[Federal Register Volume 62, Number 131 (Wednesday, July 9, 1997)]
[Rules and Regulations]
[Pages 36655-36657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17709]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 960712192-7160-02]
RIN 0648-AD85


Florida Keys National Marine Sanctuary; Supplemental Final 
Regulatory Flexibility Analysis: Commercial Treasure Salvors

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; availability of Supplemental Final Regulatory 
Flexibility Analysis (Supplemental FRFA).

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SUMMARY: Pursuant to the Florida Keys National Marine Sanctuary and 
Protection Act and the National Marine Sanctuaries Act, NOAA developed 
a comprehensive final management plan for the Florida Keys National 
Marine Sanctuary (FKNMS or the Sanctuary). NOAA issued final 
regulations on January 30, 1997, to implement that plan and govern the 
conduct of activities within the Sanctuary, and modified them on June 
12, 1997.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for the 
final regulations. The FRFA was summarized in the Federal Register 
document issuing the final Sanctuary regulations (62 FR 4578, January 
30, 1997), and its availability announced. The Office of the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) 
reviewed the FRFA and received several comments critical of certain 
portions of the FRFA, mainly with regard to the discussion of submerged 
cultural resources and the impacts on treasure salvors. The Office of 
the Chief Counsel for Advocacy informally suggested to NOAA that the 
portion of the FRFA on treasure salvage be supplemented. Consequently, 
prior to the effective date of the final Sanctuary regulations (July 1, 
1997) NOAA prepared a Supplemental FRFA covering commercial treasure 
salvage. The Assistant Administrator for Ocean Services and Coastal 
Zone Management upon reviewing the Supplemental FRFA concluded that it 
presented no information warranting modifications to the final 
regulations. Consequently, the Assistant Administrator has ratified the 
final regulations. This document summarizes and announces the 
availability of the Supplemental FRFA.

ADDRESSES: Requests for a copy of the Supplemental Final Regulatory 
Flexibility Analysis: Commercial Treasure Salvage, the Final Regulatory 
Flexibility Analysis, or the Final Management Plan/Environmental Impact 
Statement 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, Sanctuaries and Reserves Division, 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. No. 
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).

[[Page 36656]]

    NOAA published final Sanctuary regulations to implement the 
management plan on January 30, 1997 (62 FR 4578), and modified them on 
June 12, 1997 (62 FR 32154). The effective date of the final Sanctuary 
regulations is July 1, 1997.

II. Regulatory Flexibility Act

    The economic impacts to commercial treasure salvors are addressed 
in the Draft and Final Environmental Impact Statements; the assessment 
conducted pursuant to E.O. 12866, the FRFA, as well as in the 
Supplemental FRFA.
    The FRFA was summarized in the Federal Register document issuing 
the final Sanctuary regulations (62 FR 4578, 4605-4606), and its 
availability announced. The Office of the Chief Counsel for Advocacy of 
the Small Business Administration (SBA) reviewed the FRFA and received 
several comments critical of certain portions of the FRFA, mainly with 
regard to the treatment of submerged cultural resources and the impacts 
on treasure salvors. At SBA's suggestion, and because of the time 
provided by the forty-five day Congressional review period under the 
National Marine Sanctuaries Act, NOAA prepared a supplement to the FRFA 
to further address the comments received by the SBA regarding 
commercial treasure salvage. The following provides a summary of the 
Supplemental FRFA.
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
that the FRFA contain a succinct statement of the need for, and 
objectives of, the rule. The FKNMSPA mandated the development of a 
final management plan and implementing regulations in order to protect 
and manage Sanctuary resources in a manner which facilitates multiple 
uses of the Sanctuary which are consistent with the primary objective 
of resource protection.
    Prior to Sanctuary designation, the recovery of artifacts from 
historic shipwrecks by treasure hunters and commercial salvors was 
controlled by a contract system under Florida State law and the 
maritime admiralty law of finds and salvage outside State submerged 
lands and waters. The statutory designation of the FKNMS in 1990 made 
historic shipwreck public sanctuary resources, just like the coral, 
seagrass beds and other natural resources of the Sanctuary. Federal 
historic preservation law generally prohibits the unauthorized removal 
and privatization of public resources. Therefore, unless the recovery 
is conducted pursuant to some valid pre-existing Federal or State 
authorization or is expressly authorized by a Sanctuary permit, the 
salvage is prohibited. The Sanctuary regulations include a permit 
system for recovery and privatization of public resources under certain 
circumstances. Without this permit system, no private recovery would be 
lawful under the existing Federal Archaeological Program (FAP), the 
underlying Federal Historic Preservation Laws and the NMSA.
    Section 604(a)(2) of the RFA requires a summary of the significant 
issues raised by the public comments in response to the Initial 
Regulatory Flexibility Analysis (IRFA), a summary of the assessment of 
the agency of such issues, and a statement of any changes to the 
proposed rule as a result of such comments. While an IRFA was 
determined not to be require for the Draft Management Plan/Draft 
Environmental Impact Statement (DMP/DEIS) and therefore was not 
prepared, a socioeconomic impact analysis was conducted and was 
summarized in the DMP/DEIS. The socioeconomic impact analysis stated 
that the adverse impacts were expected to be minimal for several 
reasons, including past and present salvage activities, the likelihood 
of new discoveries, enactment of the Abandoned Shipwreck Act and other 
Federal historic preservation laws, and the shift of the treasure 
salvage industry away from the Florida Keys to waters outside the 
United States, particularly in the Caribbean. NOAA received comments on 
its proposed management of submerged cultural resources (SCRs) from the 
public, and for the most part, treasure salvors, particularly the 
Historic Shipwreck Salvage Policy Council (HSSPC), throughout the 
development of the final regulations and management plan, as well as 
comments received by the SBA on the FRFA. NOAA's responses to these 
comments, and a description of what changes are made in the final 
regulations and management plan, are found in the Final Management 
Plan/Final Environmental Impact Statement, final regulations, FRFA and 
Supplemental FRFA. The issues raised in the comments received, and 
NOAA's responses thereto, address: (1) The ban on treasure salvage; (2) 
penalties; (3) prohibiting treasure hunting and not issuing permits for 
private profit; (4) SCR plan/permits and costs to treasure salvors' 
businesses; (5) Special Use Permits; fees/waiver in SCR Context; (6) 
public access to SCRs; (7) inventory of SCRs--responsibility & expense; 
and (8) survey/inventory permits.
    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 commercial treasure 
salvors. The Supplemental FRFA describes the creation and evolution of 
the treasure hunting-commercial salvage industry; the current 
commercial treasure salvage industry in Florida and the Florida Keys--
professional treasure hunters, part-time treasure hunters, and amateur 
souvenir collectors/hobbyists. The Supplemental FRFA also describes 
other groups interested in historic sanctuary resources--recreational 
divers, archaeologists, historians, educators, fishermen, and the 
public.
    Section 604(a)(4) requires that the FRFA contain a description of 
the reporting, recordkeeping 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. As discussed in the 
FRFA, the Sanctuary regulations require that permittees submit status 
reports for activities conducted under Sanctuary permits. 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 will depend on the number of applicants; expected to 
be less than 20 per year. The Supplemental FRFA adds that as regards 
commercial treasure salvors, the reporting and recordkeeping 
requirements under this rule is limited to the SCR permit system which 
consists of: (1) A survey/inventory permit (phase 1); (2) a research/
recovery permit (phase 2); and (3) a Special Use Permit for 
deaccession/transfer (phase 3). No permit is required for the search 
with non-intrusive remote sensing devices. However, a permit is 
required if there is even limited excavation for identification 
purposes because of the potential loss or injury to Sanctuary resources 
(natural and historic).
    Section 604(a)(5) requires a description of the steps taken to 
minimize the significant economic impacts on small entities consistent 
with 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 the impact on small entities was rejected. In the 25 year 
history of the National Marine

[[Page 36657]]

Sanctuary Program, and consistent with the FAP, commercial treasure 
salvage has never been permitted in any national marine sanctuary prior 
to the Sanctuary plan. The final Sanctuary regulations and management 
plan, as they pertain to SCRs and commercial treasure salvage, were 
based on the meetings with and comments from treasure salvors, comments 
from historic preservationists, and the public. In response to 
comments, the final regulations and plan reflect changes that were made 
in an effort to make the permit system more pragmatic from the 
perspective of the commercial treasure salvors without compromising the 
primary objectives of protecting significant natural and historic 
sanctuary resources. In particular, the final plan and regulations 
contain more detail on the criteria for NOAA/State decisions regarding 
the circumstances when SCRs may recovered under the Sanctuary permit 
system. The regulations also establish a system by which a permittee 
may retain possession of the SCRs, make money off their display, and in 
certain circumstances, be able to privatize the public resource for 
sale, transfer or distribution to investors. Other changes to the 
regulations are further described in the Supplemental FRFA.
    The SBA also received an E-mail from the Conch Coalition stating 
that the Florida Keys Marine Life Association had just become aware 
that the Sanctuary regulations would have significant adverse economic 
impacts on the Florida Keys marine life industry and that the FRFA did 
not properly deal with those impacts. The E-mail stated that detailed 
comments on this issue would be forthcoming from the Florida Keys 
Marine Life Association. Such comments were never received. 
Accordingly, the FRFA has not been supplemented with respect to the 
Florida Keys marine life industry.
    A copy of the supplemental FRFA may be obtained upon request.

List of Subjects in 15 CFR Part 922

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

    Dated: June 30, 1997.
Nancy Foster,
Assistant Administrator for Ocean Services and Coastal Zone Management.
[FR Doc. 97-17709 Filed 7-8-97; 8:45 am]
BILLING CODE 3510-12-M