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Home , Dry Tortugas, Fort Jefferson (Florida), Loggerhead Key, Speargun, Tortugas Banks

76154 Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Rules and Regulations

DEPARTMENT OF THE INTERIOR (1) To protect and interpret a pristine vessels, the increase in population and subtropical marine ecosystem, including recreational tourism will result in more an intact coral community. on the resources in the (2) To protect populations of and Tortugas area. In recent years, interest 36 CFR Part 7 wildlife, including (but not limited to) has grown in the commercial sector to loggerhead and green sea turtles, sooty provide increased transportation to the RIN 1024–AD45 terns, frigate birds, and numerous park and to conduct additional activities migratory bird species. in the park, which would bring many National Park—Special (3) To protect the pristine natural more visitors and greater impacts to Regulations environment of the Dry Tortugas group park resources. of islands. A plan was started in 1998 to address AGENCY: National Park Service, Interior. (4) To protect, stabilize, restore and and update the 1983 Fort ACTION: Final rule. interpret , an outstanding Jefferson National Monument General example of nineteenth century masonry Management Plan. At that time, park SUMMARY: This rule will delete obsolete . managers placed a moratorium on the regulations; limit the area, extent and (5) To preserve and protect submerged authorization of any new commercial methods of recreational within cultural resources. activity in the park until an FGMPA/EIS portions of the park’s boundaries; (6) In a manner consistent with could be completed and implemented implement a Research Natural Area paragraphs (1) through (5) above to that would adequately protect park (RNA); clarify the Superintendent’s provide opportunities for scientific resources. authority to regulate fishing, boating, research. (16 U.S.C. 410xx–1(b)). The FGMPA/EIS addressed specific and permitted activities; regulate vessel The NPS developed the Final General issues including: (1) Protection of near- operation, anchoring and human Management Plan Amendment/ pristine resources such as coral reefs activity; provide enhanced protection Environmental Impact Statement and sea grasses; (2) protection of for shipwrecks consistent with State and (FGMPA/EIS), approved through a and submerged cultural Federal law; and restrict discharges into Record of Decision (ROD) in July 2001, resources; (3) management of park waters. Definitions have also been to comply with its statutory mandate to commercial services; and (4) added to clarify terminology. manage and protect Dry Tortugas determination of appropriate levels and DATES: Effective Dates: This rule is National Park, and to respond to types of visitor use. effective January 19, 2007. pressures from increased visitation and After extensive public involvement over-utilization of park resources. and collaboration with state and federal FOR FURTHER INFORMATION CONTACT: As described in the FGMPA/EIS, there agencies, the NPS selected a Superintendent, and Dry were indications that, despite the park’s management alternative that affords a Tortugas National Parks, 40001 SR 9336, remote location approximately 70 miles high level of protection to park Homestead, FL 33034. E-mail: _ west of , , rapidly resources as well as providing for ever [email protected] (305) increasing visitor use was negatively appropriate types and levels of high 242–7710. impacting the resources and values that quality visitor experiences. This will be SUPPLEMENTARY INFORMATION: make Dry Tortugas National Park accomplished by establishing Background unique. Visitation to Dry Tortugas management zones and visitor carrying National Park increased 400 percent capacity limits for specific locations in On April 7, 2006, the NPS published from 1994 through 2000, going from the park, using commercial services to in the Federal Register proposed special 23,000 to 95,000 annual visitors. The direct and structure visitor use, and regulations for Dry Tortugas National resources and infrastructure at the park instituting a permit system for private as Park. (71 FR 17785). Previous could not sustain a growth rate of this well as commercial boats. A research regulations pertained to Fort Jefferson magnitude while ensuring protection of natural area (RNA) will encompass a 46 National Monument. The Monument park resources consistent with the square-mile area protecting a was established by a presidential park’s legislative mandate. representative range of terrestrial and proclamation in 1935 for the purpose of Scientific studies documented marine resources that will ensure preserving the Dry Tortugas group of significant declines in the size and protection of spawning fish and fish islands within the original 1845 federal abundance of commercially and diversity and protect near-pristine military reservation of islands, keys, and recreationally important fish species, habitats and processes to ensure high banks. In 1980, Congress legislatively particularly snapper, grouper, and quality research opportunities. This rule affirmed the Fort Jefferson National grunts in Dry Tortugas National Park. prohibits extractive activities in the Monument. These declines threaten the RNA, including fishing. A range of In 1992, Congress enacted Public Law sustainability of reef fish communities recreational and educational 102–525 (16 U.S.C. 410xx et seq.) both within the park and throughout the opportunities will be available for abolishing the Fort Jefferson National . Studies demonstrate that visitors as long as appropriate resource Monument and establishing Dry both fish size and abundance in the conditions are maintained. The quality Tortugas National Park in its place. Tortugas area, including Dry Tortugas of visitor experiences will be enhanced Congress established the park ‘‘to National Park, are essential to spawning by maintaining the quality of resources preserve and protect for the education, and recruitment for regional fish stocks while expanding visitor access inspiration and enjoyment of present and the multi-billion dollar fishing and throughout the park. and future generations nationally tourism industry in the Florida Keys. significant natural, historic, scenic, The population of is Summary of Public and Agency marine, and scientific values in South projected to increase from its Involvement for the Final General Florida.’’ In addition, Congress directed level of 6.3 million people to more than Management Plan Amendment and the the Secretary of the Interior to manage 12 million by 2050. With continued Proposed Rule the park for the following specific technological innovations such as global This rule is the culmination of an purposes, including: positioning systems and larger, faster extensive general management planning

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process for Dry Tortugas National Park this area. All public and agency interested parties prior to approving the that began in 1998. NPS planning was comments were carefully considered by agreement. The August 9th meeting was undertaken concurrently and the NPS and the proposed action was publicly noticed and received statewide collaboratively with planning by the modified in several areas in response to media coverage. The management National Oceanic and Atmospheric the comments. agreement may be viewed or Administration (NOAA), the Florida In January 2001, the Dry Tortugas downloaded from the park’s Web site at Fish and Wildlife Conservation National Park FGMPA was made http://www.nps.gov/drto/parkmgmt/ Commission (FWC), and the Gulf of available to the public. The NPS index.htm. A Florida Department of Mexico Council received several hundred letters from Environmental Protection (FDEP) (GMFMC), leading to establishment of citizens and organizations reflecting a statement on the approval of the the Tortugas Ecological Reserve (TER) in variety of viewpoints about the FGMPA. management agreement is available on the Florida Keys National Marine The NPS carefully considered all its Web site at http:// Sanctuary (FKNMS) adjoining the park. comments including those for and www.dep.state.fl.us/secretary/news/ To assist in developing alternatives against prohibiting 2005/08/0809_01.htm. for the TER, NOAA established a 25- in the proposed RNA. On July 27, 2001, The FWC reviewed the proposed member Working Group composed of the Secretary of the Interior approved regulations at public meetings in Key commercial and recreational fishermen, the FGMPA, and the Record of Decision Largo, Florida on December 1, 2005 and divers, scientists, non-governmental was signed. In announcing approval of in Gainesville, Florida on February 2, organizations and other concerned the plan, the Secretary stated, ‘‘This 2006. The FWC received comments citizens, stakeholder representatives, plan has been developed with broad from a variety of recreational fishing FKNMS Advisory Council members, public outreach and a great deal of organizations, conservation groups, and federal and state government participation with the State of Florida, elected officials, State and Federal representatives charged with resource fishing organizations and interest agencies, and interested parties at these management authority in the Tortugas groups. * * * My goal for this plan in meetings. The FWC approved the area. The Working Group used an the future is that recreational and proposed regulations at its February 2, ‘‘ecosystem approach,’’ recommending commercial fishermen will see more 2006 meeting and described the alternatives based on natural resources and bigger fish, more conch and lobster rationale for this action on its Web site rather than jurisdictional boundaries. in and the Straits of Florida, at http://myfwc.com/whatsnew/06/ The NPS and FWC participated in the as a result of the critical spawning and statewide/tortugas.html. Working Group that gathered ecological marine nurseries we are protecting in The FWC meetings were announced and socio-economic information the park.’’ Additional details on public in advance and received statewide through two public meetings, a site involvement for the FGMPA are media coverage. characterization document, and the included in the ROD which may be On April 5, 2006, the DOI announced firsthand experiences of commercial viewed or downloaded from the park’s publication of the NPS draft special and recreational fishermen and others. Web site at http://www.nps.gov/drto/ regulations in the Federal Register and To maximize public participation in parkmgmt/index.htm. the initiation of a 60-day public the park and the sanctuary planning, the During the preparation of the FGMPA, comment period. The press release and NPS and FKNMS held 5 joint scoping the State of Florida indicated to the NPS the April 7, 2006 Federal Register meetings in the fall of 1998. To gain and DOI that it claimed title to notice invited public comments by mail, additional information, in 1999, the submerged lands located within Dry e-mail, fax, or in person at a May 17, NPS and NOAA asked the National Tortugas National Park. These lands are 2006, public meeting in , Research Council of the National also claimed by the . Florida. On May 11, 2006, the NPS Academy of Sciences to examine the Rulemaking to implement the FGMPA issued a press release seeking comments utility of marine reserves and protected was delayed pending resolution of this at the May 17, 2006, meeting. The areas for conserving fisheries, habitats, issue. Rather than addressing this issue release was also distributed by and biological diversity. The Council’s through potentially protracted litigation, electronic mail to more than 500 report, Marine Protected Areas: Tools the State and DOI entered into a individuals and organizations on the for Sustaining Ocean Ecosystems, ‘‘Management Agreement for Certain park’s mailing list. Articles announcing endorsed the increased use of ‘‘no-take’’ Submerged Lands in Monroe , the meeting date, location, and how to reserves, in concert with conventional Florida, Located within Dry Tortugas submit comments were published in the management approaches, as a tool for National Park’’ that was approved by the Herald and Florida Keys managing ocean resources. In May 1999, Florida Governor and Cabinet on August Keynoter. Forty-three (43) people the Working Group reached consensus 9, 2005 and by the Secretary of the attended the meeting. The NPS received on proposed boundaries for the TER and Interior on December 20, 2005. This rule 5,238 responses, including letters, e- a proposed no-fishing zone inside Dry is consistent with the requirements of mails, and verbal comments during the Tortugas National Park. All public and that agreement which stipulates that the comment period that closed on June 6, agency comments were considered by NPS shall submit proposed regulations 2006. Ninety-nine percent of the the NPS and incorporated into the to the FWC for review and obtain the respondents supported NPS issues and alternatives evaluated in the concurrence of the Board of Trustees of implementation of the proposed RNA. draft GMPA and EIS. the Internal Improvement Trust Fund of The FWC reviewed and approved this In June 2000, the NPS and FKNMS the State of Florida (Governor and final rule, and the NPS obtained the released their draft management plans Cabinet) regarding that portion of the concurrence of the Governor and for public review and held 6 joint public regulations pertaining to the Cabinet at their November 14, 2006 hearings with the FWC and the management of submerged lands within meeting. This concurrence is for an GMFMC. Comments on the draft GMPA the park. The Governor and Cabinet initial five year period at which time were overwhelmingly supportive of received comments from a variety of their approval of the rule is again establishing the RNA. Out of 6,104 recreational fishing organizations, required. The Governor and Cabinet comments received, 97% supported the conservation groups, elected officials, received public comments prior to prohibition of extractive activities in state and federal agencies, and taking their action. The management

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agreement also provides that the NPS —To replenish depleted fish stocks and regulations concerning boating and and the State will work together to protect biological diversity other activities on or relating to waters implement a research and monitoring —To achieve park purpose to protect a within park boundaries. With respect to program for the park’s marine pristine, intact marine ecosystem submerged lands, in August 2005, the ecosystem, to coordinate this work with —To allow comparative studies in a U.S. Department of the Interior and the similar efforts by the FKNMS, and to non-manipulated marine ecosystem State of Florida entered into a provide a status report on the fisheries —Population pressure and threats to the management agreement acknowledging and activities at least every five years to ecosystem are increasing each other’s claim to ownership of the Board of Trustees. To further this —The science used in RNA decision certain submerged lands within the effort, NPS and the FWC will shortly making was sound park. The State and the DOI mutually enter into a joint agreement for —The RNA will help support fishing/ agreed that the submerged lands will be cooperative research within the Park tourism economy of the Florida Keys managed by the NPS consistent with the and the RNA and to establish measures —Public involvement for the FGMPA authorized purpose of the park in the for evaluating the effectiveness and and proposed regulations was 2001 GMPA. Finally, NPS regulations performance of the RNA. inclusive, collaborative and adequate expressly apply to waters within park The regulations will be reviewed at • One percent of respondents boundaries subject to the jurisdiction of least every five years, and as opposed NPS implementation of the the United States without regard to the appropriate, revised and reissued based RNA. Reasons cited were: ownership of submerged lands. Comment #2: The NPS should upon the results of the research program —The science used in RNA decision- and information contained in the status eliminate the rule that states that all making was inadequate fishing gear must be stowed and report. Information and data collected —The resources in the Tortugas area regarding the effectiveness and unavailable when traveling within the (corals and fish stocks) are in good RNA zone. This is an impractical rule performance of the RNA will also be condition reviewed and evaluated, and for most open fishing boats. — in the Tortugas NPS Response: The regulation assures adjustments to the RNA will be area causes far more damage to fish undertaken, as appropriate. Any future consistency with the immediately stocks than recreational fishing adjacent FKNMS Tortugas Ecological revisions to these regulations will —Commercial fishing in the Tortugas include opportunities for public review Reserve and maintains the integrity of area should be banned if NPS wants the purpose of the RNA. The NPS agrees and comment during the rulemaking to improve fish stocks process. that for smaller boats with limited space —Existing regulations, size and bag that the removal of hooks and lures is Summary of Comments—Introduction limits will adequately protect fish impractical. The NPS therefore adopts stocks The proposed rule was published for verbatim the FKNMS’s definition of —The RNA will increase fishing public comment on April 7, 2006, with ‘‘not available for immediate use.’’ The pressure on areas remaining open to the comment period lasting until June 6, definition allows for the stowage of fishing 2006. The NPS received 5,238 unbaited fishing rods in rod holders. —The RNA will unnecessarily restrict comments regarding the proposed rule, Comment #3: The science used in the public access and fishing including letters, e-mails, and verbal RNA decision-making is inadequate opportunities in the park comments given at a May 17, 2006 because the methodology, assumptions, —Public involvement for the proposed public meeting in Key Largo, Florida. Of and data are flawed and the scientists regulations was inadequate the total, 63 are original comments and who did the studies are biased and 5175 were form letters supporting Response to Specific Comments inexperienced in fishing and fish habits. NPS Response: The NPS disagrees implementation of the regulations and Comment #1: The NPS does not have with these views. The original scientific the RNA. These comments have been the authority and jurisdiction to issue studies that support the habitat analyzed using a process called regulations for Dry Tortugas National protection and fisheries management ‘‘content analysis.’’ Content analysis is a Park marine resources because the recommendations for the Tortugas systematic process of compiling and United States does not have jurisdiction region are described in a detailed 1999 categorizing public viewpoints and of the submerged lands and waters report entitled Site Characterization for concerns. A goal of the process is to beyond . the Dry Tortugas Region that was jointly identify all relevant issues, not just NPS Response: The NPS disagrees. commissioned by the NPS and the those represented by the majority of Congress established the present FKNMS. This report included extensive respondents. boundary of Dry Tortugas National Park information on /water The NPS has carefully considered all in 1992 (Pub. L. 102–525). The NPS currents, coral reefs/benthic comments received and in some cases Organic Act (16 U.S.C. 1) authorizes the communities, as well as the fisheries adopted suggestions made. The ‘‘NPS to promote and regulate the use of essential habitats of the Tortugas region comments and reasons for accepting or the Federal area know as national parks (Schmidt et al. 1999). (An extensive rejecting them are included below. * * * which purpose is to preserve the discussion was also included in the NPS General Overview of Public Comments scenery and the natural and historic 2001 ROD.) The specific studies of objects and the wildlife therein * * * Tortugas reef fish communities and Research Natural Area (RNA) and to leave unimpaired for the their associated benthic habitats were • Ninety-nine percent of all enjoyment of future generations.’’ initially compiled in 1999 and 2000 by commenters supported NPS Further, 16 U.S.C. 3 authorizes the an inter-disciplinary team of scientists implementation of a RNA zone. Reasons Secretary of the Interior to make and from the National Undersea Research cited were: publish rules and regulations deemed Center (UNC), the University of Miami’s —To protect nationally significant necessary or proper for the use and Rosenstiel School of Marine and corals and benthic habitats management of the parks; and 16 U.S.C. Atmospheric Sciences, the National —To protect habitats for endangered sea 1a–2(h) specifically authorizes the Marine Fisheries Service (NMFS), and turtles, birds and other species Secretary to promulgate and enforce the Florida Wildlife Research Institute

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(FWRI). This team of Federal, State, and years experience working in Florida and grunt species were found to be below university scientists have extensive marine ecosystems). the 30 percent SPR threshold, and are experience in marine ecology/ Comment #4: The science used in considered overfished by federal oceanography, fisheries management, RNA decision-making is inadequate standards (Ault et al. 1998). The overall and ecosystems based on their because the NPS does not conduct fish health of the Tortugas as well as work throughout Florida and the counts at Dry Tortugas National Park. the health of its associated coral reefs Caribbean, and their site-specific studies NPS Response: The NPS does conduct and other benthic communities formed over the last 2–3 decades in the Florida fish counts at Dry Tortugas National the primary basis of the scientific Keys and Tortugas region. The Park, using a combination of fishery recommendation to implement the RNA methodology and results of these dependent surveys (angler interviews) within Dry Tortugas National Park. scientific studies have been published and fishery independent surveys (direct Comment #5: The Research Natural in numerous scientific journals and visual fish counts). The NPS Area is not needed because resources in have undergone independent scientific periodically interviews anglers at the the Dry Tortugas area (coral reefs, peer review. dock on Garden Key, recording catch fisheries) are in good shape. Fish stocks The fish survey methodology information (called or fishery are not overfished. (underwater direct visual fish counts) [angler] dependent surveys). As part of NPS Response: The NPS believes that that has been used is designed these creel surveys, the NPS asks where the marine ecological resources (i.e., specifically for assessing coral reef fish anglers caught their fish, the number of coral reefs and fisheries) within Dry stocks (Bohnsack and Bannerot 1986). people involved, and the duration of Tortugas National Park are not ‘‘in good The Dry Tortugas National Park field their fishing activities. This information shape.’’ The coral reef fish stocks are sampling plan was devised specifically allows NPS to estimate the fishing catch well documented and are considered to for the park (Ault et al. 2003). This per unit effort (CPUE) for a series of be overfished based on U.S. Government methodology has undergone extensive spatially distributed fishing zones standards (Ault et al. 2002, Ault et al. design analysis and has been shown to across the park. The Dry Tortugas creel 2006). The most recent reef game fish be highly effective and is used around survey data collected between 1980– stock assessment, using data collected the world. The data analyses and fish 1984 and 2000–2004 were analyzed and from the park in 1999–2004, concluded stock assessments use standard compared by Ault et al. (2006) to that 17 of 18 grouper and snapper statistical methods and well-accepted determine any trends over time. This species are overfished, based on their scientific methodologies. All of these analysis found that gray snapper and spawning potential ratio (Ault et al. methodologies have undergone multiple grunt catch per unit effort (CPUE) 2006). independent expert scientific reviews declined between the two periods, The park’s coral reefs, which are an through publications in scientific suggesting that these species may have essential habitat for reef game fish, have journals. The NPS intends to continue experienced long term decline in similarly experienced substantial its collaboration with NOAA, FWC, and abundance in the park. The NPS declines in the last 30 years. The the other federal and state agencies acknowledges that the Dry Tortugas substantial decline in stony corals, working in the FKNMS, and to National Park creel survey is not as highlighted by the recent listing of the specifically have the Dry Tortugas extensive as that in Everglades National major reef forming Acropora spp. as a science program included in the Park because of the logistical problems threatened species, is one of the most planned independent scientific peer of collecting such data in the Tortugas ecologically significant resource review efforts of the FKNMS Science region. The NPS is addressing these stewardship challenges in the park. For Program. limitations by designing a more effective example, there were 1180 acres of The lead scientists who designed and Dry Tortugas National Park creel survey staghorn coral dominating reefs in the conducted the Dry Tortugas National and recreational fishing guide reporting park in 1976 (Davis 1982); however, it Park coral reef fishery assessment system. The NPS also has had extensive is estimated that there are currently, at studies are PhD-level senior marine park-wide underwater visual direct most, only a few acres of live staghorn scientists from the University of Miami counts of the important game fish thickets left at Dry Tortugas National and the NMFS. They worked with a species and other coral reef done Park, a greater than 99% loss. The broad team of scientists from the FWC, regularly since 1999 (including the largest acreage of staghorn loss has the FKNMS, and many other agencies years 1999, 2000, 2002, 2004, and 2006). occurred inside the proposed RNA. The and universities. This team of scientists This method has been analyzed by stony coral cover on Bird Key Reef has has many years of experience in coral marine fisheries experts and was decreased by over 75% from 1975 to reef ecology and fishery biology and determined to be a more effective 2005 (W. Jaap, FWC pers. comm.; have worked on fisheries projects method of defining reef fish abundance Beaver et al. 2006). From 1999 to 2004, throughout the Florida Keys and than a creel survey. The results of these there was a greater loss in stony coral Tortugas region. The methodology and counts and other fish data are used by cover in the Tortugas region than in the results have been presented in fisheries managers to calculate indicies rest of the Florida Keys (W. Jaap, FWC numerous peer reviewed scientific to gauge the health of a fishery. One pers. comm.). publications on south Florida coral reef index is a spawning potential ratio When implemented, the Dry Tortugas ecology and fishery biology. Most of (SPR) for each harvested species. The RNA will allow NPS to better these scientists also live in the south SPR is a fishery index, developed by understand the linkages between Florida area and have been engaged in NMFS, and is used to estimate the recreational fishing and stock depletion, recreational fishing in the Florida Keys overall reproductive health of fish as well as fishery productivity and the for decades. The two lead NPS marine species and to estimate the impacts of coral reef environment. The scientists working on the Dry Tortugas . A historical study of the combination of deep-water habitats in National Park science programs also SPR of 35 commercially and the TER and the shallow water habitats have advanced degrees in marine recreationally important fish species in the RNA should provide for long- science and extensive work experience found in the Tortugas region indicates term sustainability and productivity of (i.e., M.S. in fishery biology, and PhD in that 13 of 16 grouper species, 7 of 13 the important game fish species as well coral reef fish ecology along with 25–30 snapper species, one wrasse, and 2 of 5 as their associated coral reef

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environments. This was the major recreational fishing activities in the scientists states, ‘‘In the few studies that justification that the FWC and the Tortugas region is needed because the have examined spillover effects, the size Florida Department of Environmental fishery pressure is expected to greatly and abundance of exploited species Protection identified when they stated increase, because the south Florida increase in areas adjacent to reserves.’’ their support for implementing the Dry population is projected to nearly double (National Center for Ecological Analysis Tortugas RNA. by 2050. Studies have shown that the and Synthesis 2001). Comment #6: Commercial fishing in number of registered boat owners in More recent scientific studies on coral the Tortugas area causes far more south Florida has grown at a very high reef fisheries have shown that marine damage to fish stocks than recreational rate over the last two decades, while reserves have enhanced adjacent fishing and should be prohibited around commercial fishing pressures have fisheries, including greater fish biomass DRTO, if the NPS wants to improve fish remained relatively flat during this same (i.e., more and/or larger fish), higher stocks. period. This again suggests that catch, increased catch rate, and reduced NPS Response: Commercial fishing increased pressure from recreational fishing effort (McClanahan and Mangi within Dry Tortugas National Park has fishing is a significant factor in the 2000, Roberts et al. 2001, Galal et al. been prohibited since the original Fort sustainability of the Tortugas fishery. 2002, Russ et al. 2003, Russ et al. 2004). Jefferson National Monument was Comment #7: Existing regulations and DRTO plans to conduct similar created in 1935. Since the NPS does not size and bag limits will adequately scientific studies to assess the spillover have jurisdiction in the rest of the protect fish stocks. effects of the RNA. Tortugas region, this is an issue that NPS Response: Although current Even with RNA implementation, the NOAA, NMFS, and FWC would need to recreational fishing regulations are vast majority of the Tortugas area, and evaluate. There have been a number of beneficial, they have not been sufficient 54% of the park will remain open to Federal and State actions to limit the to sustain this important fishery or to recreational fishing. impact of commercial fishing in the achieve the high standards of ecosystem Comment #9: The RNA will Tortugas region. In 2001, NOAA protection required by the NPS Organic unnecessarily restrict public access and prohibited commercial fishing in the Act and the Dry Tortugas National Park fishing opportunities in the park. TER. However, the TER does not enabling legislation. The well- NPS Response: The NPS disagrees. A include the important shallow reef documented condition of the Tortugas variety of recreational and educational habitats critical to many reef game fishery and associated coral reef habitats opportunities will be available to fishes, which would be protected by the indicates that additional protective visitors in the RNA including boating, proposed RNA. The State of Florida has actions are required. No-take marine swimming, , , also outlawed fish traps, and NOAA reserves are commonly implemented for wildlife viewing, and scientific does not allow fish traps in the Tortugas fishery and ecosystem protection and research. Fishing will not be allowed in region. NOAA began a 10-year phase out recovery, in addition to ongoing the RNA in order to protect important of fish traps in the in measures including bag limits, size nursery areas that will help produce 1997 which will prohibit the use of fish limits, quotas, and gear restrictions. The greater abundance and . traps throughout the Gulf in 2007. U.S. Coral Reef Task (USCRTF) Mooring buoys will be installed to Shrimp trawls are also prohibited in states that marine reserves are the most provide private and tour boat access to coral reef areas. There are several lines powerful tool for conservation of coral and dive sites while protecting of evidence indicating that recreational reef ecosystems (USCRTF 2002). corals, shipwrecks, and other sensitive fishing does impact fishery stocks in the Similarly, the National Research resources from anchor damage. Tortugas and Florida Keys. A Tortugas Council’s 2000 review of marine Allowing non-consumptive uses in the coral reef fish stock assessment (Ault et protected areas endorsed the increased RNA, with careful monitoring of al. 2002) concluded that ‘‘The Dry use of no-take marine reserves in impacts of these activities, will provide Tortugas National Park fishery for many concert with conventional management exceptional resource appreciation and reef fish stocks is in worse shape than approaches (Marine Protected Areas, public education benefits. It will also the surrounding broader Tortugas Tools For Sustaining Ocean Ecosystems. enable the NPS to meet its statutory region.’’ This suggests that recreational National Academy Press). obligation to ‘‘protect and interpret a fishing is a factor because there has been Comment #8: The no-take RNA will pristine subtropical marine ecosystem, no commercial fishing in the park since increase fishing pressure on areas including an intact coral reef 1935. NMFS has conducted stock remaining open to fishing. community.’’ assessments for several reef game fishes NPS Response: The NPS disagrees Fifty-four percent of park waters will distinguishing between commercial and with this assumption and believes that remain open for recreational fishing recreational effects of landings and the focus should be more on the overall including the natural/cultural zone (50 bycatch mortality based on landings condition of reef game fish stocks and square miles), five of the park’s seven statistics (SEDAR 2001–2005). These the health of the fishery in areas islands, and the historic/adaptive use assessments found that for many reef remaining open to recreational or zone surrounding Garden Key and Fort species in the Florida Keys, recreational commercial fishing. A growing number Jefferson (4 square miles). This includes anglers extract more fish that of scientific studies suggest that the the overnight anchorage and shallows commercial fishers. Recreational fishing ecological effect of implementing no- around Garden, Bush, and Long Keys in the park for spiny lobster in the take marine reserves results in an where for permit and tarpon is 1960’s and early 1970’s caused a increase in the abundance and size of popular. Visitor studies conducted by documented depletion in lobster target fishery species within areas the NPS in 1995 and 2002 found that abundance and a 58% decline in catch adjacent to reserves, and thus helps while the majority of visitors (78%) did rates in the park (Davis 1977, Davis and sustain adjacent fisheries, due to a net not fish on their visit to the park, it is Dodrill 1980). In response, the NPS export of these species from the reserve an important activity for those who do. closed the park to lobster harvesting in (also known as ‘‘spillover effects’’). A The areas most heavily fished were a 1974. 2001 ‘‘Scientific Consensus Statement circular area extending 1 mile in radius Finally, the NPS believes that On Marine Reserves And Marine outwards from Garden Key (64% of all additional protection from increased Protected Areas’’ signed by 161 marine trips) and the southwestern quarter of

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the park (57%), and these areas will C: Prohibit aircraft from taxiing, into park waters (paragraph (g), while remain open to recreational fishing. landing, or taking off within the special similar to FKNMS regulations at 15 CFR Private boaters often fish the anchorage protection zones. 922.163, are inconsistent with FKNMS adjacent to Fort Jefferson and the flats NPS Response: NPS agrees. This rule regulations for discharges within the surrounding the nearby keys. Fishing has been revised to read ‘‘a landing or Tortugas Ecological Reserve at 15 CFR from the dock and shoreline of Garden takeoff may not be made * * * within 922.164(d)(1)(i). NOAA’s discharge Key is popular with visitors arriving by five hundred (500) feet of any closed regulations for the TER only allow for ferry or seaplane. The areas open for area.’’ This includes all special the discharge of cooling water and fishing includes 56% of the park’s protection zones. engine exhaust. As a result, the draft seagrass meadows and 28% of park D: Include information on threatened NPS regulations would allow for certain waters less than 6 feet deep. status of elkhorn and staghorn corals in types of discharges in the Research Significant large areas adjacent to the the Section by Section analysis Natural Area zone that are not allowed park also remain open for recreational paragraph (c). in the adjacent TER (i.e., fish parts, bilge NPS Response: NPS agrees and has fishing. They include the southern half water, and gray water). modified the Section-by-Section of the (west of the park), NPS Response: NPS appreciates the Analysis to include this information. the waters south and east of the park, identification of this discrepancy and Comment #12: NPS should prohibit and the popular king-fishing area has revised the rule and section-by- anchoring in rubble bottom anywhere in northeast of the park. These areas were section discussion to make discharge the park because of potential negative excluded from the FKNMS TER in order regulations within the Research Natural impacts to corals, especially elkhorn to protect fishing interests in the region. Area identical to those for the TER. The and staghorn corals recently listed as NPS intends for the RNA regulations to NPS recognizes that some of the threatened species under the be consistent or ‘‘seamless’’ with private and charter recreational fishing Endangered Species Act, and to other FKNMS regulations for the TER as both that formerly occurred in the RNA will ecological resources. Only anchoring in agencies share identical resource relocate to other areas within and sand bottom should be permitted. protection goals and wish to maximize outside the park. The scientific Mooring buoys should be installed to public understanding and minimize literature and FKNMS experience with facilitate access to coral areas without confusion regarding allowable activities no-take zones strongly suggests that the damage. in these zones. fishing experience outside the RNA will NPS Response: This rule has been Complete citations to publications be enhanced in the future as fish revised deleting any reference to referenced in the Response to Specific populations increase in size and number anchoring on rubble bottom. More Comments section may be viewed on as a result of establishing zones specifically, the definition of the the park’s Web site at: http:// dedicated to improving the spawning ‘‘designated anchorage’’ has been www.nps.gov/drto/parkmgmt/ and juvenile populations. The presence revised to read: ‘‘Designated anchorage index.htm. of substantially larger fish should means any area of sand within one benefit trophy fishing in park waters nautical mile of the Fort Jefferson Changes to the Final Rule adjacent to the RNA. These larger fish Harbor Light.’’ The rule is now Based on the preceding comments could also leave the RNA and be caught consistent with the anchoring and responses, the NPS has made four by recreational or commercial fishermen provisions applicable in the FKNMS. substantive changes to the proposed outside the park. NPS will make installation of mooring rule language. Comment #10: Public involvement for buoys on the -Bird Key Reef a 1. The definition of ‘‘designated the proposed regulations was priority. However, boats will still be anchorage’’ (a)(3) was modified by inadequate. able to anchor on sand bottom on the removing the reference to ‘‘rubble NPS Response: Public involvement in portion of this reef that is in the bottom.’’ The definition now reads, the Dry Tortugas National Park GMPA designated anchorage around Garden ‘‘any area of sand within one nautical and the proposed regulations has been Key. NPS will provide educational mile of the Fort Jefferson Harbor Light.’’ both extensive and inclusive as material to inform boaters of anchoring 2. The definition of ‘‘not available for described in the background section locations on the reef so as to minimize immediate use’’ (a)(11) was modified to above. the ecological effects of anchoring delete the reference to requiring the Comment #11: To better protect damage and identify reef areas to avoid. removal of hooks and lures from fishing elkhorn coral (Acropora palmate) and NPS will monitor and assess the rods. The definition now reads, ‘‘ not staghorn coral (Acropora prolifera) ecological effects of anchoring on the readily accessible for immediate use, patches special protection zones, the Long Key-Bird Key Reef and adaptively e.g., by being stowed unbaited in a NPS should: manage visitor use to minimize cabin, locker, rod holder, or similar storage area, or being securely covered A: Close the 5 Foot Channel and ecological impacts. Comment #13: The nurse shark and lashed to a deck or bulkhead.’’ install closure/marker buoys a sufficient mating area between Long Key and the 3. (k)(2)(a). The landing and takeoff of distance inshore (toward the Fort) in 5 elkhorn coral (Acropora palmata) patch aircraft was modified to include all Foot Channel and on Long Key-Bird Key should be a seasonally closed special closed areas within the designated forereef near the entrance of 5 Foot protection zone. landing zone (within a radius of one Channel. NPS Response: Since this closure is mile of Garden Key). The proposed NPS Response: NPS agrees, and this based on a seasonal need that can vary regulations restricted aircraft landings closure will be implemented. from year-to-year, the NPS will address and takeoffs to within 500 feet of Bush B: Delineate the zones with marker this closure using authority delegated to Key when that island was closed for buoys rather than rely on boaters to the Superintendent by NPS regulations. wildlife nesting. Other sensitive areas determine if they are 100 yards away Comment #14: The National Oceanic within the vicinity have been identified from the patches. and Atmospheric Administration noted as needing the 500 foot buffer from NPS Response: NPS agrees, and the that the draft regulation and section-by- aircraft landings and takeoffs. These zones will be appropriately marked. section discussion regarding discharges include the staghorn coral (Acropora

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prolifera) and elkhorn coral (Acropora restrictions or closures to protect fish safety reasons in the helicopter-landing palmata) patches and the nurse shark species within the park. After zone. mating area. The regulation has been consulting with and obtaining the Paragraph (b)(4) identifies specific modified to read, ‘‘Aircraft may be concurrence of the FWC, the prohibitions on fishing within the park. landed on the waters within a radius of Superintendent may impose closures This paragraph lists certain fishing one (1) mile of Garden Key, but a and establish conditions or restrictions practices that differ from those allowed landing or takeoff may not be made necessary pertaining to fishing, under State of Florida regulations within five hundred (500) feet of any including but not limited to species of because these practices are incompatible closed area.’’ fish that may be taken, seasons and with the goals and management 4. Paragraph (g), regulations for hours during which fishing may take direction of the park. discharges into park waters, was place, methods of taking, and size, bag Paragraph (b)(4)(i) provides for modified to prohibit vessel discharges and possession limits. In emergency complete protection of lobster within in the Research Natural Area, with the situations, after consulting with the the park. All existing regulations found exception of engine cooling water and FWC, the Superintendent may impose in 36 CFR 7.27(a)(2) related to exhaust. The draft regulation would temporary closures and establish recreational fishing catch limits for have allowed for other discharges in the conditions or restrictions for up to two lobster, have been deleted. Prohibiting RNA (i.e., fish parts, bilge water, and thirty-day periods. In emergency individuals from being in the water gray water) that are inconsistent with situations where consultation in when they have lobster onboard their the goal of maintaining the highest advance is not possible, the vessel will further enhance the possible water quality in this zone. The Superintendent will consult with the protection of park resources. This revised regulation will enhance resource FWC within 24-hours of the initiation of ‘‘prima facie’’ (at first view) evidence of protection in the RNA and is consistent closures or restrictions. This provision violation is similar to the state of with NOAA discharge regulations for of such closures and restrictions is in Florida regulations for the Biscayne the adjacent Tortugas Ecological furtherance of the park’s enabling Bay/Card Sound Spiny Lobster Reserve. legislation, which identifies protection Sanctuary (FAC 68B–11.004), and for of fish and wildlife as a purpose of its John Pennecamp Coral Reef State Park Section-by-Section Analysis establishment. The public will receive (FAC 68B–24.005). In Dry Tortugas (a) What terms do I need to know? notice of such closures or restrictions by National Park, the harvesting of lobster one or more of the methods listed in has been previously prohibited through In order to provide clarity and reduce § 1.7 of this chapter. the use of the Superintendent’s possible confusion, 15 definitions have Paragraph (b)(2) identifies which fish authority to regulate public use under been included in this paragraph. They can be taken and the legal methods for 36 CFR 1.5. This prohibition was based include: baitfish, , designated taking these fish. Fishing is limited to on data collected by NPS biologists in anchorage, dip net, finfish, flat wake, fin fish caught by a closely attended a 1975 study, which indicated that legal guide fishing, live rock, lobster, marine hook-and-line, caught by hook- harvesting was removing almost 90% of life, not available for immediate use, and-line, cast nets or dip nets, and the lobster within the park. The Gulf of ornamental tropical fish, permits, shrimp caught by dip nets or cast nets. Mexico Fisheries Management Council research natural area, and shrimp. For the last 10 years, these restrictions concurred with this finding and Common fish names referred to in the have been enforced through the recommended that the park be regulations are further clarified by Superintendent’s Compendium, which established as a sanctuary for lobster to including scientific names. serves as a local management guide assist in maintaining a population for (b) Are there recreational fishing authorized by 36 CFR 1.5. The previous dispersal to areas outside the park. The proposed regulations in restrictions that I need to know? restriction in 36 CFR 7.27(a)(5)(i), that limits cast nets to 12 feet in diameter, paragraph (b)(4)(ii), concerning Section 2.3(a) of this chapter adopts has been deleted. There appears to be no possession and use of spearguns and non-conflicting state fishing laws as part compelling ecological or environmental other weapons are similar to regulations of the general NPS regulations reason to restrict the size of the cast for the ecological reserves and sanctuary applicable to all units of the National nets. This change would make the preservation areas found within the Park System unless regulations for park’s regulations consistent with state FKNMS (15 CFR 922.164). The State of particular park areas specify otherwise. regulations. Florida has similar regulations For Dry Tortugas National Park, Paragraph (b)(3) identifies areas that restricting activities found additional requirements relating to are closed to fishing, including the in FS 370.172. This proposed regulation fishing are included to achieve the RNA. Note, however, that paragraph expands on the current regulation, 36 park’s purposes and implement (b)(3)(i) includes provisions that allow CFR 7.27(a)(7), to include guns, bows planning decisions. Recreational fishing vessels to transit the RNA with legally and other similarly powered weapons. activities must comply with the state harvested fish and fishing gear onboard. Paragraph (b)(4)(iii) recognizes that a regulations unless those activities are The provisions of paragraph (b)(3) are gaff is a common fishing device used to otherwise restricted or prohibited in this consistent with the regulations retrieve legally taken fish from the section. Any reference to fishing in applicable to the adjacent TER within water, while identifying other § 7.27 refers to recreational fishing, the FKNMS (15 CFR 922.164; Florida prohibited fishing devices. which is the taking, attempting to take, Administrative Code 68B–6.003). The Although all natural resources within or possessing of fish for personal use. other closed areas are the waters inside a national park area are protected from This is the same definition used by the the Garden Key that surrounds removal, disturbance, injury, or State of Florida. All references to Fort Jefferson and those within the destruction by the general regulations commercial fishing have been removed designated swimming and snorkeling found at 36 CFR 2.1, the provision at since this activity is already prohibited area. Fishing in these areas has been paragraph (b)(4)(iv) clarifies that by 36 CFR 2.3(d)(4). found to be incompatible with the ornamental tropical fish as well as all The intent of paragraph (b)(1) allows identified visitor activities of boating, other forms of within Dry the Superintendent to impose swimming and snorkeling, and for Tortugas National Park are specifically

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protected. This additional level of staghorn coral as ‘‘threatened species’’ ecosystem; thus the use of anchors in protection will help achieve the under the Endangered Species Act. this area is prohibited. congressional direction to protect a (May 9, 2006, 71 FR 26852). Paragraph (e)(3) specifies where pristine subtropical marine ecosystem, Hospital and Long Keys have been vessels can anchor. The ‘‘designated including an intact coral reef closed for the last 10 years pursuant to anchorage’’ identified in the existing 36 community. the Superintendent’s compendium CFR 7.27(b) is also revised to reflect the The intent of (b)(4)(v) is to protect authority under 36 CFR 1.5. The largest GMPA’s management zone which calls coral and other submerged resources remaining breeding colony of for limiting anchorage of vessels from from damage or injury by prohibiting Magnificent Frigate birds in the United sunset to sunrise to the historic the dragging or of nets that are States lives on Long Key. The preservation/adaptive use zone around otherwise allowed to be used in the threatened and other sea Garden Key. This ‘‘designated park. birds live and breed on Hospital Key. anchorage’’ is any sand bottom within Paragraph (b)(4)(vi) prohibits the use Seasonal closures of Bush Key, East Key one nautical mile of the Fort Jefferson of nets, other than dip or cast nets. The and portions of for Harbor Light. State of Florida general recreational turtle and bird nesting may continue to Paragraph (e)(4) imposes restrictions fishing regulations allow other nets be designated through the on anchoring by commercial fishing and (bully nets, frame and push nets, beach Superintendent’s compendium pursuant shrimping vessels consistent with U.S. Coast Guard regulations found in 33 or haul seines) which are inappropriate to 36 CFR 1.5, 1.7. and harmful to various submerged CFR 110.190. resources in the park. (d) Is Loggerhead Key open to the (f) What vessel operations are Current regulations pertaining to sea public? turtles and conch found in 36 CFR prohibited? 7.27(a)(1) and (3) have been deleted as Loggerhead Key will be open to the This paragraph addresses several unnecessary. The State of Florida has public subject to closures in certain issues of unsafe or otherwise prohibited prohibited the taking of conch since areas and restrictions on certain vessel operations. The Fort Jefferson 1985 and the general NPS regulations activities. Loggerhead Key is the largest moat is closed to vessels to preserve and already adopt all non-conflicting state key in the park and contains an protect the historic scene and prevent laws. Because all sea turtles are operating 150-foot lighthouse and other damage to the structures. Vessel use in currently listed as endangered or structures. Most of the island falls the moat could damage the walls of the threatened species under the within the RNA; however, the center fort and the integrity of the moat wall. Endangered Species Act (16 U.S.C. portion, containing the lighthouse and Because of the large volume of vessel 1538), it is unnecessary to duplicate the other structures, falls within a traffic in and around the Garden Key prohibitions on their taking in these historic preservation/adaptive use zone. and Bird Key harbors, vessels are regulations. Paragraph (d) is consistent with the required to operate at a flat wake speed Consistent with 36 CFR 5.3, paragraph FGMPA ROD provision to manage to prevent injury and damage resulting (b)(4)(vii) requires that all fee-for-service access and recreational activities on from boat wakes. guides (including guides for fishing and Loggerhead Key. To protect the natural diving) obtain a permit or other NPS and cultural resources of the island, as (g) What are the regulations regarding approved commercial use authorization. well as providing appropriate visitor the discharge of materials in park This permit system allows the park to experiences, the Superintendent may waters? better manage the fisheries and other impose terms and conditions on Paragraph (g) provides additional park resources. The Superintendent may activities as necessary. The public will protection for water quality within the limit the number of permitted guides be notified of any such requirements park by generally prohibiting the within the park in order to conserve through one or more of the methods discharge or deposit of any material or park resources and enhance the visitor listed in § 1.7 of this chapter. Such substance in park waters. The NPS experience. terms and conditions include, but are wishes to maintain the highest possible not limited to: docking, hiking water quality, free of bacterial and (c) Are there any areas of the park restrictions, beach and swimming chemical contamination, for health and closed to the public? access, and other restrictions or closures safety reasons as well as to maintain the Yes. Paragraph (c) identifies areas that necessary to conserve the natural and park’s environment. Paragraph (g)(1)(i) will be closed to public access. The cultural resources of the island. prohibits the discharge of any materials Long/Bush Keys coral patch has been (e) Are there restrictions that apply to or other matter within the Research identified by biologists as ‘‘fused’’ anchoring a vessel in the park? Natural Area with the only exception staghorn (Acropora prolifera), a very being for cooling water or engine rare hybrid of staghorn and elkhorn Paragraph (e) addresses anchoring exhaust. This regulation is identical to corals. This coral patch is threatened by locations in general and anchoring NOAA discharge regulations for the a disease that is devastating staghorn prohibitions in the RNA. In the past, adjacent Tortugas Ecological Reserve at and elkhorn coral in Biscayne National boaters have commonly anchored in sea 15 CFR 922.164(d)(1)(i). Park and the FKNMS. The elkhorn coral grass beds and rubble bottom, which has Paragraph (g)(1)(ii) allows for limited (Acropora palmata) patch also located resulted in unacceptable impacts to park discharges from vessels, (gray water, in this area is the only remaining resources. By restricting anchoring to deck wash water, cooling water, engine community of elkhorn coral found in authorized locations and prohibiting exhaust and oil-free bilge water), and the park. Elkhorn coral assemblages anchoring in all other areas, except in some natural substances (fish parts) in were once very abundant in the park, emergencies, degradation to coral reefs park waters outside the Research occupying about 440,000 square meters and seagrass meadows will be Natural Area. The NPS recognizes that in 1881. Today this only known significantly reduced. Paragraph (e)(2) these discharges would have minimal remaining elkhorn stand covers only a requires vessels to use mooring buoys in impact on water quality and are few hundred square meters. The NMFS the RNA. The RNA requires a higher consistent with the recreational fishing has recently designated elkhorn and level of protection for the marine and anchoring activities authorized in

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these zones. These regulations are regulations in the adjacent FKNMS (15 Compliance With Other Laws similar to NOAA discharge regulations CFR 922.163). Regulatory Planning and Review for the FKNMS at 15 CFR 922.163. Paragraph (i)(3) makes vessel (Executive Order 12866) To address future issues regarding the operators responsible for any damage to The Office of Management and Budget discharge of materials or substances in coral, seagrass or any other underwater has determined that this document is a park waters, paragraph (g)(2) authorizes feature caused by their anchors or the Superintendent to impose further significant rule and has reviewed this anchor parts. This is to prevent damage rule under Executive Order 12866. restrictions as necessary to protect park to fragile resources and assure the resources, visitors, or employees. The (1) This rule will not have an effect of highest level of resource protection. public will be notified of any changes $100 million or more on the economy. through one or more methods listed in (j) What restrictions do I need to know It will not adversely affect in a material § 1.7 of this chapter. when on or near shipwrecks found in way the economy, productivity, the park? competition, jobs, the environment, (h) What are the permit requirements in public health or safety, or State, local, the park? Paragraph (j) provides specific or tribal governments or communities. Paragraph (h) requires that protection for wrecked or abandoned The NPS has completed the report individuals obtain a permit to take part craft and their cargo. Dry Tortugas ’’Cost-Benefit Analysis: Proposed in any recreational activity occurring National Park possesses one of the Regulations Implementing the Final from a vessel within park boundaries. greatest of historically General Management Plan Amendment/ Permits may be issued in writing or be significant shipwrecks in North Environmental Impact Statement for Dry provided by oral (radio or telephone) America, with some dating back to the Tortugas National Park.’’ (August 15, authorization. Permitted activities may 1600’s. Within the park boundary, there 2005) This document may be viewed on include snorkeling, diving, wildlife have been more than 275 documented the park’s Web site at: http:// viewing, photography, and the use of maritime casualties (shipwrecks, www.nps.gov/drto/parkmgmt/ mooring buoys. In the RNA, no permits groundings, strandings), and human index.htm. will be issued for anchoring or fishing, activity has left a significant historical This conclusion is based on the fact both of which are expressly prohibited record. Protection of submerged cultural that the proposed regulations would not in this zone. However, a permit is not resources is a park priority, as well as impose significant impacts on any business. The regulations are based on required for vessels merely transiting a management purpose identified in the FGMPA/EIS or are restatements, the park without stopping to engage in Public Law 102–525. Consistent with research or recreational activities. All clarifications, and definitions of the park’s statutory mandate, this rule research conducted in the park requires previously established policies and will provide specific protection for a permit. In the RNA, permits will only regulations resulting in no change or these cultural resources in addition to be issued for non-manipulative research effects on the economy. (i.e., that which does not alter the protections provided by applicable law. (2) This rule will not create a serious existing condition). (k) Can aircraft land in the park? inconsistency or otherwise interfere with an action taken or planned by (i) How are coral and other underwater Paragraph (k) requires the another agency. Actions taken under features protected in the park? Superintendent to manage aircraft this rule will not interfere with other The coral formations within the park operations by requiring users to obtain agencies or local government plans, are internationally recognized as unique a permit to land seaplanes in the park. policies, or controls. This rule is an and significant. Public Law 102–525 Seaplanes provide transportation for a agency specific rule. requires protection of the ‘‘pristine significant number of park visitors. The (3) This rule will not materially affect subtropical marine ecosystems, NPS’s general regulation at 36 CFR 2.17 budgetary effects of entitlements, grants, including an intact coral reef authorizes the Superintendent to user fees, or loan programs or the rights community.’’ Accordingly, this rule designate, through a special regulation, or obligations of their recipients. No provides new provisions for the operating/landing locations within the grants or other forms of monetary protection of corals. Significant damage park. It also prohibits aircraft from supplements are involved. to coral can be caused by divers or operating under power within 500 feet (4) OMB has determined that this rule snorkelers handling or standing on of swimming beaches, boat docks, or raises novel legal or policy issues and coral, especially in areas of heavy use. piers unless designated through a OMB has reviewed the rule under In this rule, the NPS hopes to better special regulation. In order to reach the Executive Order 12866. protect the resources by specifically designated ramp for discharging prohibiting these actions, thereby Regulatory Flexibility Act passengers, seaplanes must taxi within resulting in persons being responsible The Department of the Interior 500 feet of dock areas. This paragraph for any damage that occurs to coral certifies that this rulemaking will not through contact with their body or their specifies that a landing or takeoff may have a significant economic effect on a equipment, such as fins, SCUBA tanks, not be made within 500 feet of Garden substantial number of small entities gauges, or cameras. Language is also Key or 500 feet of any area designated under the Regulatory Flexibility Act (5 included to prohibit taking or removing as closed (e.g., Bush Key when it is U.S.C. 601 et seq.). This certification is corals and live rock. Coral damage closed for wildlife nesting), but taxiing based on a report entitled ‘‘Regulatory caused by vessels is often attributed to is allowed when seaplane use is Flexibility Threshold Analysis: carelessness of vessel operators but can permitted. The existing regulations use Proposed Regulations Implementing the be avoided through more careful vessel a 300 yard limit for approaches, Final General Management Plan operation. This rule makes vessel landings and takeoffs. The new limit of Amendment/Environmental Impact operators responsible for preventing 500 feet will also bring these regulations Statement for Dry Tortugas National damage to corals by their vessels. These in line with the general aircraft Park.’’ (January 27, 2005). This last two provisions are similar to regulations provision of 500 feet. document may be viewed on the park’s

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Web site at: http://www.nps.gov/drto/ This rule is consistent with the cultural resources, visitor experience, parkmgmt/index.htm. requirements of the management socioeconomic environment, and park agreement. Once final, the regulations operations/facilities are analyzed. The Small Business Regulatory Enforcement will be reviewed by the NPS at least FGMPA/EIS was prepared in Fairness Act (SBREFA) every five years, and as appropriate, conjunction with planning by the This rule is not a major rule under 5 revised, and reissued, based upon the FKNMS, the FWC, and the GMFMC to U.S.C. 804(2), the Small Business results of the research program establish the TER in state and federal Regulatory Enforcement Fairness Act. conducted pursuant to the management waters adjacent to Dry Tortugas This proposed rule: agreement as well as the information National Park. State and Federal a. Does not have an annual effect on contained in the management plan approvals for the TER are complete and the economy of $100 million or more. status report prepared by the NPS implementation of the ecological reserve b. Will not cause a major increase in detailing the status and activities of the is underway. costs or prices for consumers, implementation of the FGMPA/EIS. After careful consideration of individual industries, Federal, State, or Information and data collected legislative mandates, visitation trends, local government agencies, or regarding the effectiveness and environmental impacts, relevant geographic regions. performance of the RNA will also be scientific studies, and comments from the public and agencies, the NPS chose c. Does not have significant adverse reviewed and evaluated. Under adaptive to implement Alternative C as described effects on competition, employment, management, NPS may consider in the Final GMPA/EIS issued in investment, productivity, innovation, or changes in the RNA, including January 2001 (with some minor the ability of U.S.-based enterprises to boundary adjustments and clarifications, as listed in Appendix A, compete with foreign-based enterprises. modifications to the protection and conservation management strategies Errata). This alternative best Unfunded Mandates Reform Act applicable to the RNA. accomplishes the legislated purposes of DRTO and the statutory mission of the This rule will not impose an Consistent with the management NPS to provide long-term protection of unfunded mandate on State, local, or agreement, the NPS has obtained the park resources and values while tribal governments or the private sector concurrence of the Board of Trustees of allowing for visitor use and enjoyment. of more than $100 million per year. The the Internal Improvement Trust Fund It also furthers the objectives of rule will not have a significant or regarding that portion of the regulations pertaining to the management of Executive Order 13089, Coral Reef unique effect on State, local or tribal Protection. governments or the private sector. This submerged lands within the park. Further, the NPS will submit for review The goal of the selected action is to rule is an agency specific rule and does afford a high level of protection to park not impose any other requirements on to the FWC any proposed revisions or amendments thereto. resources and provide for appropriate other agencies, governments, or the types and levels of high quality visitor private sector. Civil Justice Reform (Executive Order experiences. This will be accomplished Takings (Executive Order 12630) 12988) through management zoning, In accordance with Executive Order establishing visitor carrying capacity for In accordance with Executive Order 12988, the Office of the Solicitor has specific locations in the park, using 12630, the rule does not have significant determined that this rule does not commercial services to direct and takings implications. A taking unduly burden the judicial system and structure visitor use, and instituting a implication assessment is not required. meets the requirements of sections 3(a) permit system for private boaters. A No taking of personal property will and 3(b)(2) of the Order. wide range of recreational and occur as a result of this rule. educational opportunities will be Paperwork Reduction Act Federalism (Executive Order 13132) available to visitors provided that This regulation does not require an appropriate resource conditions are In accordance with Executive Order information collection from 10 or more maintained. Visitor experiences will be 13132, the rule does not have sufficient parties and a submission under the enhanced due to expanded access federalism implications to warrant the Paperwork Reduction Act is not throughout the park and higher quality preparation of a Federalism Assessment. required. An OMB Form 83–I is not resources to enjoy. This proposed rule only applies to the required. Multiple consultations took place use of NPS administered lands and with government agencies during the waters. National Environmental Policy Act EIS process, including the FKNMS, the Both the State of Florida and the The Department of the Interior, FWC, and the GMFMC. The NPS United States claim title to submerged National Park Service prepared a Final Southeast Regional Director signed the lands located within the boundaries of General Management Plan Amendment/ Record of Decision (ROD) on July 27, the park established by Congress. Rather Environmental Impact Statement 2001. In reaching a decision, NPS than addressing this issue through (FGMPA/EIS) for Dry Tortugas National carefully considered the comments and potentially protracted litigation, the Park, Monroe County, Florida. Five concerns expressed by the public State and the Department have entered alternatives were evaluated for guiding throughout the EIS process. The EIS and into the ‘‘Management Agreement for the management of the park over the ROD are available online at: http:// Certain Submerged Lands in Monroe next 15 to 20 years. The alternatives www.nps.gov/drto/parkmgmt/ County, Florida, Located within Dry incorporate various zoning applications index.htm. or at Everglades National Tortugas National Park’’ approved by and other management provisions to Park, as indicated above under the the Florida Governor and Cabinet on ensure resource protection and quality heading FOR FURTHER INFORMATION August 9, 2005 and by the Secretary of visitor experience conditions. The CONTACT. the Interior on December 20, 2005. This environmental consequences Pursuant to section 7 of the document may be viewed on the park’s anticipated from implementation of Endangered Species Act, the NPS has Web site at http://www.nps.gov/drto/ each alternative are addressed in the consulted with the U.S. Fish and parkmgmt/index.htm. FGMPA/EIS. Impacts to natural and Wildlife Service (FWS) and the National

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Marine Fisheries Service (NMFS) handling protocols, emphasizing release (v) Pilchard (family Clupeidae); or regarding potential effects of the procedures that minimize stress and (vi) Pinfish (family Sparidae, genus proposed regulations on federally listed maximize survival potential. Lagodon). species. On December 15, 2005, the 4. NPS must supply recreational (2) Cast net means a type of circular FWS determined that the proposed rule fishers with verbal and/or written falling net, weighted on its periphery, would have no effect on the Bald eagle information on fishing gear that can which is thrown and retrieved by hand, and would not likely adversely affect reduce bycatch (i.e., circle measuring 14 feet or less stretched nesting marine turtles, the American hooks). length (stretched length is defined as the crocodile, West Indian manatee or the To implement RPM No. 3: distance from the horn at the center of Roseate tern. 5. NPS must notify F/SER3 the net with the net gathered and pulled On June 7, 2006, the NMFS issued a immediately if they believe a sea turtle taut, to the lead line). Biological Opinion on the proposed stranding is related in any way to (3) Designated anchorage means any rule. NMFS determined that the fishing activities within the park. area of sand within one nautical mile of continuation of hook and line fishing in 6. NPS shall monitor sea turtle the Fort Jefferson Harbor Light. the park may result in the lethal take of strandings to ensure incidental take (4) Dip net means a hand held device one sea turtle annually. NMFS levels do not exceed the authorized for obtaining bait, the netting of which concluded that this level of take is not level. If at any time, the take level stated is fastened in a frame. A dip net may not likely to jeopardize the continued in this opinion is exceeded, NPS must exceed 3 feet at its widest point. existence of green, hawksbill, notify F/SER3 immediately. Stranding (5) Finfish means a member of leatherback, or loggerhead sea turtles. reports shall be submitted to F/SER3 subclasses Agnatha, Chondrichthyes, or The Biological Opinion authorizes annually. Submitted reports must Osteichthyes. lethal take of one sea turtle per year and include any information on the causes (6) Flat wake speed means the determined that the following of strandings, with special attention minimum required speed to leave a flat Reasonable and Prudent Measures paid to any fishing gear associated with wave disturbance close astern a moving (RPM) are necessary and appropriate to the animal. vessel yet maintain steerageway, but in minimize impacts of incidental take of no case in excess of 5 statute miles per Government-to-Government hour. sea turtles. Relationship With Tribes 1. NPS must ensure that the Dry (7) Guide operations means the Tortugas National Park Sea Turtle In accordance with the President’s activity of a person, partnership, firm, Monitoring Program is maintained and memorandum of April 29, 1994, corporation, or other entity to provide capable of both detecting any adverse ‘‘Government to Government Relations services for hire to visitors of the park. effects resulting from recreational with Native American Tribal This includes, but is not limited to, fishing inside the park and assessing the Governments’’ (59 FR 22951) and 512 fishing, diving, snorkeling, and wildlife actual level of incidental take in DM 2, we have evaluated potential viewing. comparison with the anticipated effects on federally recognized Indian (8) Live rock means any living marine incidental take documented in this tribes and have determined that there organism or assemblage thereof attached opinion. are no potential effects. to a hard substrate, including dead coral or rock but not individual mollusk 2. NPS must implement outreach List of Subjects in 36 CFR Part 7 programs seeking to increase awareness shells. among park anglers and visitors of National parks, Recreation. (9) Lobster means any of the protected species within the park and I For reasons stated in the preamble, the following: ways to reduce encounters with those National Park Service amends 36 CFR (i) Shovelnosed or Spanish Lobster species. part 7 as follows: (Scyllarides aequinocti); 3. NPS must provide NMFS’ (ii) Slipper lobster (Parribacus Southeast Regional Office of Protected PART 7—SPECIAL REGULATIONS, antarcticus); Resources Division (F/SER3) with AREAS OF THE NATIONAL PARK (iii) Caribbean spiny lobster sufficient information to monitor this SYSTEM (Panulirus argus); or (iv) Spotted spiny lobster (Panulirus Incidental Take Statement. I 1. The authority for part 7 continues guttatus). To be exempt from liability for take to read as follows: prohibited by section 9 of the ESA, NPS (10) Marine life means: must comply with the following terms Authority: 16 U.S.C. 1, 3, 9a, 460(q), (i) Sponges, sea anenomes, corals, and conditions, which implement the 462(k); Sec. 7.96 also issued under D.C. Code jellyfish, sea cucumbers, starfish, sea 8–137 (1981) and D.C. Code 40–721 (1981). RPMs described above. These terms and urchins, octopus, crabs, shrimp, conditions are non-discretionary. I 2. Section 7.27 is revised as follows: barnacles, worms, conch; and To implement RPM No. 1: (ii) Other animals belonging to the 1. NPS must increase its sea turtle § 7.27 Dry Tortugas National Park. Phyla Porifera, Cnidaria, stranding surveillance to at least twice (a) What terms do I need to know? Echinodermata, Mollusca, Bryozoa, weekly. This surveillance should be The following definitions apply to this Brachiopoda, Arthropoda, split equally between shore and in water section only: Platyhilmenthes, and Annelida. surveys when feasible. (1) Bait fish means any of the (11) Not available for immediate use 2. NPS must establish a reporting following: means not readily accessible for system that requires anglers or charter (i) Ballyhoo (family Exocioetidae and immediate use (e.g., by being stowed boat guides to report interactions genus Hemiramphus), other genus may unbaited in a cabin, locker, rod holder, between their fishing party and sea be included in this family; or similar storage area, or being securely turtles. (ii) Minnow (families covered and lashed to a deck or To implement RPM No. 2: Cyprinodontidae, Peciliidae, or bulkhead). 3. NPS must develop and implement Aherinidae); (12) Ornamental tropical fish means a an outreach program to educate (iii) Mojarra (family Gerreidae); brightly colored fish, often used for recreational fishers on sea turtle (iv) Mullet (family Mugilidae); aquarium purposes and which lives in

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close relationship to coral communities, (ii) Bait fish by closely attended hook (vi) The use of nets except as belonging to the families Syngathidae, and line, dip net, or cast net and limited provided in paragraphs (b)(3)(ii)and (iii) Apogonidae, Pomacentridae, Scaridae, to 5 gallons per vessel per day; and of this section. Blennidae, Callionymidae, Gobiidae, (iii) Shrimp may be taken by dip net (vii) Engaging in guide operations (fee Ostraciidae, or Diodontidae. or cast net. for service), including but not limited to (13) Permit, in the case of 36 CFR part (3) The following waters and areas are fishing and diving, except in accordance 7.27, means an authorization in writing closed to fishing: with the provisions of: or orally (e.g., via radio or (i) The Research Natural Area (RNA): (A) A permit, contract, or other telephonically). Fish and fishing gear may be possessed commercial use authorization; or (14) Research Natural Area (RNA) at aboard a vessel in the RNA, provided (B) Other written agreement with the Dry Tortugas National Park means the such fish can be shown not to have been United States administered under this 46-square-statute-mile area in the harvested from within, removed from, chapter. northwest portion of the park enclosed or taken within the RNA, as applicable, (c) Are any areas of the park closed by connecting with straight lines the by being stowed in a cabin, locker, or to the public? Yes. The following areas adjacent points of 82°51′ W and 24°36′ similar storage area prior to entering and are closed to the public: N, and 82°58′ W and 24°36′ N west to during transit through the RNA, (1) The elkhorn (Acropora palmata) the park boundary, but excluding: provided further that such vessel is in and staghorn (Acropora prolifera) coral continuous transit through the RNA. (i) The designated anchorage; patches adjacent to and including the Gear capable of harvesting fish may be tidal channel southeast of Long and (ii) Garden Key, Bush Key and Long aboard a vessel in the RNA, provided Key; or Bush Keys and extending to 100 yards such gear is not available for immediate from the exterior edge of either patch; (iii) The central portion of Loggerhead use when entering and during transit (2) Hospital and Long Keys; and key including the lighthouse and through the RNA and no presumption of (3) Areas that the Superintendent associated buildings. fishing activity shall be drawn designates in accordance with § 1.5 and (15) Shrimp means a member of the therefrom; noticed to the public through one or genus Farfantepenaeus, Penaeus sp. (ii) Garden Key moat; more of the methods listed in § 1.7 of (b) Are there recreational fishing (iii) Within any swimming and this chapter. restrictions that I need to know? snorkeling areas designated by buoys; (d) What restrictions apply on (iv) Within 50 feet of the historic (1) Yes. After consulting with and Loggerhead Key? coaling docks; obtaining the concurrence of the Florida (1) The Superintendent will, as (v) Helipad areas, including the Fish and Wildlife Conservation necessary to protect park resources, Commission, based on management gasoline refueling dock. (4) The following are prohibited: visitors, or employees: objectives and the park fisheries (i) Possessing lobster within the (i) Designate areas on Loggerhead Key research, the Superintendent may boundaries of the park, unless the open for public use; impose closures and establish individual took the lobster outside park (ii) Establish closures or restrictions conditions or restrictions necessary waters and has the proper State/Federal on and around the waters of Loggerhead pertaining to fishing, including, but not licenses and permits. Vessels with Key; and limited to, species of fish that may be legally taken lobster aboard which was (iii) Establish conditions for docking, taken, seasons, and hours during which taken outside the park may not have swimming or wading, and hiking. fishing may take place, methods of persons overboard in park waters. The (2) The Superintendent will notify the taking, and size, bag, and possession presence of lobster aboard a vessel in public of designations, closures or limits. The public will be notified of any park waters, while one or more persons restrictions through one or more of the changes through one or more methods from such vessel are overboard, methods listed in § 1.7 of this chapter. listed in § 1.7 of this chapter. In constitutes prima facie evidence that the (e) What restrictions apply to emergency situations, after consulting lobsters were harvested from park anchoring a vessel in the park? with the Florida Fish and Wildlife waters in violation of this chapter. (1) Anchoring in the Research Natural Conservation Commission, the (ii) Taking fish by pole spear, Area (RNA) is prohibited. Superintendent may impose temporary , rubber powered, (2) All vessels in the RNA must use closures and establish conditions or pneumatic, or spring loaded gun or designated mooring buoys. restrictions necessary, but not exceeding similar device known as a speargun, air (3) Anchoring between sunset and 30 days in duration which may be rifles, bows and arrows, powerheads, or sunrise is limited to the designated extended for one additional 30 day explosive powered guns. Operators of anchorage area at Garden Key. period, pertaining to fishing, including, vessels within the park must break (4) Vessels engaged in commercial but not limited to, species of fish that down and store all weapons described fishing or shrimping must not anchor in may be taken, seasons, and hours during in this paragraph so that they are not any of the channels, harbors, or lagoons which fishing may take place, methods available for immediate use. in the vicinity of Garden Key, Bush Key, of taking, and size, bag, and possession (iii) Use of a hand held hook, gig, gaff, or the surrounding shoals outside of limits. In emergency situations where or snare, except that a gaff may be used Bird Key Harbor, except in cases of consultation in advance is not possible, for landing a fish lawfully caught by emergency involving danger to life or the Superintendent will consult with hook and line when consistent with all property. (Emergencies may include, the Florida Fish and Wildlife requirements in this section, including adverse weather conditions, mechanical Conservation Commission within 24- size and species restrictions. failure, medical emergencies, or other hours of the initiation of the temporary (iv) Taking, possessing, or touching public safety situations.) closure or restriction. any ornamental tropical fish or marine (f) What vessel operations are (2) Only the following may be legally life except as expressly provided in this prohibited? The following vessel taken from Dry Tortugas National Park: section. operations are prohibited: (i) Fin fish by closely attended hook- (v) Dragging or trawling a dip net or (1) Operating a vessel in the Fort and-line; cast net. Jefferson Moat; and

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(2) Operating a vessel above a flat dragged, or placed so as to strike, break, NARA properties. Because NARA’s wake speed in the Garden Key and Bird abrade, or otherwise cause damage to current regulations apply specifically Key Harbor areas. coral formations, sea grass, or only to visitors on NARA property, the (g) What restrictions apply to submerged cultural resources. final rule clarifies that all persons discharging materials in park waters? (j) What restrictions apply on or near arriving on, working at, visiting, or (1) Discharging or depositing shipwrecks? departing from NARA property are materials or substances of any kind (1) No person may destroy, molest, subject to the inspection of their within the boundaries of the park is remove, deface, displace, or tamper with personal property. The final rule also prohibited, except for the following: wrecked or abandoned vessels of any amends NARA’s current regulations to (i) Research Natural Area: cooling type or condition, or any cargo include additional properties under water or engine exhaust. pertaining thereto. NARA control. This rule will affect (ii) Park Waters Outside the Research (2) Surveying, inventorying, members of the public, members of Natural Area: dismantling, or recovering any wreck or Federal agencies, NARA employees, (A) Fish, fish parts, cargo within the boundaries of the park NARA contract-employees and NARA materials, or bait used or produced is prohibited unless permitted in volunteers. incidental to and while conducting writing by the Superintendent. recreational fishing activities in the (k) How are aircraft operations DATES: Effective Date: Effective January park; restricted? 19, 2007. (B) Water generated by routine vessel (1) Landing an aircraft in Dry Tortugas FOR FURTHER INFORMATION CONTACT: operations (e.g., deck wash down and National Park may occur only in Jeffrey Landou at 301–837–1899 or fax graywater from sinks, consisting of only accordance with a permit issued by the number 301–837–0293. water and food particles; Superintendent under § 1.6 of this (C) Vessel cooling water, engine chapter. SUPPLEMENTARY INFORMATION: The exhaust, or bilge water not (2) When landing is authorized by proposed rule was published in the contaminated by oil or other substances. permit, the following requirements also September 26, 2006, Federal Register (2) The Superintendent may impose apply: (71 FR 56919) for a 60-day comment further restrictions as necessary to (i) Aircraft may be landed on the period. Notification of user groups protect park resources, visitors, or waters within a radius of 1 mile of occurred following publication of the employees. The Superintendent will Garden Key, but a landing or takeoff proposed rule. NARA received no notify the public of these requirements may not be made within 500 feet of comments on the proposed rule and through one or more of the methods Garden Key, or within 500 feet of any therefore is issuing the final rule with listed in § 1.7 of this chapter. closed area. no changes. (h) What are the permit requirements (ii) Operation of aircraft is subject to This final rule is not a significant in the park? § 2.17 of this chapter, except that regulatory action for the purposes of (1) A permit, issued by the seaplanes may be taxied closer than 500 Executive Order 12866 and has not been Superintendent, is required for all non- feet to the Garden Dock while en route reviewed by the Office of Management commercial vessels for which occupants to or from the designated ramp, north of and Budget. As required by the are engaged in recreational activities, the dock. Regulatory Flexibility Act, I certify that including all activities in the RNA. (iii) Seaplanes may be moored or this rule will not have a significant Permitted recreational activities include brought up on land only on the impact on a substantial number of small but are not limited to use of mooring designated beach, north of the Garden entities because the final rule affects buoys, snorkeling, diving, wildlife Key dock. NARA contractors, employees, student viewing, and photography. Dated: October 2, 2006. interns, visitors, volunteers and other (2) A permit, issued by the persons on NARA controlled property. Superintendent, is required for a person, David M. Verhey, Acting Assistant Secretary for Fish and This regulation does not have any group, institution, or organization federalism implications. This rule is not conducting research activities in the Wildlife and Parks. [FR Doc. E6–21646 Filed 12–19–06; 8:45 am] a major rule as defined in 5 U.S.C. park. Chapter 8, Congressional Review of BILLING CODE 4312–78–P (3) Vessels transiting the park without Agency Rulemaking. interruption shall not require a permit. (i) How are corals and other List of Subjects in 36 CFR Part 1280 underwater natural features protected in NATIONAL ARCHIVES AND RECORDS the park? ADMINISTRATION Archives and records. (1) Taking, possessing, removing, I For the reasons set forth in the damaging, touching, handling, 36 CFR Part 1280 preamble, NARA amends part 1280 of harvesting, disturbing, standing on, or [NARA–06–0005] title 36, Code of Federal Regulations as otherwise injuring coral, coral follows: formation, seagrass or other living or RIN 3095–AB55 PART 1280—USE OF NARA dead organisms, including marine Use of NARA Facilities invertebrates, live rock, and shells, is FACILITIES prohibited. AGENCY: National Archives and Records (2) Vessel operators are prohibited Administration (NARA). I 1. The authority citation for part 1280 from allowing their vessel to strike, ACTION: Final rule. continues to read as follows: injure, or damage coral, seagrass, or any Authority: 44 U.S.C. 2104(a). other immobile organism attached to the SUMMARY: This final rule revises seabed. NARA’s policy on the inspection of I 2. Revise the heading for part 1280 to (3) Vessel operators are prohibited personal property in the possession of a read as set forth above: from allowing an anchor, chain, rope or contractor, employee, student intern, I 3. Amend § 1280.2 to add paragraphs other mooring device to be cast, visitor, volunteer or other person on (d), (e), and (f) to read as follows:

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