCRM),National Ocean Service (NOS), NationalOceanic and AtmosphericAdministration (NOAA), Department ofCommerce.ACTION: Final rule; removal and revisionof regulations; summary of FinalManagement Plan.

SUMMARY: Pursuant to the Florida KeysNational Marine Sanctuary andProtection Act and the National MarineSanctuaries Act, NOAA has developedthe comprehensive final managementplan for the Florida Keys NationalMarine Sanctuary (FKNMS or theSanctuary). NOAA hereby issues finalregulations to implement that plan andgovern the conduct of activities withinthe Sanctuary. This document alsosummarizes the Final ManagementPlan—Environmental Impact Statement(FMP/EIS) for the Sanctuary. The FMP/EIS details the goals and objectives,management responsibilities, researchactivities, educational and outreachprograms, and interpretive enforcementactivities for the Sanctuary. Theintended effect of the final regulations,and FMP/EIS is to protect and managethe conservation, recreational,ecological, historical, research,educational, and aesthetic qualities ofthe Sanctuary consistent with theFlorida Keys National Marine Sanctuaryand Protection Act and the NationalMarine Sanctuaries Act.EFFECTIVE DATES: Congress and theGovernor of the State of Florida haveforty-five days of continuous session ofCongress beginning on the day on whichthis document is published to reviewthe regulations before they take effect.After forty-five days, the regulationsautomatically become final and takeeffect, unless the Governor of the Stateof Florida certifies within the forty-five-day period to the Secretary ofCommerce that a regulation orregulations is unacceptable. In suchcase, the regulation (or regulations)cannot take effect in the area of theSanctuary lying within the seawardboundary of the State of Florida. In noevent will § 922.164(d) become effective

in State waters before July 1, 1997. Adocument announcing the effectivedates will be published in the FederalRegister.ADDRESSES: Requests for a copy of theFMP/EIS, the Final RegulatoryFlexibility Analysis, or the FederalismAssessment should be submitted to theSanctuary Superintendent, Florida KeysNational Marine Sanctuary, P.O. Box500368, Marathon, Florida 33050.FOR FURTHER INFORMATION CONTACT:Billy Causey, Sanctuary Superintendent,305/743–2437 or Edward Lindelof, EastCoast Branch Chief, 301/713–3137Extension 131.

SUPPLEMENTARY INFORMATION:

I. Introduction

The FKNMS was designated by an actof Congress entitled the Florida KeysNational Marine Sanctuary andProtection Act (FKNMSPA, Pub. L. 101–605) which was signed into law onNovember 16, 1990. The FKNMSPAdirected the Secretary of Commerce todevelop a comprehensive managementplan and regulations for the Sanctuarypursuant to sections 303 and 304 of theNational Marine Sanctuaries Act(NMSA) (also known as Title III of theMarine Protection, Research, andSanctuaries Act of 1972), as amended,16 U.S.C. 1431 et seq. The NMSAauthorizes the development ofmanagement plans and regulations fornational marine sanctuaries to protecttheir conservation, recreational,ecological, historical, research,educational, or aesthetic qualities.

The authority of the Secretary todesignate national marine sanctuariesand implement designated sanctuarieswas delegated to the Under Secretary ofCommerce for Oceans and Atmosphereby the Department of Commerce,Organization Order 10–15, § 3.01(z) (Jan.11, 1988). The authority to administerthe other provisions of the NMSA wasdelegated to the Assistant Administratorfor Ocean Services and Coastal ZoneManagement of NOAA by NOAACircular 83–38, Directive 05–50 (Sept.21, 1983, as amended).

II. Summary of Final ManagementPlan/Environmental Impact Statement

The FMP/EIS sets forth the affectedenvironment of the Sanctuary includingthe boundary and details its resourcesand human uses of the Sanctuary. TheFMP/EIS also describes the resourceprotection, research, education andinterpretive enforcement programs, anddetails the specific activities to beconducted in each management programarea. The FMP/EIS includes a

discussion, by program area, of agencyroles and responsibilities.

The goals and objectives for theSanctuary are to: (1) Enhance resourceprotection through comprehensive andcoordinated conservation and ecosystemmanagement that complements existingregulatory authorities; (2) support,promote, and coordinate scientificresearch on, and monitoring of, the site-specific marine resources to improvemanagement decision-making innational marine sanctuaries; (3) enhancepublic awareness, understanding, andthe wise use of the marine environmentthrough public education, andinterpretive enforcement; and (4)facilitate, to the extent compatible withthe primary objective of resourceprotection, multiple uses of theSanctuary.

A. Resource ProtectionThe highest priority management goal

is to protect the marine environment,resources, and qualities of theSanctuary. The specific objectives ofprotection efforts are to: (1) Reducethreats to Sanctuary resources; (2)encourage participation by interestedagencies and organizations inaddressing specific managementconcerns (e.g., monitoring andemergency-response programs); (3)develop an effective and coordinatedprogram for the interpretiveenforcement of Sanctuary regulations inaddition to other regulations already inplace; (4) promote public awareness of,and voluntary compliance with,Sanctuary regulations and objectivesthrough an educational/interpretiveprogram stressing resource sensitivityand wise use; (5) ensure that the waterquality of the Florida Keys ismaintained at a level consistent with thepurposes of Sanctuary designation; (6)establish cooperative agreements andother mechanisms for coordinationamong all the agencies participating inSanctuary management; (7) ensure thatthe appropriate management agenciesincorporate research results andscientific data into effective resourceprotection strategies; and (8) coordinatepolicies and procedures among theagencies sharing responsibility forprotection and management ofSanctuary resources.

B. Research ProgramEffective management of the

Sanctuary requires the conduct of aSanctuary research program. Thepurpose of Sanctuary research is toimprove understanding of the FloridaKeys’ coastal and offshore environment,resources, and qualities, and to resolvespecific management problems. Some of

4579Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Rules and Regulations

these management problems involveresources common to coastal andoffshore waters, and nearby Federal,State, and local refuges and reserves.Research results will both supportmanagement efforts to protect Sanctuaryresources and qualities, and beincorporated into interpretativeprograms for visitors and othersinterested in the Sanctuary.

Specific objectives for the researchprogram are to: (1) Establish aframework and procedures foradministering research to ensure thatresearch projects are responsive tomanagement concerns and that resultscontribute to improved management ofthe Sanctuary; (2) focus and coordinatedata collection efforts on the physical,chemical, geological, and biologicaloceanography of the Sanctuary; (3)encourage studies that integrate researchfrom the variety of coastal habitats withnearshore and open ocean processes; (4)initiate a monitoring program to assessenvironmental changes as they occurdue to natural and human processes; (5)identify the range of effects on theenvironment that would result frompredicted changes in human activity ornatural phenomena; (6) encourageinformation exchange and cooperationamong all the organizations andagencies undertaking management-related research in the Sanctuary topromote more informed management;and (7) incorporate research results intothe interpretive/education program in aformat useful for the general public.

C. Education and Outreach

The goal for the Sanctuary educationand outreach program is to improvepublic awareness and understanding ofthe significance of the Sanctuary andthe need to protect its resources andqualities.

The management objectives designedto meet this goal are to: (1) Provide thepublic with information on theSanctuary and its goals and objectives,with an emphasis on the need to useSanctuary resources and qualitieswisely to ensure their long-termviability; (2) broaden support forSanctuary management by offeringprograms suited to visitors with adiverse range of interests; (3) provide forpublic involvement by encouragingfeedback on the effectiveness ofeducation programs, collaboration withSanctuary management staff inextension and outreach programs, andparticipation in other volunteerprograms; and (4) collaborate with otherorganizations to provide educationalservices complementary to theSanctuary program.

D. Visitor Use

The Sanctuary goal for visitor usemanagement is to facilitate, to the extentcompatible with the primary objectiveof resource protection, public andprivate uses of the resources of theSanctuary not prohibited pursuant toother authorities.

Specific management objectives areto: (1) Provide relevant informationabout Sanctuary regulations, usepolicies, and standards; (2) collaboratewith public and private organizations inpromoting compatible uses of theSanctuary; (3) encourage the public whouse the Sanctuary to respect sensitiveSanctuary resources and qualities; and(4) monitor and assess the levels of useto identify and control potentialdegradation of resources and qualities,and minimize potential user conflicts.

The Sanctuary is currently managedfrom offices located in Key Largo andKey West, with the headquarters inMarathon.

III. Summary of the Final Regulations

Two sets of existing regulations areeliminated and replaced by this finalrule. Specifically, parts 929 and 937 totitle 15 of the Code of FederalRegulations, which govern activities inthe Key Largo and Looe Key NationalMarine Sanctuaries, respectively, areremoved and replaced by the newregulations which govern the entireFKNMS. Consistent with theFKNMSPA, the Looe Key and Key LargoNational Marine Sanctuaries have beenincorporated into the FKNMS asExisting Management Areas(§ 922.164(b)(1)).

Organizationally, these finalregulations are revised from theproposed regulations in furtherance ofthe President’s Regulatory ReinventionInitiative to, among other things,consolidate duplicative regulatoryprovisions. Consequently, the newregulations for the most part appear ina new subpart P to 15 CFR part 922 (15CFR 922.160—922.167) and inAppendixes I through VIII to subpart P.Existing §§ 922.3, 922.42, 922.45,922.46, 922.49 and 922.50 of 15 CFRpart 922 are also applicable to theSanctuary. In some instances, this rulemakes minor revisions to those andother sections of the National MarineSanctuary Program Regulations at 15C.F.R. part 922 to make them meld withthe new subpart P.

Section 922.160 sets forth the purposeof the regulations—to implement thecomprehensive final management planfor the Sanctuary by regulating activitiesaffecting the Sanctuary in order toprotect, preserve, and manage the

conservation, ecological, recreational,research, educational, historical andaesthetic resources and qualities of thearea.

Section 922.161 and Appendix Idescribe the boundary of the Sanctuaryas established by section 5 of theFKNMSPA.

Existing § 922.3 defines termsapplicable to all National MarineSanctuaries. The Marine Protection,Research, and Sanctuaries Act alsodefines other terms applicable to allNational Marine Sanctuaries. The terms‘‘historical resource,’’ and ‘‘sanctuaryquality’’ were slightly revised to reflectthe Sanctuary’s definitions as theyappeared in the proposed regulations.The modified definitions further clarifythe meaning of these terms, which areapplicable to all the sanctuaries foundin part 922.

Section 922.162 defines terms onlyapplicable to the FKNMS.

Existing § 922.42 specifies that allactivities, including fishing, boating,diving, research, and education, areallowed in the National MarineSanctuaries except to the extent thatthose activities are restricted orprohibited by subparts F through P ofpart 922 (in the case of the FKNMS by§§ 922.163, 922.164), subject to anyemergency regulation (in the case of theFKNMS under § 922.165), and subject toall prohibitions, regulations,restrictions, and conditions validlyimposed by any Federal, State, or localauthority of competent jurisdiction.This section is intended to assure thatif activities are not prohibited orotherwise restricted or conditionedpursuant to this part, or by any otherFederal, State, or local authority ofcompetent jurisdiction, then they areexpressly allowed within the Sanctuary.

Section 922.163 prohibits a variety ofactivities within the Sanctuary and inlimited instances, outside theSanctuary, thus making it unlawful forany person to conduct them or causethem to be conducted.

The first activity prohibited isexploring for, developing, or producingminerals or hydrocarbons within theSanctuary. The FKNMSPA alreadyprohibits these activities. TheSanctuary’s significant natural resourcesand qualities are especially sensitive topotential impacts from outer continentalshelf minerals or hydrocarbon activitiesand should be protected. Specifically,the corals, seagrasses, and mangroves ofthe Florida Keys and the Sanctuary’swater quality are especially vulnerableto oil and gas activities in the area. Theprohibition on oil, gas and mineralactivities will help protect theSanctuary’s resources and qualities.


This specific prohibition is consistentwith the general prohibition on drillinginto, dredging or otherwise altering theseabed discussed below. Thecodification of the statutory prohibitionsinto the Sanctuary regulations is forregulatory cohesiveness (so that allrestrictions or prohibitions found in thestatute or imposed pursuant to thestatute’s authority can be found in oneplace) rather than to provide anyadditional protections.

The second activity prohibited is theremoval of, injury to, or possession ofcoral or live rock except as authorizedby a Federal or State permit. The intentof this prohibition is to conserve thecoral reefs, to protect the biodiversity ofthe Sanctuary, to protect the habitats ofcommercially and ecologicallyimportant species, and to preserve thenatural functional aspects of the coralreef ecosystem.

The third activity prohibited isalteration of, or construction on, theseabed. Such actions as drilling,dredging, and prop dredging areprohibited by this regulation. Theseabed and the water over the seabedare the basic elements for all marineecosystems. This prohibition protectsthe seabed as well as the resources inand on the seabed, such as shipwrecks,and seagrasses. Exceptions are made foranchoring in manners not otherwiseprohibited, traditional fishing activitiesnot otherwise prohibited, installationand maintenance of navigational aids,harbor maintenance, repair andreplacement of jetties, and breakwaters,and construction, repair, andreplacement of docks and piers.

The fourth activity prohibited is thedischarge or deposit of materials orother matter. Exceptions are made forsuch things as fish baits in connectionwith and during traditional fishing,biodegradable vessel effluents,graywater, and vessel exhaust andcooling water. The primary intent of thisprohibition is to protect the Sanctuaryresources and qualities against theharmful effects of land and marinebased pollution, particularly vesselsource pollution, to reduce and preventcontamination by marine debris andrelated impacts associated withpollution of the marine environment ofthe Sanctuary. Together with theprohibition on the alteration of, orconstruction on, the seabed, thisprovides a safety net for protection ofspecific resources and the ecosystem.

The fifth activity prohibited is theoperation of vessels in a manner whichharms significant Sanctuary resourcessuch as operating a vessel in such amanner as to strike or otherwise injurecoral, seagrass, other immobile organism

attached to the seabed, or to injure ortake wading, nesting, or roostingseabirds or marine mammals. Alsospecifically prohibited is having a vesselanchored on living coral other thanhardbottom in less than 40 feet of waterwhen visibility is such that the seabedcan be seen, operating a vessel at aspeed greater than idle speed only/nowake within an area designated as idlespeed only/no wake, within 100 yardsof navigational aids indicating emergentor shallow reefs, residential shorelines,or stationary vessels, within 100 feet ofdivers flags, and operating a vessel in amanner which endangers life, limb,marine resources, or property.

The sixth activity prohibited is divingwithout a red and white ‘‘divers down’’flag or a blue and white ‘‘alpha’’ flag inFederal waters. The intent of thisprohibition on divers in conjunctionwith the previous restriction on vesseloperation is to help prevent injury tohumans and facilitate safe, multiple useof the Sanctuary.

The seventh activity prohibited is therelease of exotic species. Exotic speciescan permanently alter a naturalecosystem and its assemblages by suchthings as out competing indigenousspecies and preying on indigenousspecies. The intent of this prohibition isto prevent injury to Sanctuary resources,to protect the biodiversity of theSanctuary, and to preserve the naturalfunctional aspects of the ecosystem. Byprotecting the natural ecosystem andassemblages, it also addresses concernsfrom commercial and recreational usersdependent upon the natural ecosystemand assemblages.

The eighth activity prohibited is thetampering with official signs or markersor navigational aids. The signs, markersand navigational aids generally areposted to inform the users aboutregulations as well as the existence ofcertain Sanctuary resources, primarilycorals and seagrasses, in order toprevent injury to those resources. Theyalso address safety concerns for humansand property. Prohibiting tampering isreasonable and necessary for effectiveprevention and enforcement ofregulations.

The ninth activity prohibited is theremoving or injuring of Sanctuaryhistorical resources. Submergedhistorical resources constituteimportant, irreplaceable, publicresources of the Sanctuary because theycontain important information abouthuman heritage, history, and culture.This prohibition is designed to protectthese resources and ensure theiravailability for present and futureresearch, education and other uses

compatible with the NMSA and theAbandoned Shipwreck Act (ASA).

The tenth activity prohibited is takingor possessing certain protected wildlife.The Sanctuary is an important stagingarea, breeding area, and feeding area fora variety of wildlife, including a numberof endangered and threatened species.The intent of this prohibition is toprotect Sanctuary resources andendangered and/or threatened species.

The eleventh activity prohibited is thepossession or use of explosives andelectrical charges. The intent of thisprohibition is to prevent injury toSanctuary resources.

The twelfth activity prohibited is theharvest or possession of marine lifespecies (tropical fish and plants), exceptin accordance with the Marine Life Ruleof the Florida Administrative Codereproduced in Appendix VIII to thissubpart. The intent of this regulation isto protect Sanctuary resources andbiodiversity by adopting relevantportions of the Florida Marine Life ruleas a uniform regulation to be appliedthroughout the Federal and State watersof the Sanctuary.

The thirteenth activity prohibited isinterfering with law enforcementofficers. The intent of this prohibition isto prevent the obstruction of justice.

Section 922.163 provides certainexemptions from the prohibitions suchas when a prohibited activity isconducted by a Federal, State, or localofficer while performing enforcementduties and/or while responding toemergencies. Certain activitiesconducted by the U.S. Department ofDefense are also exempt. Also, aprohibited activity may be conducted ifspecifically authorized by, andconducted in accordance with aNational Marine Sanctuary Permit.

Section 922.164 sets forth bySanctuary zone, restrictions andprohibitions above and beyond thoseapplicable on a Sanctuary-wide basis(most of the Sanctuary is not zoned and,therefore, only the Sanctuary-wideprohibitions of § 922.163 apply). The sixtype of Sanctuary zones are: (1) Areas tobe Avoided (ATBAs); (2) ExistingManagement Areas; (3) WildlifeManagement Areas; (4) EcologicalReserves; (5) Sanctuary PreservationAreas; and (6) Special-use Areas. Detailson the location of these zones arespecified in Appendices II, III, IV, V andVI to subpart P, respectively. The intentof the zoning regulations is to protectSanctuary resources, ecosystem andbiodiversity, and provide for effectivemanagement and facilitation ofmultiple, compatible uses, consistentwith the purposes of the Sanctuary.Activities located within two or more


overlapping Sanctuary zones areconcurrently subject to the regulationsapplicable to each overlapping area.

Section 922.164(a) prohibits theoperation of a tank vessel or a vesselgreater than 50 meters in registeredlength in an ATBA. The boundarycoordinates for the ATBAs are listed inAppendix VII to this subpart. Thisprohibition merely codifies into theSanctuary regulations the prohibition inthe FKNMSPA against this activity inthe ATBAs. The prohibition shouldprevent or minimize large or tank vesselgroundings on the coral reef, and thusminimize the risk of extensive physicaldamage, spills and associated, possiblyirreparable, injury to Sanctuaryresources likely to result from agrounding of a large vessel or tankvessel.

Section 922.164(b) sets forthadditional restrictions applicable toExisting Management Areas—areas ofthe Sanctuary that are already within aresource management area establishedby NOAA or by another Federalauthority of competent jurisdiction, andin need of a level of protection higherthan that provided by the Sanctuary-wide prohibitions and restrictions of§ 922.163. The Existing ManagementAreas are the Looe Key and Key LargoNational Marine Sanctuaries and theKey West and Great White HeronNational Wildlife Refuges. Theboundaries of these areas are set forth inAppendix II to subpart P.

The FKNMSPA subsumed the KeyLargo and Looe Key National MarineSanctuaries into the FKNMS. Thequalities and values for which thoseSanctuaries were originally designatedremain and require a continued level ofprotection above and beyond thoseapplicable Sanctuary-wide. Therefore,consistent with the FKNMSPA,additional restrictions will remainapplicable to those two areas. In orderto do so, the areas of the twoSanctuaries have been zoned as ExistingManagement Areas with portionsthereof also designated as SanctuaryPreservation Areas and Special-useAreas. Therefore, the special restrictionsapplicable to the two areas appear in therestrictions applicable to ExistingManagement Areas, SanctuaryPreservation Areas, and Special-useAreas.

Section 922.164(b)(1) sets forth thespecial restrictions applicable to theentire Key Largo and Looe Key ExistingManagement Areas: (i) Removing,taking, damaging, harmfully disturbing,breaking, cutting, spearing or similarlyinjuring any coral or other marineinvertebrate, or any plant, soil, rock, orother material, except commercial

taking of spiny lobster and stone crab bytrap and recreational taking of spinylobster by hand or by hand gear whichis consistent with these regulations andthe applicable regulations implementingthe applicable National MarineFisheries Service Fishery ManagementPlans; (ii) taking any tropical fish; (iii)fishing with wire fish traps, bottomtrawls, dredges, fish sleds, or similarvessel-towed or anchored bottom fishinggear or nets; and (iv) fishing with,carrying or possessing, except whilepassing through without interruption orfor law enforcement purposes: Polespears, air rifles, bows and arrows,slings, Hawaiian slings, rubber poweredarbaletes, pneumatic and spring-loadedguns or similar devices known asspearguns.

Also designated Existing ManagementAreas are the Great White Heron andKey West National Wildlife RefugeManagement Areas. The Refuges aresubject to the continuing managementand control of the Department of theInterior, notwithstanding the exercise ofconcurrent regulatory authority byNOAA in the surrounding marineenvironment in accordance with thispart. The development of theseSanctuary regulations was the result ofcoordination with the Department of theInterior, U.S. Fish and Wildlife Service.Such coordination will continue in theimplementation and enforcement ofthese rules and regulations in a mannerthat complements the Sanctuary finalmanagement plan as well as existingrefuge management plans. TheSanctuary’s interpretive enforcementapproach will be utilized in these areasto supplement existing enforcement bythe U.S. Fish and Wildlife Service.

Section 922.164(b)(2) incorporatesexisting U.S. Fish and Wildlife Servicerestrictions which prohibit waterskiing,operating personal watercraft, andoperating airboats within the GreatWhite Heron and Key West NationalWildlife Refuge Management Areas intoSanctuary regulations. By incorporatingthose provisions into the Sanctuaryregulations, civil penalties can besought for violation of Sanctuaryregulations. Presently, only criminalsanctions, which are more difficult toprove and not always the best means ofobtaining compliance, are available.

Section 922.164(c) sets forth theprocedures for designating and changingthe designation of all or part of themarine portions of the 27 WildlifeManagement Areas listed in AppendixIII as ‘‘idle speed only/no-wake’’, ‘‘nomotor’’, ‘‘no access buffer’’ or ‘‘closed’’areas. Wildlife Management Areas areareas established for the management,protection, and preservation of wildlife

resources, including such areasestablished for the protection andpreservation of endangered orthreatened species or their habitats,within which access is restricted tominimize disturbances to wildlife andto ensure protection and preservationconsistent with the Sanctuarydesignation and other applicable lawgoverning the protection andpreservation of wildlife resources. Onlythe marine portions of these areas arewithin the Sanctuary, the land portionsare under the Department of theInterior’s and the State of Florida’sjurisdiction and protection.

An ‘‘idle speed only/no-wake zone’’means a portion of the Sanctuary wherethe speed at which a boat is operatedmay be no greater than 4 knots or maynot produce a wake. A ‘‘no motor zone’’means an area of the Sanctuary wherethe use of internal combustion motors isprohibited. A vessel with an internalcombustion motor may access a nomotor zone only through the use of apush pole, paddle, sail, electric motor orsimilar means of operation but isprohibited from using it’s internalcombustion motor. A ‘‘no-access bufferzone’’ means a portion of the Sanctuarywhere vessels are prohibited fromentering regardless of the method ofpropulsion. ‘‘Closed’’ means all entry oruse is prohibited.

The regulations require the Director ordesignee, in cooperation with otherFederal, State, or local resourcemanagement authorities, as appropriate,to effect such designations by postingofficial signs conspicuously, usingmounting posts, buoys, or other meansaccording to location and purpose, atappropriate intervals and locations.Appendix III also sets forth the accessrestrictions applicable to the marineportions of the Wildlife ManagementAreas. The intent of these rules is toprotect wildlife resources from injury orharmful disturbance within sensitiveareas and habitats. It is also the intentof these restrictions to protect Sanctuaryresources and qualities throughcoordination with the Department of theInterior and others in a manner thatrecognizes and complements theexisting management of the landportions of these areas. For example, aclosure of a beach above the mean highwater by the Department of the Interioris complemented by a closure ofadjacent marine areas in the Sanctuaryregulations. More importantly, theSanctuary’s interpretive enforcementapproach will be utilized in these areasto supplement existing enforcement bythe Department of the Interior. Asdiscussed above, civil sanctions areavailable to address violations of


Sanctuary regulations while onlycriminal sanctions are available toaddress violations of the Interior’s rules.

Section 922.164(d) sets forthprohibitions applicable to activitiesconducted within Ecological Reservesand Sanctuary Preservation Areas.Ecological Reserve means an area of theSanctuary consisting of contiguous,diverse habitats, within which uses aresubject to conditions, restrictions andprohibitions, including accessrestrictions, intended to minimizehuman influences, to provide naturalspawning, nursery, and permanentresidence areas for the replenishmentand genetic protection of marine life,and also to protect and preserve naturalassemblages of habitats and specieswithin areas representing a broaddiversity of resources and habitatsfound within the Sanctuary. AppendixIV sets forth the geographic coordinatesof the Western Sambos EcologicalReserve-the only Ecological Reserveestablished by the final regulations.Another Ecological Reserve-the DryTortugas Ecological Reserve will beproposed by a separate rulemaking.

Sanctuary Preservation Area means anarea of the Sanctuary that encompassesa discrete, biologically important area,within which uses are subject toconditions, restrictions andprohibitions, including accessrestrictions, to avoid concentrations ofuses that could result in significantdeclines in species populations orhabitat, to reduce conflicts betweenuses, to protect areas that are critical forsustaining important marine species orhabitats, or to provide opportunities forscientific research. Appendix V setsforth the geographic coordinates of the18 Sanctuary Preservation Areasestablished by the final regulations.

Above and beyond the activitiesprohibited Sanctuary-wide, thefollowing activities are prohibited in theEcological Reserves and SanctuaryPreservation Areas: (i) Discharging ordepositing any material or other matterexcept cooling water or engine exhaust;(ii) possessing, moving, harvesting,removing, taking, damaging, disturbing,breaking, cutting, spearing, or otherwiseinjuring any coral, marine invertebrate,fish, bottom formation, algae, seagrass orother living or dead organism, includingshells, or attempting any of theseactivities. However, fish, invertebrates,and marine plants may be possessedaboard a vessel in an Ecological Reserveor Sanctuary Preservation Area,provided such resources can be shownnot to have been harvested within,removed from, or taken within, theEcological Reserve or SanctuaryPreservation Area, as applicable, by

being stowed in a cabin, locker, orsimilar storage area prior to entering andduring transit through such reserves orareas; (iii) except for catch and releasefishing by trolling in the Conch Reef,Alligator Reef, Sombrero Reef, and SandKey Sanctuary Preservation Areas,fishing by any means. However, gearcapable of harvesting fish may be aboarda vessel in an Ecological Reserve orSanctuary Preservation Area, providedsuch gear is not available for immediateuse when entering and during transitthrough such Ecological Reserve orSanctuary Preservation Area, and nopresumption of fishing activity shall bedrawn therefrom (baitfishing by net forballyhoo in SPAs will be allowedpursuant to a Sanctuary permit); (iv)touching living or dead coral, includingbut not limited to, standing on a livingor dead coral formation; (v) placing anyanchor in a way that allows the anchoror any portion of the anchor apparatus(including the anchor, chain or rope) totouch living or dead coral, or anyattached organism. When anchoringdive boats, the first diver down mustinspect the anchor to ensure that it isnot touching living or dead coral, andwill not shift in such a way as to touchsuch coral or other attached organisms.No further diving shall take place untilthe anchor is placed in accordance withthese requirements; (vi) anchoringinstead of mooring when a mooringbuoy is available or anchoring in otherthan a designated anchoring area whensuch areas have been designated and areavailable; (vii) except for passagewithout interruption through the area,for law enforcement purposes, or forpurposes of monitoring a temporaryaccess restriction or closure, violating atemporary access restriction imposed bythe Director.

Section 922.164(d)(2) authorizes theDirector to temporarily restrict access toany portion of any SanctuaryPreservation Area or Ecological Reserveif the Director, on the basis of the bestavailable data, information and studies,determines that a concentration of useappears to be causing or contributing tosignificant degradation of the livingresources of the area and that suchaction is reasonably necessary to allowfor recovery of the living resources ofsuch area. The Director must provide forcontinuous monitoring of the areaduring the pendency of the restriction.The Director must provide public noticeof the restriction by publishing a noticein the Federal Register, and by suchother means as the Director may deemappropriate. The Director may onlyrestrict access to an area for a period of60 days, with one additional 60-day

renewal. The Director may restrictaccess to an area for a longer periodpursuant to a notice and opportunity forpublic comment rulemaking under theAdministrative Procedure Act. Suchrestriction will be kept to the minimumamount of area necessary to achieve thepurposes thereof.

It should be noted that § 922.164(d)will not take effect in State watersbefore July 1, 1997, to allow the State ofFlorida Marine Fisheries Commission tocomplete its rulemaking process relatedto the Sambos Ecological Reserve andthose Sanctuary Preservation Areaslocated in State waters. If theCommission’s rule is not substantivelythe same as NOAA’s, then NOAA willmodify these regulations to conformwith those of the State or will consultwith the State on whether the non-conforming portions of the Sanctuaryregulations should be withdrawn fromapplying in State waters.

The intent of the establishment of,and regulation of uses within, theSanctuary Preservation Areas is to avoidconcentrations of uses that could resultin significant declines in speciespopulations or habitat, to reduceconflicts between uses, to protect areasthat are critical for sustaining importantmarine species or habitats, or to provideopportunities for scientific research.The intent of the establishment of, andregulation of uses within, the EcologicalReserves is to minimize humaninfluences, to provide natural spawning,nursery, and permanent residence areasfor the replenishment and geneticprotection of marine life, and also toprotect and preserve naturalassemblages of habitats and specieswithin areas representing a broaddiversity of resources and habitatsfound within the Sanctuary.

Section 922.164(e) sets forth theprocedures and criteria pursuant towhich the Director or designee may setaside discrete areas of the Sanctuary asSpecial-use Areas, designate such areasas ‘‘recovery areas’’ to provide for therecovery of Sanctuary resources fromdegradation or other injury attributableto human uses; ‘‘restoration areas’’ toprovide for restoration of degraded orotherwise injured Sanctuary resources;‘‘research-only areas’’ to provide forscientific research or education relatingto protection and management, throughthe issuance of a Sanctuary Generalpermit for research; or ‘‘facilitated useareas’’ to provide for the prevention ofuse or user conflicts or the facilitationof access and use, or to promote publicuse and understanding, of Sanctuaryresources through the issuance ofspecial-use permits, as appropriate, andimpose access and use restrictions to


protect the Sanctuary resources andqualities and allow for multiple,compatible uses within the Sanctuary.Special-use Areas must be no largerthan the size the Director deemsreasonably necessary to accomplish theapplicable objective. Appendix VI setsforth the boundaries of the four Special-use Areas established by the finalregulations. All four of these areas are‘‘research-only areas’’.

Persons conducting activities withinany Special-use Area are required tocomply with the access and userestrictions specified in § 922.164(e)(3)and made applicable to such area bymeans of its designation as a ‘‘recoveryarea,’’ ‘‘restoration area,’’ ‘‘research-onlyarea,’’ or ‘‘facilitated-use area.’’ Exceptfor passage without interruptionthrough the area or for law enforcementpurposes, no person may enter aSpecial-use Area except to conduct orcause to be conducted the followingactivities: (i) In such area designated asa ‘‘recovery area’’ or a ‘‘restorationarea’’, habitat manipulation related torestoration of degraded or otherwiseinjured Sanctuary resources, oractivities reasonably necessary tomonitor recovery of degraded orotherwise injured Sanctuary resources;(ii) in such area designated as a‘‘research only area’’, scientific researchor educational use specificallyauthorized by and conducted inaccordance with the scope, purpose,terms and conditions of a valid NationalMarine Sanctuary General or HistoricalResources permit; or (iii) in such areadesignated as a ‘‘facilitated-use area’’,activities specified by the Director orspecifically authorized by andconducted in accordance with thescope, purpose, terms, and conditions ofa valid Special-use permit.

The Director may modify the numberof, location of, or designationsapplicable to, Special-use Areas bypublishing in the Federal Register, afternotice and an opportunity for publiccomment in accordance with theAdministrative Procedure Act, anamendment to Appendix VI, exceptthat, with respect to such areasdesignated as a ‘‘recovery area,’’‘‘restoration area,’’ or ‘‘research onlyarea,’’ the Director may modify thenumber of, location of, or designationapplicable to, such areas by publishinga notice of such action in the FederalRegister if the Director determines thatimmediate action is reasonablynecessary to: (1) Prevent significantinjury to Sanctuary resources wherecircumstances create an imminent riskto such resources; (2) initiate restorationactivity where a delay in time wouldsignificantly impair the ability of such

restoration activity to succeed; or (3)initiate research activity where anunforeseen natural event produces anopportunity for scientific research thatmay be lost if research is not initiatedimmediately. If the Director determinesthat a notice of modification must bepromulgated immediately, the Directormust, as part of the same notice, invitepublic comment and specify thatcomments will be received for 15 daysafter the effective date of the notice. Assoon as practicable after the end of thecomment period, the Director musteither rescind, modify or allow themodification to remain unchangedthrough notice in the Federal Register.

Section 922.165 provides that wherenecessary to prevent, minimize, orminimize the imminent risk ofdestruction of, loss of, or injury to aSanctuary resource, any and allactivities are subject to immediatetemporary regulation, includingprohibition. Any such temporaryregulation may be in effect for up to 60days with one 60-day extension.Additional or extended action is subjectto the provisions of the AdministrativeProcedure Act.

Section 922.45 sets forth themaximum civil penalty for violating theNMSA or FKNMSPA, the regulations orany permit issued pursuant thereto—$100,000. Each day of a continuingviolation constitutes a separateviolation. Regulations setting forth theprocedures for civil penalties, permitsanctions, use of written warnings andrelease or forfeiture of seized propertyappear at 15 CFR part 904.

Section 922.46 repeats the provisionin section 312 of the NMSA that anyperson who destroys, causes the loss of,or injures any Sanctuary resource isliable to the United States for responsecosts, damages and interest resultingfrom such destruction, loss or injury,and any vessel used to destroy, causethe loss of, or injure any Sanctuaryresource is liable in rem to the UnitedStates for response costs, damages andinterest resulting from destruction, lossor injury.

The purpose of §§ 922.45 and 922.46is to further notify the public of theliability for violating a Sanctuaryregulation, permit issued pursuantthereto, or the NMSA, or for causing thedestruction, loss of, or injury toSanctuary resources.

Section 922.166(a) sets forth theprocedures for applying for a NationalMarine Sanctuary General Permit toconduct a prohibited activity and thecriteria governing the issuance, denial,amendment, suspension and revocationof such permits. A General Permit maybe issued by the Director or designee if

he or she finds that the activity will:Further research or monitoring relatedto Sanctuary resources and qualities;further the educational, natural orhistorical resource value of theSanctuary; further salvage or recoveryoperations in or near the Sanctuary inconnection with a recent air or marinecasualty; assist in managing theSanctuary; or otherwise furtherSanctuary purposes, includingfacilitating multiple use of theSanctuary, to the extent compatible withthe primary objective of resourceprotection. The Director cannot issue aGeneral Permit without finding that:The applicant has the professionalqualifications and financial resources toconduct and complete the activity; theduration of the activity is no longer thannecessary and the methods andprocedures are appropriate to achievethe stated purpose; the activity will beconducted in a manner compatible withthe primary objective of protection ofSanctuary resources and qualities; it isnecessary to conduct the activity withinthe Sanctuary to achieve its purposes;the reasonably expected end value ofthe activity will further Sanctuary goalsand purposes and outweighs anypotential adverse impacts of the activityon Sanctuary resources. For activitiesproposed to be conducted within anExisting Management Area, a WildlifeManagement Area, an EcologicalReserve, a Sanctuary Preservation Area,or a Special-use Area, the Directorcannot issue a Permit unless he or shealso finds that such activities willfurther and are consistent with thepurposes for which such area wasestablished.

Section 922.166(b) sets forth theapplication procedures and issuancecriteria for National Marine SanctuarySurvey/Inventory of HistoricalResources Permits. Such permits are notrequired if such survey/inventoryactivity does not involve any activityprohibited by §§ 922.163 or 922.164. Ifa survey/inventory activity will involvetest excavations or removal of artifactsor materials for evaluative purposes, aSurvey/Inventory of HistoricalResources Permit is required. A Survey/Inventory permit may be issued if theactivity will be non-intrusive, notinclude any excavation, removal, orrecovery of historical resources and notresult in destruction of, loss of or injuryto Sanctuary resources or qualities.Such permit may also be issued if theactivities are intrusive but will involveno more than the minimum manualalteration of the seabed and/or theremoval of artifacts or other materialnecessary for evaluative purposes and


will cause no significant adverseimpacts on Sanctuary resources orqualities. Such permit must bedetermined to be in the public interestand be consistent with theProgrammatic Agreement AmongNOAA, the Advisory Council onHistoric Preservation, and the State ofFlorida on Submerged CulturalResources (hereinafter SCR Agreement).

Pursuant to § 922.166(c), a NationalMarine Sanctuary Research/Recovery ofSanctuary Historical Resources Permitmay be issued for a person to conductany activity prohibited by §§ 922.163 or922.164 involving the research/recoveryof Sanctuary historical resources. Suchresearch/recovery of resources must bedetermined to be in the public interestas described in these regulations and theSCR agreement. Intrusive research and/or recovery may destroy the resourcesand therefore the consideration of suchpermits will be based upon a balancingof factors and criteria to determinewhether the goals of preservation,research, education, and public accessare better served by permitting this typeof activity as opposed to leaving thehistoric resources in place.

Pursuant to § 922.166(d) (1) and (2),National Marine Sanctuary Special-usepermits may be issued to conduct acommercial or concession-type activityprohibited by §§ 922.163 or 922.164.Such permits may be issued to establishconditions of access to and use of anySanctuary resource, or promote publicuse and understanding of any Sanctuaryresources. No permit may be issuedunless the proposed activity iscompatible with the purposes for whichthe Sanctuary was designated and canbe conducted in a manner that does notdestroy, cause the loss of, or injure andSanctuary resource; and for thedeaccession-transfer of SanctuaryHistorical Resources, unless the activitywill be conducted in accordance withall requirements of the SCR Agreement.

Section 922.166(d)(3) allows theDirector to assess and collect fees for theconduct of any activity authorized by aSpecial-use permit issued pursuant tothis section. No Special-use permit canbe effective until all assessed fees arepaid. This section also provides thecriteria for determining the appropriatecosts and fees.

Section 922.166(e) specifies theinformation which must be submittedwhen applying for a permit and theaddress for submissions and forsubmitting supplementary information.

Section 922.166(f) states that a permitmay be issued for a period notexceeding five years. Renewals mustfollow the same procedures as those forapplying for a new permit. All permits

will be reviewed annually to determinethe permittee’s compliance.

Section 922.166(g) states that theDirector may amend, suspend, or revokea permit for good cause. Further, theDirector may deny a permit if thepermittee or applicant has acted inviolation of a previous permit, or forother good cause. Procedures governingpermit sanctions and denials forenforcement reasons are set forth insubpart D of 15 CFR part 904.

Pursuant to § 922.166(h), theapplicant for or holder of a Sanctuarypermit may appeal the denialconditioning, amendment, suspensionor revocation of a permit pursuant to theprocedures set forth in § 922.50.

Pursuant to § 922.166(i), a permitissued other than a Special-use permitis nontransferable. Special-use permitsmay be transferred, sold, or assignedwith the written approval of the Directoras described in this section.

Section 922.166(j) requires thatpermits (or a copy thereof) issuedpursuant to these regulations must bemaintained in legible condition onboard all vessels or aircraft used in theconduct of the permitted activity.

Pursuant to § 922.166(k), any permitissued pursuant to this section is subjectto the following terms and conditions:all permitted activities will beconducted in a manner that does notdestroy, cause the loss of, or injurySanctuary resources or qualities, exceptas specifically authorized; the permitteeagrees to hold the United Statesharmless against any claims arising frompermitted activities; all necessaryFederal, State and local permits from allagencies with jurisdiction over theproposed activities shall be securedbefore commencing field operations.

Pursuant to § 922.166(l), in additionto § 922.166(k), the permits for research/recovery of historical resources requirethat a professional archaeologist be incharge of the research-recoveryplanning, field recovery operations, andresearch analysis; an agreement with aconservation laboratory shall be in placebefore field recovery operations begin;an approved nautical conservator shallbe in charge of conservation activities;and a curation agreement with amuseum or facility shall be in placebefore commencing field operationswhich addresses the curation, publicaccess, display and maintenance of therecovered historical resources.Deaccession/transfer of historicalresources require a Special-use permitpursuant to paragraph (d). Such Special-use permits must also be executed inaccordance with the requirements of theSCR Agreement.

In addition to the paragraphs above,§ 922.166(m) stipulates that any permitissued pursuant to this section is subjectto such other terms and conditions asthe Director deems necessary for thepurposes for which the Sanctuary isdesignated, including but not limited to:Any data or information obtained underthe permit shall be made available to thepublic; a NOAA official shall be allowedto observe any activity conducted underthe permit, the permittee shall submitone or more reports on the status,progress or results of activity authorizedunder the permit; the permittee shallsubmit an annual report; the permitteeshall purchase and maintain generalliability insurance or other acceptablesecurity against potential claims forloss.

Section 922.167 sets forth proceduresfor requesting certification ofpreexisting leases, licenses, permits,approvals, other authorizations or rightsto conduct a prohibited activity inexistence on the effective date of theseregulations authorizing the conduct ofan otherwise prohibited activity. Theholder of such authorization must notifythe Director within 90 days of theeffective date of these regulations of theexistence of such authorization andrequest certification of suchauthorization; the holder must complywith other provisions of this section andmust comply with any terms andconditions on the exercise of suchauthorization by the Director to achievethe purposes for which the Sanctuarywas designated. The permit holder maycontinue the authorized activity withoutbeing in violation of these regulationspending final agency action on his orher certification request. Requests forfindings or certifications must beaddressed to the FKNMS office inMarathon, Florida. The Director mayrequest additional information from thecertification requester as is deemednecessary to determine if the activity isconsistent with the purposes for whichthe Sanctuary was designated. Thissection also provides the appeal processfor any action conditioning, amending,suspending, or revoking certifications.Any amendment, renewal or extensionmade after the effective date of thisregulation is subject to the provisions of§ 922.168.

Section 922.49 addresses notificationand review of applications for leases,licenses, permits, approvals or otherauthorizations to conduct a prohibitedactivity in the FKNMS. A person mayconduct an activity prohibited by theseregulations if such activity is authorizedby any valid Federal, State or locallease, permit, license, approval, or otherauthority after the effective date of these


regulations provided that the applicantnotifies the Director in writing within15 days of filing the application or theeffective date of these regulations,whichever is later; the applicantcomplies with the other provisions ofthis section; the Director notifies theapplicant and authorizing agency thathe or she does not object to the issuanceof the authorization; and the applicantcomplies with any terms and conditionsthe Director deems reasonably necessaryto protect Sanctuary resources andqualities.

Pursuant to paragraph (b), anypotential applicant for an authorizationdescribed in this part may request theDirector to issue a finding as to whetherthe activity is prohibited by §§ 922.163or 922.164. Paragraph (c) provides thatapplications be mailed to the addressfound, in the case of the FKNMS, insubpart P. Paragraph (d) authorizes forthe Director to request additionalinformation as necessary for theapplicant to enable a determinationwhether to object to issuance of anauthorization described in paragraph (a)above. Paragraph (e) requires theDirector to notify the agency to whichthe application was made in writingwhether he or she has an objection toissuance and what terms and conditionshe or she deems necessary to protectSanctuary resources.

Paragraphs (f) and (g) provide theadministrative ability for the Director toamend the terms and conditionsnecessary to protect Sanctuary resourcesand qualities whenever additionalinformation becomes available andextend any time limit for good cause.Paragraph (h) specifies that an applicantmay appeal any objection by, or termsor conditions imposed by, the Directorto the Assistant Administrator ordesignee in accordance with theprovisions of § 922.50.

Section 922.50 sets forth the appealsprocess for administrative actionsrelated to the issuance for permitsexcept for enforcement actions.

Major Issues Addressed in Commentsand NOAA’s Responses

On March 30, 1995 NOAA publisheda proposed Designation Document andproposed implementing regulations andannounced the availability of the draftmanagement plan and environmentalimpact statement (DMP/EIS) (60 FR16399). Public hearings to receivecomments on the proposed regulations,and the DMP/EIS were held onNovember 1 in Miami; November 3 inKey Largo; November 6 in Marathon;November 7 in Key West; November 9in St. Petersburg; and November 14 inSilver Spring, MD.

The nine month public review periodending on December 31, 1995, resultedin NOAA receiving over 6,400statements of public comment on theDMP/EIS. In addition, the SanctuaryAdvisory Council (SAC) providedNOAA with its comments on the plan.All comments received on the DMP/EISwere recorded in a computerizeddatabase and assigned a uniquecomment identification number. Theserecords consist of the reviewer’s name;company, organization, or agency;address; a synopsis of the comment; andNOAA’s response. Details of this publicreview process are provided in thegeneral introduction to Volume I of thefinal management plan andenvironmental impact statement (FMP/EIS).

Comments were received about manyaspects of the management plan andEIS, however, a majority of thecomments focused on a limited numberof issues. Comments were received fromdiverse groups and individuals,including private businesses andorganizations, elected officials, the SACand representatives of Federal, State,and county agencies.

NOAA received a number of specificcomments on the DMP/EIS, includingrecommendations on strategies,activities, and priority levels. Somecomments were specific enough to citepage numbers and recommendedlanguage revisions. NOAA appreciatesthe level of public comment and hasrevised the document based on abalance of these comments in light ofthe requirements of the NMSA,FKNMSPA, NEPA, and other applicablelaws. Consistent with the requirementsof NEPA and the AdministrativeProcedure Act (APA), this sectiondiscusses the significant issues andsubstantive concerns that thecommentors have brought to NOAA’sattention.

All comments received by NOAA inresponse to the Federal Register noticesand public hearings were consideredand, where appropriate, wereincorporated. A summary of thesignificant comments on the proposedregulations and DMP/EIS and NOAA’sresponses is set forth below. Thecomments are also presented andresponded to in the administrativerecord.

The Need for the Florida Keys NationalMarine Sanctuary

Comment: There is no need for aSanctuary.

Response: NOAA disagrees. In 1990,Congress enacted the FKNMSPA inrecognition of the need to providecomprehensive protection and

management of the diverse marineenvironments of the Florida Keys. Theseenvironments possess important andunique living and non-living resources,including seagrass meadows, mangroveislands, and extensive living coral reefs.These habitats support rich biologicalcommunities, possessing extensiveconservation, recreational, commercial,ecological, historical, research,educational, and aesthetic values whichgive the area special nationalsignificance. Congress found theseenvironments to be the marineequivalent of tropical rain forests in thatthey support a rich level of biologicaldiversity, are fragile and easilysusceptible to damage from humanactivities, and possess high value tohuman beings if properly conserved. Tothis end, the Act expressly prohibits oildrilling within the Sanctuary andprevents tank vessels or ships greaterthan 50 meters in length from enteringthe Area to be Avoided within theSanctuary boundary.

Past resource management efforts inthe Florida Keys have only focused onsmall portions of the coral reefecosystem in a checkerboard fashion.These efforts have not taken a holisticapproach to protecting the marineenvironment of the Florida Keys and asa consequence, the coral reef resourceshave declined steadily over the past twodecades. Piecemeal management of themarine resources of the Florida Keys,especially the coral reefs, seagrasscommunities, hardbottom habitats, andmangrove fringed shorelines, combinedwith a continued decline in the qualityof the water that flows over thesehabitats, has resulted in a threat to thestability of the marine environment inthe Keys. Consequently, since theeconomy of the Florida Keys is soclosely linked to a healthy marineenvironment, the status quo approach tomanaging the marine resources of theKeys could result in an economiccollapse in the near future.

The Act directed NOAA to develop acomprehensive management plan andimplementing regulations for theSanctuary in consultation withappropriate Federal, State and localgovernments and with the SAC.Pursuant to this mandate, NOAAdeveloped a comprehensivemanagement plan and regulations toprotect and manage the living and non-living resources of the Sanctuary.Regulations were developed to protectSanctuary resources and minimizeconflicts among the various users ofthose resources. For example,establishing zones with specialrestrictions to protect habitat in thosezones and prohibiting potentially


harmful activities such as prop dredgingand prop scarring throughout theSanctuary are effective managementtools. Regulations supplement, but donot duplicate, existing managementauthorities with jurisdiction in theSanctuary.

The FKNMS will provide acomprehensive and coordinated regimeto protect, manage and conserve thenationally significant resources of theFlorida Keys so they may be enjoyed byboth present and future generations.

The Need for Management of theSanctuary

Comment: Many commentors assertedthat the Sanctuary will add anothercostly layer of bureaucracy, while otherscommented on the benefits ofintegration and the role the FKNMS hasplayed in interagency planning.

Response: The Sanctuary is not anextra layer of bureaucracy and there aremany ways in which the NationalMarine Sanctuary Program will improvemanagement of the Keys’ marineresources. National Marine Sanctuariesare designated to protect marineresources that are unique and possesshigh national significance. Boundariesof National Marine Sanctuaries onlyextend to the mean-high tide mark anddo not include land above that mark.The concept of a National MarineSanctuary as a ‘‘place’’ seems to beoverlooked by some of the public. TheSanctuary is not a thing or an ‘‘extralayer of bureaucracy’; and it is not acollection of agencies, environmentalgroups, or user groups, it is a veryspecial place, deserving of protection forthe use and enjoyment of present andfuture generations. The waters andmarine resources surrounding the Keysare unlike any other on earth and theyneed and deserve our immediateattention. We will lose our coral reefs ifthe declines we’ve witnessed over thepast two decades continue.

Congress, through the FKNMSPA,designated the Sanctuary, drew a linearound the Keys and declared to theworld that the marine resources of theKeys are special and unique. The Actalso delegated to NOAA, an agency withexperience in managing marineprotected areas where the economy ishighly dependent on healthy marineresources, the responsibility to managethe Sanctuary and make the Sanctuarypart of a national programinternationally known for its ability tomanage marine resources for multipleuses, both recreational and commercial;a program that emphasizes aneducational approach to management.The FKNMSPA also places an importantsafeguard on the agency: ‘‘Nothing in

this Act is intended to restrict activitiesthat do not cause an adverse effect to theresources or property of the Sanctuaryor that do not pose harm to users of theSanctuary.’’

The National Marine SanctuaryProgram is not new to the Florida Keys.The program has had a very successful20 year history in the Keys, protectingsome of the most popular coral reef divesites in the world. The Key LargoNational Marine Sanctuary, designatedin 1975, protects all the coral reefs alonga 20 mile stretch in the upper Keys. Therelationship of the Sanctuary with thebusiness community has been excellent.The Key Largo Chamber of Commercecontinues to be a tremendous supporterof the Sanctuary where divers, diveoperators, recreational and charterfishermen, and commercial fishermencontinue to work and play.

Looe Key National Marine Sanctuarywas designated in 1981, following alengthy designation process where localbusinesses, divers, and commercialfishermen in the vicinity of Big PineKey reacted in opposition. Rumors,misinformation, and a basicmisunderstanding of what a ‘‘NationalMarine Sanctuary’’ actually is, were thefuels that fired lengthy debates. Shortlyafter Looe Key became operational andmanagement measures wereimplemented, many of the fears such ascommercial fishermen being ‘‘put out ofbusiness’’ disappeared. A good workingrelationship was established with theregular users of the Looe Key Sanctuaryand businesses dependent on a healthycoral reef continued to flourish. As aresult of good management, in 1985, atravel writer for the Miami Heralddeclared Looe Key as one of the top tendive destinations in the world.

During the past 15 years the Looe Keyand Key Largo National MarineSanctuaries have been used as modelsfor managing marine protected areas,both domestically and internationally.This reputation was well known to theauthors of the FKNMSPA that waspassed to designate the Sanctuary.

The National Marine SanctuaryProgram protects and managesSanctuary resources for their continueduse by present and future generations. Agoal of National Marine Sanctuaries is tofacilitate compatible use of marineresources by businesses that areeconomically dependent upon them, tothe extent those uses are compatiblewith the primary objective of resourceprotection. This is the first step towardsustainability of this marine area forpresent and future generations.

The Key Largo and Looe Key NationalMarine Sanctuaries make up about 23linear miles of the 220 mile long coral

reef tract along the Florida Keys. Thedesignation of the FKNMS providesresource protection to the remaining 197miles of coral reef and marineecosystem that were not previouslyprotected. This is not an extra layer ofbureaucracy because prior to theSanctuary’s designation littlecomprehensive resource protectionmanagement existed.

National Marine Sanctuaries areknown for their integratedcomprehensive management throughestablishing partnerships. In Florida, theSanctuary Program started ‘‘reinventinggovernment’’ in 1980, by establishing acooperative agreement with the State ofFlorida, Department of NaturalResources, for the management of theKey Largo National Marine Sanctuaryand later, the Looe Key National MarineSanctuary. These were areas locatedentirely in Federal waters, but managedby State staff, through 100 percentFederal (NOAA) funding. Today, morethan half of the Sanctuary staff are Stateemployees paid entirely by Federalfunds, including the education staff,Sanctuary officers, and the lowerFlorida Keys’ administration.

The concept of interagencypartnerships has been expanded in themanagement plan for the FKNMS.Dozens of representatives from local,State, and Federal agencies came to thetable to assist in the development of themost comprehensive management planever attempted in a marine protectedarea. They also assisted in thedevelopment of the National MarineSanctuary Program’s first water qualityprotection plan. As a special place, theKeys are deserving of the best kind ofmanagement that could be afforded.

There are many agencies involved invarious management activities in theKeys. However, these activities have notbeen integrated in the past, andconsequently there has not been aholistic approach to managing thefragile marine resources of the Keys.The potential benefits of integratedmanagement of marine resources arenumerous including better protection ofthe marine resources, savings to taxpayers by agencies sharing resources,less duplication of efforts, opportunitiesfor increased interagency coordination,and the list goes on.

The regulations do not usurp theauthority or jurisdiction within theSanctuary boundary of other agencies toimpose regulations more protective ofSanctuary resources than the Sanctuaryregulations. The State will continue tohave that authority in State waters andother Federal laws, such as theMagnuson-Stevens FisheriesConservation and Management Act, will


continue to apply. However, otheragencies cannot authorize a violation ofSanctuary regulations, just as theSanctuary cannot authorize a violationof State or Federal agency regulations.

The FKNMSPA prohibits oil, gas andmineral development within theSanctuary and prohibits tank vessels orships greater than 50 meters in lengthfrom entering the Area to be Avoidedwithin the Sanctuary boundary. Noother management program providesthis level of comprehensive protectionto the marine resources (e.g., seagrasses,hard bottoms, and coral reefs) of theFlorida Keys, or provides the legislativemandate and authority to holisticallymanage and protect all of the marinecommunities as an ecosystem. This is acharge given specifically to NOAA andis not redundant of other managementprograms, nor is it an extra layer ofbureaucracy.

Furthermore, NOAA has developedregulations that complement, ratherthan duplicate, existing authorities. Insome cases, NOAA regulationssupplement and fill gaps in existingauthorities. To this end, NOAA hasintegrated its planning efforts with theFederal, State, and local agencies in theFlorida Keys. This will improvemanagement coordination between theagencies and will lessen the amount ofagency overlap in key managementareas such as education, research,enforcement, damage assessment, andemergency response. Through integratedplanning and implementation, theFKNMS will, at a minimum, streamlinethe use of public funds and programs toachieve resource protection. This willimprove coordination between thevarious agencies responsible formanagement of the marine environmentin the Sanctuary. Increased agencycoordination will benefit Sanctuaryresources and the public’s use of thoseresources.

Coordination of Fisheries ManagementComment: The fisheries protocol

should not be implemented because itwill add another layer of regulations.

Response: NOAA disagrees. Theexisting fisheries managementauthorities will continue to managefisheries under State law, the MagnusonAct, and other Federal law. However,there are three separate sets of fisheriesregulations within the boundary of theSanctuary and coordination of thefishing regulations within the Sanctuarywas identified as a goal early in thescoping process. Under the currentsystem, there is confusion in the fishingcommunity which leads to lesscompliance by the public as they maynot understand which regulations apply

to a specific geographical area. Uniformregulations would make it easier for thefisherman to comply with the rules andfor the agencies to enforce them. Thismanagement action will have a positiveresult on fisheries management by Stateand Federal agencies. The net result willbe beneficial to Sanctuary resources andto the public. Under the protocol, theexisting authorities may accomplish thisgoal under Sanctuary regulations ortheir own respective authorities. Theexisting fishery management authoritiesand NOAA may agree to developuniform fishing regulations, but theycan only be implemented as Sanctuaryregulations if there is consensus. Theestablishment of a consistent set offishing regulations for the Sanctuarywill not result in a fourth set ofregulations.

FundingComment: There were a variety of

comments on the topic of funding of theFKNMS. Some commentors suggestedthe Sanctuary should be given thenecessary funding to implement themanagement plan and its goals. Othercommentors stated NOAA will neverhave adequate funding to implement allof the programs outlined in themanagement plan, implying that NOAAcould never comprehensively managethe entire Sanctuary. Others suggestedthat the funding for the Sanctuary betotally directed at solving water qualityissues before implementing any othermanagement programs. Suggestionswere made that Florida TouristDevelopment Council (TDC) ‘‘bed tax’’funds be used for managing Sanctuaryactivities.

Response: Clearly, implementation ofall the programs contained in themanagement plan would require morefunding than the Sanctuary cananticipate presently, or in the nearfuture. However, the management planis comprehensive and includessuggested actions for the near and longterms. The plan offers a wide variety ofmanagement options to address variousand diverse management problems inorder to give Sanctuary managers theability to select the most cost effectivemanagement tools to address immediateand future problems. It is not NOAA’sintent to request funding for immediateimplementation of all the managementprograms outlined in the managementplan, but rather use it as a guide forimmediate and future plans of action,including the effective use of humanand financial resources.

Additionally, the human andfinancial resource costs forimplementing the action plansestablished to focus Sanctuary

management efforts will be sharedamong the participating Federal, State,and local agencies responsible forvarious activities. For example, MonroeCounty receives Boating ImprovementFund allocations that are designed toenhance boating and have specificallybeen applied to channel/reef markingneeds in the Sanctuary. Further,Sanctuary volunteers perform tasks thatbenefit the goals at a substantial savingsto the program. Finally, in addition toannual appropriations, the Sanctuaryhas the statutory authority to receivedonations to support programs. Thesefunds could be received fromfoundations, non-profit organizations,the Sanctuary Friends organization andothers.

NOAA disagrees that all fundingshould only be used to address waterquality or any other single issue withinthe Sanctuary. Congress, through theFKNMSPA, directed the Secretary ofCommerce to develop a comprehensiveplan to manage the Sanctuary and gavespecific directions as to what should beconsidered in the development of theplan. Many of the impacts affecting thehealth of the coral reef community arisefrom direct, physical injuries that can belessened with the implementation of thecomprehensive management plan.Additionally, the FKNMSPA requiresthat EPA, along with the State andNOAA, address Sanctuary water qualityissues. Many of these managementactions will take years to implement andtheir positive results will not be realizedfor some years into the future. Byimplementing the comprehensivemanagement plan, the FKNMS will beable to address some of the immediatethreats confronting the coral reefcommunity as a result of direct humanactivity.

The State of Florida determines theuse of Florida TDC funding (bed tax) formanagement activities.

User Fees

Comment: Some reviewers raisedconcern regarding the concept of userfees to fund various programs within theSanctuary. While some commentorswere supportive of the concept, themajority of commentors were againstfunding Sanctuary management throughuser fees. A small number of reviewersraised concern that the concept was stillcontained in the draft plan following ahighly publicized workshop on user feesto fund the management of NationalMarine Sanctuaries where NOAApublicly announced it was not pursuingobtaining the general legislativeauthority to charge ‘‘user fees’’ tomanage Sanctuaries.


Response: NOAA acknowledges thatthe concept of charging user fees to fundSanctuary management is not popular,particularly among user groups. Thestrategy (B.8) for charging user fees tofund the management of the FKNMS hasbeen dropped from the action plans inthe FMP/EIS. There are no regulationsauthorizing the collection of user feesfor general access to, or use of, theSanctuary.

The process used to develop the draftmanagement plan allowed allsuggestions to be considered for thedraft plan. The concept of user fees wassuggested by some during the planningprocess and remained in the draft planfollowing the ‘‘user fee workshop’’because of the process used to developthe draft plan. Considering that somewere in favor of ‘‘user fees,’’ NOAA feltit was necessary to get public commenton the concept in the draft plan.

Many innovative sources ofalternative funding have been identifiedby the public in the workshop andotherwise. NOAA will work with theSAC to explore some of these options.

Ecosystem-Based ApproachComment: There were conflicting

comments on what NOAA’s role shouldbe in managing Sanctuary resources.Some recognized that NOAA has donea good job of managing the coral reefswithin the Key Largo and Looe KeyNational Marine Sanctuaries andsuggested that NOAA should focus itsmanagement on the coral reef tract.Some of these same reviewers pointedout that the primary cause of waterquality decline in the Florida Keys wasoriginating from water management andwater quality problems in mainlandSouth Florida and the resultant declinein water quality in Florida Bay. In someinstances, the Federal Government wasblamed for the cause of water qualitydecline in south Florida. Somereviewers stated NOAA could not haveany influence on the water qualityproblems that were originating outsidethe boundary of the Sanctuary.

Other reviewers pointed to thedecline of water quality in the near-shore waters of the Florida Keys as aresult of improper waste watertreatment facilities and poormanagement of storm water runoff andthat NOAA should focus itsmanagement on these water qualityproblems.

Other reviewers recognized theimportance of NOAA’s role inecosystem management and thesignificance of the authority that theFKNMS has to address water qualityissues that originate both within itsboundary, as well as those problems

that originate outside and upstream ofthe Sanctuary. These reviewers weresupportive of NOAA’s active role in theSouth Florida Ecosystem RestorationTask Force and the Governor’sCommission for a Sustainable SouthFlorida.

Response: In light of its experience ofthe resource protection accomplished atKey Largo and Looe Key NationalMarine Sanctuaries, its role inecosystem management in SouthFlorida, and directions under the NMSAand the FKNMSPA, NOAA willcontinue to take an ecosystem basedmanagement approach in thisSanctuary.

The FKNMSPA directed the FederalGovernment and the State of Florida todevelop a comprehensive program toreduce pollution in the waters offshorethe Florida Keys to protect and restorethe water quality, coral reefs, and otherliving marine resources of the FloridaKeys environment. The FKNMSPA andNMSA direct NOAA’s development of acomprehensive ecosystem managementplan rather than one based solely on thecoral reef tract. In order to be successful,Sanctuary managers must be able toaddress impacts that occur across therange of habitats that comprise the coralreef community in an ecosystem-basedmanagement approach. This isespecially important in addressingissues that influence the quality of thewater that affects the marinecommunities of the Sanctuary. Between1982 and 1989, NOAA sponsoredresearch projects that helpedcharacterize the movement of water inand around the two existingSanctuaries. The studies concluded thata portion of the water that influencesthe coral reef flows from Florida Bayand the Keys, before it mixes with waterfrom the Florida Current in the vicinityof the reef tract. Scientists agree that thesources of the decline in water qualitythat influence the health of the coralreef resources originate upstream of thereef tract, in the direction of the Keysand Florida Bay. No matter howintensely NOAA manages activities onthe coral reef, the health of the coralswill continue to decline until thesources of the water quality declineupstream are addressed in acomprehensive manner.

The designation of the FKNMS gaveNOAA a role in the development andthe implementation of a water qualityprotection program with EPA and theState. Sanctuary legislation directedEPA, the State and NOAA to lookbeyond the boundary of the Sanctuarytoward the problems occurringupstream. The designation also gaveNOAA the ability to manage in a

holistic manner, all of the marinecommunities that are important tomaintaining the biodiversity of theSanctuary. This was the first steptoward ecosystem management, theability to manage all the marinecommunities of the coral reefcomponent of the south Floridaecosystem.

NOAA disagrees with comments thatit cannot influence, or does not have arole in addressing, the water qualityproblems originating outside theboundary of the Sanctuary, in FloridaBay, and mainland South Florida. Thedesignation of the FKNMS has givenNOAA a prominent role in the SouthFlorida Ecosystem Restoration TaskForce whose objectives include therestoration of clean water flows intoFlorida Bay. NOAA is currently fundingapproximately 40 percent of theresearch projects in Florida Bay and theSouth Florida ecosystem restorationeffort. These efforts will result in apositive influence on water qualitybefore it enters the Sanctuary. NOAAleadership has recognized theimportance of supporting the efforts ofthe South Florida Ecosystem RestorationTask Force in order to be successful inthe management of the Sanctuary.

The most prominent role for theFlorida Keys in the south Floridaecosystem restoration effort has beenthrough the representation of theSanctuary on the Task Force and theroles of EPA and the State in the WaterQuality Protection Program as it isrepresented on the Task Force. Withoutthe efforts of these agencies on behalf ofthe FKNMS, the Florida Keys coral reefcommunities would not be representedon the South Florida EcosystemRestoration Task Force. Thus, theSanctuary clearly has a role ininfluencing the impacts of water qualityoriginating outside its boundary.

Concerns over the demise of FloridaBay have been the topic of debate for atleast a decade prior to the designationof the FKNMS. At the first SAC meetingin February 1992, members of the SACfamiliar with problems in Florida Bayraised the issue of water quality declinein that area. Commercial fishermen andflats guides shared their observations ofdecline in Florida Bay water quality. Inaddition, the Water Quality ProtectionProgram for the Sanctuary recognizedthat some of the sources of the waterquality problems affecting the coral reefwere originating upstream of the FloridaKeys and Florida Bay. In just over ayear, all of the agencies responsible formanaging components of the SouthFlorida region had signed aninteragency agreement directed atrestoring the South Florida ecosystem.


The agencies had agreed that theecosystem begins in the KissimmeeRiver basin and includes LakeOkeechobee, the Everglades AgriculturalArea, the Everglades, Florida Bay,through the Keys, and all the way to thecoral reef tract. This was the first timethe scope and dimension of theecosystem had been defined at thisscale. It is with this vision thatecosystem management must beimplemented in the Sanctuary. Theproper water quality and hydrologicaland ecological linkages throughout theecosystem must be re-established inorder to reverse declines on the coralreef. Each of the agencies responsible formanagement of components of theecosystem must work to improve thequality of water in their segment of theecosystem, while working with othermembers of the restoration task force toimprove the entire ecosystem functions.

Accountability and Power of NOAAComment: Some commentors were

concerned about the powers of NOAAin general, and some were particularlyconcerned about the powers of theDirector because decisions affecting usergroups would be made by authorities inWashington headquarters, as opposed tolocally. Some commentors indicatedthat NOAA should be held accountablefor its management actions.

Response: NOAA notes that undervarious laws and the management planitself, the powers of other Federal andState authorities remains intact.Moreover, there are a number of checksand balances whereby NOAA is heldaccountable for their managementactions. The Congress holds NOAAaccountable through its review ofindividual Sanctuary management plansand periodic reviews of the NationalMarine Sanctuary Program. There arealso numerous Federal statutes whichensure the accountability of Federalprograms, including the AdministrativeProcedure Act. For example, with theexception of emergency regulations, allsubstantive changes to Sanctuaryregulations will require prior notice andopportunity for public comment beforethey become effective. In this Sanctuary,the State of Florida, as a managementpartner, will continue to be a check onNOAA’s authority, including theapplication of Sanctuary regulations inState waters. The EPA and the State ofFlorida will continue to have the lead inaddressing the Water Quality issues thataffect the Sanctuary.

To user groups, perhaps the mostimportant check on NOAA’saccountability may be SAC. The SAC iscomprised of members representing thevarious Sanctuary user groups

(commercial fishermen, charter boatoperators, tourism industry, scientificand educational organizations, andconservation groups, etc.). Consistentwith the FKNMSPA, the SAC providesNOAA with advice andrecommendations on the managementplan and its implementation, includingresource protection, research,monitoring, education, outreach andother general policy issues related toSanctuary management. The SAC is alsoa forum to enhance communication andcooperation between the public, usergroups, the Federal/State and localagencies, and non-governmental entitiesin furtherance of coordinated, efficientand effective management of theSanctuary. SAC meetings are open tothe public and interested persons aregiven the opportunity to present oral orwritten statements to the Council.

Under the NMSA and the FKNMSPA,the Secretary of Commerce is directed todevelop a Sanctuary management planand implement it. Under DepartmentalOrders, this authority has beendelegated to the Director of NOAA’sOffice of Ocean and Coastal ResourceManagement. The regulations weredrafted accordingly. While the Directorhas in turn delegated most of the day today Sanctuary management decisions tolocal Sanctuary managers withappropriate reservations, the regulationswere not changed and will continue toreflect the Departmental Orders. TheDirector’s responsibilities for theFKNMS are commensurate with othersanctuaries.

Designation Document/Appendix KComment: Many reviewers expressed

concern over the Scope of Regulationscontained in the draft DesignationDocument for the FKNMS (Volume III,Appendix K). The concerns wereprimarily that the Scope of Regulationswas too broad. For example, they weresurprised to see that the Scope includedairplane flights, dock construction, anda broad range of other activities thatseemed outside the authority of theSanctuary. Many feared that NOAAcould easily regulate activities withinthe Scope of Regulations in the futurewith little or no public input. Somequestioned the need for a designationdocument as the Sanctuary wasdesignated by statute. Many, includingthe SAC, urged NOAA to eliminate theScope of Regulations. However, somereviewers expressed support of thebroad Scope of Regulations and urgedNOAA to retain what was presented inthe draft plan.

Response: The Designation Documentis a charter or constitution for theSanctuary. The Scope of Regulations,

which is part of the DesignationDocument, sets forth the types ofactivities which may be subject to futureregulation. Consistent with therecommendations of the SAC and othercommentors, NOAA has reduced theScope of Regulations to more closelytrack the final regulations byeliminating certain activities.

NOAA cannot issue regulations foractivities listed in the Scope ofRegulations unless NOAA complieswith the provisions of theAdministrative Procedure Act. Theseprocedures require that the public begiven notice and the opportunity forcomment. The courts are a check againstdecisions that are arbitrary andcapricious, the State must approveregulations that apply to State waters,and Congress maintains continualoversight.

Degradation of EnvironmentalResources

Comment: NOAA received manycomments providing anecdotalinformation concerning the state of theFlorida Keys’ marine environment.These comments were personalobservations of significant changes inreef species assemblage, visibility of thewater, and number of fish. Commentswere also received to the effect that eventhough all people have a right to use theresources of the Keys, people do not usethe resources equally and thereforesome regulation of behavior isnecessary.

Response: The Sanctuary wasdesignated in recognition of theobserved declines in the health of thenatural marine resources of the Keys.The primary objective of themanagement plan is protection ofnatural resources while facilitatingprivate and public use that does notcompromise this objective. Thus,Sanctuary management will addresssuch issues as water quality and habitatprotection through various strategiesand techniques ecosystem-wide in aneffort to preserve or restore theresources to a more natural state.

Support for Sanctuary andManagement Plan

Comment: NOAA received manycomments of support for the Sanctuary,the management plan, and NOAA’shistory of protecting national marinesanctuary resources.

Response: NOAA thanks all whocommented on the Sanctuary, the draftmanagement plan, and proposedregulations regardless of whether insupport or in opposition. NOAA hashad a long history of facilitating allcompatible public and private uses of its


National Marine Sanctuaries, includingthose off Florida. The Sanctuary willcontinue to encourage publicinvolvement, interagency cooperation,and continuous management actions toachieve resource protection.

Limit the Sanctuary Boundary to theReef Tract

Comment: Some reviewers recognizedthat NOAA has done a good job ofmanaging the coral reefs within the KeyLargo and Looe Key National MarineSanctuaries but suggested that NOAAshould only focus its management onthe coral reef tract.

Response: The FKNMSPA directedthe Federal Government and the State ofFlorida to jointly develop andimplement a comprehensive program toreduce pollution in the waters offshorethe Florida Keys to protect and restorewater quality, coral reefs, and otherliving marine resources of the FloridaKeys’ environment. The Act set forth theboundary as well as the scale ofprotection necessary to effectivelymanage natural and cultural resourcesin a holistic manner. Thus, NOAAstrongly disagrees that it should justfocus its management on the coral reeftract. In order to be successful,Sanctuary managers must be able toaddress impacts that occur across therange of habitats that comprise the coralreef community in an ecosystem-basedmanagement approach.

Allowed ActivitiesComment: NOAA received comments

requesting that the management planinclude a list of allowed activities, notonly prohibitions. The SAC discussed abill of rights and ultimatelyrecommended that there be a list ofactivities that would be allowed in theSanctuary.

Response: In response to thesecomments, NOAA has modified theregulations at § 922.42 to state that ‘‘allactivities (e.g., fishing, boating, diving,research, education) may be conductedunless prohibited or otherwiseregulated. * * *.’’ The change is notintended to provide a legal defense foractions against those who violateSanctuary regulations, but rather toclarify that such activities are allowed tobe conducted in the Sanctuary atpresent and will be allowed in thefuture, subject to appropriate regulation.There are also specific exemptions tocertain prohibited activities to avoid orminimize application to fishermen andother small entities.

Property Rights and Land-UseComment: Many comments were

received questioning what authority the

Sanctuary will have over land use andproperty rights.

Response: The regulations werespecifically modified to exempt MonroeCounty land use permits. However, ingeneral there have been no conflictsover property rights because Sanctuaryregulations are directed at activities inthe marine environment. They mayapply to activities that directly threatenor impact marine resources within theSanctuary, which are those lying belowmean-high tide. Sanctuary regulationsdo not take away rights of propertyowners or affect activities that do notadversely affect Sanctuary resources.

Special-Use Permits

Comment: Some commented that thesection on Special-use Permits needs tobe more specific.

Response: This regulatory sectionreflects the provisions of section 310 ofthe NMSA regarding Special-usePermits. The National Marine SanctuaryProgram has had the authority to issueSpecial-use Permits since 1988, but hasonly issued few such permits to date.While the NMSA and its legislativehistory indicates that section 310 is self-implementing and does not requireimplementing regulations, NOAA hasconsidered the comments anddetermined that additional informationand public input would be appropriatebefore the development of moreregulations with more specificity than ispresently in section 310. To the extentmore specificity is needed, it should bedone in guidelines for the NationalMarine Sanctuary Program rather thanfor this particular Sanctuary. In theinterim, the Program will continue towork with individual applicants and thepublic on Special-use Permits.

Coordination With Other Agencies/Conflict Resolution

Comment: Some commentorsexpressed the need for coordinationbetween agencies and a mechanism toresolve conflicts between agencies andthe public. Others suggested amechanism be established that providesan administrative appeals processconsistent with the AdministrativeProcedure Act.

Response: NOAA is establishing anInteragency Group to assist incoordinating the implementation of thefinal management plan for the FKNMS.Additionally, Appendix J contains a Co-trustees Agreement that is accompaniedby a series of draft protocols andmemoranda of agreements that willserve to outline the way the agencieswill conduct the management of theSanctuary.

The administrative appeal process forSanctuary management decisions is setforth at § 922.50. Agency decisions,including any amendments to Sanctuaryregulations, must be done in accordancewith the procedures and requirementsof the Administrative Procedure Act.

Monroe County and/or the State ShouldManage the Sanctuary

Comment: Some commentorssuggested that the State of Florida orMonroe County be charged withdeveloping a management plan andmanaging the resources of the FloridaKeys.

Response: Under the FKNMSPA andthe NMSA, NOAA is required todevelop and implement a Sanctuarymanagement plan. However, theSanctuary planning process hasincluded the State and county aspartners in the development of thecomprehensive management plan. Thecontinuous management process, asdescribed in Volume I of the FMP/EIS,includes Federal, State and countyagency managers in the continuousmanagement of the Sanctuary. This willhelp NOAA assure the integration ofmanagement programs between thevarious agencies in a comprehensivemanner.

Socio-Economic ImpactsComment: Some reviewers

commented that NOAA did not providea thorough socio-economic analysis ofits actions on commercial orrecreational fishing. NOAA alsoreceived comments that the Sanctuarywill negatively impact the economy ofthe Keys, as well as comments that theSanctuary is the only hope to sustainthe Keys’ tourist economy which isheavily dependent on the presence of ahealthy marine environment.

Response: NOAA prepared a socio-economic assessment for the DraftManagement Plan and EnvironmentalImpact Statement in compliance withthe NMSA and National EnvironmentalPolicy Act (NEPA). In response tocomments, NOAA has provided a moredetailed explanation of the carefulbalancing of environmental and socio-economic impacts in developing thePreferred Alternative/Management Plansection of the Volume I. A morethorough assessment of the socio-economic impacts on various usergroups from management alternatives isfound in Volume III, Appendix M.

In an effort to maximize resourceprotection and minimize adverseimpacts on users, NOAA consideredsocio-economic impacts in developingthe draft management plan. Based onthe public comments and reports


supplied by the fishing industry, NOAAhas further detailed this analysis in thefinal environmental impact statementand modified the final managementplan accordingly.

Personal WatercraftComment: NOAA received many

comments from the public remindingNOAA that personal watercraft ownersand users act responsibly and requestingthat personal watercraft not be singledout and treated differently from othervessels. NOAA also received commentsnoting frequent environmental nuisanceand safety issues associated with theoperation of personal watercraft. Theseincluded: reckless operating behavior,harassment of endangered and otherspecies, harassment of other boaters(including disruption of fishing onflats), and noisy operation in canals oradjacent to residential shorelines. Thesecommentors requested limiting,restricting or banning the use ofpersonal watercraft within theSanctuary.

The SAC recommended that NOAAwork with the industry, the SAC, andthe public to establish zones for thevoluntary use of personal watercraft inspecified areas within one year afterissuance of the final management plan.The SAC also recommended that ifthese zones were not voluntarilyestablished within one year, then NOAAshould ban the use of personalwatercraft throughout the Sanctuary. Inaddition, the SAC recommended addingto the regulations a prohibition againstreckless operation of vessels. The SACalso recommended that the proposedvessel operation regulation (proposed§ 929.5(a)(5)(iv)) be modified to restrictvessels from operating at speeds greaterthan idle speed only/no-wake indesignated idle speed only/no-wakezones, and modify the minimumdistance requirements in the regulation.

The personal watercraft industrycommented that there was no basis toimpose severe regulatory restrictions onthe use of personal watercraft, butgenerally supported the strategy ofrestricting all motorized vessel use incertain buffer zones and establishingidle speed only/no wake areas. Theindustry also strongly endorsed thestrategy of working with NOAA toeducate recreational personal watercraftusers in the Sanctuary, and developindustry standards for rental operationsin the Sanctuary.

The State of Florida questionedwhether distance restrictions delineatedin the buffer zones could be adequatelyenforced.

Response: NOAA has developed amulti-pronged approach to address the

public’s concern about the use ofpersonal watercraft. NOAA has acceptedthe SAC’s recommendation to add anew section to the final regulations(§ 922.163(a)(v)) which prohibitsreckless operation of all watercraft.Additionally, proposed § 922.163(a)(5)(iii) has been modified to prohibitoperating a vessel at greater than idlespeed only/no wake (except in markedchannels) in designated areas within100 yards from residential shorelines,stationary vessels and navigational aidsmarking emerging or shallow reefs.NOAA has also incorporated into itsregulations the authority to enforce allidle-speed only/no wake areasthroughout the Sanctuary. NOAA willuse the existing county and Stateprocess for designating these areas.NOAA accepts that the industry isseriously committed to self regulationand will develop successful educationalefforts geared toward changing userbehavior. The final component ofNOAA’s approach is a modification ofthe SAC’s recommendation. NOAA willbegin establishing broad zones withrestrictions on the use of personalwatercraft (consistent with the SACrecommendation) in one year only ifthese initial efforts are not successful atsignificantly reducing or eliminating thenuisance and safety problems, as well asthe threats to the natural resources.

Channel/Reef Marking Action Plan

Boater Education

Comment: Channel/reef marking mustbe supplemented with boater educationin order to limit impacts on shallowwater marine resources. The channel/reef marking action plan does notcontain strategies that addresseducation.

Response: NOAA agrees that boatereducation is a critical component forprotection of shallow water resources ofthe Sanctuary. The education andoutreach strategies directed at boatingimpacts are contained in othermanagement action plans.

Marking Shallow Water Habitats andVessel Routes

Comment: The action plan does notaddress marking coral reefs and othershallow water habitats outside ofchannels, to warn boaters of sensitiveareas. The action plan should be revisedto include navigational aides that warnboaters and should be renamed‘‘Navigational Marking Action Plan’’ orthe ‘‘Channel/Reef Marking ActionPlan’’.

Response: NOAA agrees thatproviding navigational aides that warnboaters of sensitive, shallow water

habitats is a necessary component ofresource protection. NOAA will workclosely with the USCG, the State, andthe county to provide appropriateinternationally recognized navigationalaides to mark sensitive, shallow waterhabitats such as coral reefs. NOAA alsorecognizes that providing a logical andclearly marked system of channels inhigh traffic areas is the preferredmethod of routing vessel activity awayfrom sensitive habitats. In addition,strategic placement of navigational aidesused to warn boaters is necessary inmany areas and will be pursued. NOAAhas revised the action plan and hasrenamed the plan as the ‘‘Channel/ReefMarking Action Plan.’’

Channel Marking Criteria

Comment: The criteria fordetermining the priorities for markingchannels as well as the locations of highpriority channels should be included inthe plan. The SAC recommended draftchannel marking criteria and a list ofhigh priority channels to be marked.

Response: The criteria for channelmarking prioritization as recommendedby the SAC has been included in thefinal action plan. However, including alist of high priority channelsrecommended by the SAC is premature.Instead, the action plan establishes aprocess for identifying and prioritizingchannels to be marked.

The list of proposed channelsrecommended by the SAC has not beensubject to review and prioritization bythose criteria. All areas to be markedshould be reviewed through the processset forth in the action plan. Thus, thelist of priority channels has not beenincluded in the final action plan, but thecriteria and process have been included.

NOAA’s Role

Comment: The draft action plan doesnot clearly define NOAA’s role in thechannel/reef marking program.

Response: The final plan (StrategyB.4, Activity 8, Implementation) moreclearly defines NOAA’s role in thiseffort.

Effectiveness Assessment

Comment: Expand the activityassociated with the assessment ofchannel marking effectiveness toinclude on-site monitoring and research,in addition to aerial photography.

Response: NOAA agrees and the finalaction plan (Strategy B.4, Activity 6)reflects this comment. Further, StrategyB.4, Activity 8 has been expanded toaddress removal of markers that arefound to have a detrimental effect.


Update StatusComment: Many of the activities

originally described in the action planhave already been completed or theirstatus needs to be updated.

Response: NOAA agrees. The finalaction plan reflects the current status ofactivities.

Four Point ProgramComment: Some reviewers support

the Boating Impact Working Group’s(BIWG) ‘‘Four Point Program.’’ The finalmanagement plan needs to be expandedto include establishment of no accessand restricted access areas, asrecommended by the BIWG.

Response: NOAA agrees that theestablishment of no access andrestricted access areas is an effectivemethod to reduce shallow waterimpacts. The plan recognizes this andadopts a series of restricted access areasassociated with the WildlifeManagement Areas (see RegulatoryAction Plan, Appendix III to SubpartP—Wildlife Management Areas, and theZoning Action Plan maps). Most ofthese areas are part of or are adjacent toDOI National Wildlife Refuges, howeverseven non-associated areas were added.These are the only areas that NOAAreceived specific input on during theplanning process. NOAA will monitorthe effectiveness of designating theseareas as Wildlife Management Areas andimposing access restrictions and willconsider adding other areas in futurerevisions of the plan.

Removal of Problematic Aides toNavigation

Comment: There is no mechanism inthe plan to remove channel markers thatprove to be problematic because theyincrease vessel impacts to shallow waterareas.

Response: Strategy B.4, Activity 6provides a mechanism to evaluate theeffectiveness of channel markers for theprotection of marine resources. StrategyB.4, Activity 8 has been expanded toaddress removal of markers that arefound to have a detrimental effect onmarine resources.

Channel/Reef Marking Is ExpensiveComment: The proposed channel/reef

marking program is too costly at a timewhen the government is trying toeconomize.

Response: The primary fundingsource identified in the plan forchannel/reef marking is the BoatingImprovement Fund (BIF) and thecurrent aides to navigation programadministered by the U.S. Coast Guard.The BIF is an existing funding sourcethat is administered by Monroe County.

The money is derived from a portion ofState vessel registration fees which arereturned to the county where they weregenerated. This money must be used forprojects designed to enhance boating,and is specifically targeted at channel/reef marking, launching facilities andsimilar projects. Currently, MonroeCounty receives approximately$125,000 annually from this source.Therefore, this money is available forchannel/reef marking already, and themanagement plan is designed to providea coordinated effort at prioritizingexpenditures. Additionally, the U.S.Coast Guard continues to fund theinstallation and maintenance of many ofthe aides to navigation used in theSanctuary. These funds do not comedirectly from NOAA.

Stay in the Channels Only

Comment: There are fears that oncethe channels are marked, boaters will beprohibited from going outside of thechannels. Further, in the interim,boaters-especially fishermen-should notbe penalized for prop dredging until themarkers are installed.

Response: The regulations do notprohibit vessels from navigating outsidemarked channels regardless of depth.What the regulations do prohibit is thedestruction of seagrass and othershallow marine resources as a result ofimprudent operation of vessels.

Deep Water Access

Comment: Several reviewersrequested that a definition of deep wateraccess be added to the regulations andquestioned how the Sanctuary willaddress areas that are accessible only atcertain tides.

Response: The channel/reef markingaction plan assumes a 4 ft mean lowwater as a threshold criteria for deepwater access. This is consistent withcurrent State and local regulation andcriteria. Channel/reef marking will notbe a substitute for local knowledge ornormal prudent navigation skills.

Arrows on Channel/Reef Markers

Comment: Navigational aids shouldbe clearly understandable to guideboaters through channels and warnthem of shallow areas. It was alsosuggested that channel/reef markersinclude arrows indicating the directionof the channel.

Response: It is necessary thatstandardized channel marking for theSanctuary conform to the internationalrules of the road as required by the USCoast Guard and the State of Florida.The Coast Guard discourages the use ofarrows on posts, but will allow gated

(double) markers to mark particularlysensitive areas.

Education and Outreach Action Plan

Education v. Outreach

Comment: A number of reviewersexpressed concern that the draftmanagement plan addresses educationat the expense of outreach noting that,while compatible, they are distinct andaddress different needs and audiences.

Response: NOAA agrees, and the finalmanagement plan clearly reflects bothresponsibilities. The Education ActionPlan has been renamed the Educationand Outreach Action Plan.

Education Supports Resource Protection

Comment: A number of reviewersrecommended the inclusion of a neweducation goal to reflect the intent of theEducation Program in achievingresource protection and managementgoals of the Sanctuary. The NationalPark Service made several suggestionson how the plan should be modified toreflect that the educational strategiesinclude cultural as well as naturalresources. Additionally, some reviewerssaid that an adequate education programcould alleviate the need for additionalregulations.

Response: The final management planstates that the intent of the program isto educate the public about Sanctuaryresources (natural and cultural), thuscomplementing the protection andmanagement goals of the plan.Education and regulation arecomplimentary management tools inresource protection. It is hoped thatincreased education will result involuntary compliance with regulationsthrough increased understanding.

Spanish-Speaking Staff

Comment: A number of reviewersrecommended the hiring of a Spanish-speaking staff member for the Educationprogram.

Response: In order to address themulti-lingual nature of many Educationand Outreach activities, the contractingor hiring of a Spanish-speakingeducation staff member or intern will begiven priority consideration.

Funding for Education and Outreach

Comment: Reviewers recommendedincreased funding of the EducationAction Plan. Additionally, the pursuit ofalternative sources of funding was alsorecommended.

Response: Education is a primarymanagement tool in resource protectionand will be considered in budgetallocations. The management planaddresses alternative funding.


PrioritiesComment: Many reviewers expressed

concern that the education strategiesranged from an overall priority level ofthree to five and had an anticipated lowlevel of action in year one.

Response: Some of these activities arealready underway in the Sanctuary’sEducation and Outreach program.NOAA agrees that the priority level foreducation and outreach should beelevated. As a result, the document hasbeen revised and updated.

Enforcement Action Plan

Interpretive Enforcement/ConnectionBetween Enforcement & Education

Comment: Many reviewers did notunderstand the concept of interpretiveenforcement. Others felt that lawenforcement officers should supplementthe Sanctuary’s education program.Others commented that NOAA shouldeducate the resource users rather thanusing enforcement officers to catchviolators who are making mistakes.

Response: The term ‘‘interpretiveenforcement’’ refers to the merging ofeducation functions with theenforcement officers’ duties. NOAAstrongly agrees that an effectiveenforcement program includes not onlyenforcement of violations, but educationof Sanctuary users to achieve voluntarycompliance with regulations. AlthoughSanctuary officers have full authority toenforce regulations, education is aprimary tool of enforcement as outlinedin the Enforcement Action Plan and theEducation and Outreach Action Plan.The Sanctuary will undertake anoutreach effort to make users aware ofthe regulations. For example, lawenforcement officers distributeSanctuary pamphlets in their contactwith boaters during water patrols, anduse this education opportunity to gainvoluntary compliance.

StandardizationComment: Wording in the draft

management plan is ambiguous,therefore it leaves interpretation to theenforcement officers. The comment alsocharged that information received fromofficers is not consistent from officer toofficer.

Response: Through coordination andtraining of law enforcement officers,standardized enforcement procedures,including interpretive enforcement, willbe achieved. This is outlined in theEnforcement Action Plan.

Coordination With Existing Agencies

Comment: There are 24 agenciescurrently responsible for protecting thenatural and cultural resources of the

Florida Keys. What is NOAA going to doto make them do their jobs?

Response: There are numerousagencies with responsibilities andsomewhat limited ability for fullenforcement of all rules everywhere.NOAA will seek to coordinate theiractivities, thus achieving more effectiveenforcement of all regulations. To thisend, the FKNMS has developed anagreement with other enforcementagencies such as the US Coast Guard,the State of Florida, the US Fish andWildlife Service, and the National ParkService to maximize and coordinateexisting assets concerning Sanctuaryenforcement. Since the Sanctuaryincludes both State and Federal waters,close coordination between the Stateand NOAA is essential.

Funding/Additional Enforcement

Comment: The management planstates that an additional 30 lawenforcement officers will be needed forthe Sanctuary. Many reviewers agreedthat additional officers are needed toenforce laws, but questions were raised:Where will the funding come from forthese officers? What is the timing forhiring additional officers?

Response: NOAA agrees thatenforcement is important for successfulcomprehensive resource protection andmanagement. In balance with otherSanctuary management needs, theexpansion of the law enforcementprogram will be phased in as fundingallows. Funding is critical but limitedand must be balanced with othermanagement goals such as educationand outreach, research and monitoring.The hiring of an additional 30 lawenforcement officers is a goal of theenforcement program. NOAA will workactively with the State to identifyalternative funding sources for hiringadditional law enforcement officers.

Mooring Buoy Action Plan

Use of Volunteers

Comment: Encourage the utilizationof volunteer assistance in mooring buoymanagement and reference theinteraction with the Volunteer ActionPlan.

Response: The benefit of usingvolunteers in various stages of mooringbuoy management is recognized, andreference to utilizing volunteers andvolunteer programs was included in thedraft. However, NOAA agrees that moreemphasis should be placed upon the useof volunteers and the plan has beenrevised to reflect this (Strategy B15,Activity 1, Implementation; Activity 8,Implementation). In the area of mooringbuoy maintenance, volunteers will be

used at the direction of thoseresponsible under contract for themaintenance program.

Participation by the SACComment: The SAC should be

formally involved with all aspects ofmooring buoy planning andmanagement.

Response: NOAA agrees, and theFinal Management Plan reflects this(Strategy B15, Activity 2, Activity 3,Activity 4, Activity 6, Activity 9).

Streamline PermittingComment: The permitting process to

install mooring buoys needs to bestreamlined to assure easier ability toaccept donated mooring buoys orfunding to install mooring buoys.

Response: The purpose of the mooringbuoy plan is to identify appropriate sitesfor installation of new mooring buoyswithin the Sanctuary. Once the plan isfinalized, it is NOAA’s intent to obtainapproval for the installation of all buoysfrom all applicable agencies.

Carrying Capacity StrategyComment: Considerable comment was

received on the concept of carryingcapacity. Some noted that theimplementation of carrying capacitybased on mooring buoy placement aloneis inappropriate. This is because it is thenumber of divers on a vessel that is themost important aspect, not the numberof vessels. The SAC recommended toremove the Carrying Capacity Strategy(Strategy R.5) from the Mooring BuoyAction Plan. This strategy should onlyoccur in the Research and MonitoringAction Plan. Others suggested toseparate the issue of carrying capacityfrom mooring buoys by developing acarrying capacity action plan. However,comment was also received thatcarrying capacity must be establishedfor high use coral reef areas and that theuse of mooring buoys is one method toimplement carrying capacity.

Response: NOAA agrees that the issueof carrying capacity is much larger andmore complex than can be addressed inthe Mooring Buoy Action Plan alone.Mooring buoys are only one possibletool that could be used in theimplementation of carrying capacity. Atthis time, there are no definitive studiesavailable that could aid in establishingcarrying capacity limits. The Researchand Monitoring Action Plan willprovide the opportunity for studyingthis topic. Therefore, it is necessary toundertake additional research beforesuch limits can be considered. NOAAhas revised the management plan toremove the carrying capacity strategyfrom the Mooring Buoy Action Plan. It


remains in the Research and MonitoringAction Plan and will be given a highlevel of priority. It is not advisable tocreate an entire new action plan forcarrying capacity at this time.

No Anchoring in the SPAs

Comment: A large number ofcomments were received thatrecommended a no-anchoring policywithin Sanctuary Preservation Areas(SPAs) where mooring buoys arepresent. The SAC recommended that theSPAs become no-anchoring zones, butthat this should be phased in assufficient mooring buoys are placed toaccommodate existing uses. They alsorecommended that this issue bedivorced from the Mooring Buoy ActionPlan and be inserted into the zoning andregulatory action plans.

Response: NOAA agrees that the SPAsshould become no-anchor zones. Beforethis policy is implemented, there shouldbe a sufficient number of buoys in eachSPA to accommodate a reasonable levelof demand. The Working Groupestablished in the Mooring Buoy ActionPlan (Strategy B.15, Activity 4) willdetermine the sufficiency of the numberof mooring buoys in the SPAs indeveloping the mooring buoymanagement plan. In the meantime, theregulations require boaters to usemooring buoys when they are availablein SPAs and prohibit anchoring oncoral. Thus, anchoring would beallowed on sand.

Support for Mooring Buoy Program

Comment: Numerous comments werereceived that indicated strong generalsupport for mooring buoys. Someindicated that the buoys should not bejust for divers but should consider theneeds of fishermen as well.

Response: NOAA feels that themooring buoy program is one of themost important proactive resourcemanagement actions that the Sanctuaryhas taken. The mooring buoy programwill continue to be a major emphasis ofthe FKNMS. The FKNMS managementteam will consider mooring buoys forfishing uses in addition to those usedprimarily by divers.

Installation and Management ofMooring Buoys by Non-Profits

Comment: Several comments werereceived that stated that the FKNMSshould leave the management ofmooring buoys in the hands of existingagencies and non-profit organizations.Federal money would be better spent bygiving it to non-profits. Some reviewersindicated that NOAA had overestimatedthe cost of mooring buoy maintenance.

Response: The Mooring Buoy ActionPlan calls for encouraging new andcontinued efforts of non-profits andother organizations, as well as exploringother innovative funding mechanismsfor installing and maintaining mooringbuoys. The National Marine SanctuaryProgram currently maintainsapproximately two thirds of the mooringbuoys in the Florida Keys. It has beenfound to be a cost effective programutilizing local contractors formaintenance service. The costs in theaction plan were somewhat high, asthey were originally based on themaximum deployment of mooringbuoys throughout the Sanctuary, not oncurrent conditions. Cost was also basedon a five year planning time frame,which was not made clear in the plan.The action plan has been revised toconsider a more modest deployment ofmooring buoys and has been clarified inregard to annual maintenance costs.

Raise the Priority of Mooring BuoyProgram in Management Plan

Comment: Raise the overall Sanctuarypriority level for mooring buoy activitiesfrom 3 to 2, in order to emphasize itsimportance.

Response: NOAA agrees that mooringbuoy management is a high priority andthe final management plan reflects thechange from a medium to high level ofpriority.

Limit the Size of Vessels Using MooringBuoys

Comment: Some reviewersrecommended that NOAA limit the sizeof vessels using mooring buoys.

Response: Considering that the size ofthe anchoring apparatus increases withthe size of the vessel, NOAA is hesitantto limit the size of vessels that usemooring buoys because this action mayforce large vessels to anchor thusincreasing the potential impact to thecoral reefs. However, the mooring buoyaction plan contains activities thataddress the management of large vesseluse on mooring buoys in high use orsensitive areas and NOAA is committedto improving mooring buoy technologyto accommodate large vessel use.Additionally, NOAA has included arestriction on damaging mooring buoysin the regulations which places theburden on large vessel operators toassure that their use of mooring buoysis conducted in a manner so as not todamage the mooring buoy or hardware.This includes adding additional tag lineto the mooring buoy in rough seas.

Regulatory Action Plan/Regulations

DefinitionsComment: NOAA received comments

suggesting that several definitions beadded to the list of definitions in theSanctuary regulations.

Response: NOAA has addeddefinitions, including those for coral,coral area, coral reefs, hardbottom, andresidential shorelines, to the regulations.

AnchoringComment: NOAA has received several

comments on the issue of anchoringwithin the Sanctuary. Comments rangedfrom requests for a Sanctuary-wideprohibition on anchoring on coral tothose suggesting a prohibition only onthe shallow reefs. Commentors statedthat the bottom is often not visible in 50feet of water, and therefore theanchoring restriction was impractical.

Response: NOAA has revisedproposed § 922.163(a)(5)(ii) to prohibithaving a vessel anchored on live coralother than hardbottom in depths lessthan 40 feet when visibility is such thatthe seabed can be seen. This restrictiondoes not apply to anchoring onhardbottom. This regulation is necessaryto address the impact of anchoring oncoral.

Vessel OperationComment: Operation of vessels,

particularly personal watercraft (jet-skis)generated considerable comment duringthe review process. Many reviewerswere concerned about the operation ofpersonal watercraft in such a way as tocreate a nuisance, or in a manner thatdisturbed wildlife or affected the healthof Sanctuary resources. One reviewersaid, ‘‘jet skis take the magic out of theKeys.’’ On the other hand, there werenumerous comments that the operationof personal watercraft should not besingled out from the operation of othervessels. Others commented about theadverse impacts from all vessels onshallow water habitats and wildlife inthe Sanctuary. Careless operation of allvessels was also an issue of concern bythe public.

NOAA received considerablecomment from the public, the SAC, andthe State of Florida on the proposedregulations for operation of vessels atgreater than idle speed only/no wakenear islands, residential shorelines,stationary vessels, and emergent reefs.Considerable comment was received onthe proposed regulation that restrictedvessel operation at a speed greater thanidle speed only or no wake within 200yards of mangrove fringed islands,residential areas, flats, stationaryvessels, and other features.


Response: NOAA recognizes theadverse impact on Sanctuary resourcesand the user conflicts that can occurfrom the operation of all vessels. Thethreat to Sanctuary resources isuniversal to the operation of all vessels,not just any one type. However, the size,maneuverability, and shallow draft ofpersonal watercraft results in operatorbehavior that makes them a greatersource of user conflict and threatensSanctuary resources more than anyother vessel, particularly in shallowwater habitat. Approximately 40 percentof the boating accidents in MonroeCounty in 1995 resulted from personalwatercraft. This statistic indicates thatthe potential for careless operation ofpersonal watercraft is very high. Most ofthe negative public comments aboutpersonal watercraft were behaviorrelated examples.

The final regulations do not single outpersonal watercraft. Rather, theregulations apply to operation of allvessels to comprehensively address thepotential resource impact, user conflictsand safety problems within theSanctuary. The final regulations specifythat, except in marked channels, vesselsare prohibited from operating above idlespeed or creating a wake in areasmarked idle speed only/no wake, andwithin 100 yards of residentialshorelines, stationary vessels, andmarked emergent reefs, and 100 feetfrom a divers down flag. As regards the100 foot distance requirement fromdiver down flags, NOAA modified thisfrom the proposed 100 yard requirementto be consistent with State regulations.

Personal Watercraft RentalsComment: Many reviewers

commented on the use of rentedpersonal watercraft. Some in support,some in opposition, and some insupport with appropriate restrictions.The SAC recommended that NOAAwork with the personal watercraft(PWC) industry to begin a process toidentify whether there is a need toestablish restrictive zones. Commentsfrom the personal watercraft industryrepresentatives indicate interest in selfregulation.

Response: NOAA plans to work withthe PWC industry, the SAC and thepublic to determine regulatory and non-regulatory steps to address the issue,including the potential need andlocation of PWC rental use-zones.

Emergency ClosuresComment: Some reviewers were

concerned about the ability of theDirector or his designee to close areas orimpose limited access provisions forunspecified periods of time.

Response: Section 922.165, theauthority to impose emergencyregulations, including area closures oraccess restrictions, has been revised tolimit the term of an emergencyregulation to 60 days, with the option ofone 60-day renewal. In addition, underthe Co-Trustee Agreement, the Governorand Cabinet will be provided advancenotice of all emergency regulations. TheGovernor has the authority to reopen anarea in State waters by certifying his orher objection to NOAA. Similarly, theFlorida Marine Fisheries Commissionwill be provided advance notice ofclosure of areas to fishing activities. Anyclosure beyond 120 days would requireproviding the public the opportunity fornotice and comment as required by theAdministrative Procedure Act. Sucharea closures will be limited to theminimum amount of area necessary soas to achieve the purpose of the closureand avoid or minimize adverse impactsto Sanctuary users.

Civil PenaltiesComment: Some reviewers expressed

an interest in having a penalty schedulepublished in the final management planshowing a scale of penalties for variousinfractions. Many reviewers haveexpressed concern about the discretionof enforcement officers in handlingviolations. Reviewers feared that NOAAcould abuse it’s authority and charge themaximum $100,000 civil penalty perday for a minor infraction. Somecommented that civil penalties asoutlined in draft regulations implied an‘‘all or nothing’’ approach toenforcement and that the potentialeconomic consequences if boaters arescared away from using the Sanctuarybecause of excessive regulations shouldbe noted. Some commented that thepenalty structure must be expanded toinclude degrees of violations, bothintentional and unintentional. Somecommented that the threat ofenforcement for the intentional vandalshould be significant while theinadvertent accident of a well-meaningcitizen should not be the grounds for asevere penalty. Some asked who woulddevelop the penalty structure and whatpublic review process the penaltystructure would go through?

Response: Civil monetary penaltiesare developed for Sanctuary violationsby NOAA’s Office of the AssistantGeneral Counsel for Enforcement andLitigation, with input from the Office ofLaw Enforcement, the Sanctuaryprogram, the Regional Administrator forthe Southeast Region, and the U.S. CoastGuard. The schedule will includeenforcement actions that may be takenagainst violators, which may include

verbal warnings, written warnings, civilmonetary penalties, permit sanctions,and/or seizures of property. Manyfactors are taken into account indetermining an appropriate penalty fora particular violation, including priorviolations, the severity of the offense,and other aggravating or mitigatingcircumstances. The schedules will beavailable to the public before theregulations become effective and areenforced.

Sanctuary Certification/Authorizationof Permits/Leases/Licenses

Comment: Some reviewers, includingthe SAC, expressed concern over theapplication of terms and conditions toleases, permits, licenses particularlythose in existence prior to thedesignation of the Sanctuary. Thepublic’s concern was that theregulations on Sanctuary certification ofpre-existing permits (proposed § 929.14)and Sanctuary authorization of otheragency permits or authorizations afterthe effective date of the Sanctuary(proposed § 929.15) were too broad andappeared to give the Director the powerto change existing authorizations.Commentors indicated that such powershould not be handed over to a non-elected official without the right ofappeal on the part of the individualholding the permit, lease, license orauthorization.

Response: The State, county and otherFederal agencies will continue toexercise their authority to issue permits.The Sanctuary will not pre-empt theirauthority to issue permits. In order toavoid duplicative permits andpaperwork requirement, NOAA willseek to address Sanctuary concernsthrough those existing authorities.However, those authorities cannotauthorize something that the Sanctuaryprohibits. This regulatory authority isconsistent with most sanctuaries and isbased on provisions of the NMSA.Although the NMSA authorizes NOAAto regulate existing permits, includingadding conditions, such regulations maynot terminate any pre-existing permits,licenses or leases. Furthermore,§§ 922.167(i) and 922.49(h) provide thatthe Director’s conditions or otherdecisions may be appealed. The appealprocedures are set forth in § 922.50. Inaddition, there are other checks andbalances in place that prevent abuse ofdiscretion relating to permits. NOAAand the State have developed a draftinteragency agreement which identifieswhich activities will be subject tocertification and authorization, and howthe review process will be coordinated.


Sanctuary Permits—Time LimitationsComment: Some reviewers requested

that NOAA place a time limit on itselfin which to respond to a permit request.The SAC suggested a 60-day time limit.

Response: Sanctuary concerns will beaddressed for most activities andprojects in other Federal permits and, ifnone exist, in State permits. Sanctuarypermits are issued only if Sanctuaryconcerns cannot be addressed in theexisting Federal/State permit regimes.NOAA has not imposed any timeconstraint for responding to permitrequests. NOAA agrees that 60 days isa reasonable time in which to respondto most permit applications. NOAAnormally responds within 3 weeks to amonth after receipt of a completeapplication for most permits. However,a 60-day time frame may not beappropriate for large or complexprojects.

Sanctuary Permit Reporting ProceduresComment: Some reviewers expressed

concern over the reporting requirementsfor permits.

Response: NOAA has not changed thepermit reporting requirements. Noreports are required more often thanmonthly. For permits issued for oneyear, the reports required are a ‘‘quicklook’’ report and final report. Longerpermits require a ‘‘quick look’’, annual,and final reports. Reports assist theSanctuary in assessing the progress andimpacts of a permitted activity andprovide information useful to Sanctuarymanagement.

Fee Schedule/Special Use PermitsComment: Some reviewers suggested

NOAA develop a fee schedule, based onfair market value, for the issuance ofSpecial-use Permits.

Response: NOAA has not included afee schedule in the final plan. The needfor a Special-use Permit fee schedule isprogrammatic, not Sanctuary specific,and the details and specifics of Special-use Permits have not been completed bythe Sanctuary and Reserves Division ofNOAA. Further, the small number ofSpecial-use Permits issued to date hasnot warranted the administrative reviewand development of such a schedule.Special-use permits will continue to beconsidered on a case-by-case basis.

Effectiveness of Enforcement ofRegulations

Comment: There was commentexpressing concern about theeffectiveness of enforcing the Sanctuaryregulations.

Response: NOAA feels that effectiveand efficient resource protectionrequires coordination with existing

regulations. As a result, the Sanctuary isdeveloping an agreement with otherenforcement agencies such as the USCoast Guard, State of Florida, US Fishand Wildlife Service, and the NationalPark Service to maximize andcoordinate existing assets concerningSanctuary enforcement. Since theSanctuary includes both State andFederal waters, close coordinationbetween the State and NOAA isessential.

Florida Clean Vessel Act/VesselDischarge

Comment: The State of Florida andother reviewers recommended thatNOAA establish regulations throughoutFederal waters that meet therequirements of the Florida Clean VesselAct.

Response: NOAA has notincorporated the provisions of theFlorida Clean Vessel Act in the finalregulations. This act does, however,apply to the 65 percent of the Sanctuaryin State waters. Further, the finalregulations prohibit all discharging anddepositing of any material or othermatter except cooling water or engineexhaust in Ecological Reserves orSanctuary Preservation Areas. Thus,discharge from marine sanitationdevices in these areas is prohibited.This will protect the shallow coral reefsfrom discharge of nutrients. In addition,NOAA will work with the State ofFlorida and the Water Quality SteeringCommittee concerning incorporation ofprovisions similar to the Florida CleanVessel Act throughout the Sanctuary.

Transiting No-Take ZonesComment: Some fishermen expressed

concern over the inability to transit notake zones with their equipment onboard and their catch taken from outsidethe zones.

Response: The final regulations allowtransiting an ER or SPA with catchtaken outside the ER or SPA, providedit is stowed prior to entering and duringtransmit. The final regulations alsoallow transiting with otherwiseprohibited gear provided it is unbaitedand stowed in a cabin, locker, rodholder or similar storage area, or issecurely covered and lashed to a deckor bulkhead unbaited, prior to enteringand transiting the area.

Live Rock Harvest, Shell and TropicalFish Collecting

Comment: Many reviewerscommented on the collection andharvest of live marine organisms andmollusc shells.

Response: Live rock harvesting iscurrently prohibited under State and

Federal fisheries law. The prohibitionhas been added to Sanctuary regulationsto protect these Sanctuary resourcesshould the restrictions under other lawsbe removed. Shell collecting andtropical fish collecting and otherconsumptive activities are prohibited inthe SPAs and Ecological Reserves. Inaddition, the Florida Marine Life Rulehas been incorporated by reference intothe Sanctuary regulations and therebyextended into Federal waters. Theseregulations will address some concernsof exploitation while minimizingeconomic impact. The marine life ruleis referred to in § 922.163(a)(12) of theSanctuary regulations and is reproducedin Appendix VIII.

Diver ImpactComment: Some commented that

stronger regulations were needed toprohibit coral touching andrecommended specific regulationsdealing with diver and snorkelerimpacts on the coral reefs. Somesuggested prohibiting the use of glovesor requiring float coats for snorkelers.There was also a comment that thereshould be no prohibition againstimpacts to dead coral.

Response: Section 922.164(d)(iv) ofthe Sanctuary regulations prohibitsdivers and snorkelers from touching orstanding on living or dead coralformations in the SPAs and ERs.Approximately eighty to eighty-fivepercent of the year-round diving andsnorkeling activity within the Sanctuarytakes place in the 18 SPAs and one ERestablished by the final regulations. Thissingle regulation will address the issueof diver impact on coral reefs withouthaving to develop a series of regulationson gear requirements that accomplishesthe same goal. NOAA included ‘‘livingor dead’’ coral formations with theunderstanding that some visitors to theSanctuary do not know the differencebetween living and dead corals.Additionally, impacts to dead coralformations may disrupt new coralrecruits. The removal or injury to coralsis also prohibited Sanctuary-wide.

SpearfishingComment: Some reviewers expressed

concern about spearfishing within theSanctuary, while others urged NOAA toallow it to continue in a managedmanner.

Response: In balancing the public’sconcern and interest over the issue ofspearfishing within the Sanctuary,NOAA has prohibited spearfishing inthe SPAs, ERs, Research-only Special-use Areas, and some of the ExistingManagement Areas. NOAA hasaddressed the concerns of over-harvest


by this fishing technique in eighty toeighty-five percent of the total areawithin the Sanctuary dived byrecreational divers and snorkelers.However, spearfishing will continue tobe allowed and managed under fisheriesmanagement regulations in theremainder of the Sanctuary. Thisbalance of concerns on the issue willhave positive impacts on the resources.

Military Activities Within the Sanctuary

Comment: Some commented that aprohibition on the use of explosiveswithin the Sanctuary should beextended to the military.

Response: The final regulationsprovide that all military activities shallbe carried out in a manner that avoidsto the maximum extent practicable anyadverse impacts on Sanctuary resourcesand qualities. Sections 922.163 and922.164 do not apply to existing classesof military activities as identified in thefinal environmental impact statement.New military activities may also beexempted from all or part of these twosections upon consultation with theDirector. NOAA has been assured by theNavy that live (explosive) ordinancesare not currently used within theSanctuary. The Patricia Range is theonly target site within the Sanctuaryand live explosives are not used.

Research & Monitoring Action Plan

Management Should Be Based on GoodScience

Comment: Management actionsshould be based on good science andshould not occur until the science isdone to back it up.

Response: Management actionsshould be based on the best availablescience. However, there is always adegree of uncertainty associated withscience and, in some cases, it isimprudent to suspend managementactions until the science is completed.A precautionary approach tomanagement of Sanctuary resourcesshould be taken in order to ensure thatlack of scientific certainty does notpreclude implementation of reasonablemanagement measures. An adaptivemanagement approach will be used inthe Sanctuary when necessary.

Studies Are Needed To DetermineSustainability

Comment: Studies are needed todetermine the level of human activitysustainable by the resources.

Response: NOAA agrees and hasincluded a carrying capacity strategy inthe Research and Monitoring ActionPlan. The strategy calls for carryingcapacity research to be conducted at

several of the SPAs and Research-onlySpecial-use Areas.

Too Much Emphasis on Research andMonitoring

Comment: The draft management planplaces too much emphasis on researchand monitoring.

Response: Research and monitoring isan essential component of effectiveresource management. The reason manystrategies have a research or monitoringcomponent is to assess the strategies’’effectiveness or feasibility in order todetermine whether it needs to bemodified, continued, or terminatedprior to committing additional resourcesin the future.

Queen Conch Stocking

Comment: A moratorium on stockingwould adversely effect the State’s queenconch stocking program.

Response: NOAA has revised StrategyF.3 by eliminating the moratorium onstocking and replacing it with arequirement for permitting of allstocking programs.

Monitoring of Zones

Comment: Research and monitoring ofzones needs to be a top priority.

Response: Scientific monitoring todetermine the effectiveness of the zonesis a top priority for NOAA. In 1993,NOAA began to collect baseline data onreef fish populations in and around theproposed no-take zones in preparationfor their implementation. Research inthe zones is also a top priority and willbegin once the zones are finalized. TheResearch and Monitoring Action Planexplains how the zones will be used forresearch and monitoring.

Volunteer Research and MonitoringPrograms

Comment: Some reviewers pointedout the need to incorporate volunteermonitoring efforts such as some of thosecurrently underway by groups like ReefRelief, The Nature Conservancy, andR.E.E.F. They also pointed out theimportance of using the knowledge oflocal experts to help better understandthe health of Sanctuary resources.

Response: NOAA has incorporatedthe use of monitoring projects by thepublic and volunteers in the Researchand Monitoring Action Plan. The long-term goals of the Sanctuary includeusing such monitoring programs as abasis of detecting change in the coralreef environment.

Submerged Cultural Resources ActionPlan

Prevent Treasure Hunting & No Permitsfor Private Profit

Comment: Several reviewers,including the National Park Service,Minerals Management Service, and theDepartment of the Navy stated that notreasure hunting should be permitted inthe Sanctuary and that the proposedSubmerged Cultural Resources (SCR)permit system was in conflict with theFederal Archaeological Program andparticularly the Abandoned ShipwreckAct (ASA) guidelines. Other reviewersindicated that some commercial treasuresalvage should be permitted, but shouldbe strictly regulated to prevent any harmto the natural resources of theSanctuary.

Response: NOAA agrees that ‘‘treasurehunting’’ that is, the search for andrecovery of intrinsically valuableartifacts with little, if any, regard for thearchaeological context and historicalsignificance of the finds, should not beallowed in the Sanctuary.

However, the Submerged CulturalResources (SCR) Action Plan doesprovide for public and private sectorrecovery of shipwrecks consistent withprotecting historical values and theenvironmental integrity of theshipwrecks and sites. NOAA and theState of Florida have agreed that theSCR plan, consistent with the multipleuse mandates of the NMSA and theASA, should provide for the in situpreservation of highly significanthistorical Sanctuary resources understrict regulations protecting historicalvalues and the environmental integrityof the shipwrecks and sites and that therecovery of SCRs should only bepermitted when it is determined to bein the public’s interest and done in anenvironmentally and archaeologicallysound manner.

No recovery permits will be issued inareas where there is coral, seagrass orother significant natural resources.However, private recovery of certainSCRs may be permitted in other areas ofthe Sanctuary which are relativelydevoid of natural resources. In suchrecovery efforts, the highly significantresources will be required to bepreserved in a museum of public accessconsistent with the standards of theFederal Archaeological Program. Objectsof low to moderate historic orarchaeological significance may bedeaccessioned or transferred for sale orother disposition.

As regards the ASA guidelines,NOAA acknowledges that theaccommodation of commercial salvage,that is, the search for and the recovery


of shipwreck artifacts usingarchaeological recovery techniques andhistorical documentation to maximizethe intrinsic value of the finds, doesappear to conflict with certain ASAguidelines suggesting that nocommercial salvage be permitted inmarine sanctuaries. However, NOAA’sposition is that the SCR Action Plan isconsistent with the ASA guidelineswhen read as a whole. In other words,there is no commercial salvagepermitted in the zoned areas and otherareas of significant natural resources.Commercial salvage will be permittedonly in areas relatively devoid ofsignificant natural resources. NOAAdoes not suggest that the FKNMS SCRAction Plan be used as a model for othernational marine sanctuaries, or for otherFederal/State protected areas orpreserve systems. There are severaldistinguishing reasons for the departurefrom those ASA Guidelines in theFKNMS: (1) 65 percent of the Sanctuaryis in State waters—under the NMSA andthe ASA due deference must be given tothe State’s interests in managingSanctuary resources, particularlyabandoned shipwrecks to which theState has title; (2) treasure hunting andcommercial salvage of historicshipwrecks has been a traditionalactivity in the Keys for decades and ispart of the local culture; (3) the NMSAand the ASA are multiple use statutes;(4) the establishment of multiple useareas where commercial salvage canoccur as well as not permitting anyrecovery where there is coral, seagrassor other significant natural resources isanalogous to the zoning approachproposed for protecting natural resourcehabitat areas; (5) the SAC recommendedthat some commercial salvage bepermitted in the Sanctuary; and 6)numerous other public commentsrecommended that some commercialsalvage should be permitted in theSanctuary.

Consistent with the recommendationsof the SAC, the State, and publiccomments, the SCR Action Planprovides a permit system which willstrictly regulate private, for profit,recovery of SCRs, to ensure that it isdone in an environmentally andarchaeologically sound manner. Private,for profit, recovery will not be allowedunless it is in the public interest andwill include public display of therecovered SCRs. Certain SCRs will berequired to be maintained in museumsand similar institutions of public accesswhile duplicative objects may bedeaccessioned and transferred to thepermittee for sale or other disposition,but only after there has been a proper

recording and reporting of thearchaeological information. Under themultiple use mandate of the NMSA andthe ASA, some SCRs may be recoveredwhile other more significant SCRs willremain in the Sanctuary for in situpreservation and use by present andfuture generations.

Comment: The National Park Servicecommented that the Antiquities Actapplies in National Marine Sanctuariesand therefore an Antiquities Act permitshould be required for the excavationand recovery of SCRs.

Response: NOAA agrees that theAntiquities Act applies in theSanctuary. However, as the Federalagency that exercises control overSanctuary resources, NOAA is theappropriate Federal agency to issuepermits for the management ofSanctuary resources, includingantiquities. Moreover, as the SanctuarySCR permits will be issued incompliance with the NMSA, the ASA,the NHPA, and the standards andguidelines of the Federal ArchaeologicalProgram, an additional permit under theAntiquities Act appears unnecessarilyduplicative.

Comment: The Department of theNavy objected to the SCR permits andexpressed concern about the Navy’shistoric shipwrecks in the Sanctuary aswell as the potential precedent for otherNavy historic shipwrecks outside theSanctuary.

Response: The permits for privaterecovery and deaccession/transfer onlyapply to abandoned vessels. As a trusteefor such resources, NOAA will continueto respect the interests of the owners ofthe vessels and the sovereigns thatrepresent those interests consistent withdomestic and international law. Sunkenwarships and other public vesselsentitled to sovereign immunity,regardless of location, remain theproperty of the nation to which itbelonged at the time of sinking, unlessthat nation has taken formal action toabandon it or to transfer title to anotherparty. It is a long-standing Navy policythat it does not abandon its publicvessels. Therefore, no permits will beissued for the private recovery of Navyvessels without the express writtenpermission of the Department of theNavy. In considering permits for theprivate recovery of other vessels entitledto sovereign immunity, NOAA mayrequire the express permission of theappropriate sovereign representatives,or otherwise consider their interests inthe vessel and its recovery.

SCR Plan/Permits & Costs to TreasureSalvors Business

Comment: At the scoping meetings,workshops, SAC meetings, other publicmeetings, and in public comments thetreasure salvors have continuouslyasserted that the FKNMS would putthem out of business and commentedthat the Sanctuary should adopt theState’s existing contract system. Otherscommented that commercial treasuresalvage should be permitted, but shouldbe strictly regulated to prevent harm tonatural resources from variouscommercial treasure salvagemethodologies, including ‘‘mail-boxing’’(propeller dredging device).

Response: The Florida contractsystem and the division ratio (80percent salvor to 20 percent State) wasconsidered as an alternative, but wasnot preferred because it is inconsistentwith the Federal ArchaeologicalProgram and with the ASA Guidelines.Prohibiting commercial salvagethroughout the Sanctuary was alsoconsidered and rejected for reasonsindicated in the response to thecomments above. The SCR Action Planis the result of a careful balancing ofresource protection and reasonableaccommodation for commercial salvagein certain areas for certain SCRs. If thecargo from a wreck is of little or nohistorical or archaeological significanceand duplicative, then nearly all of therecovered objects will likely betransferred to the permittee. On theother hand, if the artifacts are of highhistorical significance, then thepermittee will have possession of theartifacts and may seek return on theinvestment through other means.However, in this instance there wouldbe no transfer of ownership of a publicresource to a private party unless anduntil it is determined that the resourceis of little or no historical orarchaeological value. In developing theSCR Action Plan, NOAA considered thethreats to natural and historicalresources and sought to develop strictregulations to ensure that recovery willbe environmentally andarchaeologically sound, while at thesame time, taking into account thesocio-economic considerations of thecommercial salvors and others. Inresponse to comments, changes weremade to the proposed regulations anddraft management plan in an effort tomake the permit management systemmore pragmatic from the perspective ofthe commercial salvors withoutcompromising the primary objectives ofprotecting significant natural andhistoric Sanctuary resources. Betweenthe draft and the final, NOAA issued


several permits to commercial salvorswith pre-existing admiralty rights.While the permit conditions may bemore rigorous than the requirements ofthe Admiralty Court or the Statecontract system, and thus may involveadditional costs, those permitteescontinue to work their sites.

Comment: The Historic ShipwreckSalvage Policy Council (HSSPC)(treasure salvors group) and othertreasure salvors also raised specificconcerns about the economic burden topermittees in the SCR Action Plan suchas requiring performance bonds, generalliability insurance, permanent publicdisplay of certain SCRs, professionalnautical conservators and supervisionby professional archaeologists.

Response: Pursuant to consultationwith the State of Florida, NOAA hasdeleted the requirement for aperformance bond for all applicants. Asthe treasure salvors noted, theregulations elsewhere require allpermittees to demonstrate theirfinancial ability to carry out proposedprojects and activities requiring permits.NOAA agrees that the underlyingpurpose of requiring a performancebond (to ensure that there are amplefunds to finish research-recovery workonce initiated) appears to be covered bythe other regulations and that byremoving the regulatory requirement fora performance bond, there will be moreflexibility in the permit system. Whilethe removal of the regulatoryrequirement should reduce the costs formeeting the permit criteria for mostapplicants, requiring such aperformance bond may still bereasonable and appropriate in certaincases where applicants historically havenot finished projects or have difficultydemonstrating their financial ability tocomplete a proposed project.

General liability insurance is requiredby Section 310 of the NMSA. However,NOAA has modified the regulatoryprovision implementing thatrequirement to clarify that other securityinstruments may be utilized in lieu ofan insurance policy. In addition, NOAAhas modified the regulatory language toclarify that the scope of coveragerequired is for potential claims fordestruction, loss of or injury toSanctuary resources arising out ofpermitted activities and to clarify thatthe amount of insurance or securityshould be equivalent to the estimatedvalue of the Sanctuary resources in thevicinity of the permitted area andactivities.

With regard to the requirement thatSCRs be publicly displayed, NOAA didnot intend to require that all SCRs bepublicly displayed for all time. Instead,

it was expected that this would beaddressed in the curation agreementsand that standard museum practiceswould be followed, consistent with theFAP. The regulations have thereforebeen modified to indicate that publicaccess and ‘‘periodic’’ public displaymust be provided.

With regard to the requirement that aprofessional archaeologist be in chargeof the archaeological research andrecovery, that requirement has not beenchanged or modified. Recovery ofhistorical resources inherently involvesthe destruction of contextual and otherimportant archaeological information.The only way that such information ispreserved is through scientific recordingof the recovery efforts consistent withstandard archaeological principles. It istherefore imperative that a professionalarchaeologist supervise the recoveryoperations. That is not to say that, assupervisor, the archaeologist needs to beon site all the time. However, thearchaeologist needs to oversee theoperations. The public’s interest in thepreservation of this archaeologicalinformation justifies the additional coststo the permittee. In addition, theadministrative record indicates thatmany commercial salvors alreadyemploy an archaeologist.

With regard to the requirement of aprofessional nautical conservator, theregulations have been modified to delete‘‘professional’’ and insert ‘‘authorized’’as suggested in comments in order toprovide more flexibility in the permitsystem and allow for the considerationof field experience. As the professionalarchaeologist is responsible forsupervising the operations, NOAA willgive due deference to the supervisingarchaeologist’s selection for nauticalconservator in considering itsauthorization.

Special Use Permits; Fees/Waiver inSCR Context

Comment: The HSSPC suggestedadding a third criteria for Special-usePermits, i.e., ‘‘to promote private sectorparticipation when advantageous to thetaxpayers’’ and shifting the costs forSpecial-use Permits from the permitteeto NOAA and the State. The HSSPC alsosuggested that the costs for Special-usePermits should be limited to the costs ofissuing the permit. Other administrativecosts such as monitoring activitiesshould not be included. The fair marketvalue for use of Sanctuary resources alsoshould not be included.

Response: Section 310 of the NMSAprovides the authority, and sets forththe two criteria, for issuing Special-usePermits. Section 310 also provides forthe assessment of associated fees which

are to cover the administrative costs aswell as a fair market value return to thepublic for use of public resources. Thisportion of the management plan merelydescribes these statutory provisions andremains consistent with section 310.

With regard to adding the thirdcriterion, promotion of privateparticipation, it is not a section 310criterion or even a general statutorypurpose or policy. However, facilitationof compatible multiple use is a statutorypolicy and the SCR Action Plan hasbeen modified accordingly.

With regard to the assessment of costsand waiver of fees in implementingSpecial-use Permit authority, NOAA hasthe discretionary authority to considerwaiver of costs and/or fees on a case bycase basis when permitted activitiesresult in a public benefit, whose valuecan be determined. For example, in theSCR context, the preferred policy is thatthe SCR be preserved on site. Waiver offees for the removal of SCRs which arenot under threat is unlikely. However, ifit is determined that the SCR is beingthreatened by remaining in theSanctuary, the research and recoverywould appear to be in the publicinterest and reduction and/or waivermay therefore be considered in the costand/or fee determination. The extentthat private use is furthering resourceprotection, research, education andsimilar FKNMS management strategiesis given due consideration indetermining the amount of costs andfees.

Public Access to SCRs (Land v. Sea)Comment: The HSSPC suggested that

the plan should require SCRs to bemanaged in a manner that brings SCRsto the largest segment of the populationsnoting that scuba divers amount to lessthan 1% of the population. Severalothers, including the National ParkService, commented that SCRs shouldbe preserved in the Sanctuary but thatnon-intrusive public access for research,education and recreation should beallowed, and that intrusive publicaccess should be strictly regulated.

Response: The policy preferenceunder the FKNMS SCR Action Plan,consistent with the preservation policyin the Federal Archaeological Program,and the resource protection mandate inthe NMSA, is that SCRs be preserved onsite in the Sanctuary, unless the SCRsare under threat and removal is requiredto preserve them. As indicated in thecomments above, there has been someaccommodation for commercial salvagein certain areas of the Sanctuary and forcertain SCRs to facilitate multiple use ofthe SCRs. However, besides beinginconsistent with resource protection,


the suggestion that all or most of theSCRs be removed from the Sanctuary isnot consistent with the multiple usemandates of the NMSA and the ASAand has therefore not been incorporated.The ASA and the NMSA are bothconcerned about public access to SCRsfor boaters, divers and others within theSanctuary. The suggested change inpolicy appears to primarily benefit onespecial interest group, the commercialsalvors. Access to Sanctuary resourcesfor members of the public unable toenter the Sanctuary itself isaccomplished through a variety ofeducation and outreach and researchproducts and mediums, including print,film, and computer informationalproducts. The public access goal doesnot require physical access to the SCRs,nor does it require their removal forland based exhibits. However, aspreviously indicated, in this Sanctuary,the SCR Action Plan provides forcommercial salvage which will in turnresult in the public display of certainrecovered SCRs in museums and similarinstitutions of public access.

Inventory of SCRs: Responsibility &Expense

Comment: The HSSPC suggests thatthe Florida Department of State/Bureauof Archaeological Resources have thelead responsibility in the inventory ofSCRs and that NOAA’s role be limitedto a financial assistance role. TheHSSPC also suggested that the inventorybe accomplished through the use of theprivate sector, when funding isavailable, in order to lessen the burdenon taxpayers.

Response: No change was made to theplan regarding NOAA’s leadresponsibility for the inventory of SCRsbecause it is NOAA, not the State, thatis legally responsible for accomplishingthis task. Section 110 of the NationalHistoric Preservation Act requiresFederal agencies to inventory historicresources such as SCRs under theFederal agencies’ managementresponsibility. However, as indicated inthe plan, NOAA will work with theState and any other public and privateentities interested in activities whichfulfill this responsibility. Accordingly,the SCR Agreement has been revised toindicate that NOAA will also considerall public and private opportunities foraccomplishing the inventory in areasonable and cost-effective manner,including private sector fundingthrough permits and otherwise.

Survey/Inventory PermitsComment: The HSSPC suggested that

the regulations expressly state that noSanctuary permit is required for non-

intrusive, non-exclusive remote sensingactivities, but also suggested that thesurvey/inventory permits expresslygrant exclusive rights to explore thepermitted areas. The HSSPC alsosuggested that these permits provide forlimited manual alteration of the seabed,including hand fanning, provided thereis no negative impact to coral, seagrass,sponges and other natural resources.

Response: Section 922.42 of theregulations states that unless an activityis prohibited, it is expressly allowed. Inaddition, the sections on Sanctuarypermits, certification, andauthorizations indicate that they areonly required for conducting activitieswhich are prohibited by Sanctuaryregulations. Non-intrusive remotesensing is not prohibited. Therefore, theregulations expressly state that suchactivity does not require a permit. Theregulations will indicate that permitsmay provide for limited manualalteration of the seabed, including handfanning, provided there is no adverseeffect on Sanctuary resources. Suchactivity will continue to be consideredon a case-by-case basis as part of thepublic interest balancing on whether toissue a permit and for determining theappropriate conditions to protectresources and manage multiple uses.

The HSSPC suggestion for exclusiverights for a survey-inventory permit isnot entirely consistent with thesuggestion that remote sensing notrequire a permit. NOAA cannot preventnon-intrusive remote sensing in an areaunless it is prohibited in the regulationsand the regulations do not prohibitremote sensing. However, NOAA andthe State of Florida are cognizant of theunderlying economic concerns ofapplicants and permittees in investingand expending financial resources.Therefore, in an effort to reconcile thesecomments, the regulations have beenmodified to indicate that NOAA will notgrant survey and inventory permits orresearch and recovery permits for areascovered by existing permits, unlessauthorized by such permittee. There isno entitlement to these and otherpermits, rather it involves thediscretionary authority of NOAA andthe State of Florida in granting aprivilege which is determined to be inthe public’s interest.

Volunteer Action Plan

Recruitment of VolunteersComment: A number of reviewers,

including the SAC, recommended thedevelopment of a new strategy in theVolunteer Action Plan which targets therecruitment, training and recognition ofSanctuary volunteers.

Response: NOAA agrees with thiscomment and the management plan hasbeen revised accordingly.

Volunteer CoordinatorComment: Some reviewers expressed

concern that the Sanctuary’s VolunteerCoordinator is not a full-time NOAAemployee and recommended that this bechanged. Others stated their satisfactionwith the Nature Conservancy’s role inthe volunteer program because of itsstability and broad geographicinfluence.

Response: The Sanctuary’s VolunteerCoordinator continues to effectivelyadminister and oversee the Sanctuary’sVolunteer Program. In the future, NOAAwill consider whether it is eithernecessary or appropriate to modify theVolunteer Coordinator’s role or position.

Water Quality Action Plan

Support the Water Quality Action PlanComment: Many reviewers of the draft

management plan and EnvironmentalImpact Statement commented on theissue of water quality within theSanctuary. There was almost unanimousagreement that deteriorating waterquality is the major threat to the healthof Sanctuary resources and mostsupported actions to correct theproblems. Many reviewers specificallyexpressed support for the Water QualityAction Plan (WQAP).

Response: NOAA agrees that themajor threat to the health of the FloridaKeys coral reef ecosystem isdeteriorating water quality. TheFKNMSPA directed EPA, incoordination with the State of Floridaand NOAA, to develop a Water QualityProtection Program (WQPP) for theSanctuary. This was the firstCongressionally mandated WaterQuality Protection Program for aNational Marine Sanctuary and wasestablished to take corrective actions torestore water quality in the Sanctuary.The Water Quality Action Plan reflectsstrategies developed under the WaterQuality Protection Program.

Water Quality Is an Issue Broader Thanthe Sanctuary

Comment: Although the majority ofthe reviewers recognized thatdeteriorating water quality was themajor threat to marine resources, thesource or cause of problems wasquestioned. Many claimed the problemsoriginate outside Sanctuary boundariesin the upper portions of Florida Bay, orcome as a result of poor watermanagement practices in south Florida.Reviewers stated that the problem isoutside the FKNMS boundary, thus, theSanctuary does not have the authority to


address these significant water qualityissues.

Response: Some of the water qualityproblems in the Florida Keys occuroutside and upstream of the Sanctuary’sboundary. Deteriorating water quality inFlorida Bay is largely a result of watermanagement practices in south Floridaas has been documented by scientists.Other scientists point to possiblesources of nutrients and pollutants thatenter Florida Bay through theEverglades drainage. The Florida Keysare at the end of the south Floridaecosystem and are the recipient ofdegraded water quality that originatesupstream. While EPA, the State ofFlorida and other agencies will continueto address the land-based sources ofpollution and water quality in theSanctuary, particularly through theWater Quality Steering Committee andthe South Florida Ecosystem TaskForce, NOAA has an appropriatesupplementary role in these efforts.

Water Quality Problems in NearshoreWaters

Comment: Some reviewers stated thatthere are no water quality problems inthe Florida Keys. Other reviewers citedthe poor wastewater treatment practicesin the Florida Keys, such as septictanks, injection wells, and cess pits, asthe main source of water qualitydegradation in the Sanctuary. Stormwater runoff was also viewed to as acontributing factor to poor waterquality. Some reviewers cited thefindings from a recently released Statehearing officer’s report.

Response: NOAA disagrees with theimplication that there is not a waterquality problem in the Florida Keys.Scientists have documented the declineof water quality in the nearshore watersof the Florida Keys. This deterioration iscaused by a variety of sources includingexcessive nutrients entering thenearshore waters because of inadequatesewage treatment practices andproblems related to storm water runoff.The findings of a State Hearing Officerswere that the nearshore waters of theFlorida Keys have exceeded theircarrying capacity and are in danger ofcollapsing. In addition, the reportidentified nutrients originating frominadequate treatment facilities as theprimary cause of nearshore waterquality degradation in the Florida Keys.

The WQPP was established to takecorrective actions to restore waterquality in the Sanctuary. This must beaccomplished at the same time as, orprior to, the restoration of water qualityupstream in Florida Bay in order to besuccessful. Improvement of waterquality in the FKNMS will not be

successful if only the upstream ornearshore portion of the ecosystem isrestored. All parts of the ecosystem, allthe way to the coral reefs, must berestored and relieved of increasinghuman impacts.

ImplementationComment: Some reviewers stressed

that the implementation of the waterquality action plan should supersedethe implementation of other actionplans such as zoning. They emphasizedcleaning up the water quality problemsbefore continuing with othermanagement actions. Other reviewersstressed the importance of addressingthe deteriorating water quality issue inthe Sanctuary, but advocatedimplementation of a variety ofmanagement programs, including thosethat protect Sanctuary resources fromcontinued degradation. In addition,some reviewers supported a plan withdirect action strategies to correct waterquality problems.

Response: NOAA agrees that themajor issue affecting the health of theFlorida Keys coral reef ecosystem isdeteriorating water quality.Implementation of the WQAP and theWQPP for the FKNMS will lead toimprovement of the water quality in theSanctuary. Currently, some of thecorrective actions identified in theWQPP are being implemented bothwithin the boundaries of the Sanctuaryand upstream in the South Floridaecosystem. These on-going activitieswill have a net positive benefit toSanctuary resources.

However, NOAA disagrees that allother management actions should bedeferred until the implementation of theWQPP and the WQAP for the FKNMS.Many of the management actionsnecessary to halt the decline of waterquality in the Florida Keys will takeyears to implement, and the physicalstresses and impacts currently placed onSanctuary resources from other sourcescould be lessened with managementactions such as mooring buoys toprevent anchor damage, channelmarkers to mark boating routes throughsensitive habitats, and outreachprograms to educate users about theresources of the Florida Keys.

Mosquito SprayingComment: Several reviewers

expressed concern about NOAA’s rolein addressing current mosquito controlpractices in Monroe County.

Response: Representatives fromFKNMS and Monroe County will worktogether through the Water QualityProtection Program to refine aerialmosquito spraying based on research

findings. This action will reduce threatsto marine resources which may resultfrom mosquito spraying over the near-shore waters of the Florida Keys.

Zoning Action Plan

The Term Replenishment Reserve

Comment: Some reviewers expressedthat the term Replenishment Reserve isconfusing because it implies that theseareas are for fisheries replenishment.

Response: NOAA has changed thename Replenishment Reserve toEcological Reserve (ER). EcologicalReserve more accurately represents thepurpose of this zone, that is, to restorenatural ecosystem dynamics andhabitat, by setting aside a portion of thecoral reef environment (includingseagrass beds, hardbottom, rubblehabitat, patch reefs and sand areas) thatis protected from all forms of‘‘harvesting’’.

Establishment of Zones

Comment: Many commented on theZoning Action Plan and proposedregulations regarding SanctuaryPreservation Areas, WildlifeManagement Areas, Special-use Areas,and Ecological (formerlyReplenishment) Reserves. Somerecommended deleting all marinezoning; others recommended the zonedareas be expanded; while still otherssupported the zoning concept butrecommended delay in implementationuntil there was more detailed scientificresearch and economic impact analysisof certain proposed zones. Somereviewers recommended zoned areas beclosed to all human uses, except for boattransit. Many reviewers supported theproposed Zoning Action Plan including,in some instances, an increase in theamount of area proposed as EcologicalReserves.

As regards the Key Largo ER, somereviewers suggested that because of theexisting protection afforded by the JohnPennekamp Coral Reef State Park andthe existing Key Largo National MarineSanctuary, that the Key Largo ER wouldnot provide significant additionalprotection for the area and should,therefore, be eliminated. A number ofreviewers suggested that if noteliminated, the boundaries of the KeyLargo ER should be shifted to the south.Several reviewers suggested that theelimination of the Key Largo ER beaccompanied by an increase in the sizeof the Carysfort SPA to protectadditional patch reef and coral habitat.Other reviewers suggested that theboundaries of the Dry Tortugas ER bereconfigured to minimize impacts onfishers. In addition, a number of


reviewers suggested reconfiguring theDry Tortugas ER to encompass more ofthe reef community as opposed to low-profile, barren habitat, but not reducingits overall size. A number of reviewersalso expressed concerns aboutcommercial fishing displacement as aresult of establishment of the WesternSambos ER.

Comments from some representativesof the recreational and commercialfishing industries and some individualsrecommended elimination of all or someSPAs and ERs. These reviewers citedunreasonable burdens and negativeeconomic impacts resulting from theclosures, primarily due to displacementfrom closed areas. Examples of the usesmost commonly cited as likely to bedisplaced are baitfishing, shrimping,and lobster trapping. Somerecommended that bait fishing andcatch and release trolling be allowed,while others were opposed to all fishingin SPAs.

The State of Florida Marine FisheriesCommission generally supported theproposed zoning, but recommended theelimination of the Key Largo ER andsuggested making provisions to allowcertain baitfish harvest. Other State andFederal agencies supported theproposed zoning and one recommendedestablishing an additionalreplenishment zone in the back countryof the Keys. Other reviewers supportedthe Zoning Action Plan as proposed orrecommended additional areas forinclusion.

The SAC recommended that themanagement plan: (1) Keep theproposed Special Preservation Areas asconfigured with provisions to allow baitfishing and catch and release trolling inselected SPAs; (2) keep the research-only areas; and (3) keep the WesternSambos ER but eliminate the proposedKey Largo ER; and reconfigure the DryTortugas ER.

Response: NOAA developed theEcological Reserves to protect some ofthe most significant habitat, but in amanner to avoid or minimize impacts tofishers and other users. In the DMP/EIS,NOAA proposed boundaries based ondistribution of the most significant coralhabitats and spur and grooveconfigurations and a user surveyidentifying where fishing, diving andother uses occur. NOAA also used mapsprovided by the SAC members thatindicated specific information about theresources and uses of the marineresources. The goal was to include themost coral reef communities in amanner which avoids or minimizeseconomic impact to users, particularlyfisherman. NOAA has modified the finalregulations and management plan to

reflect several of the recommendationsmade in the comments. Consistent withrecommendations from the SAC andothers, and upon careful weighing theenvironmental and socio-economicimpacts, NOAA has retained theWestern Sambos ER but revised itsZoning Plan to eliminate the Key Largoand defer the Dry Tortugas EcologicalReserves, add the Eastern SambosResearch-only Special-use Area andslightly expand the Carysfort SPA toinclude additional intermediate reef,back reef, and patch reef areas. Inweighing the socio-economic impactson commercial and recreational usersagainst the additional benefit of the KeyLargo ER, NOAA eliminated thatReserve from the final plan andregulations. The resource protectionprovided by the existing protected areas,John Pennekamp Coral Reef State Park,Key Largo National Marine Sanctuary,and Biscayne National Park contributedto this decision. NOAA has, however,enlarged the SPA at Carysfort Reef toprotect additional patch reef and coralhabitat.

Public comment also identifiedserious adverse economic impactswhich would result fromimplementation of the no-takeregulations within the proposedboundary of the Dry Tortugas ER.Recommendations suggestedreconfiguring the boundary of thatReserve to minimize such impacts.Others recommended the Dry TortugasER be reconfigured to include additionalreef communities. Consequently, NOAAdid not set forth a boundary orregulations for the Dry Tortugas ER.Rather, NOAA will continue the processfor establishing a proposed finalboundary of the Dry Tortugas ER incoordination with the National ParkService, fishing representatives,scientists, and others to identify anappropriate final boundary for theReserve, which may include portions ofthe Dry Tortugas National Park. NOAAand the National Park Service will usethe information gathered as part of thepublic review of the draft managementplan, and hold workshops with users,agency representatives, environmentalorganizations, scientists, and the public.Prior to making a final decision, theproposed final boundary of the DryTortugas ER will be published for publiccomment.

In summary, public commentsindicated that the impacts on fishersfrom the proposed ReplenishmentReserves were greater than consideredin the DMP/EIS. As a result, the finalregulations designate the WesternSambos area as an ER. The Key Largoand Dry Tortugas areas were not made

ERs in order to minimize adverseimpacts to fishers. An area of the DryTortugas with a boundary with less ofan adverse impact on fishers will beproposed to be designated at a laterdate.

Bait FishingComment: Some reviewers

recommended allowing baitfishing inSPAs and ERs or reducing the numberor size of SPAs to lessen the impact onbaitfishing.

Response: NOAA has revised themanagement plan to provide for theissuance of permits for limited baitfishing in SPAs rather than reduce thenumber of SPAs. NOAA will issuepermits for catching ballyhoo for bait bynet.

Catch and Release TrollingComment: Some reviewers

recommended allowing catch andrelease trolling in SPAs and ERs orreducing the number or size of SPAs tolessen the impact on this activity.

Response: Catch and release fishingwill continue to be allowed throughoutgreater than 98 percent of the Sanctuary.In addition, NOAA has modified themanagement plan and regulations toallow catch and release trolling in fourof the eighteen SPAs: Conch Reef,Alligator Reef, Sombrero Key, and SandKey. This will facilitate multiple usesand allow for comparisons to be madebetween SPAs, therefore determiningthe impact of catch and release trolling.

Snorkeling/Diving AccessComment: Some reviewers expressed

concern about the lack of restrictions ondivers and snorkelers in the zones,asserting they harm coral and otherSanctuary resources, while otherscommented that there should be noaccess at all to any zones where accessis restricted to any one group.

Response: NOAA does not agree thatall zones should be entirely closed topublic access. Non-consumptive use ofSPAs and ERs is compatible with thepurposes for which they wereestablished. Consumptive activities(e.g., spearfishing, fish collecting, shellcollecting, lobstering) are prohibited inSPAs and ERs. Non-consumptiveactivities (e.g., diving, snorkeling) arenot expressly prohibited, howeverregulations prohibit consumptiveactivities such as spearfishing, andprohibit physical impacts to corals andcoral reef habitat by prohibiting contact(e.g., touching and standing). Snorkelingand diving will be allowed in theResearch-only Special-use Areas only bypermit. By being closed to snorkelingand diving, these areas may then be


compared to SPAs and ERs to examinediver impacts.

Support the Zoning PlanComment: NOAA received a number

of comments generally supporting theZoning Action Plan as proposed orrequesting a larger proportion of zonedareas.

Response: The zoning plan is the firstattempt at large scale marine zoning inthe USA. Five years after the zones areimplemented, NOAA will lead a team toevaluate the effectiveness of zoning inecosystem protection. At that time thezones will be re-evaluated and may bemodified as necessary and/orappropriate.

Zoning Is Too Overbearing or Will LimitWork/Play

Comment: A number of reviewersexpressed concern that the zoningscheme is too restrictive and willunduly limit their ability to conductrecreational and commercial activities.

Response: NOAA does not agree thatthe Zoning Action Plan overly restrictstraditional uses of the resources. Thearea encompassed by the zones,including a Dry Tortugas ER, aboundary for which will be proposed inthe future, will comprise no more thanfive percent of the Sanctuary. Moreover,non-consumptive uses (e.g., diving,snorkeling) will not be prohibited in allzones. Consumptive uses (e.g.,commercial and sport fishing) will berestricted in SPAs and ERs and someSpecial-use Areas. However, based onaerial surveys and visitor use data,approximately 94 percent of therecreational fishers fish outside thesezones on a regular basis. Commercialfishers agreed early in the planningprocess that they do not rely on SPAsas areas to conduct their activities. Theimpact of ERs has been raised as aconcern because of the perceiveddisplacement of commercial activities(e.g., fishers). The ERs have been re-designed to minimize impacts to suchactivities through a process that reliedon input from commercial fishers. Thisinput, in part, led NOAA to eliminatethe Key Largo ER, and postpone theestablishment of a Dry Tortugas ER.

Sanctuary Preservation Areas andEcological Reserves

Comment: Some reviewers expressedopposition to all SPAs and ERs.

Response: The purpose of a SPA is toprotect a heavily used area of the marineenvironment (e.g., coral reefs) whereconflicts often occur between usergroups. These areas are critical forprotecting the coral reefs andbiodiversity of the FKNMS. The purpose

of an ER is to minimize humaninfluences, to provide natural spawning,nursery, and permanent residence areasfor the replenishment and geneticprotection of marine life, and to protectand preserve natural assemblages ofhabitats and species, and restore naturalecosystem dynamics. The FKNMSPAdirected NOAA to consider temporaland geographic zoning. Zoning is aproven tool for marine conservation andis consistent with NOAA’s mandate toaccommodate multiple, compatible usesby providing long-term benefits to allconsumptive and non-consumptiveusers through increased biodiversity.

Ecological Reserves are Redundant WithFisheries Management

Comment: Eliminate all ERs becausethey are redundant with traditionalfisheries management.

Response: NOAA does not agree.Zoning in the FKNMS is for habitatprotection and to preserve biodiversity,not for fisheries management.Traditional fisheries managementfocuses on managing stocks of a smallnumber of the over 6000 speciesreported in the FKNMS. The primarypurpose of an ER is to protect a portionof the coral reef environment (includingseagrass beds, hardbottom, rubblehabitats, patch reefs and sand areas)from all forms of harvesting in order torestore natural ecosystem dynamics.

The establishment of no-take areas inspecific portions of the coral reef tractshould lead to replenishment of reefinhabitants that are currently being lost,or whose balance in the ecosystem hasbeen altered. Moreover, with respect tofish stocks, some fisheries scientistssuggest that ERs provide ancillarybenefits to fisheries, similar to ‘‘harvestrefugia’’ and other protected fisheriesareas. The ERs are an important tool foreffective ecosystem management in theFKNMS. NOAA will monitor theeffectiveness of zoning in ecosystemprotection and consider modificationsas necessary and reasonablyappropriate.

A Monitoring Program Is Needed ToDetermine the Viability of Zoning

Comment: A number of reviewersrecommended the establishment of amonitoring program to assess theviability of the zoning scheme.

Response: The Zoning Action Planprovides for the establishment of a five-year monitoring program to assess theeffectiveness of zoning in the Sanctuary.

Western Sambos Ecological ReserveComment: A number of reviewers

expressed concerns about commercialfishing displacement as a result of

establishment of the Western SambosER.

Response: NOAA believes there willbe some displacement of fishermen, butthat the long-term environmentalbenefits will far outweigh short-termeconomic losses. The ecological value ofprotecting the area does not warranteliminating or modifying the boundaryof the ER.

Establishment of a Back Country ERand/or an Alligator Reef ER

Comment: Several reviewersrecommended the establishment of anER in the Back Country and/or AlligatorReef. The State of Florida recommendedthe establishment of a Back Country ER.

Response: A full ecosystemrepresentation in a comprehensivezoning plan should include BackCountry marine habitats. However,given the priorities established in theZoning Action Plan, this cannot beaccomplished in the short-term, but willbe considered for future implementationin the five year review cycle.

Jewfish and Steamboat Creek WildlifeManagement Areas

Comment: Some reviewers indicatedthat fishers and others regularly transitthrough Jewfish Creek and SteamboatCreek and raised concern over theproposed designation of no-accessbuffers in the Crocodile Lake WildlifeManagement Area.

Response: NOAA agrees. There wasno intent to prohibit the use of this areafor transit. Thus, consistent withexisting US Fish and Wildlife Serviceregulations, the no-access designationwas removed from the finalmanagement plan and regulations.

Crocodile Lake Wildlife ManagementArea

Comment: Some reviewers indicatedthat the Crocodile Lake WildlifeManagement Area no-access restrictionwas too limiting.

Response: NOAA agrees and, uponconsultation with the US Fish andWildlife Service and the Florida Gameand Freshwater Fish Commission,changed the designation of CrocodileLake Wildlife Management Area to a no-access buffer zone (100 feet) along theshoreline between the dates March 1and October 1.

Pelican Shoal Research-Only Special-Use Area

Comment: Many reviewers requestedthat Pelican Shoal be kept open topublic access. The Department of theInterior requested that a 50 meter bufferbe established during Roseate Ternnesting season.


Response: NOAA agrees and haseliminated Pelican Shoal as a Research-only Special-use Area. It has beenreplaced with the Eastern SambosResearch-only Special-use Area. Thenew area will provide a better researchand monitoring site, whilesimultaneously lessening impact on thepublic from limiting access to the reefaround Pelican Shoal. However, inorder to complement the State’sseasonal closure of the land area, NOAAhas designated a no-access 50 meterbuffer as a Wildlife Management Areaaround Pelican Shoal between April 1and August 31. These dates coincidewith those established by the FloridaGame and Freshwater Fish Commissionfor the protection of nesting terns.

Research Only Areas

Comment: Many comments supportedthe establishment of research-onlyzones.

Response: NOAA agrees that somezones should be used to determine theimpacts of specific activities, such asdiving and fishing. The finalmanagement plan and regulationsestablish four Research-only Special-useAreas. Pelican Shoal was eliminated asa Research-only Special-use Area and aResearch-only Special-use Areasurrounding the forereef habitat atEastern Sambos has been added in itsplace. The Eastern Sambos area willserve as a control to determine theimpacts of specific activities such asdiving, snorkeling and fishing.Furthermore, Eastern Sambos, which islocated in an area of good water quality,can be compared with the TennesseeReef Research-only Special-use Area,located in an area of poor water quality.The impacts associated with waterquality as compared to those fromhuman uses can also be determinedfrom research and monitoring at thesesites.

V. Miscellaneous RulemakingRequirements

National Marine Sanctuaries Act

Section 304 of the NMSA requires theSecretary to submit to the Committee onResources of the House ofRepresentatives and the Committee onCommerce, Science, and Transportationof the Senate, on the same day as thisnotice is published, the final terms ofthe designation, the final regulations, aFEIS, and a FMP detailing the finalgoals and objectives, managementresponsibilities, research activities,interpretive and educational programs,and enforcement and surveillanceactivities, for the area. In accordancewith Section 304, the required

documents are being submitted to thespecified Congressional Committees.

Executive Order 12866Under Executive Order 12866, if a

regulatory action is significant asdefined in section (3)(f ) of the Order, anassessment of the potential costs andbenefits of the action must be preparedand submitted to the Office ofInformation and Regulatory Affairs(OIRA) of OMB. The Administrator ofNOAA has determined that althoughthis regulatory action is not expected to‘‘have an annual effect on the economyof $100 million or more,’’ or otherwisemeet the definition of a significantregulation under section 3(f) (1), (2), or(3), it is significant under section 3(f) (4)in that certain controversial andinnovative aspects of the regulationsmay ‘‘[r]aise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in [the] Executive Order.’’

Therefore, NOAA’s assessment of thepotential socio-economic impacts onvarious user groups in theenvironmental impact statement hasbeen designed to also satisfy theRegulatory Impact Review (RIR)requirements of Executive Order 12866.The assessment is contained in threesections of the FMP/EIS:

(1) Volume III, Appendix M,Assessment of the Potential Costs andBenefits of the Final Management PlanRegulations.

This appendix constitutes the primarycomponent of both the RIR and NOAA’sFEIS. Appendix M reviews the problemsand policy objectives prompting theregulatory proposals and evaluates themajor alternatives that were considered.It demonstrates that NOAAsystematically and comprehensivelyconsidered all available alternatives inorder to ensure that the public welfarewould be enhanced in the most efficientand cost effective way possible.

(2) Volume II, pp. 175–96, TheSocioeconomic Impacts of ManagementAlternatives.

This section is the socio-economicimpact analysis of the final plan andsupplements Appendix M.

(3) Volume I, pp 9–40, The PreferredAlternative/Management Plan.

This section is the heart of the EISand describes the process and reasoningof selecting the preferred alternativeupon consideration of public commentson the FMP/EIS and balancing the goalsand requirements of the NMSA andNEPA. It provides a narrativeexplanation of the way in whichresource protection and the publicwelfare were considered together inbuilding the FMP.

NOAA’s socioeconomic assessmentplaces special emphasis on the marinezones established by the regulations,and the conduct of activities in thosezones. Particular attention is paid to theERs and SPAs, since the concept of no-take zones or reserves is the mostinnovative and controversial element ofthe management plan and regulations,and has aroused significant publicinterest and debate. NOAA hasconcluded that these regulations willhave broad benefits to most users of theFlorida Keys, especially the touristindustry which is very significant froma local and State perspective. Nosignificant adverse socioeconomicimpacts are anticipated to non-consumptive users. Amongconsumptive users, most will not beaffected greatly by the marine zoningregulations but a small percentage willundergo some costs from displacementfrom no-take areas. These costs areexpected to be offset with time as betterhabitat protection and protection ofbiodiversity within the zones improvesthe ecological health of the area.

Other regulations which receivedconsiderable public scrutiny includethose affecting the operation of vessels,particularly personal watercraft (PWC)(e.g., jet-skis); and to a lesser extent theSCR permit system regulation ofcommercial treasure salvage. NOAA’sapproach to the PWC issue was multi-pronged and resulted in regulations thatapply to PWC as well as other vessels,and non-regulatory managementstrategies which specifically apply toPWC. NOAA took public input intoaccount, as in its approach to all theregulations. The final preferredalternative attempts to address userconflicts and environmental concernsby avoiding regulatory impacts as muchas possible consistent with the majorobjectives of the Sanctuary. The processis described in Vol. 1, pp. 16–17, inAppendix L (Comments Received on theDMP/EIS and NOAA’s Response), andin Appendix M.

NOAA also considered publiccomments, particularly those from thecommercial treasure salvagecommunity, in revising the SCR permitsystem to make it more pragmatic fromthe perspective of commercial salvorswhile maintaining the primary objectiveof protecting the submerged culturalresources. (See Vol. 1, pp. 20–24, andthe relevant sections in Appendix L andAppendix M.)

NOAA’s preferred alternative in theFMP for zoning, PWC, the SCR permitsystem and other issues has takenpublic comment into full account andrepresents a considerable alterationfrom the draft plan so as to disrupt users


as little as possible, withoutcompromising the objectives of theSanctuary.

Regulatory Flexibility Act

As indicated in the FMP/EIS, and theresponse to comments, the proposedSanctuary regulations have been revisedin careful consideration of the impactsto the environment includingsocioeconomic impacts on Sanctuaryusers, the large majority of which aresmall business entities. Representativesof the user groups, including the smallentities were identified in the earlieststages of program development andhave participated throughout the publicprocess. Small entities were representedon the SAC, including fishing entities,vessel-charter operators, recreation-tourism industry and commercialtreasure salvors.

The FMP/EIS sets forth the extensivepublic process which includedparticipation from the small entitiesoperating in the Sanctuary at SACdeliberations, as well as numerousSanctuary user group workshops andother public meetings. The economicimpacts to the Sanctuary user groups,which are almost entirely small entities,were considered throughout the publicprocess of plan-rule development. Theimpacts on small entities which use theSanctuary were considered as part of thedelicate balancing of protectingresources, and facilitating compatiblemultiple use of the Sanctuary in amanner which ensures a sustainable useof the Sanctuary for present and futuregenerations. The socioeconomicassessment briefly summarized theimpacts on users from variousmanagement strategy alternatives. Over6,000 public comments were receivedon the DEIS/MP and the proposedregulations. In addition to commentsfrom the aforementioned small entities,thousands of comments were receivedfrom individuals working in the PWCindustry. Some representatives of thefishing industry criticized the DEISsocioeconomic assessment of the zoningscheme.

In developing the final managementplan and regulations, the SAC’srecommendations and the publiccomments were fully considered.

The final regulations specificallyallow all activities to be conducted inthe Sanctuary other than those activitiesthat are specifically prohibited by theregulations or by other applicableregulations and laws. Many of theactivities that these regulations prohibitare already prohibited by the terms ofthe FKNMSPA, as well as by other Stateand Federal laws and regulations.

The regulatory procedures forrequesting certifications for pre-existingleases, licenses, permits, approvals,other authorizations or rightsauthorizing the conduct of a prohibitedactivity or an activity that would beprohibited, and for notifying NOAA ofapplications for leases, licenses,permits, approvals, or otherauthorizations to conduct a prohibitedactivity or an activity that would beprohibited will all act to lessen anyadverse economic effects on smallentities.

Because the Assistant GeneralCounsel for Legislation and Regulationof the Department of Commercecertified to the Chief Counsel forAdvocacy of the Small BusinessAdministration that the proposedregulations, if adopted, would not havea significant economic impact on asubstantial number of small entities, anInitial Regulatory Flexibility Analysis(IRFA) was not prepared. Nevertheless,because the final regulations will affecta substantial number of small entities,although not in an economicallysignificant way, and particularlybecause some representatives of thesmall entity fishing industry criticizedthe DEIS socioeconomic assessment ofthe zoning scheme, a Final RegulatoryFlexibility Analysis (FRFA) wasprepared that fully complies with therequirements of Regulatory FlexibilityAct. Those requirements are found insection 604 of Title 5, United StatesCode.

Section 604(a)(1) requires that theFRFA contain a succinct statement ofthe need for, and objectives of, the rule.The FKNMSPA mandated thedevelopment of a FMP andimplementing regulations in order toprotect and manage Sanctuary resourcesin manner which facilitates multiple useof the Sanctuary which are compatiblewith the primary objective of resourceprotection. The FMP/EIS and responsesto comments provide more specificdetails on the need for, and objectivesof, particular rules.

Section 604(a)(2) requires a summaryof the significant issues raised by thepublic comments in response to theIRFA, a summary of the assessment ofthe agency of such issues, and astatement of any changes made in theproposed rule as a result of suchcomments. While an IRFA was notprepared, small business entities,including fisherman, charter boatoperators, commercial treasure salvorsand tourist related industries didcomment on the draft regulations.NOAA’s response to the comments is setforth above, and is further explained in

summary form in the selection of thepreferred alternative.

Section 604(a)(3) requires adescription of, and an estimate of, thenumber of small entities to which therule will apply or an explanation of whyno such estimate is available. The smallbusinesses that directly use theSanctuary and its resources andtherefore will be subject to theSanctuary regulations includefisherman, salvors, commercial treasuresalvors, recreational charter boatoperators, and other tourist relatedoperations. The FRFA sets forth thenumber of small entities that may beaffected by the regulations. The smallentities include: 1,875 fisherpersonswith restricted species licenses, 535licensed for-hire fishing firms, 100 divecharter businesses, 186 marinas, 75 boatrental businesses, 73 seafood dealers, 26marine salvage companies (recentcasulaties), and 8 to 12 commercialtreasure salvage companies (does notinclude individuals who have notincorporated).

Section 604(a)(4) requires that theFRFA contain a description of thereporting, record keeping and othercompliance requirements of the rule,including an estimate of the classes ofsmall entities which will be subject tothe requirement and the type ofprofessional skills necessary forpreparation of the report or record. TheSanctuary regulations require thatpermittees submit status reports foractivities covered by Sanctuary permits.The permitee must submit one or morereports on the status, progress, or resultsof any activity authorized by a permit.The permittee must submit an annualreport which describes all activitiesconducted under the permit and allrevenues derived from such activitiesduring the year and/or the term of thepermit. The reporting requirement forSCR permits may be more rigorous thanthe existing State contracts, but they arenecessary to preserve historical andarchaeological information consistentwith existing Federal historicpreservation laws. The number of smallentities which must comply with thisrequirement depends on the number ofapplicants, and this is expected to beless than 20 applicants per year.

Section 604(a)(5) requires adescription of the steps taken tominimize the significant economicimpact on small entities consistent withthe stated objectives of applicablestatutes, including a statement of thefactual, policy, and legal reasons forselecting the alternative adopted in thefinal rule and why each one of the othersignificant alternatives to the ruleconsidered by the agency which affect


the impact on small entities wasrejected. Nearly every user of theSanctuary is a small entity. Thus, nobroad accommodation for small entitiescould be selected withoutcompromising the resource protectionmandated of the NMSA and theFKNMSPA. However, as indicated inthe comments and responses, theselection of the preferred alternative andthe socio-economic impact analysis,particular regulations were revisedbased on comments from user groupswhich are small business entities tolessen adverse economic impacts onthem where not inconsistent with theobjectives and purposes of theSanctuary. For example, two ERs weredeleted in light of comments of thesocioeconomic impacts on fishermen.The SCR permit regulations wererevised pursuant to comments ofcommercial treasure salvors in order tomake the permit requirements morereasonable, practical and economicallyfeasible from the user’s perspective.

As noted earlier, the final regulationsspecifically allow all activities to beconducted in the Sanctuary other thanthose activities that are specificallyprohibited by the regulations or by otherapplicable regulations and laws. Theprocedures in these regulations forapplying for National Marine Sanctuarypermits to conduct otherwise prohibitedactivities, for requesting certificationsfor pre-existing leases, licenses, permits,approvals, other authorizations or rightsauthorizing the conduct of a prohibitedactivity, and for notifying NOAA ofapplications for leases, licenses,permits, approvals, or otherauthorizations to conduct a prohibitedactivity would all act to lessen anyadverse economic effect on thoseconducting activities small entities. Thefinal regulations, in total, are notexpected to have a significant economicimpact on a substantial number of smallentities. A copy of the FRFA may beobtained upon request (See Addresses).

Paperwork Reduction ActNotwithstanding any other provisions

of the law, no person is required torespond to, nor shall any person besubject to a penalty for failure to complywith a collection-of-information, subjectto the requirements of the PaperworkReduction Act (Pub. L. No. 96–511),unless that collection of informationdisplays a currently valid Office ofManagement and Budget (OMB) controlnumber.

This final rule contains collection ofinformation requirements subject to therequirements of the PaperworkReduction Act. These requirements areas follows: general permits, historical

resource permits, special use permits,notifications, certifications, and appeals.The collection of informationrequirement applies to persons seekingpermits to conduct otherwise prohibitedactivities and is necessary to determinewhether the final activities areconsistent with the management goalsfor the Sanctuary. The collection ofinformation requirement contained inthe final rule has been approved by theOffice of Management and Budget. Thepublic reporting burden per respondentfor the collection of informationcontained in this rule is estimated toaverage 1.5 hours for general permitapplications and reports, 6 hours forhistorical resource and special usepermit applications and reports, 0.5hours for requests for notifications orcertifications of applications, and 0.25hours for appeals. These estimatesinclude the time for reviewinginstructions, searching existing datasources, gathering and maintaining thedata needed, and completing andreviewing the collection of information.Comments from the public on thecollection of information requirement,the burden estimates, and ways ofreducing these burdens are specificallyinvited and should be addressed to theOffice of Information and RegulatoryAffairs, Office of Management andBudget, Washington, D.C. 20503 (Attn:Desk Officer for NOAA); and to RichardRoberts, Room 724, 6010 ExecutiveBoulevard, Rockville, MD 20852.

Executive Order 12612A Federalism Assessment (FA) was

prepared for the proposed designationdocument, draft management plan, andproposed implementing regulations.The FA concluded that all would befully consistent with the principles,criteria, and requirements set forth insections 2 through 5 of Executive Order12612, Federalism Considerations inPolicy Formulation and Implementation(52 FR 41685). Copies of the FA areavailable upon request to the Office ofOcean and Coastal ResourceManagement at the address listed in theaddress section above.

National Environmental Policy ActIn accordance with section 304(a)(2)

of the Act (16 U.S.C. 1434(a)(2)), and theprovisions of the NationalEnvironmental Policy Act of 1969 (42U.S.C. 4321–4370(a)), a draft and finalEIS were prepared for the designationand the regulations. As required bysection 304(a)(2), the EIS’ include theresource assessment report required bysection 303(b)(3) of the Act (16 U.S.C.1433(b)(3)), maps depicting theboundaries of the designated area, and

the existing and potential uses andresources of the area. Copies of the FEISare available upon request to the Officeof Ocean and Coastal ResourceManagement at the address listed in theaddress section above.

Executive Order 12630

This final rule does not have takingsimplications within the meaning ofExecutive Order 12630 because it doesnot appear to have an effect on privateproperty sufficiently severe aseffectively to deny economically viableuse of any distinct legally potentialproperty interest to its owner or to havethe effect of, or result in, a permanentor temporary physical occupation,invasion, or deprivation. While theprohibition on the exploration for,development, production of mineralsand hydrocarbons from the Sanctuarymight have a takings implication if itabrogated an existing lease for OuterContinental Shelf (OCS) tracts withinthe Sanctuary or an approval of anexploration or development andproduction plan, no OCS leases havebeen sold for tracts within the Sanctuaryand no exploration or production anddevelopment plans have been filed orapproved.

Unfunded Mandates Reform Act of 1995

This final rule contains no Federalmandates (under the regulatoryprovisions of Title II of the UnfundedMandates Reform Act of 1995 (UMRA))for State, local, and tribal governmentsor the private sector. Thus, this rule isnot subject to the requirements ofsection 202 and 205 of the UMRA.

List of Subjects in 50 CFR Parts 922,929 and 937

Administrative practice andprocedure, Coastal zone, Education,Environmental protection, Marineresources, natural resources, Penalties,Recreation and recreation areas,Reporting and recordkeepingrequirements, Research.

Dated: January 21, 1997.David Evans,Deputy Assistant Administrator for OceanServices and Coastal Zone Management.

Accordingly, for the reasons set forthabove, 15 CFR part 922 is amended asfollows:

PART 922—NATIONAL MARINESANCTUARY PROGRAMREGULATIONS

1. The authority citation for Part 922continues to read as follows:

Authority: 16 U.S.C. 1431 et seq.

2. Section 922.1 is revised as follows:


§ 922.1 Applicability of regulations.Unless noted otherwise, the

regulations in subparts A, D and E applyto all eleven National MarineSanctuaries for which site-specificregulations appear in subparts F throughP, respectively. Subparts B and C applyto the site evaluation list and to thedesignation of future Sanctuaries.

3. Section 922.3 is amended byrevising the definitions of ‘‘Historicalresource’’, ‘‘National MarineSanctuary’’, and ‘‘Sanctuary quality’’ asfollows:

§ 922.3 Definitions.

* * * * *Historical resource means any

resource possessing historical, cultural,archaeological or paleontologicalsignificance, including sites, contextualinformation, structures, districts, andobjects significantly associated with orrepresentative of earlier people,cultures, maritime heritage, and humanactivities and events. Historicalresources include ‘‘submerged culturalresources’’, and also include ‘‘historicalproperties,’’ as defined in the NationalHistoric Preservation Act, as amended,and its implementing regulations, asamended.* * * * *

Sanctuary quality means any of thoseambient conditions, physical-chemicalcharacteristics and natural processes,the maintenance of which is essential tothe ecological health of the Sanctuary,including, but not limited to, waterquality, sediment quality and airquality.* * * * *

§ 922.3 [Amended]4. In § 922.3, in the first sentence of

the definition of ‘‘Sanctuary resource’’the word ‘‘none-living’’ is revised toread ‘‘non-living’’.

5. In § 922.3, in the first sentence ofthe definition of ‘‘State’’ the word‘‘Samos’’ is revised to read ‘‘Samoa’’.

6. In § 922.3, in the first sentence ofthe definition of ‘‘Take or taking’’ theword ‘‘would’’ is revised to read‘‘wound’’.

7. Section 922.40 is revised to read asfollows:

§ 922.40 Purpose.The purpose of the regulations in this

subpart and in subparts F through P ofthis part is to implement thedesignations of the eleven NationalMarine Sanctuaries for which sitespecific regulations appear in subparts Fthrough P of this part, respectively, byregulating activities affecting them,consistent with their respective terms ofdesignation in order to protect, preserve

and manage and thereby ensure thehealth, integrity and continuedavailability of the conservation,ecological, recreational, research,educational, historical and aestheticresources and qualities of these areas.Additional purposes of the regulationsimplementing the designation of theFlorida Keys National Marine Sanctuaryare found at § 922.160.


§ 922.41 Boundaries.

The boundary for each of the elevenNational Marine Sanctuaries covered bythis part is described in subparts Fthrough P of this part, respectively.


§ 922.42 Allowed Activities.

All activities (e.g., fishing, boating,diving, research, education) may beconducted unless prohibited orotherwise regulated in subparts Fthrough P of this part, subject to anyemergency regulations promulgatedpursuant to §§ 922.44, 922.111(c), or§ 922.165, subject to all prohibitions,regulations, restrictions, and conditionsvalidly imposed by any Federal, State,or local authority of competentjurisdiction, including Federal and Statefishery management authorities, andsubject to the provisions of section 312of the Act. The Assistant Administratormay only directly regulate fishingactivities pursuant to the procedure setforth in section 304(a)(5) of the NMSA.

10. Section 922.43 is revised to readas follows:

§ 922.43 Prohibited or otherwise regulatedactivities.

Subparts F through P of this part setforth site-specific regulations applicableto the activities specified therein.


§ 922.44 Emergency Regulations.

Where necessary to prevent orminimize the destruction of, loss of, orinjury to a Sanctuary resource orquality, or minimize the imminent riskof such destruction, loss, or injury, anyand all such activities are subject toimmediate temporary regulation,including prohibition. The provisions ofthis section do not apply to the CordellBank and Florida Keys National MarineSanctuaries. See §§ 922.111(c) and922.165, respectively, for the authorityto issue emergency regulations withrespect to those sanctuaries.

12. Section 922.45 is amended byrevising paragraph (a) as follows:

§ 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 morethan $ 100,000. Each day of acontinuing violation constitutes aseparate violation.* * * * *

13. Section 922.47 is amended byrevising paragraph (b) as follows:

§ 922.47 Pre-existing authorizations orrights and certifications of pre-existingauthorizations or rights.

* * * * *(b) The prohibitions listed in subparts

F through P of this part do not apply toany activity authorized by a valid lease,permit, license, approval or otherauthorization in existence on theeffective date of Sanctuary designation,or in the case of the Florida KeysNational Marine Sanctuary the effectivedate of the regulations in this subpart P,and issued by any Federal, State or localauthority of competent jurisdiction, orby any valid right of subsistence use oraccess in existence on the effective dateof Sanctuary designation, or in the caseof the Florida Keys National MarineSanctuary the effective date of theregulations in subpart P, provided thatthe holder of such authorization or rightcomplies with certification proceduresand criteria promulgated at the time ofSanctuary designation, or in the case ofthe Florida Keys National MarineSanctuary the effective date of theregulations in subpart P of this part, andwith any terms and conditions on theexercise of such authorization or rightimposed by the Director as a conditionof certification as the Director deemsnecessary to achieve the purposes forwhich the Sanctuary was designated.

14. Section 922.48 is amended byrevising paragraphs (a) and (b) asfollows:

§ 922.48 National Marine Sanctuarypermits—application procedures andissuance criteria.

(a) A person may conduct an activityprohibited by subparts F through O ofthis part if conducted in accordancewith the scope, purpose, terms andconditions of a permit issued under thissection and subparts F through O of thispart. For the Florida Keys NationalMarine Sanctuary, a person mayconduct an activity prohibited bysubpart P if conducted in accordancewith the scope, purpose, terms andconditions of a permit issued under§ 922.166.

(b) Applications for permits toconduct activities otherwise prohibitedby subparts F through O of this part


should be addressed to the Director andsent to the address specified in subpartsF through O of this part. An applicationmust include:* * * * *


§ 922.49 Notification and review ofapplications for leases, licenses, permits,approvals, or other authorizations toconduct a prohibited activity.

(a) A person may conduct an activityprohibited by subparts L through P ofthis part if such activity is specificallyauthorized by any valid Federal, State,or local lease, permit, license, approval,or other authorization issued after theeffective date of Sanctuary designation,or in the case of the Florida KeysNational Marine Sanctuary after theeffective date of the regulations insubpart P of this part, provided that:

(1) The applicant notifies the Director,in writing, of the application for suchauthorization (and of any application foran amendment, renewal, or extension ofsuch authorization) within fifteen (15)days of the date of filing of theapplication or the effective date ofSanctuary designation, or in the case ofthe Florida Keys National MarineSanctuary the effective date of theregulations in subpart P of this part,whichever is later;

(2) The applicant complies with theother provisions of this § 922.49;

(3) The Director notifies the applicantand authorizing agency that he or shedoes not object to issuance of theauthorization (or amendment, renewal,or extension); and

(4) The applicant complies with anyterms and conditions the Director deemsreasonably necessary to protectSanctuary resources and qualities.

(b) Any potential applicant for anauthorization described in paragraph (a)of this section may request the Directorto issue a finding as to whether theactivity for which an application isintended to be made is prohibited bysubparts L through P of this part.

(c) Notification of filings ofapplications should be sent to theDirector, Office of Ocean and CoastalResource Management at the addressspecified in subparts L through P of thispart. A copy of the application mustaccompany the notification.

(d) The Director may requestadditional information from theapplicant as he or she deems reasonablynecessary to determine whether toobject to issuance of an authorizationdescribed in paragraph (a) of thissection, or what terms and conditionsare reasonably necessary to protectSanctuary resources and qualities. The

information requested must be receivedby the Director within 45 days of thepostmark date of the request. TheDirector may seek the views of anypersons on the application.

(e) The Director shall notify, inwriting, the agency to which applicationhas been made of his or her pendingreview of the application and possibleobjection to issuance. Upon completionof review of the application andinformation received with respectthereto, the Director shall notify boththe agency and applicant, in writing,whether he or she has an objection toissuance and what terms and conditionshe or she deems reasonably necessary toprotect Sanctuary resources andqualities, and reasons therefor.

(f) The Director may amend the termsand conditions deemed reasonablynecessary to protect Sanctuary resourcesand qualities whenever additionalinformation becomes available justifyingsuch an amendment.

(g) Any time limit prescribed in orestablished under this § 922.49 may beextended by the Director for good cause.

(h) The applicant may appeal anyobjection by, or terms or conditionsimposed by, the Director to theAssistant Administrator or designee inaccordance with the provisions of§ 922.50.

16. In § 922.50 paragraphs (a)(1) and(a)(1)(iii) are amended by moving ‘‘Lthrough O’’ and adding ‘‘L through P’’.

17. Part 922 is amended by adding anew subpart P immediately followingsubpart O as follows:

Subpart P—Florida Keys National MarineSanctuary

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 issuancecriteria.

Sec. 922.167 Certification of preexistingleases, licenses, permits, approvals, otherauthorizations, or rights to conduct aprohibited activity.

Appendix I to Subpart P of Part 922—FloridaKeys National Marine Sanctuaryboundary coordinates

Appendix II to Subpart P of Part 922—Existing Management Areas boundarycoordinates

Appendix III to Subpart P of Part 922—Wildlife Management Areas accessrestrictions

Appendix IV to Subpart P of Part 922—Ecological Reserves boundarycoordinates

Appendix V to Subpart P of Part 922—Sanctuary Preservation Areas boundarycoordinates

Appendix VI to Subpart P of Part 922—Special-use Areas boundary coordinatesand use designations

Appendix VII to Subpart P of Part 922—Areas To Be Avoided boundarycoordinates

Appendix VIII to Subpart P of Part 922—Marine Life Rule

Subpart P—Florida Keys NationalMarine Sanctuary

§ 922.160 Purpose.The purpose of the regulations in this

part is to implement the comprehensivemanagement plan for the Florida KeysNational Marine Sanctuary by regulatingactivities affecting the resources of theSanctuary or any of the qualities, values,or purposes for which the Sanctuary isdesignated, in order to protect, preserveand manage the conservation,ecological, recreational, research,educational, historical, and aestheticresources and qualities of the area. Inparticular, the regulations in this partare intended to protect, restore, andenhance the living resources of theSanctuary, to contribute to themaintenance of natural assemblages ofliving resources for future generations,to provide places for species dependenton such living resources to survive andpropagate, to facilitate to the extentcompatible with the primary objectiveof resource protection all public andprivate uses of the resources of theSanctuary not prohibited pursuant toother authorities, to reduce conflictsbetween such compatible uses, and toachieve the other policies and purposesof the Florida Keys National MarineSanctuary and Protection Act and theNational Marine Sanctuaries Act.

§ 922.161 Boundary.The Sanctuary consists of all

submerged lands and waters from themean high water mark to the boundarydescribed in Appendix I to this part,with the exception of areas within theDry Tortugas National Park. Appendix Ito this subpart sets forth the preciseSanctuary boundary established by theFlorida Keys National Marine Sanctuaryand Protection Act. (See FKNMSPAsection 5(b)(2)).

§ 922.162 Definitions.(a) The following definitions apply to

the Florida Keys National MarineSanctuary regulations. To the extent thata definition appears in § 922.3 and thissection, the definition in this sectiongoverns.

Acts means the Florida Keys NationalMarine Sanctuary and Protection Act, asamended, (FKNMSPA) (Pub. L. 101–


605), and the National MarineSanctuaries Act (NMSA), also known asTitle III of the Marine Protection,Research, and Sanctuaries Act, asamended, (MPRSA) (16 U.S.C. 1431 etseq.).

Adverse effect means any factor, force,or action that independently orcumulatively damages, diminishes,degrades, impairs, destroys, orotherwise harms any Sanctuaryresource, as defined in section 302(8) ofthe NMSA (16 U.S.C. 1432(8)) and inthis section, or any of the qualities,values, or purposes for which theSanctuary is designated.

Airboat means a vessel operated bymeans of a motor driven propeller thatpushes air for momentum.

Areas To Be Avoided means the areasin which vessel operations areprohibited pursuant to section 6(a)(1) ofthe FKNMSPA (see § 922.164(a)).Appendix VII to this subpart sets forththe geographic coordinates of theseareas, including any modificationsthereto made in accordance with section6(a)(3) of the FKNMSPA.

Closed means all entry or use isprohibited.

Coral means the corals of the ClassHydrozoa (stinging and hydrocorals);the Class Anthozoa, SubclassHexacorallia, Order Scleractinia (stonycorals) and Antipatharia (black corals).

Coral area means marine habitatwhere coral growth abounds includingpatch reefs, outer bank reefs, deepwaterbanks, and hardbottoms.

Coral reefs means the hard bottoms,deep-water banks, patch reefs, and outerbank reefs.

Ecological Reserve means an area ofthe Sanctuary consisting of contiguous,diverse habitats, within which uses aresubject to conditions, restrictions andprohibitions, including accessrestrictions, intended to minimizehuman influences, to provide naturalspawning, nursery, and permanentresidence areas for the replenishmentand genetic protection of marine life,and also to protect and preserve naturalassemblages of habitats and specieswithin areas representing a broaddiversity of resources and habitatsfound within the Sanctuary. AppendixIV to this subpart sets forth thegeographic coordinates of these areas.

Existing Management Area means anarea of the Sanctuary that is within oris a resource management areaestablished by NOAA or by anotherFederal authority of competentjurisdiction as of the effective date ofthese regulations where protectionsabove and beyond those provided bySanctuary-wide prohibitions andrestrictions are needed to adequately

protect resources. Appendix II to thissubpart sets forth the geographiccoordinates of these areas.

Exotic species means a species ofplant, invertebrate, fish, amphibian,reptile or mammal whose naturalzoogeographic range would not haveincluded the waters of the AtlanticOcean, Caribbean, or Gulf of Mexicowithout passive or active introductionto such area through anthropogenicmeans.

Fish means finfish, mollusks,crustaceans, and all forms of marineanimal and plant life other than marinemammals and birds.

Fishing means: (1) The catching,taking, or harvesting of fish; theattempted catching, taking, orharvesting of fish; any other activitywhich can reasonably be expected toresult in the catching, taking, orharvesting of fish; or any operation atsea in support of, or in preparation for,any activity described in thissubparagraph (1).

(2) Such term does not include anyscientific research activity which isconducted by a scientific researchvessel.

Hardbottom means a submergedmarine community comprised oforganisms attached to exposed solidrock substrate. Hardbottom is thesubstrate to which corals may attach butdoes not include the corals themselves.

Idle speed only/no-wake means aspeed at which a boat is operated thatis no greater than 4 knots or does notproduce a wake.

Idle speed only/no-wake zone meansa portion of the Sanctuary where thespeed at which a boat is operated maybe no greater than 4 knots or may notproduce a wake.

Live rock means any living marineorganism or an assemblage thereofattached to a hard substrate, includingdead coral or rock but not individualmollusk shells (e.g., scallops, clams,oysters). Living marine organismsassociated with hard bottoms, banks,reefs, and live rock may include, but arenot limited to: sea anemones (PhylumCnidaria: Class Anthozoa: OrderActinaria); sponges (Phylum Porifera);tube worms (Phylum Annelida),including fan worms, feather dusterworms, and Christmas tree worms;bryozoans (Phylum Bryzoa); sea squirts(Phylum Chordata); and marine algae,including Mermaid’s fan and cups(Udotea spp.), corraline algae, greenfeather, green grape algae (Caulerpaspp.) and watercress (Halimeda spp.).

Marine life species means any speciesof fish, invertebrate, or plant includedin sections (2), (3), or (4) of Rule 46–42.001, Florida Administrative Code,

reprinted in Appendix VIII to thissubpart.

Military activity means an activityconducted by the Department of Defensewith or without participation by foreignforces, other than civil engineering andother civil works projects conducted bythe U.S. Army Corps of Engineers.

No-access buffer zone means aportion of the Sanctuary where vesselsare prohibited from entering regardlessof the method of propulsion.

No motor zone means an area of theSanctuary where the use of internalcombustion motors is prohibited. Avessel with an internal combustionmotor may access a no motor zone onlythrough the use of a push pole, paddle,sail, electric motor or similar means ofoperation but is prohibited from usingit’s internal combustion motor.

Not available for immediate usemeans not readily accessible forimmediate use, e.g., by being stowedunbaited in a cabin, locker, rod holder,or similar storage area, or by beingsecurely covered and lashed to a deckor bulkhead.

Officially marked channel means achannel marked by Federal, State ofFlorida, or Monroe County officials ofcompetent jurisdiction withnavigational aids except for channelsmarked idle speed only/no wake.

Personal watercraft means any jet orair-powered watercraft operated bystanding, sitting, or kneeling on orbehind the vessel, in contrast to aconventional boat, where the operatorstands or sits inside the vessel, and thatuses an inboard engine to power a waterjet pump for propulsion, instead of apropeller as in a conventional boat.

Prop dredging means the use of avessel’s propulsion wash to dredge orotherwise alter the seabed of theSanctuary. Prop dredging includes, butis not limited to, the use of propulsionwash deflectors or similar means ofdredging or otherwise altering theseabed of the Sanctuary. Prop dredgingdoes not include the disturbance tobottom sediments resulting from normalvessel propulsion.

Prop scarring means the injury toseagrasses or other immobile organismsattached to the seabed of the Sanctuarycaused by operation of a vessel in amanner that allows its propeller or otherrunning gear, or any part thereof, tocause such injury (e.g., cutting seagrassrhizomes). Prop scarring does notinclude minor disturbances to bottomsediments or seagrass blades resultingfrom normal vessel propulsion.

Residential shoreline means any man-made or natural:

(1) Shoreline,(2) Canal mouth,


(3) Basin, or(4) Cove adjacent to any residential

land use district, including improvedsubdivision, suburban residential orsuburban residential limited, sparselysettled, urban residential, and urbanresidential mobile home under theMonroe County land developmentregulations.

Sanctuary means the Florida KeysNational Marine Sanctuary.

Sanctuary Preservation Area meansan area of the Sanctuary thatencompasses a discrete, biologicallyimportant area, within which uses aresubject to conditions, restrictions andprohibitions, including accessrestrictions, to avoid concentrations ofuses that could result in significantdeclines in species populations orhabitat, to reduce conflicts betweenuses, to protect areas that are critical forsustaining important marine species orhabitats, or to provide opportunities forscientific research. Appendix V to thissubpart sets forth the geographiccoordinates of these areas.

Sanctuary wildlife means any speciesof fauna, including avifauna, thatoccupy or utilize the submergedresources of the Sanctuary as nurseryareas, feeding grounds, nesting sites,shelter, or other habitat during anyportion of their life cycles.

Seagrass means any species of marineangiosperms (flowering plants) thatinhabit portions of the seabed in theSanctuary. Those species include, butare not limited to: Thalassia testudinum(turtle grass); Syringodium filiforme(manatee grass); Halodule wrightii(shoal grass); Halophila decipiens, H.engelmannii, H. johnsonii; and Ruppiamaritima.

Special-use Area means an area of theSanctuary set aside for scientificresearch and educational purposes,recovery or restoration of Sanctuaryresources, monitoring, to prevent use oruser conflicts, to facilitate access anduse, or to promote public use andunderstanding of Sanctuary resources.Appendix VI to this part sets forth thegeographic coordinates of these areas.

Tank vessel means any vessel that isconstructed or adapted to carry, or thatcarries, oil or hazardous material in bulkas 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 thejurisdiction of the United States [46U.S.C. 2101].

Traditional fishing means thosecommercial or recreational fishingactivities that were customarilyconducted within the Sanctuary prior to

its designation as identified in theEnvironmental Impact Statement andManagement Plan for this Sanctuary.

Tropical fish means any speciesincluded in section (2) of Rule 46–42.001, Florida Administrative Code,reproduced in Appendix VIII to thissubpart, or any part thereof.

Vessel means a watercraft of anydescription, including, but not limitedto, motorized and non-motorizedwatercraft, personal watercraft, airboats,and float planes while maneuvering onthe water, capable of being used as ameans of transportation in/on the watersof the Sanctuary. For purposes of thispart, the terms ‘‘vessel,’’ ‘‘watercraft,’’and ‘‘boat’’ have the same meaning.

Wildlife Management Area means anarea of the Sanctuary established for themanagement, protection, andpreservation of Sanctuary wildliferesources, including such an areaestablished for the protection andpreservation of endangered orthreatened species or their habitats,within which access is restricted tominimize disturbances to Sanctuarywildlife; to ensure protection andpreservation consistent with theSanctuary designation and otherapplicable law governing the protectionand preservation of wildlife resources inthe Sanctuary. Appendix III to thissubpart lists these areas and their accessrestrictions.

(b) Other terms appearing in theregulations in this part are defined at 15CFR 922.3, and/or in the MarineProtection, Research, and SanctuariesAct (MPRSA), as amended, 33 U.S.C.1401 et seq. and 16 U.S.C. 1431 et seq.

§ 922.163 Prohibited activities—Sanctuary-wide.

(a) Except as specified in paragraph(b) through (e) of this section, thefollowing activities are prohibited andthus are unlawful for any person toconduct or to cause to be conducted:

(1) Mineral and hydrocarbonexploration, development andproduction. Exploring for, developing,or producing minerals or hydrocarbonswithin the Sanctuary.

(2) Removal of, injury to, orpossession of coral or live rock. (i)Moving, removing, taking, harvesting,damaging, disturbing, breaking, cutting,or otherwise injuring, or possessing(regardless of where taken from) anyliving or dead coral, or coral formation,or attempting any of these activities,except as permitted under 50 CFR part638.

(ii) Harvesting, or attempting toharvest, any live rock from theSanctuary, or possessing (regardless ofwhere taken from) any live rock within

the Sanctuary, except as authorized bya permit for the possession or harvestfrom aquaculture operations in theExclusive Economic Zone, issued by theNational Marine Fisheries Servicepursuant to applicable regulationsunder the appropriate FisheryManagement Plan, or as authorized bythe applicable State authority ofcompetent jurisdiction within theSanctuary for live rock cultured on Statesubmerged lands leased from the Stateof Florida, pursuant to applicable Statelaw. See § 370.027, Florida Statutes andimplementing regulations.

(3) Alteration of, or construction on,the seabed. Drilling into, dredging, orotherwise altering the seabed of theSanctuary, or engaging in prop-dredging; or constructing, placing orabandoning any structure, material, orother matter on the seabed of theSanctuary, except as an incidental resultof:

(i) Anchoring vessels in a manner nototherwise prohibited by this part (see§§ 922.163(a)(5)(ii) and922.164(d)(1)(v));

(ii) Traditional fishing activities nototherwise prohibited by this part;

(iii) Installation and maintenance ofnavigational aids by, or pursuant tovalid authorization by, any Federal,State, or local authority of competentjurisdiction;

(iv) Harbor maintenance in areasnecessarily associated with Federalwater resource development projects inexistence on [insert effect date of theseregulations], including maintenancedredging of entrance channels andrepair, replacement, or rehabilitation ofbreakwaters or jetties;

(v) Construction, repair, replacement,or rehabilitation of docks, seawalls,breakwaters, piers, or marinas with lessthan ten slips authorized by any validlease, permit, license, approval, or otherauthorization issued by any Federal,State, or local authority of competentjurisdiction.

(4) Discharge or deposit of materialsor other matter. (i) Discharging ordepositing, from within the boundary ofthe Sanctuary, any material or othermatter, except:

(A) Fish, fish parts, chummingmaterials, or bait used or producedincidental to and while conducting atraditional fishing activity in theSanctuary;

(B) Biodegradable effluent incidentalto vessel use and generated by a marinesanitation device approved inaccordance with Section 312 of theFederal Water Pollution Control Act, asamended, (FWPCA), 33 U.S.C. 1322 etseq.;


(C) Water generated by routine vesseloperations (e.g., deck wash down andgraywater as defined in section 312 ofthe FWPCA), excluding oily wastes frombilge pumping; or

(D) Cooling water from vessels orengine exhaust;

(ii) Discharging or depositing, frombeyond the boundary of the Sanctuary,any material or other matter thatsubsequently enters the Sanctuary andinjures a Sanctuary resource or quality,except those listed in paragraph(a)(4)(i)(A) through (D) of this sectionand those authorized under MonroeCounty land use permits.

(5) Operation of vessels. (i) Operatinga vessel in such a manner as to strikeor otherwise injure coral, seagrass, orany other immobile organism attachedto the seabed, including, but not limitedto, operating a vessel in such a manneras to cause prop-scarring.

(ii) Having a vessel anchored on livingcoral other than hardbottom in waterdepths less than 40 feet when visibilityis such that the seabed can be seen.

(iii) Except in officially markedchannels, operating a vessel at a speedgreater than 4 knots or in a mannerwhich creates a wake:

(A) Within an area designated idlespeed only/no wake;

(B) Within 100 yards of navigationalaids indicating emergent or shallowreefs (international diamond warningsymbol);

(C) Within 100 feet of the red andwhite ‘‘divers down’’ flag (or the blueand white ‘‘alpha’’ flag in Federalwaters);

(D) Within 100 yards of residentialshorelines; or

(E) Within 100 yards of stationaryvessels.

(iv) Operating a vessel in such amanner as to injure or take wading,roosting, or nesting birds or marinemammals.

(v) Operating a vessel in a mannerwhich endangers life, limb, marineresources, or property.

(6) Conduct of diving/snorkelingwithout flag. Diving or snorkelingwithout flying in a conspicuous mannerthe red and white ‘‘divers down’’ flag(or the blue and white ‘‘alpha’’ flag inFederal waters).

(7) Release of exotic species.Introducing or releasing an exoticspecies of plant, invertebrate, fish,amphibian, or mammals into theSanctuary.

(8) Damage or removal of markers.Marking, defacing, or damaging in anyway or displacing, removing, ortampering with any official signs,notices, or placards, whether temporaryor permanent, or with any navigational

aids, monuments, stakes, posts, mooringbuoys, boundary buoys, trap buoys, orscientific equipment.

(9) Movement of, removal of, injury to,or possession of Sanctuary historicalresources. Moving, removing, injuring,or possessing, or attempting to move,remove, injure, or possess, a Sanctuaryhistorical resource.

(10) Take or possession of protectedwildlife. Taking any marine mammal,sea turtle, or seabird in or above theSanctuary, except as authorized by theMarine Mammal Protection Act, asamended, (MMPA), 16 U.S.C. 1361 etseq., the Endangered Species Act, asamended, (ESA), 16 U.S.C. 1531 et seq.,and the Migratory Bird Treaty Act, asamended, (MBTA) 16 U.S.C. 703 et seq.

(11) Possession or use of explosives orelectrical charges. Possessing, or usingexplosives, except powerheads, orreleasing electrical charges within theSanctuary.

(12) Harvest or possession of marinelife species. Harvesting, possessing, orlanding any marine life species, or partthereof, within the Sanctuary, except inaccordance with rules 46–42.001through 46–42.003, 46–42.0035, and 46–42.004 through 46–42.007, and46.42.009 of the Florida AdministrativeCode, reproduced in Appendix VIII tothis subpart, and such rules shall applymutatis mutandis (with necessaryeditorial changes) to all Federal andState waters within the Sanctuary.

(13) Interference with lawenforcement. Interfering with,obstructing, delaying or preventing aninvestigation, search, seizure, ordisposition of seized property inconnection with enforcement of theActs or any regulation or permit issuedunder the Acts.

(b) Notwithstanding the prohibitionsin this section and in § 922.164, and anyaccess and use restrictions imposedpursuant thereto, a person may conductan activity specifically authorized by,and conducted in accordance with thescope, purpose, terms, and conditionsof, a National Marine Sanctuary permitissued pursuant to § 922.166.

(c) Notwithstanding the prohibitionsin this section and in § 922.164, and anyaccess and use restrictions imposedpursuant thereto, a person may conductan activity specifically authorized by avalid Federal, State, or local lease,permit, license, approval, or otherauthorization in existence on theeffective date of these regulations, or byany valid right of subsistence use oraccess in existence on the effective dateof these regulations, provided that theholder of such authorization or rightcomplies with § 922.167 and with anyterms and conditions on the exercise of

such authorization or right imposed bythe Director as a condition ofcertification as he or she deemsreasonably necessary to achieve thepurposes for which the Sanctuary wasdesignated.

(d) Notwithstanding the prohibitionsin this section and in § 922.164, and anyaccess and use restrictions imposedpursuant thereto, a person may conductan activity specifically authorized byany valid Federal, State, or local lease,permit, license, approval, or otherauthorization issued after the effectivedate of these regulations, provided thatthe applicant complies with § 922.168,the Director notifies the applicant andauthorizing agency that he or she doesnot object to issuance of theauthorization, and the applicantcomplies with any terms and conditionsthe Director deems reasonably necessaryto protect Sanctuary resources andqualities. Amendments, renewals andextensions of authorizations inexistence on the effective date of theseregulations constitute authorizationsissued after the effective date of theseregulations.

(e)(1) All military activities shall becarried out in a manner that avoids tothe maximum extent practical anyadverse impacts on Sanctuary resourcesand qualities. The prohibitions inparagraph (a) of this section and§ 922.164 do not apply to existingclasses of military activities which wereconducted prior to the effective date ofthese regulations, as identified in theEnvironmental Impact Statement andManagement Plan for the Sanctuary.New military activities in the Sanctuaryare allowed and may be exempted fromthe prohibitions in paragraph (a) of thissection and in § 922.164 by the Directorafter consultation between the Directorand the Department of Defense pursuantto section 304(d) of the NMSA. When amilitary activity is modified such that itis likely to destroy, cause the loss of, orinjure a Sanctuary resource or quality ina manner significantly greater than wasconsidered in a previous consultationunder section 304(d) of the NMSA, or itis likely to destroy, cause the loss of, orinjure a Sanctuary resource or qualitynot previously considered in a previousconsultation under section 304(d) of theNMSA, the activity is considered a newactivity for purposes of this paragraph.If it is determined that an activity maybe carried out, such activity shall becarried out in a manner that avoids tothe maximum extent practical anyadverse impact on Sanctuary resourcesand qualities.

(2) In the event of threatened or actualdestruction of, loss of, or injury to aSanctuary resource or quality resulting


from an untoward incident, includingbut not limited to spills and groundingscaused by the Department of Defense,the cognizant component shall promptlycoordinate with the Director for thepurpose of taking appropriate actions toprevent, respond to or mitigate the harmand, if possible, restore or replace theSanctuary resource or quality.

(f) The prohibitions contained inparagraph (a)(5) of this section do notapply to Federal, State and local officerswhile performing enforcement dutiesand/or responding to emergencies thatthreaten life, property, or theenvironment in their official capacity.

(g) Notwithstanding paragraph (b) ofthis section and paragraph (a) of§ 922.168, in no event may the Directorissue a permit under § 922.166authorizing, or otherwise approve, theexploration for, leasing, development, orproduction of minerals or hydrocarbonswithin the Sanctuary, the disposal ofdredged material within the Sanctuaryother than in connection with beachrenourishment or Sanctuary restorationprojects, or the discharge of untreated orprimary treated sewage (except by acertification, pursuant to § 922.167, of avalid authorization in existence on theeffective date of these regulations), andany purported authorizations issued byother authorities after the effective dateof these regulations for any of theseactivities within the Sanctuary shall beinvalid.

§ 922.164 Additional activity regulationsby Sanctuary area.

In addition to the prohibitions setforth in § 922.163, which applythroughout the Sanctuary, the followingregulations apply with respect toactivities conducted within theSanctuary areas described in thissection and in Appendix (II) through(VII) to this subpart. Activities locatedwithin two or more overlappingSanctuary areas are concurrently subjectto the regulations applicable to eachoverlapping area.

(a) Areas To Be Avoided. Operating atank vessel or a vessel greater than 50meters in registered length is prohibitedin all areas to be avoided, except if suchvessel is a public vessel and itsoperation is essential for nationaldefense, law enforcement, or responsesto emergencies that threaten life,property, or the environment. AppendixVII to this subpart sets forth thegeographic coordinates of these areas.

(b) Existing Management Areas.—(1)Key Largo and Looe Key ManagementAreas. The following activities areprohibited within the Key Largo andLooe Key Management Areas (alsoknown as the Key Largo and Looe Key

National Marine Sanctuaries) describedin Appendix II to this subpart:

(i) Removing, taking, damaging,harmfully disturbing, breaking, cutting,spearing or similarly injuring any coralor other marine invertebrate, or anyplant, soil, rock, or other material,except commercial taking of spinylobster and stone crab by trap andrecreational taking of spiny lobster byhand or by hand gear which isconsistent with these regulations andthe applicable regulations implementingthe applicable Fishery ManagementPlan.

(ii) Taking any tropical fish.(iii) Fishing with wire fish traps,

bottom trawls, dredges, fish sleds, orsimilar vessel-towed or anchoredbottom fishing gear or nets.

(iv) Fishing with, carrying orpossessing, except while passingthrough without interruption or for lawenforcement purposes: pole spears, airrifles, bows and arrows, slings,Hawaiian slings, rubber poweredarbaletes, pneumatic and spring-loadedguns or similar devices known asspearguns.

(2) Great White Heron and Key WestNational Wildlife Refuge ManagementAreas. Operating a personal watercraft,operating an airboat, or water skiingexcept 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 26East, Sections 16 and 20, all TallahasseeMeridian, are prohibited within themarine portions of the Great WhiteHeron and Key West National WildlifeRefuge Management Areas described inAppendix II to this subpart:

(c) Wildlife Management Areas. (1)Marine portions of the WildlifeManagement Areas listed in AppendixIII to this subpart or portions thereofmay be designated ‘‘idle speed only/no-wake,’’ ‘‘no-motor’’ or ‘‘no-accessbuffer’’ zones or ‘‘closed’’. The Director,in cooperation with other Federal, State,or local resource managementauthorities, as appropriate, shall postsigns conspicuously, using mountingposts, buoys, or other means accordingto location and purpose, at appropriateintervals and locations, clearlydelineating an area as an ‘‘idle speedonly/no wake’’, a ‘‘no-motor’’, or a ‘‘no-access buffer’’ zone or as ‘‘closed’’, andallowing instant, long-range recognitionby boaters. Such signs shall display theofficial logo of the Sanctuary.

(2) The following activities areprohibited within the marine portions ofthe Wildlife Management Areas listed inAppendix III to this subpart:

(i) In those marine portions of anyWildlife Management Area designated

an ‘‘idle speed only/no wake’’ zone inAppendix III to this subpart, operatinga vessel at a speed greater that idlespeed only/no wake.

(ii) In those marine portions of anyWildlife Management Area designated a‘‘no-motor’’ zone in Appendix III to thissubpart, using internal combustionmotors or engines for any purposes. Avessel with an internal combustionmotor or engine may access a ‘‘no-motor’’ zone only through the use of apush pole, paddle, sail, electric motor orsimilar means of propulsion.

(iii) In those marine portions of anyWildlife Management Area designated a‘‘no-access buffer’’ zone in Appendix IIIof this subpart, entering the area byvessel.

(iv) In those marine portions of anyWildlife Management Area designatedas closed in Appendix III to thissubpart, entering or using the area.

(3) The Director shall coordinate withother Federal, State, or local resourcemanagement authorities, as appropriate,in the establishment and enforcement ofaccess restrictions described inparagraph (c)(2) (i)–(iv) of this section inthe marine portions of WildlifeManagement Areas.

(4) The Director may modify thenumber and location of accessrestrictions described in paragraph (c)(2)(i)–(iv) of this section within the marineportions of a Wildlife Management Areaif the Director finds that such action isreasonably necessary to minimizedisturbances to Sanctuary wildlife, or toensure protection and preservation ofSanctuary wildlife consistent with thepurposes of the Sanctuary designationand other applicable law governing theprotection and preservation of wildliferesources in the Sanctuary. The Directorwill effect such modification by:

(i) Publishing in the Federal Register,after notice and an opportunity forpublic comments in accordance, anamendment to the list of such areas setforth in Appendix III to this subpart,and a notice regarding the time andplace where maps depicting the preciselocations of such restrictions will bemade available for public inspection,and

(ii) Posting official signs delineatingsuch restrictions in accordance withparagraph (c)(1) of this section.

(d) Ecological Reserves and SanctuaryPreservation Areas. (1) The followingactivities are prohibited within theEcological Reserves described inAppendix IV to this subpart, and withinthe Sanctuary Preservation Areas,described in Appendix V to thissubpart:


(i) Discharging or depositing anymaterial or other matter except coolingwater or engine exhaust.

(ii) Possessing, moving, harvesting,removing, taking, damaging, disturbing,breaking, cutting, spearing, or otherwiseinjuring any coral, marine invertebrate,fish, bottom formation, algae, seagrass orother living or dead organism, includingshells, or attempting any of theseactivities. However, fish, invertebrates,and marine plants may be possessedaboard a vessel in an Ecological Reserveor Sanctuary Preservation Area,provided such resources can be shownnot to have been harvested within,removed from, or taken within, theEcological Reserve or SanctuaryPreservation Area, as applicable, bybeing stowed in a cabin, locker, orsimilar storage area prior to entering andduring transit through such reserves orareas.

(iii) Except for catch and releasefishing by trolling in the Conch Reef,Alligator Reef, Sombrero Reef, and SandKey SPAs, fishing by any means.However, gear capable of harvesting fishmay be aboard a vessel in an EcologicalReserve or Sanctuary Preservation Area,provided such gear is not available forimmediate use when entering andduring transit through such EcologicalReserve or Sanctuary Preservation Area,and no presumption of fishing activityshall be drawn therefrom.

(iv) Touching living or dead coral,including but not limited to, standingon a living or dead coral formation.

(v) Placing any anchor in a way thatallows the anchor or any portion of theanchor apparatus (including the anchor,chain or rope) to touch living or deadcoral, or any attached organism. Whenanchoring dive boats, the first diverdown must inspect the anchor to ensurethat it is not touching living or deadcoral, and will not shift in such a wayas to touch such coral or other attachedorganisms. No further diving shall takeplace until the anchor is placed inaccordance with these requirements.

(vi) Anchoring instead of mooringwhen a mooring buoy is available oranchoring in other than a designatedanchoring area when such areas havebeen designated and are available.

(vii) Except for passage withoutinterruption through the area, for lawenforcement purposes, or for purposesof monitoring pursuant to paragraph(d)(2) of this section, violating atemporary access restriction imposed bythe Director pursuant to paragraph (d)(2)of this section.

(2) The Director may temporarilyrestrict access to any portion of anySanctuary Preservation Area orEcological Reserve if the Director, on the

basis of the best available data,information and studies, determinesthat a concentration of use appears to becausing or contributing to significantdegradation of the living resources ofthe area and that such action isreasonably necessary to allow forrecovery of the living resources of sucharea. The Director will provide forcontinuous monitoring of the areaduring the pendency of the restriction.The Director will provide public noticeof the restriction by publishing a noticein the Federal Register, and by suchother means as the Director may deemappropriate. The Director may onlyrestrict access to an area for a period of60 days, with one additional 60 dayrenewal. The Director may restrictaccess to an area for a longer periodpursuant to a notice and opportunity forpublic comment rulemaking under theAdministrative Procedure Act. Suchrestriction will be kept to the minimumamount of area necessary to achieve thepurposes thereof.

(e) Special-use Areas. (1) The Directormay set aside discrete areas of theSanctuary as Special-use Areas, and, bydesignation pursuant to this paragraph,impose the access and use restrictionsspecified in paragraph (e)(3) of thissection. Special-use Areas are describedin Appendix VI to this subpart, inaccordance with the followingdesignations and correspondingobjectives:

(i) ‘‘Recovery area’’ to provide for therecovery of Sanctuary resources fromdegradation or other injury attributableto human uses;

(ii) ‘‘Restoration area’’ to provide forrestoration of degraded or otherwiseinjured Sanctuary resources;

(iii) ‘‘Research-only area’’ to providefor scientific research or educationrelating to protection and management,through the issuance of a SanctuaryGeneral permit for research pursuant to§ 922.166; and

(iv) ‘‘Facilitated-use area’’ to providefor the prevention of use or userconflicts or the facilitation of access anduse, or to promote public use andunderstanding, of Sanctuary resourcesthrough the issuance of special-usepermits.

(2) A Special-use Area shall be nolarger than the size the Director deemsreasonably necessary to accomplish theapplicable objective.

(3) Persons conducting activitieswithin any Special-use Area shallcomply with the access and userestrictions specified in this paragraphand made applicable to such area bymeans of its designation as a ‘‘recoveryarea,’’ ‘‘restoration area,’’ ‘‘research-onlyarea,’’ or ‘‘facilitated-use area.’’ Except

for passage without interruptionthrough the area or for law enforcementpurposes, no person may enter aSpecial-use Area except to conduct orcause to be conducted the followingactivities:

(i) in such area designated as a‘‘recovery area’’ or a ‘‘restoration area’’,habitat manipulation related torestoration of degraded or otherwiseinjured Sanctuary resources, oractivities reasonably necessary tomonitor recovery of degraded orotherwise injured Sanctuary resources;

(ii) in such area designated as a‘‘research only area’’, scientific researchor educational use specificallyauthorized by and conducted inaccordance with the scope, purpose,terms and conditions of a valid NationalMarine Sanctuary General or HistoricalResources permit, or

(iii) in such area designated as a‘‘facilitated-use area’’, activitiesspecified by the Director or specificallyauthorized by and conducted inaccordance with the scope, purpose,terms, and conditions of a valid Special-use permit.

(4)(i) The Director may modify thenumber of, location of, or designationsapplicable to, Special-use Areas bypublishing in the Federal Register, afternotice and an opportunity for publiccomment in accordance with theAdministrative Procedure Act, anamendment to Appendix VI to thissubpart, except that, with respect tosuch areas designated as a ‘‘recoveryarea,’’ ‘‘restoration area,’’ or ‘‘researchonly area,’’ the Director may modify thenumber of, location of, or designationapplicable to, such areas by publishinga notice of such action in the FederalRegister if the Director determines thatimmediate action is reasonablynecessary to:

(A) Prevent significant injury toSanctuary resources wherecircumstances create an imminent riskto such resources;

(B) Initiate restoration activity wherea delay in time would significantlyimpair the ability of such restorationactivity to succeed;

(C) Initiate research activity where anunforeseen natural event produces anopportunity for scientific research thatmay be lost if research is not initiatedimmediately.

(ii) If the Director determines that anotice of modification must bepromulgated immediately in accordancewith paragraph (e)(4)(i) of this section,the Director will, as part of the samenotice, invite public comment andspecify that comments will be receivedfor 15 days after the effective date of thenotice. As soon as practicable after the


end of the comment period, the Directorwill either rescind, modify or allow themodification to remain unchangedthrough notice in the Federal Register.

§ 922.165 Emergency regulations.Where necessary to prevent or

minimize the destruction of, loss of, orinjury to a Sanctuary resource orquality, or minimize the imminent riskof such destruction, loss, or injury, anyand all activities are subject toimmediate temporary regulation,including prohibition. Any suchtemporary regulation may be in effectfor up to 60 days, with one 60-dayextension. Additional or extendedaction will require notice and commentrulemaking under the AdministrativeProcedure Act, notice in localnewspapers, notice to Mariners, andpress releases.

§ 922.166 Permits—applicationprocedures and issuance criteria.

(a) National Marine Sanctuary GeneralPermit.

(1) A person may conduct an activityprohibited by §§ 922.163 or 922.164,other than an activity involving thesurvey/inventory, research/recovery, ordeaccession/transfer of Sanctuaryhistorical resources, if such activity isspecifically authorized by, and providedsuch activity is conducted inaccordance with the scope, purpose,terms and conditions of, a NationalMarine Sanctuary General permit issuedunder this paragraph (a).

(2) The Director, at his or herdiscretion, may issue a General permitunder this paragraph (a), subject to suchterms and conditions as he or she deemsappropriate, if the Director finds that theactivity will:

(i) Further research or monitoringrelated to Sanctuary resources andqualities;

(ii) Further the educational value ofthe Sanctuary;

(iii) Further the natural or historicalresource value of the Sanctuary;

(iv) Further salvage or recoveryoperations in or near the Sanctuary inconnection with a recent air or marinecasualty;

(v) Assist in managing the Sanctuary;or

(vi) Otherwise further Sanctuarypurposes, including facilitating multipleuse of the Sanctuary, to the extentcompatible with the primary objectiveof resource protection.

(3) The Director shall not issue aGeneral permit under this paragraph (a),unless the Director also finds that:

(i) The applicant is professionallyqualified to conduct and complete theproposed activity;

(ii) The applicant has adequatefinancial resources available to conductand complete the proposed activity;

(iii) The duration of the proposedactivity is no longer than necessary toachieve its stated purpose;

(iv) The methods and proceduresproposed by the applicant areappropriate to achieve the proposedactivity’s goals in relation to theactivity’s impacts on Sanctuaryresources and qualities;

(v) The proposed activity will beconducted in a manner compatible withthe primary objective of protection ofSanctuary resources and qualities,considering the extent to which theconduct of the activity may diminish orenhance Sanctuary resources andqualities, any indirect, secondary orcumulative effects of the activity, andthe duration of such effects;

(vi) It is necessary to conduct theproposed activity within the Sanctuaryto achieve its purposes; and

(vii) The reasonably expected endvalue of the activity to the furtheranceof Sanctuary goals and purposesoutweighs any potential adverseimpacts on Sanctuary resources andqualities from the conduct of theactivity.

(4) For activities proposed to beconducted within any of the areasdescribed in § 922.164 (b)–(e), theDirector shall not issue a permit unlesshe or she further finds that suchactivities will further and are consistentwith the purposes for which such areawas established, as described in§§ 922.162 and 922.164 and in themanagement plan for the Sanctuary.

(b) National Marine SanctuarySurvey/Inventory of HistoricalResources Permit.

(1) A person may conduct an activityprohibited by §§ 922.163 or 922.164involving the survey/inventory ofSanctuary historical resources if suchactivity is specifically authorized by,and is conducted in accordance with thescope, purpose, terms and conditions of,a Survey/Inventory of HistoricalResources permit issued under thisparagraph (b). Such permit is notrequired if such survey/inventoryactivity does not involve any activityprohibited by §§ 922.163 or 922.164.Thus, survey/inventory activities thatare non-intrusive, do not include anyexcavation, removal, or recovery ofhistorical resources, and do not result indestruction of, loss of, or injury toSanctuary resources or qualities do notrequire a permit. However, if a survey/inventory activity will involve testexcavations or removal of artifacts ormaterials for evaluative purposes, aSurvey/Inventory of Historical

Resources permit is required. Regardlessof whether a Survey/Inventory permit isrequired, a person may request suchpermit. Persons who have demonstratedtheir professional abilities under aSurvey/Inventory permit will be givenpreference over other persons inconsideration of the issuance of aResearch/Recovery permit. While aSurvey/Inventory permit does not grantany rights with regards to areas subjectto pre-existing rights of access which arestill valid, once a permit is issued for anarea, other survey/inventory permitswill not be issued for the same areaduring the period for which the permitis valid.

(2) The Director, at his or herdiscretion, may issue a Survey/Inventory permit under this paragraph(b), subject to such terms and conditionsas he or she deems appropriate, if theDirector finds that such activity:

(i) Satisfies the requirements for apermit issued under paragraph (a)(3) ofthis section;

(ii) Either will be non-intrusive, notinclude any excavation, removal, orrecovery of historical resources, and notresult in destruction of, loss of, or injuryto Sanctuary resources or qualities, or ifintrusive, will involve no more than theminimum manual alteration of theseabed and/or the removal of artifacts orother material necessary for evaluativepurposes and will cause no significantadverse impacts on Sanctuary resourcesor qualities; and

(iii) That such activity will beconducted in accordance with allrequirements of the ProgrammaticAgreement for the Management ofSubmerged Cultural Resources in theFlorida Keys National Marine Sanctuaryamong NOAA, the Advisory Council onHistoric Preservation, and the State ofFlorida (hereinafter SCR Agreement),and that such permit issuance is inaccordance with such SCR Agreement.

The SCR Agreement is reproduced inthe ‘‘Submerged Cultural ResourcesAction Plan’’ set forth in Volume 1 ofthe Florida Keys National MarineSanctuary Management Plan, dated1996. Copies of the SCR Agreement mayalso be examined at, and obtained from,the Sanctuaries and Reserves Division,Office of Ocean and Coastal ResourceManagement, National Ocean Service,National Oceanic and AtmosphericAdministration, 1305 East-WestHighway, 12th floor, Silver Spring, MD20910; or from the Florida KeysNational Marine Sanctuary Office, P.O.Box 500368, Marathon, FL 33050.

(c) National Marine SanctuaryResearch/Recovery of SanctuaryHistorical Resources Permit.


(1) A person may conduct any activityprohibited by §§ 922.163 or 922.164involving the research/recovery ofSanctuary historical resources if suchactivity is specifically authorized by,and is conducted in accordance with thescope, purpose, terms and conditions of,a Research/Recovery of HistoricalResources permit issued under thisparagraph (c).

(2) The Director, at his or herdiscretion, may issue a Research/Recovery of Historical Resources permit,under this paragraph (c), and subject tosuch terms and conditions as he or shedeems appropriate, if the Director findsthat:

(i) Such activity satisfies therequirements for a permit issued underparagraph (a)(3) of this section;

(ii) The recovery of the resource is inthe public interest as described in theSCR Agreement;

(iii) Recovery of the resource is partof research to preserve historicinformation for public use; and

(iv) Recovery of the resource isnecessary or appropriate to protect theresource, preserve historicalinformation, and/or further the policiesand purposes of the NMSA and theFKNMSPA, and that such permitissuance is in accordance with, and thatthe activity will be conducted inaccordance with, all requirements of theSCR Agreement.

(d) National Marine SanctuarySpecial-use Permit.

(1) A person may conduct anycommercial or concession-type activityprohibited by §§ 922.163 or 922.164, ifsuch activity is specifically authorizedby, and is conducted in accordance withthe scope, purpose, terms andconditions of, a Special-use permitissued under this paragraph (d). ASpecial-use permit is required for thedeaccession/transfer of Sanctuaryhistorical resources.

(2) The Director, at his or herdiscretion, may issue a Special-usepermit in accordance with thisparagraph (d), and subject to such termsand conditions as he or she deemsappropriate and the mandatory termsand conditions of section 310 of theNMSA, if the Director finds thatissuance of such permit is reasonablynecessary to: establish conditions ofaccess to and use of any Sanctuaryresource; or promote public use andunderstanding of any Sanctuaryresources. No permit may be issuedunless the activity is compatible withthe purposes for which the Sanctuarywas designated and can be conducted ina manner that does not destroy, causethe loss of, or injure any Sanctuaryresource, and if for the deaccession/

transfer of Sanctuary HistoricalResources, unless such permit issuanceis in accordance with, and that theactivity will be conducted in accordancewith, all requirements of the SCRAgreement.

(3) The Director may assess andcollect fees for the conduct of anyactivity authorized by a Special-usepermit issued pursuant to thisparagraph (d). No Special-use permitshall be effective until all assessed feesare paid, unless otherwise provided bythe Director by a fee schedule set forthas a permit condition. In assessing a fee,the Director shall include:

(i) all costs incurred, or expected to beincurred, in reviewing and processingthe permit application, including, butnot 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 permitapplication;

(ii) all costs incurred, or expected tobe incurred, as a direct result of theconduct of the activity for which theSpecial-use permit is being issued,including, but not limited to:

(A) The cost of monitoring theconduct both during the activity andafter the activity is completed in orderto assess the impacts to Sanctuaryresources and qualities;

(B) The use of an official NOAAobserver, including travel and expensesand personnel hours; and

(C) Overhead costs directly related tothe permitted activity; and

(iii) an amount which represents thefair market value of the use of theSanctuary resource and a reasonablereturn to the United States Government.

(4) Nothing in this paragraph (d) shallbe considered to require a person toobtain a permit under this paragraph forthe conduct of any fishing activitieswithin the Sanctuary.

(e) Applications. (1) Applications forpermits should be addressed to theDirector, Office of Ocean and CoastalResource Management; ATTN:Sanctuary Superintendent, Florida KeysNational Marine Sanctuary, PO Box500368, Marathon, FL 33050. Allapplications must include:

(i) A detailed description of theproposed activity including a timetablefor completion of the activity and theequipment, personnel and methodologyto be employed;

(ii) The qualifications and experienceof all personnel;

(iii) The financial resources availableto the applicant to conduct andcomplete the proposed activity;

(iv) A statement as to why it isnecessary to conduct the activity withinthe Sanctuary;

(v) The potential impacts of theactivity, if any, on Sanctuary resourcesand qualities;

(vi) The benefit to be derived from theactivity; and

(vii) Such other information as theDirector may request depending on thetype of activity.

Copies of all other required licenses,permits, approvals, or otherauthorizations must be attached to theapplication.

(3) Upon receipt of an application, theDirector may request such additionalinformation from the applicant as he orshe deems reasonably necessary to acton the application and may seek theviews of any persons. The Director mayrequire a site visit as part of the permitevaluation. Unless otherwise specified,the information requested must bereceived by the Director within 30 daysof the postmark date of the request.Failure to provide such additionalinformation on a timely basis may bedeemed by the Director to constituteabandonment or withdrawal of thepermit application.

(f) A permit may be issued for aperiod not exceeding five years. Allpermits will be reviewed annually todetermine the permittee’s compliancewith permit scope, purpose, terms andconditions and progress towardreaching the stated goals andappropriate action taken underparagraph (g) of this section ifwarranted. A permittee may requestpermit renewal pursuant to the sameprocedures for applying for a newpermit. Upon the permittee’s request forrenewal, the Director shall review allreports submitted by the permittee asrequired by the permit conditions. Inorder to renew the permit, the Directormust find that the:

(1) Activity will continue to furtherthe purposes for which the Sanctuarywas designated in accordance with thecriteria applicable to the initial issuanceof the permit;

(2) permittee has at no time violatedthe permit, or these regulations; and

(3) the activity has not resulted in anyunforeseen adverse impacts toSanctuary resources or qualities.

(g) The Director may amend, suspend,or revoke a permit for good cause. TheDirector may deny a permit application,in whole or in part, if it is determinedthat the permittee or applicant has actedin violation of a previous permit, ofthese regulations, of the NMSA orFKNMSPA, or for other good cause. Anysuch action shall be communicated inwriting to the permittee or applicant by


certified mail and shall set forth thereason(s) for the action taken.Procedures governing permit sanctionsand denials for enforcement reasons areset forth in subpart D of 15 CFR part904.

(h) The applicant for or holder of aNational Marine Sanctuary permit mayappeal the denial, conditioning,amendment, suspension or revocation ofthe permit in accordance with theprocedures set forth in § 922.50.

(i) A permit issued pursuant to thissection other than a Special-use permitis nontransferable. Special-use permitsmay be transferred, sold, or assignedwith the written approval of theDirector. The permittee shall providethe Director with written notice of anyproposed transfer, sale, or assignmentno less than 30 days prior to itsproposed consummation. Transfers,sales, or assignments consummated inviolation of this requirement shall beconsidered a material breach of theSpecial-use permit, and the permit shallbe considered void as of theconsummation of any such transfer,sale, or assignment.

(j) The permit or a copy thereof shallbe maintained in legible condition onboard all vessels or aircraft used in theconduct of the permitted activity and bedisplayed for inspection upon therequest of any authorized officer.

(k) Any permit issued pursuant to thissection shall be subject to the followingterms and conditions:

(1) All permitted activities shall beconducted in a manner that does notdestroy, cause the loss of, or injureSanctuary resources or qualities, exceptto the extent that such may bespecifically authorized.

(2) The permittee agrees to hold theUnited States harmless against anyclaims arising out of the conduct of thepermitted activities.

(3) All necessary Federal, State, andlocal permits from all agencies withjurisdiction over the proposed activitiesshall be secured before commencingfield operations.

(l) In addition to the terms andconditions listed in paragraph (k) of thissection, any permit authorizing theresearch/recovery of historical resourcesshall be subject to the following termsand conditions:

(1) a professional archaeologist shallbe in charge of planning, field recoveryoperations, and research analysis.

(2) an agreement with a conservationlaboratory shall be in place before fieldrecovery operations are begun, and anapproved nautical conservator shall bein charge of planning, conducting, andsupervising the conservation of anyartifacts and other materials recovered.

(3) a curation agreement with amuseum or facility for curation, publicaccess and periodic public display, andmaintenance of the recovered historicalresources shall be in place beforecommencing field operations (suchagreement for the curation and displayof recovered historical resources mayprovide for the release of public artifactsfor deaccession/transfer if suchdeaccession/transfer is consistent withpreservation, research, education, orother purposes of the designation andmanagement of the Sanctuary.Deaccession/transfer of historicalresources requires a Special-use permitissued pursuant to paragraph (d) of thissection and such deaccession/transfershall be executed in accordance withthe requirements of the SCRAgreement).

(4) The site’s archaeologicalinformation is fully documented,including measured drawings, site mapsdrawn to professional standards, andphotographic records.

(m) In addition to the terms andconditions listed in paragraph (k) and (l)of this section, any permit issuedpursuant to this section is subject tosuch other terms and conditions,including conditions governing accessto, or use of, Sanctuary resources, as theDirector deems reasonably necessary orappropriate and in furtherance of thepurposes for which the Sanctuary isdesignated. Such terms and conditionsmay include, but are not limited to:

(1) Any data or information obtainedunder the permit shall be madeavailable to the public.

(2) A NOAA official shall be allowedto observe any activity conducted underthe permit.

(3) The permittee shall submit one ormore reports on the status, progress, orresults of any activity authorized by thepermit.

(4) The permittee shall submit anannual report to the Director not laterthan December 31 of each year onactivities conducted pursuant to thepermit. The report shall describe allactivities conducted under the permitand all revenues derived from suchactivities during the year and/or term ofthe permit.

(5) The permittee shall purchase andmaintain general liability insurance orother acceptable security againstpotential claims for destruction, loss of,or injury to Sanctuary resources arisingout of the permitted activities. Theamount of insurance or security shouldbe commensurate with an estimatedvalue of the Sanctuary resources in thepermitted area. A copy of the insurancepolicy or security instrument shall besubmitted to the Director.

§ 922.167 Certification of preexistingleases, licenses, permits, approvals, otherauthorizations, or rights to conduct aprohibited activity.

(a) A person may conduct an activityprohibited by §§ 922.163 or 922.164 ifsuch activity is specifically authorizedby a valid Federal, State, or local lease,permit, license, approval, or otherauthorization in existence on (insert theeffective date of these regulations), or byany valid right of subsistence use oraccess in existence on (insert theeffective date of these regulations),provided that:

(1) The holder of such authorizationor right notifies the Director, in writing,within 90 days of (insert the effectivedate of these regulations), of theexistence of such authorization or rightand requests certification of suchauthorization or right;

(2) The holder complies with theother provisions of this § 922.167; and

(3) The holder complies with anyterms and conditions on the exercise ofsuch authorization or right imposed asa condition of certification, by theDirector, to achieve the purposes forwhich the Sanctuary was designated.

(b) The holder of an authorization orright described in paragraph (a) of thissection authorizing an activityprohibited by § 922.163 or § 922.164may conduct the activity without beingin violation of applicable provisions of§ 922.163 or § 922.164, pending finalagency action on his or her certificationrequest, provided the holder is incompliance with this § 922.167.

(c) Any holder of an authorization orright described in paragraph (a) abovemay request the Director to issue afinding as to whether the activity forwhich the authorization has beenissued, or the right given, is prohibitedby § 922.163 or § 922.164, thus requiringcertification under this section.

(d) Requests for findings orcertifications should be addressed to theDirector, Office of Ocean and CoastalResource Management; ATTN:Sanctuary Superintendent, Florida KeysNational Marine Sanctuary, P.O. Box500368, Marathon, FL 33050. A copy ofthe lease, permit, license, approval, orother authorization must accompany therequest.

(e) The Director may requestadditional information from thecertification requester as he or shedeems reasonably necessary tocondition appropriately the exercise ofthe certified authorization or right toachieve the purposes for which theSanctuary was designated. Theinformation requested must be receivedby the Director within 45 days of thepostmark date of the request. The


Director may seek the views of anypersons on the certification request.

(f) The Director may amend anycertification made under this § 922.167whenever additional informationbecomes available justifying such anamendment.

(g) Upon completion of review of theauthorization or right and informationreceived with respect thereto, theDirector shall communicate, in writing,any decision on a certification requestor any action taken with respect to anycertification made under this § 922.167,in writing, to both the holder of thecertified lease, permit, license, approval,other authorization, or right, and theissuing agency, and shall set forth thereason(s) for the decision or actiontaken.

(h) Any time limit prescribed in orestablished under this § 922.167 may beextended by the Director for good cause.

(i) The holder may appeal any actionconditioning, amending, suspending, orrevoking any certification in accordancewith the procedures set forth in§ 922.50.

(j) Any amendment, renewal, orextension made after (insert the effectivedate of these regulations), to a lease,permit, license, approval, otherauthorization or right is subject to theprovisions of § 922.49.

Appendix I to Subpart P of Part 922—Florida Keys National Marine Sanctuaryboundary coordinates(Appendix based on North American Datumof 1983)

The boundary of the Florida Keys NationalMarine Sanctuary—

(a) begins at the northeasternmost point ofBiscayne National Park located atapproximately 25 degrees 39 minutes northlatitude, 80 degrees 5 minutes westlongitude, then runs eastward to the 300-footisobath located at approximately 25 degrees39 minutes north latitude, 80 degrees 4minutes west longitude;

(b) then runs southward and connects insuccession the points at the followingcoordinates:

(i) 25 degrees 34 minutes north latitude, 80degrees 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 approximatingthe 300-foot isobath and connects insuccession the points at the followingcoordinates:

(i) 25 degrees 7 minutes north latitude, 80degrees 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, 81degrees 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, 81degrees 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 ofEverglades National Park in a southerly thennortheasterly direction through Florida Bay,Buttonwood Sound, Tarpon Basin, andBlackwater Sound;

(e) after Division Point, then departs fromthe boundary of Everglades National Parkand follows the western shoreline of ManateeBay, Barnes Sound, and Card Sound;

(f) then follows the southern boundary ofBiscayne National Park to the southeasternmost point of Biscayne National Park; and

(g) then follows the eastern boundary ofBiscayne National Park to the beginningpoint specified in paragraph (a).

Appendix II to Subpart P of Part 922—Existing Management Areas boundarycoordinates

The Existing Management Areas arelocated within the following geographicboundary coordinates:

National Oceanic and AtmosphericAdministration, Preexisting National MarineSanctuaries:

Key Largo Management Area (Key LargoNational Marine Sanctuary):

Point Latitude Longitude

1 ................ 25°19.45′N 80°12.00′W2 ................ 25°16.02′N 80°08.07′W3 ................ 25°07.05′N 80°12.05′W4 ................ 24°58.03′N 80°19.08′W5 ................ 25°02.02′N 80°25.25′W

Looe Key Management Area (Looe KeyNational Marine Sanctuary):


1 ................ 24°31.62′N 81°26.00′W2 ................ 24°33.57′N 81°26.00′W3 ................ 24°34.15′N 81°23.00′W4 ................ 24°32.20′N 81°23.00′W

United States Fish and Wildlife Service:Great White Heron National Wildlife Refuge(based on the North American Datum of1983):


1 ................ 24°43.8′N 81°48.6′W2 ................ 24°43.8′N 81°37.2′W3 ................ 24°49.2′N 81°37.2′W4 ................ 24°49.2′N 81°19.8′W5 ................ 24°48.0′N 81°19.8′W6 ................ 24°48.0′N 81°14.4′W7 ................ 24°49.2′N 81°14.4′W


8 ................ 24°49.2′N 81°08.4′W9 ................ 24°43.8′N 81′08.4′W10 .............. 24°43.8′N 81°14.4′W11 .............. 24°43.2′N 81°14.4′W12 .............. 24°43.2′N 81°16.2′W13 .............. 24°42.6′N 81°16.2′W14 .............. 24°42.6′N 81°21.0′W15 .............. 24°41.4′N 81°21.0′W16 .............. 24°41.4′N 81°22.2′W17 .............. 24°43.2′N 81°22.2′W18 .............. 24°43.2′N 81°22.8′W19 .............. 24°43.8′N 81°22.8′W20 .............. 24°43.8′N 81°24.0′W21 .............. 24°43.2′N 81°24.0′W22 .............. 24°43.2′N 81°26.4′W23 .............. 24°43.8′N 81°26.4′W24 .............. 24°43.8′N 81°27.0′W25 .............. 24°43.2′N 81°27.0′W26 .............. 24°43.2′N 81°29.4′W27 .............. 24°42.6′N 81°29.4′W28 .............. 24°42.6′N 81°30.6′W29 .............. 24°41.4′N 81°30.6′W30 .............. 24°41.4′N 81°31.2′W31 .............. 24°40.8′N 81°31.2′W32 .............. 24°40.8′N 81°32.4′W33 .............. 24°41.4′N 81°32.4′W34 .............. 24°41.4′N 81°34.2′W35 .............. 24°40.8′N 81°34.2′W36 .............. 24°48.0′N 81°35.4′W37 .............. 24°39.6′N 81°35.4′W38 .............. 24°39.6′N 81°36.0′W39 .............. 24°39.0′N 81°36.0′W40 .............. 24°39.0′N 81°37.2′W41 .............. 24°37.8′N 81°37.2′W42 .............. 24°37.8′N 81°37.8′W43 .............. 24°37.2′N 81°37.8′W44 .............. 24°37.2′N 81°40.2′W45 .............. 24°36.0′N 81°40.2′W46 .............. 24°36.0′N 81°40.8′W47 .............. 24°35.4′N 81°40.8′W48 .............. 24°35.4′N 81°42.0′W49 .............. 24°36.0′N 81°42.0′W50 .............. 24°36.0′N 81°48.6′W

Key West National Wildlife Refuge:


1 ................ 24°40′N 81°49′W2 ................ 24°40′N 82°10′W3 ................ 24°27′N 82°10′W4 ................ 24°27′N 81°49′W

When differential Global PositioningSystems data becomes available, thesecoordinates may be revised by FederalRegister notice to reflect the increasedaccuracy of such data.

Appendix III to Subpart P of Part 922—Wildlife Management Areas accessrestrictions

Area and Access Restrictions

Bay Keys: No-motor zone (300 feet) aroundone key; idle speed only/no-wake zones intidal creeks

Boca Grande Key: South one-half of beachclosed (beach above mean high waterclosed by Department of Interior)

Woman Key: One-half of beach and sand spiton southeast side closed (beach and sandspit above mean high water closed byDepartment of Interior)


Cayo Agua Keys: Idle speed only/no-wakezones in all navigable tidal creeks

Cotton Key: No-motor zone on tidal flatSnake Creek: No-motor zone on tidal flatCottrell Key: No-motor zone (300 feet) around

entire keyLittle Mullet Key: No-access buffer zone (300

feet) around entire keyBig Mullet Key: No-motor zone (300 feet)

around entire keyCrocodile Lake: No-access buffer zone (100

feet) along shoreline between March 1 andOctober 1

East Harbor Key: No-access buffer zone (300feet) around northernmost island

Lower Harbor Keys: Idle speed only/no-wakezones 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 (300feet) around main island (main islandclosed by Department of Interior)

Marquesas Keys: (i) No-motor zones (300feet) around three smallest keys on westernside of chain; (ii) no-access buffer zone(300 feet) around one island at westernside of chain; (iii) idle speed only/no-wakezone in southwest tidal creek

Tidal flat south of Marvin Key: No-accessbuffer zone on tidal flat

Mud Keys: (i) Idle speed only/no-wake zonesin the two main tidal creeks; (ii) twosmaller creeks on west side closed

Pelican Shoal: No-access buffer zone out to50 meters from shore between April 1 andAugust 31 (shoal closed by the FloridaGame and Freshwater Fish Commission)

Rodriguez Key: No-motor zone on tidal flatsDove Key: No-motor zone on tidal flats; area

around the two small islands closedTavernier Key: No-motor zone on tidal flatsSawyer Keys: Tidal creeks on south side

closedSnipe Keys: (i) Idle speed only/no-wake zone

in main tidal creek; (ii) no-motor zone inall other tidal creeks

Upper Harbor Key: No-access buffer zone(300 feet) around entire key

East Content Keys: Idle speed only/no-wakezones in tidal creeks betweensouthwesternmost keys

West Content Keys: Idle speed only/no-wakezones in selected tidal creeks; no-accessbuffer zone in one cove

Little Crane Key: No-access buffer zone (300feet) around entire key

Appendix IV to Subpart P of Part 922—Ecological Reserves boundary coordinates

One Ecological Reserve—the WesternSambos Ecological Reserve—is designated inthe area of Western Sambos reef. NOAA hascommitted to designating a second EcologicalReserve within two years from issuance ofthis plan in the area of the Dry Tortugas. Theestablishment of a Dry Tortugas EcologicalReserve will be proposed by a notice ofproposed rulemaking with a proposedboundary determined through a joint effortamong the Sanctuary, and the National ParkService, pursuant to a public processinvolving a team consisting of managers,scientists, conservationists, and affected usergroups.

The Western Sambos Ecological Reserve(based on North American Datum of 1983,

aerial photos, charts, and GeographicInformation Systems data) is located withinthe following geographic boundarycoordinates:

WESTERN SAMBOS


1 ................ 24°33.70′ N 81°40.80′ W2 ................ 24°28.70′ N 81°41.90′ W3 ................ 24°28.50′ N 81°43.70′ W4 ................ 24°33.50′ N 81°43.10′ W

When differential Global PositioningSystems data becomes available, thesecoordinates may be revised by FederalRegister notice to reflect the increasedaccuracy of such data.

Appendix V to Subpart P of Part 922—Sanctuary Preservation Areas BoundaryCoordinates

The Sanctuary Preservation Areas (SPAs)(based on North American Datum of 1983,aerial photos, charts, and GeographicInformation Systems data) are located withinthe following geographic boundarycoordinates:

ALLIGATOR REEF


1 ........................ 24°50.8′ N 80°36.8′ W2 ........................ 24°50.4′ N 80°37.3′ W3 ........................ 24°50.7′ N 80°37.6′ W4 ........................ 24°51.1′ N 80°37.5′ W

Catch and release fishing by trolling onlyis allowed in this SPA.

CARYSFORT/SOUTH CARYSFORT REEF


1 ........................ 25°13.6′ N 80°12.2′ W2 ........................ 25°11.9′ N 80°12.8′ W3 ........................ 25°12.2′ N 80°13.8′ W4 ........................ 25°14.0′ N 80°12.7′ W

CHEECA ROCKS


1 ........................ 24°54.6′ N 80°37.6′ W2 ........................ 24°54.3′ N 80°37.5′ W3 ........................ 24°54.2′ N 80°37.7′ W4 ........................ 24°54.5′ N 80°37.8′ W

COFFINS PATCH


1 ........................ 24°41.5′ N 80°57.7′ W2 ........................ 24°41.1′ N 80°57.5′ W3 ........................ 24°40.6′ N 80°58.4′ W4 ........................ 24°41.1′ N 80°58.6′ W

CONCH REEF


1 ........................ 24°57.5′ N 80°27.4′ W2 ........................ 24°57.4′ N 80°27.3′ W3 ........................ 24°57.0′ N 80°27.7′ W4 ........................ 24°56.9′ N 80°27.6′ W


DAVIS REEF


1 ................ 24°55.6′ N 80°30.3′ W2 ................ 24°55.3′ N 80°30.0′ W3 ................ 24°55.1′ N 80°30.4′ W4 ................ 24°55.4′ N 80°30.7′ W

DRY ROCKS


1 ........................ 25°7.6′ N 80°17.9′ W2 ........................ 25°7.4′ N 80°17.7′ W3 ........................ 25°7.3′ N 80°17.8′ W4 ........................ 25°7.4′ N 80°18.1′ W

GRECIAN ROCKS


1 ........................ 25°6.9′ N 80°18.2′ W2 ........................ 25°6.6′ N 80°17.9′ W3 ........................ 25°6.1′ N 80°18.5′ W4 ........................ 25°6.2′ N 80°18.6′ W5 ........................ 25°6.8′ N 80°18.6′ W

EASTERN DRY ROCKS


1 ........................ 24°27.9′ N 81°50.5′ W2 ........................ 24°27.7′ N 81°50.4′ W3 ........................ 24°27.5′ N 81°50.6′ W4 ........................ 24°27.7′ N 81°50.8′ W

THE ELBOW


1 ........................ 25°9.1′ N 80°15.4′ W2 ........................ 25°8.9′ N 80°15.1′ W3 ........................ 25°8.1′ N 80°15.7′ W4 ........................ 25°8.8′ N 80°15.7′ W

FRENCH REEF


1 ........................ 25°2.2′ N 80°20.6′ W2 ........................ 25°1.8′ N 80°21.0′ W3 ........................ 25°2.3′ N 80°21.2′ W


HEN AND CHICKENS


1 ........................ 24°56.4′ N 80°32.9′ W2 ........................ 24°56.2′ N 80°32.7′ W3 ........................ 24°55.7′ N 80°33.1′ W4 ........................ 24°55.9′ N 80°33.3′ W

LOOE KEY


1 ........................ 24°33.2′ N 81°24.2′ W2 ........................ 24°32.6′ N 81°24.8′ W3 ........................ 24°32.5′ N 81°24.7′ W4 ........................ 24°33.1′ N 81°24.8′ W

MOLASSES REEF

1Point Latitude Longitude

1 ........................ 25°0.9′ N 80°22.4′ W2 ........................ 25°0.7′ N 80°22.0′ W3 ........................ 25°0.2′ N 80°22.8′ W4 ........................ 25°0.7′ N 80°22.8′ W

NEWFOUND HARBOR KEY


1 ........................ 24°37.1′ N 81°23.3′ W2 ........................ 24°36.7′ N 81°23.8′ W3 ........................ 24°36.8′ N 81°23.3′ W4 ........................ 24°36.9′ N 81°23.9′ W

ROCK KEY


1 ........................ 24°27.5′ N 81°51.3′ W2 ........................ 24°27.3′ N 81°51.2′ W3 ........................ 24°27.2′ N 81°51.5′ W4 ........................ 24°27.5′ N 81°51.6′ W

SAND KEY


1 ........................ 24°27.6′ N 81°53.1′ W2 ........................ 24°27.0′ N 81°53.1′ W3 ........................ 24°27.0′ N 81°52.3′ W4 ........................ 24°27.6′ N 81°52.3′ W


SOMBRERO KEY


1 ........................ 24°37.9′ N 81°6.8′ W2 ........................ 24°37.4′ N 81°6.1′ W3 ........................ 24°37.2′ N 81°7.0′ W


When differential Global PositioningSystems data becomes available, thecoordinates for all these areas may be revised

by Federal Register notice to reflect theincreased accuracy of such data.

Appendix VI to Subpart P of Part 922—Special-Use Areas BoundaryCoordinates and Use Designations

The Special-use Areas (based on NorthAmerican Datum of 1983) are located withinthe following geographic boundarycoordinates:

CONCH REEF (RESEARCH ONLY)


1 ........................ 24°56.8′ N 80°27.2′ W2 ........................ 24°57.0′ N 80°27.0′ W3 ........................ 24°57.2′ N 80°27.5′ W4 ........................ 24°57.5′ N 80°27.4′ W

EASTERN SAMBOS (RESEARCH ONLY)


1 ........................ 24°29.4′ N 81°39.3′ W2 ........................ 24°29.7′ N 81°40.2′ W3 ........................ 24°29.5′ N 81°39.6′ W4 ........................ 24°29.8′ N 81°39.7′ W

LOOE KEY (RESEARCH ONLY)


1 ........................ 24°34.1′ N 81°23.3′ W2 ........................ 24°34.0′ N 81°23.2′ W3 ........................ 24°33.8′ N 81°23.8′ W4 ........................ 24°34.0′ N 81°23.9′ W

TENNESSEE REEF (RESEARCH ONLY)


1 ........................ 24°45.9′ N 80°45.6′ W2 ........................ 24°45.7′ N 80°45.4′ W3 ........................ 24°46.0′ N 80°44.9′ W4 ........................ 24°46.2′ N 80°45.1′ W

Appendix VII to Subpart P of Part922—Areas To Be Avoided BoundaryCoordinates

In the Vicinity of the Florida Keys(Reference Charts: United States 11466, 27thEdition—September 1, 1990 and UnitedStates 11450, 4th Edition—August 11, 1990.)


1 ........................ 25°45.00′ N 80°06.10′ W2 ........................ 25°38.70′ N 80°02.70′ W3 ........................ 25°22.00′ N 80°03.00′ W4 ........................ 25°00.20′ N 80°13.40′ W5 ........................ 24°37.90′ N 80°47.30′ W6 ........................ 24°29.20′ N 81°17.30′ W7 ........................ 24°22.30′ N 81°43.17′ W8 ........................ 24°28.00′ N 81°43.17′ W9 ........................ 24°28.70′ N 81°43.50′ W10 ...................... 24°29.80′ N 81°43.17′ W11 ...................... 24°33.10′ N 81°35.15′ W12 ...................... 24°33.60′ N 81°26.00′ W13 ...................... 24°38.20′ N 81°07.00′ W14 ...................... 24°43.20′ N 80°53.20′ W


15 ...................... 24°46.10′ N 80°46.15′ W16 ...................... 24°51.10′ N 80°37.10′ W17 ...................... 24°57.50′ N 80°27.50′ W18 ...................... 25°09.90′ N 80°16.20′ W19 ...................... 25°24.00′ N 80°09.10′ W20 ...................... 25°31.50′ N 80°07.00′ W21 ...................... 25°39.70′ N 80°06.85′ W22 ...................... 25°45.00′ N 80°06.10′ W

In the Vicinity of Key West Harbor(Reference Chart: United States 11434, 21stEdition—August 11, 1990.)


23 ...................... 24°27.95′ N 81°48.65′ W24 ...................... 24°23.00′ N 81°53.50′ W25 ...................... 24°26.60′ N 81°58.50′ W26 ...................... 24°27.75′ N 81°55.70′ W27 ...................... 24°29.35′ N 81°53.40′ W28 ...................... 24°29.35′ N 81°50.00′ W29 ...................... 24°27.95′ N 81°48.65′ W

Area Surrounding the Marquesas Keys(Reference Chart: United States 11434, 21stEdition—August 11, 1990.)


30 ...................... 24°26.60′ N 81°59.55′ W31 ...................... 24°23.00′ N 82°03.50′ W32 ...................... 24°23.60′ N 82°27.80′ W33 ...................... 24°34.50′ N 82°37.50′ W34 ...................... 24°43.00′ N 82°26.50′ W35 ...................... 24°38.31′ N 81°54.06′ W36 ...................... 24°37.91′ N 81°53.40′ W37 ...................... 24°36.15′ N 81°51.78′ W38 ...................... 24°34.40′ N 81°50.60′ W39 ...................... 24°33.44′ N 81°49.73′ W40 ...................... 24°31.20′ N 81°52.10′ W41 ...................... 24°28.70′ N 81°56.80′ W42 ...................... 24°26.60′ N 81°59.55′ W

Area Surrounding the Dry Tortugas Islands(Reference Chart: United States 11434, 21stEdition—August 11, 1990.)


43 ...................... 24°32.00′ N 82°53.50′ W44 ...................... 24°32.00′ N 83°00.05′ W45 ...................... 24°39.70′ N 83°00.05′ W46 ...................... 24°45.60′ N 82°54.40′ W47 ...................... 24°45.60′ N 82°47.20′ W48 ...................... 24°42.80′ N 82°43.90′ W49 ...................... 24°39.50′ N 82°43.90′ W50 ...................... 24°35.60′ N 82°46.40′ W51 ...................... 24°32.00′ N 82°53.50′ W

Appendix VIII to Subpart P of Part 922—Marine Life Rule [as Excerpted FromChapter 46–42 of the Florida AdministrativeCode]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.


46–42.0036 Harvest in Biscayne NationalPark.*

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 andSea 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 § 922.163(a)(2)(ii).46–42.001 Purpose and Intent; Designationof Restricted Species; Definition of ‘‘MarineLife Species’’.

(1)(a) The purpose and intent of thischapter are to protect and conserve Florida’stropical marine life resources and assure thecontinuing health and abundance of thesespecies. The further intent of this chapter isto assure that harvesters in this fishery usenonlethal methods of harvest and that thefish, invertebrates, and plants so harvested bemaintained alive for the maximum possibleconservation and economic benefits.

(b) It is the express intent of the MarineFisheries Commission that landing of liverock propagated through aquaculture will beallowed pursuant to the provisions of thischapter.

(2) The following fish species, as theyoccur in waters of the state and in federalExclusive Economic Zone (EEZ) watersadjacent to state waters, are herebydesignated as restricted species pursuant toSection 370.01(20), Florida Statutes:

(a) Moray eels—Any species of the FamilyMuraenidae.

(b) Snake eels—Any species of the GeneraMyrichthys and Myrophis of the FamilyOphichthidae.

(c) Toadfish—Any species of the FamilyBatrachoididae.

(d) Frogfish—Any species of the FamilyAntennariidae.

(e) Batfish—Any species of the FamilyOgcocephalidae.

(f) Clingfish—Any species of the FamilyGobiesocidae.

(g) Trumpetfish—Any species of theFamily Aulostomidae.

(h) Cornetfish—Any species of the FamilyFistulariidae.

(i) Pipefish/seahorses—Any species of theFamily Syngnathidae.

(j) Hamlet/seabass—Any species of theFamily Serranidae, except groupers of thegenera Epinephalus and Mycteroperca, andseabass of the genus Centropristis.

(k) Basslets—Any species of the FamilyGrammistidae.

(l) Cardinalfish—Any species of the FamilyApogonidae.

(m) High-hat, Jackknife-fish, Spotted drum,Cubbyu—Any species of the genus Equetusof the Family Sciaenidae.

(n) Reef Croakers—Any of the speciesOdontocion dentex.

(o) Sweepers—Any species of the FamilyPempherididae.

(p) Butterflyfish—Any species of theFamily Chaetodontidae.

(q) Angelfish—Any species of the FamilyPomacanthidae.

(r) Damselfish—Any species of the FamilyPomacentridae.

(s) Hawkfish—Any species of the FamilyCirrhitidae.

(t) Wrasse/hogfish/razorfish—Any speciesof the Family Labridae, except hogfish,Lachnolaimus maximus.

(u) Parrotfish—Any species of the FamilyScaridae.

(v) Jawfish—Any species of the FamilyOpistognathidae.

(w) Blennies—Any species of the FamiliesClinidae or Blenniidae.

(x) Sleepers—Any species of the FamilyEleotrididae.

(y) Gobies—Any species of the FamilyGobiidae.

(z) Tangs and surgeonfish—Any species ofthe Family Acanthuridae.

(aa) Filefish/triggerfish—Any species of theFamily Balistes, except gray triggerfish,Balistidae capriscus.

(bb) Trunkfish/cowfish—Any species ofthe Family Ostraciidae.

(cc) Pufferfish/burrfish/balloonfish—Anyof 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 infederal Exclusive Economic Zone (EEZ)waters adjacent to state waters, are herebydesignated as restricted species pursuant toSection 370.01(20), Florida Statutes:

(a) Sponges—Any species of the ClassDemospongia, except sheepswool, yellow,grass, glove, finger, wire, reef, and velvetsponges, Order Dictyoceratida.

(b) Upside-down jellyfish—Any species ofthe Genus Cassiopeia.

(c) Siphonophores/hydroids—Any speciesof the Class Hydrozoa, except fire corals,Order Milleporina.

(d) Soft corals—Any species of theSubclass Octocorallia, except sea fansGorgonia flabellum and Gorgonia ventalina.

(e) Sea anemones—Any species of theOrders Actinaria, Zoanthidea,Corallimorpharia, and Ceriantharia.

(f) Featherduster worms/calcareoustubeworms—Any species of the FamiliesSabellidae and Serpulidae.

(g) Star-shells—Any of the species Astraeaamericana or Astraea phoebia.

(h) Nudibranchs/sea slugs—Any species ofthe Subclass Opisthobranchia.

(i) Fileclams—Any species of the GenusLima.

(j) Octopods—Any species of the OrderOctopoda, except the common octopus,Octopodus vulgaris.

(k) Shrimp—Any of the following species:1. Cleaner shrimp and peppermint

shrimp—Any species of the GeneraPericlimenes or Lysmata.

2. Coral shrimp—Any species of the GenusStenopus.

3. Snapping shrimp—Any species of theGenus 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—Clibanariusvittatus.

4. Polkadotted hermit crab—Phimochirusoperculatus.

5. Spotted porcelain crab—Porcellanasayana.

6. Nimble spray or urchin crab—Percnongibbesi.

7. False arrow crab—Metoporhaphiscalcarata.

(m) Starfish—Any species of the ClassAsteroidea, except the Bahama starfish,Oreaster reticulatus.

(n) Brittlestars—Any species of the ClassOphiuroidea.

(o) Sea urchins—Any species of the ClassEchinoidea, except longspine urchin,Diadema antillarum, and sand dollars andsea biscuits, Order Clypeasteroida.

(p) Sea cucumbers—Any species of theClass Holothuroidea.

(q) Sea lillies—Any species of the ClassCrinoidea.

(4) The following species of plants, as theyoccur in waters of the state and in federalExclusive Economic Zone (EEZ) watersadjacent to state waters, are herebydesignated as restricted species pursuant toSection 370.01(20), Florida Statutes:

(a) Caulerpa—Any species of the FamilyCaulerpaceae.

(b) Halimeda/mermaid’s fan/mermaid’sshaving brush—Any species of the FamilyHalimedaceae.

(c) Coralline red algae—Any species of theFamily Corallinaceae.

(5) For the purposes of Section370.06(2)(d), Florida Statutes, the term‘‘marine life species’’ is defined to meanthose species designated as restricted speciesin subsections (2), (3), and (4) of this rule.

Specific Authority 370.01(20), 370.027(2),370.06(2)(d), F.S. Law Implemented370.01(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 thisrule chapter

(1) ‘‘Barrier net,’’ also known as a ‘‘fencenet,’’ means a seine used beneath the surfaceof the water by a diver to enclose andconcentrate tropical fish and which may bemade of either nylon or monofilament.

(2) ‘‘Drop net’’ means a small, usuallycircular, net with weights attached along theouter edge and a single float in the center,used by a diver to enclose and concentratetropical fish.

(3) ‘‘Hand held net’’ means a landing or dipnet as defined in Rule 46–4.002(4), exceptthat a portion of the bag may be constructedof clear plastic material, rather than mesh.

(4) ‘‘Harvest’’ means the catching or takingof a marine organism by any meanswhatsoever, followed by a reduction of suchorganism to possession. Marine organismsthat are caught but immediately returned tothe water free, alive, and unharmed are notharvested. In addition, temporary possessionof a marine animal for the purpose ofmeasuring it to determine compliance withthe minimum or maximum size requirementsof this chapter shall not constitute harvestingsuch animal, provided that it is measured


immediately after taking, and immediatelyreturned to the water free, alive, andunharmed if undersize or oversize.

(5) ‘‘Harvest for commercial purposes’’means the taking or harvesting of any tropicalornamental marine life species or tropicalornamental marine plant for purposes of saleor with intent to sell. The harvest of tropicalornamental marine life species or tropicalornamental marine plants in excess of the baglimit shall constitute prima facie evidence ofintent to sell.

(6) ‘‘Land,’’ when used in connection withthe harvest of marine organisms, means thephysical act of bringing the harvestedorganism ashore.

(7) ‘‘Live rock’’ means rock with livingmarine organisms attached to it.

(8) ‘‘Octocoral’’ means any erect,nonencrusting species of the SubclassOctocorallia, except the species Gorgoniaflabellum and Gorgonia ventalina.

(9) ‘‘Slurp gun’’ means a self-contained,handheld device that captures tropical fishby rapidly drawing seawater containing suchfish into a closed chamber.

(10) ‘‘Total length’’ means the length of afish as measured from the tip of the snout tothe tip of the tail.

(11) ‘‘Trawl’’ means a net in the form of anelongated bag with the mouth kept open byvarious means and fished by being towed ordragged on the bottom.

‘‘Roller frame trawl’’ means a trawl with allof the following features and specifications:

(a) A rectangular rigid frame to keep themouth of the trawl open while being towed.

(b) The lower horizontal beam of the framehas rollers to allow the trawl to roll over thebottom and any obstructions while beingtowed.

(c) The trawl opening is shielded by a gridof vertical bars spaced no more than 3 inchesapart.

(d) The trawl is towed by attaching a lineor towing cable to a tongue located above orat the center of the upper horizontal beam ofthe frame.

(e) The trawl has no doors attached to keepthe mouth of the trawl open.

(12) ‘‘Tropical fish’’ means any speciesincluded in subsection (2) of Rule 46–42.001,or any part thereof.

(13) ‘‘Tropical ornamental marine lifespecies’’ means any species included insubsections (2) or (3) of Rule 46–42.001, orany 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. LawImplemented 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.—Noperson shall harvest, possess while in or onthe waters of the state, or land any of thefollowing 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 WellRequirements

(1) Each person harvesting any tropicalornamental marine life species or anytropical ornamental marine plant shall landsuch marine organism alive.

(2) Each person harvesting any tropicalornamental marine life species or anytropical ornamental marine plant shall haveaboard the vessel being used for such harvesta continuously circulating live well oraeration or oxygenation system of adequatesize and capacity to maintain such harvestedmarine organisms in a healthy condition.

Specific Authority 370.027(2), F.S. LawImplemented 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 oron the waters of the state, or land any of thefollowing species of angelfish, of total lengthless than that set forth below:

1. One-and-one-half (11⁄2) inches for:a. Gray angelfish (Pomacanthus arcuatus).b. French angelfish (Pomacanthus paru).2. One-and-three-quarters (13⁄4) 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 anyangelfish (Family Pomacanthidae), of totallength greater than that specified below:

1. Eight (8) inches for angelfish, exceptrock beauty (Holacanthus tricolor).

2. Five (5) inches for rock beauty.(c) Except as provided herein, no person

shall purchase, sell, or exchange anyangelfish smaller than the limits specified inparagraph (a) or larger than the limitsspecified in paragraph (b). This prohibitionshall not apply to angelfish legally harvestedoutside of state waters or federal ExclusiveEconomic Zone (EEZ) waters adjacent to statewaters, which angelfish are entering Floridain interstate or international commerce. Theburden shall be upon any person possessingsuch angelfish for sale or exchange toestablish the chain of possession from theinitial transaction after harvest, byappropriate receipt(s), bill(s) of sale, or bill(s)of lading, and any customs receipts, and toshow that such angelfish originated from apoint outside the waters of the State ofFlorida or federal Exclusive Economic Zone(EEZ) waters adjacent to Florida waters andentered the state in interstate or internationalcommerce. Failure to maintain suchdocumentation or to promptly produce sameat the request of any duly authorized lawenforcement officer shall constitute primafacie evidence that such angelfish wereharvested from Florida waters or adjacentEEZ waters for purposes of this paragraph.

(2) Butterflyfishes.—(a) No person harvesting for commercial

purposes shall harvest, possess while in oron the waters of the state, or land anybutterflyfish (Family Chaetodontidae) of totallength less than one (1) inch.

(b) No person shall harvest, possess whilein or on the waters of the state, or land any

butterflyfish of total length greater than 4inches.

(3) Gobies—No person shall harvest,possess while in or on the waters of the state,or land any gobie (Family Gobiidae) of totallength 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 anySpanish hogfish (Bodianus rufus) of totallength less than 2 inches.

(b) No person shall harvest, possess whilein or on the waters of this state, or land anySpanish hogfish (Bodianus rufus) or spotfinhogfish (Bodianus pulchellus) of total lengthgreater than 8 inches.

Specific Authority 370.027(2), F.S. LawImplemented 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 46–42.006or subsections (3) or (4) of this rule (46–42.005) no person shall harvest, possesswhile in or on the waters of the state, or landmore than 20 individuals per day of tropicalornamental marine life species, in anycombination.

(2) Except as provided in Rule 46–42.006,no person shall harvest, possess while in oron the waters of the state, or land more thanone (1) gallon per day of tropical ornamentalmarine plants, in any combination of species.

(3) Except as provided in Rule 46–42.006,no person shall harvest, possess while in oron the waters of the state, or land more than5 angelfishes (Family Pomacanthidae) perday. Each angelfish shall be counted forpurposes of the 20 individual bag limitspecified in subsection (1) of this rule (46–42–005).

(4)(a) Unless the season is closed pursuantto paragraph (b), no person shall harvest,possess while in or on the waters of the state,or land more than 6 colonies per day ofoctocorals. Each colony of octocoral or partthereof shall be considered an individual ofthe species for purposes of subsection (1) ofthis rule (46–42–005) and shall be countedfor purposes of the 20 individual bag limitspecified therein. Each person harvesting anyoctocoral as authorized by this rule (46–42–005) may also harvest substrate within 1 inchof the perimeter of the holdfast at the baseof the octocoral, provided that such substrateremains attached to the octocoral.

(b) If the harvest of octocorals in federalExclusive Economic Zone (EEZ) watersadjacent to state waters is closed to allharvesters prior to September 30 of any year,the season for harvest of octocorals in statewaters shall also close until the followingOctober 1, upon notice given by the Secretaryof the Department of EnvironmentalProtection, in the manner provided ins.120.52(16)(d), Florida Statutes.

Specific Authority 370.027(2), F.S. LawImplemented 370.025, 370.027, F.S.History—New 1–1–91, Amended 1–1–95.


46–42.006 Commercial Season, HarvestLimits

(1) Except as provided in Rule 46–42.008(7), no person shall harvest, possesswhile in or on the waters of the state, or landquantities of tropical ornamental marine lifespecies or tropical ornamental marine plantsin excess of the bag limits established in Rule46–42.005 unless such person possesses avalid saltwater products license with both amarine life fishery endorsement and arestricted species endorsement issued by theDepartment of Environmental Protection.

(2) Persons harvesting tropical ornamentalmarine life species or tropical ornamentalmarine plants for commercial purposes shallhave a season that begins on October 1 ofeach year and continues through September30 of the following year. These persons shallnot harvest, possess while in or on the watersof the state, or land tropical ornamentalmarine life species in excess of the followinglimits:

(a) A limit of 75 angelfish (FamilyPomacanthidae) per person per day or 150angelfish per vessel per day, whichever isless.

(b) A limit of 75 butterflyfishes (FamilyChaetodontidae) per vessel per day.

(c) There shall be no limits on the harvestfor commercial purposes of octocorals unlessand until the season for all harvest ofoctocorals in federal Exclusive EconomicZone (EEZ) waters adjacent to state waters isclosed. At such time, the season for harvestof octocorals in state waters shall also closeuntil the following October 1, upon noticegiven by the Secretary of the Department ofEnvironmental Protection, in the mannerprovided in Section 120.52(16)(d), FloridaStatutes. Each person harvesting anyoctocoral as authorized by this rule may alsoharvest substrate within 1 inch of theperimeter of the holdfast at the base of theoctocoral, provided that such substrateremains attached to the octocoral.

(d) A limit of 400 giant Caribbean or ‘‘pink-tipped’’ anemones (Genus Condylactus) pervessel per day.

Specific Authority 370.027(2), F.S. LawImplemented 370.025, 370.027, F.S.History—New 1–1–91, Amended 7–1–92, 1–1–95.46–42.007 Gear Specifications andProhibited Gear

(1) The following types of gear shall be theonly types allowed for the harvest of anytropical fish, whether from state waters orfrom 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 thechemical or possessing the chemical in or onthe waters of the state meets each of thefollowing conditions:

1. The person also possesses and maintainsaboard any vessel used in the harvest oftropical fish with quinaldine a specialactivity license authorizing the use of

quinaldine, issued by the Division of MarineResources of the Department ofEnvironmental Protection pursuant toSection 370.08(8), Florida Statutes.

2. The quinaldine possessed or appliedwhile in or on the waters of the state is ina diluted form of no more than 2%concentration in solution with seawater.Prior to dilution in seawater, quinaldine shallonly be mixed with isopropyl alcohol orethanol.

(f) A roller frame trawl operated by aperson possessing a valid live bait shrimpinglicense issued by the Department ofEnvironmental Protection pursuant toSection 370.15, Florida Statutes, if suchtropical fish are taken as an incidentalbycatch of shrimp lawfully harvested withsuch trawl.

(g) A trawl meeting the followingspecifications used to collect live specimensof the dwarf seahorse, Hippocampuszosterae, if towed by a vessel no greater than15 feet in length at no greater than idle speed:

1. The trawl opening shall be no largerthan 12 inches by 48 inches.

2. The trawl shall weigh no more than 5pounds wet when weighed out of the water.

(2) This rule shall not be construed toprohibit the use of any bag or container usedsolely for storing collected specimens or theuse of a single blunt rod in conjunction withany allowable gear, which rod meets each ofthe following specifications:

(a) The rod shall be made of nonferrousmetal, fiberglass, or wood.

(b) The rod shall be no longer than 36inches and have a diameter no greater than3⁄4 inch at any point.

(3) No person shall harvest in or from statewaters any tropical fish by or with the useof any gear other than those types specifiedin subsection (1); provided, however, thattropical fish harvested as an incidentalbycatch of other species lawfully harvestedfor commercial purposes with other types ofgear shall not be deemed to be harvested inviolation of this rule, if the quantity oftropical fish so harvested does not exceed thebag limits established in Rule 46–42.005.

Specific Authority 370.027(2), F.S. LawImplemented 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 SeaFans; Exception; Repeal of Section 370.114,Florida Statutes

(1) Except as provided in subsection (2), noperson shall take, attempt to take, orotherwise destroy, or sell, or attempt to sell,any sea fan of the species Gorgonia flabellumor of the species Gorgonia ventalina, or anyhard or stony coral (Order Scleractinia) orany fire coral (Genus Millepora). No personshall possess any such fresh, uncleaned, oruncured sea fan, hard or stony coral, or firecoral.

(2) Subsection (1) shall not apply to:(a) Any sea fan, hard or stony coral, or fire

coral legally harvested outside of state watersor federal Exclusive Economic Zone (EEZ)waters adjacent to state waters and enteringFlorida in interstate or internationalcommerce. The burden shall be upon any

person possessing such species to establishthe chain of possession from the initialtransaction after harvest, by appropriatereceipt(s), bill(s) of sale, or bill(s) of lading,and any customs receipts, and to show thatsuch species originated from a point outsidethe waters of the State of Florida or federalExclusive Economic Zone (EEZ) adjacent tostate waters and entered the state in interstateor international commerce. Failure tomaintain such documentation or to promptlyproduce same at the request of any dulyauthorized law enforcement officer shallconstitute prima facie evidence that suchspecies were harvested from Florida watersin violation of this rule.

(b) Any sea fan, hard or stony coral, or firecoral harvested and possessed pursuant topermit issued by the Department ofEnvironmental Protection for scientific oreducational purposes as authorized inSection 370.10(2), Florida Statutes.

(c) Any sea fan, hard or stony coral, or firecoral harvested and possessed pursuant tothe aquacultured live rock provisions of Rule46–42.008(3)(a) or pursuant to a Live RockAquaculture Permit issued by the NationalMarine Fisheries Service under 50 CFR Part638 and meeting the following requirements:

1. Persons possessing these species in or onthe waters of the state shall also possess astate submerged lands lease for live rockaquaculture and a Department ofEnvironmental Protection permit for live rockculture deposition and removal or a federalLive Rock Aquaculture Permit. If the personpossessing these species is not the personnamed in the documents required herein,then the person in such possession shall alsopossess written permission from the personso named to transport aquacultured live rockpursuant to this exception.

2. The nearest office of the Florida MarinePatrol shall be notified at least 24 hours inadvance of any transport in or on state watersof aquacultured live rock pursuant to thisexception.

3. Persons possessing these species off thewater shall maintain and produce upon therequest of any duly authorized lawenforcement officer sufficient documentationto establish the chain of possession fromharvest on a state submerged land lease forlive rock aquaculture or in adjacent ExclusiveEconomic Zone (EEZ) waters pursuant to afederal Live Rock Aquaculture Permit.

4. Any sea fan, hard or stony coral, or firecoral harvested pursuant to Rule 46–42.008(3)(a) shall remain attached to thecultured rock.

Specific Authority 370.027(2), F.S.; Section6, Chapter 83–134, Laws of Florida, asamended by Chapter 84–121, Laws ofFlorida. Law Implemented 370.025, 370.027,F.S.; Section 6, Chapter 83–134, Laws ofFlorida, 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 areremoved.

[FR Doc. 97–1870 Filed 1–24–97; 10:59 am]BILLING CODE 3510–12–P

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