[Federal Register Volume 74, Number 41 (Wednesday, March 4, 2009)]
[Proposed Rules]
[Pages 9378-9380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4567]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / 
Proposed Rules  

[[Page 9378]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 090122043-9066-01]
RIN 0648-AX37


Gray's Reef National Marine Sanctuary Regulations on the Use of 
Spearfishing Gear

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

ACTION: Proposed rule; notice of public hearing.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing to prohibit the use of spearfishing gear in Gray's Reef 
National Marine Sanctuary. Spearfishing is often used to selectively 
target larger fish, and can significantly reduce abundance and alter 
the relative size structure of target species toward smaller fish. 
Therefore, the proposed prohibition would provide protection to the 
fishes and natural live-bottom community for which the sanctuary was 
designated. The proposal also would facilitate enforcement of an 
existing prohibition against the use of powerheads within the 
sanctuary. A draft environmental assessment has been prepared for this 
proposed action. NOAA is soliciting public comment on the proposed rule 
and draft environmental assessment.

DATES: Comments will be considered if received by May 4, 2009. A Public 
hearing will be held as detailed below: (1) March 19, 2009, 6-9 p.m., 
Stevens Wetlands Education Center, J.F. Gregory Park, Richmond Hill, 
Georgia.

ADDRESSES: You may submit comments by any of the following methods:
     Electronic submission (preferred method): 
www.regulations.gov (search for docket  NOAA-NOS-2009-0002)
     Mail: Gray's Reef National Marine Sanctuary, 10 Ocean 
Science Circle, Savannah, GA 31411, Attn: Dr. George Sedberry, 
Superintendent.
    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: Becky Shortland at (912) 598-2381. 
Copies of the draft environmental assessment and proposed rule can be 
downloaded or viewed on the Internet at http://www.regulations.gov 
(search for docket  NOAA-NOS-2009-0002) or at http://graysreef.noaa.gov. Copies can also be obtained by contacting 
Stewardship Coordinator Becky Shortland, Gray's Reef National Marine 
Sanctuary, 10 Ocean Science Circle, Savannah, Georgia.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Gray's Reef National Marine Sanctuary

    GRNMS was designated as the nation's fourth national marine 
sanctuary in 1981 for the purposes of: Protecting the quality of this 
unique and fragile ecological community; promoting scientific 
understanding of this live bottom ecosystem; and enhancing public 
awareness and wise use of this significant regional resource. GRNMS 
protects 16.68 square nautical miles of open ocean and submerged lands 
of particularly dense and nearshore patches of productive live bottom 
habitat. The sanctuary is influenced by complex ocean currents and 
serves as a mixing zone for temperate (colder water) and sub-tropical 
species. The series of rock ledges and sand expanses has produced a 
complex habitat of caves, burrows, troughs, and overhangs that provide 
a solid base upon which a rich carpet of temperate and tropical marine 
flora and fauna attach and grow.
    This flourishing ecosystem attracts mackerel, grouper, black sea 
bass, angelfish, and a host of other fishes. An estimated 180 species 
of fish, encompassing a wide variety of sizes, forms, and ecological 
roles, have been recorded at GRNMS. Loggerhead sea turtles, a 
threatened species, use GRNMS year-round for foraging and resting, and 
the highly endangered northern right whale is occasionally seen in 
Gray's Reef. GRNMS is one of the most popular sportfishing areas along 
the Georgia coast.

B. Need for Action

    This action is being proposed for two reasons. First, the proposed 
action would provide greater protection to sanctuary resources by 
removing a gear type that selectively targets larger fish, negatively 
altering the size structure of remaining populations. While the number 
of recreational divers spearfishing at GRNMS appears to be small, 
spearfishing is a highly efficient harvesting gear that is often used 
to selectively target larger fish relative to other fishing gears. Such 
fishing can significantly reduce abundance and alter the relative size 
structure of target species toward smaller fish. Some fish populations 
that are present in GRNMS are regionally overfished or approaching 
overfished status and researchers have commented on the lack of large 
snapper-grouper individuals at GRNMS.
    Second, the proposed action would facilitate improved enforcement 
of an existing prohibition against the use of powerheads within the 
sanctuary. Powerheads, also sometimes referred to as bang sticks or 
shark sticks, are a specialized type of firearm intended for use 
underwater, that fire upon direct contact with the target. They are 
often used for spear fishing, or may be used to kill for sport or self 
defense. Under existing sanctuary regulations, it is unlawful to 
injure, catch or harvest any marine resource within the sanctuary, 
except by rod and reel, handline, or ``spearfishing gear without 
powerheads.'' 50 CFR 922.02(a)(5)(i).
    Law enforcement officials have repeatedly expressed the need to 
prohibit all spearfishing to enable them to more effectively enforce 
the existing powerhead prohibition. Although NOAA has prohibited the 
use and possession of powerheads since the

[[Page 9379]]

1981 GRNMS designation, powerhead spear tips and spent shells are still 
found in the GRNMS. Spearguns with a powerhead and without a powerhead 
are similar in appearance, which can raise significant issues in 
proving a violation of the powerhead prohibition.

C. Previous Action on the Use of Spearfishing Gear

    NOAA considered regulating spearfishing during the original 
management plan of 1981, but only spearfishing with powerheads was 
prohibited at the time. A complete spearfishing prohibition was again 
considered during the review and revision of the GRNMS Management Plan 
beginning in 1999. Along with the fact that visitor use (primarily 
recreational fishing; Ehler and Leeworthy 2002) had increased, evidence 
of powerhead use (despite the 1981 ban) created a growing concern. NOAA 
proposed to prohibit all spearfishing activities with the 2003 Draft 
Environmental Impact Statement/Draft Management Plan (DEIS/DMP) and 
associated proposed rule (68 FR 62033, October 31, 2003).
    However, after consideration of public comments on the DEIS/DMP, 
NOAA concluded that additional socioeconomic information was needed and 
thus deferred any regulatory action on spearfishing. The 2006 Final 
EIS/MP instead included a commitment to gather additional socioeconomic 
information on spearfishing in GRNMS and review the issue again in two 
years.
    The additional socioeconomic information was collected, analyzed 
and presented to the Sanctuary Advisory Council in September 2007. That 
information indicates no charter spearfishing activity and only a very 
small amount of private spearfishing activity within the GRNMS. 
Moreover, abundant opportunities to conduct spearfishing in nearby 
locations outside the sanctuary already exist. Copies of this report 
are available in the location mentioned in the FOR FURTHER INFORMATION 
CONTACT section.

D. Interactions With the South Atlantic Fishery Management Council 
(SAFMC)

    Section 304(a)(5) of the NMSA states that:

    The Secretary shall provide the appropriate Regional Fishery 
Management Council with the opportunity to prepare draft regulations 
for fishing within the Exclusive Economic Zone as the Council may 
deem necessary to implement the proposed designation. Draft 
regulations prepared by the Council, or a Council determination that 
regulations are not necessary pursuant to this paragraph, shall be 
accepted and issued as proposed regulations by the Secretary unless 
the Secretary finds that the Council's action fails to fulfill the 
purposes and policies of this chapter and the goals and objectives 
of the proposed designation. In preparing the draft regulations, a 
Regional Fishery Management Council shall use as guidance the 
national standards of section 301(a) of the Magnuson-Stevens Act (16 
U.S.C. 1851) to the extent that the standards are consistent and 
compatible with the goals and objectives of the proposed 
designation. The Secretary shall prepare the fishing regulations, if 
the Council declines to make a determination with respect to the 
need for regulations, makes a determination which is rejected by the 
Secretary, or fails to prepare the draft regulations in a timely 
manner. Any amendments to the fishing regulations shall be drafted, 
approved, and issued in the same manner as the original regulations. 
The Secretary shall also cooperate with other appropriate fishery 
management authorities with rights or responsibilities within a 
proposed sanctuary at the earliest practicable stage in drafting any 
sanctuary fishing regulations.

    In 2003, the SAFMC prepared draft regulations, including a 
prohibition on spearfishing, for the proposed rule associated with the 
GRNMS Draft Environmental Impact Statement/Draft Management Plan (DEIS/
DMP). However, after consideration of public comments on the DEIS/DMP, 
NOAA concluded that additional socioeconomic information was needed and 
thus deferred any regulatory action on spearfishing. The 2006 Final 
EIS/MP instead included a commitment to gather additional socioeconomic 
information on spearfishing in GRNMS and consider proposing a 
prohibition on spearfishing again two years later, with more extensive 
socioeconomic information on the impacts of the proposed rule.
    NOAA presented an update of this issue at the October 2007 meeting 
of the Joint Habitat/Ecosystem Based Management Advisory Panel of the 
SAFMC and again at the December 2007 and March 2008 SAFMC meetings.
    In June 2008, NOAA provided the SAFMC with the opportunity to 
prepare draft sanctuary fishing regulations concerning spearfishing 
activities for GRNMS. The SAFMC concurred with the proposed ban on 
spearfishing, but requested that NOAA prepare the draft regulations.

II. Summary of the Proposed Regulations

    The proposed regulatory action would prohibit the use of all 
spearfishing gear in Gray's Reef National Marine Sanctuary. Existing 
regulations would be amended to eliminate ``spearfishing gear without 
powerheads'' from the list of allowable gear in 15 CFR 922.92(a)(5)(i). 
The proposed action also would prohibit the possession of spearfishing 
gear in GRNMS, except when stowed on board vessels transiting the 
sanctuary.

III. Classification

A. National Environmental Policy Act

    NOAA has prepared a draft environmental assessment to evaluate the 
impacts of the proposed rulemaking. Copies are available at the address 
and Web site listed in the ADDRESSES section of this proposed rule.

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.

D. 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.
    This conclusion is based primarily on recent socioeconomic studies 
and on-site surveys of visitor use conducted by NOAA subsequent to the 
last proposed rulemaking. These studies and surveys revealed the 
following information.
    First, there would be no economic impact upon consumptive 
recreational charter fishing businesses. These are the only small 
businesses known to operate within the sanctuary (businesses of this 
type are considered a ``small'' business if they have annual receipts 
not in excess of $7 million (13 CFR 121.201)). More than 10 such 
fishing businesses are active in the GRNMS. Socioeconomic survey 
results, however, indicate that none of these businesses made 
spearfishing trips to GRNMS in recent years and none plan to in the 
future.
    Second, there would be no economic impact upon recreational charter 
diving businesses, as none currently operate within the sanctuary. In 
September 2007, in-person interviews were conducted with all businesses 
and organizations offering scuba diving trips along the Georgia coast. 
Four charter scuba diving operations and one scuba diving club were 
identified and

[[Page 9380]]

interviewed. The interviews gathered information that included 
operating profiles, preferred diving locations and methods, detailed 
business data (revenue and costs), and general opinions of the current 
state of scuba diving and spearfishing off the Georgia coast. None of 
these businesses offer scuba diving trips to GRNMS.
    Moreover, abundant commercial spearfishing opportunities currently 
exist outside of the sanctuary. Dive charters reported a total of 1,747 
person-days of scuba diving off the Georgia coast in 2007. 
Approximately 55 percent of these person-days were non-consumptive (no 
spearfishing) person-days, 44 percent were consumptive (spearfishing) 
person-days, and the remaining 1 percent was sightseeing/sportfishing.
    Because the impacts of this rule on the recreational charter 
fishing businesses and the recreational charter diving business would 
be minimal or would have no impact, the Chief Counsel for Regulation 
certified to the Chief Counsel for Advocacy at SBA that this rule would 
not have a significant economic impact on a substantial number of small 
entities.

E. Paperwork Reduction Act

    This proposed rule would not require any additional collection of 
information, and therefore no paperwork reduction act action is 
required. 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 OMB Control Number.

IV. Request for Comments

    NOAA requests comments on this proposed rule for 60 days after 
publication of this notice.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fishing gear, 
Marine resources, Natural resources, Penalties, Recreation and 
recreation areas, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)


    Dated: February 26, 2009.
John H. Dunnigan,
Assistant Administrator, National Ocean Service, National Oceanic and 
Atmospheric Administration.
    Accordingly, for the reasons set forth above, NOAA proposes 
amending part 922, title 15 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: 16 U.S.C. 1431 et seq.

    2. Revise paragraphs (a)(5)(i) and (a)(6) of Sec.  922.92 to read 
as follows:


Sec.  922.92  Prohibited or otherwise regulated activities.

    (a) * * *
    (5)(i) Injuring, catching, harvesting, or collecting, or attempting 
to injure, catch, harvest, or collect, any marine organism, or any part 
thereof, living or dead, within the Sanctuary by any means except by 
use of rod and reel, and handline gear.
    (6) Except for possessing fishing gear or means for fishing stowed 
and not available for immediate use while passing through the Sanctuary 
without interruption or for valid law enforcement purposes, possessing, 
carrying, or using within the Sanctuary any fishing gear or means for 
fishing except rod and reel, and handline gear.
* * * * *
[FR Doc. E9-4567 Filed 3-3-09; 8:45 am]
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