[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Rules and Regulations]
[Pages 63824-63833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26633]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 070726412-1300-02]
RIN 0648-AV88


Research Area Within Gray's Reef National Marine Sanctuary

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

ACTION: Final rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
creating a research area within Gray's Reef National Marine Sanctuary 
(GRNMS, or sanctuary). A research area is a region specifically 
designed for conducting controlled scientific studies in the absence of 
certain human activities that could affect the results. NOAA is 
prohibiting fishing, diving, and stopping a vessel in the research 
area.

DATES: Effective Date: Pursuant to section 304(b) of the National 
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised 
designation and regulations shall take effect and become final after 
the close of a review period of forty-five days of continuous session 
of Congress beginning on October 14, 2011. Announcement of the 
effective date of the final regulations will be published in the 
Federal Register.

ADDRESSES: Copies of the final environmental impact statement (FEIS) 
described in this rule and the record of decision (ROD) are available 
upon request to Gray's Reef National Marine Sanctuary, 10 Ocean Science 
Circle, Savannah, GA 31411, Attn: Dr. George Sedberry, Superintendent. 
The FEIS can also be viewed on the Web and downloaded at http://graysreef.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Resource Protection Coordinator Becky 
Shortland at (912) 598-2381.

SUPPLEMENTARY INFORMATION: On September 14, 2010, NOAA published a 
proposed rule to establish a research area within Gray's Reef National 
Marine Sanctuary and announced the availability of a draft 
environmental impact statement (DEIS) (75 FR 55692). This final rule 
establishes the research area; prohibits fishing, diving, and stopping 
a vessel in the research area; publishes the revised designation

[[Page 63825]]

document for the sanctuary; responds to comments that were received 
regarding the proposed rule and DEIS; and announces the availability of 
the final environmental impact statement and record of decision.

I. Background

A. Gray's Reef National Marine Sanctuary

    NOAA designated GRNMS 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 is 
located 17.5 miles offshore of Sapelo Island, Georgia, on an area of 
continental shelf stretching from Cape Hatteras, North Carolina, to 
Cape Canaveral, Florida (referred to as the South Atlantic Bight). 
GRNMS protects 22 square miles of open ocean and submerged lands of 
particularly dense nearshore patches of productive ``live bottom 
habitat''. ``Live bottom'' is a term used to refer to hard or rocky 
seafloor that typically supports high numbers of large invertebrates 
such as sponges, corals and sea squirts. These spineless creatures 
thrive in rocky areas, as many are able to attach themselves more 
firmly to the hard substrate, as compared to sandy or muddy ``soft'' 
bottom habitats. Within the Gray's Reef National Marine Sanctuary there 
are rocky ledges with sponge and coral live bottom communities, as well 
as sandy bottom areas that are more typical of the seafloor off the 
southeastern U.S. coast. The sanctuary is influenced by complex ocean 
currents and serves as a mixing zone for temperate (colder water) and 
sub-tropical species. An estimated 200 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 North 
Atlantic right whale is occasionally seen in Gray's Reef.
    The sanctuary contains one of the largest nearshore live-bottom 
reefs in the southeastern United States. Within the sanctuary, rock 
outcroppings stand above the shifting sands. The series of rock ledges 
and sand expanses has produced a complex habitat of burrows, troughs, 
and overhangs that provide a solid base for the abundant sessile 
invertebrates to attach and grow. This topography supports an unusual 
assemblage of temperate and tropical marine flora and fauna. This 
flourishing ecosystem attracts numerous species of benthic and pelagic 
fish including mackerel, grouper, red snapper, black sea bass, 
angelfish, and a host of other fishes. Since GRNMS lies in a transition 
area between temperate and tropical waters, the composition of reef 
fish populations changes seasonally.

B. Purpose and Need for Research Area

    In 2008, NOAA released the GRNMS Condition Report, a report on the 
condition of GRNMS providing a summary of the status of resources, 
pressures on those resources, current conditions and trends, and 
management responses to the pressures that threaten the integrity of 
the marine environment. Specifically, the document includes information 
on water quality, habitat, living resources, and maritime 
archaeological resources and the human activities that affect them. 
Overall, the resources protected by GRNMS appear to be in fair 
condition, as defined in the 2008 GRNMS condition report. Emerging 
threats to the sanctuary include invasive species, contamination of 
organisms by waterborne chemicals from human coastal activities, 
climate change and ever-increasing coastal populations and recreational 
use of the sanctuary. For a copy of the 2008 GRNMS condition report, 
please visit http://sanctuaries.noaa.gov/science/condition/grnms/welcome.html.
    NOAA's regulations for the sanctuary limit fishing gear in the 
sanctuary to rod and reel (which are used by the vast majority of users 
in the sanctuary), and handline. Despite these gear restrictions, 
fishing continues to impact the living marine resources and habitat of 
the sanctuary. Recreational fishing is the primary fishing activity and 
occurs throughout the sanctuary but tends to be concentrated in certain 
areas.
    Because fishing is allowed throughout the sanctuary, NOAA has 
limited options for gaining better management information on the 
effects it has on fish and invertebrate populations and their habitats. 
A research area will allow investigations to evaluate possible impacts 
from fishing--particularly bottom fishing--on the sanctuary's natural 
resources by providing a zone free of human activities and impacts to 
habitats or populations that result from those activities. The research 
area will also allow researchers to more accurately determine the 
effects of natural events (e.g., hurricanes) and cycles (e.g., 
droughts) on the sanctuary. The research area could also serve as an 
important sentinel site to monitor and study impacts of climate change, 
such as ocean acidification, which can be better determined in the 
absence of additional human factors such as fishing. Sentinel sites are 
areas well-suited to ensure sustained observations of environmental 
change, to track indicators of ecosystem integrity, and to provide 
early warning services. Currently, the effects of subtle natural 
variability may be masked by the sometimes overwhelming effect of 
fishing. The ability to conduct these investigations in a marine 
environment relatively free of direct human influences is critical to 
meet the resource protection and scientific research mandates of GRNMS.
    The National Marine Sanctuaries Act (NMSA) provides NOAA the 
authority for comprehensive and coordinated conservation and management 
of natural resources of a sanctuary. To achieve this, GRNMS requires a 
research (control) area where human impacts are limited. There are 
currently no natural live bottom areas in the South Atlantic Bight that 
have been set aside for scientific use. Because GRNMS is relatively 
shallow, it affords the opportunity to conduct experiments and make 
observations using SCUBA in a productive reef habitat that is 
relatively close to shore. The proximity of the sanctuary to coastal 
universities and marine research laboratories makes GRNMS a logical 
natural area that can be used to further the understanding and 
management of these complex ecosystems. There is scientific agreement 
that without having an area of naturally occurring live bottom devoted 
to research, it becomes very difficult to understand: (a) How these 
reefs function in the life history of many economically valuable 
species, and (b) the effects of extractive uses on ecosystem 
productivity. NOAA believes the action provides a balance between user 
concerns and the research opportunities that are emphasized in the 
sanctuary's goals and objectives.

C. Research Area Background

    The concept of a research (control) area within the sanctuary has 
been under discussion for many years. The idea was first raised by 
members of the public in 1999 during the early stages of the GRNMS 
management plan review process at public scoping meetings. The GRNMS 
Sanctuary Advisory Council (SAC) set a target to increase the 
opportunity to distinguish, scientifically, between natural and human-
induced change to species populations in the sanctuary (NMSP 2006). As 
a means to reach this target, the SAC formed a broad-based Research 
Area Working Group (RAWG) to consider the concept of a research area 
within the sanctuary.

[[Page 63826]]

    The RAWG consisted of representatives from research, academia, 
conservation groups, sport fishing and diving interests, education, 
commercial fishing, law enforcement and state and federal agency 
representatives. The RAWG employed a consensus-driven, constituent-
based process. A Geographic Information System (GIS) tool was also 
developed by NOAA to analyze options RAWG members brought forward; this 
tool is described in more detail in the environmental impact statement 
supporting this action.
    The principal conclusion of the RAWG, which was ultimately adopted 
by the SAC, was that significant research questions exist at GRNMS that 
can only be addressed by establishing a research (control) area. The 
final SAC recommendations to NOAA, presented in 2008, also included the 
unanimous recommendation that all fishing be prohibited in the research 
area.
    In the decision to recommend prohibition of all fishing in the 
research area, the RAWG took into consideration new information on the 
growing knowledge of the linkages between benthic and pelagic natural 
communities. The RAWG also considered methods used by sport fishermen 
to fish both coastal pelagic and bottom fish (reef) species at the same 
time. In addition, downriggers and planers, types of fishing gear that 
are currently permitted in the sanctuary, allow anglers to fish the 
entire water column, including near the bottom. These gear types can 
impact benthic communities and allow catch of bottom fish, a primary 
marine resource to be studied in the research area. Therefore, allowing 
any fishing including trolling for pelagic fish species could 
significantly compromise the integrity and effectiveness of a research 
area.
    Law enforcement officials expressed concern that the enforcement of 
prohibitions on fishing will be more difficult if diving or stationary 
vessels were allowed to continue in the research area, due to the 
difficulty of determining the activities of a boat's occupants from a 
distance or as officers approach a boat. The SAC also observed that any 
recreational diving activity in the research area would make law 
enforcement difficult and could undermine the validity of the research 
area.
    From 2004-2008, the RAWG and SAC also continued to evaluate 
criteria and boundaries utilizing the GIS tool and incorporating new 
information as it became available. Ultimately, four boundary scenarios 
were recommended as viable locations for a research area in GRNMS. 
These boundary scenarios and several activity restrictions became the 
focus of public scoping during March and April 2008. After 
consideration of public comments and deliberations by the RAWG, the 
sanctuary superintendent received final recommendations from the SAC in 
January 2009. The action presented in this final rule is the direct 
result of the RAWG's recommendations that were adopted by the SAC and 
provided to the GRNMS superintendent, comments received during the 
spring 2008 public scoping, and public review of the proposal in a 
proposed rulemaking and draft EIS. Several alternatives to the action 
are analyzed in the accompanying final environmental impact statement 
(FEIS).

D. South Atlantic Fishery Management Council

    Pursuant to section 304(a)(5) of the National Marine Sanctuaries 
Act (16 U.S.C. 1434(a)(5); NMSA), NOAA provided the South Atlantic 
Fishery Management Council (SAFMC or Council) with the opportunity to 
develop fishing regulations to implement the goals of the research 
area.
    On March 4, 2009, the SAFMC passed a motion to: ``Defer to Gray's 
Reef NMS for rule-making in terms of the establishment of the Research 
Area.'' On April 22, 2009, the Council's decision was formally 
communicated to the GRNMS Superintendent.

II. Revisions to GRNMS Terms of Designation

    Section 304(a)(4) of the NMSA requires that the terms of 
designation include the geographic area included within the Sanctuary; 
the characteristics of the area that give it conservation, 
recreational, ecological, historical, research, educational, or 
aesthetic value; and the types of activities subject to regulation by 
the Secretary to protect these characteristics. Section 304(a)(4) also 
specifies that the terms of designation may be modified by the same 
procedures by which the original designation was made. To implement 
this action, NOAA is modifying the GRNMS terms of designation, which 
were most recently published in the Federal Register on October 12, 
2006 (74 FR 60055), to read as follows (new text in bold and deleted 
text in brackets and italics):
    1. No change to Article 1, Designation and Effect.
    2. No change to Article 2, Description of the Area.
    3. No change to Article 3, Characteristics of the Area.
    4. Article 4, Scope of Regulation, Section 1, Activities Subject to 
Regulation, is amended by:
    a. Modifying the 4th bullet of Section 1 to read as follows: 
``Injuring, catching, harvesting, or collecting any marine organism or 
any part thereof, living or dead, or attempting any of these 
activities; [, by any means except by use of rod and reel, and handline 
gear;]''
    b. Modifying the 6th bullet of Section 1 as follows: ``Using 
explosives, or devices that produce electric charges underwater; 
[and]''
    c. Modifying the 7th bullet of Section 1 as follows: ``Moving, 
removing, injuring, or possessing a historical resource, or attempting 
to move, remove, injure, or possess a historical resource[.]; and''
    d. Adding the following at the end of Section 1: ``8. Diving.''
    5. No Change to Article 5, Relation to Other Regulatory Programs
    6. No change to Article 6, Alteration of This Designation

The revised terms of designation will read as follows upon 
effectiveness of this rule:

Revised Designation Document for the Gray's Reef National Marine 
Sanctuary

Preamble
    Under the Authority of Title III of the Marine Protection, Research 
and Sanctuaries Act of 1972, as amended, (the Act), the waters and the 
submerged lands thereunder at Gray's Reef in the South Atlantic Bight 
off the coast of Georgia are hereby designated a National Marine 
Sanctuary for the purposes of: (1) Protecting the quality of this 
unique and fragile ecological community; (2) promoting scientific 
understanding of this live bottom ecosystem; and (3) enhancing public 
awareness and wise use of this significant regional resource.
Article 1. Designation and Effect
    The Gray's Reef National Marine Sanctuary was designated on January 
16, 1981 (46 FR 7942). The Act authorizes the Secretary of Commerce to 
issue such regulations as are necessary to implement the designation, 
including managing and protecting the conservation, recreational, 
ecological, historical, cultural, archaeological, scientific, 
educational or aesthetic resources and qualities of a national marine 
sanctuary. Section 1 of Article 4 of this Designation Document lists 
activities of the type that are presently being regulated or may need 
to be regulated in the future, in order to protect sanctuary resources 
and qualities. Listing in Section 1 does not

[[Page 63827]]

mean a type of activity is currently regulated or would be regulated in 
the future. If a type of activity is not listed, however, it may not be 
regulated except on an emergency basis, unless section 1 is amended to 
include the type of activity following the same procedures by which the 
original designation was made. Nothing in this Designation Document is 
intended to restrict activities that do not cause an adverse effect on 
the resources or qualities of the sanctuary or on sanctuary property or 
that do not pose a threat of harm to users of the sanctuary.
Article 2. Description of the Area
    The sanctuary consists of an area of ocean waters and the submerged 
lands thereunder located 17.5 miles due east of Sapelo Island, Georgia. 
The exact coordinates are defined by regulation (15 CFR 922.90).
Article 3. Characteristics of the Area
    The sanctuary consists of submerged calcareous sandstone rock reefs 
with contiguous shallow-buried hard layer and soft sedimentary regime 
which supports rich and diverse marine plants, invertebrates, finfish, 
turtles, and occasional marine mammals in an otherwise sparsely 
populated expanse of ocean seabed. The area attracts multiple human 
uses, including recreational fishing and diving, scientific research, 
and educational activities.
Article 4. Scope of Regulation
    Section 1. Activities Subject to Regulation
    The following activities are subject to regulation under the NMSA. 
Such regulation may include prohibitions to ensure the protection and 
management of the conservation, recreational, ecological, historical, 
scientific, educational, cultural, archaeological or aesthetic 
resources and qualities of the area. Because an activity is listed here 
does not mean that such activity is being or would be regulated. If an 
activity is listed, however, the activity can be regulated, after 
compliance with all applicable regulatory laws, without going through 
the designation procedures required by paragraphs (a) and (b) of 
section 304 of the NMSA (16 U.S.C. 1434(a) and (b)).
    1. Dredging, drilling into, or otherwise altering the submerged 
lands of the sanctuary;
    2. Within the boundary of the sanctuary, discharging or depositing 
any material or other matter or constructing, placing, or abandoning 
any structure, material or other matter; or discharging or depositing 
any material or other matter outside the boundary of the sanctuary that 
subsequently enters the sanctuary and injures a sanctuary resource or 
quality;
    3. Vessel operations, including anchoring;
    4. Injuring, catching, harvesting, or collecting any marine 
organism or any part thereof, living or dead, or attempting any of 
these activities;
    5. Possessing fishing gear that is not allowed to be used in the 
sanctuary;
    6. Using explosives, or devices that produce electric charges 
underwater;
    7. Moving, removing, injuring, or possessing a historical resource, 
or attempting to move, remove, injure, or possess a historical 
resource; and
    8. Diving.
    Section 2. Emergency Regulation
    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a sanctuary resource or quality; or to minimize the 
imminent risk of such destruction, loss or injury, any activity, 
including any not listed in Section 1 of this Article, is subject to 
immediate temporary regulation, including prohibition.
Article 5. Relation to Other Regulatory Programs
    Section 1. Defense Activities
    The regulation of activities listed in Article 4 shall not prohibit 
any Department of Defense activity that is essential for national 
defense or because of emergency. Such activities shall be consistent 
with the regulations to the maximum extent practical.
    Section 2. Other Programs
    All applicable regulatory programs will remain in effect, and all 
permits, licenses and other authorizations issued pursuant thereto 
shall be valid within the sanctuary unless authorizing any activity 
prohibited by a regulation implementing Article 4.
Article 6. Alteration of This Designation
    The terms of designation, as defined under section 304(a) of the 
Act, may be modified only by the procedures outlined in paragraphs (a) 
and (b) of section 304 of the Act including public hearings, 
consultation with interested Federal, State, and local government 
agencies, and the South Atlantic Fishery Management Council, review by 
the appropriate congressional committees, and approval by the Secretary 
of Commerce or designee.

[End of designation document]

III. Summary of Revisions to the Sanctuary Regulations

A. Establishment of a Research Area

    This rule establishes a research area within the GRNMS that 
prohibits fishing, diving, and stopping a vessel within the area. 
Please refer to the GRNMS Web site and the final environmental impact 
statement supporting this rulemaking for more information and a map 
depicting the location of the research area within the GRNMS. This area 
is referred to as the Southern Option Boundary in the FEIS. The 
research area, which occupies the southern portion of the GRNMS, is 
wholly within the boundary of the sanctuary and does not change its 
overall size. The total area designated as a research area inside GRNMS 
is 8.27 square miles (see the Appendix for coordinates).
    According to boat sighting data from 1999-2007, only 9.2 percent of 
boats sighted in the sanctuary visited or transited the area of the 
research area, leading to the conclusion that this area is not as 
popular with sport fishermen and sport divers as the north-central 
portion of the sanctuary. NOAA believes the action provides a balance 
between user concerns and the research opportunities that are 
emphasized in the sanctuary's goals and objectives. The amendments to 
the regulations for GRNMS are described at the end of this notice.

B. Activities Prohibited Within the Research Area

    The following prohibitions are in addition to the existing 
prohibitions set out in 922.92, which apply throughout the Sanctuary. 
In the research area, the following activities are prohibited and thus 
unlawful for any person to conduct or cause to be conducted: Injuring, 
catching, harvesting, or collecting, or attempting to injure, catch, 
harvest, or collect, any marine organism, or any part thereof, living 
or dead (there will be a rebuttable presumption that any marine 
organism or part thereof, living or dead, found in the possession of a 
person within the research area has been collected from the research 
area); possessing, carrying, or using any fishing gear or means for 
fishing unless such gear or means is stowed and not available for 
immediate use while on board a vessel transiting through the research 
area without interruption or for valid law enforcement purposes; 
diving; or stopping a vessel in the research area.

C. Enforcement

    The regulations are enforced by NOAA and other authorized agencies 
(i.e., United States Coast Guard, and Georgia Department of Natural 
Resources) in a coordinated and comprehensive way. Enforcement actions 
for a violation will be prosecuted under the appropriate

[[Page 63828]]

statutes or regulations governing that violation. The prohibition 
against catching or harvesting marine organisms includes a rebuttable 
presumption that any marine organism or part thereof found in the 
possession of a person within the research area has been collected from 
the research area.

D. Permitting

    A research area in the southern portion of the sanctuary provides 
researchers a valuable opportunity to discern between human-induced and 
natural changes in the Gray's Reef area. Researchers are required to 
obtain permits to conduct activities related to research that are 
otherwise prohibited by the regulations. The ONMS regulations, 
including the regulations for the GRNMS, allow NOAA to issue permits to 
conduct activities that are otherwise prohibited by the regulations (15 
CFR part 922 and 922.93). Most permits are issued by the Superintendent 
of the GRNMS. Requirements for filing permit applications are specified 
in ONMS regulations and the Office of Management and Budget-approved 
application guidelines (OMB control number 0648-0141). Criteria for 
reviewing permit applications are also contained in the ONMS 
regulations at 15 CFR 922.93. In general, permits may be issued for 
activities related to scientific research, education, and management.

IV. Responses to Public Comments

    During the public comment period, eight (8) written comments were 
received through the electronic rulemaking portal http://www.regulations.gov. Three (3) public hearings were also held to 
receive comment, but no members of the public attended. The written 
comments were compiled and grouped by general topics. Substantive 
comments are summarized below, followed by NOAA's response. Similar 
comments have been treated as one comment for purposes of response 
resulting in 15 different comments with responses.
    Comment 1: Several commenters expressed support for the 
establishment of a research area in GRNMS.
    Response: Comment noted.
    Comment 2: The Southern Option Boundary represents minimal impact 
to members of the general public who wish to visit and use the 
sanctuary.
    Response: NOAA agrees that the preferred alternative Southern 
Option Boundary would result in minimal impact to visitors. In 
addition, all bottom types are included in the Southern Option Boundary 
and there would be more than adequate ledge and other habitat types 
outside the boundary for necessary comparisons and to provide areas for 
activities such as recreational fishing and diving. In fact, the areas 
outside of the Southern Option Boundary appear to be the preferred 
fishing and diving locations for users.
    Comment 3: The Optimal Scientific Option Boundary would be a better 
boundary choice for the research area because it includes the existing 
long-term monitoring site and data buoy. If the existing monitoring 
equipment were included within the boundaries, valuable scientific 
analysis could occur immediately without costly delays. If the long-
term monitoring site and data buoy cannot be included, discussion of an 
alternate form of monitoring and data collection should be provided in 
the FEIS.
    Response: NOAA agrees that the Optimal Scientific Option Boundary 
would offer multiple benefits toward realizing the purpose of a 
research area as this boundary was designed based solely on scientific 
research considerations. Although inclusion of the long-term monitoring 
site and the data buoy was initially preferred inside the boundary of a 
research area due to the available data sets for both, further 
consideration by the RAWG and Advisory Council resulted in a different 
conclusion. Maintaining the status quo of the long-term monitoring site 
(outside the research area) allows continuation of the baseline of 
conditions, avoiding the need to establish a new monitoring station 
outside of the research area. Further, because the data buoy collects 
oceanographic variables that are basically uniform at the scale of the 
whole sanctuary, the buoy does not need to be inside the research area. 
NOAA agrees with that conclusion. In addition, the Optimal Scientific 
Option Boundary does not satisfy NOAA's selection criteria to minimize 
user displacement; it would have the highest level of displacement (67 
percent). The Optimal Scientific Option Boundary also creates open 
areas of the sanctuary on all sides resulting in compliance and 
enforcement complications. Pending proper funding of planned activities 
in the research area, it might be possible to replicate a portion of 
the oceanographic data which is being collected presently with the data 
buoy in the northern portion of the sanctuary. The research area 
management plan, found in the FEIS associated with this action, 
describes protocols for monitoring and research.
    Comment 4: In choosing the Southern Option Boundary, NOAA has 
overestimated the socioeconomic costs and underestimated the numerous 
benefits of the Optimal Scientific Option Boundary that includes the 
long-term monitoring site and data buoy. Socioeconomic impacts to the 
sanctuary should be analyzed within the broader scope of fishing 
expenditures in Georgia as a whole. For instance, 2006 saltwater 
fishing expenditures in Georgia totaled $119,250,000; therefore, the 
Optimal Scientific Option Boundary would impact only 0.86% of Georgia 
fishing expenditures compared to 0.13% for the Southern Option 
Boundary.
    Response: NOAA agrees that from the perspective of total fishing 
expenditures in Georgia, the potential economic loss from fishing 
displacement is quite small. NOAA, however, considered the population 
of users most affected by this action, and thus, analyzed the 
environmental (economic) consequences using GRNMS fishing expenditures 
instead of Georgia-wide fishing expenditures. See response to comment 
3 above.
    Comment 5: I support the Optimal Scientific Option Boundary. 
Studies have shown that restoration of fish populations in ``no take'' 
areas actually leads to increased fish catches outside of the protected 
area due to ``spillover'' effects. This effect could generate positive 
economic impacts in Georgia that would mitigate losses due to user 
displacement from establishment of a research area using the Optimal 
Scientific Option Boundary.
    Response: Although the primary goal of the research area is not to 
increase fish populations for harvest, NOAA agrees that ``spillover'' 
effects may be a result of no fishing in the proposed research area. 
NOAA also agrees that this may mitigate some of the economic impacts of 
the research area, regardless of which boundary option is selected. 
However, NOAA believes that the benefits of lower displacement and 
expected compliance and enforcement benefits if the research area is 
located at a distance from heavily fished areas outweigh the benefits 
of the Optimal Scientific Option Boundary. Also see responses to 
comments 3 and 4 above.
    Comment 6: A third of the sanctuary is an excessive area to set 
aside for academic studies.
    Response: The primary site selection criterion for a research area 
was an area that included bottom features representative of the 
sanctuary as a whole, with a minimum of 20 percent densely-colonized 
ledge habitat including small, medium and tall ledges. The RAWG also 
determined that while ledge habitat is the highest priority in terms of 
research interest, sufficient amounts of the other three

[[Page 63829]]

habitat types (flat sand, rippled sand, and sparsely-colonized ledge 
habitat) are necessary to replicate the diversity of sanctuary habitats 
in a research area. The size of the Southern Option Boundary is based 
on the minimum of this criterion. A smaller boundary size for this 
option would result in insufficient habitat diversity.
    Comment 7: The most important use of the sanctuary is recreation, 
not research. Therefore, recreation opportunities at Gray's Reef should 
not be restricted in order to further research objectives.
    Response: The protection of the natural and cultural resources of 
sanctuaries is NOAA's primary objective under the NMSA. GRNMS was 
designated in 1981 as a national marine sanctuary in part for its 
unique marine ecosystem, which was determined to be of national 
significance due to its natural resource and ecological qualities, 
maintenance of ecosystem structure, and biological productivity as well 
as its recreational and commercial value. NOAA has determined that 
fully meeting its resource protection mandate requires being able to 
answer significant questions about the impacts of human use on 
sanctuary resources, which cannot be done without a control (research) 
area for scientific studies.
    Comment 8: Preserving the reef, which is one of the largest of the 
unique live bottom reefs in the southeastern U.S., presents greater 
benefits than protecting fishing operations.
    Response: See response to comments 6 and 7 above 
and 9 below.
    Comment 9: NOAA should adopt the proposed rule to establish a 
research area within the GRNMS and prohibit fishing, diving, and 
stopping while transiting the area. NOAA should also encourage research 
to assess the localized effects of removing fishing and other human 
activities on the size, distribution, abundance, and reproduction of 
economically important fish and shellfish within and outside the 
research area.
    Response: The purpose of a research area would be to increase the 
opportunity to discriminate scientifically between natural and human-
induced change to species populations in the sanctuary. The research 
area would also allow researchers to more accurately determine the 
effects of natural events (e.g., hurricanes) and to study impacts of 
climate change, including ocean acidification, which can be better 
determined in the absence of additional factors like fishing and 
diving.
    Comment 10: The sanctuary provides habitat for Atlantic spotted and 
bottlenose dolphins, the latter of which are designated as depleted 
under the Marine Mammal Protection Act. The proposed research area also 
may provide opportunities to advance scientific understanding and 
management of those dolphins. NOAA should encourage researchers in the 
GRNMS to record information on bottlenose dolphins that occur in this 
area and thereby provide a stronger basis for their management and 
conservation. Such information might include where and when dolphins 
are sighted, group size, behavior, and collection of tissue samples 
from dead animals for genetic analysis. Such activities should be 
coordinated with the National Marine Fisheries Service to ensure that 
they are permitted appropriately.
    Response: NOAA agrees that the proposed research area might be used 
to collect data on bottlenose dolphin presence/absence, group size and 
behavior. Very few bottlenose dolphins are seen in GRNMS and the 
occurrence of a dead animal has never been recorded in the sanctuary. 
NOAA will work with the Marine Mammal Commission to better understand 
data collection needs to benefit marine mammal research. Furthermore, 
activities related to marine mammals would be coordinated with and, as 
necessary, permitted by the National Marine Fisheries Service.
    Comment 11: Support curtailment of human activities that are 
necessary to carry out studies in the GRNMS proposed research area. Ban 
all fishing gear of any type in this area.
    Response: NOAA agrees that without having an area of the naturally-
occurring live bottom devoted to research and devoid of direct human 
impacts, it is very difficult to scientifically understand how live 
bottom reefs, including GRNMS, function.
    Comment 12: I support keeping all fishing and research out of this 
area and keep it closed to all boats.
    Response: While fishing will be restricted in the research area, 
the purpose of a research area is to allow research to be conducted 
within that area. This will result in vessels operating in the research 
area to support scientific and working divers, and vessels may transit 
the area without stopping.
    Comment 13: NOAA should designate a research site within GRNMS. 
Habitat needs should be emphasized as the primary criteria and 
displacement of users as secondary in selecting the site.
    Response: NOAA agrees that habitat needs should be the primary site 
selection criteria for a research area. In fact, the RAWG determined, 
and recommended to the advisory council early in deliberations, that 
the primary site selection criterion for a research area was an area 
that included bottom features representative of the sanctuary as a 
whole, with a minimum of 20 percent densely-colonized ledge habitat 
including small, medium and tall ledges. The RAWG also determined, and 
recommended to the advisory council, that while ledge habitat is the 
highest priority in terms of research interest, sufficient amounts of 
the other three habitat types (flat sand, rippled sand, and sparsely-
colonized ledge habitat) are necessary to replicate the diversity of 
sanctuary habitats in a research area.
    Comment 14: In order to eliminate or minimize confounding 
parameters, the research area should prohibit all fishing and diving 
and consider prohibiting boat traffic (except for emergencies and study 
access). Eliminating boat traffic other than research vessels would 
also minimize potential water quality impacts. Attempts should also be 
made to locate and configure the site so that boaters can reasonably 
circumvent it.
    Response: NOAA's preferred alternatives for human activities 
include the prohibition of fishing and diving. Throughout the process 
to develop the concept of a research area and specific boundaries in 
GRNMS, NOAA sought ways to minimize impacts on users of the sanctuary. 
Thousands of locations and configurations were considered and refined 
by consensus criterion down to the four boundary options analyzed in 
the draft and final environmental impact statement. NOAA considered a 
``no entry'' alternative whereby boaters would be prohibited from 
entering the research area. While this alternative would simplify law 
enforcement, it could increase fuel and other costs to boaters, and 
would not offer environmental benefits that outweigh the costs. 
Therefore, NOAA did not choose this alternative.
    Comment 15: The site boundaries should conform to some of the 
sanctuary boundaries by having some common sides with the sanctuary (to 
simplify enforcement and minimize the need for boundary marker buoys, 
which may attract fish and bias the studies).
    Response: NOAA agrees that compliance and enforcement would be 
enhanced if the research area boundaries were common with sanctuary 
boundaries. In fact, one of the reasons the Southern Option Boundary is 
preferred is because three sides of the research area will be 
contiguous with existing boundaries of the sanctuary. GRNMS boundaries 
have been in place

[[Page 63830]]

for 30 years and most boaters in the area would be familiar with the 
sanctuary and its location, facilitating compliance.

V. Changes From the Proposed Rule

    Regulation changes between the proposed and final rules include the 
following:
     In the regulatory text, NOAA changed the location of the 
exception to the prohibitions listed under Sec.  922.94 for certain 
activities related to national defense or for responding to an 
emergency threatening life, property or the environment. In the 
proposed rule, the reference for this exception was located under Sec.  
922.94. However, NOAA found that the repetition of the same exception 
for activities related to national defense or for responding to an 
emergency threatening life, property or the environment in two separate 
locations in the regulations was redundant and potentially confusing. 
For this reason, NOAA has decided to combine this exception with a 
similar exception in Sec.  922.92 for clarity. This change made between 
the proposed and final rules does not change the intent of the 
exception to Sec.  922.92, which existed prior to the proposed action, 
and of the exception to Sec.  922.94, which was presented for public 
review in the proposed rule.
     NOAA has deleted the term ``or means for fishing'' in the 
prohibited or regulated activities in the research area in Sec.  
922.94(2). The term was initially proposed to ensure that all forms of 
fishing would be prohibited in the research area; however, after 
consideration NOAA believes that the term ``fishing gear'' is 
comprehensive and meets the purpose of the research area. Deleting the 
term ``or means for fishing'' simplifies the regulation.
     NOAA has updated the coordinates for the boundary of the 
research area to ensure consistency with the boundaries of the 
sanctuary, after finding a minute discrepancy between the points 
describing the corners of the sanctuary and the research area.

VI. Classification

A. National Marine Sanctuaries Act

    Section 301(b) of the National Marine Sanctuaries Act (NMSA; 16 
U.S.C. 1434) provides authority for comprehensive and coordinated 
conservation and management of national marine sanctuaries in 
coordination with other resource management authorities. Section 
304(a)(4) of the NMSA specifies that ``the terms of designation may be 
modified only by the same procedures by which the original designation 
is made.'' Because this action revises the GRNMS terms of designation 
by modifying the list of activities that may be regulated, NOAA is 
required to comply with section 304 of the NMSA. In addition, section 
304(a)(5) of the NMSA requires that NOAA consult with the appropriate 
fishery management council on any action proposing to regulate fishing. 
As stated in the preamble above, NOAA has worked with the South 
Atlantic Fishery Management Council, and State of Georgia on this issue 
and all necessary requirements have been fulfilled. In accordance with 
section 304, the appropriate documents are also being submitted to 
certain Congressional committees.

B. National Environmental Policy Act

    In accordance with Section 304(a)(2) of the NMSA (16 U.S.C. 
1434(a)(2)), and the provisions of the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321-4370(a)), a FEIS has been prepared for this 
action. The FEIS contains a statement of the purpose and need for the 
project, description of alternatives including the no action 
alternative, description of the affected environment, and evaluation 
and comparison of environmental consequences including cumulative 
impacts. The preferred alternative, chosen by NOAA as the final action, 
incorporates the creation of a research area in the Southern Option 
Boundary, and prohibition of fishing, diving, and stopping a vessel in 
the research area. Copies of the FEIS are available upon request at the 
address and Web site listed in the ADDRESSES section of this rule.

C. Coastal Management Act

    In October 2010, NOAA sent a consistency determination to the State 
of Georgia as required by regulations implementing the Coastal Zone 
Management Act (16 U.S.C. 1451-1464; 15 CFR part 930). Under the CZMA, 
actions undertaken by federal agencies must be consistent, to the 
maximum extent practicable, with the enforceable policies of a state's 
federally-approved coastal management program. The consistency 
determination described the proposed rule and stated that the proposed 
action was consistent to the maximum extent practicable with the 
enforceable policies of the Georgia Coastal Management Program. In 
March 2011, the State of Georgia concurred, subject to the adoption of 
four minor changes to the proposed action. In summary, the State of 
Georgia requested the installation of boundary markers around the 
research area, the assurance of sufficient funding for enforcement and 
for conducting research in the research area, and a commitment to make 
research publicly available. After further consultation with the State, 
NOAA notified the State that the final rule establishing the research 
area is fully consistent with the enforceable policies of Georgia's 
Coastal Management Program, and that while the Agency is willing to 
continue discussing ways to address State concerns, NOAA will proceed 
with the final rule as originally proposed.

D. Executive Order 12866: Regulatory Impact

    Under Executive Order (E.O.) 12866, if the regulations are 
``significant'' as defined in section 3(f)(1), (2), (3), or (4) of the 
Order, an assessment of the potential costs and benefits of the 
regulatory action must be prepared and submitted to the Office of 
Management and Budget. This final rule has been determined to be not 
significant within the meaning of E.O. 12866.

E. Executive Order 13132: Federalism Assessment

    This action will occur in the Exclusive Economic Zone beyond state 
jurisdiction. There are no federalism implications as that term is used 
in E.O. 13132. The changes will not preempt State law, but will simply 
complement existing State authorities. In keeping with the intent of 
the Order, NOAA consulted with a number of entities within the region, 
the State of Georgia, and the South Atlantic Fishery Management Council 
which participated in development of the research area.

F. Regulatory Flexibility Act

    In accordance with the requirements of section 604 of the 
Regulatory Flexibility Act (RFA) (5 U.S.C. 604), NOAA has prepared a 
final regulatory flexibility analysis (FRFA) that describes the impact 
that the proposed action, along with other non-preferred alternatives, 
will have on small entities. The FRFA incorporates the economic impacts 
and analysis summarized in the IRFA, a summary of the significant 
issues raised by the public comments in response to the initial 
regulatory flexibility analysis, a summary of the assessment of the 
agency of such issues, a statement of any changes made in the proposed 
rule as a result of such comments, and a description of the steps the 
agency has 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

[[Page 63831]]

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. The FRFA is provided 
below.
Final Regulatory Flexibility Act Analysis
    The Small Business Administration has established thresholds on the 
designation of businesses as ``small entities''. The entities that may 
be impacted by this rule are fish-harvesting business, sports and 
recreation businesses, scenic and sightseeing transportation 
businesses. A fish-harvesting business is considered a ``small'' 
business if it has annual receipts not in excess of $3.5 million (13 
CFR 121.201). Sports and recreation businesses and scenic and 
sightseeing transportation businesses are considered ``small'' 
businesses if they have annual receipts not in excess of $6 million (13 
CFR 121.201). According to these limits, all the vessels impacted by 
this rule are considered small entities. All analyses are based on the 
most recently updated and best available information.
    In 2002, a survey of charter fishing boat owners/operators was 
completed. This survey identified 15 charter fishing boats that utilize 
GRNMS as one of their fishing locations. It was estimated that their 
2001 total gross revenue was $1,029,000 and their total operating 
expenses were $582,000 with total profit of $447,000. Converting these 
values to 2008 dollars using the consumer price index results in gross 
revenue of $1,251,264 total operating expenses of $707,712, and total 
profit of $543,552. The survey found that approximately 40 percent of 
their fishing activity took place in GRNMS.
    The economic impact of the five alternatives considered for this 
action, and further described in the FEIS, can be estimated by 
combining results from the 2002 survey with boat location analysis 
completed in 2009. The results of this analysis are summarized in Table 
1. The five alternatives contain a no action alternative (i.e., no 
designation of a research area) and four alternatives distinguished by 
different locations within the sanctuary and by varying sizes. The 
Southern Option Boundary (preferred) impacts 9 percent of recreational 
fishing resulting in impacts of $46K to total gross revenue and $20K to 
total profit. The Optimal Scientific Option Boundary impacts 67 percent 
of recreational fishing resulting in impacts of $335K to total gross 
revenue and $146K to total profit. The Minimal User Impact Option 
Boundary impacts 15 percent of recreational fishing resulting in 
impacts of $75K to total gross revenue and $32K to total profit. The 
Compromise Option Boundary impacts 35 percent of recreational fishing 
resulting in impacts of $175K to total gross revenue and $76K to total 
profit. The last three alternatives were rejected because they all had 
more impact on sanctuary activities (mainly recreational fishing) than 
the preferred alternative, while the preferred alternative had a 
minimal impact on sanctuary users and still fulfilled the purpose and 
need for the action.
    This analysis assumes that all economic value associated with the 
areas closed is lost. Any factor that could mitigate or off-set the 
level of impact is not addressed. The estimated impacts are thought of 
as ``maximum potential losses'' because impacted businesses may take 
action to at least mitigate or off-set most losses (i.e., by conducting 
charter operations somewhere nearby).

Table 1. Estimated Economic Impacts to Recreational Charter Fishing 
Businesses by Alternative, in 2008 $
[GRAPHIC] [TIFF OMITTED] TR14OC11.002

    No economic impact is expected to result to recreational charter 
diving businesses because there appear to be none currently operating 
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 operations and one 
scuba diving club were identified and 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 the businesses offer scuba diving trips 
to GRNMS.

G. Paperwork Reduction Act

    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA) which has been approved by OMB 
under control number 0648-0141. The public reporting burden for 
national marine sanctuary permits is estimated to average 1 hour per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    Nationwide, NOAA issues approximately 200 national marine sanctuary 
permits each year. Of this amount, three permits are active for 
research activities within the GRNMS. Even though this final rule may 
result in a few additional permits applications for scientific research 
at GRNMS, this rule will not appreciably change the average annual 
number of respondents or the reporting burden for this information 
requirement. Therefore, NOAA has determined that the regulations do not 
necessitate a modification to its information collection approval by 
the Office of Management and Budget under the Paperwork Reduction Act. 
Comments on this determination were solicited in the proposed rule. No 
comments were received.
    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.

[[Page 63832]]

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: September 29, 2011.
David M. Kennedy,
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

0
1. The authority citation for Part 922 continues to read as follows:

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

0
2. Revise Sec.  922.92 to read as follows:


Sec.  922.92  Prohibited or otherwise regulated activities--Sanctuary-
wide.

    (a) Except as specified in paragraphs (b) through (d) of this 
section and in Sec.  922.94 regarding additional prohibitions in the 
research area, the following activities are prohibited and thus are 
unlawful for any person to conduct or to cause to be conducted within 
the Sanctuary:
    (1) Dredging, drilling into, or otherwise altering in any way the 
submerged lands of the Sanctuary (including bottom formations).
    (2) Constructing any structure other than a navigation aid, or 
constructing, placing, or abandoning any structure, material, or other 
matter on the submerged lands of the Sanctuary.
    (3) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts, bait, or chumming materials;
    (ii) Effluent from marine sanitation devices; and
    (iii) Vessel cooling water.
    (4) Operating a watercraft other than in accordance with the 
Federal rules and regulations that would apply if there were no 
Sanctuary.
    (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;
    (ii) There shall be a rebuttable presumption that any marine 
organism or part thereof referenced in this paragraph found in the 
possession of a person within the Sanctuary has been collected from the 
Sanctuary.
    (6) Using any fishing gear within the Sanctuary except rod and 
reel, and handline gear, or for law enforcement purposes.
    (7) Using underwater any explosives, or devices that produce 
electric charges underwater.
    (8) Breaking, cutting, damaging, taking, or removing any bottom 
formation.
    (9) Moving, removing, damaging, or possessing, or attempting to 
move, remove, damage, or possess, any Sanctuary historical resource.
    (10) Anchoring any vessel in the Sanctuary, except as provided in 
Sec.  922.92 when responding to an emergency threatening life, 
property, or the environment.
    (11) Possessing or carrying any fishing gear within the Sanctuary 
except:
    (i) Rod and reel, and handline gear;
    (ii) Fishing gear other than rod and reel, handline gear, and 
spearfishing gear, provided that it is stowed on a vessel and not 
available for immediate use;
    (iii) Spearfishing gear provided that it is stowed on a vessel, not 
available for immediate use, and the vessel is passing through the 
Sanctuary without interruption; and
    (iv) For law enforcement purposes.
    (b) All activities currently carried out by the Department of 
Defense within the Sanctuary are essential for the national defense 
and, therefore, not subject to the prohibitions in this section and 
Sec.  922.94. The exemption of additional activities having significant 
impacts shall be determined in consultation between the Director and 
the Department of Defense.
    (c) The prohibitions in this section and in Sec.  922.94 do not 
apply to any activity conducted under and in accordance with the scope, 
purpose, terms, and conditions of a National Marine Sanctuary permit 
issued pursuant to 15 CFR 922.48 and 922.93.
    (d) The prohibitions in this section and in Sec.  922.94 do not 
apply to any activity necessary to respond to an emergency threatening 
life, property, or the environment.

0
3. Revise Sec.  922.93(a) to read as follows:


Sec.  922.93  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec.  
922.92(a)(1) through (10) and Sec.  922.94 if conducted in accordance 
within the scope, purpose, manner, terms and conditions of a permit 
issued under this section and Sec.  922.48.
* * * * *

0
4. Add Sec.  922.94 to subpart I to read as follows:


Sec.  922.94  Prohibited or otherwise regulated activities--Research 
area.

    In addition to the prohibitions set out in Sec.  922.92, which 
apply throughout the Sanctuary, the following activities are prohibited 
and thus unlawful for any person to conduct or cause to be conducted 
within the research area described in Appendix A to this subpart.
    (a)(1) Injuring, catching, harvesting, or collecting, or attempting 
to injure, catch, harvest, or collect, any marine organism, or any part 
thereof, living or dead.
    (2) There shall be a rebuttable presumption that any marine 
organism or part thereof referenced in this paragraph found in the 
possession of a person within the research area has been collected from 
the research area.
    (b) Using any fishing gear, or possessing, or carrying any fishing 
gear unless such gear is stowed and not available for immediate use 
while on board a vessel transiting through the research area without 
interruption or for valid law enforcement purposes.
    (c) Diving.
    (d) Stopping a vessel in the research area.

0
5. Add Appendix A to Subpart I to read as follows:

Appendix A to Subpart I of Part 922--Boundary Coordinates for the 
Gray's Reef National Marine Sanctuary Research Area

    [Coordinates listed in this Appendix are unprojected 
(Geographic) and based on the North American Datum of 1983.]
    The research area boundary is defined by the coordinates 
provided in Table 1 and the following textual description. The 
research area boundary extends from Point 1, the southwest corner of 
the sanctuary, to Point 2 along a straight line following the 
western boundary of the Sanctuary. It then extends along a straight 
line from Point 2 to Point 3, which is on the eastern boundary of 
GRNMS. The boundary then follows the eastern boundary line of the 
sanctuary southward until it intersects the line of the southern 
boundary of GRNMS at Point 4, the southeastern corner of the 
sanctuary. The last straight line is defined by connecting Point 4 
and Point 5, along the southern boundary of the GRNMS.

[[Page 63833]]



                                   Table 1--Coordinates for the Research Area
----------------------------------------------------------------------------------------------------------------
              Point ID                    Latitude  (north, in degrees)         Longitude  (west, in degrees)
----------------------------------------------------------------------------------------------------------------
1...................................  N 31.362732                           W 80.921200
2...................................  N 31.384444                           W 80.921200
3...................................  N 31.384444                           W 80.828145
4...................................  N 31.362732                           W 80.828145
5...................................  N 31.362732                           W 80.921200
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-26633 Filed 10-13-11; 8:45 am]
BILLING CODE 3510-NK-P