[Federal Register Volume 63, Number 158 (Monday, August 17, 1998)]
[Rules and Regulations]
[Pages 43870-43873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22014]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 971014245-8190-03]
RIN 0648-AK45


National Marine Sanctuary Program Regulations; Florida Keys 
National Marine Sanctuary Regulations; Anchoring on Tortugas Bank

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

ACTION: Final rule; environmental assessment.

-----------------------------------------------------------------------

SUMMARY: The National Oceanic and Atmospheric Administration amends the 
regulations for the Florida Keys National Marine Sanctuary (FKNMS or 
Sanctuary) to reinstate and make permanent the temporary prohibition on 
anchoring by vessels 50 meters or greater in registered length on 
Tortugas Bank. The preamble to this rule contains an environmental 
assessment for this action. The intent of this rule is to protect the 
coral reef at Tortugas Bank. The proposed rule was published on 
February 11, 1998 and the comment period ended on March 13, 1998.

DATES: The effective date of this rule is 12:01 a.m. on August 19, 
1998.

ADDRESSES: Requests for copies of the management plan or the complete 
regulations for the Sanctuary should be sent to Billy Causey, 
Superintendent, Florida Keys National Marine Sanctuary, Post Office Box 
500368, Marathon, Florida, 33050.

FOR FURTHER INFORMATION CONTACT:
Billy Causey at (305) 743-2437.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Sanctuary 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 is delegated to the 
Under Secretary of Commerce for Ocean and Atmosphere by the Department 
of Commerce, Organization Order 10-15, Sec. 3.01(x) (Jan. 26, 1996). 
The authority to administer the other provisions of the NMSA is 
delegated to the Assistant Administrator for Ocean Services and Coastal 
Zone Management of NOAA by NOAA Circular 83-38, Directive 05-50 
(September 21, 1983, as amended). The final Sanctuary regulations 
implementing the designation were published in the Federal Register on 
June 12, 1997, (62 FR 32154) and were effective July 1, 1997, and 
codified at 15 CFR Part 922, Subpart P.
    In September 1997, NOAA became aware that significant injury to, 
and destruction of, living coral on the Tortugas Bank, west of the Dry 
Tortugas National Park, was being caused by the anchoring of vessels 50 
meters or greater in registered length.
    Section 922.165 of the Sanctuary regulations provides that, where 
necessary to prevent or minimize the destruction of, loss of, or injury 
to a Sanctuary resources, any and all activities are subject to 
immediate temporary regulation, including prohibition, for up to 120 
days. Emergency regulations cannot take effect until approved by the 
Governor of the State of Florida. In accordance with 15 CFR 922.165, 
and the Co-Trustees Agreement for Cooperative Management between NOAA 
and the State of Florida, in October 1997, NOAA consulted with and 
received approval by the Governor of the State of Florida to issue a 
temporary rule prohibiting the anchoring by vessels 50 meters or 
greater in length on Tortugas Bank west of the Tortugas National Park 
within the Sanctuary. The temporary rule (62 FR 54381; October 20, 
1997), took effect at 12:01 a.m. October 17, 1997 and remained in 
effect until February 12, 1998. Proposed regulations were printed in 
the Federal Register on February 11, 1998 (63 FR 6883) and the review 
period for the proposed regulations ended on March 13, 1998. No written 
comments were received on the proposed regulations. The Florida Keys 
National Marine Sanctuary Advisory Council reviewed the proposed rule 
at its meeting on December 9, 1997. The Council recommended approval of 
the regulation. The Governor and Cabinet of the State of Florida 
reviewed the rule and approved it without objection on February 10, 
1998.

II. Summary of the Regulatory Amendment

    The rule reinstates and makes permanent the temporary prohibition 
on anchoring by vessels 50 meters or greater in registered length on 
the Tortugas Bank west of the Dry Tortugas National Park within the 
Sanctuary. Current 15 CFR 922.163(a)(5)(ii) of the final Sanctuary 
regulations prohibits vessels from anchoring in the Sanctuary on living 
coral other than hardbottom in water depths less than 40 feet when 
visibility is such that the seabed can be seen. However, that 
regulation does not protect the coral located in the area covered by 
this rule because the water there is deeper than 40 feet.

[[Page 43871]]

    Anchoring of vessels 50 meters or greater in registered length on 
Tortugas Bank has been documented as having caused significant injury 
to living coral reef resources. Vessels of such size have anchor gear 
(ground tackle) of massive weight and size with heavy chains hundreds 
of feet in length weighing as much as 8 to 10 tons. Proper anchoring 
requires that a length of chain five to seven times the depth of the 
water be lowered, this act of prudent seamanship allows for safe 
anchoring under any sea conditions. In most circumstances, much of this 
chain will drop to and remain on the bottom. The weight of the chain 
holds the vessel in place. In this area, the heavy chain crushes the 
coral and sponges. In addition, as the tide changes or the wind shifts, 
vessels often change position and drag their anchor chain over the 
seabed, further damaging the reef.
    For example, a 180 foot Coast Guard Cutter uses a 2000 pound anchor 
and chain sized appropriately to deploy it; whereas a Coast Guard 110 
foot Patrol Boat uses an 80 pound anchor and rather than chain, nylon 
line is used as ground tackle (anchor gear).
    Coast Guard patrol boats regularly in the area around Tortugas Bank 
report that they encounter either very large vessels (50 meters or 
greater in length), or fishing vessels or pleasure craft generally less 
than 35 meters in length.
    Vessels smaller than 50 meters in registered length have not been 
documented as having caused injury or loss of living coral on Tortugas 
Bank. Their anchoring gear is less massive in size, length and weight. 
Therefore, this rule does not prohibit anchoring by vessels less than 
50 meters in registered length on the Tortugas Bank. The location by 
coordinates of the prohibited anchoring area is set forth in the text 
of the final rule. Vessels greater than 50 meters in registered length 
are already prohibited by the FKNMSPA from operating in certain other 
areas of the Sanctuary, referred to in that statute and Sanctuary 
regulations as Areas to be Avoided (15 CFR 922.164(a)).
    Transit, fishing and all other activities currently allowed in the 
area are not affected by this rule. Alternative anchor sites for 
vessels 50 meters or greater in length are located within approximately 
two nautical miles of the prohibited area. The close proximity of these 
alternative anchoring sites should mitigate any potential economic 
impact on such vessels since cost of the time and fuel to maneuver to 
this area and the additional time and labor in letting out and pulling 
in the additional anchor chain should be minimal.
    The recommended alternative anchoring location in the vicinity of 
the area closed to anchoring by vessels 50 meters or greater in 
registered length is:
    An area approximately 2 nautical miles west of the living coral 
reefs that form the Tortugas Bank, where anchoring damage to the corals 
is occurring. The bottom type in this area is sand/mud or sand/shell. 
This area is indicated on NOAA Nautical Chart Numbers 11434 and 11420. 
Mariners should note the existence of a submerged shipwreck located at 
24 deg.38' N 83 deg.08.00' W. This shipwreck is a landing ship 
transport which was lost in 1948.

III. Miscellaneous Rulemaking Requirements

National Environmental Policy Act

    NOAA has prepared an environmental assessment (EA), pursuant to the 
National Environmental Policy Act of 1969, 42 U.S.C 4321 et seq., for 
the Florida Keys National Marine Sanctuary on this rule. The text of 
the EA follows.

Environmental Assessment

A. Description of the Affected Environment
    The Dry Tortugas Banks are located at the westernmost extent of the 
Florida Keys. These banks are separated from the remainder of the Keys 
by a 24 meter deep channel. The Banks have a rim of Holocene coral reef 
development surrounding an inner basin containing several sandy islands 
including Loggerhead Key, Garden Key, Bush Key, and Hospital Key. A 
little-known deep-water coral reef, informally named Sherwood Forest, 
is found at Tortugas Bank. The seabed includes corals, sponges, and 
other delicate coral reef organisms.
    Human uses of the affected environment includes snorkeling and 
diving, shrimping, day tours on charter boats, and pleasure boating on 
private boats. All of these vessels are less than 50 meters in 
registered length and none have been documented as causing damage to 
the reef by anchoring.
B. Need for the Rule
    The region within the Sanctuary known as Tortugas Bank has 
traditionally been an anchoring area for large, foreign flag vessels 
holding up and waiting order to enter a port within the region. 
However, personnel from the adjacent Dry Tortugas National Park have 
noticed that vessels have begun to anchor on the Bank itself.
    On August 30, Florida Keys National Marine Sanctuary staff received 
a video from a recreational diver charter captain documenting anchoring 
damage caused by a large, foreign-flagged vessel anchored within state 
waters on the Tortugas Bank, within the Sanctuary.
    Shortly, thereafter, Sanctuary biologists visited the reported 
anchoring site to conduct a biological assessment of the injury to the 
living coral reef. When they arrived on Tortugas Bank, there were four 
foreign ships ranging from over 400 to 800 feet in length anchored on 
the 60' deep coral reef bank. Although staff was unable to locate the 
original site which was reported in the video, they were able to assess 
and photo-document the reef damage caused by the four vessels.
    Staff noted significant damage to corals, sponges, and other 
delicate coral reef organisms. Wide swaths of barren seabed and 
overturned coral heads were evidence of the ongoing disruption to the 
coral reef community caused by the ships' anchors and anchor chains.
    The rule reinstates and makes permanent the temporary prohibition 
on anchoring by vessels 50 meters or greater in registered length in an 
area approximately 39.53 square nautical miles. Transit, fishing and 
all other activities currently allowed in the area are not affected by 
this rule.
    NOAA has identified and recommended alternative anchor sites within 
approximately two nautical miles of the prohibited area. Vessels 
greater than 50 meters in registered length are already prohibited by 
the FKNMSPA from operating in certain other areas of the Sanctuary, 
referred to in that statute and Sanctuary regulations as Areas to be 
Avoided (15 CFR 922.164(a)).
C. Alternatives, Including This Action and Their Environmental Impacts

No Action

    One alternative is to take no action, thus maintaining the status 
quo. This alternative is not acceptable because the coral reef located 
at Tortugas Bank would continue to be injured or destroyed by the 
anchoring of vessels 50 meters or greater in length.

Prohibit Anchoring by Vessels 50 Meters or Greater in Registered Length 
on Tortugas Bank Within the Florida Keys National Marine Sanctuary

    The preferred alternative is to reinstate and make permanent the 
temporary prohibition on anchoring by vessels 50 meters or greater in 
registered length on Tortugas Bank within the Florida Keys National 
Marine Sanctuary. This alternative would protect the coral reef at 
Tortugas Bank

[[Page 43872]]

while not unduly restricting the passage and anchoring of vessels which 
have not been documented as having caused harm in the area.

Prohibit Anchoring by All Vessels on Tortugas Bank Within the Florida 
Keys National Marine Sanctuary

    This alternative, to prohibit anchoring by all vessels on Tortugas 
Bank within the Florida Keys National Marine Sanctuary, would unduly 
restrict the vessels which have not been documented as having caused 
harm in the area. Vessels smaller than 50 meters in registered length 
have not been documented as having caused injury or loss of living 
coral on Tortugas Bank. Their anchoring gear is less massive in size, 
length and weight than that of vessels of 50 meters or greater in 
registered length.
    Current uses of the Tortugas Bank, west of the Dry Tortugas 
National Park, include snorkeling and diving, shrimping, day tours on 
charter boats, and pleasure boating on private boats. All of these 
vessels are less than 50 meters in registered length and none have been 
documented as causing damage to the reef by anchoring. To prohibit 
anchoring by these vessels on the Tortugas Bank, west of the Dry 
Tortugas National Park, would likely be an unreasonable economic burden 
on small businesses and an unnecessary impact on the public relative to 
the apparently minimal environmental benefit of such a restriction.

Extend the Area to be Avoided to Include Tortugas Bank West of the Dry 
Tortugas National Park

    Extending the existing statutory Area to be Avoided to include 
Tortugas Bank west of the Dry Tortugas National Park is an alternative 
that was considered and rejected. This alternative would eliminate the 
safe passage and transit through the area by all vessels greater than 
50 meters registered length. The passage of vessels through this area 
has not been determined to be detrimental to the environment. Vessels 
50 meters or greater in registered length frequently pass through this 
area enroute to major Gulf coast ports, including Galveston and 
Houston, Texas; Mobile, Alabama; New Orleans, Louisiana; Tampa, Florida 
and the ships transit this area enroute to the Panama Canal. The overly 
broad restriction that would be caused if this alternative were 
accepted would cause a great economic burden to the shipping industry, 
and therefore was not selected as the preferred alternative.
D. List of Agencies and Persons Consulted
    In an effort to inform all affected parties of the temporary rule, 
NOAA sent electronic mail messages to major international shipping 
companies, and notified the US Coast Guard which resulted in a Notice 
to Mariners. NOAA issued a press release that was reported by the media 
throughout the area. Sanctuary staff notified all international 
underwriters for the relevant shipping companies to apprise them of the 
temporary rule and soliciting their help in notifying their shipping 
clients. Additionally, Sanctuary staff contacted all the Pilots' 
Associations around the Gulf Coast and solicited their help in 
spreading the word to the shipping companies about the rule. In 
addition, NOAA consulted with, and received approval from the State of 
Florida. NOAA continued to consult, as appropriate, with all relevant 
parties during the development of this rule.

[End of Environmental Assessment]

Administrative Procedure Act

    Under 5 U.S.C. 553(d)(3), the Assistant Administrator for Ocean 
Services and Coastal Zone Management, NOAA for good cause finds that 
delaying the effective date for this rule for 30 days is contrary to 
the public interest. First, substantial notice of the temporary rule 
was provided via notice to mariners, Sanctuary radio announcements, 
press releases, press conferences, and with assistance by the U.S. 
Coast Guard and Dry Tortugas National Park staff on the water within 
the area. Since expiration of the temporary rule and pending this 
rulemaking, there has been voluntary compliance with the prohibition. 
However, Sanctuary staff have recently received reports of vessels 50 
meters or greater in registered length returning and anchoring on 
Tortugas Bank. Consequently, significant damage to the living resources 
could result if the rule is delayed for 30 days. Second, 30 days is not 
necessary to give notification to vessels which might anchor in the 
area in the future or for any vessel presently anchored to move to an 
alternative anchoring site. The U.S. Coast Guard will give immediate 
notification to vessels and they then can, in a short period of time, 
move and re-anchor in the recommended location. Additional notice will 
be provided in the manner described above. This rule, therefore, is 
effective on 12:01 am on the second day after the filing of this rule 
at the Office of the Federal Register, to allow adequate time for any 
vessels that are anchored in the prohibited area to relocate.

Executive Order 12866

    The Office of Management and Budget (OMB) has concurred that this 
rule is not significant within the meaning of Section 3(f) of Executive 
Order 12866.

Executive Order 12612: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
sufficient federalism implications sufficient to warrant preparation of 
a federalism assessment under Executive Order 12612.

Regulatory Flexibility Act

    When this rule was proposed, 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 this regulatory action would not have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act. No comments were received on the 
certification. Accordingly, the basis for the certification has not 
changed.

Paperwork Reduction Act

    This rule does not impose an information collection requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
of 1980, 44 U.S.C. 3500 et seq.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Historic 
preservation, Marine resources, Penalties, Recreation and recreation 
areas, Reporting and recordkeeping requirements, Research, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429, Marine Sanctuary 
Program)

    Dated: August 12, 1998.
Nancy Foster,
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--[AMENDED]

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

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

Subpart P--Florida Keys National Marine Sanctuary

    2. Section 922.164 is amended by adding paragraph (g) to read as 
follows:

[[Page 43873]]

Sec. 922.164  Additional activity regulations by Sanctuary area.

* * * * *
    (g) Anchoring on Tortugas Bank. Vessels 50 meters or greater in 
registered length are prohibited from anchoring on the Tortugas Bank. 
The coordinates of the area on the Tortugas Bank, west of the Dry 
Tortugas National Park, closed to anchoring by vessels 50 meters or 
greater in registered length are:

(1) 24 deg. 45.75'N  82 deg. 54.40'W
(2) 24 deg. 45.60'N  82 deg. 54.40'W
(3) 24 deg. 39.70'N  83 deg. 00.05'W
(4) 24 deg. 32.00'N  83 deg. 00.05'W
(5) 24 deg. 37.00'N  83 deg. 06.00'W
(6) 24 deg. 40.00'N  83 deg. 06.00'W

[FR Doc. 98-22014 Filed 8-14-98; 8:45 am]
BILLING CODE 3510-08-M