[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Proposed Rules]
[Pages 77557-77560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29832]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 0810241396-81397-01]
RIN 0648-AX34


Changes to the Florida Keys National Marine Sanctuary 
Regulations; Technical Corrections and Minor Substantive Changes

AGENCY: Office of National Marine Sanctuaries (ONMS), National Oceanic 
and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION: Proposed rule; request for public comments.

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SUMMARY: NOAA proposes to amend the regulations implementing the 
Florida Keys National Marine Sanctuary to make technical corrections 
and modifications to clarify intent to several areas in the 
regulations. As part of these modifications, NOAA proposes to amend the 
definition of coral to specifically include the common sea fan, 
Gorgonia ventalina and Venus sea fan, Gorgonia flabellum, which are 
both important sanctuary resources and are currently managed under the 
category ``live rock;'' specify that ``touching'' coral is an injury 
and therefore, a prohibited activity in the FKNMS; amend the safe 
distance between vessels and ``divers down'' flags to be 100 yards 
instead of 100 feet; clarify that the prohibitions listed for Sanctuary 
Preservation Areas and Ecological Reserves also apply in Research-only 
Areas; and Correct several citations that are currently out of date.

DATES: Comments on this proposed rule may be made until January 20, 
2009.

ADDRESSES: Comments may be submitted by any of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Submit electronic comments via the Federal e-Rulemaking Portal.
     Mail: David A. Score, Superintendent, Florida Keys 
National Marine Sanctuary, 33 East Quay Road, Key West, FL 33040.
     Instructions: All comments received are a part of the 
public record and will be generally posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information. 
NOAA will accept anonymous comments (enter N/A in the required fields 
if you wish to remain anonymous). Attachments to electronic comments 
will be accepted in Microsoft Word, Excel, Wordperfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: David A. Score, Superintendent, 
Florida Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL 
33040.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This Federal Register document is also accessible via the Internet 
at http://www.access.gpo.gov/su-docs/aces/aces_1_40.html.

I. Background

    In recognition of its important ecological role as a rich and 
unique marine environment with seagrass meadows, mangrove islands, and 
extensive living coral reefs, Congress designated the Florida Keys 
National Marine Sanctuary (FKINMS or Sanctuary) in 1990 (Pub. L. 101-
605). Through this designation, Congress directed NOAA and the State of 
Florida to jointly develop a comprehensive program to reduce the risk 
of damage to these living marine resources, reduce the pollution in the 
waters of the Florida Keys, and to protect and restore the water 
quality, coral reefs, and other living marine resources of the Florida 
Keys. As such, NOAA and the State of Florida worked together to create 
the management plan for the FKNMS. The FKNMS regulations implementing 
the designation were published on June 12, 1997 (62 FR 32154) and 
became effective on July 1, 1997.
    In the 18 years since designation, several regulatory issues have 
arisen that were not clearly addressed when the FKNMS regulations were 
adopted. In addition, there have been several changes to the Florida 
state laws during the same period and several technical errors 
identified in the current FKNMS regulations. NOAA is thus proposing to 
update the FKNMS regulations to make technical corrections, minor 
substantive clarifications, and codification of existing regulatory 
interpretation to address these issues and provide consistency with 
state law.

[[Page 77558]]

II. Summary of the Proposed Revisions

A. Changes to Section 922.162 and Section 922.163, Modification of 
Existing Regulations on Corals and Prohibited Activities

1. Definition of Coral (Sec.  922.162(a))
    The FKNMS regulations to protect corals and live rock include a 
list of activities that are prohibited, and include a definition of 
``coral'' and ``live rock'' to which these protections extend. NOAA is 
concerned that the common sea fan, Gorgonia ventalina, and Venus sea 
fan, Gorgoniaflabellum, are not currently listed as coral species in 
the definition of coral. Although these species of Gorgonia are 
actually coral, to date, they have been managed under the category of 
live rock because live rock, defined as any living marine organism or 
an assemblage thereof attached to a hard substrate, including dead 
coral or rock, is not limited to identified species. NOAA proposes to 
make a provision to explicitly include Gorgonia ventalina and 
Gorgoniafiabellum in the list of protected corals in the FKNIMS 
regulations and to make the list of corals non-exclusive in case 
additional coral species are identified in the future.
    In addition, the subclass for black corals was incorrectly listed 
in the original regulations as Hexacorallia. The correct subclass 
designation is Ceriantipatharia. The definition of coral would be 
corrected to identify black corals as part of the subclass 
Ceriantipatharia.
2. Touching Coral (Sec.  922.163(a)(2))
    The act of touching coral or live rock is an injury to the resource 
and has been historically interpreted as such by the FKNMS staff, 
charter dive and snorkeling operations, and enforcement personnel. When 
corals are touched or handled, the organisms are injured, and could 
suffer mortality. However, touching is not specifically listed in the 
injury prohibition in the FKNMS regulations. NOAA proposes to clarify 
and codify the interpretation of injury to coral and live rock by 
adding ``touching'' to the list of prohibited activities in the FKNMS. 
NOAA believes that by clarifying that touching coral and live rock 
causes injury aids in sanctuary education and outreach efforts to 
inform the public that this activity is harmful to the coral, and will 
help public compliance with the prohibition.

B. Other Proposed Modifications and Technical Corrections to Section 
922.163

1. Permit Live Rock Aquaculture (Sec.  922.163(a)(2)(i))
    Section 922.1 63(a)(2)(i) currently cites 50 CFR part 638 for 
authority to permit certain types of live rock aquaculture under the 
Magnuson-Stevens Act (MSA). However, that part of the CFR no longer 
exists. The authority to permit certain types of live rock aquaculture 
under the MSA is now located at 50 CFR part 622. Therefore, we propose 
to make a correction to our regulatory citations to reflect this 
change.
2. Dive Areas (Sec.  922.163(a)(5)(iii)(C))
    NOAA regulations regarding dive area restrictions are inconsistent 
with regulations that both the State of Florida (Chapter 27 of the 2003 
Florida Statutes: 327.331 Divers; definitions; divers-down flag 
required; obstruction to navigation of certain waters; penalty) and the 
U.S. Coast Guard (USCG: Rule 27e--Vessel Engaged in Diving Operations) 
use to specify the safe distance between vessels and ``divers down'' 
flags. The State of Florida and the USCG regulations both indicate that 
the safe distance between vessels and ``divers down'' flags is 100 
yards. In contrast, the FKNMS regulations currently indicate that the 
safe distance between vessels and ``divers down'' flags is 100 feet. In 
order to be consistent with the regulations issued by the State of 
Florida and the USCG, we propose to change our regulations from ``100 
feet'' in 922.163(a)(5)(iii)(C) to ``100 yards.'' Improved consistency 
allows for better public education and compliance. The change to 
regulations improves safety and reduces conflict between divers and 
vessel operations.
3. Marine Life Rule (Sec.  922.163(a)(12))
    NOAA proposes a few technical corrections related to Florida's 
Marine Life Rule (MLR). NOAA proposes to edit the language at Sec.  
922.163(a)(12) to update Florida Marine Life Rule citation as 68B-42, 
F.A.C. NOAA also proposes to delete Appendix VIII to Subpart P of Part 
922 to eliminate the excerpts of the MLR from the FKNMS regulations and 
simply reference the MLR citation in the regulation.
4. Updating CFR References (Sec.  922.163)
    Sections 922.163(c) and 922.168 are no longer applicable because 
persons conducting any pre-existing otherwise prohibited activities 
pursuant to a valid authorization in the Sanctuary area were given 90 
days from the designation of the Sanctuary (July 1, 1997) to notify the 
Director and request certification of the activity. Therefore, these 
provisions are no longer needed because the certification period 
expired over ten years ago. Therefore, NOAA proposes to delete these 
sections from the FKNMS regulations, and to renumber the remaining 
sections accordingly. Because section 922.168 is referenced in other 
sections of the FKNMS regulations, we also propose to delete the 
references to that section. Finally, NOAA proposes to amend the 
language to the newly redesignated section 922.163(c) to reflect the 
appropriate citation for authorization of current activities which is 
Sec.  922.49.

C. Special-Use (Research-Only) Areas (Sec.  922.1 64(e)(1))

    Research-only areas are a type of Special-use Area defined in the 
FKNMS regulations at Sec.  922.1 64(e)(1)(iii). Except for passage 
without interruption or for law enforcement purposes, access to 
research-only areas is restricted to scientific research or educational 
use specifically authorized by and conducted in accordance with the 
scope, purpose, terms and conditions of a sanctuary permit. In 
addition, even if access is allowed by permit, only the activities 
described in the permit may be conducted because all other activities 
within the research-only area are prohibited. However, the prohibition 
against conducting activities in research-only areas is not stated 
clearly in the FKNMS regulations and, therefore, NOAA proposes to amend 
Sec.  922.164(d) and add a new paragraph (e)(5) to the section to 
specify that the prohibited activities listed for Sanctuary 
Preservation Areas (SPAs) and Ecological Reserves (ERs) as listed at 
Sec.  922.164(d) also apply in Research-only Areas. This change would 
provide better notice to the public and to permittees who receive 
access to conduct activities in Research-only Areas, and would 
facilitate voluntary compliance as well as enforcement of sanctuary 
regulations.

III. Classification

A. National Environmental Policy Act

    The technical corrections and minor substantive changes to the 
FKNMS regulations do not have significant environmental impacts and are 
categorically excluded for the need to prepare an environmental 
assessment pursuant to the National Environmental Policy Act (NAO 2 16-
6 Section 6.03c.3(i)).

[[Page 77559]]

B. Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant within 
the meaning of Executive Order 12866.

C. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 13132. The State of Florida was 
consulted during the promulgation of this rule.

D. Paperwork Reduction Act

    This rule does not contain any new or revisions to the existing 
information collection requirement that was approved by 0MB (0MB 
Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501 et seq.
    Notwithstanding any other provision 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 PRA, unless that collection of information displays 
a currently valid 0MB Control Number.

E. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities.
    The factual basis for this certification is as follows:
     Making the technical corrections to correct citations and 
obsolete sections of the regulations as proposed by this rule would not 
substantively change the effect or impact from the current regulations;
     Amending the definition of coral to specifically include 
the common sea fan and Venus sea fan also do not impact small entities 
because these species are already currently managed as sanctuary 
resources under the category ``live rock;''
     Clarifying and codifying that ``touching'' coral is an 
injury and therefore, a prohibited activity in the FKNMS does not 
change the practices of small business operators, such as dive or 
snorkel charter boats, because they already interpret the regulation as 
such and currently inform tourists that touching coral or live rock 
while diving or snorkeling injures the organisms;
     Amending the safe distance between vessels and ``divers 
down'' flags to be 100 yards instead of 100 feet provides consistency 
with regulations already in place by the U.S. Coast Guard and the State 
of Florida and will therefore not change the current operations of 
small business operators; and
     Specifying that the prohibitions listed for Sanctuary 
Preservation Areas and Ecological Reserves also apply in Research-only 
Areas also does not affect small businesses because entering Research-
only Areas is already prohibited unless a permit is obtained from the 
Sanctuary. The amendment is intended to clarify and promote enforcement 
of specific activity violations.

IV. Request for Comments

    NOAA requests comments on this proposed rule to make technical 
corrections and amendments to the FKNMS regulations.

    Dated: December 11, 2008.
John H. Dunnigan,
Assistant Administrator for Ocean Services and Coastal Zone Management.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fish, 
Fisheries, Historic preservation, Intergovernmental relations, Marine 
resources, Monuments and memorials, Natural resources, Wildlife, 
Wildlife refuges, Wildlife management areas, Sanctuary preservation 
areas, Ecological reserves, Areas to be avoided, State of Florida, U.S. 
Coast Guard.

    For the reasons above, the National Oceanic and Atmospheric 
Administration proposes to amend title 15, part 922 of the Code of 
Federal Regulations as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

    Authority: 15 U.S.C. 1431 et seq.

    2. Amend Sec.  922.162(a) by revising the definition for ``Coral'' 
to read as follows:


Sec.  922.162  Definitions.

    (a) * * *
    Coral means but is not limited to the corals of the Class Hydrozoa 
(stinging and hydrocorals); Class Anthozoa, Subclass Hexacorallia, 
Order Scieractinia (stony corals); Class Anthozoa, Subclass 
Ceriantipatharia, Order Antipatharia (black corals); and Class 
Anthozoa, Subclass Ocotocorallia, Order Gorgonacea, species Gorgonia 
ventalina and Gorgonia flabellum (sea fans).
* * * * *
    3. In Sec.  922.163 revise paragraphs (a)(2)(i), (a)(5)(iii)(C), 
and (a)(12), remove paragraph (c), redesignate paragraphs (d) through 
(h) as (c) through (g), and revise the newly redesignated paragraph (c) 
to read as follows:


Sec.  922.163  Prohibited activities--Sanctuary-wide.

    (a) * * *
    (2) * * *
    (i) Moving, removing, taking, harvesting, damaging, disturbing, 
touching, 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 622.
* * * * *
    (5) * * *
    (iii) * * *
    (C) Within 100 yards of the red and white ``divers down'' flag (or 
the blue and white ``alpha'' flag in Federal waters);
* * * * *
    (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 68B-42 of the Florida 
Administrative Code, and such rules shall apply mutatis mutandis (with 
necessary editorial changes) to all Federal and State waters within the 
Sanctuary.
* * * * *
    (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 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.  922.49, 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.
* * * * *
    4. In Sec.  922.164, revise paragraph (d)(l) and add paragraph 
(e)(5) to read as follows:

[[Page 77560]]

Sec.  922.164  Additional activity regulations by Sanctuary area.

* * * * *
    (d) Ecological Reserves, Sanctuary Preservation Areas, and Special 
Use (Research only) Areas. (1) The following activities are prohibited 
within the Ecological Reserves described in Appendix IV to this 
subpart, within the Sanctuary Preservation Areas described in Appendix 
V to this subpart, and within the Special Use (Research only Areas) 
described in Appendix VI to this subpart:
* * * * *
    (e) * * * (5) In addition to paragraph (e)(3) of this section no 
person shall conduct activities listed in paragraph (d) of this section 
in ``Research-only Areas.''
* * * * *


Sec.  922.168  [Removed and reserved]

    5. Remove and reserve Sec.  922.168.

Appendix VIII to Subpart P of Part 922 [Removed]

    6. Remove Appendix VIII to Subpart P of Part 922--Marine Life Rule 
[As Excerpted from Chapter 46-42 of the Florida Administrative Code].

 [FR Doc. E8-29832 Filed 12-18-08; 8:45 am]
BILLING CODE 3510-NK-M