federal register June 12,1997 Thursday Regulations; FinalRule Florida KeysNationalMarineSanctuary 15 CFRParts922,929,and937 Administration National OceanicandAtmospheric Commerce Department of Part II 32153 32154 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations

DEPARTMENT OF COMMERCE Federal Register, in response to the activities within the Sanctuary. Under Governor’s certification, and announces the NMSA, Congress and the Governor National Oceanic and Atmospheric the effective date of the regulations. had forty-five days of continuous Administration EFFECTIVE DATE: The final rule published session of Congress beginning on the day on which the final regulations were 15 CFR Parts 922, 929, and 937 on January 30, 1997, at 62 FR 4578 and the revision of 15 CFR part 922, subpart published to review the terms of [Docket No. 9607292±6192±03] P in this document are effective July 1, designation (i.e., management plan and 1997. regulations). After forty-five days, the RIN 0648±AD85 ADDRESSES: Requests for a copy of the regulations would become final and take Florida Keys National Marine FMP/EIS, the Final Regulatory effect, except that any term or terms the Sanctuary Final Regulations Flexibility Analysis, or the Federalism Governor certified within the forty-five Assessment should be submitted to the day period to the Secretary of AGENCY: Office of Ocean and Coastal Sanctuary Superintendent, Florida Keys Commerce as unacceptable would not Resource Management (OCRM), National Marine Sanctuary, P.O. Box take effect in the area of the Sanctuary National Ocean Service (NOS), National 500368, Marathon, Florida 33050. lying within the seaward boundary of Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: the State. Congress could also act on the Administration (NOAA), Department of Billy Causey, Sanctuary Superintendent, terms of designation. The following Commerce. 305/743–2437 or Edward Lindelof, East discusses the Governor and Congress’ ACTION: Notice of effective date; Coast Branch Chief, Sanctuaries and actions during the forty-five day period modifications to final rule. Reserves Division, 301/713–3137 and corresponding modifications to the SUMMARY: Pursuant to the Florida Keys Extension 131. final regulations made by NOAA in National Marine Sanctuary and SUPPLEMENTARY INFORMATION: response to those actions. Protection Act and the National Marine Certification by the Governor of Florida Sanctuaries Act, NOAA developed the I. Introduction comprehensive final management plan The FKNMS was designated by an act On March 20, 1997, during the forty- for the Florida Keys National Marine of Congress entitled the Florida Keys five day review period under the Sanctuary (FKNMS or the Sanctuary). National Marine Sanctuary and NMSA, the Governor of the State of NOAA issued final regulations on Protection Act (FKNMSPA, Pub.L. 101– Florida certified by letter to the January 30, 1997, to implement that 605) which was signed into law on Secretary of Commerce that plan and govern the conduct of November 16, 1990. The FKNMSPA implementation of the management plan activities within the Sanctuary. directed the Secretary of Commerce to and certain regulations were Congress and the Governor of the State develop a comprehensive management unacceptable in State waters. However, of Florida (Governor) had forty-five days plan and regulations for the Sanctuary the management plan and regulations of continuous session of Congress pursuant to sections 303 and 304 of the beginning on the day on which the final National Marine Sanctuaries Act certified as unacceptable would be regulations were published to review (NMSA) (also known as Title III of the acceptable if NOAA amended the those regulations and management plan. Marine Protection, Research, and regulations and the Co-Trustees After the forty-five day review period, Sanctuaries Act of 1972), as amended, Agreement for Cooperative Management the regulations would become final and 16 U.S.C. 1431 et seq. The NMSA (Co-Trustees Agreement), contained in take effect, except that any term or terms authorizes the development of the management plan, as requested in of the regulations or management plan management plans and regulations for the Governor’s certification letter. the Governor certified to the Secretary national marine sanctuaries to protect NOAA has amended the regulations and of Commerce as unacceptable would not their conservation, recreational, the Co-Trustees Agreement to take effect in the area of the Sanctuary ecological, historical, research, incorporate the modifications requested lying within the seaward boundary of educational, or aesthetic qualities. by the Governor in his letter. By doing the State. The authority of the Secretary to so, the regulations and management During the forty-five day review designate national marine sanctuaries plan, as modified, are accepted by the period the Governor submitted to the and implement designated sanctuaries Governor and, therefore, will apply Secretary of Commerce a certification was delegated to the Under Secretary of within State waters of the Sanctuary that implementation of the management Commerce for Oceans and Atmosphere upon the effective date of these plan and certain regulations were by the Department of Commerce, regulations. unacceptable unless specific Organization Order 10–15, § 3.01(z) (Jan. amendments were made to the 11, 1988). The authority to administer The following is the text of the March regulations. In response to the the other provisions of the NMSA was 20, 1997, letter from the Governor of Governor’s certification, NOAA delegated to the Assistant Administrator Florida to the Secretary of Commerce. amended those regulations certified as for Ocean Services and Coastal Zone Per the Governor’s request, the letter is unacceptable to incorporate the Management of NOAA by NOAA followed by the text of the Resolution Governor’s changes. Consequently, Circular 83–38, Directive 05–50 (Sept. passed by the Board of Trustees of the upon their effective date the regulations, 21, 1983, as amended). Internal Improvement Trust Fund of the as modified by this notice, and State of Florida (Board of Trustees). The management plan, in their entirety, will II. Forty-Five Day Review Period Under Resolution was adopted on January 28, apply throughout the Sanctuary, the National Marine Sanctuaries Act 1997, and provides the basis for many including within State waters of the NOAA published the final Sanctuary of the items in the Governor’s Sanctuary. regulations on January 30, 1997, (62 FR certification. This notice amends the regulations 4578) to implement the management published in the January 30, 1997, plan and govern the conduct of Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32155

Lawton Chiles Monroe County land use permits or under review the management plan and regulations, state permits. Accordingly, 15 CFR section in their entirety, and indicate if any or all of Governor 922.163(a)(4)(ii), concerning prohibited the terms are unacceptable, in which case the State of Florida activities, shall be amended to read as unacceptable terms shall not take effect in follows: ‘‘Discharging or depositing, from state waters. Office of the Governor beyond the boundary of the Sanctuary, any Accordingly, the following provisions shall The Capitol material or other matter that subsequently be added to 15 CFR section 922.160: ‘‘Section enters the Sanctuary and injures a Sanctuary 304(e) of the NMSA requires the Secretary to Tallahassee, Florida 32399–0001 resource or quality, except those listed in review management plans and regulations March 20, 1997. paragraph (a)(4)(I) (A) through (D) of this every five years, and make necessary Honorable William M. Daley, Secretary, section and those authorized under Monroe revisions. Upon completion of the five year United States Department of Commerce, County land use permits or under state review of the Sanctuary management plan Herbert C. Hoover Building, 14 Street permits.’’ and regulations, the Secretary will repropose and Constitution Avenue Northwest, 6. The implementation of any additional the regulations in their entirety with any Washington, DC 20230. ecological reserves or any other type of proposed changes thereto, including those zoning or regulation unless first approved by regulations in subparts A and E of this part Dear Mr. Secretary: the Board of Trustees. Accordingly, the that apply to the Sanctuary. The Governor of On January 28, 1997, the Florida Cabinet following provision shall be added to 15 CFR the State of Florida will have the opportunity and I, sitting as the Board of Trustees of the section 922.163 as published January 30, to review the re-proposed regulations before Internal Improvement Trust Fund, adopted a 1997: ‘‘(h) Any amendment to these they take effect and if the Governor certifies resolution to include state sovereign regulations shall not take effect in Florida such regulations as unacceptable, they will submerged lands within the boundary of the Territorial Waters until approved by the not take effect in State waters of the Florida Keys National Marine Sanctuary Board of Trustees of the Internal Sanctuary.’’ (FKNMS). It is our intention to create a Improvement Trust Fund of the State of We also call to your attention the now partnership with the National Oceanic and Florida;’’ and the following provision shall erroneous reference in section Atmospheric Administration (NOAA) for be added to 15 CFR section 962.164: ‘‘(f) 922.166(b)(2)(iii) to the Submerged Cultural management under the provisions of the Additional wildlife management areas, Resources Agreement contained in Volume 1 FKNMS Management Plan and the ecological reserves, sanctuary preservation of the management plan. We suggest striking Memoranda of Agreement included in the areas, or special use areas, and additional that reference. The final agreement is that management plan, with certain conditions to restrictions in such areas, shall not take effect considered by the Board of Trustees on be applied to the portions of the sanctuary in Florida Territorial Waters unless first January 28, 1997 and executed by the within Florida Territorial Waters. A copy of approved by the Board of Trustees of the signatory parties. the resolution is enclosed. We request that Internal Improvement Trust Fund of the State We believe that implementation of the plan the resolution be placed in the preamble to of Florida.’’ provides balanced, common sense protection the final notice for the FKNMS regulations. 7. Implementation of the management plan of this fragile, unique and endangered marine In accordance with subsection 304(b)(1) of in its entirety unless the Co-Trustees treasure and advances the state and federal the National Marine Sanctuaries Act and that commitment to jointly manage these resolution, the following terms are certified agreement is amended to provide as follows: a. The Florida Department of resources. We look forward to that as unacceptable in state waters: continuing relationship. 1. Sanctuary fees for allowed public uses Environmental Protection (FDEP) employee who has been designated by the Secretary of With kind regards, I am unless first approved by the Board of Sincerely, Trustees of the Internal Improvement Trust FDEP and confirmed by the Board of Trustees Fund of the State of Florida. shall represent the Board of Trustees as an Lawton Chiles 2. Sanctuary emergency regulations unless equal partner to work in consultation with LC/khw/mlp and until first approved by the Governor. the Sanctuary superintendent for the Enclosure Accordingly, the following sentence shall be oversight of Sanctuary operations. added to section 922.165 CFR as published b. The FDEP and NOAA shall manage the cc: Honorable Frank Brogan January 30, 1997: ‘‘Emergency regulations FKNMS through a cooperative partnership Honorable Bob Butterworth shall not take effect in Florida territorial and consult on all management activities Honorable Bob Crawford waters until approved by the Governor of the throughout the Sanctuary. The intent of this Honorable Debbie Horan State of Florida.’’ partnership is that the final resolution of any Honorable Bob Milligan 3. Requirements for governmental entities management issues resulting in policy Honorable Sandra Mortham within the state, including but not limited to conflicts between the state and NOAA shall Honorable Bill Nelson be decided by the managing partners the State of Florida and Monroe County, to Resolution provide funding for the implementation of consistent with state and federal laws. sanctuary regulations or other actions. c. The state reserves the right to initiate WHEREAS, the United States Congress 4. Sanctuary fisheries regulations unless proposed changes to the plan, and NOAA, if passed the Florida Keys National Marine established by the Florida Marine Fisheries necessary, shall initiate the federal rule Sanctuary and Protection Act (PL 101–605, Commission following promulgation under promulgation process required to make ‘‘the Act’’) to protect the unique and the provisions of section 370.025(2), F.S. revisions to sanctuary regulations requested invaluable natural and cultural resources of (1995), which requires public input and final by the Board of Trustees. the Florida Keys; and approval by the Board of Trustees of the d. Section 304(e) of the National Marine WHEREAS, the President of the United Internal Improvement Trust Fund of the State Sanctuary Act requires the Secretary of States signed this legislation into law on of Florida. Accordingly, the following Commerce to review the management plan November 16, 1990; and sentence shall be added to section 922.42 and regulations for the Sanctuary every five WHEREAS, the Florida Keys National CFR as published January 30, 1997: ‘‘Any years, evaluate the substantive progress Marine Sanctuary (FKNMS) boundary fishery regulations in the Florida Keys toward implementing the management plan encompasses 2800 square nautical miles of National Marine Sanctuary shall not take and goals for the Sanctuary; especially the the Atlantic Ocean, Gulf of Mexico, and effect in Florida Territorial Waters until effectiveness of site-specific management Florida Bay, of which approximately 65% is established by the Florida Marine Fisheries techniques, and revise the management plan Florida state territorial waters; and Commission.’’ and regulations as necessary to fulfill the WHEREAS, the Board of Trustees of the 5. Sanctuary regulation of discharging or purposes and policies of the Act. When the Internal Improvement Trust Fund (‘‘the depositing, from beyond the boundary of the management plan and regulations for the Board of Trustees’’) is vested with the Sanctuary, any material or other matter that FKNMS are re-evaluated, the Secretary of authority and charged with the responsibility subsequently enters the Sanctuary and Commerce will re-propose the management for the acquisition, administration, injures a Sanctuary resource or quality, if the plan and regulations in their entirety and the management, control, supervision, discharging or depositing is authorized under State of Florida will have the opportunity to conservation, protection, and disposition of 32156 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations all state lands, including sovereignty (7) Purpose, goals and measures of success addition, 15 CFR section 922.163(a)(4)(ii), submerged lands, as set forth in Chapter 253, associated with the Western Sambos concerning prohibited activities, shall be Florida Statutes; and Ecological Reserve; amended to read as follows: ‘‘Discharging or WHEREAS, upon enactment of the Act, the (8) Parity of state and federal management depositing, from beyond the boundary of the Board of Trustees resolved on December 16, authority for the implementation and Sanctuary, any material or other matter that 1990, to include state waters within the ongoing operations of the FKNMS; subsequently enters the Sanctuary and sanctuary boundary under certain specified (9) Prospects of designating additional injures a Sanctuary resource or quality, conditions; and ecological reserves in the future as proposed except those listed in paragraph (a)(4)(i) (A) WHEREAS, the Florida Coastal Resources in the draft management plan; through (D) above and those authorized Interagency Management Committee resolved (10) Periodic evaluation of the under Monroe County land use permits or in February of 1991 to include appropriate effectiveness of the sanctuary management under state permits.’’; state representation in the Florida Keys plan in the protection and preservation of the (7) The purpose of the Ecological Reserve National Marine Sanctuary Management Plan marine resources of the Florida Keys; in the Western Sambos is to maintain a development process; and (11) Resolution of differences between the natural assemblage of living marine resources WHEREAS, an ‘‘Interim Memorandum of respective government agencies with by setting aside an area that assures minimal Agreement’’ was executed on September 15, Sanctuary management authority for the human disturbance and is not designed to 1992, between the National Oceanic and State of Florida and the United States of perform any fishery enhancement or fishery Atmospheric Administration (NOAA) and America; management functions. Monitoring of Board of Trustees specifying the conditions (12) Right of the State to initiate changes ecological parameters will be performed to under which state sovereign submerged lands to the plan; provide information on the status of fish, were to be included in the Sanctuary and (13) Article V of the Designation coral and other benthic components of the Document; and Reserve. At the end of five years the success managed during the management plan (14) Right of the State to revisit the plan of the Ecological Reserve in the Western development process; and and regulations in their entirety. Sambos will be assessed. If the state or WHEREAS, the management plan NOW, THEREFORE, BE IT RESOLVED that NOAA finds the area is not fulfilling the development period was extended to six the sovereign submerged lands of the State of purpose for which the reserve was years to provide the maximum opportunity Florida located within the boundaries of the established, the Board of Trustees may take for participation by all segments of Florida Keys National Marine Sanctuary, as action to initiate the removal of the site; government, industry, and the citizens of specified by the United States Congress in PL (8) The Secretary of the FDEP shall Florida and the United States; and 101–605, are hereby included in the designate, with subsequent confirmation by WHEREAS, Memoranda of Agreement to Sanctuary for management in partnership the Board of Trustees, a DEP employee as its manage the marine ecosystem of the Florida between the Board of Trustees and NOAA representative as an equal partner to work in Keys through a cooperative partnership have under the provisions of: the Florida Keys consultation with the Sanctuary been developed and included in the National Marine Sanctuary Management superintendent for the oversight of Sanctuary management plan, including the: Plan; the Memoranda of Agreement included operations; (1) Interagency Compact Agreement in the management plan; and, the following (9) The implementation of any additional (2) Co-Trustees Agreement for Cooperative conditions to be applied to the portions of ecological reserves, or any other type of Management the Sanctuary within Florida territorial zoning or regulation, which is applicable to (3) Submerged Cultural Resources waters: state waters shall require advance Board of Agreement (1) Federal sanctuary fees for allowed Trustees’ approval; (4) Cooperative Enforcement Agreement public uses of the marine resources shall not (10) The FDEP, in cooperation with NOAA, (5) Agreement for Coordination of Civil be imposed without having first been shall submit to the Board of Trustees an Claims approved by the Board of Trustees; annual status report of the Sanctuary, and a (6) Protocol for Cooperative Fisheries (2) The Memorandum of Agreement for the five-year evaluation of the overall Management Coordination of Civil Claims shall be effectiveness of the implementation of the (7) Protocol for Emergency Response amended to provide that, with regard to Sanctuary management plan toward the goal Notification proceedings to recover compensation for of protecting the marine resources of the (8) Certification/Authorization of Permits injury to state resources within the Florida Keys including recommendations for Agreement Sanctuary, Board of Trustees’ approval on the change; (9) Water Quality Program Steering use of funds recovered by NOAA under (11) The FDEP and NOAA shall manage Committee By-laws; and section 312 is required; the FKNMS through a cooperative WHEREAS, the citizens and government of (3) The imposition of federal sanctuary partnership and consult on all management the State of Florida have expressed emergency regulations shall not be activities throughout the Sanctuary. The continuing interest in issues not specifically authorized without the Governor’s approval; intent of this partnership is that the final addressed or resolved in the management (4) No provision of the management plan resolution of any management issues plan or memoranda of agreement relating to will require governmental entities within the resulting in policy conflicts between the state the: state, including but not limited to the State and NOAA shall be decided by the managing (1) Imposition of fees for public use of the of Florida and Monroe County, to provide partners consistent with state and federal marine resources; funding for the implementation of laws. The Board of Trustees has not (2) Disposition of funds recovered from regulations or other actions; conveyed title to or relinquished authority natural resource damage claims; (5) The implementation of fisheries over any state-owned lands or other state- (3) Imposition of emergency regulations on regulations is unacceptable unless owned resources by agreeing to include state- state sovereign submerged lands; established by the Florida Marine Fisheries owned land and resources within the (4) Obligation of governmental entities, Commission following promulgation under Sanctuary boundary. If necessary, NOAA including the State of Florida, to implement the provisions of section 370.025(2), F.S. shall initiate the federal rule promulgation the regulations of the management plan (1995), which requires public input and final process required to make Board of Trustees’ without having been allocated additional Board of Trustees’ approval; requested revisions to the regulations of the funding for that specific purpose; (6) The Certification/Authorization of FKNMS management plan; (5) Promulgation of federal fisheries Permits Agreement shall be amended to (12) The state reserves the right to initiate regulations that are more restrictive than provide that NOAA will have only a review proposed changes to the plan. The FDEP will those established by the Florida Marine and comment role on state permits for monitor public opinion and provide a Fisheries Commission under Florida activities beyond the boundary of the process for consideration of grievances and statutory authority; Sanctuary. To the maximum extent possible petitions for change; (6) Imposition of restrictions on the use of the state will consider NOAA’s comments as (13) Article V of the Designation Document adjacent uplands exceeding those established specified in the agreement. However, NOAA shall be amended to strike the first paragraph by the State of Florida; shall not require an additional permit. In which states: ‘‘If any valid regulation issued Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32157 by any Federal, State or local authority of plan are accepted by the Governor and fishing gear, which essentially mirrors competent jurisdiction, regardless of when will apply throughout the Sanctuary, 15 CFR § 922.164(d)(1)(iii) of NOAA’s issued, conflicts with a Sanctuary regulation including within State waters of the regulations, does not contain the phrase the regulation deemed by the Director, Office Sanctuary, upon their effective date. ‘‘no presumption of fishing activity of Ocean and Coastal Resource Management, National Oceanic and Atmospheric The basis and purpose of the changes to shall be drawn’’ from possession of gear, Administration, or his or her designee to be the regulations are as follows. because, according to the State, the more protective of Sanctuary resources and (1) Per item number 2 of the Commission has no authority to address qualities shall govern.’’ Further, it shall be Governor’s letter which certified as the issue of presumptions. Further, the amended to strike the last sentence of the unacceptable in State waters emergency Commission’s Rule 46–6.003(1)(a), second paragraph which states: ‘‘However, regulations unless approved by the pertaining to possession of marine the Secretary of Commerce or designee may Governor, § 922.165 of subpart P is organisms within a Reserve or SPA, regulate the exercise (including, but not amended by adding ‘‘Emergency which mirrors 15 CFR § 922.164(d)(1)(ii) limited to, the imposition of terms and regulations shall not take effect in of NOAA’s regulations, adds the conditions) of such authorization or right Florida State waters until approved by consistent with the purposes for which the element that to fall within the exception Sanctuary is designated.’’; and the Governor of the State of Florida.’’ allowing possession of marine (14) The Co-Trustees Agreement for This is consistent with the management organisms in such areas, a vessel must Cooperative Management shall be amended plan which provides that any new be in ‘‘continuous transit’’ through the to add: Section 304(e) of the National Marine regulation or substantive modification Reserve or SPA. NOAA’s regulation did Sanctuary Act requires the Secretary of to existing Sanctuary regulations will not require continuous transit. Commerce to review the management plan require the Governor’s approval in order In the January 30 Federal Register and regulations for the Sanctuary every five to take effect in State waters of the notice, NOAA stated that if the years, evaluate the substantive progress Sanctuary. Commission’s rule is not substantively toward implementing the management plan (2) Per item number 4 of the and goals for the Sanctuary, especially the the same as NOAA’s, then NOAA would effectiveness of site-specific management Governor’s letter which certified as modify its regulations to conform with techniques, and revise the management plan unacceptable in State waters Sanctuary the State’s, or would consult on whether and regulations as necessary to fulfill the fishing regulations unless established by the non-conforming portions of the purposes and policies of the Act. When the the Florida Marine Fisheries Sanctuary regulations should be management plan and regulations for the Commission pursuant to section withdrawn from applying in State Florida Keys National Marine Sanctuary are 370.025(2), F.S. (1995), § 922.163 of waters. NOAA consulted with the State re-evaluated, the Secretary will re-propose subpart P is amended by adding a new the management plan and regulations in their and agreed that no changes are paragraph (h) to read in pertinent part necessary to 15 CFR § 922.164(d)(1)(iii). entirety. The State of Florida will have the ‘‘Any fishery regulations in the opportunity to review the management plan As regards § 922.164(d)(1)(ii), the and regulations, in their entirety, and Sanctuary shall not take effect in Florida Governor requested that NOAA revise it indicate if any or all of its terms are State waters until established by the to conform to the Commission’s Rule unacceptable in which case the unacceptable Florida Marine Fisheries Commission.’’ 46–6.003(1)(a). In response to the terms shall not take effect in state waters. The Governor’s certification proposed Governor’s request, and consistent with IN TESTIMONY WHEREOF, the Governor including this language in § 922.42 of NOAA’s January 30 Federal Register and Cabinet sitting as the Board of Trustees part 922, which is a programmatic of the Internal Improvement Trust Fund of notice, therefore, NOAA has amended sanctuary regulation applicable to all § 922.164(d)(1)(ii) to read as follows: the State of Florida have hereunto subscribed sanctuaries. NOAA determined that a their names and have caused the Official Seal more appropriate place for the language (ii) Possessing, moving, harvesting, of the State of Florida to be hereunto affixed is in the Sanctuary specific regulations removing, taking, damaging, disturbing, in the City of Tallahassee on the 28th day of at a new § 922.163(h) of subpart P, breaking, cutting, spearing, or otherwise January, 1997. injuring any coral, marine invertebrate, fish, which has been added in response to Lawton Chiles, bottom formation, algae, seagrass or other item number 6 of the Governor’s Governor. living or dead organism, including shells, or certification. attempting any of these activities. However, Sandra B. Mortham, Item number 4 of the Governor’s fish, invertebrates, and marine plants may be Secretary of State. certification reflects actions already possessed aboard a vessel in an Ecological Reserve or Sanctuary Preservation Area, Bob Butterworth, initiated by NOAA. In the January 30 Federal Register notice publishing the provided such resources can be shown not to Attorney General. final regulations and triggering the forty- have been harvested within, removed from, Robert F. Milligan, five day review period under the or taken within, the Ecological Reserve or Sanctuary Preservation Area, as applicable, Comptroller. NMSA, NOAA stated that § 922.164(d), by being stowed in a cabin, locker, or similar Bill Nelson, which pertains to Ecological Reserves storage area prior to entering and during Treasurer. (Reserves) and Sanctuary Preservation transit through such reserves or areas, Areas (SPAs), will not take effect in provided further that in an Ecological Bob Crawford, State waters before July 1, 1997, to allow Reserve or Sanctuary Preservation Area Commissioner of Agriculture. the State of Florida Marine Fisheries located in Florida State waters, such vessel Frank T. Brogan, Commission (Commission) time to is in continuous transit through the Ecological Reserve or Sanctuary Preservation Commissioner of Education. complete its rulemaking process related to the Western Sambos Ecological Area. NOAA’s Response to Governor’s Reserve and those Sanctuary Therefore, § 922.164(d)(1)(ii), consistent Certification Preservation Areas located in State with the Commission’s rule, now In response to the Governor’s waters. The Commission’s rule was requires vessels possessing fish, certification of March 20, 1997, NOAA adopted on May 13, 1997, and is invertebrates, or marine plants that are has amended those regulations certified substantively similar to NOAA’s except transiting through a Reserve or SPA by the Governor as being unacceptable in two instances. First, the located in State waters to be in in State waters. With the modifications, Commission’s Rule 46–6.003(1)(B), continuous transit through the Reserve the entire regulations and management pertaining to the issue of possession of or SPA. These areas are the Western 32158 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations

Sambos Ecological Reserve, and the discharges or deposits outside the review of the Sanctuary, it will Cheeca Rocks, Eastern Dry Rocks, Hens Sanctuary that end up in the Sanctuary repropose the regulations for the and Chickens, Newfound Harbor Key, require Monroe County land use Governor’s review, similar to the forty- Rock Key, and Sand Key Sanctuary permits, which were already excepted five day review period under the NMSA Preservation Areas. from the Sanctuary prohibition. that preceded this notice. The conforming change to (4) Per item number 6 of the (6) The erroneous reference to the § 922.164(d)(1)(ii) is made to the Governor’s letter which certifies as Submerged Cultural Resources regulation only as it applies to Reserves unacceptable in State waters the Agreement has been corrected by and SPAs located in State waters implementation of any additional eliminating the reference to Volume I of because under the National Marine Ecological Reserves or any other type of the management plan. Sanctuaries Act, the Governor’s actions zoning or regulation unless first For clarity, this notice publishes the during the forty-five day review period approved by the Board of Trustees, revised Sanctuary specific regulations at apply to the management plan and § 922.163 of subpart P is amended by 15 CFR part 922, subpart P in their regulations as they pertain to the area of adding new paragraph (h) to read ‘‘Any entirety, which will replace subpart P as the Sanctuary lying within the seaward amendment to these regulations shall published in the January 30, 1997 boundary of the State. Further, under not take effect in Florida State waters Federal Register notice. Consequently, the sanctuary program regulations as 15 until approved by the Board of Trustees subpart P as published in this notice CFR § 922.42, all activities may be of the Internal Improvement Trust Fund and all remaining regulations in the conducted unless specifically of the State of Florida.’’ Further, January 30, 1997, notice shall become prohibited by a sanctuary’s regulations, § 922.164 is amended by adding a new effective on July 1, 1997. ‘‘subject to all prohibitions, regulations, paragraph (f) to read: ‘‘Additional Congressional Action on the Final restrictions, and conditions validly Wildlife Management Areas, Ecological Regulations imposed by any Federal, State, or local Reserves, Sanctuary Preservation Areas, During the comment period on the authority of competent jurisdiction, or Special-use Areas, and additional including Federal and State fishery draft management plan/environmental restrictions in such areas, shall not take impact statement (DMP/EIS), the management authorities.’’ effect in Florida State waters unless first Consequently, as regards State waters of Sanctuary Advisory Council (SAC) and approved by the Board of Trustees of the other public commentors singled out the the Sanctuary, regardless of whether Internal Improvement Trust Fund of the NOAA amends § 922.164(d)(1)(ii), users operation of personal watercraft (PWC) State of Florida.’’ As discussed above, in the Sanctuary as a matter of concern. would be subject to the State this modification merely codifies in the prohibition requiring continuous transit In response to comments received on regulations what is contained in the the DMP/EIS, NOAA stated the through a Reserve or SPA in State management plan. waters if such vessel possesses fish, following in the FMP/EIS, and January (5) Per item number 7 of the 30 Federal Register notice regarding the invertebrates or marine plants. Finally, Governor’s letter which certifies as under the amended Sanctuary operation of personal watercraft (PWC) unacceptable in State waters the in the Sanctuary: regulation, vessels possessing such implementation of the management plan marine organisms are not precluded unless the Co-Trustee Agreement and NOAA has developed a multi-pronged from transiting the Reserve or SPA, § 922.160 is amended to add a provision approach to address the public’s concern about the use of personal watercraft. NOAA which addresses the primary concern regarding the five year review of the raised in the public comments NOAA has accepted the SAC’s recommendation to management plan and regulations, received on the proposed regulation. In add a new section to the final regulations § 922.160 of subpart P is amended by addition, during the State’s rulemaking (§ 922.163(a)(v)) which prohibits reckless adding: operation of all watercraft. Additionally, proceeding, it received no comments proposed § 922.163(a)(5)(iii) has been Section 304(e) of the NMSA requires the regarding the provision requiring modified to prohibit operating a vessel at continuous transit, supporting that there Secretary to review management plans and greater than idle speed only/no wake (except appear to be no significant concerns regulations every five years, and make in marked channels) in designated areas over the provision. necessary revisions. Upon completion of the within 100 yards from residential shorelines, five year review of the Sanctuary For consistency throughout the stationary vessels and navigational aids management plan and regulations, the marking emerging or shallow reefs. NOAA Sanctuary, NOAA will propose to Secretary will repropose the regulations in amend the regulation as it pertains to has also incorporated into its regulations the their entirety with any proposed changes authority to enforce all idle-speed only/no the Ecological Reserves and Sanctuary thereto, including those regulations in wake areas throughout the Sanctuary. NOAA Preservation Areas in federal waters in subparts A and E of this part that apply to will use the existing county and State process a separate rulemaking. the Sanctuary. The Governor of the State of for designating these areas. NOAA accepts (3) Per item number 5 of the Florida will have the opportunity to review that the industry is seriously committed to Governor’s letter which certified as the re-proposed regulations before they take self regulation and will develop successful unacceptable in State waters the effect and if the Governor certifies such educational efforts geared toward changing prohibition of discharging or depositing regulations as unacceptable, they will not user behavior. The final component of from beyond the Sanctuary boundary take effect in State waters of the Sanctuary. NOAA’s approach is a modification of the any material or other matter that A corresponding amendment, as well SAC’s recommendation. NOAA will begin establishing broad zones with restrictions on subsequently enters the Sanctuary and as other amendments, have also been the use of personal watercraft (consistent injures a Sanctuary resource or quality, made to the Co-Trustees Agreement per with the SAC recommendation) in one year § 922.163(a)(4)(ii) of subpart P is item 7 of the Governor’s letter. The only if these initial efforts are not successful amended by adding ‘‘or under state modification to the regulation at significantly reducing or eliminating the permits’’ after ‘‘Monroe County land use essentially codifies the requirement nuisance and safety problems, as well as the permits.’’ This modification broadens under the NMSA to conduct reviews of threats to the natural resources. the subject exception to include sanctuary management plans and FMP/EIS Vol. III, page L–10; 62 FR discharge or deposit activities regulations every five years. In the 4578, 4591. authorized under State permits. Many FKNMS context, NOAA has determined During the forty-five day review upland projects that could result in that at the conclusion of the five year period under the NMSA, no Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32159

Congressional hearings were held. FMP/EIS and therefore provide criteria in order to become effective in State However, NOAA received inquiries against which success can be measured. waters. from Representative Don Young, Chair See Volume I pp. 16–17 (noise and Other Modifications to the Final of the House of Representatives operation harass wildlife as well as Regulations Committee on Resources, and other users), pp. 108–109 (PWC strategy Representative Walter B. Jones, Jr. B–17 discussed under NOAA In the Federal Register notice of regarding how NOAA was going to Regulatory Actions); Vol. II January 30, 1997, appendices II, IV and measure ‘‘success’’ of the PWC Environmental Impact Analysis, p. 124 V of subpart P, which delineate the industry’s educational efforts at (user conflicts and habitat impacts), p. boundary coordinates of Existing significantly reducing or eliminating 141 (alternative strategies); p. 151 Management Areas, Ecological Reserves, and Sanctuary Preservation Areas, threats to natural resources and the (strategy Z–5 Special Use Zones to respectively, stated that ‘‘When nuisance and safety problems posed by address PWC problems), pp. 182, 203 differential Global Positioning Systems the operation of personal watercraft, and (PWC strategy B–17); Vol. III H–3, K–3, [GPS] data becomes available, these how evaluation criteria will be L–9, L–10, L–17, M–1, M–2, M–3, M–6, developed. There was also one meeting coordinates may be revised by Federal M–11, M–12, M–22, M–26, M–27, M– Register notice to reflect the increased with Congressional aides where concern 28. The public comments on this issue was expressed about the Sanctuary accuracy of such data.’’ Since also provide important input for regulating the safety of vessel operations publication of the final regulations on developing criteria to measure the in general and PWC (e.g., jet skis) in January 30, NOAA has ground-truthed, success for both the PWC industry and particular. using differential GPS, the Western As indicated above, the FMP/EIS NOAA. Sambos Ecological Reserve, the carefully considered the SAC NOAA is already working with the Sanctuary Preservation Areas, and the recommendations and public PWC industry to develop broad four Special-use Areas (listed in comments, including those from the measurable milestones by which the appendix VI to subpart P). PWC industry in setting forth its multi- industry will increase public awareness Consequently, NOAA has modified the pronged approach to the PWC issue. In and educate the public about the use of regulations to incorporate the more general, the success of any Sanctuary PWCs in the Sanctuary. When these are accurate coordinates for those areas it action plan or management strategy is achieved by the PWC industry, NOAA has ground-truthed using differential measured primarily against whether the is confident that the proposed education GPS. When differential GPS data Sanctuary resource protection goals are and self-regulation activities should become available for the Existing being met, and whether the multiple address concerns that surfaced during Management Areas, their coordinates uses of the Sanctuary are being the development of the final may be revised by Federal Register facilitated consistent with the primary management plan. Such measures notice to reflect the increased accuracy objective of resource protection. The include the industry conducting of such data. FMP/EIS is the result of a long and training workshops and school III. Summary of the Changes to the laborious public process to identify the programs, information distribution, and Final Regulations at Subpart P threats to Sanctuary resources and community awareness. In addition, the The following summarizes the qualities, and then to develop PWC industry, NOAA and Florida Sanctuary regulations at 15 CFR part management strategies and action plans Department of Environmental Protection 922, subpart P, modified by this notice. to address these resource management will also develop a two to five year work Except as noted below, this section issues, including resource protection plan for the industry based on strategies remains the same as in the January 30, and multiple use management, which included in the Education and Outreach 1997, Federal Register notice. With the includes addressing user conflicts. Action Plan contained in the The FMP/EIS sets forth an action plan changes, the final rule published on management plan for the Sanctuary. and strategies to address the concerns January 30, 1997, at 62 FR 4578, and the Further, the PWC industry will conduct arising from the use of PWCs in regards revision of 15 CFR part 922, subpart P, research on the effects of PWC operation to protecting Sanctuary resources, and in this document shall apply throughout facilitating compatible multiple use of on shallow-water seagrass and the Sanctuary, including within State the Sanctuary. The FMP/EIS therefore hardbottom communities in the Florida waters of the Sanctuary, on July 1, 1997. provides additional criteria for the Keys. If the PWC industry adequately Section 922.160 sets forth the purpose measurement of success. The implements these measures within the of the regulations—to implement the STRATEGY FOR STEWARDSHIP first year after the effective date of these comprehensive final management plan (Overview or Executive Summary of the regulations, NOAA would view this as for the Sanctuary by regulating activities FKNMS MP/EIS—pages 9, 11–12, 19– a significant effort to address the affecting the Sanctuary in order to 20, 23) discusses these concerns, and a concerns raised during the development protect, preserve, and manage the plan to address problems arising from of the final management plan. In the conservation, ecological, recreational, PWCs, as well as other vessels. NOAA’s event zones are subsequently research, educational, historical and decision to modify the SAC’s determined to be necessary, NOAA aesthetic resources and qualities of the recommendations on PWC regulation would seek to discuss such measures area. Section 922.160 also describes the was in part based on PWC industry with the PWC industry early in the five-year review of the management statements on how it should be given an process. Further, at a minimum under plan and regulations for the Sanctuary. opportunity to ‘‘self-regulate’’ PWCs, the Administrative Procedure Act, there Section 922.163 prohibits a variety of work with NOAA on education geared would have to be a public notice of a activities within the Sanctuary and in toward changing user behavior, and proposed rule as well as a public limited instances, outside the establish criteria for the management of comment period. This would likely Sanctuary, thus making it unlawful for commercial PWC rental operations. involve public hearings before any rule any person to conduct them or cause The problems regarding operation of would become final. Moreover, the rule them to be conducted. PWCs and the planned solutions are would also have to be approved by the The fourth activity prohibited, identified and discussed throughout the Governor through the Board of Trustees § 922.163(a)(4), is the discharge or 32160 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations deposit of materials or other matter. during transit through such reserves or Federal Register notice, and Exceptions are made for such things as areas, provided further that in an management plan, in their entirety, will fish baits in connection with and during Ecological Reserve or Sanctuary apply throughout the Sanctuary, traditional fishing, biodegradable vessel Preservation Area located in Florida including within State waters of the effluents, graywater, and vessel exhaust State waters, such vessel is in Sanctuary. and cooling water. Under continuous transit through the Administrative Procedure Act § 922.163(a)(4)(ii), upland discharge or Ecological Reserve or Sanctuary deposit activities conducted pursuant to Preservation Area. The final Sanctuary regulations at 15 Monroe County and State permits are Section 922.164(f) provides that any CFR part 922, subpart P, which were also excepted from the prohibition additional Wildlife Management Areas, promulgated on January 30, 1997, against discharging or depositing Ecological Reserves, Sanctuary through notice and comment outside the Sanctuary any material or Preservation Areas, or Special-Use rulemaking, have been amended other matter that subsequently enters Areas, and additional restrictions in pursuant to and consistent with the the Sanctuary and injures any Sanctuary such areas will not take effect in State procedures required under the National resource. waters unless first approved by the Marine Sanctuaries Act. The NMSA Section 922.163(h) provides that any Florida Board of Trustees. provides that during the review period substantive (non-technical, non- Section 922.165 provides that where of forty-five day continuous session of editorial) amendment to the regulations necessary to prevent or minimize the Congress, the Governor may certify to will not take effect in State waters until destruction of, loss of, or injury to a the Secretary of Commerce any approved by the Florida Board of Sanctuary resource, or imminent risk of regulation as unacceptable and, if the Trustees. Fishing regulations will not such destruction of, loss of, or injury, Governor so certifies, the regulation take effect in State waters until any and all activities are subject to shall not take effect in the State waters established by the Florida Marine immediate temporary regulation, portion of the Sanctuary. As the changes Fisheries Commission. including prohibition. Any such requested by the Governor and herein Section 922.164 sets forth by temporary regulation may be in effect made by NOAA are within the scope of Sanctuary zone, restrictions and for up to 60 days with one 60-day the proposed rule, additional prior prohibitions above and beyond those extension. Additional or extended notice and opportunity for public applicable on a Sanctuary-wide basis action is subject to the provisions of the comment are not required by the (most of the Sanctuary is not zoned and, Administrative Procedure Act. No Administrative Procedure Act (APA), 5 therefore, only the Sanctuary-wide emergency regulation will take effect in U.S.C. 553. The basis and purpose of the prohibitions of § 922.163 apply). The six State waters of the Sanctuary until changes to the final regulations types of Sanctuary zones are: (1) Areas approved by the Governor of Florida. requested by the Governor have been set to be Avoided (ATBAs); (2) Existing forth above. IV. Miscellaneous Rulemaking Management Areas; (3) Wildlife The Assistant Administrator for Management Areas; (4) Ecological Requirements Ocean Services and Coastal Zone Reserves; (5) Sanctuary Preservation Except as noted below, this section Management has determined that, Areas; and (6) Special-use Areas. Details remains the same as in the January 30, pursuant to 5 U.S.C. 553(d)(3), there is on the location of these zones are 1997 Federal Register notice. good cause for making the modifications to the final regulations published in this specified in Appendices II, III, IV, V and National Marine Sanctuaries Act VI to subpart P, respectively. The intent document effective without a thirty day of the zoning regulations is to protect Section 304 of the National Marine delay in effective date. The primary Sanctuary resources, ecosystem and Sanctuaries Act provides that Congress purpose of the delayed effective date is biodiversity, and provide for effective and the Governor have forty-five days of to provide the public a reasonable time management and facilitation of continuous session of Congress to prepare to comply with the multiple, compatible uses, consistent beginning on the day on which the final regulations. The modifications to the with the purposes of the Sanctuary. regulations were published to review final regulations pertaining to the Activities located within two or more the terms of designation (i.e., Governor’s approval of new and overlapping Sanctuary zones are regulations and management plan). emergency regulations, and the five year concurrently subject to the regulations After forty-five days, the regulations review of the management plan and applicable to each overlapping area. would become final and take effect, regulations do not require compliance Section 922.164(d)(1)(ii) prohibits except that any term or terms of by the general public and, therefore, a possessing, moving, harvesting, designation the Governor certified to the delayed effective date is unnecessary. removing, taking, damaging, disturbing, Secretary of Commerce as unacceptable Further, the requirement that vessels breaking, cutting, spearing, or otherwise would not take effect in the State waters possessing fish, invertebrates or marine injuring any coral, marine invertebrate, portion of the Sanctuary. The forty-five plants must be in continuous transit fish, bottom formation, algae, seagrass or day review period began on January 30, through SPAs and Reserves located in other living or dead organism, including 1997, the date the final regulations were State waters is currently a requirement shells, or attempting any of these published in the Federal Register, and under State regulations and, therefore, a activities. However, fish, invertebrates, concluded on April 16, 1997. During delayed effective date is also and marine plants may be possessed that period the Governor submitted to unnecessary as the general public must aboard a vessel in an Ecological Reserve the Secretary a certification that the already comply with that corresponding or Sanctuary Preservation Area, management plan and certain restriction. Finally, the modification to provided such resources can be shown regulations were unacceptable unless the exception to the prohibition against not to have been harvested within, specific amendments were made to such discharging and depositing outside the removed from, or taken within, the regulations. NOAA amended those Sanctuary any material or other matter Ecological Reserve or Sanctuary regulations certified as unacceptable by that subsequently enters and injures a Preservation Area, as applicable, by incorporating the Governor’s changes. Sanctuary resource broadens the being stowed in a cabin, locker, or Consequently, upon their effective date exception to include activities similar storage area prior to entering and the regulations, as revised by this authorized by State permit and, Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32161 therefore, relieves a restriction, Recreation and recreation areas, Sanctuary by regulating activities specifically excepted from a delay in Reporting and recordkeeping affecting the resources of the Sanctuary effective date under 5 U.S.C. 553(d)(1). requirements, Research. or any of the qualities, values, or Consequently, the final rule published Dated: June 5, 1997. purposes for which the Sanctuary is on January 30, 1997, at 62 FR 4578 and Nancy Foster, designated, in order to protect, preserve the revision of 15 CFR part 922, subpart and manage the conservation, Assistant Administrator for Ocean Services P in this document are effective July 1, and Coastal Zone Management. ecological, recreational, research, 1997. educational, historical, and aesthetic Accordingly, for the reasons set forth resources and qualities of the area. In Regulatory Flexibility Act above, 15 CFR part 922 is amended as particular, the regulations in this part The January 30, 1997 Federal Register follows: are intended to protect, restore, and notice stated: PART 922ÐNATIONAL MARINE enhance the living resources of the Because the Assistant General Counsel for SANCTUARY PROGRAM Sanctuary, to contribute to the Legislation and Regulation of the Department REGULATIONS maintenance of natural assemblages of of Commerce certified to the Chief Counsel living resources for future generations, for Advocacy of the Small Business 1. The authority citation for part 922 to provide places for species dependent Administration that the proposed continues to read as follows: on such living resources to survive and regulations, if adopted, would not have a propagate, to facilitate to the extent significant economic impact on a substantial Authority: 16 U.S.C. 1431 et seq. number of small entities, an Initial compatible with the primary objective 2. Part 922 is amended by revising of resource protection all public and Regulatory Flexibility Analysis (IRFA) was subpart P to read as follows: not prepared. Nevertheless, because the final private uses of the resources of the regulations will affect a substantial number Subpart PÐFlorida Keys National Sanctuary not prohibited pursuant to of small entities, although not in an Marine Sanctuary other authorities, to reduce conflicts economically significant way, and between such compatible uses, and to particularly because some representatives of Sec. achieve the other policies and purposes the small entity fishing industry criticized 922.160 Purpose. of the Florida Keys National Marine the DEIS socioeconomic assessment of the 922.161 Boundary. zoning scheme, a Final Regulatory Flexibility Sanctuary and Protection Act and the 922.162 Definitions. National Marine Sanctuaries Act. Analysis (FRFA) was prepared that fully 922.163 Prohibited activities—Sanctuary- complies with the requirements of Regulatory wide. (b) Section 304(e) of the NMSA Flexibility Act. 922.164 Additional activity regulations by requires the Secretary to review The changes made in response to the Sanctuary area. management plans and regulations Governor’s request do not change the 922.165 Emergency regulations. every five years, and make necessary 922.166 Permits—application procedures basis for that certification. In response revisions. Upon completion of the five and issuance criteria. year review of the Sanctuary to the FRFA, the Office of the Chief 922.167 Certification of preexisting leases, Counsel for Advocacy of the Small licenses, permits, approvals, other management plan and regulations, the Business Administration (SBA) received authorizations, or rights to conduct a Secretary will repropose the regulations several comments critical of certain prohibited activity. in their entirety with any proposed portions of the FRFA, specifically as Appendix I to Subpart P of Part 922—Florida changes thereto, including those regards the treatment of submerged Keys National Marine Sanctuary regulations in subparts A and E of this cultural resources and the impacts to Boundary Coordinates part that apply to the Sanctuary. The treasure salvors. Comments were also Appendix II to Subpart P of Part 922— Governor of the State of Florida will Existing Management Areas Boundary have the opportunity to review the re- received from the Florida Keys Marine Coordinates Life Association raising concerns that Appendix III to Subpart P of Part 922— proposed regulations before they take the impacts to their industry have not Wildlife Management Areas Access effect and if the Governor certifies such been properly qualified in the economic Restrictions regulations as unacceptable, they will impact analysis. Because of the time Appendix IV to Subpart P of Part 922— not take effect in State waters of the provided by the forty-five day review Ecological Reserves Boundary Sanctuary. Coordinates period under the National Marine § 922.161 Boundary. Sanctuaries Act, NOAA is Appendix V to Subpart P of Part 922— Sanctuary Preservation Areas Boundary supplementing the FRFA to address the The Sanctuary consists of all Coordinates submerged lands and waters from the comments received by the SBA. The Appendix VI to Subpart P of Part 922— final supplemental FRFA will be Special-use Areas Boundary Coordinates mean high water mark to the boundary completed prior to the effective date of and Use Designations described in Appendix I to this subpart, these regulations. Upon its completion, Appendix VII to Subpart P of Part 922— with the exception of areas within the NOAA will publish a Federal Register Areas To Be Avoided Boundary Dry Tortugas National Park. Appendix I notice summarizing the supplemental Coordinates to this subpart sets forth the precise FRFA and announcing its availability, Appendix VIII to Subpart P of Part 922— Sanctuary boundary established by the Marine Life Rule [As Excerpted From and, if appropriate, making any changes Florida Keys National Marine Sanctuary Chapter 46–42 of the Florida and Protection Act. (See FKNMSPA to the regulations NOAA determines are Administrative Code] necessary as a result of the § 5(b)(2)). supplemental FRFA. Subpart PÐFlorida Keys National § 922.162 Definitions. Marine Sanctuary List of Subjects in 15 CFR Parts 922, (a) The following definitions apply to 929, and 937 § 922.160 Purpose. the Florida Keys National Marine Administrative practice and (a) The purpose of the regulations in Sanctuary regulations. To the extent that procedure, Coastal zone, Education, this subpart is to implement the a definition appears in § 922.3 and this Environmental protection, Marine comprehensive management plan for section, the definition in this section resources, Natural resources, Penalties, the Florida Keys National Marine governs. 32162 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations

Acts means the Florida Keys National above and beyond those provided by Marine life species means any species Marine Sanctuary and Protection Act, as Sanctuary-wide prohibitions and of fish, invertebrate, or plant included amended, (FKNMSPA) (Pub. L. 101– restrictions are needed to adequately in sections (2), (3), or (4) of Rule 46– 605), and the National Marine protect resources. Appendix II to this 42.001, Florida Administrative Code, Sanctuaries Act (NMSA), also known as subpart sets forth the geographic reprinted in Appendix VIII to this Title III of the Marine Protection, coordinates of these areas. subpart. Research, and Sanctuaries Act, as Exotic species means a species of Military activity means an activity amended, (MPRSA) (16 U.S.C. 1431 et plant, invertebrate, fish, amphibian, conducted by the Department of Defense seq.). reptile or mammal whose natural with or without participation by foreign Adverse effect means any factor, force, zoogeographic range would not have forces, other than civil engineering and or action that independently or included the waters of the Atlantic other civil works projects conducted by cumulatively damages, diminishes, Ocean, Caribbean, or Gulf of Mexico the U.S. Army Corps of Engineers. degrades, impairs, destroys, or without passive or active introduction No-access buffer zone means a otherwise harms any Sanctuary to such area through anthropogenic portion of the Sanctuary where vessels resource, as defined in section 302(8) of means. are prohibited from entering regardless the NMSA (16 U.S.C. 1432(8)) and in Fish means finfish, mollusks, of the method of propulsion. this section, or any of the qualities, crustaceans, and all forms of marine No motor zone means an area of the values, or purposes for which the animal and plant life other than marine Sanctuary where the use of internal combustion motors is prohibited. A Sanctuary is designated. mammals and birds. vessel with an internal combustion Airboat means a vessel operated by Fishing means: motor may access a no motor zone only means of a motor driven propeller that (1) The catching, taking, or harvesting through the use of a push pole, paddle, pushes air for momentum. of fish; the attempted catching, taking, sail, electric motor or similar means of Areas To Be Avoided means the areas or harvesting of fish; any other activity operation but is prohibited from using in which vessel operations are which can reasonably be expected to it’s internal combustion motor. prohibited pursuant to section 6(a)(1) of result in the catching, taking, or the FKNMSPA (see § 922.164(a)). Not available for immediate use harvesting of fish; or any operation at means not readily accessible for Appendix VII to this subpart sets forth sea in support of, or in preparation for, the geographic coordinates of these immediate use, e.g., by being stowed any activity described in this unbaited in a cabin, locker, rod holder, areas, including any modifications subparagraph (1). thereto made in accordance with section or similar storage area, or by being (2) Such term does not include any securely covered and lashed to a deck 6(a)(3) of the FKNMSPA. scientific research activity which is Closed means all entry or use is or bulkhead. conducted by a scientific research prohibited. Officially marked channel means a Coral means the corals of the Class vessel. channel marked by Federal, State of Hydrozoa (stinging and hydrocorals); Hardbottom means a submerged Florida, or Monroe County officials of the Class Anthozoa, Subclass marine community comprised of competent jurisdiction with Hexacorallia, Order Scleractinia (stony organisms attached to exposed solid navigational aids except for channels corals) and Antipatharia (black corals). rock substrate. Hardbottom is the marked idle speed only/no wake. Coral area means marine habitat substrate to which corals may attach but Personal watercraft means any jet or where coral growth abounds including does not include the corals themselves. air-powered watercraft operated by patch reefs, outer bank reefs, deepwater Idle speed only/no-wake means a standing, sitting, or kneeling on or banks, and hardbottoms. speed at which a boat is operated that behind the vessel, in contrast to a Coral reefs means the hard bottoms, is no greater than 4 knots or does not conventional boat, where the operator deep-water banks, patch reefs, and outer produce a wake. stands or sits inside the vessel, and that bank reefs. Idle speed only/no-wake zone means uses an inboard engine to power a water Ecological Reserve means an area of a portion of the Sanctuary where the jet pump for propulsion, instead of a the Sanctuary consisting of contiguous, speed at which a boat is operated may propeller as in a conventional boat. diverse habitats, within which uses are be no greater than 4 knots or may not Prop dredging means the use of a subject to conditions, restrictions and produce a wake. vessel’s propulsion wash to dredge or prohibitions, including access Live rock means any living marine otherwise alter the seabed of the restrictions, intended to minimize organism or an assemblage thereof Sanctuary. Prop dredging includes, but human influences, to provide natural attached to a hard substrate, including is not limited to, the use of propulsion spawning, nursery, and permanent dead coral or rock but not individual wash deflectors or similar means of residence areas for the replenishment mollusk shells (e.g., scallops, clams, dredging or otherwise altering the and genetic protection of marine life, oysters). Living marine organisms seabed of the Sanctuary. Prop dredging and also to protect and preserve natural associated with hard bottoms, banks, does not include the disturbance to assemblages of habitats and species reefs, and live rock may include, but are bottom sediments resulting from normal within areas representing a broad not limited to: sea anemones (Phylum vessel propulsion. diversity of resources and habitats Cnidaria: Class Anthozoa: Order Prop scarring means the injury to found within the Sanctuary. Appendix Actinaria); sponges (Phylum Porifera); seagrasses or other immobile organisms IV to this subpart sets forth the tube worms (Phylum Annelida), attached to the seabed of the Sanctuary geographic coordinates of these areas. including fan worms, feather duster caused by operation of a vessel in a Existing Management Area means an worms, and Christmas tree worms; manner that allows its propeller or other area of the Sanctuary that is within or bryozoans (Phylum Bryzoa); sea squirts running gear, or any part thereof, to is a resource management area (Phylum Chordata); and marine algae, cause such injury (e.g., cutting seagrass established by NOAA or by another including Mermaid’s fan and cups rhizomes). Prop scarring does not Federal authority of competent (Udotea spp.), corraline algae, green include minor disturbances to bottom jurisdiction as of the effective date of feather, green grape algae (Caulerpa sediments or seagrass blades resulting these regulations where protections spp.) and watercress (Halimeda spp.). from normal vessel propulsion. Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32163

Residential shoreline means any man- jurisdiction of the United States [46 except as permitted under 50 CFR part made or natural: U.S.C. 2101]. 638. (1) Shoreline, Traditional fishing means those (ii) Harvesting, or attempting to (2) Canal mouth, commercial or recreational fishing harvest, any live rock from the (3) Basin, or activities that were customarily Sanctuary, or possessing (regardless of (4) Cove adjacent to any residential conducted within the Sanctuary prior to where taken from) any live rock within land use district, including improved its designation as identified in the the Sanctuary, except as authorized by subdivision, suburban residential or Environmental Impact Statement and a permit for the possession or harvest suburban residential limited, sparsely Management Plan for this Sanctuary. from aquaculture operations in the settled, urban residential, and urban Tropical fish means any species Exclusive Economic Zone, issued by the residential mobile home under the included in section (2) of Rule 46– National Marine Fisheries Service Monroe County land development 42.001, Florida Administrative Code, pursuant to applicable regulations regulations. reproduced in Appendix VIII to this under the appropriate Fishery Sanctuary means the Florida Keys subpart, or any part thereof. Management Plan, or as authorized by National Marine Sanctuary. Vessel means a watercraft of any the applicable State authority of Sanctuary Preservation Area means description, including, but not limited competent jurisdiction within the an area of the Sanctuary that to, motorized and non-motorized Sanctuary for live rock cultured on State encompasses a discrete, biologically watercraft, personal watercraft, airboats, submerged lands leased from the State important area, within which uses are and float planes while maneuvering on of Florida, pursuant to applicable State subject to conditions, restrictions and the water, capable of being used as a law. See § 370.027, Florida Statutes and prohibitions, including access means of transportation in/on the waters implementing regulations. restrictions, to avoid concentrations of of the Sanctuary. For purposes of this (3) Alteration of, or construction on, uses that could result in significant part, the terms ‘‘vessel,’’ ‘‘watercraft,’’ the seabed. Drilling into, dredging, or declines in species populations or and ‘‘boat’’ have the same meaning. otherwise altering the seabed of the habitat, to reduce conflicts between Wildlife Management Area means an Sanctuary, or engaging in prop- uses, to protect areas that are critical for area of the Sanctuary established for the dredging; or constructing, placing or sustaining important marine species or management, protection, and abandoning any structure, material, or habitats, or to provide opportunities for preservation of Sanctuary wildlife other matter on the seabed of the scientific research. Appendix V to this resources, including such an area Sanctuary, except as an incidental result subpart sets forth the geographic established for the protection and of: coordinates of these areas. preservation of endangered or (i) Anchoring vessels in a manner not Sanctuary wildlife means any species threatened species or their habitats, otherwise prohibited by this part (see of fauna, including avifauna, that within which access is restricted to §§ 922.163(a)(5)(ii) and occupy or utilize the submerged minimize disturbances to Sanctuary 922.164(d)(1)(v)); (ii) Traditional fishing activities not resources of the Sanctuary as nursery wildlife; to ensure protection and otherwise prohibited by this part; areas, feeding grounds, nesting sites, preservation consistent with the (iii) Installation and maintenance of shelter, or other habitat during any Sanctuary designation and other navigational aids by, or pursuant to portion of their life cycles. applicable law governing the protection and preservation of wildlife resources in valid authorization by, any Federal, Seagrass means any species of marine State, or local authority of competent angiosperms (flowering plants) that the Sanctuary. Appendix III to this subpart lists these areas and their access jurisdiction; inhabit portions of the seabed in the (iv) Harbor maintenance in areas Sanctuary. Those species include, but restrictions. (b) Other terms appearing in the necessarily associated with Federal are not limited to: Thalassia testudinum regulations in this part are defined at 15 water resource development projects in (turtle grass); Syringodium filiforme CFR 922.3, and/or in the Marine existence on July 1, 1997, including (manatee grass); Halodule wrightii Protection, Research, and Sanctuaries maintenance dredging of entrance (shoal grass); Halophila decipiens, H. Act (MPRSA), as amended, 33 U.S.C. channels and repair, replacement, or engelmannii, H. johnsonii; and Ruppia 1401 et seq. and 16 U.S.C. 1431 et seq. rehabilitation of breakwaters or jetties; maritima. (v) Construction, repair, replacement, Special-use Area means an area of the § 922.163 Prohibited activitiesÐ or rehabilitation of docks, seawalls, Sanctuary set aside for scientific Sanctuary-wide. breakwaters, piers, or marinas with less research and educational purposes, (a) Except as specified in paragraph than ten slips authorized by any valid recovery or restoration of Sanctuary (b) through (e) of this section, the lease, permit, license, approval, or other resources, monitoring, to prevent use or following activities are prohibited and authorization issued by any Federal, user conflicts, to facilitate access and thus are unlawful for any person to State, or local authority of competent use, or to promote public use and conduct or to cause to be conducted: jurisdiction. understanding of Sanctuary resources. (1) Mineral and hydrocarbon (4) Discharge or deposit of materials Appendix VI to this subpart sets forth exploration, development and or other matter. (i) Discharging or the geographic coordinates of these production. Exploring for, developing, depositing, from within the boundary of areas. or producing minerals or hydrocarbons the Sanctuary, any material or other Tank vessel means any vessel that is within the Sanctuary. matter, except: constructed or adapted to carry, or that (2) Removal of, injury to, or (A) Fish, fish parts, chumming carries, oil or hazardous material in bulk possession of coral or live rock. (i) materials, or bait used or produced as cargo or cargo residue, and that— Moving, removing, taking, harvesting, incidental to and while conducting a (1) Is a United States flag vessel; damaging, disturbing, breaking, cutting, traditional fishing activity in the (2) Operates on the navigable waters or otherwise injuring, or possessing Sanctuary; of the United States; or (regardless of where taken from) any (B) Biodegradable effluent incidental (3) Transfers oil or hazardous material living or dead coral, or coral formation, to vessel use and generated by a marine in a port or place subject to the or attempting any of these activities, sanitation device approved in 32164 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations accordance with section 312 of the way or displacing, removing, or of these regulations, provided that the Federal Water Pollution Control Act, as tampering with any official signs, holder of such authorization or right amended, (FWPCA), 33 U.S.C. 1322 et notices, or placards, whether temporary complies with § 922.167 and with any seq.; or permanent, or with any navigational terms and conditions on the exercise of (C) Water generated by routine vessel aids, monuments, stakes, posts, mooring such authorization or right imposed by operations (e.g., deck wash down and buoys, boundary buoys, trap buoys, or the Director as a condition of graywater as defined in section 312 of scientific equipment. certification as he or she deems the FWPCA), excluding oily wastes from (9) Movement of, removal of, injury to, reasonably necessary to achieve the bilge pumping; or or possession of Sanctuary historical purposes for which the Sanctuary was (D) Cooling water from vessels or resources. Moving, removing, injuring, designated. engine exhaust; or possessing, or attempting to move, (d) Notwithstanding the prohibitions (ii) Discharging or depositing, from remove, injure, or possess, a Sanctuary in this section and in § 922.164, and any beyond the boundary of the Sanctuary, historical resource. access and use restrictions imposed any material or other matter that (10) Take or possession of protected pursuant thereto, a person may conduct subsequently enters the Sanctuary and wildlife. Taking any marine mammal, an activity specifically authorized by injures a Sanctuary resource or quality, sea turtle, or seabird in or above the any valid Federal, State, or local lease, except those listed in paragraph (a)(4)(i) Sanctuary, except as authorized by the permit, license, approval, or other (A) through (D) of this section and those Marine Mammal Protection Act, as authorization issued after the effective authorized under Monroe County land amended, (MMPA), 16 U.S.C. 1361 et date of these regulations, provided that use permits or under State permits. seq., the Endangered Species Act, as the applicant complies with § 922.168, (5) Operation of vessels. (i) Operating amended, (ESA), 16 U.S.C. 1531 et seq., the Director notifies the applicant and a vessel in such a manner as to strike and the Migratory Bird Treaty Act, as authorizing agency that he or she does amended, (MBTA) 16 U.S.C. 703 et seq. or otherwise injure coral, seagrass, or not object to issuance of the (11) Possession or use of explosives or any other immobile organism attached authorization, and the applicant electrical charges. Possessing, or using to the seabed, including, but not limited complies with any terms and conditions to, operating a vessel in such a manner explosives, except powerheads, or releasing electrical charges within the the Director deems reasonably necessary as to cause prop-scarring. to protect Sanctuary resources and (ii) Having a vessel anchored on living Sanctuary. (12) Harvest or possession of marine qualities. Amendments, renewals and coral other than hardbottom in water extensions of authorizations in depths less than 40 feet when visibility life species. Harvesting, possessing, or landing any marine life species, or part existence on the effective date of these is such that the seabed can be seen. regulations constitute authorizations (iii) Except in officially marked thereof, within the Sanctuary, except in accordance with rules 46–42.001 issued after the effective date of these channels, operating a vessel at a speed regulations. greater than 4 knots or in manner which through 46–42.003, 46–42.0035, and 46– (e) (1) All military activities shall be creates a wake: 42.004 through 46–42.007, and carried out in a manner that avoids to (A) Within an area designated idle 46.42.009 of the Florida Administrative the maximum extent practical any speed only/no wake; Code, reproduced in Appendix VIII to (B) Within 100 yards of navigational this subpart, and such rules shall apply adverse impacts on Sanctuary resources aids indicating emergent or shallow mutatis mutandis (with necessary and qualities. The prohibitions in reefs (international diamond warning editorial changes) to all Federal and paragraph (a) of this section and symbol); State waters within the Sanctuary. § 922.164 do not apply to existing (C) Within 100 feet of the red and (13) Interference with law classes of military activities which were white ‘‘divers down’’ flag (or the blue enforcement. Interfering with, conducted prior to the effective date of and white ‘‘alpha’’ flag in Federal obstructing, delaying or preventing an these regulations, as identified in the waters); investigation, search, seizure, or Environmental Impact Statement and (D) Within 100 yards of residential disposition of seized property in Management Plan for the Sanctuary. shorelines; or connection with enforcement of the New military activities in the Sanctuary (E) Within 100 yards of stationary Acts or any regulation or permit issued are allowed and may be exempted from vessels. under the Acts. the prohibitions in paragraph (a) of this (iv) Operating a vessel in such a (b) Notwithstanding the prohibitions section and in § 922.164 by the Director manner as to injure or take wading, in this section and in § 922.164, and any after consultation between the Director roosting, or nesting birds or marine access and use restrictions imposed and the Department of Defense pursuant mammals. pursuant thereto, a person may conduct to section 304(d) of the NMSA. When a (v) Operating a vessel in a manner an activity specifically authorized by, military activity is modified such that it which endangers life, limb, marine and conducted in accordance with the is likely to destroy, cause the loss of, or resources, or property. scope, purpose, terms, and conditions injure a Sanctuary resource or quality in (6) Conduct of diving/snorkeling of, a National Marine Sanctuary permit a manner significantly greater than was without flag. Diving or snorkeling issued pursuant to § 922.166. considered in a previous consultation without flying in a conspicuous manner (c) Notwithstanding the prohibitions under section 304(d) of the NMSA, or it the red and white ‘‘divers down’’ flag in this section and in § 922.164, and any is likely to destroy, cause the loss of, or (or the blue and white ‘‘alpha’’ flag in access and use restrictions imposed injure a Sanctuary resource or quality Federal waters). pursuant thereto, a person may conduct not previously considered in a previous (7) Release of exotic species. an activity specifically authorized by a consultation under section 304(d) of the Introducing or releasing an exotic valid Federal, State, or local lease, NMSA, the activity is considered a new species of plant, invertebrate, fish, permit, license, approval, or other activity for purposes of this paragraph. amphibian, or mammals into the authorization in existence on the If it is determined that an activity may Sanctuary. effective date of these regulations, or by be carried out, such activity shall be (8) Damage or removal of markers. any valid right of subsistence use or carried out in a manner that avoids to Marking, defacing, or damaging in any access in existence on the effective date the maximum extent practical any Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32165 adverse impact on Sanctuary resources in all areas to be avoided, except if such to location and purpose, at appropriate and qualities. vessel is a public vessel and its intervals and locations, clearly (2) In the event of threatened or actual operation is essential for national delineating an area as an ‘‘idle speed destruction of, loss of, or injury to a defense, law enforcement, or responses only/no wake’’, a ‘‘no-motor’’, or a ‘‘no- Sanctuary resource or quality resulting to emergencies that threaten life, access buffer’’ zone or as ‘‘closed’’, and from an untoward incident, including property, or the environment. Appendix allowing instant, long-range recognition but not limited to spills and groundings VII to this subpart sets forth the by boaters. Such signs shall display the caused by the Department of Defense, geographic coordinates of these areas. official logo of the Sanctuary. the cognizant component shall promptly (b) Existing Management Areas.—(1) (2) The following activities are coordinate with the Director for the Key Largo and Looe Key Management prohibited within the marine portions of purpose of taking appropriate actions to Areas. The following activities are the Wildlife Management Areas listed in prevent, respond to or mitigate the harm prohibited within the Key Largo and Appendix III to this subpart: and, if possible, restore or replace the Looe Key Management Areas (also (i) In those marine portions of any Sanctuary resource or quality. known as the Key Largo and Looe Key Wildlife Management Area designated (f) The prohibitions contained in National Marine Sanctuaries) described an ‘‘idle speed only/no wake’’ zone in paragraph (a)(5) of this section do not in Appendix II to this subpart: Appendix III to this subpart, operating apply to Federal, State and local officers (i) Removing, taking, damaging, a vessel at a speed greater that idle while performing enforcement duties harmfully disturbing, breaking, cutting, speed only/no wake. and/or responding to emergencies that spearing or similarly injuring any coral (ii) In those marine portions of any threaten life, property, or the or other marine invertebrate, or any Wildlife Management Area designated a environment in their official capacity. plant, soil, rock, or other material, ‘‘no-motor’’ zone in Appendix III to this (g) Notwithstanding paragraph (b) of except commercial taking of spiny subpart, using internal combustion this section and paragraph (a) of lobster and stone crab by trap and motors or engines for any purposes. A recreational taking of spiny lobster by § 922.168, in no event may the Director vessel with an internal combustion hand or by hand gear which is issue a permit under § 922.166 motor or engine may access a ‘‘no- consistent with these regulations and authorizing, or otherwise approve, the motor’’ zone only through the use of a the applicable regulations implementing exploration for, leasing, development, or push pole, paddle, sail, electric motor or the applicable Fishery Management production of minerals or hydrocarbons similar means of propulsion. within the Sanctuary, the disposal of Plan. (ii) Taking any tropical fish. (iii) In those marine portions of any dredged material within the Sanctuary Wildlife Management Area designated a other than in connection with beach (iii) Fishing with wire fish traps, bottom trawls, dredges, fish sleds, or ‘‘no-access buffer’’ zone in Appendix III renourishment or Sanctuary restoration of this subpart, entering the area by projects, or the discharge of untreated or similar vessel-towed or anchored bottom fishing gear or nets. vessel. primary treated sewage (except by a (iv) In those marine portions of any certification, pursuant to § 922.167, of a (iv) Fishing with, carrying or possessing, except while passing Wildlife Management Area designated valid authorization in existence on the as closed in Appendix III of this effective date of these regulations), and through without interruption or for law enforcement purposes: pole spears, air subpart, entering or using the area. any purported authorizations issued by (3) The Director shall coordinate with other authorities after the effective date rifles, bows and arrows, slings, Hawaiian slings, rubber powered other Federal, State, or local resource of these regulations for any of these management authorities, as appropriate, activities within the Sanctuary shall be arbaletes, pneumatic and spring-loaded guns or similar devices known as in the establishment and enforcement of invalid. access restrictions described in (h) Any amendment to these spearguns. paragraph (c)(2) (i)–(iv) of this section in regulations shall not take effect in (2) Great White Heron and Key West the marine portions of Wildlife Florida State waters until approved by National Wildlife Refuge Management Management Areas. the Board of Trustees of the Internal Areas. Operating a personal watercraft, (4) The Director may modify the Improvement Trust Fund of the State of operating an airboat, or water skiing number and location of access Florida. Any fishery regulations in the except within Township 66 South, restrictions described in paragraph (c)(2) Sanctuary shall not take effect in Florida Range 29 East, Sections 5, 11, 12 and 14; (i)–(iv) of this section within the marine State waters until established by the Township 66 South, Range 28 East, portions of a Wildlife Management Area Florida Marine Fisheries Commission. Section 2; Township 67 South, Range 26 East, Sections 16 and 20, all Tallahassee if the Director finds that such action is § 922.164 Additional activity regulations Meridian, are prohibited within the reasonably necessary to minimize by Sanctuary area. marine portions of the Great White disturbances to Sanctuary wildlife, or to In addition to the prohibitions set Heron and Key West National Wildlife ensure protection and preservation of forth in § 922.163, which apply Refuge Management Areas described in Sanctuary wildlife consistent with the throughout the Sanctuary, the following Appendix II to this subpart. purposes of the Sanctuary designation regulations apply with respect to (c) Wildlife Management Areas. (1) and other applicable law governing the activities conducted within the Marine portions of the Wildlife protection and preservation of wildlife Sanctuary areas described in this Management Areas listed in Appendix resources in the Sanctuary. The Director section and in Appendix (II) through III to this subpart or portions thereof will effect such modification by: (VII) to this subpart. Activities located may be designated ‘‘idle speed only/no- (i) Publishing in the Federal Register, within two or more overlapping wake,’’ ‘‘no-motor’’ or ‘‘no-access after notice and an opportunity for Sanctuary areas are concurrently subject buffer’’ zones or ‘‘closed’’. The Director, public comments in accordance, an to the regulations applicable to each in cooperation with other Federal, State, amendment to the list of such areas set overlapping area. or local resource management forth in Appendix III to this subpart, (a) Areas To Be Avoided. Operating a authorities, as appropriate, shall post and a notice regarding the time and tank vessel or a vessel greater than 50 signs conspicuously, using mounting place where maps depicting the precise meters in registered length is prohibited posts, buoys, or other means according locations of such restrictions will be 32166 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations made available for public inspection, place until the anchor is placed in (iv) ‘‘Facilitated-use area’’ to provide and accordance with these requirements. for the prevention of use or user (ii) Posting official signs delineating (vi) Anchoring instead of mooring conflicts or the facilitation of access and such restrictions in accordance with when a mooring buoy is available or use, or to promote public use and paragraph (c)(1) of this section. anchoring in other than a designated understanding, of Sanctuary resources (d) Ecological Reserves and Sanctuary anchoring area when such areas have through the issuance of special-use Preservation Areas. (1) The following been designated and are available. permits. activities are prohibited within the (vii) Except for passage without (2) A Special-use Area shall be no Ecological Reserves described in interruption through the area, for law larger than the size the Director deems Appendix IV to this subpart, and within enforcement purposes, or for purposes reasonably necessary to accomplish the the Sanctuary Preservation Areas, of monitoring pursuant to paragraph applicable objective. described in Appendix V to this (d)(2) of this section, violating a (3) Persons conducting activities subpart: temporary access restriction imposed by within any Special-use Area shall (i) Discharging or depositing any the Director pursuant to paragraph (d)(2) comply with the access and use material or other matter except cooling of this section. restrictions specified in this paragraph water or engine exhaust. (2) The Director may temporarily and made applicable to such area by (ii) Possessing, moving, harvesting, restrict access to any portion of any means of its designation as a ‘‘recovery removing, taking, damaging, disturbing, Sanctuary Preservation Area or area,’’ ‘‘restoration area,’’ ‘‘research-only breaking, cutting, spearing, or otherwise Ecological Reserve if the Director, on the area,’’ or ‘‘facilitated-use area.’’ Except injuring any coral, marine invertebrate, basis of the best available data, for passage without interruption fish, bottom formation, algae, seagrass or information and studies, determines through the area or for law enforcement other living or dead organism, including that a concentration of use appears to be purposes, no person may enter a shells, or attempting any of these causing or contributing to significant Special-use Area except to conduct or activities. However, fish, invertebrates, degradation of the living resources of cause to be conducted the following and marine plants may be possessed the area and that such action is activities: aboard a vessel in an Ecological Reserve reasonably necessary to allow for or Sanctuary Preservation Area, recovery of the living resources of such (i) in such area designated as a provided such resources can be shown area. The Director will provide for ‘‘recovery area’’ or a ‘‘restoration area’’, not to have been harvested within, continuous monitoring of the area habitat manipulation related to removed from, or taken within, the during the pendency of the restriction. restoration of degraded or otherwise Ecological Reserve or Sanctuary The Director will provide public notice injured Sanctuary resources, or Preservation Area, as applicable, by of the restriction by publishing a notice activities reasonably necessary to being stowed in a cabin, locker, or in the Federal Register, and by such monitor recovery of degraded or similar storage area prior to entering and other means as the Director may deem otherwise injured Sanctuary resources; during transit through such reserves or appropriate. The Director may only (ii) in such area designated as a areas, provided further that in an restrict access to an area for a period of ‘‘research only area’’, scientific research Ecological Reserve or Sanctuary 60 days, with one additional 60 day or educational use specifically Preservation Area located in Florida renewal. The Director may restrict authorized by and conducted in State waters, such vessel is in access to an area for a longer period accordance with the scope, purpose, continuous transit through the pursuant to a notice and opportunity for terms and conditions of a valid National Ecological Reserve or Sanctuary public comment rulemaking under the Marine Sanctuary General or Historical Preservation Area. Administrative Procedure Act. Such Resources permit, or (iii) Except for catch and release restriction will be kept to the minimum (iii) in such area designated as a fishing by trolling in the Conch Reef, amount of area necessary to achieve the ‘‘facilitated-use area’’, activities Alligator Reef, Sombrero Reef, and Sand purposes thereof. specified by the Director or specifically Key SPAs, fishing by any means. (e) Special-use Areas. (1) The Director authorized by and conducted in However, gear capable of harvesting fish may set aside discrete areas of the accordance with the scope, purpose, may be aboard a vessel in an Ecological Sanctuary as Special-use Areas, and, by terms, and conditions of a valid Special- Reserve or Sanctuary Preservation Area, designation pursuant to this paragraph, use permit. provided such gear is not available for impose the access and use restrictions (4)(i) The Director may modify the immediate use when entering and specified in paragraph (e)(3) of this number of, location of, or designations during transit through such Ecological section. Special-use Areas are described applicable to, Special-use Areas by Reserve or Sanctuary Preservation Area, in Appendix VI to this subpart, in publishing in the Federal Register, after and no presumption of fishing activity accordance with the following notice and an opportunity for public shall be drawn therefrom. designations and corresponding comment in accordance with the (iv) Touching living or dead coral, objectives: Administrative Procedure Act, an including but not limited to, standing (i) ‘‘Recovery area’’ to provide for the amendment to Appendix VI to this on a living or dead coral formation. recovery of Sanctuary resources from subpart, except that, with respect to (v) Placing any anchor in a way that degradation or other injury attributable such areas designated as a ‘‘recovery allows the anchor or any portion of the to human uses; area,’’ ‘‘restoration area,’’ or ‘‘research anchor apparatus (including the anchor, (ii) ‘‘Restoration area’’ to provide for only area,’’ the Director may modify the chain or rope) to touch living or dead restoration of degraded or otherwise number of, location of, or designation coral, or any attached organism. When injured Sanctuary resources; applicable to, such areas by publishing anchoring dive boats, the first diver (iii) ‘‘Research-only area’’ to provide a notice of such action in the Federal down must inspect the anchor to ensure for scientific research or education Register if the Director determines that that it is not touching living or dead relating to protection and management, immediate action is reasonably coral, and will not shift in such a way through the issuance of a Sanctuary necessary to: as to touch such coral or other attached General permit for research pursuant to (A) Prevent significant injury to organisms. No further diving shall take § 922.166 of these regulations; and Sanctuary resources where Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32167 circumstances create an imminent risk Marine Sanctuary General permit issued activities will further and are consistent to such resources; under this paragraph (a). with the purposes for which such area (B) Initiate restoration activity where (2) The Director, at his or her was established, as described in a delay in time would significantly discretion, may issue a General permit §§ 922.162 and 922.164 and in the impair the ability of such restoration under this paragraph (a), subject to such management plan for the Sanctuary. activity to succeed; terms and conditions as he or she deems (b) National Marine Sanctuary (C) Initiate research activity where an appropriate, if the Director finds that the Survey/Inventory of Historical unforeseen natural event produces an activity will: Resources Permit. (1) A person may opportunity for scientific research that (i) Further research or monitoring conduct an activity prohibited by may be lost if research is not initiated related to Sanctuary resources and §§ 922.163 or 922.164 involving the immediately. qualities; survey/inventory of Sanctuary historical (ii) Further the educational value of resources if such activity is specifically (ii) If the Director determines that a the Sanctuary; authorized by, and is conducted in notice of modification must be (iii) Further the natural or historical accordance with the scope, purpose, promulgated immediately in accordance resource value of the Sanctuary; terms and conditions of, a Survey/ with paragraph (e)(4)(i) of this section, (iv) Further salvage or recovery Inventory of Historical Resources permit the Director will, as part of the same operations in or near the Sanctuary in issued under this paragraph (b). Such notice, invite public comment and connection with a recent air or marine permit is not required if such survey/ specify that comments will be received casualty; inventory activity does not involve any for 15 days after the effective date of the (v) Assist in managing the Sanctuary; activity prohibited by §§ 922.163 or notice. As soon as practicable after the or 922.164. Thus, survey/inventory end of the comment period, the Director (vi) Otherwise further Sanctuary activities that are non-intrusive, do not will either rescind, modify or allow the purposes, including facilitating multiple include any excavation, removal, or modification to remain unchanged use of the Sanctuary, to the extent recovery of historical resources, and do through notice in the Federal Register. compatible with the primary objective not result in destruction of, loss of, or (f) Additional Wildlife Management of resource protection. injury to Sanctuary resources or Areas, Ecological Reserves, Sanctuary (3) The Director shall not issue a qualities do not require a permit. Preservation Areas, or Special-use General permit under this paragraph (a), However, if a survey/inventory activity Areas, and additional restrictions in unless the Director also finds that: will involve test excavations or removal such areas, shall not take effect in (i) The applicant is professionally of artifacts or materials for evaluative Florida State waters unless first qualified to conduct and complete the purposes, a Survey/Inventory of approved by the Board of Trustees of the proposed activity; Historical Resources permit is required. Internal Improvement Trust Fund of the (ii) The applicant has adequate Regardless of whether a Survey/ State of Florida. financial resources available to conduct Inventory permit is required, a person and complete the proposed activity; may request such permit. Persons who § 922.165 Emergency regulations. (iii) The duration of the proposed have demonstrated their professional Where necessary to prevent or activity is no longer than necessary to abilities under a Survey/Inventory minimize the destruction of, loss of, or achieve its stated purpose; permit will be given preference over injury to a Sanctuary resource or (iv) The methods and procedures other persons in consideration of the quality, or minimize the imminent risk proposed by the applicant are issuance of a Research/Recovery permit. of such destruction, loss, or injury, any appropriate to achieve the proposed While a Survey/Inventory permit does and all activities are subject to activity’s goals in relation to the not grant any rights with regards to immediate temporary regulation, activity’s impacts on Sanctuary areas subject to pre-existing rights of including prohibition. Emergency resources and qualities; access which are still valid, once a regulations shall not take effect in (v) The proposed activity will be permit is issued for an area, other Florida territorial waters until approved conducted in a manner compatible with survey/inventory permits will not be by the Governor of the State of Florida. the primary objective of protection of issued for the same area during the Any temporary regulation may be in Sanctuary resources and qualities, period for which the permit is valid. effect for up to 60 days, with one 60-day considering the extent to which the (2) The Director, at his or her extension. Additional or extended conduct of the activity may diminish or discretion, may issue a Survey/ action will require notice and comment enhance Sanctuary resources and Inventory permit under this paragraph rulemaking under the Administrative qualities, any indirect, secondary or (b), subject to such terms and conditions Procedure Act, notice in local cumulative effects of the activity, and as he or she deems appropriate, if the newspapers, notice to Mariners, and the duration of such effects; Director finds that such activity: press releases. (vi) It is necessary to conduct the (i) Satisfies the requirements for a proposed activity within the Sanctuary permit issued under paragraph (a)(3) of § 922.166 PermitsÐapplication to achieve its purposes; and this section; procedures and issuance criteria. (vii) The reasonably expected end (ii) Either will be non-intrusive, not (a) National Marine Sanctuary General value of the activity to the furtherance include any excavation, removal, or Permit.—(1) A person may conduct an of Sanctuary goals and purposes recovery of historical resources, and not activity prohibited by §§ 922.163 or outweighs any potential adverse result in destruction of, loss of, or injury 922.164, other than an activity involving impacts on Sanctuary resources and to Sanctuary resources or qualities, or if the survey/inventory, research/recovery, qualities from the conduct of the intrusive, will involve no more than the or deaccession/transfer of Sanctuary activity. minimum manual alteration of the historical resources, if such activity is (4) For activities proposed to be seabed and/or the removal of artifacts or specifically authorized by, and provided conducted within any of the areas other material necessary for evaluative such activity is conducted in described in § 922.164 (b)–(e), the purposes and will cause no significant accordance with the scope, purpose, Director shall not issue a permit unless adverse impacts on Sanctuary resources terms and conditions of, a National he or she further finds that such or qualities; and 32168 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations

(iii) That such activity will be permit issued under this paragraph (d). Sanctuary resource and a reasonable conducted in accordance with all A Special-use permit is required for the return to the United States Government. requirements of the Programmatic deaccession/transfer of Sanctuary (4) Nothing in this paragraph (d) shall Agreement for the Management of historical resources. be considered to require a person to Submerged Cultural Resources in the (2) The Director, at his or her obtain a permit under this paragraph for Florida Keys National Marine Sanctuary discretion, may issue a Special-use the conduct of any fishing activities among NOAA, the Advisory Council on permit in accordance with this within the Sanctuary. Historic Preservation, and the State of paragraph (d), and subject to such terms (e) Applications. (1) Applications for Florida (hereinafter SCR Agreement), and conditions as he or she deems permits should be addressed to the and that such permit issuance is in appropriate and the mandatory terms Director, Office of Ocean and Coastal accordance with such SCR Agreement. and conditions of section 310 of the Resource Management; ATTN: Copies of the SCR Agreement may also NMSA, if the Director finds that Sanctuary Superintendent, Florida Keys be examined at, and obtained from, the issuance of such permit is reasonably National Marine Sanctuary, P.O. Box Sanctuaries and Reserves Division, necessary to: establish conditions of 500368, Marathon, FL 33050. All Office of Ocean and Coastal Resource access to and use of any Sanctuary applications must include: Management, National Ocean Service, resource; or promote public use and (i) A detailed description of the National Oceanic and Atmospheric understanding of any Sanctuary proposed activity including a timetable Administration, 1305 East-West resources. No permit may be issued for completion of the activity and the Highway, 12th floor, Silver Spring, MD unless the activity is compatible with equipment, personnel and methodology 20910; or from the Florida Keys the purposes for which the Sanctuary to be employed; National Marine Sanctuary Office, P.O. was designated and can be conducted in (ii) The qualifications and experience Box 500368, Marathon, FL 33050. a manner that does not destroy, cause of all personnel; (c) National Marine Sanctuary the loss of, or injure any Sanctuary (iii) The financial resources available Research/Recovery of Sanctuary resource, and if for the deaccession/ to the applicant to conduct and Historical Resources Permit. (1) A transfer of Sanctuary Historical complete the proposed activity; person may conduct any activity Resources, unless such permit issuance (iv) A statement as to why it is prohibited by §§ 922.163 or 922.164 is in accordance with, and that the necessary to conduct the activity within involving the research/recovery of activity will be conducted in accordance the Sanctuary; (v) The potential impacts of the Sanctuary historical resources if such with, all requirements of the SCR activity, if any, on Sanctuary resources activity is specifically authorized by, Agreement. and is conducted in accordance with the (3) The Director may assess and and qualities; (vi) The benefit to be derived from the scope, purpose, terms and conditions of, collect fees for the conduct of any activity; and a Research/Recovery of Historical activity authorized by a Special-use (vii) Such other information as the Resources permit issued under this permit issued pursuant to this Director may request depending on the paragraph (c). paragraph (d). No Special-use permit type of activity. Copies of all other (2) The Director, at his or her shall be effective until all assessed fees required licenses, permits, approvals, or discretion, may issue a Research/ are paid, unless otherwise provided by other authorizations must be attached to Recovery of Historical Resources permit, the Director by a fee schedule set forth the application. under this paragraph (c), and subject to as a permit condition. In assessing a fee, such terms and conditions as he or she (2) Upon receipt of an application, the the Director shall include: Director may request such additional deems appropriate, if the Director finds (i) All costs incurred, or expected to that: information from the applicant as he or be incurred, in reviewing and she deems reasonably necessary to act (i) Such activity satisfies the processing the permit application, requirements for a permit issued under on the application and may seek the including, but not limited to, costs for: views of any persons. The Director may paragraph (a)(3) of this section; (A) Number of personnel; (ii) The recovery of the resource is in (B) Personnel hours; require a site visit as part of the permit the public interest as described in the (C) Equipment; evaluation. Unless otherwise specified, SCR Agreement; (D) Biological assessments; the information requested must be (iii) Recovery of the resource is part (E) Copying; and received by the Director within 30 days of research to preserve historic (F) Overhead directly related to of the postmark date of the request. information for public use; and reviewing and processing the permit Failure to provide such additional (iv) Recovery of the resource is application; information on a timely basis may be necessary or appropriate to protect the (ii) All costs incurred, or expected to deemed by the Director to constitute resource, preserve historical be incurred, as a direct result of the abandonment or withdrawal of the information, and/or further the policies conduct of the activity for which the permit application. and purposes of the NMSA and the Special-use permit is being issued, (f) A permit may be issued for a FKNMSPA, and that such permit including, but not limited to: period not exceeding five years. All issuance is in accordance with, and that (A) The cost of monitoring the permits will be reviewed annually to the activity will be conducted in conduct both during the activity and determine the permittee’s compliance accordance with, all requirements of the after the activity is completed in order with permit scope, purpose, terms and SCR Agreement. to assess the impacts to Sanctuary conditions and progress toward (d) National Marine Sanctuary resources and qualities; reaching the stated goals and Special-use Permit. (1) A person may (B) The use of an official NOAA appropriate action taken under conduct any commercial or concession- observer, including travel and expenses paragraph (g) of this section if type activity prohibited by §§ 922.163 or and personnel hours; and warranted. A permittee may request 922.164, if such activity is specifically (C) Overhead costs directly related to permit renewal pursuant to the same authorized by, and is conducted in the permitted activity; and procedures for applying for a new accordance with the scope, purpose, (iii) An amount which represents the permit. Upon the permittee’s request for terms and conditions of, a Special-use fair market value of the use of the renewal, the Director shall review all Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32169 reports submitted by the permittee as (2) The permittee agrees to hold the (3) The permittee shall submit one or required by the permit conditions. In United States harmless against any more reports on the status, progress, or order to renew the permit, the Director claims arising out of the conduct of the results of any activity authorized by the must find that the: permitted activities. permit. (1) Activity will continue to further (3) All necessary Federal, State, and (4) The permittee shall submit an the purposes for which the Sanctuary local permits from all agencies with annual report to the Director not later was designated in accordance with the jurisdiction over the proposed activities than December 31 of each year on criteria applicable to the initial issuance shall be secured before commencing activities conducted pursuant to the of the permit; field operations. permit. The report shall describe all (2) Permittee has at no time violated (l) In addition to the terms and activities conducted under the permit the permit, or these regulations; and conditions listed in paragraph (k) of this and all revenues derived from such (3) The activity has not resulted in section, any permit authorizing the activities during the year and/or term of any unforeseen adverse impacts to research/recovery of historical resources the permit. Sanctuary resources or qualities. shall be subject to the following terms (5) The permittee shall purchase and (g) The Director may amend, suspend, and conditions: maintain general liability insurance or or revoke a permit for good cause. The (1) A professional archaeologist shall other acceptable security against Director may deny a permit application, be in charge of planning, field recovery potential claims for destruction, loss of, in whole or in part, if it is determined operations, and research analysis. or injury to Sanctuary resources arising that the permittee or applicant has acted (2) An agreement with a conservation out of the permitted activities. The in violation of a previous permit, of laboratory shall be in place before field amount of insurance or security should these regulations, of the NMSA or recovery operations are begun, and an be commensurate with an estimated FKNMSPA, or for other good cause. Any approved nautical conservator shall be value of the Sanctuary resources in the such action shall be communicated in in charge of planning, conducting, and permitted area. A copy of the insurance writing to the permittee or applicant by supervising the conservation of any policy or security instrument shall be certified mail and shall set forth the artifacts and other materials recovered. submitted to the Director. reason(s) for the action taken. (3) A curation agreement with a § 922.167 Certification of preexisting Procedures governing permit sanctions museum or facility for curation, public leases, licenses, permits, approvals, other and denials for enforcement reasons are access and periodic public display, and authorizations, or rights to conduct a set forth in Subpart D of 15 CFR part maintenance of the recovered historical prohibited activity. 904. resources shall be in place before (a) A person may conduct an activity (h) The applicant for or holder of a commencing field operations (such prohibited by §§ 922.163 or 922.164 if National Marine Sanctuary permit may agreement for the curation and display such activity is specifically authorized appeal the denial, conditioning, of recovered historical resources may by a valid Federal, State, or local lease, amendment, suspension or revocation of provide for the release of public artifacts permit, license, approval, or other the permit in accordance with the for deaccession/transfer if such authorization in existence on July 1, procedures set forth in § 922.50. deaccession/transfer is consistent with 1997, or by any valid right of (i) A permit issued pursuant to this preservation, research, education, or subsistence use or access in existence section other than a Special-use permit other purposes of the designation and on July 1, 1997, provided that: is nontransferable. Special-use permits management of the Sanctuary. (1) The holder of such authorization may be transferred, sold, or assigned Deaccession/transfer of historical or right notifies the Director, in writing, with the written approval of the resources requires a Special-use permit within 90 days of July 1, 1997, of the Director. The permittee shall provide issued pursuant to paragraph (d) and existence of such authorization or right the Director with written notice of any such deaccession/transfer shall be and requests certification of such proposed transfer, sale, or assignment executed in accordance with the authorization or right; no less than 30 days prior to its requirements of the SCR Agreement). (2) The holder complies with the proposed consummation. Transfers, (4) The site’s archaeological other provisions of this § 922.167; and sales, or assignments consummated in information is fully documented, (3) The holder complies with any violation of this requirement shall be including measured drawings, site maps terms and conditions on the exercise of considered a material breach of the drawn to professional standards, and such authorization or right imposed as Special-use permit, and the permit shall photographic records. a condition of certification, by the be considered void as of the (m) In addition to the terms and Director, to achieve the purposes for consummation of any such transfer, conditions listed in paragraph (k) and (l) which the Sanctuary was designated. sale, or assignment. of this section, any permit issued (b) The holder of an authorization or (j) The permit or a copy thereof shall pursuant to this section is subject to right described in paragraph (a) of this be maintained in legible condition on such other terms and conditions, section authorizing an activity board all vessels or aircraft used in the including conditions governing access prohibited by §§ 922.163 or 922.164 conduct of the permitted activity and be to, or use of, Sanctuary resources, as the may conduct the activity without being displayed for inspection upon the Director deems reasonably necessary or in violation of applicable provisions of request of any authorized officer. appropriate and in furtherance of the §§ 922.163 or 922.164, pending final (k) Any permit issued pursuant to this purposes for which the Sanctuary is agency action on his or her certification section shall be subject to the following designated. Such terms and conditions request, provided the holder is in terms and conditions: may include, but are not limited to: compliance with this § 922.167. (1) All permitted activities shall be (1) Any data or information obtained (c) Any holder of an authorization or conducted in a manner that does not under the permit shall be made right described in paragraph (a) of this destroy, cause the loss of, or injure available to the public. section may request the Director to issue Sanctuary resources or qualities, except (2) A NOAA official shall be allowed a finding as to whether the activity for to the extent that such may be to observe any activity conducted under which the authorization has been specifically authorized. the permit. issued, or the right given, is prohibited 32170 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations by §§ 922.163 or 922.164, thus requiring west longitude, then runs eastward to (f) then follows the southern certification under this section. the 300-foot isobath located at boundary of Biscayne National Park to (d) Requests for findings or approximately 25 degrees 39 minutes the southeasternmost point of Biscayne certifications should be addressed to the north latitude, 80 degrees 4 minutes National Park; and Director, Office of Ocean and Coastal west longitude; (g) then follows the eastern boundary Resource Management; ATTN: (b) Then runs southward and of Biscayne National Park to the Sanctuary Superintendent, Florida Keys connects in succession the points at the beginning point specified in paragraph National Marine Sanctuary, P.O. Box following coordinates: (a). 500368, Marathon, FL 33050. A copy of (i) 25 degrees 34 minutes north the lease, permit, license, approval, or latitude, 80 degrees 4 minutes west Appendix II to Subpart P of Part 922Ð other authorization must accompany the longitude, Existing Management Areas Boundary request. (ii) 25 degrees 28 minutes north Coordinates latitude, 80 degrees 5 minutes west (e) The Director may request The Existing Management Areas are additional information from the longitude, and (iii) 25 degrees 21 minutes north located within the following geographic certification requester as he or she boundary coordinates: deems reasonably necessary to latitude, 80 degrees 7 minutes west National Oceanic and Atmospheric condition appropriately the exercise of longitude; Administration, the certified authorization or right to (iv) 25 degrees 16 minutes north latitude, 80 degrees 8 minutes west Preexisting National Marine achieve the purposes for which the Sanctuaries: Sanctuary was designated. The longitude; (c) Then runs southwesterly information requested must be received approximating the 300-foot isobath and Point Latitude Longitude by the Director within 45 days of the connects in succession the points at the postmark date of the request. The Key Largo Management Area (Key Largo following coordinates: National Marine Sanctuary) Director may seek the views of any (i) 25 degrees 7 minutes north persons on the certification request. latitude, 80 degrees 13 minutes west (f) The Director may amend any 1 ...... 25°19.45′ N 80°12.00′ W longitude, ° ′ ° ′ certification made under this § 922.167 2 ...... 25 16.02 N 80 08.07 W (ii) 24 degrees 57 minutes north 3 ...... 25°07.05′ N 80°12.05′ W whenever additional information latitude, 80 degrees 21 minutes west 4 ...... 24°58.03′ N 80°19.08′ W becomes available justifying such an longitude, 5 ...... 25°02.02′ N 80°25.25′ W amendment. (iii) 24 degrees 39 minutes north (g) Upon completion of review of the latitude, 80 degrees 52 minutes west Looe Key Management Area (Looe Key authorization or right and information longitude, National Marine Sanctuary) received with respect thereto, the (iv) 24 degrees 30 minutes north 1 ...... 24°31.62′ N 81°26.00′ W Director shall communicate, in writing, latitude, 81 degrees 23 minutes west ° ′ ° ′ any decision on a certification request 2 ...... 24 33.57 N 81 26.00 W longitude, 3 ...... 24°34.15′ N 81°23.00′ W or any action taken with respect to any (v) 24 degrees 25 minutes north 4 ...... 24°32.20′ N 81°23.00′ W certification made under this § 922.167, latitude, 81 degrees 50 minutes west in writing, to both the holder of the longitude, United States Fish and Wildlife Service: certified lease, permit, license, approval, (vi) 24 degrees 22 minutes north Great White Heron National Wildlife Ref- other authorization, or right, and the latitude, 82 degrees 48 minutes west uge issuing agency, and shall set forth the longitude, (based on the North American Datum of reason(s) for the decision or action (vii) 24 degrees 37 minutes north 1983) taken. latitude, 83 degrees 6 minutes west 1 ...... 24°43.8′ N 81°48.6′ W (h) Any time limit prescribed in or longitude, 2 ...... 24°43.8′ N 81°37.2′ W established under this § 922.167 may be (viii) 24 degrees 40 minutes north 3 ...... 24°49.2′ N 81°37.2′ W extended by the Director for good cause. latitude, 83 degrees 6 minutes west 4 ...... 24°49.2′ N 81°19.8′ W (i) The holder may appeal any action longitude, 5 ...... 24°48.0′ N 81°19.8′ W conditioning, amending, suspending, or (ix) 24 degrees 46 minutes north 6 ...... 24°48.0′ N 81°14.4′ W revoking any certification in accordance latitude, 82 degrees 54 minutes west 7 ...... 24°49.2′ N 81°14.4′ W with the procedures set forth in longitude, 8 ...... 24°49.2′ N 81°08.4′ W 9 ...... 24°43.8′ N 81°08.4′ W § 922.50. (x) 24 degrees 44 minutes north ° ′ ° ′ (j) Any amendment, renewal, or latitude, 81 degrees 55 minutes west 10 ...... 24 43.8 N 81 14.4 W 11 ...... 24°43.2′ N 81°14.4′ W extension made after July 1, 1997, to a longitude, 12 ...... 24°43.2′ N 81°16.2′ W lease, permit, license, approval, other (xi) 24 degrees 51 minutes north 13 ...... 24°42.6′ N 81°16.2′ W authorization or right is subject to the latitude, 81 degrees 26 minutes west 14 ...... 24°42.6′ N 81°21.0′ W provisions of § 922.49. longitude, and 15 ...... 24°41.4′ N 81°21.0′ W (xii) 24 degrees 55 minutes north 16 ...... 24°41.4′ N 81°22.2′ W Appendix I to Subpart P of Part 922Ð latitude, 80 degrees 56 minutes west 17 ...... 24°43.2′ N 81°22.2′ W Florida Keys National Marine longitude; 18 ...... 24°43.2′ N 81°22.8′ W Sanctuary Boundary Coordinates (d) then follows the boundary of 19 ...... 24°43.8′ N 81°22.8′ W Everglades National Park in a southerly 20 ...... 24°43.8′ N 81°24.0′ W ° ′ ° ′ (Appendix Based on North American then northeasterly direction through 21 ...... 24 43.2 N 81 24.0 W Datum of 1983) 22 ...... 24°43.2′ N 81°26.4′ W Florida Bay, Buttonwood Sound, 23 ...... 24°43.8′ N 81°26.4′ W The boundary of the Florida Keys Tarpon Basin, and Blackwater Sound; 24 ...... 24°43.8′ N 81°27.0′ W National Marine Sanctuary— (e) after Division Point, then departs 25 ...... 24°43.2′ N 81°27.0′ W (a) Begins at the northeasternmost from the boundary of Everglades 26 ...... 24°43.2′ N 81°29.4′ W point of Biscayne National Park located National Park and follows the western 27 ...... 24°42.6′ N 81°29.4′ W at approximately 25 degrees 39 minutes shoreline of Manatee Bay, Barnes 28 ...... 24°42.6′ N 81°30.6′ W north latitude, 80 degrees 5 minutes Sound, and Card Sound; 29 ...... 24°41.4′ N 81°30.6′ W Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32171

Point Latitude Longitude Point Latitude Longitude Point Latitude Longitude

30 ...... 24°41.4′ N 81°31.2′ W 42 ...... 24°37.8′ N 81°37.8′ W Key West National Wildlife Refuge 31 ...... 24°40.8′ N 81°31.2′ W 43 ...... 24°37.2′ N 81°37.8′ W 32 ...... 24°40.8′ N 81°32.4′ W 44 ...... 24°37.2′ N 81°40.2′ W 1 ...... 24°40′ N 81°49′ W ° ′ ° ′ 33 ...... 24°41.4′ N 81°32.4′ W 45 ...... 24°36.0′ N 81°40.2′ W 2 ...... 24 40 N 82 10 W ° ′ ° ′ 34 ...... 24°41.4′ N 81°34.2′ W 46 ...... 24°36.0′ N 81°40.8′ W 3 ...... 24 27 N 82 10 W 4 ...... 24°27′ N 81°49′ W 35 ...... 24°40.8′ N 81°34.2′ W 47 ...... 24°35.4′ N 81°40.8′ W 36 ...... 24°48.0′ N 81°35.4′ W 48 ...... 24°35.4′ N 81°42.0′ W When differential Global Positioning 37 ...... 24°39.6′ N 81°35.4′ W 49 ...... 24°36.0′ N 81°42.0′ W ° ′ ° ′ 38 ...... 24 39.6 N 81 36.0 W 50 ...... 24°36.0′ N 81°48.6′ W Systems data becomes available, these 39 ...... 24°39.0′ N 81°36.0′ W coordinates may be revised by Federal 40 ...... 24°39.0′ N 81°37.2′ W Register notice to reflect the increased 41 ...... 24°37.8′ N 81°37.2′ W accuracy of such data.

Appendix III to Subpart P of Part 922ÐWildlife Management Areas Access Restrictions

Area Access restrictions

Bay Keys ...... No-motor zone (300 feet) around one key; idle speed only/no-wake zones in tidal creeks. Boca Grande Key ...... South one-half of beach closed (beach above mean high water closed by Department of the Inte- rior). Woman Key ...... One-half of beach and sand spit on southeast side closed (beach and sand spit above mean high water closed by Department of the Interior). Cayo Agua Keys ...... Idle speed only/no-wake zones in all navigable tidal creeks. Cotton Key ...... No-motor zone on tidal flat. Snake Creek ...... No-motor zone on tidal flat. Cottrell Key ...... No-motor zone (300 feet) around entire key. Little Mullet Key ...... No-access buffer zone (300 feet) around entire key. Big Mullet Key ...... No-motor zone (300 feet) around entire key. Crocodile Lake ...... No-access buffer zone (100 feet) along shoreline between March 1 and October 1. East Harbor Key ...... No-access buffer zone (300 feet) around northernmost island. Lower Harbor Keys ...... Idle speed only/no-wake zones in selected tidal creeks. Eastern Lake Surprise ...... Idle speed only/no-wake zone east of highway U.S. 1. Horseshoe Key ...... No-access buffer zone (300 feet) around main island (main island closed by Department of the Inte- rior). Marquesas Keys ...... (i) No-motor zones (300 feet) around three smallest keys on western side of chain; (ii) no-access buffer zone (300 feet) around one island at western side of chain; (iii) idle speed only/no-wake zone in southwest tidal creek. Tidal flat south of Marvin Key ...... No-access buffer zone on tidal flat. Mud Keys ...... (i) Idle speed only/no-wake zones in the two main tidal creeks; (ii) two smaller creeks on west side closed. Pelican Shoal ...... No-access buffer zone out to 50 meters from shore between April 1 and August 31 (shoal closed by the Florida Game and Freshwater Fish Commission). Rodriguez Key ...... No-motor zone on tidal flats. Dove Key ...... No-motor zone on tidal flats; area around the two small islands closed. Tavernier Key ...... No-motor zone on tidal flats. Sawyer Keys ...... Tidal creeks on south side closed. Snipe Keys ...... (i) Idle speed only/no-wake zone in main tidal creek; (ii) no-motor zone in all other tidal creeks. Upper Harbor Key ...... No-access buffer zone (300 feet) around entire key. East Content Keys ...... Idle speed only/no-wake zones in tidal creeks between southwesternmost keys. West Content Keys ...... Idle speed only/no-wake zones in selected tidal creeks; no-access buffer zone in one cove. Little Crane Key ...... No-access buffer zone (300 feet) around entire key.

Appendix IV to Subpart P of Part 922Ð public process involving a team * WESTERN SAMBOSÐContinued Ecological Reserves Boundary consisting of managers, scientists, Coordinates conservationists, and affected user Point Latitude Longitude groups. 4 ...... 24°33.50′ N .... 81°43.10′ W One Ecological Reserve—the Western The Western Sambos Ecological Sambos Ecological Reserve—is Reserve (based on differential Global (* Denotes located in State waters) designated in the area of Western Positioning Systems data) is located Sambos reef. NOAA has committed to within the following geographic Appendix V to Subpart P of Part 922Ð designating a second Ecological Reserve boundary coordinates: Sanctuary Preservation Areas within two years from issuance of this Boundary Coordinates plan in the area of the Dry Tortugas. The * WESTERN SAMBOS establishment of a Dry Tortugas The Sanctuary Preservation Areas Ecological Reserve will be proposed by Point Latitude Longitude (SPAs) (based on differential Global a notice of proposed rulemaking with a Positioning Systems data) are located proposed boundary determined through 1 ...... 24°33.70′ N .... 81°40.80′ W within the following geographic ° ′ ° ′ a joint effort among the Sanctuary, and 2 ...... 24 28.85 N .... 81 41.90 W boundary coordinates: the National Park Service, pursuant to a 3 ...... 24°28.50′ N .... 81°43.70′ W 32172 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations

Point Latitude Longitude Point Latitude Longitude Point Latitude Longitude

Alligator Reef 4 ...... 25°08.50′N 80°16.07′W Conch Reef (Research Only)

1 ...... 24°50.98′N 80°36.84′W French Reef 1 ...... 24°56.83′N 80°27.26′W 2 ...... 24°50.51′N 80°37.35′W 2 ...... 24°57.10′N 80°26.93′W 3 ...... 24°50.81′N 80°37.63′W 1 ...... 25°02.20′N 80°20.63′W 3 ...... 24°56.99′N 80°27.42′W 4 ...... 24°51.23′N 80°37.17′W 2 ...... 25°01.81′N 80°21.02′W 4 ...... 24°57.34′N 80°27.26′W 3 ...... 25°02.36′N 80°21.27′W Catch and release fishing by trolling only is Eastern Sambos (Research Only) allowed in this SPA. * Hen and Chickens 1 ...... 24°29.84′N 81°39.59′W Carysfort/South Carysfort Reef 1 ...... 24°56.38′N 80°32.86′W 2 ...... 24°29.55′N 81°39.35′W 3 ...... 24°29.37′N 81°39.96′W ° ′ ° ′ 2 ...... 24°56.21′N 80°32.63′W 1 ...... 25 13.78 N 80 12.00 W ° ′ ° ′ 4 ...... 24°29.77′N 81°40.03′W 2 ...... 25°12.03′N 80°12.98′W 3 ...... 24 55.86 N 80 32.95 W 4 ...... 24°56.04′N 80°33.19′W 3 ...... 25°12.24′N 80°13.77′W Looe Key (Research Only) 4 ...... 25°14.13′N 80°12.78′W Looe Key 1 ...... 24°34.17′N 81°23.01′W * Cheeca Rocks ° ′ ° ′ ° ′ ° ′ 2 ...... 24 33.98 N 81 22.96 W 1 ...... 24 33.24 N 81 24.03 W ° ′ ° ′ ° ′ ° ′ ° ′ ° ′ 3 ...... 24 33.84 N 81 23.60 W 1 ...... 24 54.42 N 80 36.91 W 2 ...... 24 32.70 N 81 23.85 W 4 ...... 24°34.23′N 81°23.68′W 2 ...... 24°54.25′N 80°36.77′W 3 ...... 24°32.52′N 81°24.70′W ° ′ ° ′ 3 ...... 24 54.10 N 80 37.00 W 4 ...... 24°33.12′N 81°24.81′W Tennessee Reef (Research Only) 4 ...... 24°54.22′N 80°37.15′W Molasses Reef 1 ...... 24°44.77′N 80°47.12′W Coffins Patch 2 ...... 24°44.57′N 80°46.98′W 1 ...... 25°01.00′N 80°22.53′W ° ′ ° ′ ° ′ ° ′ 3 ...... 24 44.68 N 80 46.59 W 1 ...... 24 41.47 N 80 57.68 W 2 ...... 25°01.06′N 80°21.84′W ° ′ ° ′ ° ′ ° ′ 4 ...... 24 44.95 N 80 46.74 W 2 ...... 24 41.12 N 80 57.53 W 3 ...... 25°00.29′N 80°22.70′W ° ′ ° ′ 3 ...... 24 40.75 N 80 58.33 W 4 ...... 25°00.72′N 80°22.83′W 4 ...... 24°41.06′N 80°58.48′W Appendix VII to Subpart P of Part 922Ð * Newfound Harbor Key Areas To Be Avoided Boundary Conch Reef Coordinates 1 ...... 24°37.10′N 81°23.34′W 1 ...... 24°57.48′N 80°27.47′W ° ′ ° ′ Point Latitude Longitude 2 ...... 24°57.34′N 80°27.26′W 2 ...... 24 36.85 N 81 23.28 W ° ′ ° ′ 3 ...... 24°56.78′N 80°27.52′W 3 ...... 24 36.74 N 81 23.80 W ° ′ ° ′ In The Vicinity of the Florida Keys 4 ...... 24°56.96′N 80°27.73′W 4 ...... 24 37.00 N 81 23.86 W (Reference Charts: United States 11466, 27th EditionÐSeptember 1, 1990 and Unit- Catch and release fishing by trolling only is * Rock Key ed States 11450, 4th EditionÐAugust 11, allowed in this SPA. 1 ...... 24°27.48′N 81°51.35′W 1990) 2 ...... 24°27.30′N 81°51.15′W Davis Reef ° ′ ° ′ 3 ...... 24°27.21′N 81°51.60′W 1 ...... 25 45.00 N 80 06.10 W ° ′ ° ′ ° ′ ° ′ 2 ...... 25°38.70′N 80°02.70′W 1 ...... 24 55.61 N 80 30.27 W 4 ...... 24 27.45 N 81 51.65 W ° ′ ° ′ 2 ...... 24°55.41′N 80°30.05′W 3 ...... 25 22.00 N 80 03.00 W ° ′ ° ′ 4 ...... 25°00.20′N 80°13.40′W 3 ...... 24 55.11 N 80 30.35 W * Sand Key ° ′ ° ′ 4 ...... 24°55.34′N 80°30.52′W 5 ...... 24 37.90 N 80 47.30 W ° ′ ° ′ 6 ...... 24°29.20′N 81°17.30′W 1 ...... 24 27.58 N 81 52.29 W ° ′ ° ′ Dry Rocks 2 ...... 24°27.01′N 81°52.32′W 7 ...... 24 22.30 N 81 43.17 W 8 ...... 24°28.00′N 81°43.17′W 3 ...... 24°27.02′N 81°52.95′W ° ′ ° ′ 9 ...... 24°28.70′N 81°43.50′W 1 ...... 25 07.59 N 80 17.91 W 4 ...... 24°27.61′N 81°52.94′W 2 ...... 25°07.41′N 80°17.70′W 10 ...... 24°29.80′N 81°43.17′W ° ′ ° ′ 11 ...... 24°33.10′N 81°35.15′W 3 ...... 25 07.25 N 80 17.82 W Catch and release fishing by trolling only is ° ′ ° ′ 12 ...... 24°33.60′N 81°26.00′W 4 ...... 25 07.41 N 80 18.09 W allowed in this SPA. 13 ...... 24°38.20′N 81°07.00′W 14 ...... 24°43.20′N 80°53.20′W Grecian Rocks Sombrero Key 15 ...... 24°46.10′N 80°46.15′W ° ′ ° ′ 16 ...... 24°51.10′N 80°37.10′W 1 ...... 25 06.91 N 80 18.20 W 1 ...... 24°37.91′N 81°06.78′W 2 ...... 25°06.67′N 80°18.06′W 17 ...... 24°57.50′N 80°27.50′W 2 ...... 24°37.50′N 81°06.19′W 3 ...... 25°06.39′N 80°18.32′W 18 ...... 25°09.90′N 80°16.20′W 3 ...... 24°37.25′N 81°06.89′W 4 ...... 25°06.42′N 80°18.48′W 19 ...... 25°24.00′N 80°09.10′W 5 ...... 25°06.81′N 80°18.44′W 20 ...... 25°31.50′N 80°07.00′W Catch and release fishing by trolling only is 21 ...... 25°39.70′N 80°06.85′W * Eastern Dry Rocks allowed in this SPA. 22 ...... 25°45.00′N 80°06.10′W (* denotes located in State waters) 1 ...... 24°27.92′N 81°50.55′W In the Vicinity of Key West Harbor 2 ...... 24°27.73′N 81°50.33′W (Reference Chart: United States 11434, 21st ° ′ ° ′ Appendix VI to Subpart P of Part 922Ð 3 ...... 24 27.47 N 81 50.80 W Special-Use Areas Boundary EditionÐAugust 11, 1990) 4 ...... 24°27.72′N 81°50.86′W Coordinates and Use Designations 23 ...... 24°27.95′N 81°48.65′W The Elbow 24 ...... 24°23.00′N 81°53.50′W The Special-use Areas (based on 25 ...... 24°26.60′N 81°58.50′W 1 ...... 25°08.97′N 80°15.63′W differential Global Positioning Systems 26 ...... 24°27.75′N 81°55.70′W 2 ...... 25°08.95′N 80°15.22′W data) are located within the following 27 ...... 24°29.35′N 81°53.40′W 3 ...... 25°08.18′N 80°15.64′W geographic boundary coordinates: 28 ...... 24°29.35′N 81°50.00′W Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32173

Point Latitude Longitude Florida’s tropical marine life resources (v) Jawfish—Any species of the and assure the continuing health and Family Opistognathidae. 29 ...... 24°27.95′N 81°48.65′W abundance of these species. The further (w) Blennies—Any species of the intent of this chapter is to assure that Families Clinidae or Blenniidae. Area Surrounding the Marquesas Keys harvesters in this fishery use nonlethal (x) Sleepers—Any species of the (Reference Chart: United States 11434, 21st methods of harvest and that the fish, Family Eleotrididae. EditionÐAugust 11, 1990) invertebrates, and plants so harvested be (y) Gobies—Any species of the Family 30 ...... 24°26.60′N 81°59.55′W maintained alive for the maximum Gobiidae. 31 ...... 24°23.00′N 82°03.50′W possible conservation and economic (z) Tangs and surgeonfish—Any 32 ...... 24°23.60′N 82°27.80′W benefits. species of the Family Acanthuridae. 33 ...... 24°34.50′N 82°37.50′W (b) It is the express intent of the (aa) Filefish/triggerfish—Any species 34 ...... 24°43.00′N 82°26.50′W Marine Fisheries Commission that of the Family Balistes, except gray 35 ...... 24°38.31′N 81°54.06′W landing of live rock propagated through triggerfish, Balistidae capriscus. ° ′ ° ′ 36 ...... 24 37.91 N 81 53.40 W aquaculture will be allowed pursuant to (bb) Trunkfish/cowfish—Any species 37 ...... 24°36.15′N 81°51.78′W of the Family Ostraciidae. ° ′ ° ′ the provisions of this chapter. 38 ...... 24 34.40 N 81 50.60 W (2) The following fish species, as they (cc) Pufferfish/burrfish/balloonfish— 39 ...... 24°33.44′N 81°49.73′W Any of the following species: 40 ...... 24°31.20′N 81°52.10′W occur in waters of the state and in federal Exclusive Economic Zone (EEZ) 1. Balloonfish—Diodon holocanthus. 41 ...... 24°28.70′N 81°56.80′W 2. Sharpnose puffer—Canthigaster ° ′ ° ′ waters adjacent to state waters, are 42 ...... 24 26.60 N 81 59.55 W rostrata. hereby designated as restricted species 3. Striped burrfish—Chilomycterus Area Surrounding the Dry Tortugas Islands pursuant to Section 370.01(20), Florida (Reference Chart: United States 11434, 21st schoepfi. Statutes: (3) The following invertebrate species, EditionÐAugust 11, 1990) (a) Moray eels—Any species of the as they occur in waters of the state and Family Muraenidae. 43 ...... 24°32.00′N 82°53.50′W in federal Exclusive Economic Zone (b) Snake eels—Any species of the 44 ...... 24°32.00′N 83°00.05′W (EEZ) waters adjacent to state waters, Genera Myrichthys and Myrophis of the 45 ...... 24°39.70′N 83°00.05′W are hereby designated as restricted Family Ophichthidae. 46 ...... 24°45.60′N 82°54.40′W species pursuant to Section 370.01(20), 47 ...... 24°45.60′N 82°47.20′W (c) Toadfish—Any species of the ° ′ ° ′ Family Batrachoididae. Florida Statutes: 48 ...... 24 42.80 N 82 43.90 W (a) Sponges—Any species of the Class 49 ...... 24°39.50′N 82°43.90′W (d) Frogfish—Any species of the 50 ...... 24°35.60′N 82°46.40′W Family Antennariidae. Demospongia, except sheepswool, 51 ...... 24°32.00′N 82°53.50′W (e) Batfish—Any species of the Family yellow, grass, glove, finger, wire, reef, Ogcocephalidae. and velvet sponges, Order (f) Clingfish—Any species of the Dictyoceratida. Appendix VIII to Subpart P of Part (b) Upside-down jellyfish—Any 922ÐMarine Life Rule [As Excerpted Family Gobiesocidae. (g) Trumpetfish—Any species of the species of the Genus Cassiopeia. From Chapter 46±42 of the Florida Family Aulostomidae. (c) Siphonophores/hydroids—Any Administrative Code] (h) Cornetfish—Any species of the species of the Class Hydrozoa, except 46–42.001 Purpose and Intent; Family Fistulariidae. fire corals, Order Milleporina. Designation of Restricted Species; (i) Pipefish/seahorses—Any species of (d) Soft corals—Any species of the Definition of ‘‘Marine Life Species.’’ the Family Syngnathidae. Subclass Octocorallia, except sea fans 46–42.002 Definitions. (j) Hamlet/seabass—Any species of Gorgonia flabellum and Gorgonia 46–42.003 Prohibition of Harvest: the Family Serranidae, except groupers ventalina. Longspine Urchin, Bahama Starfish. of the genera Epinephalus and (e) Sea anemones—Any species of the 46–42.0035 Live Landing and Live Mycteroperca, and seabass of the genus Orders Actinaria, Zoanthidea, Well Requirements. Centropristis. Corallimorpharia, and Ceriantharia. 46–42.0036 Harvest in Biscayne (k) Basslets—Any species of the (f) Featherduster worms/calcareous National Park.* Family Grammistidae. tubeworms—Any species of the 46–42.004 Size Limits. (l) Cardinalfish—Any species of the Families Sabellidae and Serpulidae. 46–42.005 Bag Limits. Family Apogonidae. (g) Star-shells—Any of the species 46–42.006 Commercial Season, (m) High-hat, Jackknife-fish, Spotted Astraea americana or Astraea phoebia. Harvest Limits. drum, Cubbyu—Any species of the (h) Nudibranchs/sea slugs—Any 46–42.007 Gear Specifications and genus Equetus of the Family Sciaenidae. species of the Subclass Prohibited Gear. (n) Reef Croakers—Any of the species Opisthobranchia. 46–42.008 Live Rock.* Odontocion dentex. (i) Fileclams—Any species of the 46–42.009 Prohibition on the Taking, (o) Sweepers—Any species of the Genus Lima. (j) Octopods—Any species of the Destruction, or Sale of Marine Corals Family Pempherididae. Order Octopoda, except the common and Sea Fans. (p) Butterflyfish—Any species of the Family Chaetodontidae. octopus, Octopodus vulgaris. *—Part 42.0036 was not reproduced (q) Angelfish—Any species of the (k) Shrimp—Any of the following because it does not apply to the Sanctuary. species: *—Part 42.008 was not reproduced because Family Pomacanthidae. it is regulated pursuant to this Part (r) Damselfish—Any species of the 1. Cleaner shrimp and peppermint 922.163(2)(ii). Family Pomacentridae. shrimp—Any species of the Genera (s) Hawkfish—Any species of the Periclimenes or Lysmata. 46–42.001 Purpose and Intent; Family Cirrhitidae. 2. Coral shrimp—Any species of the Designation of Restricted Species; (t) Wrasse/hogfish/razorfish—Any Genus Stenopus. Definition of ‘‘Marine Life Species’’.— species of the Family Labridae, except 3. Snapping shrimp—Any species of (1) (a) The purpose and intent of this hogfish, Lachnolaimus maximus. the Genus Alpheus. chapter are to protect and conserve (u) Parrotfish—Any species of the (l) Crabs—Any of the following Family Scaridae. species: 32174 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations

1. Yellowline arrow crab— may be constructed of clear plastic above yor at the center of the upper Stenorhynchus seticornis. material, rather than mesh. horizontal beam of the frame. 2. Furcate spider or decorator crab— (4) ‘‘Harvest’’ means the catching or (e) The trawl has no doors attached to Stenocionops furcata. taking of a marine organism by any keep the mouth of the trawl open. 3. Thinstripe hermit crab— means whatsoever, followed by a (12) ‘‘Tropical fish’’ means any Clibanarius vittatus. reduction of such organism to species included in subsection (2) of 4. Polkadotted hermit crab— possession. Marine organisms that are Rule 46–42.001, or any part thereof. Phimochirus operculatus. caught but immediately returned to the (13) ‘‘Tropical ornamental marine life 5. Spotted porcelain crab—Porcellana water free, alive, and unharmed are not species’’ means any species included in sayana. harvested. In addition, temporary subsections (2) or (3) of Rule 46–42.001, 6. Nimble spray or urchin crab— possession of a marine animal for the or any part thereof. Percnon gibbesi. purpose of measuring it to determine (14) ‘‘Tropical ornamental marine 7. False arrow crab—Metoporhaphis compliance with the minimum or plant’’ means any species included in calcarata. maximum size requirements of this subsection (4) of Rule 46–42.001. (m) Starfish—Any species of the Class chapter shall not constitute harvesting Specific Authority 370.027(2), F.S. Asteroidea, except the Bahama starfish, such animal, provided that it is Law Implemented 370.025, 370.027, Oreaster reticulatus. measured immediately after taking, and F.S. History—New 1–1–91, Amended 7– (n) Brittlestars—Any species of the immediately returned to the water free, 1–92, 1–1–95. Class Ophiuroidea. alive, and unharmed if undersize or 46–42.003 Prohibition of Harvest: (o) Sea urchins—Any species of the oversize. Longspine Urchin, Bahama Starfish.— Class Echinoidea, except longspine (5) ‘‘Harvest for commercial No person shall harvest, possess while urchin, Diadema antillarum, and sand purposes’’ means the taking or in or on the waters of the state, or land dollars and sea biscuits, Order harvesting of any tropical ornamental any of the following species: Clypeasteroida. marine life species or tropical (1) Longspine urchin, Diadema (p) Sea cucumbers—Any species of ornamental marine plant for purposes of antillarum. the Class Holothuroidea. sale or with intent to sell. The harvest (2) Bahama starfish, Oreaster (q) Sea lillies—Any species of the of tropical ornamental marine life reticulatus. Class Crinoidea. species or tropical ornamental marine Specific Authority 370.027(2), F.S. (4) The following species of plants, as plants in excess of the bag limit shall Law Implemented 370.025, 370.027, they occur in waters of the state and in constitute prima facie evidence of intent F.S. History—New 1–1–91, Amended 7– federal Exclusive Economic Zone (EEZ) to sell. 1–92. waters adjacent to state waters, are (6) ‘‘Land,’’ when used in connection 46–42.0035 Live Landing and Live hereby designated as restricted species with the harvest of marine organisms, Well Requirements.— pursuant to Section 370.01(20), Florida means the physical act of bringing the (1) Each person harvesting any Statutes: harvested organism ashore. tropical ornamental marine life species (a) Caulerpa—Any species of the (7) ‘‘Live rock’’ means rock with or any tropical ornamental marine plant Family Caulerpaceae. living marine organisms attached to it. shall land such marine organism alive. (b) Halimeda/mermaid’s fan/ (8) ‘‘Octocoral’’ means any erect, (2) Each person harvesting any mermaid’s shaving brush—Any species nonencrusting species of the Subclass tropical ornamental marine life species of the Family Halimedaceae. Octocorallia, except the species or any tropical ornamental marine plant (c) Coralline red algae—Any species Gorgonia flabellum and Gorgonia shall have aboard the vessel being used of the Family Corallinaceae. ventalina. for such harvest a continuously (5) For the purposes of Section (9) ‘‘Slurp gun’’ means a self- circulating live well or aeration or 370.06(2)(d), Florida Statutes, the term contained, handheld device that oxygenation system of adequate size and ‘‘marine life species’’ is defined to mean captures tropical fish by rapidly capacity to maintain such harvested those species designated as restricted drawing seawater containing such fish marine organisms in a healthy species in subsections (2), (3), and (4) of into a closed chamber. condition. this rule. (10) ‘‘Total length’’ means the length Specific Authority 370.027(2), F.S. Specific Authority 370.01(20), of a fish as measured from the tip of the Law Implemented 370.025, 370.027, 370.027(2), 370.06(2)(d), F.S. Law snout to the tip of the tail. F.S. History—New 7–1–92. Implemented 370.01(20), 370.025, (11) ‘‘Trawl’’ means a net in the form 46–42.004 Size Limits.— 370.027, 370.06(2)(d), F.S. History— of an elongated bag with the mouth kept (1) Angelfishes.— New 1–1–91, Amended 7–1–92, 1–1–95. open by various means and fished by (a) No person harvesting for 46–42.002 Definitions.— As used in being towed or dragged on the bottom. commercial purposes shall harvest, this rule chapter: ‘‘Roller frame trawl’’ means a trawl with possess while in or on the waters of the (1) ‘‘Barrier net,’’ also known as a all of the following features and state, or land any of the following ‘‘fence net,’’ means a seine used beneath specifications: species of angelfish, of total length less the surface of the water by a diver to (a) A rectangular rigid frame to keep than that set forth below: enclose and concentrate tropical fish the mouth of the trawl open while being 1. One-and-one-half (1 1/2) inches for: and which may be made of either nylon towed. a. Gray angelfish (Pomacanthus or monofilament. (b) The lower horizontal beam of the arcuatus). (2) ‘‘Drop net’’ means a small, usually frame has rollers to allow the trawl to b. French angelfish (Pomacanthus circular, net with weights attached roll over the bottom and any paru). along the outer edge and a single float obstructions while being towed. 2. One-and-three-quarters (13⁄4) inches in the center, used by a diver to enclose (c) The trawl opening is shielded by for: and concentrate tropical fish. a grid of vertical bars spaced no more a. Blue angelfish (Holacanthus (3) ‘‘Hand held net’’ means a landing than 3 inches apart. bermudensis). or dip net as defined in Rule 46– (d) The trawl is towed by attaching a b. Queen angelfish (Holacanthus 4.002(4), except that a portion of the bag line or towing cable to a tongue located ciliaris). Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations 32175

3. Two (2) inches for rock beauty or land any Spanish hogfish (Bodianus (1) Except as provided in Rule 46– (Holacanthus tricolor). rufus) of total length less than 2 inches. 42.008(7), no person shall harvest, (b) No person shall harvest, possess (b) No person shall harvest, possess possess while in or on the waters of the while in or on the waters of the state, while in or on the waters of this state, state, or land quantities of tropical or land any angelfish (Family or land any Spanish hogfish (Bodianus ornamental marine life species or Pomacanthidae), of total length greater rufus) or spotfin hogfish (Bodianus tropical ornamental marine plants in than that specified below: pulchellus) of total length greater than excess of the bag limits established in 1. Eight (8) inches for angelfish, 8 inches. Rule 46–42.005 unless such person except rock beauty (Holacanthus Specific Authority 370.027(2), F.S. possesses a valid saltwater products tricolor). Law Implemented 370.025, 370.027, license with both a marine life fishery 2. Five (5) inches for rock beauty. F.S. History—New 1–1–91, Amended 7– endorsement and a restricted species (c) Except as provided herein, no 1–92, 1–1–95. endorsement issued by the Department person shall purchase, sell, or exchange 46–42.005 Bag limit.— of Environmental Protection. any angelfish smaller than the limits (1) Except as provided in Rule 46– (2) Persons harvesting tropical specified in paragraph (a) or larger than 42.006 or subsections (3) or (4) of this ornamental marine life species or the limits specified in paragraph (b). rule, no person shall harvest, possess tropical ornamental marine plants for This prohibition shall not apply to while in or on the waters of the state, commercial purposes shall have a angelfish legally harvested outside of or land more than 20 individuals per season that begins on October 1 of each state waters or federal Exclusive day of tropical ornamental marine life year and continues through September Economic Zone (EEZ) waters adjacent to species, in any combination. 30 of the following year. These persons state waters, which angelfish are (2) Except as provided in Rule 46– shall not harvest, possess while in or on entering Florida in interstate or 42.006, no person shall harvest, possess the waters of the state, or land tropical international commerce. The burden while in or on the waters of the state, ornamental marine life species in excess shall be upon any person possessing or land more than one (1) gallon per day of the following limits: such angelfish for sale or exchange to of tropical ornamental marine plants, in (a) A limit of 75 angelfish (Family establish the chain of possession from any combination of species. Pomacanthidae) per person per day or the initial transaction after harvest, by (3) Except as provided in Rule 46– 150 angelfish per vessel per day, appropriate receipt(s), bill(s) of sale, or 42.006, no person shall harvest, possess whichever is less. bill(s) of lading, and any customs while in or on the waters of the state, (b) A limit of 75 butterflyfishes receipts, and to show that such or land more than 5 angelfishes (Family (Family Chaetodontidae) per vessel per angelfish originated from a point Pomacanthidae) per day. Each angelfish day. outside the waters of the State of Florida shall be counted for purposes of the 20 (c) There shall be no limits on the or federal Exclusive Economic Zone individual bag limit specified in harvest for commercial purposes of (EEZ) waters adjacent to Florida waters subsection (1) of this rule. octocorals unless and until the season and entered the state in interstate or (4)(a) Unless the season is closed for all harvest of octocorals in federal international commerce. Failure to pursuant to paragraph (b), no person Exclusive Economic Zone (EEZ) waters maintain such documentation or to shall harvest, possess while in or on the adjacent to state waters is closed. At promptly produce same at the request of waters of the state, or land more than 6 such time, the season for harvest of any duly authorized law enforcement colonies per day of octocorals. Each octocorals in state waters shall also officer shall constitute prima facie colony of octocoral or part thereof shall close until the following October 1, evidence that such angelfish were be considered an individual of the upon notice given by the Secretary of harvested from Florida waters or species for purposes of subsection (1) of the Department of Environmental adjacent EEZ waters for purposes of this this rule and shall be counted for Protection, in the manner provided in paragraph. purposes of the 20 individual bag limit Section 120.52(16)(d), Florida Statutes. (2) Butterflyfishes.— specified therein. Each person Each person harvesting any octocoral as (a) No person harvesting for harvesting any octocoral as authorized authorized by this rule may also harvest commercial purposes shall harvest, by this rule may also harvest substrate substrate within 1 inch of the perimeter possess while in or on the waters of the within 1 inch of the perimeter of the of the holdfast at the base of the state, or land any butterflyfish (Family holdfast at the base of the octocoral, octocoral, provided that such substrate Chaetodontidae) of total length less than provided that such substrate remains remains attached to the octocoral. one (1) inch. attached to the octocoral. (d) A limit of 400 giant Caribbean or (b) No person shall harvest, possess (b) If the harvest of octocorals in ‘‘pink-tipped’’ anemones (Genus while in or on the waters of the state, federal Exclusive Economic Zone (EEZ) Condylactus) per vessel per day. or land any butterflyfish of total length waters adjacent to state waters is closed Specific Authority 370.027(2), F.S. greater than 4 inches. to all harvesters prior to September 30 Law Implemented 370.025, 370.027, (3) Gobies—No person shall harvest, of any year, the season for harvest of F.S. History—New 1–1–91, Amended 7– possess while in or on the waters of the octocorals in state waters shall also 1–92, 1–1–95. state, or land any gobie (Family close until the following October 1, 46–42.007 Gear Specifications and Gobiidae) of total length greater than 2 upon notice given by the Secretary of Prohibited Gear.— inches. the Department of Environmental (1) The following types of gear shall (4) Jawfishes—No person shall Protection, in the manner provided in be the only types allowed for the harvest harvest, possess while in or on the s.120.52(16)(d), Florida Statutes. of any tropical fish, whether from state waters of the state, or land any jawfish Specific Authority 370.027(2), F.S. waters or from federal Exclusive (Family Opistognathidae) of total length Law Implemented 370.025, 370.027, Economic Zone (EEZ) waters adjacent to greater than 4 inches. F.S. History—New 1–1–91, Amended 1– state waters: (5) Spotfin and Spanish hogfish— 1–95. (a) Hand held net. (a) No person shall harvest, possess 46–42.006 Commercial Season, (b) Barrier net, with a mesh size not while in or on the waters of this state, Harvest Limits.— exceeding 3⁄4 inch stretched mesh. 32176 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules and Regulations

(c) Drop net, with a mesh size not types specified in subsection (1); Department of Environmental Protection exceeding 3⁄4 inch stretched mesh. provided, however, that tropical fish for scientific or educational purposes as (d) Slurp gun. harvested as an incidental bycatch of authorized in Section 370.10(2), Florida (e) Quinaldine may be used for the other species lawfully harvested for Statutes. harvest of tropical fish if the person commercial purposes with other types (c) Any sea fan, hard or stony coral, using the chemical or possessing the of gear shall not be deemed to be or fire coral harvested and possessed chemical in or on the waters of the state harvested in violation of this rule, if the pursuant to the aquacultured live rock meets each of the following conditions: quantity of tropical fish so harvested provisions of Rule 46–42.008(3)(a) or 1. The person also possesses and does not exceed the bag limits pursuant to a Live Rock Aquaculture maintains aboard any vessel used in the established in Rule 46–42.005. Permit issued by the National Marine harvest of tropical fish with quinaldine Specific Authority 370.027(2), F.S. Fisheries Service under 50 CFR Part 638 a special activity license authorizing the Law Implemented 370.025, 370.027, and meeting the following requirements: use of quinaldine, issued by the F.S. History—New 1–1–91, Amended 7– 1. Persons possessing these species in Division of Marine Resources of the 1–92, 1–1–95. or on the waters of the state shall also Department of Environmental Protection 46–42.009 Prohibition on the possess a state submerged lands lease pursuant to Section 370.08(8), Florida Taking, Destruction, or Sale of Marine for live rock aquaculture and a Statutes. Corals and Sea Fans; Exception; Repeal Department of Environmental Protection 2. The quinaldine possessed or of Section 370.114, Florida Statutes.— permit for live rock culture deposition applied while in or on the waters of the (1) Except as provided in subsection and removal or a federal Live Rock state is in a diluted form of no more (2), no person shall take, attempt to take, Aquaculture Permit. If the person than 2% concentration in solution with or otherwise destroy, or sell, or attempt possessing these species is not the seawater. Prior to dilution in seawater, to sell, any sea fan of the species person named in the documents quinaldine shall only be mixed with Gorgonia flabellum or of the species required herein, then the person in such isopropyl alcohol or ethanol. Gorgonia ventalina, or any hard or stony possession shall also possess written (f) A roller frame trawl operated by a coral (Order Scleractinia) or any fire permission from the person so named to person possessing a valid live bait coral (Genus Millepora). No person shall transport aquacultured live rock shrimping license issued by the possess any such fresh, uncleaned, or pursuant to this exception. Department of Environmental Protection uncured sea fan, hard or stony coral, or 2. The nearest office of the Florida pursuant to Section 370.15, Florida fire coral. Marine Patrol shall be notified at least Statutes, if such tropical fish are taken (2) Subsection (1) shall not apply to: 24 hours in advance of any transport in as an incidental bycatch of shrimp (a) Any sea fan, hard or stony coral, or on state waters of aquacultured live lawfully harvested with such trawl. or fire coral legally harvested outside of rock pursuant to this exception. (g) A trawl meeting the following state waters or federal Exclusive 3. Persons possessing these species off specifications used to collect live Economic Zone (EEZ) waters adjacent to the water shall maintain and produce specimens of the dwarf seahorse, state waters and entering Florida in upon the request of any duly authorized Hippocampus zosterae, if towed by a interstate or international commerce. law enforcement officer sufficient vessel no greater than 15 feet in length The burden shall be upon any person documentation to establish the chain of at no greater than idle speed: possessing such species to establish the possession from harvest on a state 1. The trawl opening shall be no chain of possession from the initial submerged land lease for live rock larger than 12 inches by 48 inches. transaction after harvest, by appropriate aquaculture or in adjacent Exclusive 2. The trawl shall weigh no more than receipt(s), bill(s) of sale, or bill(s) of Economic Zone (EEZ) waters pursuant 5 pounds wet when weighed out of the lading, and any customs receipts, and to to a federal Live Rock Aquaculture water. show that such species originated from Permit. (2) This rule shall not be construed to a point outside the waters of the State 4. Any sea fan, hard or stony coral, or prohibit the use of any bag or container of Florida or federal Exclusive fire coral harvested pursuant to Rule used solely for storing collected Economic Zone (EEZ) adjacent to state 46–42.008(3)(a) shall remain attached to specimens or the use of a single blunt waters and entered the state in interstate the cultured rock. rod in conjunction with any allowable or international commerce. Failure to Specific Authority 370.027(2), F.S.; gear, which rod meets each of the maintain such documentation or to Section 6, Chapter 83–134, Laws of following specifications: promptly produce same at the request of Florida, as amended by Chapter 84–121, (a) The rod shall be made of any duly authorized law enforcement Laws of Florida. Law Implemented nonferrous metal, fiberglass, or wood. officer shall constitute prima facie 370.025, 370.027, F.S.; Section 6, (b) The rod shall be no longer than 36 evidence that such species were Chapter 83–134, Laws of Florida, as inches and have a diameter no greater harvested from Florida waters in amended by Chapter 84–121, Laws of than 3⁄4 inch at any point. violation of this rule. Florida. History—New 1–1–95.2222 (3) No person shall harvest in or from (b) Any sea fan, hard or stony coral, state waters any tropical fish by or with or fire coral harvested and possessed [FR Doc. 97–15252 Filed 6–11–97; 8:45 am] the use of any gear other than those pursuant to permit issued by the BILLING CODE 3510±12±P