[Federal Register Volume 62, Number 20 (Thursday, January 30, 1997)]
[Rules and Regulations]
[Pages 4578-4622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1870]



[[Page 4577]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Parts 922, 929 and 937



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Florida Keys National Marine Sanctuary; Final Rule

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

[[Page 4578]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Parts 922, 929 and 937

[Docket No. 960712192-6192-01]
RIN 0648-AD85


Florida Keys National Marine Sanctuary Final Regulations

AGENCY: Office of Ocean and Coastal Resource Management (OCRM), 
National Ocean Service (NOS), National Oceanic and Atmospheric 
Administration (NOAA), Department of Commerce.

ACTION: Final rule; removal and revision of regulations; summary of 
Final Management Plan.

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SUMMARY: Pursuant to the Florida Keys National Marine Sanctuary and 
Protection Act and the National Marine Sanctuaries Act, NOAA has 
developed the comprehensive final management plan for the Florida Keys 
National Marine Sanctuary (FKNMS or the Sanctuary). NOAA hereby issues 
final regulations to implement that plan and govern the conduct of 
activities within the Sanctuary. This document also summarizes the 
Final Management Plan--Environmental Impact Statement (FMP/EIS) for the 
Sanctuary. The FMP/EIS details the goals and objectives, management 
responsibilities, research activities, educational and outreach 
programs, and interpretive enforcement activities for the Sanctuary. 
The intended effect of the final regulations, and FMP/EIS is to protect 
and manage the conservation, recreational, ecological, historical, 
research, educational, and aesthetic qualities of the Sanctuary 
consistent with the Florida Keys National Marine Sanctuary and 
Protection Act and the National Marine Sanctuaries Act.

EFFECTIVE DATES: Congress and the Governor of the State of Florida have 
forty-five days of continuous session of Congress beginning on the day 
on which this document is published to review the regulations before 
they take effect. After forty-five days, the regulations automatically 
become final and take effect, unless the Governor of the State of 
Florida certifies within the forty-five-day period to the Secretary of 
Commerce that a regulation or regulations is unacceptable. In such 
case, the regulation (or regulations) cannot take effect in the area of 
the Sanctuary lying within the seaward boundary of the State of 
Florida. In no event will Sec. 922.164(d) become effective in State 
waters before July 1, 1997. A document announcing the effective dates 
will be published in the Federal Register.

ADDRESSES: Requests for a copy of the FMP/EIS, the Final Regulatory 
Flexibility Analysis, or the Federalism Assessment should be submitted 
to the Sanctuary Superintendent, Florida Keys National Marine 
Sanctuary, P.O. Box 500368, Marathon, Florida 33050.

FOR FURTHER INFORMATION CONTACT: Billy Causey, Sanctuary 
Superintendent, 305/743-2437 or Edward Lindelof, East Coast Branch 
Chief, 301/713-3137 Extension 131.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The FKNMS was designated by an act of Congress entitled the Florida 
Keys National Marine Sanctuary and Protection Act (FKNMSPA, Pub. L. 
101-605) which was signed into law on November 16, 1990. The FKNMSPA 
directed the Secretary of Commerce to develop a comprehensive 
management plan and regulations for the Sanctuary pursuant to sections 
303 and 304 of the National Marine Sanctuaries Act (NMSA) (also known 
as Title III of the Marine Protection, Research, and Sanctuaries Act of 
1972), as amended, 16 U.S.C. 1431 et seq. The NMSA authorizes the 
development of management plans and regulations for national marine 
sanctuaries to protect their conservation, recreational, ecological, 
historical, research, educational, or aesthetic qualities.
    The authority of the Secretary to designate national marine 
sanctuaries and implement designated sanctuaries was delegated to the 
Under Secretary of Commerce for Oceans and Atmosphere by the Department 
of Commerce, Organization Order 10-15, Sec. 3.01(z) (Jan. 11, 1988). 
The authority to administer the other provisions of the NMSA was 
delegated to the Assistant Administrator for Ocean Services and Coastal 
Zone Management of NOAA by NOAA Circular 83-38, Directive 05-50 (Sept. 
21, 1983, as amended).

II. Summary of Final Management Plan/Environmental Impact Statement

    The FMP/EIS sets forth the affected environment of the Sanctuary 
including the boundary and details its resources and human uses of the 
Sanctuary. The FMP/EIS also describes the resource protection, 
research, education and interpretive enforcement programs, and details 
the specific activities to be conducted in each management program 
area. The FMP/EIS includes a discussion, by program area, of agency 
roles and responsibilities.
    The goals and objectives for the Sanctuary are to: (1) Enhance 
resource protection through comprehensive and coordinated conservation 
and ecosystem management that complements existing regulatory 
authorities; (2) support, promote, and coordinate scientific research 
on, and monitoring of, the site-specific marine resources to improve 
management decision-making in national marine sanctuaries; (3) enhance 
public awareness, understanding, and the wise use of the marine 
environment through public education, and interpretive enforcement; and 
(4) facilitate, to the extent compatible with the primary objective of 
resource protection, multiple uses of the Sanctuary.

A. Resource Protection

    The highest priority management goal is to protect the marine 
environment, resources, and qualities of the Sanctuary. The specific 
objectives of protection efforts are to: (1) Reduce threats to 
Sanctuary resources; (2) encourage participation by interested agencies 
and organizations in addressing specific management concerns (e.g., 
monitoring and emergency-response programs); (3) develop an effective 
and coordinated program for the interpretive enforcement of Sanctuary 
regulations in addition to other regulations already in place; (4) 
promote public awareness of, and voluntary compliance with, Sanctuary 
regulations and objectives through an educational/interpretive program 
stressing resource sensitivity and wise use; (5) ensure that the water 
quality of the Florida Keys is maintained at a level consistent with 
the purposes of Sanctuary designation; (6) establish cooperative 
agreements and other mechanisms for coordination among all the agencies 
participating in Sanctuary management; (7) ensure that the appropriate 
management agencies incorporate research results and scientific data 
into effective resource protection strategies; and (8) coordinate 
policies and procedures among the agencies sharing responsibility for 
protection and management of Sanctuary resources.

B. Research Program

    Effective management of the Sanctuary requires the conduct of a 
Sanctuary research program. The purpose of Sanctuary research is to 
improve understanding of the Florida Keys' coastal and offshore 
environment, resources, and qualities, and to resolve specific 
management problems. Some of

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these management problems involve resources common to coastal and 
offshore waters, and nearby Federal, State, and local refuges and 
reserves. Research results will both support management efforts to 
protect Sanctuary resources and qualities, and be incorporated into 
interpretative programs for visitors and others interested in the 
Sanctuary.
    Specific objectives for the research program are to: (1) Establish 
a framework and procedures for administering research to ensure that 
research projects are responsive to management concerns and that 
results contribute to improved management of the Sanctuary; (2) focus 
and coordinate data collection efforts on the physical, chemical, 
geological, and biological oceanography of the Sanctuary; (3) encourage 
studies that integrate research from the variety of coastal habitats 
with nearshore and open ocean processes; (4) initiate a monitoring 
program to assess environmental changes as they occur due to natural 
and human processes; (5) identify the range of effects on the 
environment that would result from predicted changes in human activity 
or natural phenomena; (6) encourage information exchange and 
cooperation among all the organizations and agencies undertaking 
management-related research in the Sanctuary to promote more informed 
management; and (7) incorporate research results into the interpretive/
education program in a format useful for the general public.

C. Education and Outreach

    The goal for the Sanctuary education and outreach program is to 
improve public awareness and understanding of the significance of the 
Sanctuary and the need to protect its resources and qualities.
    The management objectives designed to meet this goal are to: (1) 
Provide the public with information on the Sanctuary and its goals and 
objectives, with an emphasis on the need to use Sanctuary resources and 
qualities wisely to ensure their long-term viability; (2) broaden 
support for Sanctuary management by offering programs suited to 
visitors with a diverse range of interests; (3) provide for public 
involvement by encouraging feedback on the effectiveness of education 
programs, collaboration with Sanctuary management staff in extension 
and outreach programs, and participation in other volunteer programs; 
and (4) collaborate with other organizations to provide educational 
services complementary to the Sanctuary program.

D. Visitor Use

    The Sanctuary goal for visitor use management is to facilitate, to 
the extent compatible with the primary objective of resource 
protection, public and private uses of the resources of the Sanctuary 
not prohibited pursuant to other authorities.
    Specific management objectives are to: (1) Provide relevant 
information about Sanctuary regulations, use policies, and standards; 
(2) collaborate with public and private organizations in promoting 
compatible uses of the Sanctuary; (3) encourage the public who use the 
Sanctuary to respect sensitive Sanctuary resources and qualities; and 
(4) monitor and assess the levels of use to identify and control 
potential degradation of resources and qualities, and minimize 
potential user conflicts.
    The Sanctuary is currently managed from offices located in Key 
Largo and Key West, with the headquarters in Marathon.

III. Summary of the Final Regulations

    Two sets of existing regulations are eliminated and replaced by 
this final rule. Specifically, parts 929 and 937 to title 15 of the 
Code of Federal Regulations, which govern activities in the Key Largo 
and Looe Key National Marine Sanctuaries, respectively, are removed and 
replaced by the new regulations which govern the entire FKNMS. 
Consistent with the FKNMSPA, the Looe Key and Key Largo National Marine 
Sanctuaries have been incorporated into the FKNMS as Existing 
Management Areas (Sec. 922.164(b)(1)).
    Organizationally, these final regulations are revised from the 
proposed regulations in furtherance of the President's Regulatory 
Reinvention Initiative to, among other things, consolidate duplicative 
regulatory provisions. Consequently, the new regulations for the most 
part appear in a new subpart P to 15 CFR part 922 (15 CFR 922.160--
922.167) and in Appendixes I through VIII to subpart P. Existing 
Secs. 922.3, 922.42, 922.45, 922.46, 922.49 and 922.50 of 15 CFR part 
922 are also applicable to the Sanctuary. In some instances, this rule 
makes minor revisions to those and other sections of the National 
Marine Sanctuary Program Regulations at 15 C.F.R. part 922 to make them 
meld with the new subpart P.
    Section 922.160 sets forth the purpose of the regulations--to 
implement the comprehensive final management plan for the Sanctuary by 
regulating activities affecting the Sanctuary in order to protect, 
preserve, and manage the conservation, ecological, recreational, 
research, educational, historical and aesthetic resources and qualities 
of the area.
    Section 922.161 and Appendix I describe the boundary of the 
Sanctuary as established by section 5 of the FKNMSPA.
    Existing Sec. 922.3 defines terms applicable to all National Marine 
Sanctuaries. The Marine Protection, Research, and Sanctuaries Act also 
defines other terms applicable to all National Marine Sanctuaries. The 
terms ``historical resource,'' and ``sanctuary quality'' were slightly 
revised to reflect the Sanctuary's definitions as they appeared in the 
proposed regulations. The modified definitions further clarify the 
meaning of these terms, which are applicable to all the sanctuaries 
found in part 922.
    Section 922.162 defines terms only applicable to the FKNMS.
    Existing Sec. 922.42 specifies that all activities, including 
fishing, boating, diving, research, and education, are allowed in the 
National Marine Sanctuaries except to the extent that those activities 
are restricted or prohibited by subparts F through P of part 922 (in 
the case of the FKNMS by Secs. 922.163, 922.164), subject to any 
emergency regulation (in the case of the FKNMS under Sec. 922.165), and 
subject to all prohibitions, regulations, restrictions, and conditions 
validly imposed by any Federal, State, or local authority of competent 
jurisdiction. This section is intended to assure that if activities are 
not prohibited or otherwise restricted or conditioned pursuant to this 
part, or by any other Federal, State, or local authority of competent 
jurisdiction, then they are expressly allowed within the Sanctuary.
    Section 922.163 prohibits a variety of activities within the 
Sanctuary and in limited instances, outside the Sanctuary, thus making 
it unlawful for any person to conduct them or cause them to be 
conducted.
    The first activity prohibited is exploring for, developing, or 
producing minerals or hydrocarbons within the Sanctuary. The FKNMSPA 
already prohibits these activities. The Sanctuary's significant natural 
resources and qualities are especially sensitive to potential impacts 
from outer continental shelf minerals or hydrocarbon activities and 
should be protected. Specifically, the corals, seagrasses, and 
mangroves of the Florida Keys and the Sanctuary's water quality are 
especially vulnerable to oil and gas activities in the area. The 
prohibition on oil, gas and mineral activities will help protect the 
Sanctuary's resources and qualities.

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This specific prohibition is consistent with the general prohibition on 
drilling into, dredging or otherwise altering the seabed discussed 
below. The codification of the statutory prohibitions into the 
Sanctuary regulations is for regulatory cohesiveness (so that all 
restrictions or prohibitions found in the statute or imposed pursuant 
to the statute's authority can be found in one place) rather than to 
provide any additional protections.
    The second activity prohibited is the removal of, injury to, or 
possession of coral or live rock except as authorized by a Federal or 
State permit. The intent of this prohibition is to conserve the coral 
reefs, to protect the biodiversity of the Sanctuary, to protect the 
habitats of commercially and ecologically important species, and to 
preserve the natural functional aspects of the coral reef ecosystem.
    The third activity prohibited is alteration of, or construction on, 
the seabed. Such actions as drilling, dredging, and prop dredging are 
prohibited by this regulation. The seabed and the water over the seabed 
are the basic elements for all marine ecosystems. This prohibition 
protects the seabed as well as the resources in and on the seabed, such 
as shipwrecks, and seagrasses. Exceptions are made for anchoring in 
manners not otherwise prohibited, traditional fishing activities not 
otherwise prohibited, installation and maintenance of navigational 
aids, harbor maintenance, repair and replacement of jetties, and 
breakwaters, and construction, repair, and replacement of docks and 
piers.
    The fourth activity prohibited is the discharge or deposit of 
materials or other matter. Exceptions are made for such things as fish 
baits in connection with and during traditional fishing, biodegradable 
vessel effluents, graywater, and vessel exhaust and cooling water. The 
primary intent of this prohibition is to protect the Sanctuary 
resources and qualities against the harmful effects of land and marine 
based pollution, particularly vessel source pollution, to reduce and 
prevent contamination by marine debris and related impacts associated 
with pollution of the marine environment of the Sanctuary. Together 
with the prohibition on the alteration of, or construction on, the 
seabed, this provides a safety net for protection of specific resources 
and the ecosystem.
    The fifth activity prohibited is the operation of vessels in a 
manner which harms significant Sanctuary resources such as operating a 
vessel in such a manner as to strike or otherwise injure coral, 
seagrass, other immobile organism attached to the seabed, or to injure 
or take wading, nesting, or roosting seabirds or marine mammals. Also 
specifically prohibited is having a vessel anchored on living coral 
other than hardbottom in less than 40 feet of water when visibility is 
such that the seabed can be seen, operating a vessel at a speed greater 
than idle speed only/no wake within an area designated as idle speed 
only/no wake, within 100 yards of navigational aids indicating emergent 
or shallow reefs, residential shorelines, or stationary vessels, within 
100 feet of divers flags, and operating a vessel in a manner which 
endangers life, limb, marine resources, or property.
    The sixth activity prohibited is diving without a red and white 
``divers down'' flag or a blue and white ``alpha'' flag in Federal 
waters. The intent of this prohibition on divers in conjunction with 
the previous restriction on vessel operation is to help prevent injury 
to humans and facilitate safe, multiple use of the Sanctuary.
    The seventh activity prohibited is the release of exotic species. 
Exotic species can permanently alter a natural ecosystem and its 
assemblages by such things as out competing indigenous species and 
preying on indigenous species. The intent of this prohibition is to 
prevent injury to Sanctuary resources, to protect the biodiversity of 
the Sanctuary, and to preserve the natural functional aspects of the 
ecosystem. By protecting the natural ecosystem and assemblages, it also 
addresses concerns from commercial and recreational users dependent 
upon the natural ecosystem and assemblages.
    The eighth activity prohibited is the tampering with official signs 
or markers or navigational aids. The signs, markers and navigational 
aids generally are posted to inform the users about regulations as well 
as the existence of certain Sanctuary resources, primarily corals and 
seagrasses, in order to prevent injury to those resources. They also 
address safety concerns for humans and property. Prohibiting tampering 
is reasonable and necessary for effective prevention and enforcement of 
regulations.
    The ninth activity prohibited is the removing or injuring of 
Sanctuary historical resources. Submerged historical resources 
constitute important, irreplaceable, public resources of the Sanctuary 
because they contain important information about human heritage, 
history, and culture. This prohibition is designed to protect these 
resources and ensure their availability for present and future 
research, education and other uses compatible with the NMSA and the 
Abandoned Shipwreck Act (ASA).
    The tenth activity prohibited is taking or possessing certain 
protected wildlife. The Sanctuary is an important staging area, 
breeding area, and feeding area for a variety of wildlife, including a 
number of endangered and threatened species. The intent of this 
prohibition is to protect Sanctuary resources and endangered and/or 
threatened species.
    The eleventh activity prohibited is the possession or use of 
explosives and electrical charges. The intent of this prohibition is to 
prevent injury to Sanctuary resources.
    The twelfth activity prohibited is the harvest or possession of 
marine life species (tropical fish and plants), except in accordance 
with the Marine Life Rule of the Florida Administrative Code reproduced 
in Appendix VIII to this subpart. The intent of this regulation is to 
protect Sanctuary resources and biodiversity by adopting relevant 
portions of the Florida Marine Life rule as a uniform regulation to be 
applied throughout the Federal and State waters of the Sanctuary.
    The thirteenth activity prohibited is interfering with law 
enforcement officers. The intent of this prohibition is to prevent the 
obstruction of justice.
    Section 922.163 provides certain exemptions from the prohibitions 
such as when a prohibited activity is conducted by a Federal, State, or 
local officer while performing enforcement duties and/or while 
responding to emergencies. Certain activities conducted by the U.S. 
Department of Defense are also exempt. Also, a prohibited activity may 
be conducted if specifically authorized by, and conducted in accordance 
with a National Marine Sanctuary Permit.
    Section 922.164 sets forth by Sanctuary zone, restrictions and 
prohibitions above and beyond those applicable on a Sanctuary-wide 
basis (most of the Sanctuary is not zoned and, therefore, only the 
Sanctuary-wide prohibitions of Sec. 922.163 apply). The six type of 
Sanctuary zones are: (1) Areas to be Avoided (ATBAs); (2) Existing 
Management Areas; (3) Wildlife Management Areas; (4) Ecological 
Reserves; (5) Sanctuary Preservation Areas; and (6) Special-use Areas. 
Details on the location of these zones are specified in Appendices II, 
III, IV, V and VI to subpart P, respectively. The intent of the zoning 
regulations is to protect Sanctuary resources, ecosystem and 
biodiversity, and provide for effective management and facilitation of 
multiple, compatible uses, consistent with the purposes of the 
Sanctuary. Activities located within two or more

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overlapping Sanctuary zones are concurrently subject to the regulations 
applicable to each overlapping area.
    Section 922.164(a) prohibits the operation of a tank vessel or a 
vessel greater than 50 meters in registered length in an ATBA. The 
boundary coordinates for the ATBAs are listed in Appendix VII to this 
subpart. This prohibition merely codifies into the Sanctuary 
regulations the prohibition in the FKNMSPA against this activity in the 
ATBAs. The prohibition should prevent or minimize large or tank vessel 
groundings on the coral reef, and thus minimize the risk of extensive 
physical damage, spills and associated, possibly irreparable, injury to 
Sanctuary resources likely to result from a grounding of a large vessel 
or tank vessel.
    Section 922.164(b) sets forth additional restrictions applicable to 
Existing Management Areas--areas of the Sanctuary that are already 
within a resource management area established by NOAA or by another 
Federal authority of competent jurisdiction, and in need of a level of 
protection higher than that provided by the Sanctuary-wide prohibitions 
and restrictions of Sec. 922.163. The Existing Management Areas are the 
Looe Key and Key Largo National Marine Sanctuaries and the Key West and 
Great White Heron National Wildlife Refuges. The boundaries of these 
areas are set forth in Appendix II to subpart P.
    The FKNMSPA subsumed the Key Largo and Looe Key National Marine 
Sanctuaries into the FKNMS. The qualities and values for which those 
Sanctuaries were originally designated remain and require a continued 
level of protection above and beyond those applicable Sanctuary-wide. 
Therefore, consistent with the FKNMSPA, additional restrictions will 
remain applicable to those two areas. In order to do so, the areas of 
the two Sanctuaries have been zoned as Existing Management Areas with 
portions thereof also designated as Sanctuary Preservation Areas and 
Special-use Areas. Therefore, the special restrictions applicable to 
the two areas appear in the restrictions applicable to Existing 
Management Areas, Sanctuary Preservation Areas, and Special-use Areas.
    Section 922.164(b)(1) sets forth the special restrictions 
applicable to the entire Key Largo and Looe Key Existing Management 
Areas: (i) Removing, taking, damaging, harmfully disturbing, breaking, 
cutting, spearing or similarly injuring any coral or other marine 
invertebrate, or any plant, soil, rock, or other material, except 
commercial taking of spiny lobster and stone crab by trap and 
recreational taking of spiny lobster by hand or by hand gear which is 
consistent with these regulations and the applicable regulations 
implementing the applicable National Marine Fisheries Service Fishery 
Management Plans; (ii) taking any tropical fish; (iii) fishing with 
wire fish traps, bottom trawls, dredges, fish sleds, or similar vessel-
towed or anchored bottom fishing gear or nets; and (iv) fishing with, 
carrying or possessing, except while passing through without 
interruption or for law enforcement purposes: Pole spears, air rifles, 
bows and arrows, slings, Hawaiian slings, rubber powered arbaletes, 
pneumatic and spring-loaded guns or similar devices known as spearguns.
    Also designated Existing Management Areas are the Great White Heron 
and Key West National Wildlife Refuge Management Areas. The Refuges are 
subject to the continuing management and control of the Department of 
the Interior, notwithstanding the exercise of concurrent regulatory 
authority by NOAA in the surrounding marine environment in accordance 
with this part. The development of these Sanctuary regulations was the 
result of coordination with the Department of the Interior, U.S. Fish 
and Wildlife Service. Such coordination will continue in the 
implementation and enforcement of these rules and regulations in a 
manner that complements the Sanctuary final management plan as well as 
existing refuge management plans. The Sanctuary's interpretive 
enforcement approach will be utilized in these areas to supplement 
existing enforcement by the U.S. Fish and Wildlife Service.
    Section 922.164(b)(2) incorporates existing U.S. Fish and Wildlife 
Service restrictions which prohibit waterskiing, operating personal 
watercraft, and operating airboats within the Great White Heron and Key 
West National Wildlife Refuge Management Areas into Sanctuary 
regulations. By incorporating those provisions into the Sanctuary 
regulations, civil penalties can be sought for violation of Sanctuary 
regulations. Presently, only criminal sanctions, which are more 
difficult to prove and not always the best means of obtaining 
compliance, are available.
    Section 922.164(c) sets forth the procedures for designating and 
changing the designation of all or part of the marine portions of the 
27 Wildlife Management Areas listed in Appendix III as ``idle speed 
only/no-wake'', ``no motor'', ``no access buffer'' or ``closed'' areas. 
Wildlife Management Areas are areas established for the management, 
protection, and preservation of wildlife resources, including such 
areas established for the protection and preservation of endangered or 
threatened species or their habitats, within which access is restricted 
to minimize disturbances to wildlife and to ensure protection and 
preservation consistent with the Sanctuary designation and other 
applicable law governing the protection and preservation of wildlife 
resources. Only the marine portions of these areas are within the 
Sanctuary, the land portions are under the Department of the Interior's 
and the State of Florida's jurisdiction and protection.
    An ``idle speed only/no-wake zone'' means a portion of the 
Sanctuary where the speed at which a boat is operated may be no greater 
than 4 knots or may not produce a wake. A ``no motor zone'' means an 
area of the Sanctuary where the use of internal combustion motors is 
prohibited. A vessel with an internal combustion motor may access a no 
motor zone only through the use of a push pole, paddle, sail, electric 
motor or similar means of operation but is prohibited from using it's 
internal combustion motor. A ``no-access buffer zone'' means a portion 
of the Sanctuary where vessels are prohibited from entering regardless 
of the method of propulsion. ``Closed'' means all entry or use is 
prohibited.
    The regulations require the Director or designee, in cooperation 
with other Federal, State, or local resource management authorities, as 
appropriate, to effect such designations by posting official signs 
conspicuously, using mounting posts, buoys, or other means according to 
location and purpose, at appropriate intervals and locations. Appendix 
III also sets forth the access restrictions applicable to the marine 
portions of the Wildlife Management Areas. The intent of these rules is 
to protect wildlife resources from injury or harmful disturbance within 
sensitive areas and habitats. It is also the intent of these 
restrictions to protect Sanctuary resources and qualities through 
coordination with the Department of the Interior and others in a manner 
that recognizes and complements the existing management of the land 
portions of these areas. For example, a closure of a beach above the 
mean high water by the Department of the Interior is complemented by a 
closure of adjacent marine areas in the Sanctuary regulations. More 
importantly, the Sanctuary's interpretive enforcement approach will be 
utilized in these areas to supplement existing enforcement by the 
Department of the Interior. As discussed above, civil sanctions are 
available to address violations of

[[Page 4582]]

Sanctuary regulations while only criminal sanctions are available to 
address violations of the Interior's rules.
    Section 922.164(d) sets forth prohibitions applicable to activities 
conducted within Ecological Reserves and Sanctuary Preservation Areas. 
Ecological Reserve means an area of the Sanctuary consisting of 
contiguous, diverse habitats, within which uses are subject to 
conditions, restrictions and prohibitions, including access 
restrictions, intended to minimize human influences, to provide natural 
spawning, nursery, and permanent residence areas for the replenishment 
and genetic protection of marine life, and also to protect and preserve 
natural assemblages of habitats and species within areas representing a 
broad diversity of resources and habitats found within the Sanctuary. 
Appendix IV sets forth the geographic coordinates of the Western Sambos 
Ecological Reserve-the only Ecological Reserve established by the final 
regulations. Another Ecological Reserve-the Dry Tortugas Ecological 
Reserve will be proposed by a separate rulemaking.
    Sanctuary Preservation Area means an area of the Sanctuary that 
encompasses a discrete, biologically important area, within which uses 
are subject to conditions, restrictions and prohibitions, including 
access restrictions, to avoid concentrations of uses that could result 
in significant declines in species populations or habitat, to reduce 
conflicts between uses, to protect areas that are critical for 
sustaining important marine species or habitats, or to provide 
opportunities for scientific research. Appendix V sets forth the 
geographic coordinates of the 18 Sanctuary Preservation Areas 
established by the final regulations.
    Above and beyond the activities prohibited Sanctuary-wide, the 
following activities are prohibited in the Ecological Reserves and 
Sanctuary Preservation Areas: (i) Discharging or depositing any 
material or other matter except cooling water or engine exhaust; (ii) 
possessing, moving, harvesting, removing, taking, damaging, disturbing, 
breaking, cutting, spearing, or otherwise injuring any coral, marine 
invertebrate, fish, bottom formation, algae, seagrass or other living 
or dead organism, including shells, or attempting any of these 
activities. However, fish, invertebrates, and marine plants may be 
possessed aboard a vessel in an Ecological Reserve or Sanctuary 
Preservation Area, provided such resources can be shown not to have 
been harvested within, removed from, or taken within, the Ecological 
Reserve or Sanctuary Preservation Area, as applicable, by being stowed 
in a cabin, locker, or similar storage area prior to entering and 
during transit through such reserves or areas; (iii) except for catch 
and release fishing by trolling in the Conch Reef, Alligator Reef, 
Sombrero Reef, and Sand Key Sanctuary Preservation Areas, fishing by 
any means. However, gear capable of harvesting fish may be aboard a 
vessel in an Ecological Reserve or Sanctuary Preservation Area, 
provided such gear is not available for immediate use when entering and 
during transit through such Ecological Reserve or Sanctuary 
Preservation Area, and no presumption of fishing activity shall be 
drawn therefrom (baitfishing by net for ballyhoo in SPAs will be 
allowed pursuant to a Sanctuary permit); (iv) touching living or dead 
coral, including but not limited to, standing on a living or dead coral 
formation; (v) placing any anchor in a way that allows the anchor or 
any portion of the anchor apparatus (including the anchor, chain or 
rope) to touch living or dead coral, or any attached organism. When 
anchoring dive boats, the first diver down must inspect the anchor to 
ensure that it is not touching living or dead coral, and will not shift 
in such a way as to touch such coral or other attached organisms. No 
further diving shall take place until the anchor is placed in 
accordance with these requirements; (vi) anchoring instead of mooring 
when a mooring buoy is available or anchoring in other than a 
designated anchoring area when such areas have been designated and are 
available; (vii) except for passage without interruption through the 
area, for law enforcement purposes, or for purposes of monitoring a 
temporary access restriction or closure, violating a temporary access 
restriction imposed by the Director.
    Section 922.164(d)(2) authorizes the Director to temporarily 
restrict access to any portion of any Sanctuary Preservation Area or 
Ecological Reserve if the Director, on the basis of the best available 
data, information and studies, determines that a concentration of use 
appears to be causing or contributing to significant degradation of the 
living resources of the area and that such action is reasonably 
necessary to allow for recovery of the living resources of such area. 
The Director must provide for continuous monitoring of the area during 
the pendency of the restriction. The Director must provide public 
notice of the restriction by publishing a notice in the Federal 
Register, and by such other means as the Director may deem appropriate. 
The Director may only restrict access to an area for a period of 60 
days, with one additional 60-day renewal. The Director may restrict 
access to an area for a longer period pursuant to a notice and 
opportunity for public comment rulemaking under the Administrative 
Procedure Act. Such restriction will be kept to the minimum amount of 
area necessary to achieve the purposes thereof.
    It should be noted that Sec. 922.164(d) will not take effect in 
State waters before July 1, 1997, to allow the State of Florida Marine 
Fisheries Commission to complete its rulemaking process related to the 
Sambos Ecological Reserve and those Sanctuary Preservation Areas 
located in State waters. If the Commission's rule is not substantively 
the same as NOAA's, then NOAA will modify these regulations to conform 
with those of the State or will consult with the State on whether the 
non-conforming portions of the Sanctuary regulations should be 
withdrawn from applying in State waters.
    The intent of the establishment of, and regulation of uses within, 
the Sanctuary Preservation Areas is to avoid concentrations of uses 
that could result in significant declines in species populations or 
habitat, to reduce conflicts between uses, to protect areas that are 
critical for sustaining important marine species or habitats, or to 
provide opportunities for scientific research. The intent of the 
establishment of, and regulation of uses within, the Ecological 
Reserves is to minimize human influences, to provide natural spawning, 
nursery, and permanent residence areas for the replenishment and 
genetic protection of marine life, and also to protect and preserve 
natural assemblages of habitats and species within areas representing a 
broad diversity of resources and habitats found within the Sanctuary.
    Section 922.164(e) sets forth the procedures and criteria pursuant 
to which the Director or designee may set aside discrete areas of the 
Sanctuary as Special-use Areas, designate such areas as ``recovery 
areas'' to provide for the recovery of Sanctuary resources from 
degradation or other injury attributable to human uses; ``restoration 
areas'' to provide for restoration of degraded or otherwise injured 
Sanctuary resources; ``research-only areas'' to provide for scientific 
research or education relating to protection and management, through 
the issuance of a Sanctuary General permit for research; or 
``facilitated use areas'' to provide for the prevention of use or user 
conflicts or the facilitation of access and use, or to promote public 
use and understanding, of Sanctuary resources through the issuance of 
special-use permits, as appropriate, and impose access and use 
restrictions to

[[Page 4583]]

protect the Sanctuary resources and qualities and allow for multiple, 
compatible uses within the Sanctuary. Special-use Areas must be no 
larger than the size the Director deems reasonably necessary to 
accomplish the applicable objective. Appendix VI sets forth the 
boundaries of the four Special-use Areas established by the final 
regulations. All four of these areas are ``research-only areas''.
    Persons conducting activities within any Special-use Area are 
required to comply with the access and use restrictions specified in 
Sec. 922.164(e)(3) and made applicable to such area by means of its 
designation as a ``recovery area,'' ``restoration area,'' ``research-
only area,'' or ``facilitated-use area.'' Except for passage without 
interruption through the area or for law enforcement purposes, no 
person may enter a Special-use Area except to conduct or cause to be 
conducted the following activities: (i) In such area designated as a 
``recovery area'' or a ``restoration area'', habitat manipulation 
related to restoration of degraded or otherwise injured Sanctuary 
resources, or activities reasonably necessary to monitor recovery of 
degraded or otherwise injured Sanctuary resources; (ii) in such area 
designated as a ``research only area'', scientific research or 
educational use specifically authorized by and conducted in accordance 
with the scope, purpose, terms and conditions of a valid National 
Marine Sanctuary General or Historical Resources permit; or (iii) in 
such area designated as a ``facilitated-use area'', activities 
specified by the Director or specifically authorized by and conducted 
in accordance with the scope, purpose, terms, and conditions of a valid 
Special-use permit.
    The Director may modify the number of, location of, or designations 
applicable to, Special-use Areas by publishing in the Federal Register, 
after notice and an opportunity for public comment in accordance with 
the Administrative Procedure Act, an amendment to Appendix VI, except 
that, with respect to such areas designated as a ``recovery area,'' 
``restoration area,'' or ``research only area,'' the Director may 
modify the number of, location of, or designation applicable to, such 
areas by publishing a notice of such action in the Federal Register if 
the Director determines that immediate action is reasonably necessary 
to: (1) Prevent significant injury to Sanctuary resources where 
circumstances create an imminent risk to such resources; (2) initiate 
restoration activity where a delay in time would significantly impair 
the ability of such restoration activity to succeed; or (3) initiate 
research activity where an unforeseen natural event produces an 
opportunity for scientific research that may be lost if research is not 
initiated immediately. If the Director determines that a notice of 
modification must be promulgated immediately, the Director must, as 
part of the same notice, invite public comment and specify that 
comments will be received for 15 days after the effective date of the 
notice. As soon as practicable after the end of the comment period, the 
Director must either rescind, modify or allow the modification to 
remain unchanged through notice in the Federal Register.
    Section 922.165 provides that where necessary to prevent, minimize, 
or minimize the imminent risk of destruction of, loss of, or injury to 
a Sanctuary resource, any and all activities are subject to immediate 
temporary regulation, including prohibition. Any such temporary 
regulation may be in effect for up to 60 days with one 60-day 
extension. Additional or extended action is subject to the provisions 
of the Administrative Procedure Act.
    Section 922.45 sets forth the maximum civil penalty for violating 
the NMSA or FKNMSPA, the regulations or any permit issued pursuant 
thereto--$100,000. Each day of a continuing violation constitutes a 
separate violation. Regulations setting forth the procedures for civil 
penalties, permit sanctions, use of written warnings and release or 
forfeiture of seized property appear at 15 CFR part 904.
    Section 922.46 repeats the provision in section 312 of the NMSA 
that any person who destroys, causes the loss of, or injures any 
Sanctuary resource is liable to the United States for response costs, 
damages and interest resulting from such destruction, loss or injury, 
and any vessel used to destroy, cause the loss of, or injure any 
Sanctuary resource is liable in rem to the United States for response 
costs, damages and interest resulting from destruction, loss or injury.
    The purpose of Secs. 922.45 and 922.46 is to further notify the 
public of the liability for violating a Sanctuary regulation, permit 
issued pursuant thereto, or the NMSA, or for causing the destruction, 
loss of, or injury to Sanctuary resources.
    Section 922.166(a) sets forth the procedures for applying for a 
National Marine Sanctuary General Permit to conduct a prohibited 
activity and the criteria governing the issuance, denial, amendment, 
suspension and revocation of such permits. A General Permit may be 
issued by the Director or designee if he or she finds that the activity 
will: Further research or monitoring related to Sanctuary resources and 
qualities; further the educational, natural or historical resource 
value of the Sanctuary; further salvage or recovery operations in or 
near the Sanctuary in connection with a recent air or marine casualty; 
assist in managing the Sanctuary; or otherwise further Sanctuary 
purposes, including facilitating multiple use of the Sanctuary, to the 
extent compatible with the primary objective of resource protection. 
The Director cannot issue a General Permit without finding that: The 
applicant has the professional qualifications and financial resources 
to conduct and complete the activity; the duration of the activity is 
no longer than necessary and the methods and procedures are appropriate 
to achieve the stated purpose; the activity will be conducted in a 
manner compatible with the primary objective of protection of Sanctuary 
resources and qualities; it is necessary to conduct the activity within 
the Sanctuary to achieve its purposes; the reasonably expected end 
value of the activity will further Sanctuary goals and purposes and 
outweighs any potential adverse impacts of the activity on Sanctuary 
resources. For activities proposed to be conducted within an Existing 
Management Area, a Wildlife Management Area, an Ecological Reserve, a 
Sanctuary Preservation Area, or a Special-use Area, the Director cannot 
issue a Permit unless he or she also finds that such activities will 
further and are consistent with the purposes for which such area was 
established.
    Section 922.166(b) sets forth the application procedures and 
issuance criteria for National Marine Sanctuary Survey/Inventory of 
Historical Resources Permits. Such permits are not required if such 
survey/inventory activity does not involve any activity prohibited by 
Secs. 922.163 or 922.164. If a survey/inventory activity will involve 
test excavations or removal of artifacts or materials for evaluative 
purposes, a Survey/Inventory of Historical Resources Permit is 
required. A Survey/Inventory permit may be issued if the activity will 
be non-intrusive, not include any excavation, removal, or recovery of 
historical resources and not result in destruction of, loss of or 
injury to Sanctuary resources or qualities. Such permit may also be 
issued if the activities are intrusive but will involve no more than 
the minimum manual alteration of the seabed and/or the removal of 
artifacts or other material necessary for evaluative purposes and

[[Page 4584]]

will cause no significant adverse impacts on Sanctuary resources or 
qualities. Such permit must be determined to be in the public interest 
and be consistent with the Programmatic Agreement Among NOAA, the 
Advisory Council on Historic Preservation, and the State of Florida on 
Submerged Cultural Resources (hereinafter SCR Agreement).
    Pursuant to Sec. 922.166(c), a National Marine Sanctuary Research/
Recovery of Sanctuary Historical Resources Permit may be issued for a 
person to conduct any activity prohibited by Secs. 922.163 or 922.164 
involving the research/recovery of Sanctuary historical resources. Such 
research/recovery of resources must be determined to be in the public 
interest as described in these regulations and the SCR agreement. 
Intrusive research and/or recovery may destroy the resources and 
therefore the consideration of such permits will be based upon a 
balancing of factors and criteria to determine whether the goals of 
preservation, research, education, and public access are better served 
by permitting this type of activity as opposed to leaving the historic 
resources in place.
    Pursuant to Sec. 922.166(d) (1) and (2), National Marine Sanctuary 
Special-use permits may be issued to conduct a commercial or 
concession-type activity prohibited by Secs. 922.163 or 922.164. Such 
permits may be issued to establish conditions of access to and use of 
any Sanctuary resource, or promote public use and understanding of any 
Sanctuary resources. No permit may be issued unless the proposed 
activity is compatible with the purposes for which the Sanctuary was 
designated and can be conducted in a manner that does not destroy, 
cause the loss of, or injure and Sanctuary resource; and for the 
deaccession-transfer of Sanctuary Historical Resources, unless the 
activity will be conducted in accordance with all requirements of the 
SCR Agreement.
    Section 922.166(d)(3) allows the Director to assess and collect 
fees for the conduct of any activity authorized by a Special-use permit 
issued pursuant to this section. No Special-use permit can be effective 
until all assessed fees are paid. This section also provides the 
criteria for determining the appropriate costs and fees.
    Section 922.166(e) specifies the information which must be 
submitted when applying for a permit and the address for submissions 
and for submitting supplementary information.
    Section 922.166(f) states that a permit may be issued for a period 
not exceeding five years. Renewals must follow the same procedures as 
those for applying for a new permit. All permits will be reviewed 
annually to determine the permittee's compliance.
    Section 922.166(g) states that the Director may amend, suspend, or 
revoke a permit for good cause. Further, the Director may deny a permit 
if the permittee or applicant has acted in violation of a previous 
permit, or for other good cause. Procedures governing permit sanctions 
and denials for enforcement reasons are set forth in subpart D of 15 
CFR part 904.
    Pursuant to Sec. 922.166(h), the applicant for or holder of a 
Sanctuary permit may appeal the denial conditioning, amendment, 
suspension or revocation of a permit pursuant to the procedures set 
forth in Sec. 922.50.
    Pursuant to Sec. 922.166(i), a permit issued other than a Special-
use permit is nontransferable. Special-use permits may be transferred, 
sold, or assigned with the written approval of the Director as 
described in this section.
    Section 922.166(j) requires that permits (or a copy thereof) issued 
pursuant to these regulations must be maintained in legible condition 
on board all vessels or aircraft used in the conduct of the permitted 
activity.
    Pursuant to Sec. 922.166(k), any permit issued pursuant to this 
section is subject to the following terms and conditions: all permitted 
activities will be conducted in a manner that does not destroy, cause 
the loss of, or injury Sanctuary resources or qualities, except as 
specifically authorized; the permittee agrees to hold the United States 
harmless against any claims arising from permitted activities; all 
necessary Federal, State and local permits from all agencies with 
jurisdiction over the proposed activities shall be secured before 
commencing field operations.
    Pursuant to Sec. 922.166(l), in addition to Sec. 922.166(k), the 
permits for research/recovery of historical resources require that a 
professional archaeologist be in charge of the research-recovery 
planning, field recovery operations, and research analysis; an 
agreement with a conservation laboratory shall be in place before field 
recovery operations begin; an approved nautical conservator shall be in 
charge of conservation activities; and a curation agreement with a 
museum or facility shall be in place before commencing field operations 
which addresses the curation, public access, display and maintenance of 
the recovered historical resources. Deaccession/transfer of historical 
resources require a Special-use permit pursuant to paragraph (d). Such 
Special-use permits must also be executed in accordance with the 
requirements of the SCR Agreement.
    In addition to the paragraphs above, Sec. 922.166(m) stipulates 
that any permit issued pursuant to this section is subject to such 
other terms and conditions as the Director deems necessary for the 
purposes for which the Sanctuary is designated, including but not 
limited to: Any data or information obtained under the permit shall be 
made available to the public; a NOAA official shall be allowed to 
observe any activity conducted under the permit, the permittee shall 
submit one or more reports on the status, progress or results of 
activity authorized under the permit; the permittee shall submit an 
annual report; the permittee shall purchase and maintain general 
liability insurance or other acceptable security against potential 
claims for loss.
    Section 922.167 sets forth procedures for requesting certification 
of preexisting leases, licenses, permits, approvals, other 
authorizations or rights to conduct a prohibited activity in existence 
on the effective date of these regulations authorizing the conduct of 
an otherwise prohibited activity. The holder of such authorization must 
notify the Director within 90 days of the effective date of these 
regulations of the existence of such authorization and request 
certification of such authorization; the holder must comply with other 
provisions of this section and must comply with any terms and 
conditions on the exercise of such authorization by the Director to 
achieve the purposes for which the Sanctuary was designated. The permit 
holder may continue the authorized activity without being in violation 
of these regulations pending final agency action on his or her 
certification request. Requests for findings or certifications must be 
addressed to the FKNMS office in Marathon, Florida. The Director may 
request additional information from the certification requester as is 
deemed necessary to determine if the activity is consistent with the 
purposes for which the Sanctuary was designated. This section also 
provides the appeal process for any action conditioning, amending, 
suspending, or revoking certifications. Any amendment, renewal or 
extension made after the effective date of this regulation is subject 
to the provisions of Sec. 922.168.
    Section 922.49 addresses notification and review of applications 
for leases, licenses, permits, approvals or other authorizations to 
conduct a prohibited activity in the FKNMS. A person may conduct an 
activity prohibited by these regulations if such activity is authorized 
by any valid Federal, State or local lease, permit, license, approval, 
or other authority after the effective date of these

[[Page 4585]]

regulations provided that the applicant notifies the Director in 
writing within 15 days of filing the application or the effective date 
of these regulations, whichever is later; the applicant complies with 
the other provisions of this section; the Director notifies the 
applicant and authorizing agency that he or she does not object to the 
issuance of the authorization; and the applicant complies with any 
terms and conditions the Director deems reasonably necessary to protect 
Sanctuary resources and qualities.
    Pursuant to paragraph (b), any potential applicant for an 
authorization described in this part may request the Director to issue 
a finding as to whether the activity is prohibited by Secs. 922.163 or 
922.164. Paragraph (c) provides that applications be mailed to the 
address found, in the case of the FKNMS, in subpart P. Paragraph (d) 
authorizes for the Director to request additional information as 
necessary for the applicant to enable a determination whether to object 
to issuance of an authorization described in paragraph (a) above. 
Paragraph (e) requires the Director to notify the agency to which the 
application was made in writing whether he or she has an objection to 
issuance and what terms and conditions he or she deems necessary to 
protect Sanctuary resources.
    Paragraphs (f) and (g) provide the administrative ability for the 
Director to amend the terms and conditions necessary to protect 
Sanctuary resources and qualities whenever additional information 
becomes available and extend any time limit for good cause. Paragraph 
(h) specifies that an applicant may appeal any objection by, or terms 
or conditions imposed by, the Director to the Assistant Administrator 
or designee in accordance with the provisions of Sec. 922.50.
    Section 922.50 sets forth the appeals process for administrative 
actions related to the issuance for permits except for enforcement 
actions.

Major Issues Addressed in Comments and NOAA's Responses

    On March 30, 1995 NOAA published a proposed Designation Document 
and proposed implementing regulations and announced the availability of 
the draft management plan and environmental impact statement (DMP/EIS) 
(60 FR 16399). Public hearings to receive comments on the proposed 
regulations, and the DMP/EIS were held on November 1 in Miami; November 
3 in Key Largo; November 6 in Marathon; November 7 in Key West; 
November 9 in St. Petersburg; and November 14 in Silver Spring, MD.
    The nine month public review period ending on December 31, 1995, 
resulted in NOAA receiving over 6,400 statements of public comment on 
the DMP/EIS. In addition, the Sanctuary Advisory Council (SAC) provided 
NOAA with its comments on the plan. All comments received on the DMP/
EIS were recorded in a computerized database and assigned a unique 
comment identification number. These records consist of the reviewer's 
name; company, organization, or agency; address; a synopsis of the 
comment; and NOAA's response. Details of this public review process are 
provided in the general introduction to Volume I of the final 
management plan and environmental impact statement (FMP/EIS).
    Comments were received about many aspects of the management plan 
and EIS, however, a majority of the comments focused on a limited 
number of issues. Comments were received from diverse groups and 
individuals, including private businesses and organizations, elected 
officials, the SAC and representatives of Federal, State, and county 
agencies.
    NOAA received a number of specific comments on the DMP/EIS, 
including recommendations on strategies, activities, and priority 
levels. Some comments were specific enough to cite page numbers and 
recommended language revisions. NOAA appreciates the level of public 
comment and has revised the document based on a balance of these 
comments in light of the requirements of the NMSA, FKNMSPA, NEPA, and 
other applicable laws. Consistent with the requirements of NEPA and the 
Administrative Procedure Act (APA), this section discusses the 
significant issues and substantive concerns that the commentors have 
brought to NOAA's attention.
    All comments received by NOAA in response to the Federal Register 
notices and public hearings were considered and, where appropriate, 
were incorporated. A summary of the significant comments on the 
proposed regulations and DMP/EIS and NOAA's responses is set forth 
below. The comments are also presented and responded to in the 
administrative record.

The Need for the Florida Keys National Marine Sanctuary

    Comment: There is no need for a Sanctuary.
    Response: NOAA disagrees. In 1990, Congress enacted the FKNMSPA in 
recognition of the need to provide comprehensive protection and 
management of the diverse marine environments of the Florida Keys. 
These environments possess important and unique living and non-living 
resources, including seagrass meadows, mangrove islands, and extensive 
living coral reefs. These habitats support rich biological communities, 
possessing extensive conservation, recreational, commercial, 
ecological, historical, research, educational, and aesthetic values 
which give the area special national significance. Congress found these 
environments to be the marine equivalent of tropical rain forests in 
that they support a rich level of biological diversity, are fragile and 
easily susceptible to damage from human activities, and possess high 
value to human beings if properly conserved. To this end, the Act 
expressly prohibits oil drilling within the Sanctuary and prevents tank 
vessels or ships greater than 50 meters in length from entering the 
Area to be Avoided within the Sanctuary boundary.
    Past resource management efforts in the Florida Keys have only 
focused on small portions of the coral reef ecosystem in a checkerboard 
fashion. These efforts have not taken a holistic approach to protecting 
the marine environment of the Florida Keys and as a consequence, the 
coral reef resources have declined steadily over the past two decades. 
Piecemeal management of the marine resources of the Florida Keys, 
especially the coral reefs, seagrass communities, hardbottom habitats, 
and mangrove fringed shorelines, combined with a continued decline in 
the quality of the water that flows over these habitats, has resulted 
in a threat to the stability of the marine environment in the Keys. 
Consequently, since the economy of the Florida Keys is so closely 
linked to a healthy marine environment, the status quo approach to 
managing the marine resources of the Keys could result in an economic 
collapse in the near future.
    The Act directed NOAA to develop a comprehensive management plan 
and implementing regulations for the Sanctuary in consultation with 
appropriate Federal, State and local governments and with the SAC. 
Pursuant to this mandate, NOAA developed a comprehensive management 
plan and regulations to protect and manage the living and non-living 
resources of the Sanctuary. Regulations were developed to protect 
Sanctuary resources and minimize conflicts among the various users of 
those resources. For example, establishing zones with special 
restrictions to protect habitat in those zones and prohibiting 
potentially

[[Page 4586]]

harmful activities such as prop dredging and prop scarring throughout 
the Sanctuary are effective management tools. Regulations supplement, 
but do not duplicate, existing management authorities with jurisdiction 
in the Sanctuary.
    The FKNMS will provide a comprehensive and coordinated regime to 
protect, manage and conserve the nationally significant resources of 
the Florida Keys so they may be enjoyed by both present and future 
generations.

The Need for Management of the Sanctuary

    Comment: Many commentors asserted that the Sanctuary will add 
another costly layer of bureaucracy, while others commented on the 
benefits of integration and the role the FKNMS has played in 
interagency planning.
    Response: The Sanctuary is not an extra layer of bureaucracy and 
there are many ways in which the National Marine Sanctuary Program will 
improve management of the Keys' marine resources. National Marine 
Sanctuaries are designated to protect marine resources that are unique 
and possess high national significance. Boundaries of National Marine 
Sanctuaries only extend to the mean-high tide mark and do not include 
land above that mark. The concept of a National Marine Sanctuary as a 
``place'' seems to be overlooked by some of the public. The Sanctuary 
is not a thing or an ``extra layer of bureaucracy'; and it is not a 
collection of agencies, environmental groups, or user groups, it is a 
very special place, deserving of protection for the use and enjoyment 
of present and future generations. The waters and marine resources 
surrounding the Keys are unlike any other on earth and they need and 
deserve our immediate attention. We will lose our coral reefs if the 
declines we've witnessed over the past two decades continue.
    Congress, through the FKNMSPA, designated the Sanctuary, drew a 
line around the Keys and declared to the world that the marine 
resources of the Keys are special and unique. The Act also delegated to 
NOAA, an agency with experience in managing marine protected areas 
where the economy is highly dependent on healthy marine resources, the 
responsibility to manage the Sanctuary and make the Sanctuary part of a 
national program internationally known for its ability to manage marine 
resources for multiple uses, both recreational and commercial; a 
program that emphasizes an educational approach to management. The 
FKNMSPA also places an important safeguard on the agency: ``Nothing in 
this Act is intended to restrict activities that do not cause an 
adverse effect to the resources or property of the Sanctuary or that do 
not pose harm to users of the Sanctuary.''
    The National Marine Sanctuary Program is not new to the Florida 
Keys. The program has had a very successful 20 year history in the 
Keys, protecting some of the most popular coral reef dive sites in the 
world. The Key Largo National Marine Sanctuary, designated in 1975, 
protects all the coral reefs along a 20 mile stretch in the upper Keys. 
The relationship of the Sanctuary with the business community has been 
excellent. The Key Largo Chamber of Commerce continues to be a 
tremendous supporter of the Sanctuary where divers, dive operators, 
recreational and charter fishermen, and commercial fishermen continue 
to work and play.
    Looe Key National Marine Sanctuary was designated in 1981, 
following a lengthy designation process where local businesses, divers, 
and commercial fishermen in the vicinity of Big Pine Key reacted in 
opposition. Rumors, misinformation, and a basic misunderstanding of 
what a ``National Marine Sanctuary'' actually is, were the fuels that 
fired lengthy debates. Shortly after Looe Key became operational and 
management measures were implemented, many of the fears such as 
commercial fishermen being ``put out of business'' disappeared. A good 
working relationship was established with the regular users of the Looe 
Key Sanctuary and businesses dependent on a healthy coral reef 
continued to flourish. As a result of good management, in 1985, a 
travel writer for the Miami Herald declared Looe Key as one of the top 
ten dive destinations in the world.
    During the past 15 years the Looe Key and Key Largo National Marine 
Sanctuaries have been used as models for managing marine protected 
areas, both domestically and internationally. This reputation was well 
known to the authors of the FKNMSPA that was passed to designate the 
Sanctuary.
    The National Marine Sanctuary Program protects and manages 
Sanctuary resources for their continued use by present and future 
generations. A goal of National Marine Sanctuaries is to facilitate 
compatible use of marine resources by businesses that are economically 
dependent upon them, to the extent those uses are compatible with the 
primary objective of resource protection. This is the first step toward 
sustainability of this marine area for present and future generations.
    The Key Largo and Looe Key National Marine Sanctuaries make up 
about 23 linear miles of the 220 mile long coral reef tract along the 
Florida Keys. The designation of the FKNMS provides resource protection 
to the remaining 197 miles of coral reef and marine ecosystem that were 
not previously protected. This is not an extra layer of bureaucracy 
because prior to the Sanctuary's designation little comprehensive 
resource protection management existed.
    National Marine Sanctuaries are known for their integrated 
comprehensive management through establishing partnerships. In Florida, 
the Sanctuary Program started ``reinventing government'' in 1980, by 
establishing a cooperative agreement with the State of Florida, 
Department of Natural Resources, for the management of the Key Largo 
National Marine Sanctuary and later, the Looe Key National Marine 
Sanctuary. These were areas located entirely in Federal waters, but 
managed by State staff, through 100 percent Federal (NOAA) funding. 
Today, more than half of the Sanctuary staff are State employees paid 
entirely by Federal funds, including the education staff, Sanctuary 
officers, and the lower Florida Keys' administration.
    The concept of interagency partnerships has been expanded in the 
management plan for the FKNMS. Dozens of representatives from local, 
State, and Federal agencies came to the table to assist in the 
development of the most comprehensive management plan ever attempted in 
a marine protected area. They also assisted in the development of the 
National Marine Sanctuary Program's first water quality protection 
plan. As a special place, the Keys are deserving of the best kind of 
management that could be afforded.
    There are many agencies involved in various management activities 
in the Keys. However, these activities have not been integrated in the 
past, and consequently there has not been a holistic approach to 
managing the fragile marine resources of the Keys. The potential 
benefits of integrated management of marine resources are numerous 
including better protection of the marine resources, savings to tax 
payers by agencies sharing resources, less duplication of efforts, 
opportunities for increased interagency coordination, and the list goes 
on.
    The regulations do not usurp the authority or jurisdiction within 
the Sanctuary boundary of other agencies to impose regulations more 
protective of Sanctuary resources than the Sanctuary regulations. The 
State will continue to have that authority in State waters and other 
Federal laws, such as the Magnuson-Stevens Fisheries Conservation and 
Management Act, will

[[Page 4587]]

continue to apply. However, other agencies cannot authorize a violation 
of Sanctuary regulations, just as the Sanctuary cannot authorize a 
violation of State or Federal agency regulations.
    The FKNMSPA prohibits oil, gas and mineral development within the 
Sanctuary and prohibits tank vessels or ships greater than 50 meters in 
length from entering the Area to be Avoided within the Sanctuary 
boundary. No other management program provides this level of 
comprehensive protection to the marine resources (e.g., seagrasses, 
hard bottoms, and coral reefs) of the Florida Keys, or provides the 
legislative mandate and authority to holistically manage and protect 
all of the marine communities as an ecosystem. This is a charge given 
specifically to NOAA and is not redundant of other management programs, 
nor is it an extra layer of bureaucracy.
    Furthermore, NOAA has developed regulations that complement, rather 
than duplicate, existing authorities. In some cases, NOAA regulations 
supplement and fill gaps in existing authorities. To this end, NOAA has 
integrated its planning efforts with the Federal, State, and local 
agencies in the Florida Keys. This will improve management coordination 
between the agencies and will lessen the amount of agency overlap in 
key management areas such as education, research, enforcement, damage 
assessment, and emergency response. Through integrated planning and 
implementation, the FKNMS will, at a minimum, streamline the use of 
public funds and programs to achieve resource protection. This will 
improve coordination between the various agencies responsible for 
management of the marine environment in the Sanctuary. Increased agency 
coordination will benefit Sanctuary resources and the public's use of 
those resources.

Coordination of Fisheries Management

    Comment: The fisheries protocol should not be implemented because 
it will add another layer of regulations.
    Response: NOAA disagrees. The existing fisheries management 
authorities will continue to manage fisheries under State law, the 
Magnuson Act, and other Federal law. However, there are three separate 
sets of fisheries regulations within the boundary of the Sanctuary and 
coordination of the fishing regulations within the Sanctuary was 
identified as a goal early in the scoping process. Under the current 
system, there is confusion in the fishing community which leads to less 
compliance by the public as they may not understand which regulations 
apply to a specific geographical area. Uniform regulations would make 
it easier for the fisherman to comply with the rules and for the 
agencies to enforce them. This management action will have a positive 
result on fisheries management by State and Federal agencies. The net 
result will be beneficial to Sanctuary resources and to the public. 
Under the protocol, the existing authorities may accomplish this goal 
under Sanctuary regulations or their own respective authorities. The 
existing fishery management authorities and NOAA may agree to develop 
uniform fishing regulations, but they can only be implemented as 
Sanctuary regulations if there is consensus. The establishment of a 
consistent set of fishing regulations for the Sanctuary will not result 
in a fourth set of regulations.

Funding

    Comment: There were a variety of comments on the topic of funding 
of the FKNMS. Some commentors suggested the Sanctuary should be given 
the necessary funding to implement the management plan and its goals. 
Other commentors stated NOAA will never have adequate funding to 
implement all of the programs outlined in the management plan, implying 
that NOAA could never comprehensively manage the entire Sanctuary. 
Others suggested that the funding for the Sanctuary be totally directed 
at solving water quality issues before implementing any other 
management programs. Suggestions were made that Florida Tourist 
Development Council (TDC) ``bed tax'' funds be used for managing 
Sanctuary activities.
    Response: Clearly, implementation of all the programs contained in 
the management plan would require more funding than the Sanctuary can 
anticipate presently, or in the near future. However, the management 
plan is comprehensive and includes suggested actions for the near and 
long terms. The plan offers a wide variety of management options to 
address various and diverse management problems in order to give 
Sanctuary managers the ability to select the most cost effective 
management tools to address immediate and future problems. It is not 
NOAA's intent to request funding for immediate implementation of all 
the management programs outlined in the management plan, but rather use 
it as a guide for immediate and future plans of action, including the 
effective use of human and financial resources.
    Additionally, the human and financial resource costs for 
implementing the action plans established to focus Sanctuary management 
efforts will be shared among the participating Federal, State, and 
local agencies responsible for various activities. For example, Monroe 
County receives Boating Improvement Fund allocations that are designed 
to enhance boating and have specifically been applied to channel/reef 
marking needs in the Sanctuary. Further, Sanctuary volunteers perform 
tasks that benefit the goals at a substantial savings to the program. 
Finally, in addition to annual appropriations, the Sanctuary has the 
statutory authority to receive donations to support programs. These 
funds could be received from foundations, non-profit organizations, the 
Sanctuary Friends organization and others.
    NOAA disagrees that all funding should only be used to address 
water quality or any other single issue within the Sanctuary. Congress, 
through the FKNMSPA, directed the Secretary of Commerce to develop a 
comprehensive plan to manage the Sanctuary and gave specific directions 
as to what should be considered in the development of the plan. Many of 
the impacts affecting the health of the coral reef community arise from 
direct, physical injuries that can be lessened with the implementation 
of the comprehensive management plan. Additionally, the FKNMSPA 
requires that EPA, along with the State and NOAA, address Sanctuary 
water quality issues. Many of these management actions will take years 
to implement and their positive results will not be realized for some 
years into the future. By implementing the comprehensive management 
plan, the FKNMS will be able to address some of the immediate threats 
confronting the coral reef community as a result of direct human 
activity.
    The State of Florida determines the use of Florida TDC funding (bed 
tax) for management activities.

User Fees

    Comment: Some reviewers raised concern regarding the concept of 
user fees to fund various programs within the Sanctuary. While some 
commentors were supportive of the concept, the majority of commentors 
were against funding Sanctuary management through user fees. A small 
number of reviewers raised concern that the concept was still contained 
in the draft plan following a highly publicized workshop on user fees 
to fund the management of National Marine Sanctuaries where NOAA 
publicly announced it was not pursuing obtaining the general 
legislative authority to charge ``user fees'' to manage Sanctuaries.

[[Page 4588]]

    Response: NOAA acknowledges that the concept of charging user fees 
to fund Sanctuary management is not popular, particularly among user 
groups. The strategy (B.8) for charging user fees to fund the 
management of the FKNMS has been dropped from the action plans in the 
FMP/EIS. There are no regulations authorizing the collection of user 
fees for general access to, or use of, the Sanctuary.
    The process used to develop the draft management plan allowed all 
suggestions to be considered for the draft plan. The concept of user 
fees was suggested by some during the planning process and remained in 
the draft plan following the ``user fee workshop'' because of the 
process used to develop the draft plan. Considering that some were in 
favor of ``user fees,'' NOAA felt it was necessary to get public 
comment on the concept in the draft plan.
    Many innovative sources of alternative funding have been identified 
by the public in the workshop and otherwise. NOAA will work with the 
SAC to explore some of these options.

Ecosystem-Based Approach

    Comment: There were conflicting comments on what NOAA's role should 
be in managing Sanctuary resources. Some recognized that NOAA has done 
a good job of managing the coral reefs within the Key Largo and Looe 
Key National Marine Sanctuaries and suggested that NOAA should focus 
its management on the coral reef tract. Some of these same reviewers 
pointed out that the primary cause of water quality decline in the 
Florida Keys was originating from water management and water quality 
problems in mainland South Florida and the resultant decline in water 
quality in Florida Bay. In some instances, the Federal Government was 
blamed for the cause of water quality decline in south Florida. Some 
reviewers stated NOAA could not have any influence on the water quality 
problems that were originating outside the boundary of the Sanctuary.
    Other reviewers pointed to the decline of water quality in the 
near-shore waters of the Florida Keys as a result of improper waste 
water treatment facilities and poor management of storm water runoff 
and that NOAA should focus its management on these water quality 
problems.
    Other reviewers recognized the importance of NOAA's role in 
ecosystem management and the significance of the authority that the 
FKNMS has to address water quality issues that originate both within 
its boundary, as well as those problems that originate outside and 
upstream of the Sanctuary. These reviewers were supportive of NOAA's 
active role in the South Florida Ecosystem Restoration Task Force and 
the Governor's Commission for a Sustainable South Florida.
    Response: In light of its experience of the resource protection 
accomplished at Key Largo and Looe Key National Marine Sanctuaries, its 
role in ecosystem management in South Florida, and directions under the 
NMSA and the FKNMSPA, NOAA will continue to take an ecosystem based 
management approach in this Sanctuary.
    The FKNMSPA directed the Federal Government and the State of 
Florida to develop a comprehensive program to reduce pollution in the 
waters offshore the Florida Keys to protect and restore the water 
quality, coral reefs, and other living marine resources of the Florida 
Keys environment. The FKNMSPA and NMSA direct NOAA's development of a 
comprehensive ecosystem management plan rather than one based solely on 
the coral reef tract. In order to be successful, Sanctuary managers 
must be able to address impacts that occur across the range of habitats 
that comprise the coral reef community in an ecosystem-based management 
approach. This is especially important in addressing issues that 
influence the quality of the water that affects the marine communities 
of the Sanctuary. Between 1982 and 1989, NOAA sponsored research 
projects that helped characterize the movement of water in and around 
the two existing Sanctuaries. The studies concluded that a portion of 
the water that influences the coral reef flows from Florida Bay and the 
Keys, before it mixes with water from the Florida Current in the 
vicinity of the reef tract. Scientists agree that the sources of the 
decline in water quality that influence the health of the coral reef 
resources originate upstream of the reef tract, in the direction of the 
Keys and Florida Bay. No matter how intensely NOAA manages activities 
on the coral reef, the health of the corals will continue to decline 
until the sources of the water quality decline upstream are addressed 
in a comprehensive manner.
    The designation of the FKNMS gave NOAA a role in the development 
and the implementation of a water quality protection program with EPA 
and the State. Sanctuary legislation directed EPA, the State and NOAA 
to look beyond the boundary of the Sanctuary toward the problems 
occurring upstream. The designation also gave NOAA the ability to 
manage in a holistic manner, all of the marine communities that are 
important to maintaining the biodiversity of the Sanctuary. This was 
the first step toward ecosystem management, the ability to manage all 
the marine communities of the coral reef component of the south Florida 
ecosystem.
    NOAA disagrees with comments that it cannot influence, or does not 
have a role in addressing, the water quality problems originating 
outside the boundary of the Sanctuary, in Florida Bay, and mainland 
South Florida. The designation of the FKNMS has given NOAA a prominent 
role in the South Florida Ecosystem Restoration Task Force whose 
objectives include the restoration of clean water flows into Florida 
Bay. NOAA is currently funding approximately 40 percent of the research 
projects in Florida Bay and the South Florida ecosystem restoration 
effort. These efforts will result in a positive influence on water 
quality before it enters the Sanctuary. NOAA leadership has recognized 
the importance of supporting the efforts of the South Florida Ecosystem 
Restoration Task Force in order to be successful in the management of 
the Sanctuary.
    The most prominent role for the Florida Keys in the south Florida 
ecosystem restoration effort has been through the representation of the 
Sanctuary on the Task Force and the roles of EPA and the State in the 
Water Quality Protection Program as it is represented on the Task 
Force. Without the efforts of these agencies on behalf of the FKNMS, 
the Florida Keys coral reef communities would not be represented on the 
South Florida Ecosystem Restoration Task Force. Thus, the Sanctuary 
clearly has a role in influencing the impacts of water quality 
originating outside its boundary.
    Concerns over the demise of Florida Bay have been the topic of 
debate for at least a decade prior to the designation of the FKNMS. At 
the first SAC meeting in February 1992, members of the SAC familiar 
with problems in Florida Bay raised the issue of water quality decline 
in that area. Commercial fishermen and flats guides shared their 
observations of decline in Florida Bay water quality. In addition, the 
Water Quality Protection Program for the Sanctuary recognized that some 
of the sources of the water quality problems affecting the coral reef 
were originating upstream of the Florida Keys and Florida Bay. In just 
over a year, all of the agencies responsible for managing components of 
the South Florida region had signed an interagency agreement directed 
at restoring the South Florida ecosystem.

[[Page 4589]]

The agencies had agreed that the ecosystem begins in the Kissimmee 
River basin and includes Lake Okeechobee, the Everglades Agricultural 
Area, the Everglades, Florida Bay, through the Keys, and all the way to 
the coral reef tract. This was the first time the scope and dimension 
of the ecosystem had been defined at this scale. It is with this vision 
that ecosystem management must be implemented in the Sanctuary. The 
proper water quality and hydrological and ecological linkages 
throughout the ecosystem must be re-established in order to reverse 
declines on the coral reef. Each of the agencies responsible for 
management of components of the ecosystem must work to improve the 
quality of water in their segment of the ecosystem, while working with 
other members of the restoration task force to improve the entire 
ecosystem functions.

Accountability and Power of NOAA

    Comment: Some commentors were concerned about the powers of NOAA in 
general, and some were particularly concerned about the powers of the 
Director because decisions affecting user groups would be made by 
authorities in Washington headquarters, as opposed to locally. Some 
commentors indicated that NOAA should be held accountable for its 
management actions.
    Response: NOAA notes that under various laws and the management 
plan itself, the powers of other Federal and State authorities remains 
intact. Moreover, there are a number of checks and balances whereby 
NOAA is held accountable for their management actions. The Congress 
holds NOAA accountable through its review of individual Sanctuary 
management plans and periodic reviews of the National Marine Sanctuary 
Program. There are also numerous Federal statutes which ensure the 
accountability of Federal programs, including the Administrative 
Procedure Act. For example, with the exception of emergency 
regulations, all substantive changes to Sanctuary regulations will 
require prior notice and opportunity for public comment before they 
become effective. In this Sanctuary, the State of Florida, as a 
management partner, will continue to be a check on NOAA's authority, 
including the application of Sanctuary regulations in State waters. The 
EPA and the State of Florida will continue to have the lead in 
addressing the Water Quality issues that affect the Sanctuary.
    To user groups, perhaps the most important check on NOAA's 
accountability may be SAC. The SAC is comprised of members representing 
the various Sanctuary user groups (commercial fishermen, charter boat 
operators, tourism industry, scientific and educational organizations, 
and conservation groups, etc.). Consistent with the FKNMSPA, the SAC 
provides NOAA with advice and recommendations on the management plan 
and its implementation, including resource protection, research, 
monitoring, education, outreach and other general policy issues related 
to Sanctuary management. The SAC is also a forum to enhance 
communication and cooperation between the public, user groups, the 
Federal/State and local agencies, and non-governmental entities in 
furtherance of coordinated, efficient and effective management of the 
Sanctuary. SAC meetings are open to the public and interested persons 
are given the opportunity to present oral or written statements to the 
Council.
    Under the NMSA and the FKNMSPA, the Secretary of Commerce is 
directed to develop a Sanctuary management plan and implement it. Under 
Departmental Orders, this authority has been delegated to the Director 
of NOAA's Office of Ocean and Coastal Resource Management. The 
regulations were drafted accordingly. While the Director has in turn 
delegated most of the day to day Sanctuary management decisions to 
local Sanctuary managers with appropriate reservations, the regulations 
were not changed and will continue to reflect the Departmental Orders. 
The Director's responsibilities for the FKNMS are commensurate with 
other sanctuaries.

Designation Document/Appendix K

    Comment: Many reviewers expressed concern over the Scope of 
Regulations contained in the draft Designation Document for the FKNMS 
(Volume III, Appendix K). The concerns were primarily that the Scope of 
Regulations was too broad. For example, they were surprised to see that 
the Scope included airplane flights, dock construction, and a broad 
range of other activities that seemed outside the authority of the 
Sanctuary. Many feared that NOAA could easily regulate activities 
within the Scope of Regulations in the future with little or no public 
input. Some questioned the need for a designation document as the 
Sanctuary was designated by statute. Many, including the SAC, urged 
NOAA to eliminate the Scope of Regulations. However, some reviewers 
expressed support of the broad Scope of Regulations and urged NOAA to 
retain what was presented in the draft plan.
    Response: The Designation Document is a charter or constitution for 
the Sanctuary. The Scope of Regulations, which is part of the 
Designation Document, sets forth the types of activities which may be 
subject to future regulation. Consistent with the recommendations of 
the SAC and other commentors, NOAA has reduced the Scope of Regulations 
to more closely track the final regulations by eliminating certain 
activities.
    NOAA cannot issue regulations for activities listed in the Scope of 
Regulations unless NOAA complies with the provisions of the 
Administrative Procedure Act. These procedures require that the public 
be given notice and the opportunity for comment. The courts are a check 
against decisions that are arbitrary and capricious, the State must 
approve regulations that apply to State waters, and Congress maintains 
continual oversight.

Degradation of Environmental Resources

    Comment: NOAA received many comments providing anecdotal 
information concerning the state of the Florida Keys' marine 
environment. These comments were personal observations of significant 
changes in reef species assemblage, visibility of the water, and number 
of fish. Comments were also received to the effect that even though all 
people have a right to use the resources of the Keys, people do not use 
the resources equally and therefore some regulation of behavior is 
necessary.
    Response: The Sanctuary was designated in recognition of the 
observed declines in the health of the natural marine resources of the 
Keys. The primary objective of the management plan is protection of 
natural resources while facilitating private and public use that does 
not compromise this objective. Thus, Sanctuary management will address 
such issues as water quality and habitat protection through various 
strategies and techniques ecosystem-wide in an effort to preserve or 
restore the resources to a more natural state.

Support for Sanctuary and Management Plan

    Comment: NOAA received many comments of support for the Sanctuary, 
the management plan, and NOAA's history of protecting national marine 
sanctuary resources.
    Response: NOAA thanks all who commented on the Sanctuary, the draft 
management plan, and proposed regulations regardless of whether in 
support or in opposition. NOAA has had a long history of facilitating 
all compatible public and private uses of its

[[Page 4590]]

National Marine Sanctuaries, including those off Florida. The Sanctuary 
will continue to encourage public involvement, interagency cooperation, 
and continuous management actions to achieve resource protection.

Limit the Sanctuary Boundary to the Reef Tract

    Comment: Some reviewers recognized that NOAA has done a good job of 
managing the coral reefs within the Key Largo and Looe Key National 
Marine Sanctuaries but suggested that NOAA should only focus its 
management on the coral reef tract.
    Response: The FKNMSPA directed the Federal Government and the State 
of Florida to jointly develop and implement a comprehensive program to 
reduce pollution in the waters offshore the Florida Keys to protect and 
restore water quality, coral reefs, and other living marine resources 
of the Florida Keys' environment. The Act set forth the boundary as 
well as the scale of protection necessary to effectively manage natural 
and cultural resources in a holistic manner. Thus, NOAA strongly 
disagrees that it should just focus its management on the coral reef 
tract. In order to be successful, Sanctuary managers must be able to 
address impacts that occur across the range of habitats that comprise 
the coral reef community in an ecosystem-based management approach.

Allowed Activities

    Comment: NOAA received comments requesting that the management plan 
include a list of allowed activities, not only prohibitions. The SAC 
discussed a bill of rights and ultimately recommended that there be a 
list of activities that would be allowed in the Sanctuary.
    Response: In response to these comments, NOAA has modified the 
regulations at Sec. 922.42 to state that ``all activities (e.g., 
fishing, boating, diving, research, education) may be conducted unless 
prohibited or otherwise regulated. * * *.'' The change is not intended 
to provide a legal defense for actions against those who violate 
Sanctuary regulations, but rather to clarify that such activities are 
allowed to be conducted in the Sanctuary at present and will be allowed 
in the future, subject to appropriate regulation. There are also 
specific exemptions to certain prohibited activities to avoid or 
minimize application to fishermen and other small entities.

Property Rights and Land-Use

    Comment: Many comments were received questioning what authority the 
Sanctuary will have over land use and property rights.
    Response: The regulations were specifically modified to exempt 
Monroe County land use permits. However, in general there have been no 
conflicts over property rights because Sanctuary regulations are 
directed at activities in the marine environment. They may apply to 
activities that directly threaten or impact marine resources within the 
Sanctuary, which are those lying below mean-high tide. Sanctuary 
regulations do not take away rights of property owners or affect 
activities that do not adversely affect Sanctuary resources.

Special-Use Permits

    Comment: Some commented that the section on Special-use Permits 
needs to be more specific.
    Response: This regulatory section reflects the provisions of 
section 310 of the NMSA regarding Special-use Permits. The National 
Marine Sanctuary Program has had the authority to issue Special-use 
Permits since 1988, but has only issued few such permits to date. While 
the NMSA and its legislative history indicates that section 310 is 
self-implementing and does not require implementing regulations, NOAA 
has considered the comments and determined that additional information 
and public input would be appropriate before the development of more 
regulations with more specificity than is presently in section 310. To 
the extent more specificity is needed, it should be done in guidelines 
for the National Marine Sanctuary Program rather than for this 
particular Sanctuary. In the interim, the Program will continue to work 
with individual applicants and the public on Special-use Permits.

Coordination With Other Agencies/Conflict Resolution

    Comment: Some commentors expressed the need for coordination 
between agencies and a mechanism to resolve conflicts between agencies 
and the public. Others suggested a mechanism be established that 
provides an administrative appeals process consistent with the 
Administrative Procedure Act.
    Response: NOAA is establishing an Interagency Group to assist in 
coordinating the implementation of the final management plan for the 
FKNMS. Additionally, Appendix J contains a Co-trustees Agreement that 
is accompanied by a series of draft protocols and memoranda of 
agreements that will serve to outline the way the agencies will conduct 
the management of the Sanctuary.
    The administrative appeal process for Sanctuary management 
decisions is set forth at Sec. 922.50. Agency decisions, including any 
amendments to Sanctuary regulations, must be done in accordance with 
the procedures and requirements of the Administrative Procedure Act.

Monroe County and/or the State Should Manage the Sanctuary

    Comment: Some commentors suggested that the State of Florida or 
Monroe County be charged with developing a management plan and managing 
the resources of the Florida Keys.
    Response: Under the FKNMSPA and the NMSA, NOAA is required to 
develop and implement a Sanctuary management plan. However, the 
Sanctuary planning process has included the State and county as 
partners in the development of the comprehensive management plan. The 
continuous management process, as described in Volume I of the FMP/EIS, 
includes Federal, State and county agency managers in the continuous 
management of the Sanctuary. This will help NOAA assure the integration 
of management programs between the various agencies in a comprehensive 
manner.

Socio-Economic Impacts

    Comment: Some reviewers commented that NOAA did not provide a 
thorough socio-economic analysis of its actions on commercial or 
recreational fishing. NOAA also received comments that the Sanctuary 
will negatively impact the economy of the Keys, as well as comments 
that the Sanctuary is the only hope to sustain the Keys' tourist 
economy which is heavily dependent on the presence of a healthy marine 
environment.
    Response: NOAA prepared a socio-economic assessment for the Draft 
Management Plan and Environmental Impact Statement in compliance with 
the NMSA and National Environmental Policy Act (NEPA). In response to 
comments, NOAA has provided a more detailed explanation of the careful 
balancing of environmental and socio-economic impacts in developing the 
Preferred Alternative/Management Plan section of the Volume I. A more 
thorough assessment of the socio-economic impacts on various user 
groups from management alternatives is found in Volume III, Appendix M.
    In an effort to maximize resource protection and minimize adverse 
impacts on users, NOAA considered socio-economic impacts in developing 
the draft management plan. Based on the public comments and reports

[[Page 4591]]

supplied by the fishing industry, NOAA has further detailed this 
analysis in the final environmental impact statement and modified the 
final management plan accordingly.

Personal Watercraft

    Comment: NOAA received many comments from the public reminding NOAA 
that personal watercraft owners and users act responsibly and 
requesting that personal watercraft not be singled out and treated 
differently from other vessels. NOAA also received comments noting 
frequent environmental nuisance and safety issues associated with the 
operation of personal watercraft. These included: reckless operating 
behavior, harassment of endangered and other species, harassment of 
other boaters (including disruption of fishing on flats), and noisy 
operation in canals or adjacent to residential shorelines. These 
commentors requested limiting, restricting or banning the use of 
personal watercraft within the Sanctuary.
    The SAC recommended that NOAA work with the industry, the SAC, and 
the public to establish zones for the voluntary use of personal 
watercraft in specified areas within one year after issuance of the 
final management plan. The SAC also recommended that if these zones 
were not voluntarily established within one year, then NOAA should ban 
the use of personal watercraft throughout the Sanctuary. In addition, 
the SAC recommended adding to the regulations a prohibition against 
reckless operation of vessels. The SAC also recommended that the 
proposed vessel operation regulation (proposed Sec. 929.5(a)(5)(iv)) be 
modified to restrict vessels from operating at speeds greater than idle 
speed only/no-wake in designated idle speed only/no-wake zones, and 
modify the minimum distance requirements in the regulation.
    The personal watercraft industry commented that there was no basis 
to impose severe regulatory restrictions on the use of personal 
watercraft, but generally supported the strategy of restricting all 
motorized vessel use in certain buffer zones and establishing idle 
speed only/no wake areas. The industry also strongly endorsed the 
strategy of working with NOAA to educate recreational personal 
watercraft users in the Sanctuary, and develop industry standards for 
rental operations in the Sanctuary.
    The State of Florida questioned whether distance restrictions 
delineated in the buffer zones could be adequately enforced.
    Response: NOAA has developed a multi-pronged approach to address 
the public's concern about the use of personal watercraft. NOAA has 
accepted the SAC's recommendation to add a new section to the final 
regulations (Sec. 922.163(a)(v)) which prohibits reckless operation of 
all watercraft. Additionally, proposed Sec. 922.163 (a)(5)(iii) has 
been modified to prohibit operating a vessel at greater than idle speed 
only/no wake (except in marked channels) in designated areas within 100 
yards from residential shorelines, stationary vessels and navigational 
aids marking emerging or shallow reefs. NOAA has also incorporated into 
its regulations the authority to enforce all idle-speed only/no wake 
areas throughout the Sanctuary. NOAA will use the existing county and 
State process for designating these areas. NOAA accepts that the 
industry is seriously committed to self regulation and will develop 
successful educational efforts geared toward changing user behavior. 
The final component of NOAA's approach is a modification of the SAC's 
recommendation. NOAA will begin establishing broad zones with 
restrictions on the use of personal watercraft (consistent with the SAC 
recommendation) in one year only if these initial efforts are not 
successful at significantly reducing or eliminating the nuisance and 
safety problems, as well as the threats to the natural resources.

Channel/Reef Marking Action Plan

Boater Education

    Comment: Channel/reef marking must be supplemented with boater 
education in order to limit impacts on shallow water marine resources. 
The channel/reef marking action plan does not contain strategies that 
address education.
    Response: NOAA agrees that boater education is a critical component 
for protection of shallow water resources of the Sanctuary. The 
education and outreach strategies directed at boating impacts are 
contained in other management action plans.

Marking Shallow Water Habitats and Vessel Routes

    Comment: The action plan does not address marking coral reefs and 
other shallow water habitats outside of channels, to warn boaters of 
sensitive areas. The action plan should be revised to include 
navigational aides that warn boaters and should be renamed 
``Navigational Marking Action Plan'' or the ``Channel/Reef Marking 
Action Plan''.
    Response: NOAA agrees that providing navigational aides that warn 
boaters of sensitive, shallow water habitats is a necessary component 
of resource protection. NOAA will work closely with the USCG, the 
State, and the county to provide appropriate internationally recognized 
navigational aides to mark sensitive, shallow water habitats such as 
coral reefs. NOAA also recognizes that providing a logical and clearly 
marked system of channels in high traffic areas is the preferred method 
of routing vessel activity away from sensitive habitats. In addition, 
strategic placement of navigational aides used to warn boaters is 
necessary in many areas and will be pursued. NOAA has revised the 
action plan and has renamed the plan as the ``Channel/Reef Marking 
Action Plan.''

Channel Marking Criteria

    Comment: The criteria for determining the priorities for marking 
channels as well as the locations of high priority channels should be 
included in the plan. The SAC recommended draft channel marking 
criteria and a list of high priority channels to be marked.
    Response: The criteria for channel marking prioritization as 
recommended by the SAC has been included in the final action plan. 
However, including a list of high priority channels recommended by the 
SAC is premature. Instead, the action plan establishes a process for 
identifying and prioritizing channels to be marked.
    The list of proposed channels recommended by the SAC has not been 
subject to review and prioritization by those criteria. All areas to be 
marked should be reviewed through the process set forth in the action 
plan. Thus, the list of priority channels has not been included in the 
final action plan, but the criteria and process have been included.

NOAA's Role

    Comment: The draft action plan does not clearly define NOAA's role 
in the channel/reef marking program.
    Response: The final plan (Strategy B.4, Activity 8, Implementation) 
more clearly defines NOAA's role in this effort.

Effectiveness Assessment

    Comment: Expand the activity associated with the assessment of 
channel marking effectiveness to include on-site monitoring and 
research, in addition to aerial photography.
    Response: NOAA agrees and the final action plan (Strategy B.4, 
Activity 6) reflects this comment. Further, Strategy B.4, Activity 8 
has been expanded to address removal of markers that are found to have 
a detrimental effect.

[[Page 4592]]

Update Status

    Comment: Many of the activities originally described in the action 
plan have already been completed or their status needs to be updated.
    Response: NOAA agrees. The final action plan reflects the current 
status of activities.

Four Point Program

    Comment: Some reviewers support the Boating Impact Working Group's 
(BIWG) ``Four Point Program.'' The final management plan needs to be 
expanded to include establishment of no access and restricted access 
areas, as recommended by the BIWG.
    Response: NOAA agrees that the establishment of no access and 
restricted access areas is an effective method to reduce shallow water 
impacts. The plan recognizes this and adopts a series of restricted 
access areas associated with the Wildlife Management Areas (see 
Regulatory Action Plan, Appendix III to Subpart P--Wildlife Management 
Areas, and the Zoning Action Plan maps). Most of these areas are part 
of or are adjacent to DOI National Wildlife Refuges, however seven non-
associated areas were added. These are the only areas that NOAA 
received specific input on during the planning process. NOAA will 
monitor the effectiveness of designating these areas as Wildlife 
Management Areas and imposing access restrictions and will consider 
adding other areas in future revisions of the plan.

Removal of Problematic Aides to Navigation

    Comment: There is no mechanism in the plan to remove channel 
markers that prove to be problematic because they increase vessel 
impacts to shallow water areas.
    Response: Strategy B.4, Activity 6 provides a mechanism to evaluate 
the effectiveness of channel markers for the protection of marine 
resources. Strategy B.4, Activity 8 has been expanded to address 
removal of markers that are found to have a detrimental effect on 
marine resources.

Channel/Reef Marking Is Expensive

    Comment: The proposed channel/reef marking program is too costly at 
a time when the government is trying to economize.
    Response: The primary funding source identified in the plan for 
channel/reef marking is the Boating Improvement Fund (BIF) and the 
current aides to navigation program administered by the U.S. Coast 
Guard. The BIF is an existing funding source that is administered by 
Monroe County. The money is derived from a portion of State vessel 
registration fees which are returned to the county where they were 
generated. This money must be used for projects designed to enhance 
boating, and is specifically targeted at channel/reef marking, 
launching facilities and similar projects. Currently, Monroe County 
receives approximately $125,000 annually from this source. Therefore, 
this money is available for channel/reef marking already, and the 
management plan is designed to provide a coordinated effort at 
prioritizing expenditures. Additionally, the U.S. Coast Guard continues 
to fund the installation and maintenance of many of the aides to 
navigation used in the Sanctuary. These funds do not come directly from 
NOAA.

Stay in the Channels Only

    Comment: There are fears that once the channels are marked, boaters 
will be prohibited from going outside of the channels. Further, in the 
interim, boaters-especially fishermen-should not be penalized for prop 
dredging until the markers are installed.
    Response: The regulations do not prohibit vessels from navigating 
outside marked channels regardless of depth. What the regulations do 
prohibit is the destruction of seagrass and other shallow marine 
resources as a result of imprudent operation of vessels.

Deep Water Access

    Comment: Several reviewers requested that a definition of deep 
water access be added to the regulations and questioned how the 
Sanctuary will address areas that are accessible only at certain tides.
    Response: The channel/reef marking action plan assumes a 4 ft mean 
low water as a threshold criteria for deep water access. This is 
consistent with current State and local regulation and criteria. 
Channel/reef marking will not be a substitute for local knowledge or 
normal prudent navigation skills.

Arrows on Channel/Reef Markers

    Comment: Navigational aids should be clearly understandable to 
guide boaters through channels and warn them of shallow areas. It was 
also suggested that channel/reef markers include arrows indicating the 
direction of the channel.
    Response: It is necessary that standardized channel marking for the 
Sanctuary conform to the international rules of the road as required by 
the US Coast Guard and the State of Florida. The Coast Guard 
discourages the use of arrows on posts, but will allow gated (double) 
markers to mark particularly sensitive areas.

Education and Outreach Action Plan

Education v. Outreach

    Comment: A number of reviewers expressed concern that the draft 
management plan addresses education at the expense of outreach noting 
that, while compatible, they are distinct and address different needs 
and audiences.
    Response: NOAA agrees, and the final management plan clearly 
reflects both responsibilities. The Education Action Plan has been 
renamed the Education and Outreach Action Plan.

Education Supports Resource Protection

    Comment: A number of reviewers recommended the inclusion of a new 
education goal to reflect the intent of the Education Program in 
achieving resource protection and management goals of the Sanctuary. 
The National Park Service made several suggestions on how the plan 
should be modified to reflect that the educational strategies include 
cultural as well as natural resources. Additionally, some reviewers 
said that an adequate education program could alleviate the need for 
additional regulations.
    Response: The final management plan states that the intent of the 
program is to educate the public about Sanctuary resources (natural and 
cultural), thus complementing the protection and management goals of 
the plan. Education and regulation are complimentary management tools 
in resource protection. It is hoped that increased education will 
result in voluntary compliance with regulations through increased 
understanding.

Spanish-Speaking Staff

    Comment: A number of reviewers recommended the hiring of a Spanish-
speaking staff member for the Education program.
    Response: In order to address the multi-lingual nature of many 
Education and Outreach activities, the contracting or hiring of a 
Spanish-speaking education staff member or intern will be given 
priority consideration.

Funding for Education and Outreach

    Comment: Reviewers recommended increased funding of the Education 
Action Plan. Additionally, the pursuit of alternative sources of 
funding was also recommended.
    Response: Education is a primary management tool in resource 
protection and will be considered in budget allocations. The management 
plan addresses alternative funding.

[[Page 4593]]

Priorities

    Comment: Many reviewers expressed concern that the education 
strategies ranged from an overall priority level of three to five and 
had an anticipated low level of action in year one.
    Response: Some of these activities are already underway in the 
Sanctuary's Education and Outreach program. NOAA agrees that the 
priority level for education and outreach should be elevated. As a 
result, the document has been revised and updated.

Enforcement Action Plan

Interpretive Enforcement/Connection Between Enforcement & Education

    Comment: Many reviewers did not understand the concept of 
interpretive enforcement. Others felt that law enforcement officers 
should supplement the Sanctuary's education program. Others commented 
that NOAA should educate the resource users rather than using 
enforcement officers to catch violators who are making mistakes.
    Response: The term ``interpretive enforcement'' refers to the 
merging of education functions with the enforcement officers' duties. 
NOAA strongly agrees that an effective enforcement program includes not 
only enforcement of violations, but education of Sanctuary users to 
achieve voluntary compliance with regulations. Although Sanctuary 
officers have full authority to enforce regulations, education is a 
primary tool of enforcement as outlined in the Enforcement Action Plan 
and the Education and Outreach Action Plan. The Sanctuary will 
undertake an outreach effort to make users aware of the regulations. 
For example, law enforcement officers distribute Sanctuary pamphlets in 
their contact with boaters during water patrols, and use this education 
opportunity to gain voluntary compliance.

Standardization

    Comment: Wording in the draft management plan is ambiguous, 
therefore it leaves interpretation to the enforcement officers. The 
comment also charged that information received from officers is not 
consistent from officer to officer.
    Response: Through coordination and training of law enforcement 
officers, standardized enforcement procedures, including interpretive 
enforcement, will be achieved. This is outlined in the Enforcement 
Action Plan.

Coordination With Existing Agencies

    Comment: There are 24 agencies currently responsible for protecting 
the natural and cultural resources of the Florida Keys. What is NOAA 
going to do to make them do their jobs?
    Response: There are numerous agencies with responsibilities and 
somewhat limited ability for full enforcement of all rules everywhere. 
NOAA will seek to coordinate their activities, thus achieving more 
effective enforcement of all regulations. To this end, the FKNMS has 
developed an agreement with other enforcement agencies such as the US 
Coast Guard, the State of Florida, the US Fish and Wildlife Service, 
and the National Park Service to maximize and coordinate existing 
assets concerning Sanctuary enforcement. Since the Sanctuary includes 
both State and Federal waters, close coordination between the State and 
NOAA is essential.

Funding/Additional Enforcement

    Comment: The management plan states that an additional 30 law 
enforcement officers will be needed for the Sanctuary. Many reviewers 
agreed that additional officers are needed to enforce laws, but 
questions were raised: Where will the funding come from for these 
officers? What is the timing for hiring additional officers?
    Response: NOAA agrees that enforcement is important for successful 
comprehensive resource protection and management. In balance with other 
Sanctuary management needs, the expansion of the law enforcement 
program will be phased in as funding allows. Funding is critical but 
limited and must be balanced with other management goals such as 
education and outreach, research and monitoring. The hiring of an 
additional 30 law enforcement officers is a goal of the enforcement 
program. NOAA will work actively with the State to identify alternative 
funding sources for hiring additional law enforcement officers.

Mooring Buoy Action Plan

Use of Volunteers

    Comment: Encourage the utilization of volunteer assistance in 
mooring buoy management and reference the interaction with the 
Volunteer Action Plan.
    Response: The benefit of using volunteers in various stages of 
mooring buoy management is recognized, and reference to utilizing 
volunteers and volunteer programs was included in the draft. However, 
NOAA agrees that more emphasis should be placed upon the use of 
volunteers and the plan has been revised to reflect this (Strategy B15, 
Activity 1, Implementation; Activity 8, Implementation). In the area of 
mooring buoy maintenance, volunteers will be used at the direction of 
those responsible under contract for the maintenance program.

Participation by the SAC

    Comment: The SAC should be formally involved with all aspects of 
mooring buoy planning and management.
    Response: NOAA agrees, and the Final Management Plan reflects this 
(Strategy B15, Activity 2, Activity 3, Activity 4, Activity 6, Activity 
9).

Streamline Permitting

    Comment: The permitting process to install mooring buoys needs to 
be streamlined to assure easier ability to accept donated mooring buoys 
or funding to install mooring buoys.
    Response: The purpose of the mooring buoy plan is to identify 
appropriate sites for installation of new mooring buoys within the 
Sanctuary. Once the plan is finalized, it is NOAA's intent to obtain 
approval for the installation of all buoys from all applicable 
agencies.

Carrying Capacity Strategy

    Comment: Considerable comment was received on the concept of 
carrying capacity. Some noted that the implementation of carrying 
capacity based on mooring buoy placement alone is inappropriate. This 
is because it is the number of divers on a vessel that is the most 
important aspect, not the number of vessels. The SAC recommended to 
remove the Carrying Capacity Strategy (Strategy R.5) from the Mooring 
Buoy Action Plan. This strategy should only occur in the Research and 
Monitoring Action Plan. Others suggested to separate the issue of 
carrying capacity from mooring buoys by developing a carrying capacity 
action plan. However, comment was also received that carrying capacity 
must be established for high use coral reef areas and that the use of 
mooring buoys is one method to implement carrying capacity.
    Response: NOAA agrees that the issue of carrying capacity is much 
larger and more complex than can be addressed in the Mooring Buoy 
Action Plan alone. Mooring buoys are only one possible tool that could 
be used in the implementation of carrying capacity. At this time, there 
are no definitive studies available that could aid in establishing 
carrying capacity limits. The Research and Monitoring Action Plan will 
provide the opportunity for studying this topic. Therefore, it is 
necessary to undertake additional research before such limits can be 
considered. NOAA has revised the management plan to remove the carrying 
capacity strategy from the Mooring Buoy Action Plan. It

[[Page 4594]]

remains in the Research and Monitoring Action Plan and will be given a 
high level of priority. It is not advisable to create an entire new 
action plan for carrying capacity at this time.

No Anchoring in the SPAs

    Comment: A large number of comments were received that recommended 
a no-anchoring policy within Sanctuary Preservation Areas (SPAs) where 
mooring buoys are present. The SAC recommended that the SPAs become no-
anchoring zones, but that this should be phased in as sufficient 
mooring buoys are placed to accommodate existing uses. They also 
recommended that this issue be divorced from the Mooring Buoy Action 
Plan and be inserted into the zoning and regulatory action plans.
    Response: NOAA agrees that the SPAs should become no-anchor zones. 
Before this policy is implemented, there should be a sufficient number 
of buoys in each SPA to accommodate a reasonable level of demand. The 
Working Group established in the Mooring Buoy Action Plan (Strategy 
B.15, Activity 4) will determine the sufficiency of the number of 
mooring buoys in the SPAs in developing the mooring buoy management 
plan. In the meantime, the regulations require boaters to use mooring 
buoys when they are available in SPAs and prohibit anchoring on coral. 
Thus, anchoring would be allowed on sand.

Support for Mooring Buoy Program

    Comment: Numerous comments were received that indicated strong 
general support for mooring buoys. Some indicated that the buoys should 
not be just for divers but should consider the needs of fishermen as 
well.
    Response: NOAA feels that the mooring buoy program is one of the 
most important proactive resource management actions that the Sanctuary 
has taken. The mooring buoy program will continue to be a major 
emphasis of the FKNMS. The FKNMS management team will consider mooring 
buoys for fishing uses in addition to those used primarily by divers.

Installation and Management of Mooring Buoys by Non-Profits

    Comment: Several comments were received that stated that the FKNMS 
should leave the management of mooring buoys in the hands of existing 
agencies and non-profit organizations. Federal money would be better 
spent by giving it to non-profits. Some reviewers indicated that NOAA 
had overestimated the cost of mooring buoy maintenance.
    Response: The Mooring Buoy Action Plan calls for encouraging new 
and continued efforts of non-profits and other organizations, as well 
as exploring other innovative funding mechanisms for installing and 
maintaining mooring buoys. The National Marine Sanctuary Program 
currently maintains approximately two thirds of the mooring buoys in 
the Florida Keys. It has been found to be a cost effective program 
utilizing local contractors for maintenance service. The costs in the 
action plan were somewhat high, as they were originally based on the 
maximum deployment of mooring buoys throughout the Sanctuary, not on 
current conditions. Cost was also based on a five year planning time 
frame, which was not made clear in the plan. The action plan has been 
revised to consider a more modest deployment of mooring buoys and has 
been clarified in regard to annual maintenance costs.

Raise the Priority of Mooring Buoy Program in Management Plan

    Comment: Raise the overall Sanctuary priority level for mooring 
buoy activities from 3 to 2, in order to emphasize its importance.
    Response: NOAA agrees that mooring buoy management is a high 
priority and the final management plan reflects the change from a 
medium to high level of priority.

Limit the Size of Vessels Using Mooring Buoys

    Comment: Some reviewers recommended that NOAA limit the size of 
vessels using mooring buoys.
    Response: Considering that the size of the anchoring apparatus 
increases with the size of the vessel, NOAA is hesitant to limit the 
size of vessels that use mooring buoys because this action may force 
large vessels to anchor thus increasing the potential impact to the 
coral reefs. However, the mooring buoy action plan contains activities 
that address the management of large vessel use on mooring buoys in 
high use or sensitive areas and NOAA is committed to improving mooring 
buoy technology to accommodate large vessel use. Additionally, NOAA has 
included a restriction on damaging mooring buoys in the regulations 
which places the burden on large vessel operators to assure that their 
use of mooring buoys is conducted in a manner so as not to damage the 
mooring buoy or hardware. This includes adding additional tag line to 
the mooring buoy in rough seas.

Regulatory Action Plan/Regulations

Definitions

    Comment: NOAA received comments suggesting that several definitions 
be added to the list of definitions in the Sanctuary regulations.
    Response: NOAA has added definitions, including those for coral, 
coral area, coral reefs, hardbottom, and residential shorelines, to the 
regulations.

Anchoring

    Comment: NOAA has received several comments on the issue of 
anchoring within the Sanctuary. Comments ranged from requests for a 
Sanctuary-wide prohibition on anchoring on coral to those suggesting a 
prohibition only on the shallow reefs. Commentors stated that the 
bottom is often not visible in 50 feet of water, and therefore the 
anchoring restriction was impractical.
    Response: NOAA has revised proposed Sec. 922.163(a)(5)(ii) to 
prohibit having a vessel anchored on live coral other than hardbottom 
in depths less than 40 feet when visibility is such that the seabed can 
be seen. This restriction does not apply to anchoring on hardbottom. 
This regulation is necessary to address the impact of anchoring on 
coral.

Vessel Operation

    Comment: Operation of vessels, particularly personal watercraft 
(jet-skis) generated considerable comment during the review process. 
Many reviewers were concerned about the operation of personal 
watercraft in such a way as to create a nuisance, or in a manner that 
disturbed wildlife or affected the health of Sanctuary resources. One 
reviewer said, ``jet skis take the magic out of the Keys.'' On the 
other hand, there were numerous comments that the operation of personal 
watercraft should not be singled out from the operation of other 
vessels. Others commented about the adverse impacts from all vessels on 
shallow water habitats and wildlife in the Sanctuary. Careless 
operation of all vessels was also an issue of concern by the public.
    NOAA received considerable comment from the public, the SAC, and 
the State of Florida on the proposed regulations for operation of 
vessels at greater than idle speed only/no wake near islands, 
residential shorelines, stationary vessels, and emergent reefs. 
Considerable comment was received on the proposed regulation that 
restricted vessel operation at a speed greater than idle speed only or 
no wake within 200 yards of mangrove fringed islands, residential 
areas, flats, stationary vessels, and other features.

[[Page 4595]]

    Response: NOAA recognizes the adverse impact on Sanctuary resources 
and the user conflicts that can occur from the operation of all 
vessels. The threat to Sanctuary resources is universal to the 
operation of all vessels, not just any one type. However, the size, 
maneuverability, and shallow draft of personal watercraft results in 
operator behavior that makes them a greater source of user conflict and 
threatens Sanctuary resources more than any other vessel, particularly 
in shallow water habitat. Approximately 40 percent of the boating 
accidents in Monroe County in 1995 resulted from personal watercraft. 
This statistic indicates that the potential for careless operation of 
personal watercraft is very high. Most of the negative public comments 
about personal watercraft were behavior related examples.
    The final regulations do not single out personal watercraft. 
Rather, the regulations apply to operation of all vessels to 
comprehensively address the potential resource impact, user conflicts 
and safety problems within the Sanctuary. The final regulations specify 
that, except in marked channels, vessels are prohibited from operating 
above idle speed or creating a wake in areas marked idle speed only/no 
wake, and within 100 yards of residential shorelines, stationary 
vessels, and marked emergent reefs, and 100 feet from a divers down 
flag. As regards the 100 foot distance requirement from diver down 
flags, NOAA modified this from the proposed 100 yard requirement to be 
consistent with State regulations.

Personal Watercraft Rentals

    Comment: Many reviewers commented on the use of rented personal 
watercraft. Some in support, some in opposition, and some in support 
with appropriate restrictions. The SAC recommended that NOAA work with 
the personal watercraft (PWC) industry to begin a process to identify 
whether there is a need to establish restrictive zones. Comments from 
the personal watercraft industry representatives indicate interest in 
self regulation.
    Response: NOAA plans to work with the PWC industry, the SAC and the 
public to determine regulatory and non-regulatory steps to address the 
issue, including the potential need and location of PWC rental use-
zones.

Emergency Closures

    Comment: Some reviewers were concerned about the ability of the 
Director or his designee to close areas or impose limited access 
provisions for unspecified periods of time.
    Response: Section 922.165, the authority to impose emergency 
regulations, including area closures or access restrictions, has been 
revised to limit the term of an emergency regulation to 60 days, with 
the option of one 60-day renewal. In addition, under the Co-Trustee 
Agreement, the Governor and Cabinet will be provided advance notice of 
all emergency regulations. The Governor has the authority to reopen an 
area in State waters by certifying his or her objection to NOAA. 
Similarly, the Florida Marine Fisheries Commission will be provided 
advance notice of closure of areas to fishing activities. Any closure 
beyond 120 days would require providing the public the opportunity for 
notice and comment as required by the Administrative Procedure Act. 
Such area closures will be limited to the minimum amount of area 
necessary so as to achieve the purpose of the closure and avoid or 
minimize adverse impacts to Sanctuary users.

Civil Penalties

    Comment: Some reviewers expressed an interest in having a penalty 
schedule published in the final management plan showing a scale of 
penalties for various infractions. Many reviewers have expressed 
concern about the discretion of enforcement officers in handling 
violations. Reviewers feared that NOAA could abuse it's authority and 
charge the maximum $100,000 civil penalty per day for a minor 
infraction. Some commented that civil penalties as outlined in draft 
regulations implied an ``all or nothing'' approach to enforcement and 
that the potential economic consequences if boaters are scared away 
from using the Sanctuary because of excessive regulations should be 
noted. Some commented that the penalty structure must be expanded to 
include degrees of violations, both intentional and unintentional. Some 
commented that the threat of enforcement for the intentional vandal 
should be significant while the inadvertent accident of a well-meaning 
citizen should not be the grounds for a severe penalty. Some asked who 
would develop the penalty structure and what public review process the 
penalty structure would go through?
    Response: Civil monetary penalties are developed for Sanctuary 
violations by NOAA's Office of the Assistant General Counsel for 
Enforcement and Litigation, with input from the Office of Law 
Enforcement, the Sanctuary program, the Regional Administrator for the 
Southeast Region, and the U.S. Coast Guard. The schedule will include 
enforcement actions that may be taken against violators, which may 
include verbal warnings, written warnings, civil monetary penalties, 
permit sanctions, and/or seizures of property. Many factors are taken 
into account in determining an appropriate penalty for a particular 
violation, including prior violations, the severity of the offense, and 
other aggravating or mitigating circumstances. The schedules will be 
available to the public before the regulations become effective and are 
enforced.

Sanctuary Certification/Authorization of Permits/Leases/Licenses

    Comment: Some reviewers, including the SAC, expressed concern over 
the application of terms and conditions to leases, permits, licenses 
particularly those in existence prior to the designation of the 
Sanctuary. The public's concern was that the regulations on Sanctuary 
certification of pre-existing permits (proposed Sec. 929.14) and 
Sanctuary authorization of other agency permits or authorizations after 
the effective date of the Sanctuary (proposed Sec. 929.15) were too 
broad and appeared to give the Director the power to change existing 
authorizations. Commentors indicated that such power should not be 
handed over to a non-elected official without the right of appeal on 
the part of the individual holding the permit, lease, license or 
authorization.
    Response: The State, county and other Federal agencies will 
continue to exercise their authority to issue permits. The Sanctuary 
will not pre-empt their authority to issue permits. In order to avoid 
duplicative permits and paperwork requirement, NOAA will seek to 
address Sanctuary concerns through those existing authorities. However, 
those authorities cannot authorize something that the Sanctuary 
prohibits. This regulatory authority is consistent with most 
sanctuaries and is based on provisions of the NMSA. Although the NMSA 
authorizes NOAA to regulate existing permits, including adding 
conditions, such regulations may not terminate any pre-existing 
permits, licenses or leases. Furthermore, Secs. 922.167(i) and 
922.49(h) provide that the Director's conditions or other decisions may 
be appealed. The appeal procedures are set forth in Sec. 922.50. In 
addition, there are other checks and balances in place that prevent 
abuse of discretion relating to permits. NOAA and the State have 
developed a draft interagency agreement which identifies which 
activities will be subject to certification and authorization, and how 
the review process will be coordinated.

[[Page 4596]]

Sanctuary Permits--Time Limitations

    Comment: Some reviewers requested that NOAA place a time limit on 
itself in which to respond to a permit request. The SAC suggested a 60-
day time limit.
    Response: Sanctuary concerns will be addressed for most activities 
and projects in other Federal permits and, if none exist, in State 
permits. Sanctuary permits are issued only if Sanctuary concerns cannot 
be addressed in the existing Federal/State permit regimes. NOAA has not 
imposed any time constraint for responding to permit requests. NOAA 
agrees that 60 days is a reasonable time in which to respond to most 
permit applications. NOAA normally responds within 3 weeks to a month 
after receipt of a complete application for most permits. However, a 
60-day time frame may not be appropriate for large or complex projects.

Sanctuary Permit Reporting Procedures

    Comment: Some reviewers expressed concern over the reporting 
requirements for permits.
    Response: NOAA has not changed the permit reporting requirements. 
No reports are required more often than monthly. For permits issued for 
one year, the reports required are a ``quick look'' report and final 
report. Longer permits require a ``quick look'', annual, and final 
reports. Reports assist the Sanctuary in assessing the progress and 
impacts of a permitted activity and provide information useful to 
Sanctuary management.

Fee Schedule/Special Use Permits

    Comment: Some reviewers suggested NOAA develop a fee schedule, 
based on fair market value, for the issuance of Special-use Permits.
    Response: NOAA has not included a fee schedule in the final plan. 
The need for a Special-use Permit fee schedule is programmatic, not 
Sanctuary specific, and the details and specifics of Special-use 
Permits have not been completed by the Sanctuary and Reserves Division 
of NOAA. Further, the small number of Special-use Permits issued to 
date has not warranted the administrative review and development of 
such a schedule. Special-use permits will continue to be considered on 
a case-by-case basis.

Effectiveness of Enforcement of Regulations

    Comment: There was comment expressing concern about the 
effectiveness of enforcing the Sanctuary regulations.
    Response: NOAA feels that effective and efficient resource 
protection requires coordination with existing regulations. As a 
result, the Sanctuary is developing an agreement with other enforcement 
agencies such as the US Coast Guard, State of Florida, US Fish and 
Wildlife Service, and the National Park Service to maximize and 
coordinate existing assets concerning Sanctuary enforcement. Since the 
Sanctuary includes both State and Federal waters, close coordination 
between the State and NOAA is essential.

Florida Clean Vessel Act/Vessel Discharge

    Comment: The State of Florida and other reviewers recommended that 
NOAA establish regulations throughout Federal waters that meet the 
requirements of the Florida Clean Vessel Act.
    Response: NOAA has not incorporated the provisions of the Florida 
Clean Vessel Act in the final regulations. This act does, however, 
apply to the 65 percent of the Sanctuary in State waters. Further, the 
final regulations prohibit all discharging and depositing of any 
material or other matter except cooling water or engine exhaust in 
Ecological Reserves or Sanctuary Preservation Areas. Thus, discharge 
from marine sanitation devices in these areas is prohibited. This will 
protect the shallow coral reefs from discharge of nutrients. In 
addition, NOAA will work with the State of Florida and the Water 
Quality Steering Committee concerning incorporation of provisions 
similar to the Florida Clean Vessel Act throughout the Sanctuary.

Transiting No-Take Zones

    Comment: Some fishermen expressed concern over the inability to 
transit no take zones with their equipment on board and their catch 
taken from outside the zones.
    Response: The final regulations allow transiting an ER or SPA with 
catch taken outside the ER or SPA, provided it is stowed prior to 
entering and during transmit. The final regulations also allow 
transiting with otherwise prohibited gear provided it is unbaited and 
stowed in a cabin, locker, rod holder or similar storage area, or is 
securely covered and lashed to a deck or bulkhead unbaited, prior to 
entering and transiting the area.

Live Rock Harvest, Shell and Tropical Fish Collecting

    Comment: Many reviewers commented on the collection and harvest of 
live marine organisms and mollusc shells.
    Response: Live rock harvesting is currently prohibited under State 
and Federal fisheries law. The prohibition has been added to Sanctuary 
regulations to protect these Sanctuary resources should the 
restrictions under other laws be removed. Shell collecting and tropical 
fish collecting and other consumptive activities are prohibited in the 
SPAs and Ecological Reserves. In addition, the Florida Marine Life Rule 
has been incorporated by reference into the Sanctuary regulations and 
thereby extended into Federal waters. These regulations will address 
some concerns of exploitation while minimizing economic impact. The 
marine life rule is referred to in Sec. 922.163(a)(12) of the Sanctuary 
regulations and is reproduced in Appendix VIII.

Diver Impact

    Comment: Some commented that stronger regulations were needed to 
prohibit coral touching and recommended specific regulations dealing 
with diver and snorkeler impacts on the coral reefs. Some suggested 
prohibiting the use of gloves or requiring float coats for snorkelers. 
There was also a comment that there should be no prohibition against 
impacts to dead coral.
    Response: Section 922.164(d)(iv) of the Sanctuary regulations 
prohibits divers and snorkelers from touching or standing on living or 
dead coral formations in the SPAs and ERs. Approximately eighty to 
eighty-five percent of the year-round diving and snorkeling activity 
within the Sanctuary takes place in the 18 SPAs and one ER established 
by the final regulations. This single regulation will address the issue 
of diver impact on coral reefs without having to develop a series of 
regulations on gear requirements that accomplishes the same goal. NOAA 
included ``living or dead'' coral formations with the understanding 
that some visitors to the Sanctuary do not know the difference between 
living and dead corals. Additionally, impacts to dead coral formations 
may disrupt new coral recruits. The removal or injury to corals is also 
prohibited Sanctuary-wide.

Spearfishing

    Comment: Some reviewers expressed concern about spearfishing within 
the Sanctuary, while others urged NOAA to allow it to continue in a 
managed manner.
    Response: In balancing the public's concern and interest over the 
issue of spearfishing within the Sanctuary, NOAA has prohibited 
spearfishing in the SPAs, ERs, Research-only Special-use Areas, and 
some of the Existing Management Areas. NOAA has addressed the concerns 
of over-harvest

[[Page 4597]]

by this fishing technique in eighty to eighty-five percent of the total 
area within the Sanctuary dived by recreational divers and snorkelers. 
However, spearfishing will continue to be allowed and managed under 
fisheries management regulations in the remainder of the Sanctuary. 
This balance of concerns on the issue will have positive impacts on the 
resources.

Military Activities Within the Sanctuary

    Comment: Some commented that a prohibition on the use of explosives 
within the Sanctuary should be extended to the military.
    Response: The final regulations provide that all military 
activities shall be carried out in a manner that avoids to the maximum 
extent practicable any adverse impacts on Sanctuary resources and 
qualities. Sections 922.163 and 922.164 do not apply to existing 
classes of military activities as identified in the final environmental 
impact statement. New military activities may also be exempted from all 
or part of these two sections upon consultation with the Director. NOAA 
has been assured by the Navy that live (explosive) ordinances are not 
currently used within the Sanctuary. The Patricia Range is the only 
target site within the Sanctuary and live explosives are not used.

Research & Monitoring Action Plan

Management Should Be Based on Good Science

    Comment: Management actions should be based on good science and 
should not occur until the science is done to back it up.
    Response: Management actions should be based on the best available 
science. However, there is always a degree of uncertainty associated 
with science and, in some cases, it is imprudent to suspend management 
actions until the science is completed. A precautionary approach to 
management of Sanctuary resources should be taken in order to ensure 
that lack of scientific certainty does not preclude implementation of 
reasonable management measures. An adaptive management approach will be 
used in the Sanctuary when necessary.

Studies Are Needed To Determine Sustainability

    Comment: Studies are needed to determine the level of human 
activity sustainable by the resources.
    Response: NOAA agrees and has included a carrying capacity strategy 
in the Research and Monitoring Action Plan. The strategy calls for 
carrying capacity research to be conducted at several of the SPAs and 
Research-only Special-use Areas.

Too Much Emphasis on Research and Monitoring

    Comment: The draft management plan places too much emphasis on 
research and monitoring.
    Response: Research and monitoring is an essential component of 
effective resource management. The reason many strategies have a 
research or monitoring component is to assess the strategies'' 
effectiveness or feasibility in order to determine whether it needs to 
be modified, continued, or terminated prior to committing additional 
resources in the future.

Queen Conch Stocking

    Comment: A moratorium on stocking would adversely effect the 
State's queen conch stocking program.
    Response: NOAA has revised Strategy F.3 by eliminating the 
moratorium on stocking and replacing it with a requirement for 
permitting of all stocking programs.

Monitoring of Zones

    Comment: Research and monitoring of zones needs to be a top 
priority.
    Response: Scientific monitoring to determine the effectiveness of 
the zones is a top priority for NOAA. In 1993, NOAA began to collect 
baseline data on reef fish populations in and around the proposed no-
take zones in preparation for their implementation. Research in the 
zones is also a top priority and will begin once the zones are 
finalized. The Research and Monitoring Action Plan explains how the 
zones will be used for research and monitoring.

Volunteer Research and Monitoring Programs

    Comment: Some reviewers pointed out the need to incorporate 
volunteer monitoring efforts such as some of those currently underway 
by groups like Reef Relief, The Nature Conservancy, and R.E.E.F. They 
also pointed out the importance of using the knowledge of local experts 
to help better understand the health of Sanctuary resources.
    Response: NOAA has incorporated the use of monitoring projects by 
the public and volunteers in the Research and Monitoring Action Plan. 
The long-term goals of the Sanctuary include using such monitoring 
programs as a basis of detecting change in the coral reef environment.

Submerged Cultural Resources Action Plan

Prevent Treasure Hunting & No Permits for Private Profit

    Comment: Several reviewers, including the National Park Service, 
Minerals Management Service, and the Department of the Navy stated that 
no treasure hunting should be permitted in the Sanctuary and that the 
proposed Submerged Cultural Resources (SCR) permit system was in 
conflict with the Federal Archaeological Program and particularly the 
Abandoned Shipwreck Act (ASA) guidelines. Other reviewers indicated 
that some commercial treasure salvage should be permitted, but should 
be strictly regulated to prevent any harm to the natural resources of 
the Sanctuary.
    Response: NOAA agrees that ``treasure hunting'' that is, the search 
for and recovery of intrinsically valuable artifacts with little, if 
any, regard for the archaeological context and historical significance 
of the finds, should not be allowed in the Sanctuary.
    However, the Submerged Cultural Resources (SCR) Action Plan does 
provide for public and private sector recovery of shipwrecks consistent 
with protecting historical values and the environmental integrity of 
the shipwrecks and sites. NOAA and the State of Florida have agreed 
that the SCR plan, consistent with the multiple use mandates of the 
NMSA and the ASA, should provide for the in situ preservation of highly 
significant historical Sanctuary resources under strict regulations 
protecting historical values and the environmental integrity of the 
shipwrecks and sites and that the recovery of SCRs should only be 
permitted when it is determined to be in the public's interest and done 
in an environmentally and archaeologically sound manner.
    No recovery permits will be issued in areas where there is coral, 
seagrass or other significant natural resources. However, private 
recovery of certain SCRs may be permitted in other areas of the 
Sanctuary which are relatively devoid of natural resources. In such 
recovery efforts, the highly significant resources will be required to 
be preserved in a museum of public access consistent with the standards 
of the Federal Archaeological Program. Objects of low to moderate 
historic or archaeological significance may be deaccessioned or 
transferred for sale or other disposition.
    As regards the ASA guidelines, NOAA acknowledges that the 
accommodation of commercial salvage, that is, the search for and the 
recovery

[[Page 4598]]

of shipwreck artifacts using archaeological recovery techniques and 
historical documentation to maximize the intrinsic value of the finds, 
does appear to conflict with certain ASA guidelines suggesting that no 
commercial salvage be permitted in marine sanctuaries. However, NOAA's 
position is that the SCR Action Plan is consistent with the ASA 
guidelines when read as a whole. In other words, there is no commercial 
salvage permitted in the zoned areas and other areas of significant 
natural resources. Commercial salvage will be permitted only in areas 
relatively devoid of significant natural resources. NOAA does not 
suggest that the FKNMS SCR Action Plan be used as a model for other 
national marine sanctuaries, or for other Federal/State protected areas 
or preserve systems. There are several distinguishing reasons for the 
departure from those ASA Guidelines in the FKNMS: (1) 65 percent of the 
Sanctuary is in State waters--under the NMSA and the ASA due deference 
must be given to the State's interests in managing Sanctuary resources, 
particularly abandoned shipwrecks to which the State has title; (2) 
treasure hunting and commercial salvage of historic shipwrecks has been 
a traditional activity in the Keys for decades and is part of the local 
culture; (3) the NMSA and the ASA are multiple use statutes; (4) the 
establishment of multiple use areas where commercial salvage can occur 
as well as not permitting any recovery where there is coral, seagrass 
or other significant natural resources is analogous to the zoning 
approach proposed for protecting natural resource habitat areas; (5) 
the SAC recommended that some commercial salvage be permitted in the 
Sanctuary; and 6) numerous other public comments recommended that some 
commercial salvage should be permitted in the Sanctuary.
    Consistent with the recommendations of the SAC, the State, and 
public comments, the SCR Action Plan provides a permit system which 
will strictly regulate private, for profit, recovery of SCRs, to ensure 
that it is done in an environmentally and archaeologically sound 
manner. Private, for profit, recovery will not be allowed unless it is 
in the public interest and will include public display of the recovered 
SCRs. Certain SCRs will be required to be maintained in museums and 
similar institutions of public access while duplicative objects may be 
deaccessioned and transferred to the permittee for sale or other 
disposition, but only after there has been a proper recording and 
reporting of the archaeological information. Under the multiple use 
mandate of the NMSA and the ASA, some SCRs may be recovered while other 
more significant SCRs will remain in the Sanctuary for in situ 
preservation and use by present and future generations.
    Comment: The National Park Service commented that the Antiquities 
Act applies in National Marine Sanctuaries and therefore an Antiquities 
Act permit should be required for the excavation and recovery of SCRs.
    Response: NOAA agrees that the Antiquities Act applies in the 
Sanctuary. However, as the Federal agency that exercises control over 
Sanctuary resources, NOAA is the appropriate Federal agency to issue 
permits for the management of Sanctuary resources, including 
antiquities. Moreover, as the Sanctuary SCR permits will be issued in 
compliance with the NMSA, the ASA, the NHPA, and the standards and 
guidelines of the Federal Archaeological Program, an additional permit 
under the Antiquities Act appears unnecessarily duplicative.
    Comment: The Department of the Navy objected to the SCR permits and 
expressed concern about the Navy's historic shipwrecks in the Sanctuary 
as well as the potential precedent for other Navy historic shipwrecks 
outside the Sanctuary.
    Response: The permits for private recovery and deaccession/transfer 
only apply to abandoned vessels. As a trustee for such resources, NOAA 
will continue to respect the interests of the owners of the vessels and 
the sovereigns that represent those interests consistent with domestic 
and international law. Sunken warships and other public vessels 
entitled to sovereign immunity, regardless of location, remain the 
property of the nation to which it belonged at the time of sinking, 
unless that nation has taken formal action to abandon it or to transfer 
title to another party. It is a long-standing Navy policy that it does 
not abandon its public vessels. Therefore, no permits will be issued 
for the private recovery of Navy vessels without the express written 
permission of the Department of the Navy. In considering permits for 
the private recovery of other vessels entitled to sovereign immunity, 
NOAA may require the express permission of the appropriate sovereign 
representatives, or otherwise consider their interests in the vessel 
and its recovery.

SCR Plan/Permits & Costs to Treasure Salvors Business

    Comment: At the scoping meetings, workshops, SAC meetings, other 
public meetings, and in public comments the treasure salvors have 
continuously asserted that the FKNMS would put them out of business and 
commented that the Sanctuary should adopt the State's existing contract 
system. Others commented that commercial treasure salvage should be 
permitted, but should be strictly regulated to prevent harm to natural 
resources from various commercial treasure salvage methodologies, 
including ``mail-boxing'' (propeller dredging device).
    Response: The Florida contract system and the division ratio (80 
percent salvor to 20 percent State) was considered as an alternative, 
but was not preferred because it is inconsistent with the Federal 
Archaeological Program and with the ASA Guidelines. Prohibiting 
commercial salvage throughout the Sanctuary was also considered and 
rejected for reasons indicated in the response to the comments above. 
The SCR Action Plan is the result of a careful balancing of resource 
protection and reasonable accommodation for commercial salvage in 
certain areas for certain SCRs. If the cargo from a wreck is of little 
or no historical or archaeological significance and duplicative, then 
nearly all of the recovered objects will likely be transferred to the 
permittee. On the other hand, if the artifacts are of high historical 
significance, then the permittee will have possession of the artifacts 
and may seek return on the investment through other means. However, in 
this instance there would be no transfer of ownership of a public 
resource to a private party unless and until it is determined that the 
resource is of little or no historical or archaeological value. In 
developing the SCR Action Plan, NOAA considered the threats to natural 
and historical resources and sought to develop strict regulations to 
ensure that recovery will be environmentally and archaeologically 
sound, while at the same time, taking into account the socio-economic 
considerations of the commercial salvors and others. In response to 
comments, changes were made to the proposed regulations and draft 
management plan in an effort to make the permit management system more 
pragmatic from the perspective of the commercial salvors without 
compromising the primary objectives of protecting significant natural 
and historic Sanctuary resources. Between the draft and the final, NOAA 
issued

[[Page 4599]]

several permits to commercial salvors with pre-existing admiralty 
rights. While the permit conditions may be more rigorous than the 
requirements of the Admiralty Court or the State contract system, and 
thus may involve additional costs, those permittees continue to work 
their sites.
    Comment: The Historic Shipwreck Salvage Policy Council (HSSPC) 
(treasure salvors group) and other treasure salvors also raised 
specific concerns about the economic burden to permittees in the SCR 
Action Plan such as requiring performance bonds, general liability 
insurance, permanent public display of certain SCRs, professional 
nautical conservators and supervision by professional archaeologists.
    Response: Pursuant to consultation with the State of Florida, NOAA 
has deleted the requirement for a performance bond for all applicants. 
As the treasure salvors noted, the regulations elsewhere require all 
permittees to demonstrate their financial ability to carry out proposed 
projects and activities requiring permits. NOAA agrees that the 
underlying purpose of requiring a performance bond (to ensure that 
there are ample funds to finish research-recovery work once initiated) 
appears to be covered by the other regulations and that by removing the 
regulatory requirement for a performance bond, there will be more 
flexibility in the permit system. While the removal of the regulatory 
requirement should reduce the costs for meeting the permit criteria for 
most applicants, requiring such a performance bond may still be 
reasonable and appropriate in certain cases where applicants 
historically have not finished projects or have difficulty 
demonstrating their financial ability to complete a proposed project.
    General liability insurance is required by Section 310 of the NMSA. 
However, NOAA has modified the regulatory provision implementing that 
requirement to clarify that other security instruments may be utilized 
in lieu of an insurance policy. In addition, NOAA has modified the 
regulatory language to clarify that the scope of coverage required is 
for potential claims for destruction, loss of or injury to Sanctuary 
resources arising out of permitted activities and to clarify that the 
amount of insurance or security should be equivalent to the estimated 
value of the Sanctuary resources in the vicinity of the permitted area 
and activities.
    With regard to the requirement that SCRs be publicly displayed, 
NOAA did not intend to require that all SCRs be publicly displayed for 
all time. Instead, it was expected that this would be addressed in the 
curation agreements and that standard museum practices would be 
followed, consistent with the FAP. The regulations have therefore been 
modified to indicate that public access and ``periodic'' public display 
must be provided.
    With regard to the requirement that a professional archaeologist be 
in charge of the archaeological research and recovery, that requirement 
has not been changed or modified. Recovery of historical resources 
inherently involves the destruction of contextual and other important 
archaeological information. The only way that such information is 
preserved is through scientific recording of the recovery efforts 
consistent with standard archaeological principles. It is therefore 
imperative that a professional archaeologist supervise the recovery 
operations. That is not to say that, as supervisor, the archaeologist 
needs to be on site all the time. However, the archaeologist needs to 
oversee the operations. The public's interest in the preservation of 
this archaeological information justifies the additional costs to the 
permittee. In addition, the administrative record indicates that many 
commercial salvors already employ an archaeologist.
    With regard to the requirement of a professional nautical 
conservator, the regulations have been modified to delete 
``professional'' and insert ``authorized'' as suggested in comments in 
order to provide more flexibility in the permit system and allow for 
the consideration of field experience. As the professional 
archaeologist is responsible for supervising the operations, NOAA will 
give due deference to the supervising archaeologist's selection for 
nautical conservator in considering its authorization.

Special Use Permits; Fees/Waiver in SCR Context

    Comment: The HSSPC suggested adding a third criteria for Special-
use Permits, i.e., ``to promote private sector participation when 
advantageous to the taxpayers'' and shifting the costs for Special-use 
Permits from the permittee to NOAA and the State. The HSSPC also 
suggested that the costs for Special-use Permits should be limited to 
the costs of issuing the permit. Other administrative costs such as 
monitoring activities should not be included. The fair market value for 
use of Sanctuary resources also should not be included.
    Response: Section 310 of the NMSA provides the authority, and sets 
forth the two criteria, for issuing Special-use Permits. Section 310 
also provides for the assessment of associated fees which are to cover 
the administrative costs as well as a fair market value return to the 
public for use of public resources. This portion of the management plan 
merely describes these statutory provisions and remains consistent with 
section 310.
    With regard to adding the third criterion, promotion of private 
participation, it is not a section 310 criterion or even a general 
statutory purpose or policy. However, facilitation of compatible 
multiple use is a statutory policy and the SCR Action Plan has been 
modified accordingly.
    With regard to the assessment of costs and waiver of fees in 
implementing Special-use Permit authority, NOAA has the discretionary 
authority to consider waiver of costs and/or fees on a case by case 
basis when permitted activities result in a public benefit, whose value 
can be determined. For example, in the SCR context, the preferred 
policy is that the SCR be preserved on site. Waiver of fees for the 
removal of SCRs which are not under threat is unlikely. However, if it 
is determined that the SCR is being threatened by remaining in the 
Sanctuary, the research and recovery would appear to be in the public 
interest and reduction and/or waiver may therefore be considered in the 
cost and/or fee determination. The extent that private use is 
furthering resource protection, research, education and similar FKNMS 
management strategies is given due consideration in determining the 
amount of costs and fees.

Public Access to SCRs (Land v. Sea)

    Comment: The HSSPC suggested that the plan should require SCRs to 
be managed in a manner that brings SCRs to the largest segment of the 
populations noting that scuba divers amount to less than 1% of the 
population. Several others, including the National Park Service, 
commented that SCRs should be preserved in the Sanctuary but that non-
intrusive public access for research, education and recreation should 
be allowed, and that intrusive public access should be strictly 
regulated.
    Response: The policy preference under the FKNMS SCR Action Plan, 
consistent with the preservation policy in the Federal Archaeological 
Program, and the resource protection mandate in the NMSA, is that SCRs 
be preserved on site in the Sanctuary, unless the SCRs are under threat 
and removal is required to preserve them. As indicated in the comments 
above, there has been some accommodation for commercial salvage in 
certain areas of the Sanctuary and for certain SCRs to facilitate 
multiple use of the SCRs. However, besides being inconsistent with 
resource protection,

[[Page 4600]]

the suggestion that all or most of the SCRs be removed from the 
Sanctuary is not consistent with the multiple use mandates of the NMSA 
and the ASA and has therefore not been incorporated. The ASA and the 
NMSA are both concerned about public access to SCRs for boaters, divers 
and others within the Sanctuary. The suggested change in policy appears 
to primarily benefit one special interest group, the commercial 
salvors. Access to Sanctuary resources for members of the public unable 
to enter the Sanctuary itself is accomplished through a variety of 
education and outreach and research products and mediums, including 
print, film, and computer informational products. The public access 
goal does not require physical access to the SCRs, nor does it require 
their removal for land based exhibits. However, as previously 
indicated, in this Sanctuary, the SCR Action Plan provides for 
commercial salvage which will in turn result in the public display of 
certain recovered SCRs in museums and similar institutions of public 
access.

Inventory of SCRs: Responsibility & Expense

    Comment: The HSSPC suggests that the Florida Department of State/
Bureau of Archaeological Resources have the lead responsibility in the 
inventory of SCRs and that NOAA's role be limited to a financial 
assistance role. The HSSPC also suggested that the inventory be 
accomplished through the use of the private sector, when funding is 
available, in order to lessen the burden on taxpayers.
    Response: No change was made to the plan regarding NOAA's lead 
responsibility for the inventory of SCRs because it is NOAA, not the 
State, that is legally responsible for accomplishing this task. Section 
110 of the National Historic Preservation Act requires Federal agencies 
to inventory historic resources such as SCRs under the Federal 
agencies' management responsibility. However, as indicated in the plan, 
NOAA will work with the State and any other public and private entities 
interested in activities which fulfill this responsibility. 
Accordingly, the SCR Agreement has been revised to indicate that NOAA 
will also consider all public and private opportunities for 
accomplishing the inventory in a reasonable and cost-effective manner, 
including private sector funding through permits and otherwise.

Survey/Inventory Permits

    Comment: The HSSPC suggested that the regulations expressly state 
that no Sanctuary permit is required for non-intrusive, non-exclusive 
remote sensing activities, but also suggested that the survey/inventory 
permits expressly grant exclusive rights to explore the permitted 
areas. The HSSPC also suggested that these permits provide for limited 
manual alteration of the seabed, including hand fanning, provided there 
is no negative impact to coral, seagrass, sponges and other natural 
resources.
    Response: Section 922.42 of the regulations states that unless an 
activity is prohibited, it is expressly allowed. In addition, the 
sections on Sanctuary permits, certification, and authorizations 
indicate that they are only required for conducting activities which 
are prohibited by Sanctuary regulations. Non-intrusive remote sensing 
is not prohibited. Therefore, the regulations expressly state that such 
activity does not require a permit. The regulations will indicate that 
permits may provide for limited manual alteration of the seabed, 
including hand fanning, provided there is no adverse effect on 
Sanctuary resources. Such activity will continue to be considered on a 
case-by-case basis as part of the public interest balancing on whether 
to issue a permit and for determining the appropriate conditions to 
protect resources and manage multiple uses.
    The HSSPC suggestion for exclusive rights for a survey-inventory 
permit is not entirely consistent with the suggestion that remote 
sensing not require a permit. NOAA cannot prevent non-intrusive remote 
sensing in an area unless it is prohibited in the regulations and the 
regulations do not prohibit remote sensing. However, NOAA and the State 
of Florida are cognizant of the underlying economic concerns of 
applicants and permittees in investing and expending financial 
resources. Therefore, in an effort to reconcile these comments, the 
regulations have been modified to indicate that NOAA will not grant 
survey and inventory permits or research and recovery permits for areas 
covered by existing permits, unless authorized by such permittee. There 
is no entitlement to these and other permits, rather it involves the 
discretionary authority of NOAA and the State of Florida in granting a 
privilege which is determined to be in the public's interest.

Volunteer Action Plan

Recruitment of Volunteers

    Comment: A number of reviewers, including the SAC, recommended the 
development of a new strategy in the Volunteer Action Plan which 
targets the recruitment, training and recognition of Sanctuary 
volunteers.
    Response: NOAA agrees with this comment and the management plan has 
been revised accordingly.

Volunteer Coordinator

    Comment: Some reviewers expressed concern that the Sanctuary's 
Volunteer Coordinator is not a full-time NOAA employee and recommended 
that this be changed. Others stated their satisfaction with the Nature 
Conservancy's role in the volunteer program because of its stability 
and broad geographic influence.
    Response: The Sanctuary's Volunteer Coordinator continues to 
effectively administer and oversee the Sanctuary's Volunteer Program. 
In the future, NOAA will consider whether it is either necessary or 
appropriate to modify the Volunteer Coordinator's role or position.

Water Quality Action Plan

Support the Water Quality Action Plan

    Comment: Many reviewers of the draft management plan and 
Environmental Impact Statement commented on the issue of water quality 
within the Sanctuary. There was almost unanimous agreement that 
deteriorating water quality is the major threat to the health of 
Sanctuary resources and most supported actions to correct the problems. 
Many reviewers specifically expressed support for the Water Quality 
Action Plan (WQAP).
    Response: NOAA agrees that the major threat to the health of the 
Florida Keys coral reef ecosystem is deteriorating water quality. The 
FKNMSPA directed EPA, in coordination with the State of Florida and 
NOAA, to develop a Water Quality Protection Program (WQPP) for the 
Sanctuary. This was the first Congressionally mandated Water Quality 
Protection Program for a National Marine Sanctuary and was established 
to take corrective actions to restore water quality in the Sanctuary. 
The Water Quality Action Plan reflects strategies developed under the 
Water Quality Protection Program.

Water Quality Is an Issue Broader Than the Sanctuary

    Comment: Although the majority of the reviewers recognized that 
deteriorating water quality was the major threat to marine resources, 
the source or cause of problems was questioned. Many claimed the 
problems originate outside Sanctuary boundaries in the upper portions 
of Florida Bay, or come as a result of poor water management practices 
in south Florida. Reviewers stated that the problem is outside the 
FKNMS boundary, thus, the Sanctuary does not have the authority to

[[Page 4601]]

address these significant water quality issues.
    Response: Some of the water quality problems in the Florida Keys 
occur outside and upstream of the Sanctuary's boundary. Deteriorating 
water quality in Florida Bay is largely a result of water management 
practices in south Florida as has been documented by scientists. Other 
scientists point to possible sources of nutrients and pollutants that 
enter Florida Bay through the Everglades drainage. The Florida Keys are 
at the end of the south Florida ecosystem and are the recipient of 
degraded water quality that originates upstream. While EPA, the State 
of Florida and other agencies will continue to address the land-based 
sources of pollution and water quality in the Sanctuary, particularly 
through the Water Quality Steering Committee and the South Florida 
Ecosystem Task Force, NOAA has an appropriate supplementary role in 
these efforts.

Water Quality Problems in Nearshore Waters

    Comment: Some reviewers stated that there are no water quality 
problems in the Florida Keys. Other reviewers cited the poor wastewater 
treatment practices in the Florida Keys, such as septic tanks, 
injection wells, and cess pits, as the main source of water quality 
degradation in the Sanctuary. Storm water runoff was also viewed to as 
a contributing factor to poor water quality. Some reviewers cited the 
findings from a recently released State hearing officer's report.
    Response: NOAA disagrees with the implication that there is not a 
water quality problem in the Florida Keys. Scientists have documented 
the decline of water quality in the nearshore waters of the Florida 
Keys. This deterioration is caused by a variety of sources including 
excessive nutrients entering the nearshore waters because of inadequate 
sewage treatment practices and problems related to storm water runoff. 
The findings of a State Hearing Officers were that the nearshore waters 
of the Florida Keys have exceeded their carrying capacity and are in 
danger of collapsing. In addition, the report identified nutrients 
originating from inadequate treatment facilities as the primary cause 
of nearshore water quality degradation in the Florida Keys.
    The WQPP was established to take corrective actions to restore 
water quality in the Sanctuary. This must be accomplished at the same 
time as, or prior to, the restoration of water quality upstream in 
Florida Bay in order to be successful. Improvement of water quality in 
the FKNMS will not be successful if only the upstream or nearshore 
portion of the ecosystem is restored. All parts of the ecosystem, all 
the way to the coral reefs, must be restored and relieved of increasing 
human impacts.

Implementation

    Comment: Some reviewers stressed that the implementation of the 
water quality action plan should supersede the implementation of other 
action plans such as zoning. They emphasized cleaning up the water 
quality problems before continuing with other management actions. Other 
reviewers stressed the importance of addressing the deteriorating water 
quality issue in the Sanctuary, but advocated implementation of a 
variety of management programs, including those that protect Sanctuary 
resources from continued degradation. In addition, some reviewers 
supported a plan with direct action strategies to correct water quality 
problems.
    Response: NOAA agrees that the major issue affecting the health of 
the Florida Keys coral reef ecosystem is deteriorating water quality. 
Implementation of the WQAP and the WQPP for the FKNMS will lead to 
improvement of the water quality in the Sanctuary. Currently, some of 
the corrective actions identified in the WQPP are being implemented 
both within the boundaries of the Sanctuary and upstream in the South 
Florida ecosystem. These on-going activities will have a net positive 
benefit to Sanctuary resources.
    However, NOAA disagrees that all other management actions should be 
deferred until the implementation of the WQPP and the WQAP for the 
FKNMS. Many of the management actions necessary to halt the decline of 
water quality in the Florida Keys will take years to implement, and the 
physical stresses and impacts currently placed on Sanctuary resources 
from other sources could be lessened with management actions such as 
mooring buoys to prevent anchor damage, channel markers to mark boating 
routes through sensitive habitats, and outreach programs to educate 
users about the resources of the Florida Keys.

Mosquito Spraying

    Comment: Several reviewers expressed concern about NOAA's role in 
addressing current mosquito control practices in Monroe County.
    Response: Representatives from FKNMS and Monroe County will work 
together through the Water Quality Protection Program to refine aerial 
mosquito spraying based on research findings. This action will reduce 
threats to marine resources which may result from mosquito spraying 
over the near-shore waters of the Florida Keys.

Zoning Action Plan

The Term Replenishment Reserve

    Comment: Some reviewers expressed that the term Replenishment 
Reserve is confusing because it implies that these areas are for 
fisheries replenishment.
    Response: NOAA has changed the name Replenishment Reserve to 
Ecological Reserve (ER). Ecological Reserve more accurately represents 
the purpose of this zone, that is, to restore natural ecosystem 
dynamics and habitat, by setting aside a portion of the coral reef 
environment (including seagrass beds, hardbottom, rubble habitat, patch 
reefs and sand areas) that is protected from all forms of 
``harvesting''.

Establishment of Zones

    Comment: Many commented on the Zoning Action Plan and proposed 
regulations regarding Sanctuary Preservation Areas, Wildlife Management 
Areas, Special-use Areas, and Ecological (formerly Replenishment) 
Reserves. Some recommended deleting all marine zoning; others 
recommended the zoned areas be expanded; while still others supported 
the zoning concept but recommended delay in implementation until there 
was more detailed scientific research and economic impact analysis of 
certain proposed zones. Some reviewers recommended zoned areas be 
closed to all human uses, except for boat transit. Many reviewers 
supported the proposed Zoning Action Plan including, in some instances, 
an increase in the amount of area proposed as Ecological Reserves.
    As regards the Key Largo ER, some reviewers suggested that because 
of the existing protection afforded by the John Pennekamp Coral Reef 
State Park and the existing Key Largo National Marine Sanctuary, that 
the Key Largo ER would not provide significant additional protection 
for the area and should, therefore, be eliminated. A number of 
reviewers suggested that if not eliminated, the boundaries of the Key 
Largo ER should be shifted to the south. Several reviewers suggested 
that the elimination of the Key Largo ER be accompanied by an increase 
in the size of the Carysfort SPA to protect additional patch reef and 
coral habitat. Other reviewers suggested that the boundaries of the Dry 
Tortugas ER be reconfigured to minimize impacts on fishers. In 
addition, a number of

[[Page 4602]]

reviewers suggested reconfiguring the Dry Tortugas ER to encompass more 
of the reef community as opposed to low-profile, barren habitat, but 
not reducing its overall size. A number of reviewers also expressed 
concerns about commercial fishing displacement as a result of 
establishment of the Western Sambos ER.
    Comments from some representatives of the recreational and 
commercial fishing industries and some individuals recommended 
elimination of all or some SPAs and ERs. These reviewers cited 
unreasonable burdens and negative economic impacts resulting from the 
closures, primarily due to displacement from closed areas. Examples of 
the uses most commonly cited as likely to be displaced are baitfishing, 
shrimping, and lobster trapping. Some recommended that bait fishing and 
catch and release trolling be allowed, while others were opposed to all 
fishing in SPAs.
    The State of Florida Marine Fisheries Commission generally 
supported the proposed zoning, but recommended the elimination of the 
Key Largo ER and suggested making provisions to allow certain baitfish 
harvest. Other State and Federal agencies supported the proposed zoning 
and one recommended establishing an additional replenishment zone in 
the back country of the Keys. Other reviewers supported the Zoning 
Action Plan as proposed or recommended additional areas for inclusion.
    The SAC recommended that the management plan: (1) Keep the proposed 
Special Preservation Areas as configured with provisions to allow bait 
fishing and catch and release trolling in selected SPAs; (2) keep the 
research-only areas; and (3) keep the Western Sambos ER but eliminate 
the proposed Key Largo ER; and reconfigure the Dry Tortugas ER.
    Response: NOAA developed the Ecological Reserves to protect some of 
the most significant habitat, but in a manner to avoid or minimize 
impacts to fishers and other users. In the DMP/EIS, NOAA proposed 
boundaries based on distribution of the most significant coral habitats 
and spur and groove configurations and a user survey identifying where 
fishing, diving and other uses occur. NOAA also used maps provided by 
the SAC members that indicated specific information about the resources 
and uses of the marine resources. The goal was to include the most 
coral reef communities in a manner which avoids or minimizes economic 
impact to users, particularly fisherman. NOAA has modified the final 
regulations and management plan to reflect several of the 
recommendations made in the comments. Consistent with recommendations 
from the SAC and others, and upon careful weighing the environmental 
and socio-economic impacts, NOAA has retained the Western Sambos ER but 
revised its Zoning Plan to eliminate the Key Largo and defer the Dry 
Tortugas Ecological Reserves, add the Eastern Sambos Research-only 
Special-use Area and slightly expand the Carysfort SPA to include 
additional intermediate reef, back reef, and patch reef areas. In 
weighing the socio-economic impacts on commercial and recreational 
users against the additional benefit of the Key Largo ER, NOAA 
eliminated that Reserve from the final plan and regulations. The 
resource protection provided by the existing protected areas, John 
Pennekamp Coral Reef State Park, Key Largo National Marine Sanctuary, 
and Biscayne National Park contributed to this decision. NOAA has, 
however, enlarged the SPA at Carysfort Reef to protect additional patch 
reef and coral habitat.
    Public comment also identified serious adverse economic impacts 
which would result from implementation of the no-take regulations 
within the proposed boundary of the Dry Tortugas ER. Recommendations 
suggested reconfiguring the boundary of that Reserve to minimize such 
impacts. Others recommended the Dry Tortugas ER be reconfigured to 
include additional reef communities. Consequently, NOAA did not set 
forth a boundary or regulations for the Dry Tortugas ER. Rather, NOAA 
will continue the process for establishing a proposed final boundary of 
the Dry Tortugas ER in coordination with the National Park Service, 
fishing representatives, scientists, and others to identify an 
appropriate final boundary for the Reserve, which may include portions 
of the Dry Tortugas National Park. NOAA and the National Park Service 
will use the information gathered as part of the public review of the 
draft management plan, and hold workshops with users, agency 
representatives, environmental organizations, scientists, and the 
public. Prior to making a final decision, the proposed final boundary 
of the Dry Tortugas ER will be published for public comment.
    In summary, public comments indicated that the impacts on fishers 
from the proposed Replenishment Reserves were greater than considered 
in the DMP/EIS. As a result, the final regulations designate the 
Western Sambos area as an ER. The Key Largo and Dry Tortugas areas were 
not made ERs in order to minimize adverse impacts to fishers. An area 
of the Dry Tortugas with a boundary with less of an adverse impact on 
fishers will be proposed to be designated at a later date.

Bait Fishing

    Comment: Some reviewers recommended allowing baitfishing in SPAs 
and ERs or reducing the number or size of SPAs to lessen the impact on 
baitfishing.
    Response: NOAA has revised the management plan to provide for the 
issuance of permits for limited bait fishing in SPAs rather than reduce 
the number of SPAs. NOAA will issue permits for catching ballyhoo for 
bait by net.

Catch and Release Trolling

    Comment: Some reviewers recommended allowing catch and release 
trolling in SPAs and ERs or reducing the number or size of SPAs to 
lessen the impact on this activity.
    Response: Catch and release fishing will continue to be allowed 
throughout greater than 98 percent of the Sanctuary. In addition, NOAA 
has modified the management plan and regulations to allow catch and 
release trolling in four of the eighteen SPAs: Conch Reef, Alligator 
Reef, Sombrero Key, and Sand Key. This will facilitate multiple uses 
and allow for comparisons to be made between SPAs, therefore 
determining the impact of catch and release trolling.

Snorkeling/Diving Access

    Comment: Some reviewers expressed concern about the lack of 
restrictions on divers and snorkelers in the zones, asserting they harm 
coral and other Sanctuary resources, while others commented that there 
should be no access at all to any zones where access is restricted to 
any one group.
    Response: NOAA does not agree that all zones should be entirely 
closed to public access. Non-consumptive use of SPAs and ERs is 
compatible with the purposes for which they were established. 
Consumptive activities (e.g., spearfishing, fish collecting, shell 
collecting, lobstering) are prohibited in SPAs and ERs. Non-consumptive 
activities (e.g., diving, snorkeling) are not expressly prohibited, 
however regulations prohibit consumptive activities such as 
spearfishing, and prohibit physical impacts to corals and coral reef 
habitat by prohibiting contact (e.g., touching and standing). 
Snorkeling and diving will be allowed in the Research-only Special-use 
Areas only by permit. By being closed to snorkeling and diving, these 
areas may then be

[[Page 4603]]

compared to SPAs and ERs to examine diver impacts.

Support the Zoning Plan

    Comment: NOAA received a number of comments generally supporting 
the Zoning Action Plan as proposed or requesting a larger proportion of 
zoned areas.
    Response: The zoning plan is the first attempt at large scale 
marine zoning in the USA. Five years after the zones are implemented, 
NOAA will lead a team to evaluate the effectiveness of zoning in 
ecosystem protection. At that time the zones will be re-evaluated and 
may be modified as necessary and/or appropriate.

Zoning Is Too Overbearing or Will Limit Work/Play

    Comment: A number of reviewers expressed concern that the zoning 
scheme is too restrictive and will unduly limit their ability to 
conduct recreational and commercial activities.
    Response: NOAA does not agree that the Zoning Action Plan overly 
restricts traditional uses of the resources. The area encompassed by 
the zones, including a Dry Tortugas ER, a boundary for which will be 
proposed in the future, will comprise no more than five percent of the 
Sanctuary. Moreover, non-consumptive uses (e.g., diving, snorkeling) 
will not be prohibited in all zones. Consumptive uses (e.g., commercial 
and sport fishing) will be restricted in SPAs and ERs and some Special-
use Areas. However, based on aerial surveys and visitor use data, 
approximately 94 percent of the recreational fishers fish outside these 
zones on a regular basis. Commercial fishers agreed early in the 
planning process that they do not rely on SPAs as areas to conduct 
their activities. The impact of ERs has been raised as a concern 
because of the perceived displacement of commercial activities (e.g., 
fishers). The ERs have been re-designed to minimize impacts to such 
activities through a process that relied on input from commercial 
fishers. This input, in part, led NOAA to eliminate the Key Largo ER, 
and postpone the establishment of a Dry Tortugas ER.

Sanctuary Preservation Areas and Ecological Reserves

    Comment: Some reviewers expressed opposition to all SPAs and ERs.
    Response: The purpose of a SPA is to protect a heavily used area of 
the marine environment (e.g., coral reefs) where conflicts often occur 
between user groups. These areas are critical for protecting the coral 
reefs and biodiversity of the FKNMS. The purpose of an ER is to 
minimize human influences, to provide natural spawning, nursery, and 
permanent residence areas for the replenishment and genetic protection 
of marine life, and to protect and preserve natural assemblages of 
habitats and species, and restore natural ecosystem dynamics. The 
FKNMSPA directed NOAA to consider temporal and geographic zoning. 
Zoning is a proven tool for marine conservation and is consistent with 
NOAA's mandate to accommodate multiple, compatible uses by providing 
long-term benefits to all consumptive and non-consumptive users through 
increased biodiversity.

Ecological Reserves are Redundant With Fisheries Management

    Comment: Eliminate all ERs because they are redundant with 
traditional fisheries management.
    Response: NOAA does not agree. Zoning in the FKNMS is for habitat 
protection and to preserve biodiversity, not for fisheries management. 
Traditional fisheries management focuses on managing stocks of a small 
number of the over 6000 species reported in the FKNMS. The primary 
purpose of an ER is to protect a portion of the coral reef environment 
(including seagrass beds, hardbottom, rubble habitats, patch reefs and 
sand areas) from all forms of harvesting in order to restore natural 
ecosystem dynamics.
    The establishment of no-take areas in specific portions of the 
coral reef tract should lead to replenishment of reef inhabitants that 
are currently being lost, or whose balance in the ecosystem has been 
altered. Moreover, with respect to fish stocks, some fisheries 
scientists suggest that ERs provide ancillary benefits to fisheries, 
similar to ``harvest refugia'' and other protected fisheries areas. The 
ERs are an important tool for effective ecosystem management in the 
FKNMS. NOAA will monitor the effectiveness of zoning in ecosystem 
protection and consider modifications as necessary and reasonably 
appropriate.

A Monitoring Program Is Needed To Determine the Viability of Zoning

    Comment: A number of reviewers recommended the establishment of a 
monitoring program to assess the viability of the zoning scheme.
    Response: The Zoning Action Plan provides for the establishment of 
a five-year monitoring program to assess the effectiveness of zoning in 
the Sanctuary.

Western Sambos Ecological Reserve

    Comment: A number of reviewers expressed concerns about commercial 
fishing displacement as a result of establishment of the Western Sambos 
ER.
    Response: NOAA believes there will be some displacement of 
fishermen, but that the long-term environmental benefits will far 
outweigh short-term economic losses. The ecological value of protecting 
the area does not warrant eliminating or modifying the boundary of the 
ER.

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

    Comment: Several reviewers recommended the establishment of an ER 
in the Back Country and/or Alligator Reef. The State of Florida 
recommended the establishment of a Back Country ER.
    Response: A full ecosystem representation in a comprehensive zoning 
plan should include Back Country marine habitats. However, given the 
priorities established in the Zoning Action Plan, this cannot be 
accomplished in the short-term, but will be considered for future 
implementation in the five year review cycle.

Jewfish and Steamboat Creek Wildlife Management Areas

    Comment: Some reviewers indicated that fishers and others regularly 
transit through Jewfish Creek and Steamboat Creek and raised concern 
over the proposed designation of no-access buffers in the Crocodile 
Lake Wildlife Management Area.
    Response: NOAA agrees. There was no intent to prohibit the use of 
this area for transit. Thus, consistent with existing US Fish and 
Wildlife Service regulations, the no-access designation was removed 
from the final management plan and regulations.

Crocodile Lake Wildlife Management Area

    Comment: Some reviewers indicated that the Crocodile Lake Wildlife 
Management Area no-access restriction was too limiting.
    Response: NOAA agrees and, upon consultation with the US Fish and 
Wildlife Service and the Florida Game and Freshwater Fish Commission, 
changed the designation of Crocodile Lake Wildlife Management Area to a 
no-access buffer zone (100 feet) along the shoreline between the dates 
March 1 and October 1.

Pelican Shoal Research-Only Special-Use Area

    Comment: Many reviewers requested that Pelican Shoal be kept open 
to public access. The Department of the Interior requested that a 50 
meter buffer be established during Roseate Tern nesting season.

[[Page 4604]]

    Response: NOAA agrees and has eliminated Pelican Shoal as a 
Research-only Special-use Area. It has been replaced with the Eastern 
Sambos Research-only Special-use Area. The new area will provide a 
better research and monitoring site, while simultaneously lessening 
impact on the public from limiting access to the reef around Pelican 
Shoal. However, in order to complement the State's seasonal closure of 
the land area, NOAA has designated a no-access 50 meter buffer as a 
Wildlife Management Area around Pelican Shoal between April 1 and 
August 31. These dates coincide with those established by the Florida 
Game and Freshwater Fish Commission for the protection of nesting 
terns.

Research Only Areas

    Comment: Many comments supported the establishment of research-only 
zones.
    Response: NOAA agrees that some zones should be used to determine 
the impacts of specific activities, such as diving and fishing. The 
final management plan and regulations establish four Research-only 
Special-use Areas. Pelican Shoal was eliminated as a Research-only 
Special-use Area and a Research-only Special-use Area surrounding the 
forereef habitat at Eastern Sambos has been added in its place. The 
Eastern Sambos area will serve as a control to determine the impacts of 
specific activities such as diving, snorkeling and fishing. 
Furthermore, Eastern Sambos, which is located in an area of good water 
quality, can be compared with the Tennessee Reef Research-only Special-
use Area, located in an area of poor water quality. The impacts 
associated with water quality as compared to those from human uses can 
also be determined from research and monitoring at these sites.

V. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304 of the NMSA requires the Secretary to submit to the 
Committee on Resources of the House of Representatives and the 
Committee on Commerce, Science, and Transportation of the Senate, on 
the same day as this notice is published, the final terms of the 
designation, the final regulations, a FEIS, and a FMP detailing the 
final goals and objectives, management responsibilities, research 
activities, interpretive and educational programs, and enforcement and 
surveillance activities, for the area. In accordance with Section 304, 
the required documents are being submitted to the specified 
Congressional Committees.

Executive Order 12866

    Under Executive Order 12866, if a regulatory action is significant 
as defined in section (3)(f ) of the Order, an assessment of the 
potential costs and benefits of the action must be prepared and 
submitted to the Office of Information and Regulatory Affairs (OIRA) of 
OMB. The Administrator of NOAA has determined that although this 
regulatory action is not expected to ``have an annual effect on the 
economy of $100 million or more,'' or otherwise meet the definition of 
a significant regulation under section 3(f) (1), (2), or (3), it is 
significant under section 3(f) (4) in that certain controversial and 
innovative aspects of the regulations may ``[r]aise novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in [the] Executive Order.''
    Therefore, NOAA's assessment of the potential socio-economic 
impacts on various user groups in the environmental impact statement 
has been designed to also satisfy the Regulatory Impact Review (RIR) 
requirements of Executive Order 12866. The assessment is contained in 
three sections of the FMP/EIS:
    (1) Volume III, Appendix M, Assessment of the Potential Costs and 
Benefits of the Final Management Plan Regulations.
    This appendix constitutes the primary component of both the RIR and 
NOAA's FEIS. Appendix M reviews the problems and policy objectives 
prompting the regulatory proposals and evaluates the major alternatives 
that were considered. It demonstrates that NOAA systematically and 
comprehensively considered all available alternatives in order to 
ensure that the public welfare would be enhanced in the most efficient 
and cost effective way possible.
    (2) Volume II, pp. 175-96, The Socioeconomic Impacts of Management 
Alternatives.
    This section is the socio-economic impact analysis of the final 
plan and supplements Appendix M.
    (3) Volume I, pp 9-40, The Preferred Alternative/Management Plan.
    This section is the heart of the EIS and describes the process and 
reasoning of selecting the preferred alternative upon consideration of 
public comments on the FMP/EIS and balancing the goals and requirements 
of the NMSA and NEPA. It provides a narrative explanation of the way in 
which resource protection and the public welfare were considered 
together in building the FMP.
    NOAA's socioeconomic assessment places special emphasis on the 
marine zones established by the regulations, and the conduct of 
activities in those zones. Particular attention is paid to the ERs and 
SPAs, since the concept of no-take zones or reserves is the most 
innovative and controversial element of the management plan and 
regulations, and has aroused significant public interest and debate. 
NOAA has concluded that these regulations will have broad benefits to 
most users of the Florida Keys, especially the tourist industry which 
is very significant from a local and State perspective. No significant 
adverse socioeconomic impacts are anticipated to non-consumptive users. 
Among consumptive users, most will not be affected greatly by the 
marine zoning regulations but a small percentage will undergo some 
costs from displacement from no-take areas. These costs are expected to 
be offset with time as better habitat protection and protection of 
biodiversity within the zones improves the ecological health of the 
area.
    Other regulations which received considerable public scrutiny 
include those affecting the operation of vessels, particularly personal 
watercraft (PWC) (e.g., jet-skis); and to a lesser extent the SCR 
permit system regulation of commercial treasure salvage. NOAA's 
approach to the PWC issue was multi-pronged and resulted in regulations 
that apply to PWC as well as other vessels, and non-regulatory 
management strategies which specifically apply to PWC. NOAA took public 
input into account, as in its approach to all the regulations. The 
final preferred alternative attempts to address user conflicts and 
environmental concerns by avoiding regulatory impacts as much as 
possible consistent with the major objectives of the Sanctuary. The 
process is described in Vol. 1, pp. 16-17, in Appendix L (Comments 
Received on the DMP/EIS and NOAA's Response), and in Appendix M.
    NOAA also considered public comments, particularly those from the 
commercial treasure salvage community, in revising the SCR permit 
system to make it more pragmatic from the perspective of commercial 
salvors while maintaining the primary objective of protecting the 
submerged cultural resources. (See Vol. 1, pp. 20-24, and the relevant 
sections in Appendix L and Appendix M.)
    NOAA's preferred alternative in the FMP for zoning, PWC, the SCR 
permit system and other issues has taken public comment into full 
account and represents a considerable alteration from the draft plan so 
as to disrupt users

[[Page 4605]]

as little as possible, without compromising the objectives of the 
Sanctuary.

Regulatory Flexibility Act

    As indicated in the FMP/EIS, and the response to comments, the 
proposed Sanctuary regulations have been revised in careful 
consideration of the impacts to the environment including socioeconomic 
impacts on Sanctuary users, the large majority of which are small 
business entities. Representatives of the user groups, including the 
small entities were identified in the earliest stages of program 
development and have participated throughout the public process. Small 
entities were represented on the SAC, including fishing entities, 
vessel-charter operators, recreation-tourism industry and commercial 
treasure salvors.
    The FMP/EIS sets forth the extensive public process which included 
participation from the small entities operating in the Sanctuary at SAC 
deliberations, as well as numerous Sanctuary user group workshops and 
other public meetings. The economic impacts to the Sanctuary user 
groups, which are almost entirely small entities, were considered 
throughout the public process of plan-rule development. The impacts on 
small entities which use the Sanctuary were considered as part of the 
delicate balancing of protecting resources, and facilitating compatible 
multiple use of the Sanctuary in a manner which ensures a sustainable 
use of the Sanctuary for present and future generations. The 
socioeconomic assessment briefly summarized the impacts on users from 
various management strategy alternatives. Over 6,000 public comments 
were received on the DEIS/MP and the proposed regulations. In addition 
to comments from the aforementioned small entities, thousands of 
comments were received from individuals working in the PWC industry. 
Some representatives of the fishing industry criticized the DEIS 
socioeconomic assessment of the zoning scheme.
    In developing the final management plan and regulations, the SAC's 
recommendations and the public comments were fully considered.
    The final regulations specifically allow all activities to be 
conducted in the Sanctuary other than those activities that are 
specifically prohibited by the regulations or by other applicable 
regulations and laws. Many of the activities that these regulations 
prohibit are already prohibited by the terms of the FKNMSPA, as well as 
by other State and Federal laws and regulations.
    The regulatory procedures for requesting certifications for pre-
existing leases, licenses, permits, approvals, other authorizations or 
rights authorizing the conduct of a prohibited activity or an activity 
that would be prohibited, and for notifying NOAA of applications for 
leases, licenses, permits, approvals, or other authorizations to 
conduct a prohibited activity or an activity that would be prohibited 
will all act to lessen any adverse economic effects on small entities.
    Because the Assistant General Counsel for Legislation and 
Regulation of the Department of Commerce certified to the Chief Counsel 
for Advocacy of the Small Business Administration that the proposed 
regulations, if adopted, would not have a significant economic impact 
on a substantial number of small entities, an Initial Regulatory 
Flexibility Analysis (IRFA) was not prepared. Nevertheless, because the 
final regulations will affect a substantial number of small entities, 
although not in an economically significant way, and particularly 
because some representatives of the small entity fishing industry 
criticized the DEIS socioeconomic assessment of the zoning scheme, a 
Final Regulatory Flexibility Analysis (FRFA) was prepared that fully 
complies with the requirements of Regulatory Flexibility Act. Those 
requirements are found in section 604 of Title 5, United States Code.
    Section 604(a)(1) requires that the FRFA contain a succinct 
statement of the need for, and objectives of, the rule. The FKNMSPA 
mandated the development of a FMP and implementing regulations in order 
to protect and manage Sanctuary resources in manner which facilitates 
multiple use of the Sanctuary which are compatible with the primary 
objective of resource protection. The FMP/EIS and responses to comments 
provide more specific details on the need for, and objectives of, 
particular rules.
    Section 604(a)(2) requires a summary of the significant issues 
raised by the public comments in response to the IRFA, a summary of the 
assessment of the agency of such issues, and a statement of any changes 
made in the proposed rule as a result of such comments. While an IRFA 
was not prepared, small business entities, including fisherman, charter 
boat operators, commercial treasure salvors and tourist related 
industries did comment on the draft regulations. NOAA's response to the 
comments is set forth above, and is further explained in summary form 
in the selection of the preferred alternative.
    Section 604(a)(3) requires a description of, and an estimate of, 
the number of small entities to which the rule will apply or an 
explanation of why no such estimate is available. The small businesses 
that directly use the Sanctuary and its resources and therefore will be 
subject to the Sanctuary regulations include fisherman, salvors, 
commercial treasure salvors, recreational charter boat operators, and 
other tourist related operations. The FRFA sets forth the number of 
small entities that may be affected by the regulations. The small 
entities include: 1,875 fisherpersons with restricted species licenses, 
535 licensed for-hire fishing firms, 100 dive charter businesses, 186 
marinas, 75 boat rental businesses, 73 seafood dealers, 26 marine 
salvage companies (recent casulaties), and 8 to 12 commercial treasure 
salvage companies (does not include individuals who have not 
incorporated).
    Section 604(a)(4) requires that the FRFA contain a description of 
the reporting, record keeping and other compliance requirements of the 
rule, including an estimate of the classes of small entities which will 
be subject to the requirement and the type of professional skills 
necessary for preparation of the report or record. The Sanctuary 
regulations require that permittees submit status reports for 
activities covered by Sanctuary permits. The permitee must submit one 
or more reports on the status, progress, or results of any activity 
authorized by a permit. The permittee must submit an annual report 
which describes all activities conducted under the permit and all 
revenues derived from such activities during the year and/or the term 
of the permit. The reporting requirement for SCR permits may be more 
rigorous than the existing State contracts, but they are necessary to 
preserve historical and archaeological information consistent with 
existing Federal historic preservation laws. The number of small 
entities which must comply with this requirement depends on the number 
of applicants, and this is expected to be less than 20 applicants per 
year.
    Section 604(a)(5) requires a description of the steps taken to 
minimize the significant economic impact on small entities consistent 
with the stated objectives of applicable statutes, including a 
statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect

[[Page 4606]]

the impact on small entities was rejected. Nearly every user of the 
Sanctuary is a small entity. Thus, no broad accommodation for small 
entities could be selected without compromising the resource protection 
mandated of the NMSA and the FKNMSPA. However, as indicated in the 
comments and responses, the selection of the preferred alternative and 
the socio-economic impact analysis, particular regulations were revised 
based on comments from user groups which are small business entities to 
lessen adverse economic impacts on them where not inconsistent with the 
objectives and purposes of the Sanctuary. For example, two ERs were 
deleted in light of comments of the socioeconomic impacts on fishermen. 
The SCR permit regulations were revised pursuant to comments of 
commercial treasure salvors in order to make the permit requirements 
more reasonable, practical and economically feasible from the user's 
perspective.
    As noted earlier, the final regulations specifically allow all 
activities to be conducted in the Sanctuary other than those activities 
that are specifically prohibited by the regulations or by other 
applicable regulations and laws. The procedures in these regulations 
for applying for National Marine Sanctuary permits to conduct otherwise 
prohibited activities, for requesting certifications for pre-existing 
leases, licenses, permits, approvals, other authorizations or rights 
authorizing the conduct of a prohibited activity, and for notifying 
NOAA of applications for leases, licenses, permits, approvals, or other 
authorizations to conduct a prohibited activity would all act to lessen 
any adverse economic effect on those conducting activities small 
entities. The final regulations, in total, are not expected to have a 
significant economic impact on a substantial number of small entities. 
A copy of the FRFA may be obtained upon request (See Addresses).

Paperwork Reduction Act

    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection-of-information, subject to the 
requirements of the Paperwork Reduction Act (Pub. L. No. 96-511), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) control number.
    This final rule contains collection of information requirements 
subject to the requirements of the Paperwork Reduction Act. These 
requirements are as follows: general permits, historical resource 
permits, special use permits, notifications, certifications, and 
appeals. The collection of information requirement applies to persons 
seeking permits to conduct otherwise prohibited activities and is 
necessary to determine whether the final activities are consistent with 
the management goals for the Sanctuary. The collection of information 
requirement contained in the final rule has been approved by the Office 
of Management and Budget. The public reporting burden per respondent 
for the collection of information contained in this rule is estimated 
to average 1.5 hours for general permit applications and reports, 6 
hours for historical resource and special use permit applications and 
reports, 0.5 hours for requests for notifications or certifications of 
applications, and 0.25 hours for appeals. These estimates include the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Comments from the public on the 
collection of information requirement, the burden estimates, and ways 
of reducing these burdens are specifically invited and should be 
addressed to the Office of Information and Regulatory Affairs, Office 
of Management and Budget, Washington, D.C. 20503 (Attn: Desk Officer 
for NOAA); and to Richard Roberts, Room 724, 6010 Executive Boulevard, 
Rockville, MD 20852.

Executive Order 12612

    A Federalism Assessment (FA) was prepared for the proposed 
designation document, draft management plan, and proposed implementing 
regulations. The FA concluded that all would be fully consistent with 
the principles, criteria, and requirements set forth in sections 2 
through 5 of Executive Order 12612, Federalism Considerations in Policy 
Formulation and Implementation (52 FR 41685). Copies of the FA are 
available upon request to the Office of Ocean and Coastal Resource 
Management at the address listed in the address section above.

National Environmental Policy Act

    In accordance with section 304(a)(2) of the Act (16 U.S.C. 
1434(a)(2)), and the provisions of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321-4370(a)), a draft and final EIS were 
prepared for the designation and the regulations. As required by 
section 304(a)(2), the EIS' include the resource assessment report 
required by section 303(b)(3) of the Act (16 U.S.C. 1433(b)(3)), maps 
depicting the boundaries of the designated area, and the existing and 
potential uses and resources of the area. Copies of the FEIS are 
available upon request to the Office of Ocean and Coastal Resource 
Management at the address listed in the address section above.

Executive Order 12630

    This final rule does not have takings implications within the 
meaning of Executive Order 12630 because it does not appear to have an 
effect on private property sufficiently severe as effectively to deny 
economically viable use of any distinct legally potential property 
interest to its owner or to have the effect of, or result in, a 
permanent or temporary physical occupation, invasion, or deprivation. 
While the prohibition on the exploration for, development, production 
of minerals and hydrocarbons from the Sanctuary might have a takings 
implication if it abrogated an existing lease for Outer Continental 
Shelf (OCS) tracts within the Sanctuary or an approval of an 
exploration or development and production plan, no OCS leases have been 
sold for tracts within the Sanctuary and no exploration or production 
and development plans have been filed or approved.

Unfunded Mandates Reform Act of 1995

    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA)) for State, local, and tribal governments or the private sector. 
Thus, this rule is not subject to the requirements of section 202 and 
205 of the UMRA.

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

    Administrative practice and procedure, Coastal zone, Education, 
Environmental protection, Marine resources, natural resources, 
Penalties, Recreation and recreation areas, Reporting and recordkeeping 
requirements, Research.

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

Accordingly, for the reasons set forth above, 15 CFR part 922 is 
amended as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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

    2. Section 922.1 is revised as follows:

[[Page 4607]]

Sec. 922.1  Applicability of regulations.

    Unless noted otherwise, the regulations in subparts A, D and E 
apply to all eleven National Marine Sanctuaries for which site-specific 
regulations appear in subparts F through P, respectively. Subparts B 
and C apply to the site evaluation list and to the designation of 
future Sanctuaries.
    3. Section 922.3 is amended by revising the definitions of 
``Historical resource'', ``National Marine Sanctuary'', and ``Sanctuary 
quality'' as follows:


Sec. 922.3  Definitions.

* * * * *
    Historical resource means any resource possessing historical, 
cultural, archaeological or paleontological significance, including 
sites, contextual information, structures, districts, and objects 
significantly associated with or representative of earlier people, 
cultures, maritime heritage, and human activities and events. 
Historical resources include ``submerged cultural resources'', and also 
include ``historical properties,'' as defined in the National Historic 
Preservation Act, as amended, and its implementing regulations, as 
amended.
* * * * *
    Sanctuary quality means any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of 
which is essential to the ecological health of the Sanctuary, 
including, but not limited to, water quality, sediment quality and air 
quality.
* * * * *


Sec. 922.3  [Amended]

    4. In Sec. 922.3, in the first sentence of the definition of 
``Sanctuary resource'' the word ``none-living'' is revised to read 
``non-living''.
    5. In Sec. 922.3, in the first sentence of the definition of 
``State'' the word ``Samos'' is revised to read ``Samoa''.
    6. In Sec. 922.3, in the first sentence of the definition of ``Take 
or taking'' the word ``would'' is revised to read ``wound''.
    7. Section 922.40 is revised to read as follows:


Sec. 922.40  Purpose.

    The purpose of the regulations in this subpart and in subparts F 
through P of this part is to implement the designations of the eleven 
National Marine Sanctuaries for which site specific regulations appear 
in subparts F through P of this part, respectively, by regulating 
activities affecting them, consistent with their respective terms of 
designation in order to protect, preserve and manage and thereby ensure 
the health, integrity and continued availability of the conservation, 
ecological, recreational, research, educational, historical and 
aesthetic resources and qualities of these areas. Additional purposes 
of the regulations implementing the designation of the Florida Keys 
National Marine Sanctuary are found at Sec. 922.160.
    8. Section 922.41 is revised to read as follows:


Sec. 922.41  Boundaries.

    The boundary for each of the eleven National Marine Sanctuaries 
covered by this part is described in subparts F through P of this part, 
respectively.
    9. Section 922.42 is revised to read as follows:


Sec. 922.42  Allowed Activities.

    All activities (e.g., fishing, boating, diving, research, 
education) may be conducted unless prohibited or otherwise regulated in 
subparts F through P of this part, subject to any emergency regulations 
promulgated pursuant to Secs. 922.44, 922.111(c), or Sec. 922.165, 
subject to all prohibitions, regulations, restrictions, and conditions 
validly imposed by any Federal, State, or local authority of competent 
jurisdiction, including Federal and State fishery management 
authorities, and subject to the provisions of section 312 of the Act. 
The Assistant Administrator may only directly regulate fishing 
activities pursuant to the procedure set forth in section 304(a)(5) of 
the NMSA.
    10. Section 922.43 is revised to read as follows:


Sec. 922.43  Prohibited or otherwise regulated activities.

    Subparts F through P of this part set forth site-specific 
regulations applicable to the activities specified therein.
    11. Section 922.44 is revised to read as follows:


Sec. 922.44  Emergency Regulations.

    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all such activities 
are subject to immediate temporary regulation, including prohibition. 
The provisions of this section do not apply to the Cordell Bank and 
Florida Keys National Marine Sanctuaries. See Secs. 922.111(c) and 
922.165, respectively, for the authority to issue emergency regulations 
with respect to those sanctuaries.
    12. Section 922.45 is amended by revising paragraph (a) as follows:


Sec. 922.45  Penalties.

    (a) Each violation of the NMSA or FKNMSPA, any regulation in this 
part, or any permit issued pursuant thereto, is subject to a civil 
penalty of not more than $ 100,000. Each day of a continuing violation 
constitutes a separate violation.
* * * * *
    13. Section 922.47 is amended by revising paragraph (b) as follows:


Sec. 922.47  Pre-existing authorizations or rights and certifications 
of pre-existing authorizations or rights.

* * * * *
    (b) The prohibitions listed in subparts F through P of this part do 
not apply to any activity authorized by a valid lease, permit, license, 
approval or other authorization in existence on the effective date of 
Sanctuary designation, or in the case of the Florida Keys National 
Marine Sanctuary the effective date of the regulations in this subpart 
P, and issued by any Federal, State or local authority of competent 
jurisdiction, or by any valid right of subsistence use or access in 
existence on the effective date of Sanctuary designation, or in the 
case of the Florida Keys National Marine Sanctuary the effective date 
of the regulations in subpart P, provided that the holder of such 
authorization or right complies with certification procedures and 
criteria promulgated at the time of Sanctuary designation, or in the 
case of the Florida Keys National Marine Sanctuary the effective date 
of the regulations in subpart P of this part, and with any terms and 
conditions on the exercise of such authorization or right imposed by 
the Director as a condition of certification as the Director deems 
necessary to achieve the purposes for which the Sanctuary was 
designated.
    14. Section 922.48 is amended by revising paragraphs (a) and (b) as 
follows:


Sec. 922.48  National Marine Sanctuary permits--application procedures 
and issuance criteria.

    (a) A person may conduct an activity prohibited by subparts F 
through O of this part if conducted in accordance with the scope, 
purpose, terms and conditions of a permit issued under this section and 
subparts F through O of this part. For the Florida Keys National Marine 
Sanctuary, a person may conduct an activity prohibited by subpart P if 
conducted in accordance with the scope, purpose, terms and conditions 
of a permit issued under Sec. 922.166.
    (b) Applications for permits to conduct activities otherwise 
prohibited by subparts F through O of this part

[[Page 4608]]

should be addressed to the Director and sent to the address specified 
in subparts F through O of this part. An application must include:
* * * * *
    15. Section 922.49 is revised to read as follows:


Sec. 922.49  Notification and review of applications for leases, 
licenses, permits, approvals, or other authorizations to conduct a 
prohibited activity.

    (a) A person may conduct an activity prohibited by subparts L 
through P of this part if such activity is specifically authorized by 
any valid Federal, State, or local lease, permit, license, approval, or 
other authorization issued after the effective date of Sanctuary 
designation, or in the case of the Florida Keys National Marine 
Sanctuary after the effective date of the regulations in subpart P of 
this part, provided that:
    (1) The applicant notifies the Director, in writing, of the 
application for such authorization (and of any application for an 
amendment, renewal, or extension of such authorization) within fifteen 
(15) days of the date of filing of the application or the effective 
date of Sanctuary designation, or in the case of the Florida Keys 
National Marine Sanctuary the effective date of the regulations in 
subpart P of this part, whichever is later;
    (2) The applicant complies with the other provisions of this 
Sec. 922.49;
    (3) The Director notifies the applicant and authorizing agency that 
he or she does not object to issuance of the authorization (or 
amendment, renewal, or extension); and
    (4) The applicant complies with any terms and conditions the 
Director deems reasonably necessary to protect Sanctuary resources and 
qualities.
    (b) Any potential applicant for an authorization described in 
paragraph (a) of this section may request the Director to issue a 
finding as to whether the activity for which an application is intended 
to be made is prohibited by subparts L through P of this part.
    (c) Notification of filings of applications should be sent to the 
Director, Office of Ocean and Coastal Resource Management at the 
address specified in subparts L through P of this part. A copy of the 
application must accompany the notification.
    (d) The Director may request additional information from the 
applicant as he or she deems reasonably necessary to determine whether 
to object to issuance of an authorization described in paragraph (a) of 
this section, or what terms and conditions are reasonably necessary to 
protect Sanctuary resources and qualities. The information requested 
must be received by the Director within 45 days of the postmark date of 
the request. The Director may seek the views of any persons on the 
application.
    (e) The Director shall notify, in writing, the agency to which 
application has been made of his or her pending review of the 
application and possible objection to issuance. Upon completion of 
review of the application and information received with respect 
thereto, the Director shall notify both the agency and applicant, in 
writing, whether he or she has an objection to issuance and what terms 
and conditions he or she deems reasonably necessary to protect 
Sanctuary resources and qualities, and reasons therefor.
    (f) The Director may amend the terms and conditions deemed 
reasonably necessary to protect Sanctuary resources and qualities 
whenever additional information becomes available justifying such an 
amendment.
    (g) Any time limit prescribed in or established under this 
Sec. 922.49 may be extended by the Director for good cause.
    (h) The applicant may appeal any objection by, or terms or 
conditions imposed by, the Director to the Assistant Administrator or 
designee in accordance with the provisions of Sec. 922.50.
    16. In Sec. 922.50 paragraphs (a)(1) and (a)(1)(iii) are amended by 
moving ``L through O'' and adding ``L through P''.
    17. Part 922 is amended by adding a new subpart P immediately 
following subpart O as follows:

Subpart P--Florida Keys National Marine Sanctuary

Sec. 922.160  Purpose.
Sec. 922.161  Boundary.
Sec. 922.162  Definitions.
Sec. 922.163  Prohibited activities--Sanctuary-wide.
Sec. 922.164  Additional activity regulations by Sanctuary area.
Sec. 922.165  Emergency regulations.
Sec. 922.166  Sanctuary permits--application procedures and issuance 
criteria.
Sec. 922.167  Certification of preexisting leases, licenses, 
permits, approvals, other authorizations, or rights to conduct a 
prohibited activity.
Appendix I to Subpart P of Part 922--Florida Keys National Marine 
Sanctuary boundary coordinates
Appendix II to Subpart P of Part 922--Existing Management Areas 
boundary coordinates
Appendix III to Subpart P of Part 922--Wildlife Management Areas 
access restrictions
Appendix IV to Subpart P of Part 922--Ecological Reserves boundary 
coordinates
Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas 
boundary coordinates
Appendix VI to Subpart P of Part 922--Special-use Areas boundary 
coordinates and use designations
Appendix VII to Subpart P of Part 922--Areas To Be Avoided boundary 
coordinates
Appendix VIII to Subpart P of Part 922--Marine Life Rule

Subpart P--Florida Keys National Marine Sanctuary


Sec. 922.160  Purpose.

    The purpose of the regulations in this part is to implement the 
comprehensive management plan for the Florida Keys National Marine 
Sanctuary by regulating activities affecting the resources of the 
Sanctuary or any of the qualities, values, or purposes for which the 
Sanctuary is designated, in order to protect, preserve and manage the 
conservation, ecological, recreational, research, educational, 
historical, and aesthetic resources and qualities of the area. In 
particular, the regulations in this part are intended to protect, 
restore, and enhance the living resources of the Sanctuary, to 
contribute to the maintenance of natural assemblages of living 
resources for future generations, to provide places for species 
dependent on such living resources to survive and propagate, to 
facilitate to the extent compatible with the primary objective of 
resource protection all public and private uses of the resources of the 
Sanctuary not prohibited pursuant to other authorities, to reduce 
conflicts between such compatible uses, and to achieve the other 
policies and purposes of the Florida Keys National Marine Sanctuary and 
Protection Act and the National Marine Sanctuaries Act.


Sec. 922.161  Boundary.

    The Sanctuary consists of all submerged lands and waters from the 
mean high water mark to the boundary described in Appendix I to this 
part, with the exception of areas within the Dry Tortugas National 
Park. Appendix I to this subpart sets forth the precise Sanctuary 
boundary established by the Florida Keys National Marine Sanctuary and 
Protection Act. (See FKNMSPA section 5(b)(2)).


Sec. 922.162  Definitions.

    (a) The following definitions apply to the Florida Keys National 
Marine Sanctuary regulations. To the extent that a definition appears 
in Sec. 922.3 and this section, the definition in this section governs.
    Acts means the Florida Keys National Marine Sanctuary and 
Protection Act, as amended, (FKNMSPA) (Pub. L. 101-

[[Page 4609]]

605), and the National Marine Sanctuaries Act (NMSA), also known as 
Title III of the Marine Protection, Research, and Sanctuaries Act, as 
amended, (MPRSA) (16 U.S.C. 1431 et seq.).
    Adverse effect means any factor, force, or action that 
independently or cumulatively damages, diminishes, degrades, impairs, 
destroys, or otherwise harms any Sanctuary resource, as defined in 
section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or 
any of the qualities, values, or purposes for which the Sanctuary is 
designated.
    Airboat means a vessel operated by means of a motor driven 
propeller that pushes air for momentum.
    Areas To Be Avoided means the areas in which vessel operations are 
prohibited pursuant to section 6(a)(1) of the FKNMSPA (see 
Sec. 922.164(a)). Appendix VII to this subpart sets forth the 
geographic coordinates of these areas, including any modifications 
thereto made in accordance with section 6(a)(3) of the FKNMSPA.
    Closed means all entry or use is prohibited.
    Coral means the corals of the Class Hydrozoa (stinging and 
hydrocorals); the Class Anthozoa, Subclass Hexacorallia, Order 
Scleractinia (stony corals) and Antipatharia (black corals).
    Coral area means marine habitat where coral growth abounds 
including patch reefs, outer bank reefs, deepwater banks, and 
hardbottoms.
    Coral reefs means the hard bottoms, deep-water banks, patch reefs, 
and outer bank reefs.
    Ecological Reserve means an area of the Sanctuary consisting of 
contiguous, diverse habitats, within which uses are subject to 
conditions, restrictions and prohibitions, including access 
restrictions, intended to minimize human influences, to provide natural 
spawning, nursery, and permanent residence areas for the replenishment 
and genetic protection of marine life, and also to protect and preserve 
natural assemblages of habitats and species within areas representing a 
broad diversity of resources and habitats found within the Sanctuary. 
Appendix IV to this subpart sets forth the geographic coordinates of 
these areas.
    Existing Management Area means an area of the Sanctuary that is 
within or is a resource management area established by NOAA or by 
another Federal authority of competent jurisdiction as of the effective 
date of these regulations where protections above and beyond those 
provided by Sanctuary-wide prohibitions and restrictions are needed to 
adequately protect resources. Appendix II to this subpart sets forth 
the geographic coordinates of these areas.
    Exotic species means a species of plant, invertebrate, fish, 
amphibian, reptile or mammal whose natural zoogeographic range would 
not have included the waters of the Atlantic Ocean, Caribbean, or Gulf 
of Mexico without passive or active introduction to such area through 
anthropogenic means.
    Fish means finfish, mollusks, crustaceans, and all forms of marine 
animal and plant life other than marine mammals and birds.
    Fishing means: (1) The catching, taking, or harvesting of fish; the 
attempted catching, taking, or harvesting of fish; any other activity 
which can reasonably be expected to result in the catching, taking, or 
harvesting of fish; or any operation at sea in support of, or in 
preparation for, any activity described in this subparagraph (1).
    (2) Such term does not include any scientific research activity 
which is conducted by a scientific research vessel.
    Hardbottom means a submerged marine community comprised of 
organisms attached to exposed solid rock substrate. Hardbottom is the 
substrate to which corals may attach but does not include the corals 
themselves.
    Idle speed only/no-wake means a speed at which a boat is operated 
that is no greater than 4 knots or does not produce a wake.
    Idle speed only/no-wake zone means a portion of the Sanctuary where 
the speed at which a boat is operated may be no greater than 4 knots or 
may not produce a wake.
    Live rock means any living marine organism or an assemblage thereof 
attached to a hard substrate, including dead coral or rock but not 
individual mollusk shells (e.g., scallops, clams, oysters). Living 
marine organisms associated with hard bottoms, banks, reefs, and live 
rock may include, but are not limited to: sea anemones (Phylum 
Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera); 
tube worms (Phylum Annelida), including fan worms, feather duster 
worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts 
(Phylum Chordata); and marine algae, including Mermaid's fan and cups 
(Udotea spp.), corraline algae, green feather, green grape algae 
(Caulerpa spp.) and watercress (Halimeda spp.).
    Marine life species means any species of fish, invertebrate, or 
plant included in sections (2), (3), or (4) of Rule 46-42.001, Florida 
Administrative Code, reprinted in Appendix VIII to this subpart.
    Military activity means an activity conducted by the Department of 
Defense with or without participation by foreign forces, other than 
civil engineering and other civil works projects conducted by the U.S. 
Army Corps of Engineers.
    No-access buffer zone means a portion of the Sanctuary where 
vessels are prohibited from entering regardless of the method of 
propulsion.
    No motor zone means an area of the Sanctuary where the use of 
internal combustion motors is prohibited. A vessel with an internal 
combustion motor may access a no motor zone only through the use of a 
push pole, paddle, sail, electric motor or similar means of operation 
but is prohibited from using it's internal combustion motor.
    Not available for immediate use means not readily accessible for 
immediate use, e.g., by being stowed unbaited in a cabin, locker, rod 
holder, or similar storage area, or by being securely covered and 
lashed to a deck or bulkhead.
    Officially marked channel means a channel marked by Federal, State 
of Florida, or Monroe County officials of competent jurisdiction with 
navigational aids except for channels marked idle speed only/no wake.
    Personal watercraft means any jet or air-powered watercraft 
operated by standing, sitting, or kneeling on or behind the vessel, in 
contrast to a conventional boat, where the operator stands or sits 
inside the vessel, and that uses an inboard engine to power a water jet 
pump for propulsion, instead of a propeller as in a conventional boat.
    Prop dredging means the use of a vessel's propulsion wash to dredge 
or otherwise alter the seabed of the Sanctuary. Prop dredging includes, 
but is not limited to, the use of propulsion wash deflectors or similar 
means of dredging or otherwise altering the seabed of the Sanctuary. 
Prop dredging does not include the disturbance to bottom sediments 
resulting from normal vessel propulsion.
    Prop scarring means the injury to seagrasses or other immobile 
organisms attached to the seabed of the Sanctuary caused by operation 
of a vessel in a manner that allows its propeller or other running 
gear, or any part thereof, to cause such injury (e.g., cutting seagrass 
rhizomes). Prop scarring does not include minor disturbances to bottom 
sediments or seagrass blades resulting from normal vessel propulsion.
    Residential shoreline means any man-made or natural:
    (1) Shoreline,
    (2) Canal mouth,

[[Page 4610]]

    (3) Basin, or
    (4) Cove adjacent to any residential land use district, including 
improved subdivision, suburban residential or suburban residential 
limited, sparsely settled, urban residential, and urban residential 
mobile home under the Monroe County land development regulations.
    Sanctuary means the Florida Keys National Marine Sanctuary.
    Sanctuary Preservation Area means an area of the Sanctuary that 
encompasses a discrete, biologically important area, within which uses 
are subject to conditions, restrictions and prohibitions, including 
access restrictions, to avoid concentrations of uses that could result 
in significant declines in species populations or habitat, to reduce 
conflicts between uses, to protect areas that are critical for 
sustaining important marine species or habitats, or to provide 
opportunities for scientific research. Appendix V to this subpart sets 
forth the geographic coordinates of these areas.
    Sanctuary wildlife means any species of fauna, including avifauna, 
that occupy or utilize the submerged resources of the Sanctuary as 
nursery areas, feeding grounds, nesting sites, shelter, or other 
habitat during any portion of their life cycles.
    Seagrass means any species of marine angiosperms (flowering plants) 
that inhabit portions of the seabed in the Sanctuary. Those species 
include, but are not limited to: Thalassia testudinum (turtle grass); 
Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass); 
Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima.
    Special-use Area means an area of the Sanctuary set aside for 
scientific research and educational purposes, recovery or restoration 
of Sanctuary resources, monitoring, to prevent use or user conflicts, 
to facilitate access and use, or to promote public use and 
understanding of Sanctuary resources. Appendix VI to this part sets 
forth the geographic coordinates of these areas.
    Tank vessel means any vessel that is constructed or adapted to 
carry, or that carries, oil or hazardous material in bulk as cargo or 
cargo residue, and that--
    (1) Is a United States flag vessel;
    (2) Operates on the navigable waters of the United States; or
    (3) Transfers oil or hazardous material in a port or place subject 
to the jurisdiction of the United States [46 U.S.C. 2101].
    Traditional fishing means those commercial or recreational fishing 
activities that were customarily conducted within the Sanctuary prior 
to its designation as identified in the Environmental Impact Statement 
and Management Plan for this Sanctuary.
    Tropical fish means any species included in section (2) of Rule 46-
42.001, Florida Administrative Code, reproduced in Appendix VIII to 
this subpart, or any part thereof.
    Vessel means a watercraft of any description, including, but not 
limited to, motorized and non-motorized watercraft, personal 
watercraft, airboats, and float planes while maneuvering on the water, 
capable of being used as a means of transportation in/on the waters of 
the Sanctuary. For purposes of this part, the terms ``vessel,'' 
``watercraft,'' and ``boat'' have the same meaning.
    Wildlife Management Area means an area of the Sanctuary established 
for the management, protection, and preservation of Sanctuary wildlife 
resources, including such an area established for the protection and 
preservation of endangered or threatened species or their habitats, 
within which access is restricted to minimize disturbances to Sanctuary 
wildlife; to ensure protection and preservation consistent with the 
Sanctuary designation and other applicable law governing the protection 
and preservation of wildlife resources in the Sanctuary. Appendix III 
to this subpart lists these areas and their access restrictions.
    (b) Other terms appearing in the regulations in this part are 
defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and 
Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16 
U.S.C. 1431 et seq.


Sec. 922.163  Prohibited activities--Sanctuary-wide.

    (a) Except as specified in paragraph (b) through (e) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Mineral and hydrocarbon exploration, development and 
production. Exploring for, developing, or producing minerals or 
hydrocarbons within the Sanctuary.
    (2) Removal of, injury to, or possession of coral or live rock. (i) 
Moving, removing, taking, harvesting, damaging, disturbing, breaking, 
cutting, or otherwise injuring, or possessing (regardless of where 
taken from) any living or dead coral, or coral formation, or attempting 
any of these activities, except as permitted under 50 CFR part 638.
    (ii) Harvesting, or attempting to harvest, any live rock from the 
Sanctuary, or possessing (regardless of where taken from) any live rock 
within the Sanctuary, except as authorized by a permit for the 
possession or harvest from aquaculture operations in the Exclusive 
Economic Zone, issued by the National Marine Fisheries Service pursuant 
to applicable regulations under the appropriate Fishery Management 
Plan, or as authorized by the applicable State authority of competent 
jurisdiction within the Sanctuary for live rock cultured on State 
submerged lands leased from the State of Florida, pursuant to 
applicable State law. See Sec. 370.027, Florida Statutes and 
implementing regulations.
    (3) Alteration of, or construction on, the seabed. Drilling into, 
dredging, or otherwise altering the seabed of the Sanctuary, or 
engaging in prop-dredging; or constructing, placing or abandoning any 
structure, material, or other matter on the seabed of the Sanctuary, 
except as an incidental result of:
    (i) Anchoring vessels in a manner not otherwise prohibited by this 
part (see Secs. 922.163(a)(5)(ii) and 922.164(d)(1)(v));
    (ii) Traditional fishing activities not otherwise prohibited by 
this part;
    (iii) Installation and maintenance of navigational aids by, or 
pursuant to valid authorization by, any Federal, State, or local 
authority of competent jurisdiction;
    (iv) Harbor maintenance in areas necessarily associated with 
Federal water resource development projects in existence on [insert 
effect date of these regulations], including maintenance dredging of 
entrance channels and repair, replacement, or rehabilitation of 
breakwaters or jetties;
    (v) Construction, repair, replacement, or rehabilitation of docks, 
seawalls, breakwaters, piers, or marinas with less than ten slips 
authorized by any valid lease, permit, license, approval, or other 
authorization issued by any Federal, State, or local authority of 
competent jurisdiction.
    (4) Discharge or deposit of materials or other matter. (i) 
Discharging or depositing, from within the boundary of the Sanctuary, 
any material or other matter, except:
    (A) Fish, fish parts, chumming materials, or bait used or produced 
incidental to and while conducting a traditional fishing activity in 
the Sanctuary;
    (B) Biodegradable effluent incidental to vessel use and generated 
by a marine sanitation device approved in accordance with Section 312 
of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 
U.S.C. 1322 et seq.;

[[Page 4611]]

    (C) Water generated by routine vessel operations (e.g., deck wash 
down and graywater as defined in section 312 of the FWPCA), excluding 
oily wastes from bilge pumping; or
    (D) Cooling water from vessels or engine exhaust;
    (ii) Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality, except those 
listed in paragraph (a)(4)(i)(A) through (D) of this section and those 
authorized under Monroe County land use permits.
    (5) Operation of vessels. (i) Operating a vessel in such a manner 
as to strike or otherwise injure coral, seagrass, or any other immobile 
organism attached to the seabed, including, but not limited to, 
operating a vessel in such a manner as to cause prop-scarring.
    (ii) Having a vessel anchored on living coral other than hardbottom 
in water depths less than 40 feet when visibility is such that the 
seabed can be seen.
    (iii) Except in officially marked channels, operating a vessel at a 
speed greater than 4 knots or in a manner which creates a wake:
    (A) Within an area designated idle speed only/no wake;
    (B) Within 100 yards of navigational aids indicating emergent or 
shallow reefs (international diamond warning symbol);
    (C) Within 100 feet of the red and white ``divers down'' flag (or 
the blue and white ``alpha'' flag in Federal waters);
    (D) Within 100 yards of residential shorelines; or
    (E) Within 100 yards of stationary vessels.
    (iv) Operating a vessel in such a manner as to injure or take 
wading, roosting, or nesting birds or marine mammals.
    (v) Operating a vessel in a manner which endangers life, limb, 
marine resources, or property.
    (6) Conduct of diving/snorkeling without flag. Diving or snorkeling 
without flying in a conspicuous manner the red and white ``divers 
down'' flag (or the blue and white ``alpha'' flag in Federal waters).
    (7) Release of exotic species. Introducing or releasing an exotic 
species of plant, invertebrate, fish, amphibian, or mammals into the 
Sanctuary.
    (8) Damage or removal of markers. Marking, defacing, or damaging in 
any way or displacing, removing, or tampering with any official signs, 
notices, or placards, whether temporary or permanent, or with any 
navigational aids, monuments, stakes, posts, mooring buoys, boundary 
buoys, trap buoys, or scientific equipment.
    (9) Movement of, removal of, injury to, or possession of Sanctuary 
historical resources. Moving, removing, injuring, or possessing, or 
attempting to move, remove, injure, or possess, a Sanctuary historical 
resource.
    (10) Take or possession of protected wildlife. Taking any marine 
mammal, sea turtle, or seabird in or above the Sanctuary, except as 
authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 
U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 
U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, 
(MBTA) 16 U.S.C. 703 et seq.
    (11) Possession or use of explosives or electrical charges. 
Possessing, or using explosives, except powerheads, or releasing 
electrical charges within the Sanctuary.
    (12) Harvest or possession of marine life species. Harvesting, 
possessing, or landing any marine life species, or part thereof, within 
the Sanctuary, except in accordance with rules 46-42.001 through 46-
42.003, 46-42.0035, and 46-42.004 through 46-42.007, and 46.42.009 of 
the Florida Administrative Code, reproduced in Appendix VIII to this 
subpart, and such rules shall apply mutatis mutandis (with necessary 
editorial changes) to all Federal and State waters within the 
Sanctuary.
    (13) Interference with law enforcement. Interfering with, 
obstructing, delaying or preventing an investigation, search, seizure, 
or disposition of seized property in connection with enforcement of the 
Acts or any regulation or permit issued under the Acts.
    (b) Notwithstanding the prohibitions in this section and in 
Sec. 922.164, and any access and use restrictions imposed pursuant 
thereto, a person may conduct an activity specifically authorized by, 
and conducted in accordance with the scope, purpose, terms, and 
conditions of, a National Marine Sanctuary permit issued pursuant to 
Sec. 922.166.
    (c) Notwithstanding the prohibitions in this section and in 
Sec. 922.164, and any access and use restrictions imposed pursuant 
thereto, a person may conduct an activity specifically authorized by a 
valid Federal, State, or local lease, permit, license, approval, or 
other authorization in existence on the effective date of these 
regulations, or by any valid right of subsistence use or access in 
existence on the effective date of these regulations, provided that the 
holder of such authorization or right complies with Sec. 922.167 and 
with any terms and conditions on the exercise of such authorization or 
right imposed by the Director as a condition of certification as he or 
she deems reasonably necessary to achieve the purposes for which the 
Sanctuary was designated.
    (d) Notwithstanding the prohibitions in this section and in 
Sec. 922.164, and any access and use restrictions imposed pursuant 
thereto, a person may conduct an activity specifically authorized by 
any valid Federal, State, or local lease, permit, license, approval, or 
other authorization issued after the effective date of these 
regulations, provided that the applicant complies with Sec. 922.168, 
the Director notifies the applicant and authorizing agency that he or 
she does not object to issuance of the authorization, and the applicant 
complies with any terms and conditions the Director deems reasonably 
necessary to protect Sanctuary resources and qualities. Amendments, 
renewals and extensions of authorizations in existence on the effective 
date of these regulations constitute authorizations issued after the 
effective date of these regulations.
    (e)(1) All military activities shall be carried out in a manner 
that avoids to the maximum extent practical any adverse impacts on 
Sanctuary resources and qualities. The prohibitions in paragraph (a) of 
this section and Sec. 922.164 do not apply to existing classes of 
military activities which were conducted prior to the effective date of 
these regulations, as identified in the Environmental Impact Statement 
and Management Plan for the Sanctuary. New military activities in the 
Sanctuary are allowed and may be exempted from the prohibitions in 
paragraph (a) of this section and in Sec. 922.164 by the Director after 
consultation between the Director and the Department of Defense 
pursuant to section 304(d) of the NMSA. When a military activity is 
modified such that it is likely to destroy, cause the loss of, or 
injure a Sanctuary resource or quality in a manner significantly 
greater than was considered in a previous consultation under section 
304(d) of the NMSA, or it is likely to destroy, cause the loss of, or 
injure a Sanctuary resource or quality not previously considered in a 
previous consultation under section 304(d) of the NMSA, the activity is 
considered a new activity for purposes of this paragraph. If it is 
determined that an activity may be carried out, such activity shall be 
carried out in a manner that avoids to the maximum extent practical any 
adverse impact on Sanctuary resources and qualities.
    (2) In the event of threatened or actual destruction of, loss of, 
or injury to a Sanctuary resource or quality resulting

[[Page 4612]]

from an untoward incident, including but not limited to spills and 
groundings caused by the Department of Defense, the cognizant component 
shall promptly coordinate with the Director for the purpose of taking 
appropriate actions to prevent, respond to or mitigate the harm and, if 
possible, restore or replace the Sanctuary resource or quality.
    (f) The prohibitions contained in paragraph (a)(5) of this section 
do not apply to Federal, State and local officers while performing 
enforcement duties and/or responding to emergencies that threaten life, 
property, or the environment in their official capacity.
    (g) Notwithstanding paragraph (b) of this section and paragraph (a) 
of Sec. 922.168, in no event may the Director issue a permit under 
Sec. 922.166 authorizing, or otherwise approve, the exploration for, 
leasing, development, or production of minerals or hydrocarbons within 
the Sanctuary, the disposal of dredged material within the Sanctuary 
other than in connection with beach renourishment or Sanctuary 
restoration projects, or the discharge of untreated or primary treated 
sewage (except by a certification, pursuant to Sec. 922.167, of a valid 
authorization in existence on the effective date of these regulations), 
and any purported authorizations issued by other authorities after the 
effective date of these regulations for any of these activities within 
the Sanctuary shall be invalid.


Sec. 922.164  Additional activity regulations by Sanctuary area.

    In addition to the prohibitions set forth in Sec. 922.163, which 
apply throughout the Sanctuary, the following regulations apply with 
respect to activities conducted within the Sanctuary areas described in 
this section and in Appendix (II) through (VII) to this subpart. 
Activities located within two or more overlapping Sanctuary areas are 
concurrently subject to the regulations applicable to each overlapping 
area.
    (a) Areas To Be Avoided. Operating a tank vessel or a vessel 
greater than 50 meters in registered length is prohibited in all areas 
to be avoided, except if such vessel is a public vessel and its 
operation is essential for national defense, law enforcement, or 
responses to emergencies that threaten life, property, or the 
environment. Appendix VII to this subpart sets forth the geographic 
coordinates of these areas.
    (b) Existing Management Areas.--(1) Key Largo and Looe Key 
Management Areas. The following activities are prohibited within the 
Key Largo and Looe Key Management Areas (also known as the Key Largo 
and Looe Key National Marine Sanctuaries) described in Appendix II to 
this subpart:
    (i) Removing, taking, damaging, harmfully disturbing, breaking, 
cutting, spearing or similarly injuring any coral or other marine 
invertebrate, or any plant, soil, rock, or other material, except 
commercial taking of spiny lobster and stone crab by trap and 
recreational taking of spiny lobster by hand or by hand gear which is 
consistent with these regulations and the applicable regulations 
implementing the applicable Fishery Management Plan.
    (ii) Taking any tropical fish.
    (iii) Fishing with wire fish traps, bottom trawls, dredges, fish 
sleds, or similar vessel-towed or anchored bottom fishing gear or nets.
    (iv) Fishing with, carrying or possessing, except while passing 
through without interruption or for law enforcement purposes: pole 
spears, air rifles, bows and arrows, slings, Hawaiian slings, rubber 
powered arbaletes, pneumatic and spring-loaded guns or similar devices 
known as spearguns.
    (2) Great White Heron and Key West National Wildlife Refuge 
Management Areas. Operating a personal watercraft, operating an 
airboat, or water skiing except within Township 66 South, Range 29 
East, Sections 5, 11, 12 and 14; Township 66 South, Range 28 East, 
Section 2; Township 67 South, Range 26 East, Sections 16 and 20, all 
Tallahassee Meridian, are prohibited within the marine portions of the 
Great White Heron and Key West National Wildlife Refuge Management 
Areas described in Appendix II to this subpart:
    (c) Wildlife Management Areas. (1) Marine portions of the Wildlife 
Management Areas listed in Appendix III to this subpart or portions 
thereof may be designated ``idle speed only/no-wake,'' ``no-motor'' or 
``no-access buffer'' zones or ``closed''. The Director, in cooperation 
with other Federal, State, or local resource management authorities, as 
appropriate, shall post signs conspicuously, using mounting posts, 
buoys, or other means according to location and purpose, at appropriate 
intervals and locations, clearly delineating an area as an ``idle speed 
only/no wake'', a ``no-motor'', or a ``no-access buffer'' zone or as 
``closed'', and allowing instant, long-range recognition by boaters. 
Such signs shall display the official logo of the Sanctuary.
    (2) The following activities are prohibited within the marine 
portions of the Wildlife Management Areas listed in Appendix III to 
this subpart:
    (i) In those marine portions of any Wildlife Management Area 
designated an ``idle speed only/no wake'' zone in Appendix III to this 
subpart, operating a vessel at a speed greater that idle speed only/no 
wake.
    (ii) In those marine portions of any Wildlife Management Area 
designated a ``no-motor'' zone in Appendix III to this subpart, using 
internal combustion motors or engines for any purposes. A vessel with 
an internal combustion motor or engine may access a ``no-motor'' zone 
only through the use of a push pole, paddle, sail, electric motor or 
similar means of propulsion.
    (iii) In those marine portions of any Wildlife Management Area 
designated a ``no-access buffer'' zone in Appendix III of this subpart, 
entering the area by vessel.
    (iv) In those marine portions of any Wildlife Management Area 
designated as closed in Appendix III to this subpart, entering or using 
the area.
    (3) The Director shall coordinate with other Federal, State, or 
local resource management authorities, as appropriate, in the 
establishment and enforcement of access restrictions described in 
paragraph (c)(2) (i)-(iv) of this section in the marine portions of 
Wildlife Management Areas.
    (4) The Director may modify the number and location of access 
restrictions described in paragraph (c)(2) (i)-(iv) of this section 
within the marine portions of a Wildlife Management Area if the 
Director finds that such action is reasonably necessary to minimize 
disturbances to Sanctuary wildlife, or to ensure protection and 
preservation of Sanctuary wildlife consistent with the purposes of the 
Sanctuary designation and other applicable law governing the protection 
and preservation of wildlife resources in the Sanctuary. The Director 
will effect such modification by:
    (i) Publishing in the Federal Register, after notice and an 
opportunity for public comments in accordance, an amendment to the list 
of such areas set forth in Appendix III to this subpart, and a notice 
regarding the time and place where maps depicting the precise locations 
of such restrictions will be made available for public inspection, and
    (ii) Posting official signs delineating such restrictions in 
accordance with paragraph (c)(1) of this section.
    (d) Ecological Reserves and Sanctuary Preservation Areas. (1) The 
following activities are prohibited within the Ecological Reserves 
described in Appendix IV to this subpart, and within the Sanctuary 
Preservation Areas, described in Appendix V to this subpart:

[[Page 4613]]

    (i) Discharging or depositing any material or other matter except 
cooling water or engine exhaust.
    (ii) Possessing, moving, harvesting, removing, taking, damaging, 
disturbing, breaking, cutting, spearing, or otherwise injuring any 
coral, marine invertebrate, fish, bottom formation, algae, seagrass or 
other living or dead organism, including shells, or attempting any of 
these activities. However, fish, invertebrates, and marine plants may 
be possessed aboard a vessel in an Ecological Reserve or Sanctuary 
Preservation Area, provided such resources can be shown not to have 
been harvested within, removed from, or taken within, the Ecological 
Reserve or Sanctuary Preservation Area, as applicable, by being stowed 
in a cabin, locker, or similar storage area prior to entering and 
during transit through such reserves or areas.
    (iii) Except for catch and release fishing by trolling in the Conch 
Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any 
means. However, gear capable of harvesting fish may be aboard a vessel 
in an Ecological Reserve or Sanctuary Preservation Area, provided such 
gear is not available for immediate use when entering and during 
transit through such Ecological Reserve or Sanctuary Preservation Area, 
and no presumption of fishing activity shall be drawn therefrom.
    (iv) Touching living or dead coral, including but not limited to, 
standing on a living or dead coral formation.
    (v) Placing any anchor in a way that allows the anchor or any 
portion of the anchor apparatus (including the anchor, chain or rope) 
to touch living or dead coral, or any attached organism. When anchoring 
dive boats, the first diver down must inspect the anchor to ensure that 
it is not touching living or dead coral, and will not shift in such a 
way as to touch such coral or other attached organisms. No further 
diving shall take place until the anchor is placed in accordance with 
these requirements.
    (vi) Anchoring instead of mooring when a mooring buoy is available 
or anchoring in other than a designated anchoring area when such areas 
have been designated and are available.
    (vii) Except for passage without interruption through the area, for 
law enforcement purposes, or for purposes of monitoring pursuant to 
paragraph (d)(2) of this section, violating a temporary access 
restriction imposed by the Director pursuant to paragraph (d)(2) of 
this section.
    (2) The Director may temporarily restrict access to any portion of 
any Sanctuary Preservation Area or Ecological Reserve if the Director, 
on the basis of the best available data, information and studies, 
determines that a concentration of use appears to be causing or 
contributing to significant degradation of the living resources of the 
area and that such action is reasonably necessary to allow for recovery 
of the living resources of such area. The Director will provide for 
continuous monitoring of the area during the pendency of the 
restriction. The Director will provide public notice of the restriction 
by publishing a notice in the Federal Register, and by such other means 
as the Director may deem appropriate. The Director may only restrict 
access to an area for a period of 60 days, with one additional 60 day 
renewal. The Director may restrict access to an area for a longer 
period pursuant to a notice and opportunity for public comment 
rulemaking under the Administrative Procedure Act. Such restriction 
will be kept to the minimum amount of area necessary to achieve the 
purposes thereof.
    (e) Special-use Areas. (1) The Director may set aside discrete 
areas of the Sanctuary as Special-use Areas, and, by designation 
pursuant to this paragraph, impose the access and use restrictions 
specified in paragraph (e)(3) of this section. Special-use Areas are 
described in Appendix VI to this subpart, in accordance with the 
following designations and corresponding objectives:
    (i) ``Recovery area'' to provide for the recovery of Sanctuary 
resources from degradation or other injury attributable to human uses;
    (ii) ``Restoration area'' to provide for restoration of degraded or 
otherwise injured Sanctuary resources;
    (iii) ``Research-only area'' to provide for scientific research or 
education relating to protection and management, through the issuance 
of a Sanctuary General permit for research pursuant to Sec. 922.166; 
and
    (iv) ``Facilitated-use area'' to provide for the prevention of use 
or user conflicts or the facilitation of access and use, or to promote 
public use and understanding, of Sanctuary resources through the 
issuance of special-use permits.
    (2) A Special-use Area shall be no larger than the size the 
Director deems reasonably necessary to accomplish the applicable 
objective.
    (3) Persons conducting activities within any Special-use Area shall 
comply with the access and use restrictions specified in this paragraph 
and made applicable to such area by means of its designation as a 
``recovery area,'' ``restoration area,'' ``research-only area,'' or 
``facilitated-use area.'' Except for passage without interruption 
through the area or for law enforcement purposes, no person may enter a 
Special-use Area except to conduct or cause to be conducted the 
following activities:
    (i) in such area designated as a ``recovery area'' or a 
``restoration area'', habitat manipulation related to restoration of 
degraded or otherwise injured Sanctuary resources, or activities 
reasonably necessary to monitor recovery of degraded or otherwise 
injured Sanctuary resources;
    (ii) in such area designated as a ``research only area'', 
scientific research or educational use specifically authorized by and 
conducted in accordance with the scope, purpose, terms and conditions 
of a valid National Marine Sanctuary General or Historical Resources 
permit, or
    (iii) in such area designated as a ``facilitated-use area'', 
activities specified by the Director or specifically authorized by and 
conducted in accordance with the scope, purpose, terms, and conditions 
of a valid Special-use permit.
    (4)(i) The Director may modify the number of, location of, or 
designations applicable to, Special-use Areas by publishing in the 
Federal Register, after notice and an opportunity for public comment in 
accordance with the Administrative Procedure Act, an amendment to 
Appendix VI to this subpart, except that, with respect to such areas 
designated as a ``recovery area,'' ``restoration area,'' or ``research 
only area,'' the Director may modify the number of, location of, or 
designation applicable to, such areas by publishing a notice of such 
action in the Federal Register if the Director determines that 
immediate action is reasonably necessary to:
    (A) Prevent significant injury to Sanctuary resources where 
circumstances create an imminent risk to such resources;
    (B) Initiate restoration activity where a delay in time would 
significantly impair the ability of such restoration activity to 
succeed;
    (C) Initiate research activity where an unforeseen natural event 
produces an opportunity for scientific research that may be lost if 
research is not initiated immediately.
    (ii) If the Director determines that a notice of modification must 
be promulgated immediately in accordance with paragraph (e)(4)(i) of 
this section, the Director will, as part of the same notice, invite 
public comment and specify that comments will be received for 15 days 
after the effective date of the notice. As soon as practicable after 
the

[[Page 4614]]

end of the comment period, the Director will either rescind, modify or 
allow the modification to remain unchanged through notice in the 
Federal Register.


Sec. 922.165  Emergency regulations.

    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all activities are 
subject to immediate temporary regulation, including prohibition. Any 
such temporary regulation may be in effect for up to 60 days, with one 
60-day extension. Additional or extended action will require notice and 
comment rulemaking under the Administrative Procedure Act, notice in 
local newspapers, notice to Mariners, and press releases.


Sec. 922.166  Permits--application procedures and issuance criteria.

    (a) National Marine Sanctuary General Permit.
    (1) A person may conduct an activity prohibited by Secs. 922.163 or 
922.164, other than an activity involving the survey/inventory, 
research/recovery, or deaccession/transfer of Sanctuary historical 
resources, if such activity is specifically authorized by, and provided 
such activity is conducted in accordance with the scope, purpose, terms 
and conditions of, a National Marine Sanctuary General permit issued 
under this paragraph (a).
    (2) The Director, at his or her discretion, may issue a General 
permit under this paragraph (a), subject to such terms and conditions 
as he or she deems appropriate, if the Director finds that the activity 
will:
    (i) Further research or monitoring related to Sanctuary resources 
and qualities;
    (ii) Further the educational value of the Sanctuary;
    (iii) Further the natural or historical resource value of the 
Sanctuary;
    (iv) Further salvage or recovery operations in or near the 
Sanctuary in connection with a recent air or marine casualty;
    (v) Assist in managing the Sanctuary; or
    (vi) Otherwise further Sanctuary purposes, including facilitating 
multiple use of the Sanctuary, to the extent compatible with the 
primary objective of resource protection.
    (3) The Director shall not issue a General permit under this 
paragraph (a), unless the Director also finds that:
    (i) The applicant is professionally qualified to conduct and 
complete the proposed activity;
    (ii) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (iii) The duration of the proposed activity is no longer than 
necessary to achieve its stated purpose;
    (iv) The methods and procedures proposed by the applicant are 
appropriate to achieve the proposed activity's goals in relation to the 
activity's impacts on Sanctuary resources and qualities;
    (v) The proposed activity will be conducted in a manner compatible 
with the primary objective of protection of Sanctuary resources and 
qualities, considering the extent to which the conduct of the activity 
may diminish or enhance Sanctuary resources and qualities, any 
indirect, secondary or cumulative effects of the activity, and the 
duration of such effects;
    (vi) It is necessary to conduct the proposed activity within the 
Sanctuary to achieve its purposes; and
    (vii) The reasonably expected end value of the activity to the 
furtherance of Sanctuary goals and purposes outweighs any potential 
adverse impacts on Sanctuary resources and qualities from the conduct 
of the activity.
    (4) For activities proposed to be conducted within any of the areas 
described in Sec. 922.164 (b)-(e), the Director shall not issue a 
permit unless he or she further finds that such activities will further 
and are consistent with the purposes for which such area was 
established, as described in Secs. 922.162 and 922.164 and in the 
management plan for the Sanctuary.
    (b) National Marine Sanctuary Survey/Inventory of Historical 
Resources Permit.
    (1) A person may conduct an activity prohibited by Secs. 922.163 or 
922.164 involving the survey/inventory of Sanctuary historical 
resources if such activity is specifically authorized by, and is 
conducted in accordance with the scope, purpose, terms and conditions 
of, a Survey/Inventory of Historical Resources permit issued under this 
paragraph (b). Such permit is not required if such survey/inventory 
activity does not involve any activity prohibited by Secs. 922.163 or 
922.164. Thus, survey/inventory activities that are non-intrusive, do 
not include any excavation, removal, or recovery of historical 
resources, and do not result in destruction of, loss of, or injury to 
Sanctuary resources or qualities do not require a permit. However, if a 
survey/inventory activity will involve test excavations or removal of 
artifacts or materials for evaluative purposes, a Survey/Inventory of 
Historical Resources permit is required. Regardless of whether a 
Survey/Inventory permit is required, a person may request such permit. 
Persons who have demonstrated their professional abilities under a 
Survey/Inventory permit will be given preference over other persons in 
consideration of the issuance of a Research/Recovery permit. While a 
Survey/Inventory permit does not grant any rights with regards to areas 
subject to pre-existing rights of access which are still valid, once a 
permit is issued for an area, other survey/inventory permits will not 
be issued for the same area during the period for which the permit is 
valid.
    (2) The Director, at his or her discretion, may issue a Survey/
Inventory permit under this paragraph (b), subject to such terms and 
conditions as he or she deems appropriate, if the Director finds that 
such activity:
    (i) Satisfies the requirements for a permit issued under paragraph 
(a)(3) of this section;
    (ii) Either will be non-intrusive, not include any excavation, 
removal, or recovery of historical resources, and not result in 
destruction of, loss of, or injury to Sanctuary resources or qualities, 
or if intrusive, will involve no more than the minimum manual 
alteration of the seabed and/or the removal of artifacts or other 
material necessary for evaluative purposes and will cause no 
significant adverse impacts on Sanctuary resources or qualities; and
    (iii) That such activity will be conducted in accordance with all 
requirements of the Programmatic Agreement for the Management of 
Submerged Cultural Resources in the Florida Keys National Marine 
Sanctuary among NOAA, the Advisory Council on Historic Preservation, 
and the State of Florida (hereinafter SCR Agreement), and that such 
permit issuance is in accordance with such SCR Agreement.
    The SCR Agreement is reproduced in the ``Submerged Cultural 
Resources Action Plan'' set forth in Volume 1 of the Florida Keys 
National Marine Sanctuary Management Plan, dated 1996. Copies of the 
SCR Agreement may also be examined at, and obtained from, the 
Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource 
Management, National Ocean Service, National Oceanic and Atmospheric 
Administration, 1305 East-West Highway, 12th floor, Silver Spring, MD 
20910; or from the Florida Keys National Marine Sanctuary Office, P.O. 
Box 500368, Marathon, FL 33050.
    (c) National Marine Sanctuary Research/Recovery of Sanctuary 
Historical Resources Permit.

[[Page 4615]]

    (1) A person may conduct any activity prohibited by Secs. 922.163 
or 922.164 involving the research/recovery of Sanctuary historical 
resources if such activity is specifically authorized by, and is 
conducted in accordance with the scope, purpose, terms and conditions 
of, a Research/Recovery of Historical Resources permit issued under 
this paragraph (c).
    (2) The Director, at his or her discretion, may issue a Research/
Recovery of Historical Resources permit, under this paragraph (c), and 
subject to such terms and conditions as he or she deems appropriate, if 
the Director finds that:
    (i) Such activity satisfies the requirements for a permit issued 
under paragraph (a)(3) of this section;
    (ii) The recovery of the resource is in the public interest as 
described in the SCR Agreement;
    (iii) Recovery of the resource is part of research to preserve 
historic information for public use; and
    (iv) Recovery of the resource is necessary or appropriate to 
protect the resource, preserve historical information, and/or further 
the policies and purposes of the NMSA and the FKNMSPA, and that such 
permit issuance is in accordance with, and that the activity will be 
conducted in accordance with, all requirements of the SCR Agreement.
    (d) National Marine Sanctuary Special-use Permit.
    (1) A person may conduct any commercial or concession-type activity 
prohibited by Secs. 922.163 or 922.164, if such activity is 
specifically authorized by, and is conducted in accordance with the 
scope, purpose, terms and conditions of, a Special-use permit issued 
under this paragraph (d). A Special-use permit is required for the 
deaccession/transfer of Sanctuary historical resources.
    (2) The Director, at his or her discretion, may issue a Special-use 
permit in accordance with this paragraph (d), and subject to such terms 
and conditions as he or she deems appropriate and the mandatory terms 
and conditions of section 310 of the NMSA, if the Director finds that 
issuance of such permit is reasonably necessary to: establish 
conditions of access to and use of any Sanctuary resource; or promote 
public use and understanding of any Sanctuary resources. No permit may 
be issued unless the activity is compatible with the purposes for which 
the Sanctuary was designated and can be conducted in a manner that does 
not destroy, cause the loss of, or injure any Sanctuary resource, and 
if for the deaccession/transfer of Sanctuary Historical Resources, 
unless such permit issuance is in accordance with, and that the 
activity will be conducted in accordance with, all requirements of the 
SCR Agreement.
    (3) The Director may assess and collect fees for the conduct of any 
activity authorized by a Special-use permit issued pursuant to this 
paragraph (d). No Special-use permit shall be effective until all 
assessed fees are paid, unless otherwise provided by the Director by a 
fee schedule set forth as a permit condition. In assessing a fee, the 
Director shall include:
    (i) all costs incurred, or expected to be incurred, in reviewing 
and processing the permit application, including, but not limited to, 
costs for:
    (A) Number of personnel;
    (B) Personnel hours;
    (C) Equipment;
    (D) Biological assessments;
    (E) Copying; and
    (F) Overhead directly related to reviewing and processing the 
permit application;
    (ii) all costs incurred, or expected to be incurred, as a direct 
result of the conduct of the activity for which the Special-use permit 
is being issued, including, but not limited to:
    (A) The cost of monitoring the conduct both during the activity and 
after the activity is completed in order to assess the impacts to 
Sanctuary resources and qualities;
    (B) The use of an official NOAA observer, including travel and 
expenses and personnel hours; and
    (C) Overhead costs directly related to the permitted activity; and
    (iii) an amount which represents the fair market value of the use 
of the Sanctuary resource and a reasonable return to the United States 
Government.
    (4) Nothing in this paragraph (d) shall be considered to require a 
person to obtain a permit under this paragraph for the conduct of any 
fishing activities within the Sanctuary.
    (e) Applications. (1) Applications for permits should be addressed 
to the Director, Office of Ocean and Coastal Resource Management; ATTN: 
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, PO 
Box 500368, Marathon, FL 33050. All applications must include:
    (i) A detailed description of the proposed activity including a 
timetable for completion of the activity and the equipment, personnel 
and methodology to be employed;
    (ii) The qualifications and experience of all personnel;
    (iii) The financial resources available to the applicant to conduct 
and complete the proposed activity;
    (iv) A statement as to why it is necessary to conduct the activity 
within the Sanctuary;
    (v) The potential impacts of the activity, if any, on Sanctuary 
resources and qualities;
    (vi) The benefit to be derived from the activity; and
    (vii) Such other information as the Director may request depending 
on the type of activity.
    Copies of all other required licenses, permits, approvals, or other 
authorizations must be attached to the application.
    (3) Upon receipt of an application, the Director may request such 
additional information from the applicant as he or she deems reasonably 
necessary to act on the application and may seek the views of any 
persons. The Director may require a site visit as part of the permit 
evaluation. Unless otherwise specified, the information requested must 
be received by the Director within 30 days of the postmark date of the 
request. Failure to provide such additional information on a timely 
basis may be deemed by the Director to constitute abandonment or 
withdrawal of the permit application.
    (f) A permit may be issued for a period not exceeding five years. 
All permits will be reviewed annually to determine the permittee's 
compliance with permit scope, purpose, terms and conditions and 
progress toward reaching the stated goals and appropriate action taken 
under paragraph (g) of this section if warranted. A permittee may 
request permit renewal pursuant to the same procedures for applying for 
a new permit. Upon the permittee's request for renewal, the Director 
shall review all reports submitted by the permittee as required by the 
permit conditions. In order to renew the permit, the Director must find 
that the:
    (1) Activity will continue to further the purposes for which the 
Sanctuary was designated in accordance with the criteria applicable to 
the initial issuance of the permit;
    (2) permittee has at no time violated the permit, or these 
regulations; and
    (3) the activity has not resulted in any unforeseen adverse impacts 
to Sanctuary resources or qualities.
    (g) The Director may amend, suspend, or revoke a permit for good 
cause. The Director may deny a permit application, in whole or in part, 
if it is determined that the permittee or applicant has acted in 
violation of a previous permit, of these regulations, of the NMSA or 
FKNMSPA, or for other good cause. Any such action shall be communicated 
in writing to the permittee or applicant by

[[Page 4616]]

certified mail and shall set forth the reason(s) for the action taken. 
Procedures governing permit sanctions and denials for enforcement 
reasons are set forth in subpart D of 15 CFR part 904.
    (h) The applicant for or holder of a National Marine Sanctuary 
permit may appeal the denial, conditioning, amendment, suspension or 
revocation of the permit in accordance with the procedures set forth in 
Sec. 922.50.
    (i) A permit issued pursuant to this section other than a Special-
use permit is nontransferable. Special-use permits may be transferred, 
sold, or assigned with the written approval of the Director. The 
permittee shall provide the Director with written notice of any 
proposed transfer, sale, or assignment no less than 30 days prior to 
its proposed consummation. Transfers, sales, or assignments consummated 
in violation of this requirement shall be considered a material breach 
of the Special-use permit, and the permit shall be considered void as 
of the consummation of any such transfer, sale, or assignment.
    (j) The permit or a copy thereof shall be maintained in legible 
condition on board all vessels or aircraft used in the conduct of the 
permitted activity and be displayed for inspection upon the request of 
any authorized officer.
    (k) Any permit issued pursuant to this section shall be subject to 
the following terms and conditions:
    (1) All permitted activities shall be conducted in a manner that 
does not destroy, cause the loss of, or injure Sanctuary resources or 
qualities, except to the extent that such may be specifically 
authorized.
    (2) The permittee agrees to hold the United States harmless against 
any claims arising out of the conduct of the permitted activities.
    (3) All necessary Federal, State, and local permits from all 
agencies with jurisdiction over the proposed activities shall be 
secured before commencing field operations.
    (l) In addition to the terms and conditions listed in paragraph (k) 
of this section, any permit authorizing the research/recovery of 
historical resources shall be subject to the following terms and 
conditions:
    (1) a professional archaeologist shall be in charge of planning, 
field recovery operations, and research analysis.
    (2) an agreement with a conservation laboratory shall be in place 
before field recovery operations are begun, and an approved nautical 
conservator shall be in charge of planning, conducting, and supervising 
the conservation of any artifacts and other materials recovered.
    (3) a curation agreement with a museum or facility for curation, 
public access and periodic public display, and maintenance of the 
recovered historical resources shall be in place before commencing 
field operations (such agreement for the curation and display of 
recovered historical resources may provide for the release of public 
artifacts for deaccession/transfer if such deaccession/transfer is 
consistent with preservation, research, education, or other purposes of 
the designation and management of the Sanctuary. Deaccession/transfer 
of historical resources requires a Special-use permit issued pursuant 
to paragraph (d) of this section and such deaccession/transfer shall be 
executed in accordance with the requirements of the SCR Agreement).
    (4) The site's archaeological information is fully documented, 
including measured drawings, site maps drawn to professional standards, 
and photographic records.
    (m) In addition to the terms and conditions listed in paragraph (k) 
and (l) of this section, any permit issued pursuant to this section is 
subject to such other terms and conditions, including conditions 
governing access to, or use of, Sanctuary resources, as the Director 
deems reasonably necessary or appropriate and in furtherance of the 
purposes for which the Sanctuary is designated. Such terms and 
conditions may include, but are not limited to:
    (1) Any data or information obtained under the permit shall be made 
available to the public.
    (2) A NOAA official shall be allowed to observe any activity 
conducted under the permit.
    (3) The permittee shall submit one or more reports on the status, 
progress, or results of any activity authorized by the permit.
    (4) The permittee shall submit an annual report to the Director not 
later than December 31 of each year on activities conducted pursuant to 
the permit. The report shall describe all activities conducted under 
the permit and all revenues derived from such activities during the 
year and/or term of the permit.
    (5) The permittee shall purchase and maintain general liability 
insurance or other acceptable security against potential claims for 
destruction, loss of, or injury to Sanctuary resources arising out of 
the permitted activities. The amount of insurance or security should be 
commensurate with an estimated value of the Sanctuary resources in the 
permitted area. A copy of the insurance policy or security instrument 
shall be submitted to the Director.


Sec. 922.167  Certification of preexisting leases, licenses, permits, 
approvals, other authorizations, or rights to conduct a prohibited 
activity.

    (a) A person may conduct an activity prohibited by Secs. 922.163 or 
922.164 if such activity is specifically authorized by a valid Federal, 
State, or local lease, permit, license, approval, or other 
authorization in existence on (insert the effective date of these 
regulations), or by any valid right of subsistence use or access in 
existence on (insert the effective date of these regulations), provided 
that:
    (1) The holder of such authorization or right notifies the 
Director, in writing, within 90 days of (insert the effective date of 
these regulations), of the existence of such authorization or right and 
requests certification of such authorization or right;
    (2) The holder complies with the other provisions of this 
Sec. 922.167; and
    (3) The holder complies with any terms and conditions on the 
exercise of such authorization or right imposed as a condition of 
certification, by the Director, to achieve the purposes for which the 
Sanctuary was designated.
    (b) The holder of an authorization or right described in paragraph 
(a) of this section authorizing an activity prohibited by Sec. 922.163 
or Sec. 922.164 may conduct the activity without being in violation of 
applicable provisions of Sec. 922.163 or Sec. 922.164, pending final 
agency action on his or her certification request, provided the holder 
is in compliance with this Sec. 922.167.
    (c) Any holder of an authorization or right described in paragraph 
(a) above may request the Director to issue a finding as to whether the 
activity for which the authorization has been issued, or the right 
given, is prohibited by Sec. 922.163 or Sec. 922.164, thus requiring 
certification under this section.
    (d) Requests for findings or certifications should be addressed to 
the Director, Office of Ocean and Coastal Resource Management; ATTN: 
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O. 
Box 500368, Marathon, FL 33050. A copy of the lease, permit, license, 
approval, or other authorization must accompany the request.
    (e) The Director may request additional information from the 
certification requester as he or she deems reasonably necessary to 
condition appropriately the exercise of the certified authorization or 
right to achieve the purposes for which the Sanctuary was designated. 
The information requested must be received by the Director within 45 
days of the postmark date of the request. The

[[Page 4617]]

Director may seek the views of any persons on the certification 
request.
    (f) The Director may amend any certification made under this 
Sec. 922.167 whenever additional information becomes available 
justifying such an amendment.
    (g) Upon completion of review of the authorization or right and 
information received with respect thereto, the Director shall 
communicate, in writing, any decision on a certification request or any 
action taken with respect to any certification made under this 
Sec. 922.167, in writing, to both the holder of the certified lease, 
permit, license, approval, other authorization, or right, and the 
issuing agency, and shall set forth the reason(s) for the decision or 
action taken.
    (h) Any time limit prescribed in or established under this 
Sec. 922.167 may be extended by the Director for good cause.
    (i) The holder may appeal any action conditioning, amending, 
suspending, or revoking any certification in accordance with the 
procedures set forth in Sec. 922.50.
    (j) Any amendment, renewal, or extension made after (insert the 
effective date of these regulations), to a lease, permit, license, 
approval, other authorization or right is subject to the provisions of 
Sec. 922.49.

Appendix I to Subpart P of Part 922--Florida Keys National Marine 
Sanctuary boundary coordinates

(Appendix based on North American Datum of 1983)

    The boundary of the Florida Keys National Marine Sanctuary--
    (a) begins at the northeasternmost point of Biscayne National 
Park located at approximately 25 degrees 39 minutes north latitude, 
80 degrees 5 minutes west longitude, then runs eastward to the 300-
foot isobath located at approximately 25 degrees 39 minutes north 
latitude, 80 degrees 4 minutes west longitude;
    (b) then runs southward and connects in succession the points at 
the following coordinates:
    (i) 25 degrees 34 minutes north latitude, 80 degrees 4 minutes 
west longitude,
    (ii) 25 degrees 28 minutes north latitude, 80 degrees 5 minutes 
west longitude, and
    (iii) 25 degrees 21 minutes north latitude, 80 degrees 7 minutes 
west longitude;
    (iv) 25 degrees 16 minutes north latitude, 80 degrees 8 minutes 
west longitude;
    (c) then runs southwesterly approximating the 300-foot isobath 
and connects in succession the points at the following coordinates:
    (i) 25 degrees 7 minutes north latitude, 80 degrees 13 minutes 
west longitude,
    (ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes 
west longitude,
    (iii) 24 degrees 39 minutes north latitude, 80 degrees 52 
minutes west longitude,
    (iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes 
west longitude,
    (v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes 
west longitude,
    (vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes 
west longitude,
    (vii) 24 degrees 37 minutes north latitude, 83 degrees 6 minutes 
west longitude,
    (viii) 24 degrees 40 minutes north latitude, 83 degrees 6 
minutes west longitude,
    (ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes 
west longitude,
    (x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes 
west longitude,
    (xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes 
west longitude, and
    (xii) 24 degrees 55 minutes north latitude, 80 degrees 56 
minutes west longitude;
    (d) then follows the boundary of Everglades National Park in a 
southerly then northeasterly direction through Florida Bay, 
Buttonwood Sound, Tarpon Basin, and Blackwater Sound;
    (e) after Division Point, then departs from the boundary of 
Everglades National Park and follows the western shoreline of 
Manatee Bay, Barnes Sound, and Card Sound;
    (f) then follows the southern boundary of Biscayne National Park 
to the southeastern most point of Biscayne National Park; and
    (g) then follows the eastern boundary of Biscayne National Park 
to the beginning point specified in paragraph (a).

Appendix II to Subpart P of Part 922--Existing Management Areas 
boundary coordinates

    The Existing Management Areas are located within the following 
geographic boundary coordinates:
    National Oceanic and Atmospheric Administration, Preexisting 
National Marine Sanctuaries:
    Key Largo Management Area (Key Largo National Marine Sanctuary):

------------------------------------------------------------------------
                  Point                      Latitude        Longitude  
------------------------------------------------------------------------
1.......................................  25 deg.19.45'N  80 deg.12.00'W
2.......................................  25 deg.16.02'N  80 deg.08.07'W
3.......................................  25 deg.07.05'N  80 deg.12.05'W
4.......................................  24 deg.58.03'N  80 deg.19.08'W
5.......................................  25 deg.02.02'N  80 deg.25.25'W
------------------------------------------------------------------------

    Looe Key Management Area (Looe Key National Marine Sanctuary):

------------------------------------------------------------------------
                  Point                      Latitude        Longitude  
------------------------------------------------------------------------
1.......................................  24 deg.31.62'N  81 deg.26.00'W
2.......................................  24 deg.33.57'N  81 deg.26.00'W
3.......................................  24 deg.34.15'N  81 deg.23.00'W
4.......................................  24 deg.32.20'N  81 deg.23.00'W
------------------------------------------------------------------------

    United States Fish and Wildlife Service: Great White Heron 
National Wildlife Refuge (based on the North American Datum of 
1983):

------------------------------------------------------------------------
                  Point                      Latitude        Longitude  
------------------------------------------------------------------------
1.......................................   24 deg.43.8'N   81 deg.48.6'W
2.......................................   24 deg.43.8'N   81 deg.37.2'W
3.......................................   24 deg.49.2'N   81 deg.37.2'W
4.......................................   24 deg.49.2'N   81 deg.19.8'W
5.......................................   24 deg.48.0'N   81 deg.19.8'W
6.......................................   24 deg.48.0'N   81 deg.14.4'W
7.......................................   24 deg.49.2'N   81 deg.14.4'W
8.......................................   24 deg.49.2'N   81 deg.08.4'W
9.......................................   24 deg.43.8'N       81'08.4'W
10......................................   24 deg.43.8'N   81 deg.14.4'W
11......................................   24 deg.43.2'N   81 deg.14.4'W
12......................................   24 deg.43.2'N   81 deg.16.2'W
13......................................   24 deg.42.6'N   81 deg.16.2'W
14......................................   24 deg.42.6'N   81 deg.21.0'W
15......................................   24 deg.41.4'N   81 deg.21.0'W
16......................................   24 deg.41.4'N   81 deg.22.2'W
17......................................   24 deg.43.2'N   81 deg.22.2'W
18......................................   24 deg.43.2'N   81 deg.22.8'W
19......................................   24 deg.43.8'N   81 deg.22.8'W
20......................................   24 deg.43.8'N   81 deg.24.0'W
21......................................   24 deg.43.2'N   81 deg.24.0'W
22......................................   24 deg.43.2'N   81 deg.26.4'W
23......................................   24 deg.43.8'N   81 deg.26.4'W
24......................................   24 deg.43.8'N   81 deg.27.0'W
25......................................   24 deg.43.2'N   81 deg.27.0'W
26......................................   24 deg.43.2'N   81 deg.29.4'W
27......................................   24 deg.42.6'N   81 deg.29.4'W
28......................................   24 deg.42.6'N   81 deg.30.6'W
29......................................   24 deg.41.4'N   81 deg.30.6'W
30......................................   24 deg.41.4'N   81 deg.31.2'W
31......................................   24 deg.40.8'N   81 deg.31.2'W
32......................................   24 deg.40.8'N   81 deg.32.4'W
33......................................   24 deg.41.4'N   81 deg.32.4'W
34......................................   24 deg.41.4'N   81 deg.34.2'W
35......................................   24 deg.40.8'N   81 deg.34.2'W
36......................................   24 deg.48.0'N   81 deg.35.4'W
37......................................   24 deg.39.6'N   81 deg.35.4'W
38......................................   24 deg.39.6'N   81 deg.36.0'W
39......................................   24 deg.39.0'N   81 deg.36.0'W
40......................................   24 deg.39.0'N   81 deg.37.2'W
41......................................   24 deg.37.8'N   81 deg.37.2'W
42......................................   24 deg.37.8'N   81 deg.37.8'W
43......................................   24 deg.37.2'N   81 deg.37.8'W
44......................................   24 deg.37.2'N   81 deg.40.2'W
45......................................   24 deg.36.0'N   81 deg.40.2'W
46......................................   24 deg.36.0'N   81 deg.40.8'W
47......................................   24 deg.35.4'N   81 deg.40.8'W
48......................................   24 deg.35.4'N   81 deg.42.0'W
49......................................   24 deg.36.0'N   81 deg.42.0'W
50......................................   24 deg.36.0'N   81 deg.48.6'W
------------------------------------------------------------------------

    Key West National Wildlife Refuge:

------------------------------------------------------------------------
                  Point                      Latitude        Longitude  
------------------------------------------------------------------------
1.......................................     24 deg.40'N     81 deg.49'W
2.......................................     24 deg.40'N     82 deg.10'W
3.......................................     24 deg.27'N     82 deg.10'W
4.......................................     24 deg.27'N     81 deg.49'W
------------------------------------------------------------------------

    When differential Global Positioning Systems data becomes 
available, these coordinates may be revised by Federal Register 
notice to reflect the increased accuracy of such data.

Appendix III to Subpart P of Part 922--Wildlife Management Areas access 
restrictions

Area and Access Restrictions

Bay Keys: No-motor zone (300 feet) around one key; idle speed only/
no-wake zones in tidal creeks
Boca Grande Key: South one-half of beach closed (beach above mean 
high water closed by Department of Interior)
Woman Key: One-half of beach and sand spit on southeast side closed 
(beach and sand spit above mean high water closed by Department of 
Interior)

[[Page 4618]]

Cayo Agua Keys: Idle speed only/no-wake zones in all navigable tidal 
creeks
Cotton Key: No-motor zone on tidal flat
Snake Creek: No-motor zone on tidal flat
Cottrell Key: No-motor zone (300 feet) around entire key
Little Mullet Key: No-access buffer zone (300 feet) around entire 
key
Big Mullet Key: No-motor zone (300 feet) around entire key
Crocodile Lake: No-access buffer zone (100 feet) along shoreline 
between March 1 and October 1
East Harbor Key: No-access buffer zone (300 feet) around 
northernmost island
Lower Harbor Keys: Idle speed only/no-wake zones in selected tidal 
creeks
Eastern Lake Surprise: Idle speed only/no-wake zone east of highway 
U.S. 1
Horseshoe Key: No-access buffer zone (300 feet) around main island 
(main island closed by Department of Interior)
Marquesas Keys: (i) No-motor zones (300 feet) around three smallest 
keys on western side of chain; (ii) no-access buffer zone (300 feet) 
around one island at western side of chain; (iii) idle speed only/
no-wake zone in southwest tidal creek
Tidal flat south of Marvin Key: No-access buffer zone on tidal flat
Mud Keys: (i) Idle speed only/no-wake zones in the two main tidal 
creeks; (ii) two smaller creeks on west side closed
Pelican Shoal: No-access buffer zone out to 50 meters from shore 
between April 1 and August 31 (shoal closed by the Florida Game and 
Freshwater Fish Commission)
Rodriguez Key: No-motor zone on tidal flats
Dove Key: No-motor zone on tidal flats; area around the two small 
islands closed
Tavernier Key: No-motor zone on tidal flats
Sawyer Keys: Tidal creeks on south side closed
Snipe Keys: (i) Idle speed only/no-wake zone in main tidal creek; 
(ii) no-motor zone in all other tidal creeks
Upper Harbor Key: No-access buffer zone (300 feet) around entire key
East Content Keys: Idle speed only/no-wake zones in tidal creeks 
between southwesternmost keys
West Content Keys: Idle speed only/no-wake zones in selected tidal 
creeks; no-access buffer zone in one cove
Little Crane Key: No-access buffer zone (300 feet) around entire key

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

    One Ecological Reserve--the Western Sambos Ecological Reserve--
is designated in the area of Western Sambos reef. NOAA has committed 
to designating a second Ecological Reserve within two years from 
issuance of this plan in the area of the Dry Tortugas. The 
establishment of a Dry Tortugas Ecological Reserve will be proposed 
by a notice of proposed rulemaking with a proposed boundary 
determined through a joint effort among the Sanctuary, and the 
National Park Service, pursuant to a public process involving a team 
consisting of managers, scientists, conservationists, and affected 
user groups.
    The Western Sambos Ecological Reserve (based on North American 
Datum of 1983, aerial photos, charts, and Geographic Information 
Systems data) is located within the following geographic boundary 
coordinates:

                             Western Sambos                             
------------------------------------------------------------------------
                  Point                      Latitude        Longitude  
------------------------------------------------------------------------
1.......................................   24 deg.33.70'                
                                                       N   81 deg.40.80'
                                                                       W
2.......................................   24 deg.28.70'                
                                                       N   81 deg.41.90'
                                                                       W
3.......................................   24 deg.28.50'                
                                                       N   81 deg.43.70'
                                                                       W
4.......................................   24 deg.33.50'                
                                                       N   81 deg.43.10'
                                                                       W
------------------------------------------------------------------------

    When differential Global Positioning Systems data becomes 
available, these coordinates may be revised by Federal Register 
notice to reflect the increased accuracy of such data.

Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas 
Boundary Coordinates

    The Sanctuary Preservation Areas (SPAs) (based on North American 
Datum of 1983, aerial photos, charts, and Geographic Information 
Systems data) are located within the following geographic boundary 
coordinates:

                             Alligator Reef                             
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.50.8' N      80 deg.36.8' W    
2...............................  24 deg.50.4' N      80 deg.37.3' W    
3...............................  24 deg.50.7' N      80 deg.37.6' W    
4...............................  24 deg.51.1' N      80 deg.37.5' W    
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this 
SPA.

                     Carysfort/South Carysfort Reef                     
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  25 deg.13.6' N      80 deg.12.2' W    
2...............................  25 deg.11.9' N      80 deg.12.8' W    
3...............................  25 deg.12.2' N      80 deg.13.8' W    
4...............................  25 deg.14.0' N      80 deg.12.7' W    
------------------------------------------------------------------------


                              Cheeca Rocks                              
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.54.6' N      80 deg.37.6' W    
2...............................  24 deg.54.3' N      80 deg.37.5' W    
3...............................  24 deg.54.2' N      80 deg.37.7' W    
4...............................  24 deg.54.5' N      80 deg.37.8' W    
------------------------------------------------------------------------


                              Coffins Patch                             
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.41.5' N      80 deg.57.7' W    
2...............................  24 deg.41.1' N      80 deg.57.5' W    
3...............................  24 deg.40.6' N      80 deg.58.4' W    
4...............................  24 deg.41.1' N      80 deg.58.6' W    
------------------------------------------------------------------------


                               Conch Reef                               
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.57.5' N      80 deg.27.4' W    
2...............................  24 deg.57.4' N      80 deg.27.3' W    
3...............................  24 deg.57.0' N      80 deg.27.7' W    
4...............................  24 deg.56.9' N      80 deg.27.6' W    
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this 
SPA.

                               Davis Reef                               
------------------------------------------------------------------------
                  Point                      Latitude        Longitude  
------------------------------------------------------------------------
1.......................................  24 deg.55.6' N  80 deg.30.3' W
2.......................................  24 deg.55.3' N  80 deg.30.0' W
3.......................................  24 deg.55.1' N  80 deg.30.4' W
4.......................................  24 deg.55.4' N  80 deg.30.7' W
------------------------------------------------------------------------


                                Dry Rocks                               
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  25 deg.7.6' N       80 deg.17.9' W    
2...............................  25 deg.7.4' N       80 deg.17.7' W    
3...............................  25 deg.7.3' N       80 deg.17.8' W    
4...............................  25 deg.7.4' N       80 deg.18.1' W    
------------------------------------------------------------------------


                              Grecian Rocks                             
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  25 deg.6.9' N       80 deg.18.2' W    
2...............................  25 deg.6.6' N       80 deg.17.9' W    
3...............................  25 deg.6.1' N       80 deg.18.5' W    
4...............................  25 deg.6.2' N       80 deg.18.6' W    
5...............................  25 deg.6.8' N       80 deg.18.6' W    
------------------------------------------------------------------------


                            Eastern Dry Rocks                           
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.27.9' N      81 deg.50.5' W    
2...............................  24 deg.27.7' N      81 deg.50.4' W    
3...............................  24 deg.27.5' N      81 deg.50.6' W    
4...............................  24 deg.27.7' N      81 deg.50.8' W    
------------------------------------------------------------------------


                                The Elbow                               
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  25 deg.9.1' N       80 deg.15.4' W    
2...............................  25 deg.8.9' N       80 deg.15.1' W    
3...............................  25 deg.8.1' N       80 deg.15.7' W    
4...............................  25 deg.8.8' N       80 deg.15.7' W    
------------------------------------------------------------------------


                               French Reef                              
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  25 deg.2.2' N       80 deg.20.6' W    
2...............................  25 deg.1.8' N       80 deg.21.0' W    
3...............................  25 deg.2.3' N       80 deg.21.2' W    
------------------------------------------------------------------------


[[Page 4619]]


                            Hen and Chickens                            
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.56.4' N      80 deg.32.9' W    
2...............................  24 deg.56.2' N      80 deg.32.7' W    
3...............................  24 deg.55.7' N      80 deg.33.1' W    
4...............................  24 deg.55.9' N      80 deg.33.3' W    
------------------------------------------------------------------------


                                Looe Key                                
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.33.2' N      81 deg.24.2' W    
2...............................  24 deg.32.6' N      81 deg.24.8' W    
3...............................  24 deg.32.5' N      81 deg.24.7' W    
4...............................  24 deg.33.1' N      81 deg.24.8' W    
------------------------------------------------------------------------


                              Molasses Reef                             
------------------------------------------------------------------------
             1Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  25 deg.0.9' N       80 deg.22.4' W    
2...............................  25 deg.0.7' N       80 deg.22.0' W    
3...............................  25 deg.0.2' N       80 deg.22.8' W    
4...............................  25 deg.0.7' N       80 deg.22.8' W    
------------------------------------------------------------------------


                           Newfound Harbor Key                          
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.37.1' N      81 deg.23.3' W    
2...............................  24 deg.36.7' N      81 deg.23.8' W    
3...............................  24 deg.36.8' N      81 deg.23.3' W    
4...............................  24 deg.36.9' N      81 deg.23.9' W    
------------------------------------------------------------------------


                                Rock Key                                
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.27.5' N      81 deg.51.3' W    
2...............................  24 deg.27.3' N      81 deg.51.2' W    
3...............................  24 deg.27.2' N      81 deg.51.5' W    
4...............................  24 deg.27.5' N      81 deg.51.6' W    
------------------------------------------------------------------------


                                Sand Key                                
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.27.6' N      81 deg.53.1' W    
2...............................  24 deg.27.0' N      81 deg.53.1' W    
3...............................  24 deg.27.0' N      81 deg.52.3' W    
4...............................  24 deg.27.6' N      81 deg.52.3' W    
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this 
SPA.

                              Sombrero Key                              
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.37.9' N      81 deg.6.8' W     
2...............................  24 deg.37.4' N      81 deg.6.1' W     
3...............................  24 deg.37.2' N      81 deg.7.0' W     
------------------------------------------------------------------------

    Catch and release fishing by trolling only is allowed in this 
SPA.
    When differential Global Positioning Systems data becomes 
available, the coordinates for all these areas may be revised by 
Federal Register notice to reflect the increased accuracy of such 
data.

Appendix VI to Subpart P of Part 922--Special-Use Areas Boundary 
Coordinates and Use Designations

    The Special-use Areas (based on North American Datum of 1983) 
are located within the following geographic boundary coordinates:

                       Conch Reef (Research Only)                       
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.56.8' N      80 deg.27.2' W    
2...............................  24 deg.57.0' N      80 deg.27.0' W    
3...............................  24 deg.57.2' N      80 deg.27.5' W    
4...............................  24 deg.57.5' N      80 deg.27.4' W    
------------------------------------------------------------------------


                     Eastern Sambos (Research Only)                     
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.29.4' N      81 deg.39.3' W    
2...............................  24 deg.29.7' N      81 deg.40.2' W    
3...............................  24 deg.29.5' N      81 deg.39.6' W    
4...............................  24 deg.29.8' N      81 deg.39.7' W    
------------------------------------------------------------------------


                        Looe Key (Research Only)                        
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.34.1' N      81 deg.23.3' W    
2...............................  24 deg.34.0' N      81 deg.23.2' W    
3...............................  24 deg.33.8' N      81 deg.23.8' W    
4...............................  24 deg.34.0' N      81 deg.23.9' W    
------------------------------------------------------------------------


                     Tennessee Reef (Research Only)                     
------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  24 deg.45.9' N      80 deg.45.6' W    
2...............................  24 deg.45.7' N      80 deg.45.4' W    
3...............................  24 deg.46.0' N      80 deg.44.9' W    
4...............................  24 deg.46.2' N      80 deg.45.1' W    
------------------------------------------------------------------------

Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary 
Coordinates

In the Vicinity of the Florida Keys

(Reference Charts: United States 11466, 27th Edition--September 1, 
1990 and United States 11450, 4th Edition--August 11, 1990.)

------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
1...............................  25 deg.45.00' N     80 deg.06.10' W   
2...............................  25 deg.38.70' N     80 deg.02.70' W   
3...............................  25 deg.22.00' N     80 deg.03.00' W   
4...............................  25 deg.00.20' N     80 deg.13.40' W   
5...............................  24 deg.37.90' N     80 deg.47.30' W   
6...............................  24 deg.29.20' N     81 deg.17.30' W   
7...............................  24 deg.22.30' N     81 deg.43.17' W   
8...............................  24 deg.28.00' N     81 deg.43.17' W   
9...............................  24 deg.28.70' N     81 deg.43.50' W   
10..............................  24 deg.29.80' N     81 deg.43.17' W   
11..............................  24 deg.33.10' N     81 deg.35.15' W   
12..............................  24 deg.33.60' N     81 deg.26.00' W   
13..............................  24 deg.38.20' N     81 deg.07.00' W   
14..............................  24 deg.43.20' N     80 deg.53.20' W   
15..............................  24 deg.46.10' N     80 deg.46.15' W   
16..............................  24 deg.51.10' N     80 deg.37.10' W   
17..............................  24 deg.57.50' N     80 deg.27.50' W   
18..............................  25 deg.09.90' N     80 deg.16.20' W   
19..............................  25 deg.24.00' N     80 deg.09.10' W   
20..............................  25 deg.31.50' N     80 deg.07.00' W   
21..............................  25 deg.39.70' N     80 deg.06.85' W   
22..............................  25 deg.45.00' N     80 deg.06.10' W   
------------------------------------------------------------------------

In the Vicinity of Key West Harbor

(Reference Chart: United States 11434, 21st Edition--August 11, 
1990.)

------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
23..............................  24 deg.27.95' N     81 deg.48.65' W   
24..............................  24 deg.23.00' N     81 deg.53.50' W   
25..............................  24 deg.26.60' N     81 deg.58.50' W   
26..............................  24 deg.27.75' N     81 deg.55.70' W   
27..............................  24 deg.29.35' N     81 deg.53.40' W   
28..............................  24 deg.29.35' N     81 deg.50.00' W   
29..............................  24 deg.27.95' N     81 deg.48.65' W   
------------------------------------------------------------------------

Area Surrounding the Marquesas Keys

(Reference Chart: United States 11434, 21st Edition--August 11, 
1990.)

------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
30..............................  24 deg.26.60' N     81 deg.59.55' W   
31..............................  24 deg.23.00' N     82 deg.03.50' W   
32..............................  24 deg.23.60' N     82 deg.27.80' W   
33..............................  24 deg.34.50' N     82 deg.37.50' W   
34..............................  24 deg.43.00' N     82 deg.26.50' W   
35..............................  24 deg.38.31' N     81 deg.54.06' W   
36..............................  24 deg.37.91' N     81 deg.53.40' W   
37..............................  24 deg.36.15' N     81 deg.51.78' W   
38..............................  24 deg.34.40' N     81 deg.50.60' W   
39..............................  24 deg.33.44' N     81 deg.49.73' W   
40..............................  24 deg.31.20' N     81 deg.52.10' W   
41..............................  24 deg.28.70' N     81 deg.56.80' W   
42..............................  24 deg.26.60' N     81 deg.59.55' W   
------------------------------------------------------------------------

Area Surrounding the Dry Tortugas Islands

(Reference Chart: United States 11434, 21st Edition--August 11, 
1990.)

------------------------------------------------------------------------
              Point                    Latitude            Longitude    
------------------------------------------------------------------------
43..............................  24 deg.32.00' N     82 deg.53.50' W   
44..............................  24 deg.32.00' N     83 deg.00.05' W   
45..............................  24 deg.39.70' N     83 deg.00.05' W   
46..............................  24 deg.45.60' N     82 deg.54.40' W   
47..............................  24 deg.45.60' N     82 deg.47.20' W   
48..............................  24 deg.42.80' N     82 deg.43.90' W   
49..............................  24 deg.39.50' N     82 deg.43.90' W   
50..............................  24 deg.35.60' N     82 deg.46.40' W   
51..............................  24 deg.32.00' N     82 deg.53.50' W   
------------------------------------------------------------------------

Appendix VIII to Subpart P of Part 922--Marine Life Rule [as Excerpted 
From Chapter 46-42 of the Florida Administrative Code]

46-42.001  Purpose and Intent; Designation of Restricted Species; 
Definition of ``Marine Life Species.''
46-42.002  Definitions.
46-42.003  Prohibition of Harvest: Longspine Urchin, Bahama 
Starfish.
46-42.0035  Live Landing and Live Well Requirements.

[[Page 4620]]

46-42.0036  Harvest in Biscayne National Park.*
46-42.004  Size Limits.
46-42.005  Bag Limits.
46-42.006  Commercial Season, Harvest Limits.
46-42.007  Gear Specifications and Prohibited Gear.
46-42.008  Live Rock.**
46-42.009  Prohibition on the Taking, Destruction, or Sale of Marine 
Corals and Sea Fans.

    ** Part 42.0036 was not reproduced because it does not apply to 
the Sanctuary.
    ** Part 42.008 was not reproduced because it is regulated 
pursuant to Sec. 922.163(a)(2)(ii).

46-42.001  Purpose and Intent; Designation of Restricted Species; 
Definition of ``Marine Life Species''.

    (1)(a) The purpose and intent of this chapter are to protect and 
conserve Florida's tropical marine life resources and assure the 
continuing health and abundance of these species. The further intent 
of this chapter is to assure that harvesters in this fishery use 
nonlethal methods of harvest and that the fish, invertebrates, and 
plants so harvested be maintained alive for the maximum possible 
conservation and economic benefits.
    (b) It is the express intent of the Marine Fisheries Commission 
that landing of live rock propagated through aquaculture will be 
allowed pursuant to the provisions of this chapter.
    (2) The following fish species, as they occur in waters of the 
state and in federal Exclusive Economic Zone (EEZ) waters adjacent 
to state waters, are hereby designated as restricted species 
pursuant to Section 370.01(20), Florida Statutes:
    (a) Moray eels--Any species of the Family Muraenidae.
    (b) Snake eels--Any species of the Genera Myrichthys and 
Myrophis of the Family Ophichthidae.
    (c) Toadfish--Any species of the Family Batrachoididae.
    (d) Frogfish--Any species of the Family Antennariidae.
    (e) Batfish--Any species of the Family Ogcocephalidae.
    (f) Clingfish--Any species of the Family Gobiesocidae.
    (g) Trumpetfish--Any species of the Family Aulostomidae.
    (h) Cornetfish--Any species of the Family Fistulariidae.
    (i) Pipefish/seahorses--Any species of the Family Syngnathidae.
    (j) Hamlet/seabass--Any species of the Family Serranidae, except 
groupers of the genera Epinephalus and Mycteroperca, and seabass of 
the genus Centropristis.
    (k) Basslets--Any species of the Family Grammistidae.
    (l) Cardinalfish--Any species of the Family Apogonidae.
    (m) High-hat, Jackknife-fish, Spotted drum, Cubbyu--Any species 
of the genus Equetus of the Family Sciaenidae.
    (n) Reef Croakers--Any of the species Odontocion dentex.
    (o) Sweepers--Any species of the Family Pempherididae.
    (p) Butterflyfish--Any species of the Family Chaetodontidae.
    (q) Angelfish--Any species of the Family Pomacanthidae.
    (r) Damselfish--Any species of the Family Pomacentridae.
    (s) Hawkfish--Any species of the Family Cirrhitidae.
    (t) Wrasse/hogfish/razorfish--Any species of the Family 
Labridae, except hogfish, Lachnolaimus maximus.
    (u) Parrotfish--Any species of the Family Scaridae.
    (v) Jawfish--Any species of the Family Opistognathidae.
    (w) Blennies--Any species of the Families Clinidae or 
Blenniidae.
    (x) Sleepers--Any species of the Family Eleotrididae.
    (y) Gobies--Any species of the Family Gobiidae.
    (z) Tangs and surgeonfish--Any species of the Family 
Acanthuridae.
    (aa) Filefish/triggerfish--Any species of the Family Balistes, 
except gray triggerfish, Balistidae capriscus.
    (bb) Trunkfish/cowfish--Any species of the Family Ostraciidae.
    (cc) Pufferfish/burrfish/balloonfish--Any of the following 
species:
    1. Balloonfish--Diodon holocanthus.
    2. Sharpnose puffer--Canthigaster rostrata.
    3. Striped burrfish--Chilomycterus schoepfi.
    (3) The following invertebrate species, as they occur in waters 
of the state and in federal Exclusive Economic Zone (EEZ) waters 
adjacent to state waters, are hereby designated as restricted 
species pursuant to Section 370.01(20), Florida Statutes:
    (a) Sponges--Any species of the Class Demospongia, except 
sheepswool, yellow, grass, glove, finger, wire, reef, and velvet 
sponges, Order Dictyoceratida.
    (b) Upside-down jellyfish--Any species of the Genus Cassiopeia.
    (c) Siphonophores/hydroids--Any species of the Class Hydrozoa, 
except fire corals, Order Milleporina.
    (d) Soft corals--Any species of the Subclass Octocorallia, 
except sea fans Gorgonia flabellum and Gorgonia ventalina.
    (e) Sea anemones--Any species of the Orders Actinaria, 
Zoanthidea, Corallimorpharia, and Ceriantharia.
    (f) Featherduster worms/calcareous tubeworms--Any species of the 
Families Sabellidae and Serpulidae.
    (g) Star-shells--Any of the species Astraea americana or Astraea 
phoebia.
    (h) Nudibranchs/sea slugs--Any species of the Subclass 
Opisthobranchia.
    (i) Fileclams--Any species of the Genus Lima.
    (j) Octopods--Any species of the Order Octopoda, except the 
common octopus, Octopodus vulgaris.
    (k) Shrimp--Any of the following species:
    1. Cleaner shrimp and peppermint shrimp--Any species of the 
Genera Periclimenes or Lysmata.
    2. Coral shrimp--Any species of the Genus Stenopus.
    3. Snapping shrimp--Any species of the Genus Alpheus.
    (l) Crabs--Any of the following species:
    1. Yellowline arrow crab--Stenorhynchus seticornis.
    2. Furcate spider or decorator crab--Stenocionops furcata.
    3. Thinstripe hermit crab--Clibanarius vittatus.
    4. Polkadotted hermit crab--Phimochirus operculatus.
    5. Spotted porcelain crab--Porcellana sayana.
    6. Nimble spray or urchin crab--Percnon gibbesi.
    7. False arrow crab--Metoporhaphis calcarata.
    (m) Starfish--Any species of the Class Asteroidea, except the 
Bahama starfish, Oreaster reticulatus.
    (n) Brittlestars--Any species of the Class Ophiuroidea.
    (o) Sea urchins--Any species of the Class Echinoidea, except 
longspine urchin, Diadema antillarum, and sand dollars and sea 
biscuits, Order Clypeasteroida.
    (p) Sea cucumbers--Any species of the Class Holothuroidea.
    (q) Sea lillies--Any species of the Class Crinoidea.
    (4) The following species of plants, as they occur in waters of 
the state and in federal Exclusive Economic Zone (EEZ) waters 
adjacent to state waters, are hereby designated as restricted 
species pursuant to Section 370.01(20), Florida Statutes:
    (a) Caulerpa--Any species of the Family Caulerpaceae.
    (b) Halimeda/mermaid's fan/mermaid's shaving brush--Any species 
of the Family Halimedaceae.
    (c) Coralline red algae--Any species of the Family 
Corallinaceae.
    (5) For the purposes of Section 370.06(2)(d), Florida Statutes, 
the term ``marine life species'' is defined to mean those species 
designated as restricted species in subsections (2), (3), and (4) of 
this rule.
    Specific Authority 370.01(20), 370.027(2), 370.06(2)(d), F.S. 
Law Implemented 370.01(20), 370.025, 370.027, 370.06(2)(d), F.S. 
History--New 1-1-91, Amended 7-1-92, 1-1-95.

46-42.002  Definitions.--As used in this rule chapter

    (1) ``Barrier net,'' also known as a ``fence net,'' means a 
seine used beneath the surface of the water by a diver to enclose 
and concentrate tropical fish and which may be made of either nylon 
or monofilament.
    (2) ``Drop net'' means a small, usually circular, net with 
weights attached along the outer edge and a single float in the 
center, used by a diver to enclose and concentrate tropical fish.
    (3) ``Hand held net'' means a landing or dip net as defined in 
Rule 46-4.002(4), except that a portion of the bag may be 
constructed of clear plastic material, rather than mesh.
    (4) ``Harvest'' means the catching or taking of a marine 
organism by any means whatsoever, followed by a reduction of such 
organism to possession. Marine organisms that are caught but 
immediately returned to the water free, alive, and unharmed are not 
harvested. In addition, temporary possession of a marine animal for 
the purpose of measuring it to determine compliance with the minimum 
or maximum size requirements of this chapter shall not constitute 
harvesting such animal, provided that it is measured

[[Page 4621]]

immediately after taking, and immediately returned to the water 
free, alive, and unharmed if undersize or oversize.
    (5) ``Harvest for commercial purposes'' means the taking or 
harvesting of any tropical ornamental marine life species or 
tropical ornamental marine plant for purposes of sale or with intent 
to sell. The harvest of tropical ornamental marine life species or 
tropical ornamental marine plants in excess of the bag limit shall 
constitute prima facie evidence of intent to sell.
    (6) ``Land,'' when used in connection with the harvest of marine 
organisms, means the physical act of bringing the harvested organism 
ashore.
    (7) ``Live rock'' means rock with living marine organisms 
attached to it.
    (8) ``Octocoral'' means any erect, nonencrusting species of the 
Subclass Octocorallia, except the species Gorgonia flabellum and 
Gorgonia ventalina.
    (9) ``Slurp gun'' means a self-contained, handheld device that 
captures tropical fish by rapidly drawing seawater containing such 
fish into a closed chamber.
    (10) ``Total length'' means the length of a fish as measured 
from the tip of the snout to the tip of the tail.
    (11) ``Trawl'' means a net in the form of an elongated bag with 
the mouth kept open by various means and fished by being towed or 
dragged on the bottom.
    ``Roller frame trawl'' means a trawl with all of the following 
features and specifications:
    (a) A rectangular rigid frame to keep the mouth of the trawl 
open while being towed.
    (b) The lower horizontal beam of the frame has rollers to allow 
the trawl to roll over the bottom and any obstructions while being 
towed.
    (c) The trawl opening is shielded by a grid of vertical bars 
spaced no more than 3 inches apart.
    (d) The trawl is towed by attaching a line or towing cable to a 
tongue located above or at the center of the upper horizontal beam 
of the frame.
    (e) The trawl has no doors attached to keep the mouth of the 
trawl open.
    (12) ``Tropical fish'' means any species included in subsection 
(2) of Rule 46-42.001, or any part thereof.
    (13) ``Tropical ornamental marine life species'' means any 
species included in subsections (2) or (3) of Rule 46-42.001, or any 
part thereof.
    (14) ``Tropical ornamental marine plant'' means any species 
included in subsection (4) of Rule 46-42.001.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.

46-42.003  Prohibition of Harvest: Longspine Urchin, Bahama Starfish.--
No person shall harvest, possess while in or on the waters of the 
state, or land any of the following species

    (1) Longspine urchin, Diadema antillarum.
    (2) Bahama starfish, Oreaster reticulatus.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92.

46-42.0035  Live Landing and Live Well Requirements

    (1) Each person harvesting any tropical ornamental marine life 
species or any tropical ornamental marine plant shall land such 
marine organism alive.
    (2) Each person harvesting any tropical ornamental marine life 
species or any tropical ornamental marine plant shall have aboard 
the vessel being used for such harvest a continuously circulating 
live well or aeration or oxygenation system of adequate size and 
capacity to maintain such harvested marine organisms in a healthy 
condition.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 7-1-92.

46-42.004  Size Limits

    (1) Angelfishes.--
    (a) No person harvesting for commercial purposes shall harvest, 
possess while in or on the waters of the state, or land any of the 
following species of angelfish, of total length less than that set 
forth below:
    1. One-and-one-half (1\1/2\) inches for:
    a. Gray angelfish (Pomacanthus arcuatus).
    b. French angelfish (Pomacanthus paru).
    2. One-and-three-quarters (1\3/4\) inches for:
    a. Blue angelfish (Holacanthus bermudensis).
    b. Queen angelfish (Holacanthus ciliaris).
    3. Two (2) inches for rock beauty (Holacanthus tricolor).
    (b) No person shall harvest, possess while in or on the waters 
of the state, or land any angelfish (Family Pomacanthidae), of total 
length greater than that specified below:
    1. Eight (8) inches for angelfish, except rock beauty 
(Holacanthus tricolor).
    2. Five (5) inches for rock beauty.
    (c) Except as provided herein, no person shall purchase, sell, 
or exchange any angelfish smaller than the limits specified in 
paragraph (a) or larger than the limits specified in paragraph (b). 
This prohibition shall not apply to angelfish legally harvested 
outside of state waters or federal Exclusive Economic Zone (EEZ) 
waters adjacent to state waters, which angelfish are entering 
Florida in interstate or international commerce. The burden shall be 
upon any person possessing such angelfish for sale or exchange to 
establish the chain of possession from the initial transaction after 
harvest, by appropriate receipt(s), bill(s) of sale, or bill(s) of 
lading, and any customs receipts, and to show that such angelfish 
originated from a point outside the waters of the State of Florida 
or federal Exclusive Economic Zone (EEZ) waters adjacent to Florida 
waters and entered the state in interstate or international 
commerce. Failure to maintain such documentation or to promptly 
produce same at the request of any duly authorized law enforcement 
officer shall constitute prima facie evidence that such angelfish 
were harvested from Florida waters or adjacent EEZ waters for 
purposes of this paragraph.
    (2) Butterflyfishes.--
    (a) No person harvesting for commercial purposes shall harvest, 
possess while in or on the waters of the state, or land any 
butterflyfish (Family Chaetodontidae) of total length less than one 
(1) inch.
    (b) No person shall harvest, possess while in or on the waters 
of the state, or land any butterflyfish of total length greater than 
4 inches.
    (3) Gobies--No person shall harvest, possess while in or on the 
waters of the state, or land any gobie (Family Gobiidae) of total 
length greater than 2 inches.
    (4) Jawfishes--No person shall harvest, possess while in or on 
the waters of the state, or land any jawfish (Family 
Opistognathidae) of total length greater than 4 inches.
    (5) Spotfin and Spanish hogfish --
    (a) No person shall harvest, possess while in or on the waters 
of this state, or land any Spanish hogfish (Bodianus rufus) of total 
length less than 2 inches.
    (b) No person shall harvest, possess while in or on the waters 
of this state, or land any Spanish hogfish (Bodianus rufus) or 
spotfin hogfish (Bodianus pulchellus) of total length greater than 8 
inches.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.

46-42.005  Bag limit

    (1) Except as provided in Rule 46-42.006 or subsections (3) or 
(4) of this rule (46-42.005) no person shall harvest, possess while 
in or on the waters of the state, or land more than 20 individuals 
per day of tropical ornamental marine life species, in any 
combination.
    (2) Except as provided in Rule 46-42.006, no person shall 
harvest, possess while in or on the waters of the state, or land 
more than one (1) gallon per day of tropical ornamental marine 
plants, in any combination of species.
    (3) Except as provided in Rule 46-42.006, no person shall 
harvest, possess while in or on the waters of the state, or land 
more than 5 angelfishes (Family Pomacanthidae) per day. Each 
angelfish shall be counted for purposes of the 20 individual bag 
limit specified in subsection (1) of this rule (46-42-005).
    (4)(a) Unless the season is closed pursuant to paragraph (b), no 
person shall harvest, possess while in or on the waters of the 
state, or land more than 6 colonies per day of octocorals. Each 
colony of octocoral or part thereof shall be considered an 
individual of the species for purposes of subsection (1) of this 
rule (46-42-005) and shall be counted for purposes of the 20 
individual bag limit specified therein. Each person harvesting any 
octocoral as authorized by this rule (46-42-005) may also harvest 
substrate within 1 inch of the perimeter of the holdfast at the base 
of the octocoral, provided that such substrate remains attached to 
the octocoral.
    (b) If the harvest of octocorals in federal Exclusive Economic 
Zone (EEZ) waters adjacent to state waters is closed to all 
harvesters prior to September 30 of any year, the season for harvest 
of octocorals in state waters shall also close until the following 
October 1, upon notice given by the Secretary of the Department of 
Environmental Protection, in the manner provided in s.120.52(16)(d), 
Florida Statutes.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 1-1-95.

[[Page 4622]]

46-42.006  Commercial Season, Harvest Limits

    (1) Except as provided in Rule 46-42.008(7), no person shall 
harvest, possess while in or on the waters of the state, or land 
quantities of tropical ornamental marine life species or tropical 
ornamental marine plants in excess of the bag limits established in 
Rule 46-42.005 unless such person possesses a valid saltwater 
products license with both a marine life fishery endorsement and a 
restricted species endorsement issued by the Department of 
Environmental Protection.
    (2) Persons harvesting tropical ornamental marine life species 
or tropical ornamental marine plants for commercial purposes shall 
have a season that begins on October 1 of each year and continues 
through September 30 of the following year. These persons shall not 
harvest, possess while in or on the waters of the state, or land 
tropical ornamental marine life species in excess of the following 
limits:
    (a) A limit of 75 angelfish (Family Pomacanthidae) per person 
per day or 150 angelfish per vessel per day, whichever is less.
    (b) A limit of 75 butterflyfishes (Family Chaetodontidae) per 
vessel per day.
    (c) There shall be no limits on the harvest for commercial 
purposes of octocorals unless and until the season for all harvest 
of octocorals in federal Exclusive Economic Zone (EEZ) waters 
adjacent to state waters is closed. At such time, the season for 
harvest of octocorals in state waters shall also close until the 
following October 1, upon notice given by the Secretary of the 
Department of Environmental Protection, in the manner provided in 
Section 120.52(16)(d), Florida Statutes. Each person harvesting any 
octocoral as authorized by this rule may also harvest substrate 
within 1 inch of the perimeter of the holdfast at the base of the 
octocoral, provided that such substrate remains attached to the 
octocoral.
    (d) A limit of 400 giant Caribbean or ``pink-tipped'' anemones 
(Genus Condylactus) per vessel per day.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.

46-42.007  Gear Specifications and Prohibited Gear

    (1) The following types of gear shall be the only types allowed 
for the harvest of any tropical fish, whether from state waters or 
from federal Exclusive Economic Zone (EEZ) waters adjacent to state 
waters:
    (a) Hand held net.
    (b) Barrier net, with a mesh size not exceeding \3/4\ inch 
stretched mesh.
    (c) Drop net, with a mesh size not exceeding \3/4\ inch 
stretched mesh.
    (d) Slurp gun.
    (e) Quinaldine may be used for the harvest of tropical fish if 
the person using the chemical or possessing the chemical in or on 
the waters of the state meets each of the following conditions:
    1. The person also possesses and maintains aboard any vessel 
used in the harvest of tropical fish with quinaldine a special 
activity license authorizing the use of quinaldine, issued by the 
Division of Marine Resources of the Department of Environmental 
Protection pursuant to Section 370.08(8), Florida Statutes.
    2. The quinaldine possessed or applied while in or on the waters 
of the state is in a diluted form of no more than 2% concentration 
in solution with seawater. Prior to dilution in seawater, quinaldine 
shall only be mixed with isopropyl alcohol or ethanol.
    (f) A roller frame trawl operated by a person possessing a valid 
live bait shrimping license issued by the Department of 
Environmental Protection pursuant to Section 370.15, Florida 
Statutes, if such tropical fish are taken as an incidental bycatch 
of shrimp lawfully harvested with such trawl.
    (g) A trawl meeting the following specifications used to collect 
live specimens of the dwarf seahorse, Hippocampus zosterae, if towed 
by a vessel no greater than 15 feet in length at no greater than 
idle speed:
    1. The trawl opening shall be no larger than 12 inches by 48 
inches.
    2. The trawl shall weigh no more than 5 pounds wet when weighed 
out of the water.
    (2) This rule shall not be construed to prohibit the use of any 
bag or container used solely for storing collected specimens or the 
use of a single blunt rod in conjunction with any allowable gear, 
which rod meets each of the following specifications:
    (a) The rod shall be made of nonferrous metal, fiberglass, or 
wood.
    (b) The rod shall be no longer than 36 inches and have a 
diameter no greater than \3/4\ inch at any point.
    (3) No person shall harvest in or from state waters any tropical 
fish by or with the use of any gear other than those types specified 
in subsection (1); provided, however, that tropical fish harvested 
as an incidental bycatch of other species lawfully harvested for 
commercial purposes with other types of gear shall not be deemed to 
be harvested in violation of this rule, if the quantity of tropical 
fish so harvested does not exceed the bag limits established in Rule 
46-42.005.
    Specific Authority 370.027(2), F.S. Law Implemented 370.025, 
370.027, F.S. History--New 1-1-91, Amended 7-1-92,
1-1-95.

46-42.009  Prohibition on the Taking, Destruction, or Sale of Marine 
Corals and Sea Fans; Exception; Repeal of Section 370.114, Florida 
Statutes

    (1) Except as provided in subsection (2), no person shall take, 
attempt to take, or otherwise destroy, or sell, or attempt to sell, 
any sea fan of the species Gorgonia flabellum or of the species 
Gorgonia ventalina, or any hard or stony coral (Order Scleractinia) 
or any fire coral (Genus Millepora). No person shall possess any 
such fresh, uncleaned, or uncured sea fan, hard or stony coral, or 
fire coral.
    (2) Subsection (1) shall not apply to:
    (a) Any sea fan, hard or stony coral, or fire coral legally 
harvested outside of state waters or federal Exclusive Economic Zone 
(EEZ) waters adjacent to state waters and entering Florida in 
interstate or international commerce. The burden shall be upon any 
person possessing such species to establish the chain of possession 
from the initial transaction after harvest, by appropriate 
receipt(s), bill(s) of sale, or bill(s) of lading, and any customs 
receipts, and to show that such species originated from a point 
outside the waters of the State of Florida or federal Exclusive 
Economic Zone (EEZ) adjacent to state waters and entered the state 
in interstate or international commerce. Failure to maintain such 
documentation or to promptly produce same at the request of any duly 
authorized law enforcement officer shall constitute prima facie 
evidence that such species were harvested from Florida waters in 
violation of this rule.
    (b) Any sea fan, hard or stony coral, or fire coral harvested 
and possessed pursuant to permit issued by the Department of 
Environmental Protection for scientific or educational purposes as 
authorized in Section 370.10(2), Florida Statutes.
    (c) Any sea fan, hard or stony coral, or fire coral harvested 
and possessed pursuant to the aquacultured live rock provisions of 
Rule 46-42.008(3)(a) or pursuant to a Live Rock Aquaculture Permit 
issued by the National Marine Fisheries Service under 50 CFR Part 
638 and meeting the following requirements:
    1. Persons possessing these species in or on the waters of the 
state shall also possess a state submerged lands lease for live rock 
aquaculture and a Department of Environmental Protection permit for 
live rock culture deposition and removal or a federal Live Rock 
Aquaculture Permit. If the person possessing these species is not 
the person named in the documents required herein, then the person 
in such possession shall also possess written permission from the 
person so named to transport aquacultured live rock pursuant to this 
exception.
    2. The nearest office of the Florida Marine Patrol shall be 
notified at least 24 hours in advance of any transport in or on 
state waters of aquacultured live rock pursuant to this exception.
    3. Persons possessing these species off the water shall maintain 
and produce upon the request of any duly authorized law enforcement 
officer sufficient documentation to establish the chain of 
possession from harvest on a state submerged land lease for live 
rock aquaculture or in adjacent Exclusive Economic Zone (EEZ) waters 
pursuant to a federal Live Rock Aquaculture Permit.
    4. Any sea fan, hard or stony coral, or fire coral harvested 
pursuant to Rule 46-42.008(3)(a) shall remain attached to the 
cultured rock.
    Specific Authority 370.027(2), F.S.; Section 6, Chapter 83-134, 
Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Law 
Implemented 370.025, 370.027, F.S.; Section 6, Chapter 83-134, Laws 
of Florida, as amended by Chapter 84-121, Laws of Florida. History--
New 1-1-95.2222.

PARTS 929 AND 937--[REMOVED]

    18. Under the authority of 16 U.S.C. 1431 et seq., Parts 929 and 
937 are removed.

[FR Doc. 97-1870 Filed 1-24-97; 10:59 am]
BILLING CODE 3510-12-P