Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16399

12612, it is determined that this

proposal would not have sufficient

federalism implications to warrant the

preparation of a Federalism Assessment.

For the reasons discussed above, I

certify that this action (1) is not a

‘‘significant regulatory action’’ under

Executive Order 12866; (2) is not a

‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034, February 26, 1979); and (3) if

promulgated, will not have a significant

economic impact, positive or negative,

on a substantial number of small entities

under the criteria of the Regulatory

Flexibility Act. A copy of the draft

regulatory evaluation prepared for this

action has been placed in the Rules

Docket. A copy of it may be obtained by

contacting the Rules Docket at the

location provided under the caption

ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation

safety, Safety.

The Proposed Amendment

Accordingly, pursuant to the

authority delegated to me by the

Administrator, the Federal Aviation

Administration proposes to amend part

39 of the Federal Aviation Regulations

(14 CFR part 39) as follows:

PART 39—AIRWORTHINESS

DIRECTIVES

1. The authority citation for part 39

continues to read as follows:

Authority: 49 U.S.C. App. 1354(a), 1421

and 1423; 49 U.S.C. 106(g); and 14 CFR

11.89.

§ 39.13 [AMENDED]

2. Section 39.13 is amended by

adding a new AD to read as follows:

Scheibe Flugzeugbau GmbH: Docket No. 94–

CE–35–AD.

Applicability: SF34 and SF34B gliders

(serial number 5102 through 5131),

certificated in any category.

Note 1: This AD applies to each glider

identified in the preceding applicability

provision, regardless of whether it has been

modified, altered, or repaired in the area

subject to the requirements of this AD. For

gliders that have been modified, altered, or

repaired so that the performance of the

requirements of this AD is affected, the

owner/operator must use the authority

provided in paragraph (e) of this AD to

request approval from the FAA. This

approval may address either no action, if the

current configuration eliminates the unsafe

condition, or different actions necessary to

address the unsafe condition described in

this AD. Such a request should include an

assessment of the effect of the changed

configuration on the unsafe condition

addressed by this AD. In no case does the

presence of any modification, alteration, or

repair remove any glider from the

applicability of this AD.

Compliance: Required within the next 50

hours TIS after the effective date of this AD,

unless already accomplished.

To prevent fatigue failure of the wing,

which could result in loss of control of the

glider, accomplish the following:

(a) Add armature (supportive covering) to

both wings in accordance with the job

instructions section of Scheibe Technical

Note (TN) No. 336–2, dated March 10, 1989.

(b) Modify the root rib of the left wing in

accordance with the job instructions section

of Scheibe TN No. 336–2, dated March 10,

1989.

(c) Accomplish the following flight manual

changes:

(1) Replace pages 1 and 13 of the flight

manual with the revised pages 1 and 13

included with Scheibe TN Number 336–1,

dated March 10, 1989.

(2) Replace pages 1 and 11 in the

Instructions for Continued Airworthiness

with the revised pages 1 and 11 included

with Scheibe TN Number 336–1, dated

March 10, 1989.

(3) In page 8 of the flight manual, add 1

kg to the current empty weight of the glider

and deduct 1kg from the current maximum

load as specified in paragraph 3 of the

Instructions section of Scheibe TN Number

336–1, dated March 10, 1989.

(4) Remove existing operating limitations

and incorporate new operating limitations

into the Limitations section of the flight

manual as specified in paragraph 4 of the

Instructions section of Scheibe TN Number

336–1, dated March 10, 1989.

(d) Special flight permits may be issued in

accordance with sections 21.197 and 21.199

of the Federal Aviation Regulations (14 CFR

21.197 and 21.199) to operate the glider to a

location where the requirements of this AD

can be accomplished.

(e) An alternative method of compliance or

adjustment of the compliance time that

provides an equivalent level of safety may be

approved by the Manager, Small Airplane

Directorate, FAA, 1201 Walnut, suite 900,

Kansas City, Missouri 64106. The request

should be forwarded through an appropriate

FAA Maintenance Inspector, who may add

comments and then send it to the Manager,

Small Airplane Directorate.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Small Airplane

Directorate.

(f) All persons affected by this directive

may obtain copies of the document referred

to herein upon request to Scheibe

Flugzeugbau GmbH, Dachau, Aug. Pfaltz -

Str. 23, Dachau, Germany; or may examine

this document at the FAA, Central Region,

Office of the Assistant Chief Counsel, Room

1558, 601 E. 12th Street, Kansas City,

Missouri 64106. Issued in Kansas City,

Missouri, on March 24, 1995.

Dwight A. Young,

Acting Manager, Small Airplane Directorate,

Aircraft Certification Service.

[FR Doc. 95–7799 Filed 3–29–95; 8:45 am]

BILLING CODE 4910–13–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Parts 929 and 937

[Docket No. 941085–4285]

RIN 0648–AD85

Florida Keys National Marine

Sanctuary Proposed Regulations

AGENCY: Office of Ocean and Coastal

Resource Management (OCRM),

National Ocean Service (NOS), National

Oceanic and Atmospheric

Administration (NOAA), Commerce.

ACTION: Proposed rule; removal and

revision of regulations; Summary of

Draft Management Plan; Proposed

Designation Document; Public

Availability of Draft Management Plan

and Draft Environmental Impact

Statement.

SUMMARY: NOAA, as required by section

7(a) of the Florida Keys National Marine

Sanctuary and Protection Act, is

proposing a comprehensive

management plan and implementing

regulations to manage an approximately

2,800 square nautical mile area of

coastal and ocean waters and the

submerged lands thereunder,

surrounding the Florida Keys in and

adjacent to the State of Florida,

designated by the Florida Keys National

Marine Sanctuary and Protection Act as

the Florida Keys National Marine

Sanctuary (the ‘‘Sanctuary’’). This

document publishes the Designation

Document, and summarizes the draft

comprehensive management plan, for

the Sanctuary. The draft management

plan details the proposed goals and

objectives, management responsibilities,

research activities, interpretive and

educational programs, and enforcement,

including surveillance, activities for the

Sanctuary. The proposed regulations

would implement the comprehensive

management plan and govern the

conduct of activities consistent with the

provisions of the Designation

Document. The intended effect of the

Designation Document, proposed

regulations, and DEIS/MP is to protect

the conservation, recreational,

ecological, historical, research,
16400 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

educational, and aesthetic qualities of

the Florida Keys coastal and ocean

waters and the submerged lands

thereunder.

DATES: Comments are invited and will

be considered if submitted in writing to

the address below by December 31,

1995.

ADDRESSES: Requests for the above

described documents and comments

should be submitted to the

Superintendent, Florida Keys National

Marine Sanctuary, P.O. Box 500368,

Marathon, Florida 33050.

FOR FURTHER INFORMATION CONTACT:

Billy Causey, Sanctuary Superintendent,

305/743–2437 or Edward Lindelof,

Atlantic, Great Lakes and Gulf Branch

Chief, 301/713–3137 X 131.

SUPPLEMENTARY INFORMATION:

I. Introduction

Title III of the Marine Protection,

Research, and Sanctuaries Act of 1972,

as amended, 16 U.S.C. 1431 et seq. (the

‘‘MPRSA’’), authorizes the Secretary of

Commerce to designate discrete areas of

the marine environment as national

marine sanctuaries to protect their

conservation, recreational, ecological,

historical, research, educational, or

aesthetic qualities.

The Florida Keys National Marine

Sanctuary was designated by an act of

Congress entitled the Florida Keys

National Marine Sanctuary and

Protection Act (FKNMSPA, Pub. L. 101–

605) signed into law on November 16,

1990.

NOAA held six public scoping

meetings during the months of April

and May, 1991, to solicit public

comments on the proposed management

of the Sanctuary: Key Largo on April

10th, Miami on April 11th, Marathon on

April 15th, and Key West on April 16th,

Key Largo on April 17, and Washington,

D.C. on May 6. Notice of the scoping

meetings was published in local

newspapers. NOAA invited all

interested persons to attend, and asked

those attending the meeting to comment

on readily identifiable issues, suggest

additional issues for examination, and

provide information useful in managing

the Sanctuary.

The authority of the Secretary to

designate national marine sanctuaries

was delegated to the Under Secretary of

Commerce for Oceans and Atmosphere

by the Department of Commerce,

Organization Order 10–15, section

3.01(z) (Jan. 11, 1988). The authority to

administer the other provisions of the

Act was delegated to the Assistant

Administrator for Ocean Services and

Coastal Zone Management of NOAA by

NOAA Circular 83–38, Directive 05–50

(Sept. 21, 1983, as amended).

Holders of, owners of, or future

applicants for leases, permits, licenses,

approvals, other authorizations, or

rights of subsistence use of, or access to,

Sanctuary resources, are specifically

invited to comment on how they may be

affected by the designation of the

Sanctuary and particularly sections

929.14–929.16 of the proposed

regulations.

Comments are also specifically sought

on the adequacy of the regulatory

regime to protect Sanctuary resources

and qualities.

After the comments received during

the comment period have been

considered, a final environmental

impact statement and management plan

will be prepared, and final regulations

implementing the comprehensive

management plan will be published in

the Federal Register. The designation

document, management plan, and

regulations will become final and take

effect at the close of a 45-day

Congressional review period unless a

joint resolution disapproving any of the

terms of designation is enacted, in

which case only the terms not

disapproved will take effect, or the

Governor of the State of Florida certifies

to the Secretary of Commerce that the

designation or any of its terms is

unacceptable, in which case the

designation or the unacceptable terms

will not take effect in the area of the

Sanctuary lying within the seaward

boundary of the State. A document will

be published in the Federal Register

announcing the effective date.

II. Summary of Draft Environmental

Impact Statement/Management Plan

The DEIS/MP for the Florida Keys

National Marine Sanctuary sets forth the

Sanctuary’s location and provides

details on the most important resources

and uses of the Sanctuary. The DEIS/MP

describes the resource protection,

research, education and interpretive

programs, and details the specific

activities to be conducted in each

program. The DEIS/MP includes a

detailed discussion, by program area, of

agency roles and responsibilities. The

proposed goals and objectives for the

Sanctuary are: (1) Enhance resource

protection through comprehensive and

coordinated conservation and ecosystem

management that complements existing

regulatory authorities; (2) support,

promote, and coordinate scientific

research on, and monitoring of, the sitespecific marine resources to improve

management decision-making in

national marine sanctuaries; (3) enhance

public awareness, understanding, and

the wise use of the marine environment

through public interpretive,

educational, and recreational programs,

and (4) facilitate, to the extent

compatible with the primary objective

of resource protection, multiple uses of

the Sanctuary.

A. Resource Protection

The highest priority management goal

is to protect the marine environment,

resources, and qualities of the

Sanctuary. The specific objectives of

protection efforts are to: (1) Reduce

threats to Sanctuary resources; (2)

encourage participation by interested

agencies and organizations in the

development of procedures to address

specific management concerns (e.g.,

monitoring and emergency-response

programs); (3) develop an effective and

coordinated program for the

enforcement of Sanctuary regulations in

addition to other regulations already in

place; (4) promote public awareness of,

and voluntary compliance with,

Sanctuary regulations and objectives

through an educational/interpretive

program stressing resource sensitivity

and wise use; (5) ensure that the water

quality of the Florida Keys is

maintained at a level consistent with the

purposes of Sanctuary designation; (6)

establish cooperative agreements and

other mechanisms for coordination

among all the agencies participating in

Sanctuary management; (7) ensure that

the appropriate management agencies

incorporate research results and

scientific data into effective resource

protection strategies; and (8) coordinate

policies and procedures among the

agencies sharing responsibility for

protection and management of

resources.

B. Research Program

Effective management of the

Sanctuary requires the conduct of a

Sanctuary research program. The

purpose of Sanctuary research is to

improve understanding of the Florida

Keys’ coastal and offshore environment,

resources, and qualities, and to resolve

specific management problems. Some of

these management problems involve

resources common to coastal and

offshore waters, and nearby Federal,

State, and local refuges and reserves.

Research results will both support

management efforts to protect Sanctuary

resources and qualities, and be

incorporated into interpretative

programs for visitors and others

interested in the Sanctuary.

Specific objectives for the research

program are to: (1) establish a

framework and procedures for

administering research to ensure that
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16401

research projects are responsive to

management concerns and that results

contribute to improved management of

the Sanctuary; (2) focus and coordinate

data collection efforts on the physical,

chemical, geological, and biological

oceanography of the Sanctuary; (3)

encourage studies that integrate research

from the variety of coastal habitats with

nearshore and open ocean processes; (4)

initiate a monitoring program to assess

environmental changes as they occur

due to natural and human processes; (5)

identify the range of effects on the

environment that would result from

predicted changes in human activity or

natural phenomena; (6) encourage

information exchange and cooperation

among all the organizations and

agencies undertaking managementrelated research in the Sanctuary to

promote more informed management;

and (7) incorporate research results into

the interpretive/education program in a

format useful for the general public.

C. Education

The goal for the Sanctuary education

program is to improve public awareness

and understanding of the significance of

the Sanctuary and the need to protect its

resources and qualities.

The management objectives designed

to meet this goal are to: (1) Provide the

public with information on the

Sanctuary and its goals and objectives,

with an emphasis on the need to use

Sanctuary resources and qualities

wisely to ensure their long-term

viability; (2) broaden support for

Sanctuary management by offering

programs suited to visitors with a

diverse range of interests; (3) provide for

public involvement by encouraging

feedback on the effectiveness of

education programs, collaboration with

Sanctuary management staff in

extension and outreach programs, and

participation in other volunteer

programs; and (4) collaborate with other

organizations to provide educational

services complementary to the

Sanctuary program.

D. Visitor Use

The Sanctuary goal for visitor use

management is to facilitate, to the extent

compatible with the primary objective

of resource protection, public and

private uses of the resources of the

Sanctuary not prohibited pursuant to

other authorities.

Specific management objectives are

to: (1) Provide relevant information

about Sanctuary regulations, use

policies, and standards; (2) collaborate

with public and private organizations in

promoting compatible uses of the

Sanctuary; (3) encourage the public who

use the Sanctuary to respect sensitive

Sanctuary resources and qualities; and

(4) monitor and assess the levels of use

to identify and control potential

degradation of resources and qualities,

and minimize potential user conflicts.

The Sanctuary would be managed

from a headquarters facility located in

the Florida Keys region.

III. Designation Document

Section 304(a)(4) of the MPRSA

requires that the Terms of Designation

include the geographic area included

within the Sanctuary; the characteristics

of the area that give it conservation,

recreational, ecological, historical,

research, educational, or aesthetic value;

and the types of activities that will be

subject to regulation by the Secretary to

protect these characteristics. Section

304(a)(4) also specifies that the terms of

designation may be modified only by

the same procedures by which the

original designation was made. Thus the

terms of designation serve as a

constitution for the Sanctuary.

Designation Document for the Florida

Keys National Marine Sanctuary

On November 16, 1990, the Florida

Keys National Marine Sanctuary and

Protection Act (FKNMSPA), Public Law

101–605, set out as a note to 16 U.S.C.

1433, was signed into law. The Florida

Keys National Marine Sanctuary and

Protection Act designated an area of

waters and submerged lands, including

the living and nonliving resources

within those waters, as described in

section 5 of the FKNMSPA, as the

Florida Keys National Marine

Sanctuary.

Article I. Effect of Designation

Title III of the Marine Protection,

Research, and Sanctuaries Act of 1972

as amended (the ‘‘MPRSA’’), 16 U.S.C.

1431 et seq., authorizes the issuance of

such regulations as are necessary and

reasonable to implement the

designation, including managing and

protecting the conservation,

recreational, ecological, historical,

research, educational and esthetic

resources and qualities of the Florida

Keys National Marine Sanctuary.

Section 1 of Article IV of this

Designation Document lists activities of

the type that will be regulated initially,

or may be subject to regulated

subsequent regulation in order to

protect Sanctuary resources and

qualities. Such listing does not

necessarily mean that a type of activity

will be regulated; however, if a type of

activity is not listed it may not be

regulated, except on an emergency

basis, unless Section 1 of Article IV is

amended to include the type of activity

by the procedures outlined in section

304(a) of the MPRSA.

Article II. Description of the Area

The Florida Keys National Marine

Sanctuary boundary encompasses

approximately 2,800 square nautical

miles (9,500 square kilometers) of

coastal and oceanic waters, and the

submerged lands thereunder,

surrounding the Florida Keys in and

adjacent to the State of Florida. The

Sanctuary boundary extends from the

northeasternmost point of Biscayne

National Park out to the Dry Tortugas,

a linear distance of approximately 320

kilometers. The boundary on the

Atlantic Ocean side of the Florida Keys

runs south from Biscayne National Park

following approximately the 300-foot

isobath, which curves in a

southwesterly direction along the

Florida Keys archipelago ending at the

Dry Tortugas. The boundary on the Gulf

of Mexico-side of the Florida Keys runs

in an easterly direction from the Dry

Tortugas paralleling the Florida Keys,

approximately five miles to the north,

and then follows the Everglades

National Park boundary until Division

Point at which time the boundary

follows the western shore of Manatee

Bay, Barnes Sound, and Card Sound.

The boundary then follows the southern

boundary of Biscayne National Park and

up its eastern boundary until its

northeasternmost point.

The shoreward boundary of the

Sanctuary is the mean high-water mark.

The Sanctuary boundary encompasses

all of the Florida coral reef tract, all of

the mangrove islands of the Florida

Keys, and some of the seagrass meadows

of Florida Bay. The precise boundary of

the Sanctuary is set forth at the end of

this Designation Document.

Article III. Characteristics of the Area

that Give it Particular Value

The Florida Keys are a limestone

island archipelago extending southwest

over 320 kilometers from the southern

tip of the Florida mainland. The Keys

are located at the southern edge of the

Floridian Plateau, a large carbonate

platform made of a depth of up to 7,000

meters of marine sediments, which have

been accumulating for 150 million years

and have been structurally modified by

subsidence and sea level fluctuation.

The Keys region is generally divided

into five distinct areas: the Florida reef

tract, one of the world’s largest coral

reef tracts and the only barrier reef in

the United States; Florida Bay,

described as an active lime-mud factory

because of the high carbonate content of

the silts and muds; the Southwest
16402 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

Continental Shelf; the Straits of Florida;

and the Keys themselves.

The 2.4 million-acre Sanctuary

contains one of North America’s most

diverse assemblages of estuarine and

marine fauna and flora, including, in

addition to the Florida reef tract,

thousands of patch reefs, one of the

world’s largest seagrass communities

covering 1.4 million acres, mangrovefringed shorelines, mangrove islands,

and various hardbottom habitats. These

diverse habitats provide shelter and

food for thousands of species of marine

plants and animals, including over 50

species of animals identified by either

Federal or State law as endangered or

threatened. Federal, State, local, and

private organizations currently protect,

preserve and set regulations at 121 sites

throughout the Keys, covering

approximately 2.0 million acres.

The Keys were at one time a major

seafaring center for European and

American trade routes in the Caribbean,

and submerged cultural and historic

resources (i.e., shipwrecks) abound in

the surrounding waters. In addition, the

Sanctuary may contain substantial

archaeological resources of preEuropean cultures.

The uniqueness of the marine

environment draws multitudes of

visitors to the Keys. The major industry

in the Florida Keys is tourism, including

activities related to the Keys’ marine

resources, such as dive shops, charter

fishing and dive boats and marinas, as

well as hotels and restaurants. The

abundance of the resources also

supports a large commercial fishing

employment sector.

The number of visitors to the Keys

grows each year, with a concomitant

increase in the number of residents,

homes, jobs, and businesses. As

population grows and the Keys

accommodate ever-increasing resourceuse pressures, the quality and quantity

of Sanctuary resources are increasingly

threatened. These pressures require

coordinated and comprehensive

management, monitoring and research

of the Florida Keys’ region.

Article IV. Scope of Regulations

Section 1. Activities Subject to

Regulation

In order to protect the characteristics

and values of the Sanctuary described

above, all activities adversely affecting

the resources or property of the

Sanctuary, whether individually or

cumulatively, or that pose harm to users

of the Sanctuary are subject to

regulation, including regulation of

method, location and times of

conducting the activity, assessment of

fees for conducting the activity, and

prohibition of the activity, either

throughout the entire Sanctuary

(including both land and water areas),

after public notice and an opportunity

for comment, or within identified

portions of the Sanctuary or in areas

adjacent to the Sanctuary to the extent

necessary and reasonable to ensure the

protection and management of the

conservation, recreational, ecological,

historical, research, educational or

esthetic resources and qualities of the

area. Such activities include, but are not

limited to:

a. Discharging or depositing, from

within or from beyond the boundary of

the Sanctuary, any material or other

matter, including aerially-sprayed

pesticides, that enters or could enter the

Sanctuary; and reporting of discharges

or deposits, from within or from beyond

the boundary of the Sanctuary, any

material or other matter, including

aerially-sprayed pesticides, that enters

or could enter the Sanctuary;

b. Exploring for, developing, or

producing oil, gas or minerals (e.g., clay,

stone, sand, gravel, metalliferous ores

and nonmetalliferous ores or any other

solid material or other matter of

commercial value) in the Sanctuary;

c. Drilling into, dredging or otherwise

altering the seabed of the Sanctuary; or

constructing, placing or abandoning any

structure, material or other matter on

the seabed of the Sanctuary;

d. Taking, removing, moving,

catching, collecting, harvesting, feeding,

injuring, destroying or causing the loss

of, or attempting to take, remove, move,

catch, collect, harvest, feed, injure,

destroy or cause the loss of a marine

mammal, marine reptile, seabird,

historical resource or other Sanctuary

resource;

e. Touching with any part of the body,

climbing on, taking, removing, moving,

catching, collecting, harvesting,

injuring, destroying or causing the loss

of, or attempting to take, remove, move,

catch, collect, harvest, feed, injure,

destroy or cause the loss of living or

dead coral;

f. Possessing within the Sanctuary a

Sanctuary resource or any other

resource, regardless of where taken,

removed, moved, caught, collected or

harvested, that, if it had been found

within the Sanctuary, would be a

Sanctuary resource;

g. Operation of a vessel (i.e.,

watercraft of any description), including

but not limited to anchoring or

otherwise mooring a vessel; and all

activities necessary for vessel operation

or maintenance, such as pump-out of

sanitary wastes and refueling, in the

Sanctuary or any part thereof or in

marinas or at docks within or adjacent

to the Sanctuary;

h. Removal of vessels grounded,

lodged, stuck or otherwise perched on

coral reefs or other Sanctuary resources;

and removal from any location within

the Sanctuary and disposal of derelict or

abandoned vessels or other vessels for

which ownership cannot be determined

or for which owner takes no action for

removal or disposal; and salvaging and

towing of abandoned or disabled vessels

or of vessels otherwise needing

salvaging and towing;

i. Possessing or using within the

Sanctuary or any part thereof, any

fishing gear, trap, device, equipment or

means, whether regulated based on

method or based on quantity of fish

present or quantity of fish caught in

identified fisheries; and providing

information to Federal, State, and local

officials within the Sanctuary and

adjacent to the Sanctuary about the

quantity and type of fish and other

living Sanctuary resources caught

during any vessel travel;

j. Possessing or using explosives or air

guns or releasing electrical charges or

substances poisonous or toxic to fish

and other living resources within the

Sanctuary boundary or adjacent to the

Sanctuary boundary;

k. Stocking or release of native or

exotic species;

l. Harvesting or otherwise taking

sponges;

m. Removal and disposal of lost or

out-of-season gear discovered within the

Sanctuary boundary;

n. Development or conduct in the

Sanctuary of mariculture activities;

o. Flying a motorized aircraft above

the Sanctuary;

p. Construction, alteration, repair or

other work on docks and marinas;

q. Activities or situations on land that

may result in water quality degradation,

including but not limited to:

1. Dredging and filling, particularly of

wetlands;

2. Construction activities;

3. Use and management of hazardous

chemicals, including, but not limited to,

pesticides, fertilizers, and motor oil;

4. Waste disposal and discharge on

land; and

5. Water quality in basins and canals;

and

r. Interfering with, obstructing,

delaying or preventing an investigation,

search, seizure or disposition of seized

property in connection with

enforcement of the Act or any regulation

or permit issued under the Act.

Section 2. Emergencies

Where necessary to prevent or

minimize the destruction of, loss of, or
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16403

injury to a Sanctuary resource or

quality; or minimize the imminent risk

of such destruction, loss or injury, any

activity, including any not listed in

section 1 of this article, is subject to

immediate temporary regulation,

including prohibition.

Article V. Effect on Leases, Permits,

Licenses, and Rights

If any valid law or regulation issued

by any Federal, State or local authority

of competent jurisdiction, regardless of

when issued, conflicts with a Sanctuary

regulation, the regulation deemed by the

Director, Office of Ocean and Coastal

Resource Management, National

Oceanic and Atmospheric

Administration, or his or her designee to

be more protective of Sanctuary

resources and qualities shall govern.

Pursuant to section 304(c)(1) of the

Act, 16 U.S.C. 1434(c)(1), no valid lease,

permit, license, approval or other

authorization issued by any Federal,

State, or local authority of competent

jurisdiction, or any right of subsistence

use or access, may be terminated by the

Secretary of Commerce, or his or her

designee, as a result of this designation,

or as a result of any Sanctuary

regulation, if such authorization or right

was in existence on the effective date of

Sanctuary designation (November 16,

1990). However, the Secretary of

Commerce or designee may regulate the

exercise (including, but not limited to,

the imposition of terms and conditions)

of such authorization or right consistent

with the purposes for which the

Sanctuary is designated.

In no event may the Secretary or

designee issue a permit authorizing, or

otherwise approving: (1) The

exploration for, leasing of, development

of, or production of minerals or

hydrocarbons within the Sanctuary; or

(2) the disposal of dredged material

within the Sanctuary, or the discharge

of untreated or primary treated sewage

(except by a certification, pursuant to

Section 940.10, of valid authorizations

in existence on the effective date of

Sanctuary designation). Any purported

authorizations issued by other

authorities after the effective date of

Sanctuary designation for any of these

activities within the Sanctuary shall be

invalid.

Article VI. Alteration of this Designation

The terms of designation, as defined

under Section 304(a) of the MPRSA,

may be modified only by the procedures

outlined in such section, including

public hearings, consultation with

interested Federal, State, and local

agencies, review by the appropriate

Congressional committees, and the

Governor of the State of Florida, and

approval by the Secretary of Commerce

or designee.

Florida Keys National Marine Sanctuary

Boundary Coordinates (based on North

American datum of 1983.)

The boundary of the Florida Keys

National Marine Sanctuary—

(a) Begins at the northeasternmost

point of Biscayne National Park located

at approximately 25 degrees 39 minutes

north latitude, 80 degrees 5 minutes

west longitude, then runs eastward to

the 300-foot isobath located at

approximately 25 degrees 39 minutes

north latitude, 80 degrees 4 minutes

west longitude;

(b) Then runs southward and

connects in succession the points at the

following coordinates:

(i) 25 degrees 34 minutes north

latitude, 80 degrees 4 minutes west

longitude,

(ii) 25 degrees 28 minutes north

latitude, 80 degrees 5 minutes west

longitude, and

(iii) 25 degrees 21 minutes north

latitude, 80 degrees 7 minutes west

longitude;

(iv) 25 degrees 16 minutes north

latitude, 80 degrees 8 minutes west

longitude;

(c) Then runs southwesterly

approximating the 300-foot isobath and

connects in succession the points at the

following coordinates:

(i) 25 degrees 7 minutes north

latitude, 80 degrees 13 minutes west

longitude,

(ii) 24 degrees 57 minutes north

latitude, 80 degrees 21 minutes west

longitude,

(iii) 24 degrees 39 minutes north

latitude, 80 degrees 52 minutes west

longitude,

(iv) 24 degrees 30 minutes north

latitude, 81 degrees 23 minutes west

longitude,

(v) 24 degrees 25 minutes north

latitude, 81 degrees 50 minutes west

longitude,

(vi) 24 degrees 22 minutes north

latitude, 82 degrees 48 minutes west

longitude,

(vii) 24 degrees 37 minutes north

latitude, 83 degrees 6 minutes west

longitude,

(viii) 24 degrees 40 minutes north

latitude, 83 degrees 6 minutes west

longitude,

(ix) 24 degrees 46 minutes north

latitude, 82 degrees 54 minutes west

longitude,

(x) 24 degrees 44 minutes north

latitude, 81 degrees 55 minutes west

longitude,

(xi) 24 degrees 51 minutes north

latitude, 81 degrees 26 minutes west

longitude, and

(xii) 24 degrees 55 minutes north

latitude, 80 degrees 56 minutes west

longitude;

(d) Then follows the boundary of

Everglades National Park in a southerly

then northeasterly direction through

Florida Bay, Buttonwood Sound,

Tarpon Basin, and Blackwater Sound;

(e) After Division Point, then departs

from the boundary of Everglades

National Park and follows the western

shoreline of Manatee Bay, Barnes

Sound, and Card Sound;

(f) Then follows the southern

boundary of Biscayne National Park to

the southeasternmost point of Biscayne

National Park; and

(g) Then follows the eastern boundary

of Biscayne National Park to the

beginning point specified in paragraph

(a).

IV. Summary of Proposed Regulations

Two sets of existing regulations will

be eliminated and replaced by the

proposed rule. Specifically, parts 929

and 937 to title 15, Code of Federal

Regulations, implementing the Key

Largo and Looe Key sanctuaries,

respectively, will be removed and

replaced by the proposed revision to

part 929. Pursuant to section 5 of the

Florida Keys National Marine Sanctuary

and Protection Act, the existing Key

Largo and Looe Key National Marine

Sanctuaries will be incorporated into

the Florida Keys National Marine

Sanctuary.

The proposed regulations set forth the

boundary of the Sanctuary; prohibit a

range of activities generally and within

specific Sanctuary zones; establish

procedures for applying for National

Marine Sanctuary permits to conduct

otherwise prohibited activities, establish

procedures for applying for Special Use

permits; establish certification

procedures for existing leases, licenses,

permits, approvals, other authorizations,

or rights authorizing the conduct of a

prohibited activity; establish

notification procedures for applications

for leases, licenses, permits, approvals,

or other authorizations to conduct a

prohibited activity; set forth the

maximum per-day penalties for

violating Sanctuary regulations; and

establish procedures for administrative

appeals.

Section 929.1 sets forth as the purpose

of the regulations to implement the

designation and comprehensive

management plan for the Florida Keys

National Marine Sanctuary by regulating

activities affecting the Sanctuary in

order to protect, preserve and manage

the conservation, ecological,

recreational, research, educational,
16404 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

historical and aesthetic resources and

qualities of the area.

Section 929.2 and appendix I

following § 929.16 describe the

boundary of the Sanctuary as

established by Section 5 of the Florida

Keys National Marine Sanctuary and

Protection Act.

Section 929.3 defines various terms

used in the regulations. Other terms

appearing in the regulations are defined

at 15 CFR 922.2 and/or in the NMSA.

Section 929.4 allows all activities

except those prohibited by § 929.5 or by

§ 929.6 to be conducted subject to all

applicable access and use restrictions

imposed within Sanctuary zones

pursuant to § 929.6, subject to all

prohibitions, restrictions and conditions

validly imposed by any other Federal,

State, or local authority of competent

jurisdiction, subject to any emergency

regulations promulgated pursuant to

§ 929.7, and subject to the liability

established by Section 312 of the

NMSA. This section is intended to

assure that activities other than those

prohibited or otherwise restricted or

conditioned pursuant to this part, or

pursuant to any other Federal, State, or

local authority of competent

jurisdiction, are allowed within the

Sanctuary. Accordingly, such provision

for allowed activities is not intended to

preempt other, more protective,

regulatory provisions imposed by any

other Federal, State or local authority of

competent jurisdiction.

Section 929.5 prohibits a variety of

activities and thus makes it unlawful for

any person to conduct them or cause

them to be conducted. However, any of

the prohibited activities except for: (1)

The exploration for, leasing,

development or production of minerals

or hydrocarbons within the Sanctuary,

or (2) the disposal of dredged material

or primary (or untreated) sewage within

the Sanctuary (except by a certification,

pursuant to § 929.14, of valid

authorizations in existence on the

effective date of Sanctuary designation)

could be conducted lawfully if one of

the following three (3) situations

applies:

(1) The activity is necessary to

respond to an emergency threatening

life or the environment.

(2) The activity is specifically

authorized by, and conducted in

accordance with the scope, purpose,

terms and conditions of: a National

Marine Sanctuary permit issued under

§ 929.10; or a National Marine

Sanctuary Historical Resources permit

issued under § 929.11.

(3) The activity is specifically

authorized by a valid lease, permit,

license, approval or other authorization

issued by any Federal, State or local

authority of competent jurisdiction in

existence on (or conducted pursuant to

any valid right of subsistent use or

access in existence on) the effective date

of the Sanctuary designation, provided

that the Director of the Office of Ocean

and Coastal Resource Management

(hereinafter the Director) was notified of

the existence of such authorization or

right and the holder requests

certification by the Director or designee

pursuant to § 929.14, the holder

complies with the requirements of

§ 929.14, and the holder complies with

any terms and conditions on the

exercise of such authorization the

Director or designee imposes as a

condition of certification to achieve the

purposes for which the Sanctuary was

designated.

(4) The activity is specifically

authorized by a valid lease, permit,

license or approval or other

authorization issued after the effective

date of the Sanctuary designation by any

Federal, State or local authority of

competent jurisdiction, provided that

the Director or designee was notified of

the application in accordance with the

requirements of § 929.15, the applicant

complies with the requirements of

§ 919.15, the Director or designee

notifies the applicant or authorizing

agency that he or she does not object to

issuance of the authorization, and the

applicant complies with any terms and

conditions the Director or designee

deems reasonably necessary to protect

Sanctuary resources and qualities.

The first activity prohibited is

exploring for, developing, or producing

minerals or hydrocarbons within the

Sanctuary. This prohibition is based on

best available scientific information

which establishes that the Sanctuary’s

significant natural resources and

qualities are especially sensitive to

potential impacts from outer continental

shelf minerals or hydrocarbon activities

and should be protected. Specifically,

the corals, seagrasses, and mangroves of

the Florida Keys and the Sanctuary’s

high water quality are especially

vulnerable to oil and gas activities in the

area. A prohibition on oil and gas

activities within the Sanctuary

boundary would help protect the

Sanctuary’s resources and qualities. A

prohibition on mineral activities within

the Sanctuary is necessary to protect

Sanctuary resources and qualities,

consistent with the prohibition on

drilling into, dredging or otherwise

altering the seabed discussed below.

The second activity prohibited is the

removal of, injury to, or possession of

coral or live rock. The intent of this

prohibition is to conserve the coral

reefs, to protect the biodiversity of the

Sanctuary, to protect the habitats of

commercially and ecologically

important species, and to preserve the

natural functional aspects of the

ecosystem.

The third activity prohibited is the

alteration of, or construction on the

seabed. This prohibition includes the

use of propeller wash deflectors. The

intent of this prohibition is to protect

the resources of the Sanctuary, such as

seagrasses, from the harmful effects of

activities such as, but not limited to,

treasure hunting, drilling into the

seabed, mining, ocean mineral

extraction, and dumping of dredge

spoils.

The fourth activity prohibited is the

discharging or depositing of materials or

other matter. The intent of this

prohibition is to protect the Sanctuary

resources and qualities against the

harmful effects of land based and vessel

source pollution, to reduce and prevent

contamination by marine debris and

related impacts associated with

pollution of the marine environment of

the Sanctuary.

The fifth activity prohibited is the

operation of: (1) A tank vessel or a

vessel greater than 50 meters in

registered length in an area to be

avoided (ATBA); or (2) any vessel in a

manner that is either dangerous to

people or harms Sanctuary resources.

The boundary coordinates for the

ATBAs are listed in Appendix VII to

part 929. The prohibition is designed to

prevent vessel groundings on the coral

reef, and thus to minimize the risk of

extensive physical damage, spills and

associated, possibly irreparable, injury

to Sanctuary resources likely to result

from a grounding of a large vessel and

tank vessel. This prohibition further is

intended to prevent injury to Sanctuary

resources, prevent injury to humans

(e.g., divers and swimmers), and to

reduce shoreline erosion.

The sixth activity prohibited is diving

without a red and white ‘‘divers down’’

flag or a blue and white ‘‘alpha’’ flag in

Federal waters. The intent of this

prohibition is to prevent injury to

humans and thereby facilitate safe,

multiple use of the Sanctuary.

The seventh activity prohibited is the

release of exotic species. Exotic species

can permanently alter an ecosystem by

out competing indigenous species,

preying on indigenous species, etc. The

intent of this prohibition is to prevent

injury to Sanctuary resources, to protect

the biodiversity of the Sanctuary, and to

preserve the natural functional aspects

of the ecosystem.

The eighth activity prohibited is the

tampering with official signs or markers
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or navigational aids. The intent of this

prohibition is to prevent injury to

Sanctuary resources, primarily corals

and seagrasses, and to prevent injury to

humans.

The ninth activity prohibited is the

removing or injuring Sanctuary

historical resources. Submerged

historical resources constitute

important, irreplaceable, public

resources of the Sanctuary because they

contain important information about

human history and culture. This

prohibition is designed to protect these

resources so that they may be

researched, and information about their

contents and type made available for the

benefit of the public. This prohibition

does not apply to accidental moving,

possession, or injury during normal

fishing operations.

The tenth activity prohibited is taking

or possessing protected wildlife. The

Sanctuary is an important staging area,

breeding area, and feeding area for a

variety of wildlife, including a number

of endangered and threatened species.

The intent of this prohibition is to

protect Sanctuary resources and

endangered and/or threatened species.

The eleventh activity prohibited is the

possession or use of explosives and

electrical discharges. The intent of this

prohibition is to prevent injury to

Sanctuary resources or to humans.

The twelfth activity prohibited is

interfering with law enforcement

officers. The intent of this prohibition is

to prevent the obstruction of justice.

Section 929.5(b) regulates the taking

or landing of marine life species, in

accordance with the Marine Life rule of

the Florida Administrative Code

reproduced in Appendix VIII to this

part. The intent of this regulation is to

protect Sanctuary resources and

biodiversity by adopting relevant

portions of the Florida Marine Life rule

as a uniform regulation to be applied

throughout the (federal and state) waters

of the Sanctuary.

Section 929.6 establishes five types of

water use zones within the Sanctuary,

the prohibitions applicable to uses

within such zones, and the regulations

governing access to, and use of, the

resources of such zones. The five zone

types are: Existing Management Areas;

Wildlife Management Areas; Sanctuary

Preservation Areas; Replenishment

Reserves and Special Use Areas. The

proposed location of these zones is

specified in Appendices II, III, IV, V and

VI to this part, respectively,

corresponding to the five zone types

stated above. The intent of the zoning

regulations is to protect Sanctuary

resources and biodiversity, and provide

for effective management and

facilitation of multiple, compatible uses,

consistent with the purposes of the

Sanctuary designation.

Section 929.6(a) provides that the

regulations applicable to the conduct of

activities within any of the five types of

Sanctuary zones are in addition to the

general prohibitions set forth in

paragraphs (a) and (b) of § 929.5.

Activities conducted in those areas of

the Sanctuary that are located in two or

more overlapping zones shall be

concurrently subject to the regulations

applicable to each such overlapping

zone.

Section 929.6 identifies certain

Existing Management Areas which are

listed in Appendix II to part 929.

Existing Management Areas are existing

Federal, State or local resource

management areas subject to the

continuing management and control of

another agency, notwithstanding the

exercise of concurrent authority by the

Assistant Administrator in accordance

with this part. To the extent possible,

consistent with the purposes for which

the Sanctuary was designated, the

regulations applicable to Existing

Management Areas shall be applied in

a manner that is compatible with such

existing management authorities.

Identification of the Key Largo and Looe

Key Existing Management Areas

constitutes recognition of these areas as

pre-existing National Marine

Sanctuaries that were subject to the

management and control of the

Assistant Administrator prior to

Sanctuary designation, and for which

continuing regulation as Existing

Management Areas will serve to

maintain, to the extent possible, a level

of management and control of uses in

such areas that is at least as protective

of Sanctuary resources and qualities as

that provided by their former status as

discrete National Marine Sanctuaries.

Section 929.6(b)(2) further prohibits

the operation of personal watercraft,

airboats or water skiing within the Great

White Heron or Key West National

Wildlife Existing Management Areas.

The intent of this prohibition is to

protect Sanctuary resources and

qualities through coordination with the

U.S. Fish and Wildlife Service in a

manner that recognizes and

complements the existing management

of these areas as components of the

National Wildlife Refuge System.

Section 929.6(c) sets forth the rules

governing access to, and use of, the

Wildlife Management Areas described

in Appendix III to part 929. Specifically,

access and use restrictions may include

the designation of any such zones as an

‘‘idle/no-wake speed’’, a ‘‘no motor’’ or

a ‘‘no access buffer’’ areas. The Director

or designee, in cooperation with other

Federal, State, or local resource

management authorities, as appropriate,

shall effect such designation by posting

official signs conspicuously, using

mounting posts, buoys, or other means

according to location and purpose, at

appropriate intervals and locations. The

intent of these rules is to protect

Sanctuary wildlife resources from injury

or harmful disturbance within sensitive

areas and habitats of the Sanctuary.

Section 929.6(d) sets forth

prohibitions applicable to activities

conducted within Sanctuary

Preservation Areas and Replenishment

Reserves. Specific prohibitions include

possessing, harvesting or otherwise

injuring any coral, marine invertebrate,

fish, bottom formation, algae, seagrass or

other living or dead organism in such

areas; fishing by any means; touching

living or dead coral, including but not

limited to standing on a living or dead

coral formation; placing anchors so as to

touch living or dead coral or any sessile

organism. Vessels shall use mooring

buoys or anchoring areas when such

facilities or areas have been designated

and are available.

Section 929.6(d) further provides that

the Director or designee may impose a

limited access designation, or temporary

area closure, within any Sanctuary

Preservation Area if the Director

determines that such action is

reasonably necessary to allow for

recovery of the living resources of such

area from the adverse, cumulative

effects of concentrated use.

The intent of the establishment of,

and regulation of uses within, the

Sanctuary Preservation Areas is to avoid

concentrations of uses that could result

in significant declines in species

populations or habitat, to reduce

conflicts between uses, to protect areas

that are critical for sustaining important

marine species or habitats, or to provide

opportunities for scientific research.

The intent of the establishment of, and

iregulation of uses within, the

Replenishment Reserves is to minimize

human influences, to provide natural

spawning, nursery, and permanent

residence areas for the replenishment

and genetic protection of marine life,

and also to protect and preserve natural

assemblages of habitats and species

within areas representing a broad

diversity of resources and habitats

found within the Sanctuary.

Section 929.6(e) establishes

procedures and criteria pursuant to

which the Director or designee may set

aside discrete areas of the Sanctuary as

Special Use Areas, and designate such

areas as ‘‘recovery areas’’, ‘‘restoration

areas’’, ‘‘research only areas’’ or
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‘‘facilitated use areas’’, as appropriate,

to protect the Sanctuary resources and

qualities and allow for multiple,

compatible uses within the Sanctuary.

Section 929.6(e) further provides criteria

pursuant to which the Director or

designee may issue an emergency notice

modifying the number, location or

designation applicable to Special Use

Areas if the Director of designee

determines that such immediate action

is reasonably necessary to prevent

significant injury to Sanctuary resources

or to initiate restoration or research

activities where, due to emergency or

unforseen circumstances, delay would

impair the ability of such activities to

succeed.

Section 929.7 authorizes the

regulation, including prohibition, on an

immediate, temporary basis of any

activity where necessary to prevent or

minimize the destruction of, loss of, or

injury to a Sanctuary resource or

quality, or minimize the imminent risk

of such destruction, loss or injury.

Section 929.8 sets forth the maximum

statutory civil penalty for violating the

NMSA, the regulations or any permit

issued pursuant thereto—$100,000.

Each such violation shall be subject to

forfeiture of property or Sanctuary

resources seized in accordance with

section 307 of the NMSA. Each day of

a continuing violation constitutes a

separate violation.

Section 929.9 repeats the provision in

Section 312 of the NMSA that any

person who destroys, causes the loss of,

or injures any Sanctuary resource is

liable to the United States for response

costs, damages and interest resulting

from such destruction, loss or injury,

and any vessel used to destroy, cause

the loss of, or injure any Sanctuary

resource is liable in rem to the United

States for response costs, damages and

interest resulting from destruction, loss

or injury. The purpose of these sections

is to notify the public of the liability for

violating a Sanctuary regulation, a

permit issued pursuant thereto or the

NMSA.

Regulations setting forth the

procedures governing administrative

proceedings for assessment of civil

penalties, permit sanctions and denials

for enforcement reasons, issuance and

use of written warnings, and release or

forfeiture of seized property appear at

15 CFR part 904.

Section 929.10 sets forth the

procedures for applying for a National

Marine Sanctuary permit to conduct a

prohibited activity and the criteria

governing the issuance, denial,

amendment, suspension and revocation

of such permits. A permit may be issued

by the Director or designee if he or she

finds that the activity will have only

negligible short-term adverse effects on

Sanctuary resources and qualities and

will: further research or monitoring

related to Sanctuary resources and

qualities; further the educational,

natural or historical resource value of

the Sanctuary; further salvage or

recovery operations in or near the

Sanctuary in connection with a recent

air or marine casualty; or assist in

managing the Sanctuary. For activities

proposed to be conducted within

Replenisment Reserves or Sanctuary

Preservation Areas, the Director or

designee shall further find that such

activities will further and are consistent

with the purposes for which such zone

was established. In deciding whether to

issue a permit, the Director or designee

is required to consider such factors as

the professional qualifications and

financial ability of the applicant as

related to the proposed activity; the

duration of the activity and the duration

of its effects; the appropriateness of the

methods and procedures proposed by

the applicant for the conduct of the

activity; the extent to which the conduct

of the activity may diminish or enhance

Sanctuary resources and qualities; the

indirect, secondary or cumulative

effects of the activity; and the end value

of the activity. In addition, the Director

or designee is authorized to consider

any other factors she or he deems

appropriate.

Section 929.11 sets forth the

application procedures and issuance

criteria for National Marine Sanctuary

Historical Resources permits to conduct

specific research activities involving the

exploration for, recovery of, or transfer

of historical Sanctuary resources

specified under § 929.11 and otherwise

prohibited by the regulations. A permit

may be issued by the Director or

designee at his or her discretion in

accordance with the requirements of

§ 929.11 and consistent with the

Programmatic Agreement Among

NOAA, the Advisory Council on

Historic Preservation, and the State of

Florida on Submerged Cultural

Resources (hereinafter SCR Agreement).

Recovery of historical resources will

only be permitted when developed in

conjunction with research to preserve

the historic information for public use.

Intrusive research and/or recovery will

be based upon a balancing of factors and

criteria to determine whether the goals

of preservation, research, education, and

public access are better served by

permitting this type of activity as

opposed to leaving the historic

resources in place.

Section 929.12 sets forth criteria

governing the issuance of Special Use

permits to conduct concession-type,

commercial activities within the

Sanctuary. In accordance with the

provisions of Section 310 of the NMSA,

the Director or designee may require a

Special Use permit for any such activity

if he or she determines such

authorization is necessary to establish

conditions of access to and use of any

Sanctuary resource, or to promote

public use and understanding of any

Sanctuary resource. No special use

permit may be issued unless the activity

is compatible with the purposes for

which the Sanctuary was designated

and can be conducted in a manner that

does not destroy, cause the loss of, or

injure any Sanctuary resource.

Applicants for Special Use permits

are required to follow the same

procedures specified for National

Marine Sanctuary permits in § 929.10

(d) through (g).

All National Marine Sanctuary,

National Marine Sanctuary Historical

Resources, or Special Use permits are

subject to the general permit conditions

specified in § 929.10(h). With respect to

any such permit, the Director or

designee, at his or her discretion, also

may impose special permit conditions

in accordance with § 929.10(i).

Section 929.13 provides that any

person conducting research in the

Sanctuary, including such research not

involving prohibited activities, may

voluntarily register with the appropriate

Sanctuary field office. Upon

registration, the Sanctuary office will

issue a research flag to be used while

conducting research within the

Sanctuary. Copies of research results,

abstracts, and reports may be submitted

to the Sanctuary field office to be

retained for Sanctuary management

purposes, public observation, and peer

review.

Section 929.14 sets forth procedures

for requesting certification of leases,

permits, licenses, approvals, other

authorizations or rights in existence on

the date of Sanctuary designation

authorizing the conduct of an otherwise

prohibited activity. Notwithstanding the

prohibitions under paragraph (a) of

§ 929.5 or § 929.6, a person may conduct

any activity specifically authorized by a

valid lease, permit, license, approval or

other authorization in existence on the

effective date of Sanctuary designation

and issued by any Federal, State, or

local authority of competent

jurisdiction, or by any valid right of

subsistence use or access in existence

on the effective date of Sanctuary

designation, provided that the holder of

such authorization or right complies

with the requirements of § 929.14 (e.g.,

notifies the Director or designee of the
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existence of, requests certification of,

and provides requested information

regarding such authorization or right)

and complies with any terms and

conditions on the exercise of such

authorization or right imposed by the

Director or designee as she or he deems

reasonably necessary to achieve the

purposes for which the Sanctuary was

designated.

Section 929.14 allows the holder 90

days from the effective date of the

proposed Sanctuary regulations in part

929 to request certification. The holder

is allowed to conduct the activity

without being in violation of paragraph

(a) of § 929.5 or 929.6 pending final

agency action on his or her certification

request, provided the holder has

complied with all requirements of

§ 929.14.

Section 929.14 also allows the

Director or designee to request

additional information from the holder

and to seek the views of other persons.

As a condition of certification, the

Director or designee will impose such

terms and conditions on the exercise of

such lease, permit, license, approval or

other authorization or right as she or he

deems reasonably necessary to achieve

the purposes for which the Sanctuary

was designated. This is consistent with

the Secretary’s authority under Section

304(c)(2) of the NMSA. (Section 929.14

has no application to mineral or

hydrocarbon activities as there is no

existing lease, permit, license, approval,

other authorization or right for any of

these activities within the Sanctuary).

The holder may appeal any action

conditioning, amending, suspending or

revoking any certification in accordance

with the procedures set forth in

§ 929.16.

Any amendment, renewal or

extension not in existence as of the date

of Sanctuary designation of a lease,

permit, license, approval, other

authorization or right is subject to the

provisions of § 929.15.

Section 929.15 provides, consistent

with paragraph (f) of § 929.5, that

notwithstanding the prohibitions under

paragraph (a) of § 929.5 or § 929.6, a

person may conduct any activity

specifically authorized by any valid

lease, permit, license, approval, or other

authorization issued after the effective

date of Sanctuary designation by any

Federal, State, or local authority of

competent jurisdiction, provided that

the applicant notifies the Director or

designee of the application for such

authorization within 15 days of the date

of filing of the application or of the

efffective date of the proposed

Sanctuary regulations, whichever is

later, that the applicant is in compliance

with the other provisions in § 929.15,

that the Director or designee notifies the

applicant and authorizing agency that

he or she does not object to issuance of

the authorization, and that the applicant

complies with any terms and conditions

the Director or designee deems

reasonably necessary to protect

Sanctuary resources and qualities.

Section 929.15 allows the Director or

designee to request additional

information from the applicant and to

seek the views of other persons.

An application or an amendment to,

an extension of, or a renewal of an

authorization is also subject to the

provisions of § 929.15.

The applicant may appeal any

objection by, or terms or conditions

imposed by, the Director or designee to

the Assistant Administrator or designee

in accordance with the procedures set

forth in § 929.16.

Section 929.16 sets forth the

procedures for appealing to the

Assistant Administrator or designee

actions of the Director or designee with

respect to: (1) the granting, denial,

conditioning, amendment, suspension

or revocation of a National Marine

Sanctuary permit under § 929.10, a

National Marine Sanctuary Historical

Resources permit under § 929.11, or a

Special Use permit under § 929.12 or

Section 310 of the NMSA; (2) the

conditioning, amendment, suspension,

or revocation of a certification under

§ 929.14; or (3) the objection to issuance

or the imposition of terms and

conditions under § 929.15.

Prior to conditioning the exercise of

existing leases, permits, licenses,

approvals, other authorizations or rights

or conditioning or objecting to proposed

authorizations NOAA intends to consult

with relevant issuing agencies as well as

owners, holders or applicants.

V. Miscellaneous Rulemaking

Requirements

Marine Protection, Research, and

Sanctuaries Act

Section 304 of the MPRSA requires

the Secretary to submit to the

Committee on Merchant Marine and

Fisheries of the House of

Representatives and the Committee on

Commerce, Science, and Transportation

of the Senate, on the same day as this

notice is published, the proposed terms

of the designation, the proposed

regulations, a draft environmental

impact statement, and a draft

management plan detailing the

proposed goals and objectives,

management responsibilities, research

activities, interpretive and educational

programs, and enforcement and

surveillance activities, for the area. In

accordance with Section 304, the

required documents are being submitted

to the specified Congressional

Committees.

Executive Order 12866

Under Executive Order 12866, if the

proposed regulations are ‘‘significant’’

as defined in section 3(f) (1), (2), (3) or

(4) of the Order, an assessment of the

potential costs and benefits of the

regulatory action must be prepared and

submitted to the Office of Information

and Regulatory Affairs (OIRA) of OMB.

The Administration of NOAA has

determined that the proposed

regulations are significant. The required

assessment has been prepared and

submitted to OIRA.

Regulatory Flexibility Act

The regulations proposed in this

notice would allow all activities to be

conducted in the Sanctuary other than

those activities that are specifically

prohibited. The procedures proposed in

these regulations for applying for

National Marine Sanctuary permits to

conduct otherwise prohibited activities,

for requesting certifications for preexisting leases, licenses, permits,

approvals, other authorizations or rights

authorizing the conduct of a prohibited

activity, and for notifying NOAA of

applications for leases, licenses,

permits, approvals, or other

authorizations to conduct a prohibited

activity would all act to lessen any

adverse economic effect on small

entities. The proposed regulations, in

total, if adopted in final form as

proposed, are not expected to have a

significant economic impact on a

substantial number of small entities,

and the General Counsel of the

Department of Commerce has so

certified to the Chief Counsel for

Advocacy of the Small Business

Administration. As a result, an initial

Regulatory Flexibility Analysis was not

prepared.

Paperwork Reduction Act

This proposed rule contains a

collection of information requirement

subject to the requirements of the

Paperwork Reduction Act (Pub. L. 96–

511). The collection of information

requirement applies to persons seeking

permits to conduct otherwise prohibited

activities and is necessary to determine

whether the proposed activities are

consistent with the management goals

for the Sanctuary. The collection of

information requirement contained in

the proposed rule has been submitted to

the Office of Management and Budget

for review under section 3504(h) of the
16408 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

Paperwork Reduction Act. The public

reporting burden per respondent for the

collection of information contained in

this rule is estimated to average 1.65

hours annually. This estimate includes

the time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Comments

from the public on the collection of

information requirement are specifically

invited and should be addressed to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, Washington, DC 20503 (Attn:

Desk Officer for NOAA); and to Richard

Roberts, Room 724, 6010 Executive

Boulevard, Rockville, MD 20852.

Executive Order 12612

A Federalism Assessment (FA) was

prepared for the proposed designation

document, draft management plan, and

proposed implementing regulations.

The FA concluded that all would be

fully consistent with the principles,

criteria, and requirements set forth in

sections 2 through 5 of Executive Order

12612, Federalism Considerations in

Policy Formulation and Implementation

(52 FR 41685). Copies of the FA are

available upon request to the Office of

Ocean and Coastal Resource

Management at the address listed in the

address section above.

National Environmental Policy Act

In accordance with Section 304(a)(2)

of the Act (16 U.S.C. 1434(a)(2)), and the

provisions of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321–4370(a)), a Draft

Environmental Impact Statement (DEIS)

has been prepared for the designation

and the proposed regulations. As

required by Section 304(a)(2), the DEIS

includes the resource assessment report

required by section 303(b)(3) of the Act

(16 U.S.C. 1433(b)(3)), maps depicting

the boundaries of the designated area,

and the existing and potential uses and

resources of the area. Copies of the DEIS

are available upon request to the Office

of Ocean and Coastal Resource

Management at the address listed in the

address section above.

Executive Order 12630

This proposed rule, if issued in final

form as proposed, would not have

takings implications within the meaning

of Executive Order 12630 because it

would not appear to have an effect on

private property sufficiently severe as

effectively to deny economically viable

use of any distinct legally potential

property interest to its owner or to have

the effect of, or result in, a permanent

or temporary physical occupation,

invasion, or deprivation. While the

prohibition on the exploration for,

development, production of minerals

and hydrocarbons from the Sanctuary

might have a takings implication if it

abrogated an existing lease for Outer

Continental Shelf (OCS) tracts within

the Sanctuary or an approval of an

exploration or development and

production plan, no OCS leases have

been sold for tracts within the Sanctuary

and no exploration or production and

development plans have been filed or

approved.

List of Subjects in 15 CFR Parts 929 and

937

Administrative practice and

procedure, Coastal zone, Marine

resources, Penalties, Recreation and

recreation areas, Reporting and

recordkeeping requirements, Research.

(Federal Domestic Assistance Catalog

Number 11.429 Marine Sanctuary Program)

Dated: March 13, 1995.

Frank W. Maloney,

Deputy Assistant Administrator for Ocean

Services and Coastal Zone Management.

Accordingly, for the reasons set forth

above, 15 CFR Chapter IX is proposed

to be amended as follows:

SUBCHAPTER B—OCEAN AND COASTAL

RESOURCE MANAGEMENT

1. Part 929 is revised to read as

follows:

PART 929—-FLORIDA KEYS

NATIONAL MARINE SANCTUARY

Sec.

929.1 Purpose.

929.2 Boundary.

929.3 Definitions.

929.4 Allowed activities.

929.5 Prohibited activities; Sanctuary wide.

929.6 Additional activity regulations by

Sanctuary zone.

929.7 Emergency regulations.

929.8 Penalties.

929.9 Response costs and damages.

929.10 National Marine Sanctuary Permits;

application procedures and issuance

criteria.

929.11 National Marine Sanctuary

Historical Resources Permits;

exploration, research/recovery, research/

recovery/transfer; application procedures

and issuance criteria.

929.12 Special Use Permits.

929.13 Sanctuary registry; research notice.

929.14 Certification of pre-existing leases,

licenses, permits, approvals, other

authorizations, or rights to conduct a

prohibited activity.

929.15 Notification and review of

applications for leases, licenses, permits,

approvals, or other authorizations to

conduct a prohibited activity.

929.16 Appeals of administrative action.

Appendix I to Part 929—Florida Keys

National Marine Sanctuary boundary

coordinates

Appendix II to Part 929—Existing

Management Areas

Appendix III to Part 929—Wildlife

Management Areas

Appendix IV to Part 929—Replenishment

Reserves

Appendix V to Part 929—Sanctuary

Preservation Areas

Appendix VI to Part 929—Special Use Areas

Appendix VII to Part 929—Coordinates for

the Area to be Avoided

Appendix VIII to Part 929—Marine Life Rule

Authority: 16 U.S.C. 1431 et seq.; Pub. L.

101–605, 104 Stat. 3090–3093.

§ 929.1 Purpose.

The purpose of the regulations in this

part is to implement the comprehensive

management plan for the Florida Keys

National Marine Sanctuary by regulating

activities affecting the resources of the

Sanctuary or any of the qualities, values,

or purposes for which the Sanctuary is

designated, in order to protect, preserve

and manage the conservation,

ecological, recreational, research,

educational, historical, and aesthetic

resources and qualities of the area. In

particular, the regulations in this part

are intended to protect, restore, and

enhance the living resources of the

Sanctuary, to contribute to the

maintenance of natural assemblages of

living resources for future generations,

to provide places for species dependent

on such living resources to survive and

propagate, to facilitate to the extent

compatible with the primary objective

of resource protection all public and

private uses of the resources of the

Sanctuary not prohibited pursuant to

other authorities, to reduce conflicts

between such compatible uses, and to

achieve the other policies and purposes

of the Florida Keys National Marine

Sanctuary and Protection Act and the

National Marine Sanctuaries Act.

§ 929.2 Boundary.

The Sanctuary consists of all

submerged lands and waters from the

mean high water mark to the boundary

described in Appendix I to this part,

with the exception of areas within the

Dry Tortugas National Park. Appendix I

to this part sets forth the precise

Sanctuary boundary established by the

Florida Keys National Marine Sanctuary

and Protection Act. (See FKNMSPA

section 5 (b)(2)).

§ 929.3 Definitions.

(a) The following definitions apply to

this part:

Acts means the Florida Keys National

Marine Sanctuary and Protection Act, as

amended, (FKNMSPA) (Pub. L. 101–

605, 104 Stat. 3090–3093), and the
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16409

National Marine Sanctuaries Act

(NMSA), also known as Title III of the

Marine Protection, Research, and

Sanctuaries Act, as amended, (MPRSA)

(16 U.S.C. 1431 et seq.).

Adverse effect means any factor, force,

or action that would independently or

cumulatively damage, diminish,

degrade, impair, destroy, or otherwise

harm any Sanctuary resource, as defined

in section 302(8) of the NMSA (16

U.S.C. 1432(8)) and in this § 929.3, or

any of the qualities, values, or purposes

for which the Sanctuary is designated.

Airboat means a vessel operated by

means of a motor driven propeller that

pushes air for momentum.

Area to be avoided means the area

decribed in which vessel operations are

prohibited pursuant to section 6(a)(1) of

the FKNMSPA (see § 929.5(a)(1)).

Appendix VII to this part sets forth the

geographic coordinates of the area to be

avoided, including any modifications

thereto made in accordance with section

6(a)(3) of the FKNMSPA.

Assistant Administrator means the

Assistant Administrator for Ocean

Services and Coastal Zone Management,

National Ocean Service.

Director means the Director of the

Office of Ocean and Coastal Resource

Management, National Ocean Service.

Existing Management Area means a

portion of the Sanctuary that is within

an existing resource management area

established by NOAA or by another

Federal, State, or local authority of

competent jurisdiction within the

Sanctuary and that is identified in

Appendix II to this Part.

Exotic species means a species of

plant, invertebrate, fish, amphibian,

reptile or mammal whose natural

zoogeographic range would not have

included the waters of the Atlantic

Ocean, Caribbean, or Gulf of Mexico

without passive or active introduction

to such area through anthropogenic

means.

Federal Project means any water

resources development project

conducted by the U.S. Army Corps of

Engineers or operating under a permit or

other authorization issued by the Corps

of Engineers and authorized by Federal

law.

Fish means finfish, mollusks,

crustaceans, and all other forms of

marine animal and plant life other than

marine mammals, and birds.

Fishing means:

(1)(i) The catching, taking, or

harvesting of fish;

(ii) The attempted catching, taking, or

harvesting of fish;

(iii) Any other activity which can

reasonably be expected to result in the

catching, taking, or harvesting of fish; or

(iv) Any operations at sea in support

of, or in preparation for, any activity

described in paragraphs (1)(i) through

(iii) of this definition.

(2) Such term does not include any

scientific research activity which is

conducted by a scientific research

vessel.

Historical resource means any

resource possessing historical, cultural,

archaeological or paleontological

significance, including sites, contextual

information, structures, districts, and

objects significantly associated with or

representative of earlier people,

cultures, and human activities and

events. Historical resources include

‘‘submerged cultural resources’’, and

also include ‘‘historical properties’’, as

defined in the National Historic

Preservation Act, as amended, and

implementing regulations, as amended.

Idle/no-wake speed means a speed at

which a boat is operated that is no

greater than 4 knots and does not

produce a wake.

Injure means to change adversely,

either in the long or short term, a

chemical, biological, or physical

attribute of, or the viability of. To

‘‘injure’’ therefore includes, but is not

limited to, to cause the loss of and to

destroy.

Live rock means any living marine

organism or an assemblage thereof

attached to a hard substrate (including

dead coral or rock). For example, such

living marine organisms associated with

hard bottoms, banks, reefs, and live rock

may include, but are not limited to: sea

anemones (Phylum CNIDARIA: Class

Anthozoa: Order Actinaria); sponges

(Phylum PORIFERA); tube worms

(Phylum ANNELIDA), including fan

worms, feather duster worms, and

christmas tree worms; bryozoans

(Phylum BRYOZOA); sea squirts

(Phylum CHORDATA); and marine

algae, including Mermaid’s fan and cups

(Udotea spp.), corraline algae, green

feather, green grape algae (Caulerpa

spp.) and watercress (Halimeda spp.).

Individual mollusk shells (scallops,

clams, oysters, etc.) are not intended to

be included in the definition as hard

substrate.

Marine Life Species means any

species of fish, invertebrate, or plant

included in sections (2), (3), or (4) of

Rule 46–42.001, Florida Administrative

Code, set forth in Appendix VIII to this

part.

Mineral means clay, stone, sand,

gravel, metalliferous ore,

nonmetalliferous ore, or any other nonliving solid material or other non-living

solid matter of commercial value.

Person means any private individual,

partnership, corporation, or other entity;

or any officer, employee, agent,

department, agency, or instrumentality

of the Federal Government or of any

State, regional, or local unit of

government, or of any foreign

government.

Personal watercraft means any jet and

air-powered watercraft operated by

standing, sitting, or kneeling on or

behind the vessel, in contrast to a

conventional boat, where the operator

stands or sits inside the vessel, and that

uses a two-cycle inboard engine to

power a water jet pump for propulsion,

instead of a propeller as in a

conventional boat.

Prop-dredging means the use of a

vessel’s propulsion wash to dredge or

otherwise alter the seabed of the

Sanctuary, excluding disturbance to

bottom sediments resulting from normal

vessel propulsion. Prop-dredging

includes, but is not limited to, the use

of propulsion wash deflectors or similar

means of dredging or otherwise altering

the seabed of the Sanctuary.

Prop-scarring means the injury to

seagrasses or other immobile organisms

attached to the seabed of the Sanctuary

caused by operation of a vessel in a

manner that allows its propeller or other

running gear, or any part thereof, to

cause such injury, excluding minor

disturbances to bottom sediments or

seagrass blades resulting from normal

vessel propulsion.

Replenishment Reserve means a

Sanctuary zone encompassing an area of

contiguous, diverse habitats, within

which uses are subject to conditions,

restrictions and prohibitions, including

public access restrictions, intended to

minimize human influences, to provide

natural spawning, nursery, and

permanent residence areas for the

replenishment and genetic protection of

marine life, and also to protect and

preserve natural assemblages of habitats

and species within areas representing a

broad diversity of resources and habitats

found within the Sanctuary.

Sanctuary means the Florida Keys

National Marine Sanctuary.

Sanctuary Preservation Area means a

Sanctuary zone encompassing a

discrete, biologically important area,

within which uses are subject to

conditions, restrictions and

prohibitions, including public access

restrictions, to avoid concentrations of

uses that could result in significant

declines in species populations or

habitat, to reduce conflicts between

uses, to protect areas that are critical for

sustaining important marine species or

habitats, or to provide opportunities for

scientific research.

Sanctuary quality means any of those

ambient conditions, physical-chemical
16410 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

characteristics and natural processes,

the maintenance of which is essential to

the ecological health of the Sanctuary,

including, but not limited to, water

quality, sediment quality and air

quality.

Sanctuary resource means any living

or non-living resource that contributes

to the conservation, recreational,

ecological, historical, research,

educational, or aesthetic value of the

Sanctuary, including, but not limited to,

the seabed and substratum, bottom

formations, hard and soft corals and

coralline structures, algae,

phytoplankton, seagrasses, mangroves

and other marine plants, zooplankton,

marine invertebrates, fish, marine

amphibians and reptiles, marine

mammals, sea birds, and other marine

wildlife and their habitats, and

historical resources.

Sanctuary wildlife means any species

of fauna, including avifauna, that

occupy or utilize the submerged

resources of the Sanctuary as nursery

areas, feeding grounds, nesting sites,

shelter, or other habitat during any

portion of their life cycles.

Seagrass means any species of marine

angiosperms (flowering plants) that

inhabit portions of the seabed in the

Sanctuary. Those species include, but

are not limited to: Thalassia testudinum

(turtle grass); Syringodium filiforme

(manatee grass); Halodule wrightii

(shoal grass); Halophila decipiens, H.

engelmannii, H. johnsonii; and Ruppia

maritima.

Taking means:

(1)(i) For any marine mammal, sea

turtle or seabird listed as either

endangered or threatened pursuant to

the Endangered Species Act, to harass,

harm, pursue, hunt, shoot, wound, kill,

trap, capture, collect or injure, or to

attempt to engage in any such conduct;

(ii) For any other marine mammal, sea

turtle or seabird, to harass, hunt,

capture, kill, collect or injure, or to

attempt to engage in any such conduct.

(2) For the purpose of both paragraphs

(1)(i) and (ii) of this definition, the term

includes, but is not limited to, collecting

any dead or injured marine mammal,

sea turtle or seabird, or any part thereof,

no matter how temporarily; tagging any

sea turtle, marine mammal or seabird;

operating a vessel or aircraft or doing

any other act that results in the

disturbing or molesting of any marine

mammal, sea turtle or seabird.

Tank vessel means any vessel that is

constructed or adapted to carry, or that

carries, oil or hazardous material in bulk

as cargo or cargo residue, and that—

(1) Is a United States flag vessel;

(2) Operates on the navigable waters

of the United States; or

(3) Transfers oil or hazardous material

in a port or place subject to the

jurisdiction of the United States (46

U.S.C. 2101).

Traditional fishing means those

commercial or recreational fishing

activities that were customarily

conducted within the Sanctuary prior to

its designation.

Tropical fish means any species, or

part thereof, included in section (2) of

Rule 46–42.001, Florida Administrative

Code, (as set forth in Appendix VIII to

this part).

Vessel means a watercraft of any

description, including, but not limited

to, motorized and non-motorized

watercraft, personal watercraft, airboats,

and float planes while manuevering on

the water, capable of being used as a

means of transportation in/on the waters

of the Sanctuary. For purposes of this

part, the terms ‘‘vessel,’’ ‘‘watercraft,’’

and ‘‘boat’’ are deemed to have the same

meaning.

Wildlife Management Area means a

Sanctuary zone established for the

management, protection, and

preservation of Sanctuary wildlife

resources, including such a zone

established for the protection and

preservation of endangered or

threatened species or their habitats,

within which access is restricted or

otherwise regulated to minimize

disturbances to Sanctuary wildlife; to

ensure protection and preservation

consistent with the Sanctuary

designation and other applicable law

governing the protection and

preservation of wildlife resources in the

Sanctuary.

(b) Other terms appearing in the

regulations in this part are defined at 15

CFR 922.2, and/or in the Marine

Protection, Research, and Sanctuaries

Act (MPRSA), as amended, 33 U.S.C.

1401 et seq. and 16 U.S.C. 1431 et seq.

§ 929.4 Allowed activities.

(a) All activities, except those

prohibited pursuant to § 929.5 or

§ 929.6, may be conducted subject to all

applicable access and use restrictions

imposed within sanctuary zones

pursuant to § 929.6, subject to the

provisions of § 929.12, subject to all

prohibitions, restrictions, and

conditions validly imposed by any other

Federal, State or local authority of

competent jurisdiction, subject to any

emergency regulations promulgated

pursuant to § 929.7, and subject to the

liability established by Section 312 of

the NMSA (see § 929.9).

(b) Fishing activities may be

conducted subject to all applicable

regulations imposed by Federal and

State fishery management authorities of

competent jurisdiction within the

Sanctuary, provided that the Assistant

Administrator may regulate fishing

activities within the Sanctuary,

pursuant to the procedure set forth in

Section 304(a)(5) of the NMSA, to the

extent such Sanctuary fishing

regulations are reasonably necessary to

fulfill the purposes and policies of the

NMSA and the goals and objectives of

the Sanctuary designation.

§ 929.5 Prohibited activities; Sanctuarywide.

(a) Except as specified in paragraph

(c) of this section, the following

activities are prohibited and thus are

unlawful for any person to conduct or

cause to be conducted:

(1) Mineral and hydrocarbon

exploration, development and

production. Exploring for, developing,

or producing minerals or hydrocarbons

within the Sanctuary.

(2) Removal of, injury to, or

possession of coral or live rock.

(i) Moving, removing, taking, harvesting,

damaging, disturbing, breaking, cutting,

or otherwise injuring, or possessing

(regardless of where taken from) any

living or dead coral, or coral formation,

or attempting any of these activities,

except as permitted under 50 CFR Part

638.

(ii) Harvesting, or attempting to

harvest, any live rock from the

Sanctuary, or possessing (regardless of

where taken from) any live rock within

the Sanctuary, except as authorized by

a permit for the possession or harvest

from aquaculture operations in the

Exclusive Economic Zone, issued by the

National Marine Fisheries Service

pursuant to applicable regulations

under the appropriate Fishery

Management Plan, or as authorized by

the applicable state authority of

competent jurisdiction within the

Sanctuary for live rock cultured on state

submerged lands leased from the State

of Florida, pursuant to applicable state

law. See section 370.027, Florida

Statutes and implementing regulations.

(3) Alteration of, or construction on,

the seabed. Drilling into, dredging, or

otherwise altering the seabed of the

Sanctuary, or engaging in propdredging; or constructing, placing or

abandoning any structure, material, or

other matter on the seabed of the

Sanctuary, except as an incidental result

of:

(i) Anchoring vessels in a manner not

otherwise prohibited by this part (see

paragraph (a)(3)(iii) of this section and

§ 929.6(d)(1)(iv));

(ii) Traditional fishing activities

outside Replenishment Reserves or

Sanctuary Preservation Areas;
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16411

(iii) Installation and maintenance of

navigational aids by, or pursuant to

valid authorization by, any Federal,

State, or local authority of competent

jurisdiction;

(iv) Harbor maintenance in areas

necessarily associated with Federal

Projects in existence on the effective

date of Sanctuary designation, including

maintenance dredging of entrance

channels and repair, replacement, or

rehabilitation of breakwaters or jetties;

(v) Construction, repair, replacement,

or rehabilitation of docks, seawalls,

breakwaters, or piers authorized by any

valid lease, permit, license, approval, or

other authorization issued by any

Federal, State, or local authority of

competent jurisdiction.

(4) Discharging or depositing

materials or other matter. (i)

Discharging or depositing, from within

the boundary of the Sanctuary, any

material or other matter, except:

(A) Fish, fish parts, fish chum or bait

that is produced, or used, and discarded

while conducting a traditional fishing

activity in the Sanctuary;

(B) Biodegradable effluent incidental

to vessel use and generated by a marine

sanitation device approved in

accordance with Section 312 of the

Federal Water Pollution Control Act, as

amended, (FWPCA), 33 U.S.C. 1322 et

seq.;

(C) Water generated by routine vessel

operations (e.g., deck wash down and

graywater as defined by section 312 of

the FWPCA), excluding oily wastes from

bilge pumping; or

(D) Cooling water from vessels or

engine exhaust.

(ii) Discharging or depositing, from

beyond the boundary of the Sanctuary,

any material or other matter that

subsequently enters the Sanctuary and

injures a Sanctuary resource or quality,

except those listed in paragraphs

(a)(4)(i)(A) through (D) of this section.

(iii) Notwithstanding the exceptions

contained in paragraphs (a)(4)(i)(A)

through (D) of this section, discharging

or depositing any material or other

matter, except cooling water or engine

exhaust into the waters of any Wildlife

Management Area, Replenishment

Reserve, Sanctuary Preservation Area, or

Special Use Area.

(5) Operation of vessels. (i) Operating

a tank vessel or a vessel greater than 50

meters in registered length in an area to

be avoided. The prohibition in this

subparagraph shall not apply to

necessary operations of public vessels,

defined as operations essential for

national defense, law enforcement, or

responses to emergencies that threaten

life, property, or the environment.

(ii) Operating a vessel in such a

manner as to strike or otherwise injure

coral, seagrass, or any other immobile

organism attached to the seabed,

including, but not limited to, operating

a vessel in such a manner as to cause

prop-scarring.

(iii) Anchoring a vessel on coral, in

depths less than 50 feet.

(iv) Operating a vessel at a speed

greater than idle/no-wake speed within

a residential canal, within 100 yards of

the red and white ‘‘divers down’’ flag

(or the blue and white ‘‘alpha’’ flag in

Federal waters), or within 200 yards of:

(A) Residential shorelines;

(B) Mangrove fringed islands;

(C) Stationary vessels; or

(D) Signs indicating emergent or

shallow reefs.

(v) Operating a vessel in such a

manner as to injure or cause disturbance

to wading or nesting birds or marine

mammals.

(vi) The prohibitions contained in this

paragraph shall not apply to law

enforcement officials while in the

performance of enforcement duties.

(6) Diving without flag. Diving or

snorkeling without flying in a

conspicious manner the red and white

‘‘divers down’’ flag (or the blue and

white ‘‘alpha’’ flag in Federal waters).

(7) Release of exotic species.

Introducing or releasing an exotic

species of plant, invertebrate, fish,

amphibian, or reptile into the

Sanctuary.

(8) Tampering with markers. Marking,

defacing, or damaging in any way or

displacing, removing, or tampering with

any signs, notices, or placards, whether

temporary or permanent, or with any

navigational aids, monuments, stakes,

posts, mooring buoys, boundary buoys,

trap buoys, or scientific equipment.

(9) Removing or injuring Sanctuary

historical resources. Moving, removing,

injuring, or possessing, or attempting to

move, remove, injure, or possess, a

Sanctuary historical resource.

(10) Taking or possessing protected

wildlife. Taking any marine mammal,

sea turtle, or seabird in or above the

Sanctuary, except as authorized by the

Marine Mammal Protection Act, as

amended, (MMPA), 16 U.S.C. 1361 et

seq., the Endangered Species Act, as

amended, (ESA), 16 U.S.C. 1531 et seq.,

and the Migratory Bird Treaty Act, as

amended, (MBTA), 16 U.S.C. 703 et seq.

(11) Possession or use of explosives or

electrical charges. Possessing, or using

explosives, except powerheads, or

releasing electrical charges within the

Sanctuary.

(12) Interfering with law enforcement.

Interfering with, obstructing, delaying or

preventing an investigation, search,

seizure or disposition of seized property

in connection with enforcement of the

Acts or any regulation or permit issued

under the Acts.

(b) Marine Life rule. No person shall

harvest, possess, or land any marine life

species, or part thereof, within the

Sanctuary, except in accordance with

rules 46–42.001 through 46–42.003, 46–

42.0035, and 46–42.005 through 46–

42.007 of the Florida Administrative

Code, (set forth in Appendix VIII to this

part), and such rules shall apply mutatis

mutandis (with necessary editorial

changes) to all federal and state waters

within the Sanctuary.

(c) Notwithstanding the prohibitions

in this § 929.5 and § 929.6, and any

access and use restrictions imposed

pursuant thereto, a person may conduct

an activity specifically authorized by,

and conducted in accordance with the

scope, purpose, terms, and conditions

of, a National Marine Sanctuary permit

issued pursuant to § 929.10, or a

National Marine Sanctuary Historical

Resources permit issued pursuant to

§ 929.11.

(d) Notwithstanding the prohibitions

in this § 929.5 and § 929.6, and any

access and use restrictions imposed

pursuant thereto, a person may conduct

an activity specifically authorized by a

valid lease, permit, license, approval, or

other authorization in existence on the

effective date of Sanctuary designation

and issued by any Federal, State, or

local authority of competent

jurisdiction, or by any valid right of

subsistence use or access in existence

on the effective date of Sanctuary

designation, provided that the holder of

such authorization or right complies

with § 929.14 and with any terms and

conditions on the exercise of such

authorization or right imposed by the

Director or designee as a condition of

certification as he or she deems

reasonably necessary to achieve the

purposes for which the Sanctuary was

designated.

(e) Notwithstanding the prohibitions

in this § 929.5 and § 929.6, and any

access and use restrictions imposed

pursuant thereto, a person may conduct

an activity specifically authorized by

any valid lease, permit, license,

approval, or other authorization issued

after the effective date of Sanctuary

designation and issued by any Federal,

State, or local authority of competent

jurisdiction, provided that the applicant

complies with § 929.15, the Director or

designee notifies the applicant and

authorizing agency that he or she does

not object to issuance of the

authorization, and the applicant

complies with any terms and conditions

the Director or designee deems
16412 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

reasonably necessary to protect

Sanctuary resources and qualities.

Amendments, renewals and extensions

of authorizations in existence on the

effective date of designation constitute

authorizations issued after the effective

date.

(f) Notwithstanding paragraph (c) of

this section and § 929.15(a), in no event

may the Director or designee issue a

permit under §§ 929.10, 929.11 or

929.12, or under Section 310 of the

NMSA, authorizing, or otherwise

approving, the exploration for, leasing,

development, or production of minerals

or hydrocarbons within the Sanctuary,

the disposal of dredged material within

the Sanctuary, or the discharge of

untreated or primary treated sewage

(except by a certification, pursuant to

§ 929.14, of a valid authorization in

existence on the effective date of

Sanctuary designation), and any

purported authorizations issued by

other authorities after the effective date

of Sanctuary designation for any of

these activities within the Sanctuary

shall be invalid.

(g)(1) All military activities shall be

carried out in a manner that avoids to

the maximum extent practical any

adverse impacts on Sanctuary resources

and qualities. Military activities are

activities conducted by the Department

of Defense with or without participation

by foreign forces. The prohibitions in

paragraphs (a) and (b) of this section

and § 929.6 do not apply to existing

classes of military activities, which were

conducted prior to the effective date of

the regulations in this part, as identified

in the Environmental Impact Statement

and Management Plan for the Florida

Keys National Marine Sanctuary. New

military activities in the Sanctuary are

allowed and may be exempted from the

prohibitions in paragraphs (a) and (b) of

this section and § 929.6 by the Director

or designee after consultation between

the Director or designee and the

Department of Defense pursuant to

section 304(d) of the NMSA. When a

military activity is modified such that it

is likely to destroy, cause the loss of, or

injure a Sanctuary resource in a manner

significantly greater than was

considered in a previous consultation

under section 304(d) of the NMSA, or

any Sanctuary resource or quality not

previously considered in a previous

consultation under section 304(d) of the

NMSA, the activity will be treated as a

new activity under this paragraph. If it

is determined that an activity may be

carried out, such activity shall be

carried out in a manner that avoids to

the maximum extent practical any

adverse impact on Sanctuary resources

and qualities. Civil engineering and

other civil works projects conducted by

the U.S. Army Corps of Engineers are

excluded from the scope of this

paragraph (g)(1).

(2) In the event of threatened or actual

destruction of, loss of, or injury to a

Sanctuary resource or quality resulting

from an untoward incident, including

but not limited to spills and groundings

caused by the Department of Defense,

the cognizant component shall promptly

coordinate with the Director or designee

for the purpose of taking appropriate

actions to prevent, respond to or

mitigate the harm and, if possible,

restore or replace the Sanctuary

resource or quality.

§ 929.6 Additional activity regulations by

Sanctuary zone.

(a) In addition to the prohibitions set

forth in § 929.5, which apply throughout

the Sanctuary, the following

requirements in this § 929.6 apply with

respect to activities conducted within

the Sanctuary zones described in this

§ 929.6 and in Appendices II through V

to this part. Activities conducted in

those areas of the Sanctuary that are

located within two or more overlapping

Sanctuary zones shall be concurrently

subject to the regulations applicable to

each such overlapping zone.

(b) Existing Management Areas.—(1)

Key Largo and Looe Key Management

Areas. The following activities are

prohibited within the Key Largo and

Looe Key Management Areas (the

former Key Largo and Looe Key

National Marine Sanctuaries as

described in Appendix II to this part):

(i) Removing, taking, damaging,

harmfully disturbing, breaking, cutting,

spearing or similarly injuring any coral

or other marine invertebrate, or any

plant, soil, rock, or other material,

except commercial taking of spiny

lobster and stone crab by trap and

recreational taking of spiny lobster by

hand which is consistent with both the

applicable regulations under the

appropriate Fishery Management Plan

and the regulations in this part is

allowed.

(ii) Taking or collecting any tropical

fish.

(iii) Using wire fish traps, bottom

trawls, dredges, fish sleds, or similar

vessel-towed or anchored bottom fishing

gear or nets.

(iv) Using, carrying or possessing,

except while passing without

interruption through the zones or for

law enforcement purposes, the

following: Pole spears, air rifles, bows

and arrows, slings, Hawaiian slings,

rubber powered arbaletes, pneumatic

and spring loaded guns or similar

devices known as spearguns.

(2) Great White Heron and Key West

National Wildlife Refuge Management

Areas. Within the Great White Heron

and Key West National Wildlife Refuge

Management Areas (The Great White

Heron and Key West National Wildlife

Refuges as described in Appendix II to

this part), operating a personal

watercraft (PWC), operating an airboat,

or water skiing, except within the

following areas:

Township 66 South, Range 29 East, Sections

5, 11, 12 and 14;

Township 66 South, Range 28 East, Section

2;

Township 67 South, Range 26 East, Sections

16 and 20 all Tallahassee Meridian, is

prohibited.

(c) Wildlife Management Areas. (1)

Persons conducting activities within the

Wildlife Management Areas described

in Appendix III to this part shall comply

with the regulations governing access to,

and use of, such areas, also set forth in

Appendix III to this part. The following

activities are prohibited:

(i) Operating a vessel in a wildlife

management area designated as an

‘‘idle/no-wake speed’’ zone, in

accordance with paragraph (c)(2) of this

section, at a speed greater than idle/nowake speed as defined in § 929.3.

(ii) Operating a vessel in a Wildlife

Management Area designated as a ‘‘no

motor’’ zone, in accordance with

paragraph (c)(2) of this section, using a

boat motor powered by combustible

fuel, except that vessels with such

motors are permitted access to ‘‘no

motor’’ zones only through the use of a

push pole, paddle, electric motor or

similar means of operation not

involving the use of a gasoline or diesel

powered boat motor.

(iii) Operating a vessel, by any means

whatsoever, in a wildlife management

area designated as a ‘‘no access buffer

zone’’, in accordance with paragraph

(c)(2) of this section.

(2) Access and use restrictions

applicable to the Wildlife Management

Areas listed in Appendix III to this part

may include the designation of any such

zone as an ‘‘idle/no-wake speed’’, a ‘‘no

motor’’ or a ‘‘no access buffer’’ area. The

Director or designee, in cooperation

with other Federal, State, or local

resource management authorities, as

appropriate, shall effect such

designation by posting official signs

conspicuously, using mounting posts,

buoys, or other means according to

location and purpose, at appropriate

intervals and locations. Official signs

posted pursuant to this paragraph shall

display the official logo of the

Sanctuary. Each such sign shall clearly

delineate such zone as an ‘‘idle/no-wake

speed’’, a ‘‘no motor’’ or a ‘‘no access
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16413

buffer’’ zone, and shall allow instant,

long-range recognition by boaters.

(3) The Director or designee shall

coordinate with other Federal, State, or

local resource management authorities,

as appropriate, in the establishment,

management, and enforcement of

Wildlife Management Areas.

(4) The Director or designee may

modify the number, location, or access

and use restrictions applicable to

Wildlife Management Areas if the

Director or designee finds that such

action is reasonably necessary to

minimize disturbances to Sanctuary

wildlife, or to ensure protection and

preservation of Sanctuary wildlife

consistent with the purposes of the

Sanctuary designation and other

applicable law governing the protection

and preservation of wildlife resources in

the Sanctuary. The Director or designee

will effect such modification by:

(i) Publishing in the Federal Register,

after notice and a request for public

comments in accordance with the

Administrative Procedure Act, an

amendment to the list of such areas set

forth in Appendix III to this part, and a

notice regarding the time and place

where maps depicting the precise

locations of such areas will be made

available for public inspection; and

(ii) Posting official signs designating

such areas in accordance with

paragraph (c)(2) of this section.

(d) Sanctuary Preservation Areas and

Replenishment Reserves. (1) In addition

to the prohibitions set forth in § 929.5,

and the regulations applicable to any

overlapping zones set forth in this

section, the following activities are

prohibited within the Replenishment

Reserves described in Appendix IV to

this part, and within the Sanctuary

Preservation Areas, described in

Appendix V to this part:

(i) Possessing (regardless of where

taken from), moving, harvesting,

removing, taking, damaging, disturbing,

breaking, cutting, spearing, or otherwise

injuring any coral, marine invertebrate,

fish, bottom formation, algae, seagrass or

other living or dead organism, including

shells, or attempting any of these

activities.

(ii) Fishing by any means. However,

possession of gear capable of harvesting

fish aboard a vessel, provided such gear

is stowed away prior to entering and

during transit through the zone, shall

not be deemed a violation of this

prohibition, and no presumption of

fishing activity shall be drawn

therefrom.

(iii) Touching living or dead coral,

including but not limited to, standing

on a living or dead coral formation.

(iv) Placing any anchor in a way that

allows the anchor or any portion of the

anchor apparatus (including the anchor,

chain or rope) to touch living or dead

coral, or any sessile organism. When

anchoring dive boats, the first diver

down shall inspect the anchor to ensure

that it is not touching living or dead

coral, and will not shift in such a way

as to touch such coral or other sessile

organisms. No further diving is

permitted until the anchor is placed in

accordance with these requirements.

(2) Vessels shall use mooring buoys or

anchoring areas when such facilities or

areas have been designated and are

available.

(3) Notwithstanding paragraph (d)(1)

of this section, the following activities

are allowed within the Key Largo

Replenishment Reserve described in

Appendix IV to this part:

(i) catch and release fishing from the

shore to a depth of 12 feet; and

(ii) harvest of spiny lobster by trap

from sand or seagrass bottom habitats.

(4) The Director or designee may

impose a limited access designation, or

temporary area closure, within any

Sanctuary Preservation Area if the

Director determines that such action is

reasonably necessary to allow for

recovery of the living resources of such

area from the adverse, cumulative

effects of concentrated use:

(i) Except for passage without

interruption through the area, for law

enforcement or for monitoring pursuant

to paragraph (d)(4)(iii) of this section, no

person shall:

(A) Enter a Sanctuary Preservation

Area subject to a limited access

designation, except by the use of such

mooring buoys or anchoring areas as are

designated and available for use within

such area at the time of the entry; or

(B) Enter a Sanctuary Preservation

Area subject to a temporary area closure,

during the pendancy of the area closure.

(ii) In adopting any limited access

designation or temporary area closure

pursuant to this paragraph (d)(4), the

Director or designee will determine, on

the basis of the best available data,

information and studies, that:

(A) A concentration of use appears to

be causing or contributing to significant

degradation of the living resources of

the area;

(B) The access restriction or

temporary area closure to be imposed is

reasonably necessary to allow recovery

of the living resources of the area.

(iii) The Director or designee will

provide for continuous monitoring of

the area during the pendancy of the

limited access designation or temporary

area closure.

(iv) The Director or designee will

provide public notice of the limited

access designation or temporary area

closure through publishing notice in the

Federal Register, and such other means

as the Director or designee may deem

appropriate. With respect to a temporary

area closure, the Director or designee

will specify the period of such closure.

(e) Special Use Areas. (1) The Director

or designee may set aside discrete areas

of the Sanctuary as Special Use Areas,

and, by designation pursuant to this

paragraph (e), impose the use

restrictions specified in paragraph (e)(3)

of this section. Special Use Areas are

described in Appendix VI to this part,

in accordance with the following

designations and corresponding

objectives:

(i) ‘‘Recovery areas’’ to provide for the

recovery of Sanctuary resources from

degradation or other injury attributable

to human uses;

(ii) ‘‘Restoration areas’’ to provide for

restoration of degraded or otherwise

injured Sanctuary resources;

(iii) ‘‘Research only areas’’ to provide

for scientific research or education

relating to protection and management;

and

(iv) ‘‘Facilitated use areas’’ to provide

for the prevention of use or user

conflicts or the facilitation of access and

use, or to promote public use and

understanding, of Sanctuary resources

through the issuance of Special Use

permits pursuant to § 929.12.

(2) The total restricted area shall not

exceed a size the Director or designee

deems reasonably necessary to

accomplish these objectives.

(3) Persons conducting activities

within any Special Use Area shall

comply with the access and use

restriction specified in this paragraph

and made applicable to such an area by

means of its designation as a ‘‘recovery

area’’, ‘‘restoration area’’, ‘‘research only

area’’ or ‘‘facilitated use area.’’ Except

for passage without interruption

through the area and for law

enforcement, no person may enter into

a Special Use Area except to conduct or

cause to be conducted the following

uses and activities:

(i) Habitat manipulation related to

restoration of degraded or otherwise

injured Sanctuary resources, or

activities reasonably necessary to

monitor recovery of degraded or

otherwise injured Sanctuary resources

within such an area designated as either

a ‘‘recovery area’’ or a ‘‘restoration

area’’;

(ii) Scientific research or educational

use specifically authorized by and

conducted in accordance with the

scope, purpose, terms and conditions of
16414 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

a valid Sanctuary permit issued

pursuant to § 929.10 or § 929.11 within

such an area designated as a ‘‘research

only area’’; or

(iii) Uses and activities specified by

the Director or designee or specifically

authorized by and conducted in

accordance with the scope, purpose,

terms, and conditions of a valid special

use permit issued pursuant to § 929.12

within such an area designated as a

‘‘facilitated use area.’’

(4) (i) The Director or designee may

modify the number, location or

designation applicable to Special Use

Zones by publishing in the Federal

Register, after notice and a request for

public comments in accordance with

the Administrative Procedure Act, an

amendment to Appendix VI to this part,

except that, with respect to such zones

designated as ‘‘recovery areas’’,

‘‘restoration areas,’’ or ‘‘research only

areas,’’ the Director or designee may

modify the number, location or

designation of such zones by publishing

a notice of such action in the Federal

Register if the Director determines that

immediate action is reasonably

necessary to:

(A) Prevent significant injury to

Sanctuary resources where

circumstances create an imminent risk

to such resources;

(B) Initiate restoration activity where

a delay in time would significantly

impair the ability of such restoration

activity to succeed;

(C) Initiate research activity where an

unforseen natural event produces an

opportunity for scientific research that

may be lost if research is not initiated

immediately.

(ii) If the Director or designee

determines that a notice of modification

must be promulgated immediately in

accordance with paragraph (e)(4)(i) of

this section, the Director or designee

will, as part of the same notice, invite

public comment and specify that

comments will be received for 15 days

after the effective date of the notice. As

soon as practicable after the end of the

comment period, the Director will either

rescind, modify or allow the

modification to remain unchanged

through notice in the Federal Register.

§ 929.7 Emergency regulations.

Where necessary to prevent or

minimize the destruction of, loss of, or

injury to a Sanctuary resource or

quality, or minimize the imminent risk

of such destruction, loss, or injury, any

and all activities are subject to

immediate temporary regulation,

including prohibition.

§ 929.8 Penalties.

(a) Each violation of the NMSA or

FKNMSPA, any regulation in this part,

or any permit issued pursuant thereto,

is subject to a civil penalty of not more

than $100,000. Each such violation shall

be subject to forfeiture of property or

Sanctuary resources seized in

accordance with section 307 of the

NMSA. Each day of a continuing

violation constitutes a separate

violation.

(b) Regulations setting forth the

procedures governing administrative

proceedings for assessment of civil

penalties, permit sanctions and denials

for enforcement reasons, issuance and

use of written warnings, and release or

forfeiture of seized property appear at

15 CFR Part 904.

§ 929.9 Response costs and damages.

Under Section 312 of the NMSA, any

person who destroys, causes the loss of,

or injures any Sanctuary resource is

liable to the United States for response

costs, damages, and interest resulting

from such destruction, loss, or injury,

and any vessel used to destroy, cause

the loss of, or injure any Sanctuary

resource is liable in rem to the United

States for response costs, damages, and

interest resulting from such destruction,

loss, or injury.

§ 929.10 National Marine Sanctuary

Permits; application procedures and

issuance criteria.

(a) A person may conduct an activity

prohibited by § 929.5 or § 929.6 if such

activity is specifically authorized by,

and provided such activity is conducted

in accordance with the scope, purpose,

terms and conditions of, a permit issued

under this § 929.10 or an Historical

Resources permit issued under § 929.11.

(b)(1) The Director or designee, at his

or her discretion, may issue a permit, in

accordance with this section, and

subject to such terms and conditions as

he or she deems appropriate, to conduct

an activity prohibited by § 929.5 or

§ 929.6 if the Director or designee finds

that the activity will have only

negligible short-term adverse effects on

Sanctuary resources and qualities and

will:

(i) Further research or monitoring

related to Sanctuary resources and

qualities;

(ii) Further the educational, natural or

historical resource value of the

Sanctuary;

(iii) Further salvage or recovery

operations in or near the Sanctuary in

connection with a recent air or marine

casualty; or

(iv) Assist in managing the Sanctuary.

(2) For activities proposed to be

conducted within Replenishment

Reserves or Sanctuary Preservation

Areas, the Director or designee shall

further find that such activities will

further and are consistent with the

purposes for which such zone was

established.

(c) In deciding whether to issue a

permit, the Director or designee may

consider:

(1) The professional qualifications

and financial ability of the applicant as

related to the proposed activity;

(2) The duration of the activity and

the duration of its effects;

(3) The appropriateness of the

methods and procedures proposed by

the applicant for the conduct of the

activity;

(4) The extent to which the conduct

of the activity may diminish or enhance

Sanctuary resources and qualities;

(5) Any indirect, secondary or

cumulative effects of the activity;

(6) The end value of the activity; and

(7) Such other factors as he or she

deems appropriate depending on the

type of activity proposed in the

application.

(d) Applications for permits should be

addressed to the Director, Office of

Ocean and Coastal Resource

Management; ATTN: Sanctuary

Superintendent, Florida Keys National

Marine Sanctuary, P.O. Box 500368,

Marathon, FL 33050. All applications

must include:

(1) A detailed description of the

proposed activity including a timetable

for completion of the activity and the

equipment, personnel and methodology

to be employed;

(2) The qualifications and experience

of all personnel;

(3) The potential effects of the

activity, if any, on Sanctuary resources

and qualities; and

(4) The benefit to be derived from the

activity. Copies of all other required

licenses, permits, approvals, or other

authorizations must be attached to the

application.

(e) Upon receipt of an application, the

Director or designee may request such

additional information from the

applicant as he or she deems reasonably

necessary to act on the application and

may seek the views of any persons. The

Director or designee may require a site

visit as part of the permit evaluation.

Unless otherwise specified, the

information requested must be received

by the Director or designee within 30

days of the postmark date of the request.

Failure to provide such additional

information on a timely basis may be

deemed by the Director or designee to

constitute abandonment or withdrawal

of the permit application.
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16415

1The incorporation by reference will be

submitted to the Office of the Federal Register for

approval.

(f) A permit issued pursuant to this

§ 929.10 or § 929.11 is nontransferable.

(g) The Director or designee may

amend, suspend, or revoke a permit for

good cause. The Director or designee

may deny a permit application, in

whole or in part, if it is determined that

the permittee or applicant has acted in

violation of the terms or conditions of

a previous permit, of the regulations in

this part, of the NMSA or FKNMSA, or

for other good cause. Any such action

shall be communicated in writing to the

permittee or applicant by certified mail

and shall set forth the reason(s) for the

action taken. Procedures governing

permit sanctions and denials for

enforcement reasons are set forth in 15

CFR Part 904, subpart D.

(h) Any permit issued pursuant to this

§ 929.10, § 929.11, § 929.12, or Section

310 of the NMSA shall be subject to the

following general conditions:

(1) All permitted activities shall be

conducted in a manner that does not

destroy, cause the loss of, or injure

Sanctuary resources, except that a

permit issued under this § 929.10 or

§ 929.11 may authorize negligible shortterm adverse effects on Sanctuary

resources and qualities.

(2) The permittee shall agree to hold

the United States harmless against any

and all claims arising out of the conduct

of the permitted activities.

(3) The permit shall be issued for a

period not exceeding five years.

However, the permittee may request

permit renewal or a different permit

pursuant to the same procedure as

provided by this § 929.10. Upon the

permittee’s request for renewal, the

Director or designee shall: review all

annual reports submitted by the

permittee pursuant to paragraph (h)(4)

of this section. In order to renew the

permit, the Director or designee must

find that the activity will continue to

further the purposes for which the

Sanctuary was designated in accordance

with the criteria applicable to the initial

issuance of the permit; ascertain the

permittee has at no time violated the

permit, or these regulations; and

ascertain the permittee has not

destroyed, caused the loss of, or injured

Sanctuary resources while conducting

the permitted activities, except for any

negligible short-term adverse effects on

Sanctuary resources and qualities

authorized by the permit pursuant to

paragraph (h)(1) of this section.

(4) The permit or a copy thereof shall

be displayed on board all vessels or

aircraft used in the conduct of the

permitted activity.

(i) In addition to the general

conditions listed in paragraphs (h)(1)

through (4) of this section, any permit

issued pursuant to this § 929.10,

§ 929.11, § 929.12, or Section 310 of the

NMSA may be subject to such specific

terms and conditions, including

conditions governing access to, or use

of, Sanctuary resources, as the Director

or designee deems reasonably necessary

or appropriate and in furtherance of the

purposes for which the Sanctuary is

designated. Such conditions may

include, without limitation, a condition

that:

(1) Any data or information obtained

under the permit shall be made

available to the public;

(2) A NOAA official shall be allowed

to observe any activity conducted under

the permit;

(3) The permittee shall submit one or

more reports on the status, progress, or

results of any activity authorized by the

permit;

(4) The permittee shall submit an

annual report to the Director or designee

not later than December 31 of each year

on activities conducted pursuant to the

permit. The report shall describe all

activities conducted under the permit

and all revenues derived from such

activities during the term of the permit;

and/or

(5) The permittee shall purchase and

maintain general liability insurance

against any and all claims arising out of

the permitted activities. A copy of the

insurance policy shall be submitted to

the Director or designee.

(j) The applicant for or holder of a

National Marine Sanctuary or a National

Marine Sanctuary Historical Resources

permit may appeal the denial,

conditioning, amendment, suspension

or revocation of the permit in

accordance with the procedures set

forth in § 929.16.

§ 929.11 National Marine Sanctuary

Historical Resources Permits; exploration,

research/recovery, research/recovery/

transfer; application procedures and

issuance criteria.

(a) The Director or designee, at his or

her discretion, may issue a research/

exploration, research/recovery, or

research/recovery/transfer permit, in

accordance with this § 929.11, and

subject to such terms and conditions as

he or she deems appropriate, to conduct

an activity specified under this § 929.11

and prohibited by §§ 929.5 or 929.6.

Activities conducted pursuant to a

permit issued under this § 929.11 shall

be consistent and conform with the

[proposed] Procedures for Submerged

Cultural Resources Agreement Among

NOAA, The Advisory Council on

Historic Preservation, and the State of

Florida on Submerged Cultural

Resources (hereinafter SCR Agreement).

This incorporation by reference was

approved by the Director of the Federal

Register in accordance with 5 U.S.C.

552(a) and 1 CFR part 51. The SCR

Agreement is reproduced as an

appendix to the ‘‘Regulatory Action

Plan’’ set forth in Volume 1 of the [draft]

Florida Keys National Marine Sanctuary

Management Plan, dated March 1995.

Copies of the SCR Agreement may be

inspected at, and obtained from, the

Sanctuaries and Reserves Division,

Office of Ocean and Coastal Resource

Management, National Ocean Service,

National Oceanic and Atmospheric

Administration, 1305 East-West

Highway, 12th floor, Silver Spring, MD

20910 or from the Florida Keys National

Marine Sanctuary Office, P.O. Box

500368, Marathon, FL 33050. The SCR

Agreement is also available for

inspection at the Office of the Federal

Register, 800 North Capitol Street, NW.,

suite 700, Washington, DC. 1

(b) Applications for research/recovery

and research/recovery/transfer permits

shall follow the procedures listed in

§ 929.10 (d) through (g).

(c) Any permit issued pursuant to this

§ 929.11 shall be subject to the general

conditions listed in § 929.10(h) (1)

through (4), and any special conditions

that may be imposed by the Director or

designee in accordance with § 929.10(i).

In addition, the following general

conditions shall apply to all research/

recovery and research/recovery/transfer

permits:

(1) The permittee shall post a

performance bond commensurate with

the scope of work to cover costs

associated with the recovery. The bond

shall be released only after the project

is completed according to the agreedupon terms, the artifacts are conserved,

and a final report is delivered and

approved by Director or designee in

accordance with the SCR Agreement;

and

(2) The permittee, at his or her own

expense, shall provide secure storage of

the artifacts recovered pursuant to

research/recovery or research/recovery/

transfer permit, and the permittee shall

obtain insurance for the artifacts

equivalent to the fair market value as

determined by a qualified objective

assessor. Such assessor shall be

identified or approved by the Director or

designee.

(d) Survey and Inventory Permits. (1)

The Director or designee may issue a

survey and inventory permit to conduct

non-intrusive survey activities that will

not include excavation, removal, or
16416 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

recovery of historical resources, nor

result in destruction of, loss of, or injury

to Sanctuary resources.

(2) Survey and inventory reports and

daily logs must be prepared describing

the activities conducted pursuant and

results obtained from the activities

authorized in the exploration permit.

Copies of the report and daily logs and

any other data derived from the survey

shall be delivered in a timely manner

pursuant to a deadline proscribed in the

permit and will be stored in a repository

to be named in the permit.

(e) Research/Recovery Permits. (1)

Recovery of historical resources will

only be permitted when developed in

conjunction with research to preserve

the historic information for public use.

Intrusive research and/or recovery will

be permitted based upon a balancing of

factors and criteria to determine

whether the goals of preservation,

research, education, and public access

are better served by permitting this type

of activity as opposed to leaving the

historic resource in place.

(2) For sites where no prior federally

adjudicated claim exists, and for

federally adjudicated admiralty claim

sites within the Sanctuary, the following

minimum requirements apply as general

permit conditions and may be subject to

separate approval, as specified by the

Director or designee:

(i) The applicant must have secured

Federal, State, and local permits from

all agencies with jurisdiction over the

proposed activities;

(ii) A professional archaeologist must

be in charge of planning, conducting,

and supervising field operations,

analysis;

(iii) A conservation laboratory must

be in place before field operations are

begun, and a professional nautical

conservator must be in charge of

planning, conducting, and supervising

the conservation of any artifacts and

other materials recovered;

(iv) A curation agreement with a

museum or facility for curation, display,

and maintenance of the recovered

historical resources must be in place

before field operations have begun;

(v) The site’s archaeological

information must be fully documented,

including measured drawings, site maps

drawn to professional standards, and a

photographic record;

(vi) Final reports must be prepared

describing research design,

methodology, laboratory analyses,

findings, and other items. These reports

shall be delivered in a timely manner

pursuant to a deadline proscribed in the

permit;

(vii) Copies of all reports, site maps,

field notes, and other data and records

derived from the project will be stored

in a repository to be named in the

permit.

(f) Research/Recovery/Transfer

Permits. (1) Agreements for the curation

and display of recovered historical

resources may provide for the release of

public artifacts for private sale transfer

if such sale transfer is consistent with

preservation, research, education, or

other purposes of the designation and

management of the Sanctuary. Sale

distribution of historical resources shall

be executed pursuant to the SCR

Agreement.

(2) All research/recovery/transfer

permits shall be subject to the

requirements in paragraph (e) of this

section.

(3) All research/recovery/transfer

permits shall be subject to the

requirements for special use permits

listed in § 929.12 (c) through (f).

§ 929.12 Special Use Permits.

(a)(1) The Director or designee may

require a special use permit in order to

conduct a concession-type, commercial

activity within the Sanctuary if the

Director or designee determines such

authorization is reasonably necessary:

(i) To establish conditions of access to

and use of any Sanctuary resource; or

(ii) To promote public use and

understanding of any Sanctuary

resource.

(2) No permit may be issued unless

the activity is compatible with the

purposes for which the Sanctuary was

designated and can be conducted in a

manner that does not destroy, cause the

loss of, or injure any Sanctuary

resource.

(b) Applications for such permits

shall follow the procedures listed in

§ 929.10(d) through (g).

(c) Any special use permit issued

pursuant to this § 929.12 shall be subject

to the general conditions listed in

§ 929.10(h)(1) through (4), and any

special conditions that may be imposed

by the Director or designee in

accordance with § 929.10(i).

(d) The Director or designee may

assess and collect fees for the conduct

of any activity authorized by a special

use permit issued pursuant to this

§ 929.12. No special use permit shall be

effective until all assessed fees are paid,

unless otherwise provided by the

Director or designee by a fee schedule

set forth as a permit condition.

(e) In assessing a fee under paragraph

(f) of this section, the Director or

designee shall include:

(1) All costs incurred, or expected to

be incurred, in reviewing and

processing the permit application,

including costs for:

(i) Number of personnel;

(ii) Personnel hours;

(iii) Equipment;

(iv) Biological assessments;

(v) Copying; and

(vi) Overhead directly related to

reviewing and processing the permit

application;

(2) All costs incurred, or expected to

be incurred, by the Director or designee

as a direct result of the conduct of the

activity for which the special use permit

was issued, including, but not limited

to:

(i) The cost of monitoring the conduct

both during and after the activity is

completed in order to assess the impacts

to Sanctuary resources;

(ii) The use of an official NOAA

observer, including travel and expenses

and personnel hours; and

(iii) Overhead costs directly related to

the permitted activity; and

(3) An amount which represents the

fair market value of the use of the

Sanctuary resource and a reasonable

return to the United States Government.

(f) Special-use permits may not be

transferred, sold, or assigned except

with the written approval of the Director

or designee. The permittee shall provide

the Director or designee with written

notice of any such transfer, sale, or

assignment no less than 30 days prior to

its proposed consummation. Transfers,

sales, or assignments consummated in

violation of this requirement shall be

considered a material breach of the

special-use permit, and the permit shall

be considered void as of the

consummation of any such transfer,

sale, or assignment.

(g) Nothing in this § 929.12 shall be

considered to require a person to obtain

a permit under this § 929.12 for the

conduct of any fishing activities within

the Sanctuary.

§ 929.13 Sanctuary registry; research

notice.

Any person conducting research in

the Sanctuary, including such research

not involving activities prohibited by

§§ 929.5 or 929.6, may voluntarily

register with the appropriate Sanctuary

field office. Such registration should

include the type of research being

conducted, location of research area,

and name, addressee, and contact

telephone numbers of the principal

investigator or research expedition

leader. Upon registration, the Sanctuary

office will issue a research flag to be

used while conducting research within

the Sanctuary. The flag must be

returned upon completion of all

research activities. Copies of research

results, abstracts, and reports may be

submitted to the Sanctuary field office
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16417

to be retained for Sanctuary

management purposes, public

observation, and peer review.

§ 929.14 Certification of pre-existing

leases, licenses, permits, approvals, other

authorizations, or rights to conduct a

prohibited activity.

(a) A person may conduct an activity

prohibited by §§ 929.5 or § 929.6 if such

activity is specifically authorized by a

valid lease, permit, license, approval, or

other authorization in existence on the

effective date of Sanctuary designation

and issued by any Federal, State, or

local authority of competent

jurisdiction, or by any valid right of

subsistence use or access in existence

on the effective date of Sanctuary

designation, provided that:

(1) The holder of such authorization

or right notifies the Director or designee,

in writing, within 90 days of the

effective date of the regulations in this

part, of the existence of such

authorization or right and requests

certification of such authorization or

right;

(2) The holder complies with the

other provisions of this § 929.14; and

(3) The holder complies with any

terms and conditions on the exercise of

such authorization or right imposed as

a condition of certification, by the

Director or designee, to achieve the

purposes for which the Sanctuary was

designated.

(b) The holder of a valid lease, permit,

license, approval, or other authorization

in existence on the effective date of

Sanctuary designation and issued by

any Federal, State or local authority of

competent jurisdiction, or of any valid

right of subsistence use or access in

existence on the effective date of

Sanctuary designation, authorizing an

activity prohibited by § 929.5 or § 929.6

may conduct the activity without being

in violation of specified provisions of

§ 929.5 or § 929.6, pending final agency

action on his or her certification request,

provided the holder is in compliance

with this § 929.14.

(c) Any holder of a valid lease, permit,

license, approval, or other authorization

in existence on the effective date of

Sanctuary designation and issued by

any Federal, State, or local authority of

competent jurisdiction, or any holder of

a valid right of subsistence use or access

in existence on the effective date of

Sanctuary designation, may request the

Director or designee to issue a finding

as to whether the activity for which the

authorization has been issued, or the

right given, is prohibited under § 929.5

or § 929.6.

(d) Requests for findings or

certifications should be addressed to the

Director, Office of Ocean and Coastal

Resource Management; ATTN:

Sanctuaries and Reserves Division,

Office of Ocean and Coastal Resource

Management, National Ocean Service,

National Oceanic and Atmospheric

Administration, 1305 East-West

Highway, Silver Spring, Maryland

20910. A copy of the lease, permit,

license, approval, or other authorization

must accompany the request.

(e) The Director or designee may

request additional information from the

certification requester as he or she

deems reasonably necessary to

condition appropriately the exercise of

the certified authorization or right to

achieve the purposes for which the

Sanctuary was designated. The

information requested must be received

by the Director or designee within 45

days of the postmark date of the request.

The Director or designee may seek the

views of any persons on the certification

request.

(f) The Director or designee may

amend any certification made under this

§ 929.14 whenever additional

information becomes available justifying

such an amendment.

(g) The Director or designee shall

communicate any decision on a

certification request or any action taken

with respect to any certification made

under this § 929.14, in writing, to both

the holder of the certified lease, permit,

license, approval, other authorization,

or right, and the issuing agency, and

shall set forth the reason(s) for the

decision or action taken.

(h) Any time limit prescribed in or

established under this § 929.14 may be

extended by the Director or designee for

good cause.

(i) The holder may appeal any action

conditioning, amending, suspending, or

revoking any certification in accordance

with the procedures set forth in

§ 929.16.

(j) Any amendment, renewal, or

extension not in existence on the

effective date of Sanctuary designation

of a lease, permit, license, approval,

other authorization, or right is subject to

the provisions of § 929.15.

§ 929.15 Notification and review of

applications for leases, licenses, permits,

approvals, or other authorizations to

conduct a prohibited activity.

(a) A person may conduct an activity

prohibited by §§ 929.5 or 929.6 if such

activity is specifically authorized by any

valid lease, permit, license, approval, or

other authorization issued after the

effective date of Sanctuary designation

by any Federal, State, or local authority

of competent jurisdiction, provided that:

(1) The applicant notifies the Director

or designee, in writing, of the

application for such authorization (and

of any application for an amendment,

renewal, or extension of such

authorization) within fifteen (15) days of

the date of filing of the application or of

the effective date of the regulations in

this part, whichever is later;

(2) The applicant complies with the

other provisions of this § 929.15;

(3) The Director or designee notifies

the applicant and authorizing agency

that he or she does not object to

issuance of the authorization (or

amendment, renewal, or extension); and

(4) The applicant complies with any

terms and conditions the Director or

designee deems reasonably necessary to

protect Sanctuary resources and

qualities.

(b) Any potential applicant for a lease,

permit, license, approval, or other

authorization from any Federal, State, or

local authority (or for an amendment,

renewal, or extension of such

authorization) may request the Director

or designee to issue a finding as to

whether the activity for which an

application is intended to be made is

prohibited by §§ 929.5 or 929.6.

(c) Notification of filings of

applications should be addressed to the

Director, Office of Ocean and Coastal

Resource Management; ATTN:

Sanctuaries and Reserves Division,

Office of Ocean and Coastal Resource

Management, National Ocean Service,

National Oceanic and Atmospheric

Administration, 1305 East-West

Highway, Silver Spring, Maryland

20910. A copy of the application must

accompany the notification.

(d) The Director or designee may

request additional information from the

applicant as he or she deems reasonably

necessary to determine whether to

object to issuance of such lease, license,

permit, approval, or other authorization

(or to issuance of an amendment,

extension, or renewal of such

authorization), or what terms and

conditions are reasonably necessary to

protect Sanctuary resources and

qualities. The information requested

must be received by the Director or

designee within 45 days of the postmark

date of the request. The Director or

designee may seek the views of any

persons on the application.

(e) The Director or designee shall

notify, in writing, the agency to which

application has been made of his or her

review of the application and possible

objection to issuance. After review of

the application and information

received with respect thereto, the

Director or designee shall notify both

the agency and applicant, in writing,
16418 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

whether he or she has an objection to

issuance and what terms and conditions

he or she deems reasonably necessary to

protect Sanctuary resources and

qualities. The Director or designee shall

state the reason(s) for any objection or

the reason(s) that any terms and

conditions are deemed reasonably

necessary to protect Sanctuary resources

and qualities.

(f) The Director or designee may

amend the terms and conditions

deemed reasonably necessary to protect

Sanctuary resources and qualities

whenever additional information

becomes available justifying such an

amendment.

(g) Any time limit prescribed in or

established under this § 929.15 may be

extended by the Director or designee for

good cause.

(h) The applicant may appeal any

objection by, or terms or conditions

imposed by, the Director or designee to

the Assistant Administrator or designee

in accordance with the provisions set

forth in § 929.16.

§ 929.16 Appeals of administrative action.

(a) Except for permit actions taken for

enforcement reasons (see 15 CFR part

904, subpart D, for applicable

procedures), an applicant for, or a

holder of, a § 929.10 Sanctuary permit,

an applicant for, or a holder of, a

§ 929.11 Sanctuary Historical Resources

Permit, an applicant for, or a holder of,

a § 929.12 Special Use Permit, a § 929.14

certification requester, or a § 929.15

applicant (hereinafter appellant) may

appeal to the Assistant Administrator or

designee:

(1) The denial, conditioning,

amendment, suspension, or revocation

by the Director or designee of a National

Marine Sanctuary, National Marine

Sanctuary Historical Resources or

Special Use Permit;

(2) The conditioning, amendment,

suspension, or revocation of a

certification under § 929.14; or

(3) The objection to issuance or the

imposition of terms and conditions

under § 929.15.

(b) An appeal under paragraph (a) of

this section must be in writing, state the

action(s) by the Director or designee

appealed and the reason(s) for the

appeal, and be received within 30 days

of receipt of notice of the action by the

Director or designee. Appeals should be

addressed to the Assistant

Administrator, Office of Ocean and

Coastal Resource Management, ATTN:

Sanctuaries and Reserves Division,

Office of Ocean and Coastal Resource

Management, National Ocean Service,

National Oceanic and Atmospheric

Administration, 1305 East-West

Highway, Silver Spring, MD 20910.

(c) While the appeal is pending,

appellants may not conduct their

activities without being subject to the

prohibitions in § § 929.5 and 929.6.

(d) The Assistant Administrator or

designee may request the appellant to

submit such information as the

Assistant Administrator or designee

deems reasonably necessary in order for

him or her to decide the appeal. The

information requested must be received

by the Assistant Administrator or

designee within 45 days of the postmark

date of the request. The Assistant

Administrator may seek the views of

any other persons. The Assistant

Administrator or designee may hold an

informal hearing on the appeal. If the

Assistant Administrator or designee

determines that an informal hearing

should be held, the Assistant

Administrator or designee may

designate an officer before whom the

hearing shall be held. The hearing

officer shall give notice in the Federal

Register of the time, place, and subject

matter of the hearing. The appellant and

the Director or designee may appear

personally or by counsel at the hearing

and submit such material and present

such arguments as deemed appropriate

by the hearing officer. Within 60 days

after the record before the hearing

officer closes, the hearing officer shall

recommend a decision in writing to the

Assistant Administrator or designee.

(e) The Assistant Administrator or

designee shall decide the appeal using

the same regulatory criteria as for the

initial decision and shall base the

appeal decision on the record before the

Director or designee and any

information submitted regarding the

appeal, and if a hearing has been held,

on the record before the hearing officer

and the hearing officer’s recommended

decision. The Assistant Administrator

or designee shall notify the appellant of

the final decision and the reason(s)

therefor in writing. The Assistant

Administrator or designee’s decision

shall constitute final agency action for

purposes of the Administrative

Procedure Act.

(f) Any time limit prescribed in or

established under this section other

than the 30 day limit for filing an appeal

may be extended by the Assistant

Administrator, designee, or hearing

officer for good cause.

Appendix I to Part 929—Florida Keys

National Marine Sanctuary Boundary

Coordinates

(Appendix Based on North American Datum

of 1983.)

The boundary of the Florida Keys National

Marine Sanctuary—

(a) begins at the northeasternmost point of

Biscayne National Park located at

approximately 25 degrees 39 minutes north

latitude, 80 degrees 5 minutes west

longitude, then runs eastward to the 300-foot

isobath located at approximately 25 degrees

39 minutes north latitude, 80 degrees 4

minutes west longitude;

(b) then runs southward and connects in

succession the points at the following

coordinates:

(i) 25 degrees 34 minutes north latitude, 80

degrees 4 minutes west longitude,

(ii) 25 degrees 28 minutes north latitude,

80 degrees 5 minutes west longitude, and

(iii) 25 degrees 21 minutes north latitude,

80 degrees 7 minutes west longitude;

(iv) 25 degrees 16 minutes north latitude,

80 degrees 8 minutes west longitude;

(c) then runs southwesterly approximating

the 300-foot isobath and connects in

succession the points at the following

coordinates:

(i) 25 degrees 7 minutes north latitude, 80

degrees 13 minutes west longitude,

(ii) 24 degrees 57 minutes north latitude,

80 degrees 21 minutes west longitude,

(iii) 24 degrees 39 minutes north latitude,

80 degrees 52 minutes west longitude,

(iv) 24 degrees 30 minutes north latitude,

81 degrees 23 minutes west longitude,

(v) 24 degrees 25 minutes north latitude, 81

degrees 50 minutes west longitude,

(vi) 24 degrees 22 minutes north latitude,

82 degrees 48 minutes west longitude,

(vii) 24 degrees 37 minutes north latitude,

83 degrees 6 minutes west longitude,

(viii) 24 degrees 40 minutes north latitude,

83 degrees 6 minutes west longitude,

(ix) 24 degrees 46 minutes north latitude,

82 degrees 54 minutes west longitude,

(x) 24 degrees 44 minutes north latitude, 81

degrees 55 minutes west longitude,

(xi) 24 degrees 51 minutes north latitude,

81 degrees 26 minutes west longitude, and

(xii) 24 degrees 55 minutes north latitude,

80 degrees 56 minutes west longitude;

(d) then follows the boundary of

Everglades National Park in a southerly then

northeasterly direction through Florida Bay,

Buttonwood Sound, Tarpon Basin, and

Blackwater Sound;

(e) after Division Point, then departs from

the boundary of Everglades National Park

and follows the western shoreline of Manatee

Bay, Barnes Sound, and Card Sound;

(f) then follows the southern boundary of

Biscayne National Park to the

southeasternmost point of Biscayne National

Park; and

(g) then follows the eastern boundary of

Biscayne National Park to the beginning

point specified in paragraph (a) of this

Appendix.

Appendix II to Part 929—-Existing

Management Areas

The four (4) areas are identified as follows:

National Oceanic and Atmospheric

Administration

Pre-existing National Marine Sanctuaries:

(1) Key Largo National Marine Sanctuary

(see 15 CFR Part 929, as revised January 1,

1995).
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16419

(2) Looe Key National Marine Sanctuary

(see 15 CFR Part 937, as revised January 1,

1995).

United States Fish and Wildlife Service

(3) Great White Heron National Wildlife

Refuge

(4) Key West National Wildlife Refuge

Appendix III to Part 929—-Wildlife

Management Areas

The twenty-six (26) zones are described as

follows:

Area Measure

(1) Bay Keys .......... No motor zone (300

feet) around one island; Idle/no-wake

speed in tidal creeks

(2) Boca Grande

Key.

Close south one-half of

the beach.

(3) Woman Key ...... Close east one-half of

the beach and sand

spit (southeast side).

(4) Cayo Agua

Keys.

Idle/ no-wake speed

zone in all tidal

creeks.

(5) Cotton Key ....... No motor zone on tidal

flat.

(6) Snake Creek .... Do.

(7) Cottrell Key ....... No motor zone (300

feet) around entire island.

(8) Little Mullet Key No access buffer zone

(300 feet) around entire island.

(9) Big Mullet Key .. No motor zone (300

feet) around entire island.

(10) Crocodile Lake No access buffer zone

(300 feet) along

shoreline.

(11) East Harbor

Key.

No access buffer zone

(300 feet) around

northernmost island.

(12) Lower Harbor

Keys.

Idle/ no-wake speed

zone in all tidal

creeks.

(13) Horseshoe Key No access buffer zone

(300 feet) around

main island.

(14) Marquesas

Keys.

(i) No motor zones (300

feet) around 3 small

islands on western

side of chain; (ii) no

access buffer zone

(300 feet) around one

island at western side

of chain; (iii) idle/ nowake speed zone

through one tidal

creek on southern

side of chain.

(15) Tidal flat south

of Marvin Key. No access buffer zone.

.

(16) Mud Keys (i) ... Idle/ no-wake speed

zones in 2 main

creeks; (ii) No access

in 2 smaller creeks.

(17) Pelican Shoal . No landing and no access out to 50 feet

from shore between

April 1 and September 15.

Area Measure

(18) Rodriguez Key No motor zone on tidal

flat.

(19) Dove Key ........ No motor zone on tidal

flat; No access zone

around the two small

islands.

(20) Tavernier Key . No motor zone on tidal

flat.

(21) Sawyer Keys .. Close tidal creeks on

south side.

(22) Snipe Keys

(tidal creeks north

of Outer narrows).

(i) Idle no-wake speed

zone in main tidal

creek; (ii) No motor

zone elsewhere.

(23) Upper Harbor

Key.

No access buffer zone

(300 feet) around entire island.

(24) East Content

Keys.

Idle/ no-wake speed

zones in tidal creeks

between southwesternmost islands.

(25) West Content

Keys.

Idle/ no-wake speed

zones in tidal creeks;

no access buffer

zone in one cove.

(26) Little Crane

Key.

No access buffer zone

(300 feet) around entire island.

Appendix IV to Part 929—-

Replenishment Reserves

The three (3) zones consist of those

portions of the Sanctuary which are located

within the following geographic boundary

coordinates based on North American Datum

of 1983:

Point Latitude Longitude

KEY LARGO

1 .................... 25°17.7′N 80°16.9′W

2 .................... 25°15.2′N 80°11.2′W

3 .................... 25°11.6′N 80°13.3′W

4 .................... 25°14.3′N 80°19.0′W

SAMBOS

1 .................... 24°33.70′N 81°40.80′W

2 .................... 24°28.70′N 81°41.90′W

3 .................... 24°28.50′N 81°43.70′W

4 .................... 24°33.50′N 81°43.10′W

DRY TORTUGAS

1 .................... 24°45.70′N 82°45.00′W

2 .................... 24°22.20′N 82°45.00′W

3 .................... 24°22.00′N 82°48.00′W

4 .................... 24°25.30′N 82°52.00′W

5 .................... 24°34.00′N 82°52.00′W

6 .................... 24°34.00′N 82°54.00′W

7 .................... 24°37.00′N 82°48.00′W

8 .................... 24°40.00′N 82°46.00′W

9 .................... 24°42.00′N 82°46.00′W

10 .................. 24°43.90′N 82°48.00′W

11 .................. 24°43.50′N 82°52.00′W

12 .................. 24°45.90′N 82°52.00′W

Appendix V to Part 929—-Sanctuary

Preservation Areas

The nineteen (19) zones consist of those

portions of the Sanctuary which are located

within the following geographic boundary

coordinates based on North American Datum

of 1983:

Point Latitude Longitude

ALLIGATOR REEF

1 .................... 24°51.2′N 80°37.1′W

2 .................... 24°50.8′N 80°36.8′W

3 .................... 24°50.4′N 80°37.3′W

CARYSFORT/SOUTH CARYSFORT REEF

1 .................... 25°14.1′N 80°12.6′W

2 .................... 25°13.7′N 80°12.2′W

3 .................... 25°12.2′N 80°13.4′W

4 .................... 25°12.5′N 80°13.8′W

CHEECA ROCKS

1 .................... 24°54.5′N 80°37.6′W

2 .................... 24°54.3′N 80°37.5′W

3 .................... 24°54.2′N 80°37.7′W

4 .................... 24°54.5′N 80°37.8′W

COFFINS PATCH

1 .................... 24°41.1′N 80°57.5′W

2 .................... 24°40.6′N 80°58.4′W

3 .................... 24°41.5′N 80°57.7′W

4 .................... 24°41.1′N 80°58.6′W

CONCH REEF

1 .................... 24°57.5′N 80°27.4′W

2 .................... 24°57.4′N 80°27.3′W

3 .................... 24°57.0′N 80°27.7′W

4 .................... 24°56.9′N 80°27.6′W

DAVIS REEF

1 .................... 24°55.6′N 80°30.3′W

2 .................... 24°55.3′N 80°30.0′W

3 .................... 24°55.1′N 80°30.4′W

4 .................... 24°55.4′N 80°30.7′W

DRY ROCKS

1 .................... 25°7.6′N 80°17.9′W

2 .................... 25°7.4′N 80°17.7′W

3 .................... 25°7.3′N 80°17.8′W

4 .................... 25°7.4′N 80°18.1′W

GRECIAN ROCKS

1 .................... 25°6.9′N 80°18.2′W

2 .................... 25°6.6′N 80°17.9′W

3 .................... 25°6.1′N 80°18.5′W

4 .................... 25°6.2′N 80°18.6′W

5 .................... 25°6.8′N 80°18.6′W

EASTERN DRY ROCKS

1 .................... 24°27.9′N 81°50.5′W

2 .................... 24°27.7′N 81°50.4′W

3 .................... 24°27.5′N 81°50.6′W

4 .................... 24°27.7′N 81°50.8′W

THE ELBOW

1 .................... 25°9.1′N 80°15.4′W

2 .................... 25°8.9′N 80°15.1′W

3 .................... 25°8.1′N 80°15.7′W

4 .................... 25°8.8′N 80°15.7′W

FRENCH REEF

1 .................... 25°2.2′N 80°20.6′W

2 .................... 25°1.8′N 80°21.0′W

3 .................... 25°2.3′N 80°21.2′W

HEN AND CHICKENS

1 .................... 24°56.4′N 80°32.9′W

2 .................... 24°56.2′N 80°32.7′W

3 .................... 24°55.7′N 80°33.1′W

4 .................... 24°55.9′N 80°33.3′W

LOOE KEY

1 .................... 24°33.2′N 81°24.2′W
16420 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

Point Latitude Longitude

2 .................... 24°32.6′N 81°24.1′W

3 .................... 24°32.4′N 81°24.7′W

4 .................... 24°33.1′N 81°24.8′W

MOLASSES REEF

1 .................... 25°0.9′N 80°22.4′W

2 .................... 25°0.7′N 80°22.0′W

3 .................... 25°0.2′N 80°22.8′W

4 .................... 25°0.7′N 80°22.8′W

NEWFOUND HARBOR KEY

1 .................... 24°37.1′N 81°23.3′W

2 .................... 24°36.7′N 81°23.8′W

3 .................... 24°36.8′N 81°23.3′W

4 .................... 24°36.9′N 81°23.9′W

ROCK KEY

1 .................... 24°27.5′N 81°51.3′W

2 .................... 24°27.3′N 81°51.2′W

3 .................... 24°27.2′N 81°51.5′W

4 .................... 24°27.5′N 81°51.6′W

SAND KEY

1 .................... 24°27.6′N 81°53.1′W

2 .................... 24°27.0′N 81°53.1′W

3 .................... 24°27.0′N 81°52.3′W

4 .................... 24°27.6′N 81°52.3′W

SOMBRERO KEY

1 .................... 24°37.8′N 81°6.7′W

2 .................... 24°37.3′N 81°6.1′W

3 .................... 24°37.1′N 81°6.8′W

WESTERN SAMBO

1 .................... 24°29.1′N 81°42.6′W

2 .................... 24°28.8′N 81°42.4′W

3 .................... 24°28.6′N 81°43.2′W

4 .................... 24°28.9′N 81°43.4′W

Appendix VI to Part 929—-Special Use

Areas

The four (4) zones consist of those portions

of the Sanctuary which are located within the

following geographic boundary coordinates

based on North American Datum of 1983:

Point Latitude Longitude

CONCH REEF (RESEARCH ONLY)

1 .................... 24°57.4′N 80°27.3′W

2 .................... 24°57.0′N 80°27.0′W

3 .................... 24°56.7′N 80°27.4′W

4 .................... 24°57.0′N 80°27.7′W

LOOE KEY (RESEARCH ONLY)

1 .................... 24°34.1′N 81°23.3′W

2 .................... 24°34.0′N 81°23.2′W

3 .................... 24°33.8′N 81°23.8′W

4 .................... 24°34.0′N 81°23.9′W

PELICAN SHOAL (RESEARCH ONLY)

1 .................... 24°30.3′N 81°37.7′W

2 .................... 24°30.0′N 81°37.7′W

3 .................... 24°30.0′N 81°38.0′W

4 .................... 24°30.2′N 81°38.0′W

TENNESSEE REEF (RESEARCH ONLY)

1 .................... 24°45.9′N 80°45.6′W

2 .................... 24°45.7′N 80°45.4′W

3 .................... 24°46.0′N 80°44.9′W

4 .................... 24°46.2′N 80°45.1′W

Appendix VII to Part 929—-Coordinates

for the Area to be Avoided

In the Vicinity of the Florida Keys

(Reference Charts: United States 11466,

27th Edition—September 1, 1990 and United

States 11450, 4th Edition—August 11, 1990.)

Point Latitude Longitude

1 25°45.00′N

80°06.10′W.

2 25°38.70′N

80°02.70′W.

3 25°22.00′N

80°03.00′W.

4 25°00.20′N

80°13.40′W.

5 24°37.90′N

80°47.30′W.

6 24°29.20′N

81°17.30′W.

7 24°22.30′N

81°43.17′W.

8 24°28.00′N

81°43.17′W.

9 24°28.70′N

81°43.50′W.

10 24°29.80′N

81°43.17′W.

11 24°33.10′N

81°35.15′W.

12 24°33.60′N

81°26.00′W.

13 24°38.20′N

81°07.00′W.

14 24°43.20′N

80°53.20′W.

15 24°46.10′N

80°46.15′W.

16 24°51.10′N

80°37.10′W.

17 24°57.50′N

80°27.50′W.

18 25°09.90′N

80°16.20′W.

19 25°24.00′N

80°09.10′W.

20 25°31.50′N

80°07.00′W.

21 25°39.70′N

80°06.85′W.

22 25°45.00′N

80°06.10′W.

In the Vicinity of Key West Harbor

(Reference Chart: United States 11434, 21st

Edition—August 11, 1990.)

Point Latitude Longitude

23 24°27.95′N

81°48.65′W.

24 24°23.00′N

81°53.50′W.

25 24°26.60′N

81°58.50′W.

26 24°27.75′N

81°55.70′W.

27 24°29.35′N

81°53.40′W.

28 24°29.35′N

81°50.00′W.

29 24°27.95′N

81°48.65′W.

Area Surrounding the Marquesas Keys

(Reference Chart: United States 11434, 21st

Edition—August 11, 1990.)

Point Latitude Longitude

30 24°26.60′N

81°59.55′W.

31 24°23.00′N

82°03.50′W.

32 24°23.60′N

82°27.80′W.

33 24°34.50′N

82°37.50′W.

34 24°43.00′N

82°26.50′W.

35 24°38.31′N

81°54.06′W.

36 24°37.91′N

81°53.40′W.

37 24°36.15′N

81°51.78′W.

38 24°34.40′N

81°50.60′W.

39 24°33.44′N

81°49.73′W.

40 24°31.20′N

81°52.10′W.

41 24°28.70′N

81°56.80′W.

42 24°26.60′N

81°59.55′W.

Area Surrounding the Dry Tortugas Islands

(Reference Chart: United States 11434, 21st

Edition—August 11, 1990.)

Point Latitude Longitude

43 24°32.00′N

82°53.50′W.

44 24°32.00′N

83°00.05′W.

45 24°39.70′N

83°00.05′W.

46 24°45.60′N

82°54.40′W.

47 24°45.60′N

82°47.20′W.

48 24°42.80′N

82°43.90′W.

49 24°39.50′N

82°43.90′W.

50 24°35.60′N

82°46.40′W.

51 24°32.00′N

82°53.50′W.

Appendix VIII to Part 929—Marine Life

Rule

[As excerpted from Chapter 46–42 of the

Florida Administrative Code]

46–42.001 Purpose and Intent; Designation

of Restricted Species; Definition of

‘‘Marine Life Species.’’

46–42.002 Definitions.

46–42.003 Prohibition of Harvest:

Longspine Urchin, Bahama Starfish.

46–42.0035 Live Landing and Live Well

Requirements.
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16421

* Part 42.0036 is not set forth because it does not

apply to the Sanctuary.

** Part 42.008 is not set forth because it is

regulated pursuant to § 929.5(2)(ii).

46–42.0036 Harvest in Biscayne National

Park.*

46–42.004 Size Limits.

46–42.005 Bag Limits.

46–42.006 Commercial Season, Harvest

Limits.

46–42.007 Gear Specifications and

Prohibited Gear.

46–42.008 Live Rock.**

46–42.001 Purpose and Intent; Designation

of Restricted Species; Definition of

‘‘Marine Life Species’’.—

(1)(a) The purpose and intent of this

chapter are to protect and conserve Florida’s

tropical marine life resources and assure the

continuing health and abundance of these

species. The further intent of this chapter is

to assure that harvesters in this fishery use

nonlethal methods of harvest and that the

fish, invertebrates, and plants so harvested be

maintained alive for the maximum possible

conservation and economic benefits.

(b) It is the express intent of the Marine

Fisheries Commission to phase out the

landing of live rock harvested in federal

Exclusive Economic Zone (EEZ) waters

adjacent to state waters. Such harvest is and

will continue to be prohibited in Florida

waters, except that landing of live rock

propagated through aquaculture will be

allowed pursuant to the provisions of this

chapter.

(2) The following fish species, as they

occur in waters of the state and in federal

Exclusive Economic Zone (EEZ) waters

adjacent to state waters, are hereby

designated as restricted species pursuant to

Section 370.01(20), Florida Statutes:

(a) Moray eels—Any species of the Family

Muraenidae.

(b) Snake eels—Any species of the Genera

Myrichthys and Myrophis of the Family

Ophichthidae.

(c) Toadfish—Any species of the Family

Batrachoididae.

(d) Frogfish—Any species of the Family

Antennariidae.

(e) Batfish—Any species of the Family

Ogcocephalidae.

(f) Clingfish—Any species of the Family

Gobiesocidae.

(g) Trumpetfish—Any species of the

Family Aulostomidae.

(h) Cornetfish—Any species of the Family

Fistulariidae.

(i) Pipefish/seahorses—Any species of the

Family Syngnathidae.

(j) Hamlet/seabass—Any species of the

Family Serranidae, except groupers of the

genera Epinephalus and Mycteroperca, and

seabass of the genus Centropristis.

(k) Basslets—Any species of the Family

Grammistidae.

(l) Cardinalfish—Any species of the Family

Apogonidae.

(m) High-hat, Jackknife-fish, Spotted drum,

Cubbyu—Any species of the genus Equetus

of the Family Sciaenidae.

(n) Reef Croakers—Any of the species

Odontocion dentex.

(o) Sweepers—Any species of the Family

Pempherididae.

(p) Butterflyfish—Any species of the

Family Chaetodontidae.

(q) Angelfish—Any species of the Family

Pomacanthidae.

(r) Damselfish—Any species of the Family

Pomacentridae.

(s) Hawkfish—Any species of the Family

Cirrhitidae.

(t) Wrasse/hogfish/razorfish—Any species

of the Family Labridae, except hogfish,

Lachnolaimus maximus.

(u) Parrotfish—Any species of the Family

Scaridae.

(v) Jawfish—Any species of the Family

Opistognathidae.

(w) Blennies—Any species of the Families

Clinidae or Blenniidae.

(x) Sleepers—Any species of the Family

Eleotrididae.

(y) Gobies—Any species of the Family

Gobiidae.

(z) Tangs and surgeonfish—Any species of

the Family Acanthuridae.

(aa) Filefish/triggerfish—Any species of the

Family Balistes, except gray triggerfish,

Balistidae capriscus.

(bb) Trunkfish/cowfish—Any species of

the Family Ostraciidae.

(cc) Pufferfish/burrfish/balloonfish—Any

of the following species:

1. Balloonfish—Diodon holocanthus.

2. Sharpnose puffer—Canthigaster rostrata.

3. Striped burrfish—Chilomycterus

schoepfi.

(3) The following invertebrate species, as

they occur in waters of the state and in

federal Exclusive Economic Zone (EEZ)

waters adjacent to state waters, are hereby

designated as restricted species pursuant to

§ 370.01(20), Florida Statutes:

(a) Sponges—Any species of the Class

Demospongia, except sheepswool, yellow,

grass, glove, finger, wire, reef, and velvet

sponges, Order Dictyoceratida.

(b) Upside-down jellyfish—Any species of

the Genus Cassiopeia.

(c) Siphonophores/hydroids—Any species

of the Class Hydrozoa, except fire corals,

Order Milleporina.

(d) Soft corals—Any species of the

Subclass Octocorallia, except sea fans

Gorgonia flabellum and Gorgonia ventalina.

(e) Sea anemones—Any species of the

Orders Actinaria, Zoanthidea,

Corallimorpharia, and Ceriantharia.

(f) Featherduster worms/calcareous

tubeworms—Any species of the Families

Sabellidae and Serpulidae.

(g) Star-shells—Any of the species Astraea

americana or Astraea phoebia.

(h) Nudibranchs/sea slugs—Any species of

the Subclass Opisthobranchia.

(i) Fileclams—Any species of the Genus

Lima.

(j) Octopods—Any species of the Order

Octopoda, except the common octopus,

Octopodus vulgaris.

(k) Shrimp—Any of the following species:

1. Cleaner shrimp and peppermint

shrimp—Any species of the Genera

Periclimenes or Lysmata.

2. Coral shrimp—Any species of the Genus

Stenopus.

3. Snapping shrimp—Any species of the

Genus Alpheus.

(l) Crabs—Any of the following species:

1. Yellowline arrow crab—Stenorhynchus

seticornis.

2. Furcate spider or decorator crab—

Stenocionops furcata.

3. Thinstripe hermit crab—Clibanarius

vittatus.

4. Polkadotted hermit crab—Phimochirus

operculatus.

5. Spotted porcelain crab—Porcellana

sayana.

6. Nimble spray or urchin crab—Percnon

gibbesi.

7. False arrow crab—Metoporhaphis

calcarata.

(m) Starfish—Any species of the Class

Asteroidea, except the Bahama starfish,

Oreaster reticulatus.

(n) Brittlestars—Any species of the Class

Ophiuroidea.

(o) Sea urchins—Any species of the Class

Echinoidea, except longspine urchin,

Diadema antillarum, and sand dollars and

sea biscuits, Order Clypeasteroida.

(p) Sea cucumbers—Any species of the

Class Holothuroidea.

(q) Sea lillies—Any species of the Class

Crinoidea.

(4) The following species of plants, as they

occur in waters of the state and in federal

Exclusive Economic Zone (EEZ) waters

adjacent to state waters, are hereby

designated as restricted species pursuant to

Section 370.01(20), Florida Statutes:

(a) Caulerpa—Any species of the Family

Caulerpaceae.

(b) Halimeda/mermaid’s fan/mermaid’s

shaving brush—Any species of the Family

Halimedaceae.

(c) Coralline red algae—Any species of the

Family Corallinaceae.

(5) For the purposes of Section

370.06(2)(d), Florida Statutes, the term

‘‘marine life species’’ is defined to mean

those species designated as restricted species

in subsections (2), (3), and (4) of this rule.

Specific Authority 370.01(20), 370.027(2),

370.06(2)(d), F.S. Law Implemented

370.01(20), 370.025, 370.027, 370.06(2)(d),

F.S. History—New 1–1–91, Amended 7–1–

92.

46–42.002 Definitions.—As used in this rule

chapter:

(1) ‘‘Barrier net,’’ also known as a ‘‘fence

net,’’ means a seine used beneath the surface

of the water by a diver to enclose and

concentrate tropical fish and which may be

made of either nylon or monofilament.

(2) ‘‘Drop net’’ means a small, usually

circular, net with weights attached along the

outer edge and a single float in the center,

used by a diver to enclose and concentrate

tropical fish.

(3) ‘‘Gorgonian,’’ except for purposes of

Rule 46–42.001, means any member of any

species of the Subclass Octocorallia, except

the species Gorgonia flabellum and Gorgonia

ventalina.

(4) ‘‘Hand held net’’ means a landing or dip

net as defined in Rule 46–4.002(4), except

that a portion of the bag may be constructed

of clear plastic material, rather than mesh.

(5) ‘‘Harvest’’ means the catching or taking

of a marine organism by any means

whatsoever, followed by a reduction of such

organism to possession. Marine organisms

that are caught but immediately returned to
16422 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

the water free, alive, and unharmed are not

harvested. In addition, temporary possession

of a marine animal for the purpose of

measuring it to determine compliance with

the minimum or maximum size requirements

of this chapter shall not constitute harvesting

such animal, provided that it is measured

immediately after taking, and immediately

returned to the water free, alive, and

unharmed if undersize or oversize.

(6) ‘‘Harvest for commercial purposes’’

means the taking or harvesting of any tropical

ornamental marine life species or tropical

ornamental marine plant for purposes of sale

or with intent to sell. The harvest of tropical

ornamental marine life species or tropical

ornamental marine plants in excess of the bag

limit shall constitute prima facie evidence of

intent to sell.

(7) ‘‘Land,’’ when used in connection with

the harvest of marine organisms, means the

physical act of bringing the harvested

organism ashore.

(8) ‘‘Live rock’’- see definition in section

929.3

(9) ‘‘Slurp gun’’ means a self-contained,

handheld device that captures tropical fish

by rapidly drawing seawater containing such

fish into a closed chamber.

(10) ‘‘Total length’’ means the length of a

fish as measured from the tip of the snout to

the tip of the tail.

(11) ‘‘Trawl’’ means a net in the form of an

elongated bag with the mouth kept open by

various means and fished by being towed or

dragged on the bottom. ‘‘Roller frame trawl’’

means a trawl with all of the following

features and specifications:

(a) A rectangular rigid frame to keep the

mouth of the trawl open while being towed.

(b) The lower horizontal beam of the frame

has rollers to allow the trawl to roll over the

bottom and any obstructions while being

towed.

(c) The trawl opening is shielded by a grid

of vertical bars spaced no more than 3 inches

apart.

(d) The trawl is towed by attaching a line

or towing cable to a tongue located above or

at the center of the upper horizontal beam of

the frame.

(e) The trawl has no doors attached to keep

the mouth of the trawl open.

(12) ‘‘Tropical fish’’ means any species

included in subsection (2) of Rule 46–42.001,

or any part thereof.

(13) ‘‘Tropical ornamental marine life

species’’ means any species included in

subsections (2) or (3) of Rule 46–42.001, or

any part thereof.

(14) ‘‘Tropical ornamental marine plant’’

means any species included in subsection (4)

of Rule 46–42.001.

Specific Authority 370.027(2), F.S. Law

Implemented 370.025, 370.027, F.S. History:

New 1–1–91, Amended 7–1–92.

46–42.003 Prohibition of Harvest:

Longspine Urchin, Bahama Starfish.—

No person shall harvest, possess while in

or on the waters of the state, or land any

of the following species:

(1) Longspine urchin, Diadema antillarum.

(2) Bahama starfish, Oreaster reticulatus.

Specific Authority 370.027(2), F.S. Law

Implemented 370.025, 370.027, F.S. History:

New 1–1–91, Amended 7–1–92.

46–42.0035 Live Landing and Live Well

Requirements.—

(1) Each person harvesting any tropical

ornamental marine life species or any

tropical ornamental marine plant shall land

such marine organism alive.

(2) Each person harvesting any tropical

ornamental marine life species or any

tropical ornamental marine plant shall have

aboard the vessel being used for such harvest

a continuously circulating live well or

aeration or oxygenation system of adequate

size and capacity to maintain such harvested

marine organisms in a healthy condition.

Specific Authority 370.027(2), F.S. Law

Implemented 370.025, 370.027, F.S. History:

New 7–1–92.

46–42.004 Size Limits.—

(1) Angelfishes.—

(a) No person harvesting for commercial

purposes shall harvest, possess while in or

on the waters of the state, or land any of the

following species of angelfish, of total length

less than that set forth below:

1. One-and-one-half (1 1/2) inches for:

a. Gray angelfish (Pomacanthus arcuatus).

b. French angelfish (Pomacanthus paru).

2. One-and-three-quarters (1 3/4) inches

for:

a. Blue angelfish (Holacanthus

bermudensis).

b. Queen angelfish (Holacanthus ciliaris).

3. Two (2) inches for rock beauty

(Holacanthus tricolor).

(b) No person shall harvest, possess while

in or on the waters of the state, or land any

angelfish (Family Pomacanthidae), of total

length greater than that specified below:

1. Ten (10) inches for angelfish, except

rock beauty (Holacanthus tricolor).

2. Six (6) inches for rock beauty.

(c) Except as provided herein, no person

shall purchase, sell, or exchange any

angelfish smaller than the limits specified in

paragraph (a) or larger than the limits

specified in paragraph (b). This prohibition

shall not apply to angelfish legally harvested

outside of state waters or federal Exclusive

Economic Zone (EEZ) waters adjacent to state

waters, which angelfish are entering Florida

in interstate or international commerce. The

burden shall be upon any person possessing

such angelfish for sale or exchange to

establish the chain of possession from the

initial transaction after harvest, by

appropriate receipt(s), bill(s) of sale, or bill(s)

of lading, and any customs receipts, and to

show that such angelfish originated from a

point outside the waters of the State of

Florida or federal Exclusive Economic Zone

(EEZ) waters adjacent to Florida waters and

entered the state in interstate or international

commerce. Failure to maintain such

documentation or to promptly produce same

at the request of any duly authorized law

enforcement officer shall constitute prima

facie evidence that such angelfish were

harvested from Florida waters or adjacent

EEZ waters for purposes of this paragraph.

(2) Butterflyfishes.—

(a) No person harvesting for commercial

purposes shall harvest, possess while in or

on the waters of the state, or land any

butterflyfish (Family Chaetodontidae) of total

length less than one (1) inch.

(b) No person shall harvest, possess while

in or on the waters of the state, or land any

butterflyfish of total length greater than 4

inches.

(3) Gobies—No person shall harvest,

possess while in or on the waters of the state,

or land any gobie (Family Gobiidae) of total

length greater than 2 inches.

(4) Jawfishes—No person shall harvest,

possess while in or on the waters of the state,

or land any jawfish (Family Opistognathidae)

of total length greater than 4 inches.

Specific Authority 370.027(2), F.S. Law

Implemented 370.025, 370.027, F.S. History:

New 1–1–91, Amended 7–1–92.

46–42.005 Bag limit.—

(1) Except as provided in Rule 46–42.006

or subsections (3) or (4) of this rule, no

person shall harvest, possess while in or on

the waters of the state, or land more than 20

individuals per day of tropical ornamental

marine life species, in any combination.

(2) Except as provided in Rule 46–42.006,

no person shall harvest, possess while in or

on the waters of the state, or land more than

one (1) gallon per day of tropical ornamental

marine plants, in any combination of species.

(3) Except as provided in Rule 46–42.006,

no person shall harvest, possess while in or

on the waters of the state, or land more than

5 angelfishes (Family Pomacanthidae) per

day. Each angelfish shall be counted for

purposes of the 20 individual bag limit

specified in subsection (1) of this rule.

(4)(a) Unless the season is closed pursuant

to paragraph (b), no person shall harvest,

possess while in or on the waters of the state,

or land more than 6 colonies per day of

gorgonians. Each colony of gorgonian or part

thereof shall be considered an individual of

the species for purposes of subsection (1) of

this rule and shall be counted for purposes

of the 20 individual bag limit specified

therein.

(b) If the harvest of gorgonians in federal

Exclusive Economic Zone (EEZ) waters

adjacent to state waters is closed to all

harvesters prior to the end of any calendar

year, the season for harvest of gorgonians in

state waters shall also close until the

following January 1, upon notice given by the

Executive Director of the Department of

Natural Resources, in the manner provided in

s. 120.52(16)(d), Florida Statutes.

Specific Authority 370.027(2), F.S. Law

Implemented 370.025, 370.027, F.S. History:

New 1–1–91.

46–42.006 Commercial Season, Harvest

Limits.—

(1) Except as provided in Rule 46–

42.008(7), no person shall harvest, possess

while in or on the waters of the state, or land

quantities of tropical ornamental marine life

species or tropical ornamental marine plants

in excess of the bag limits established in Rule

46–42.005 unless such person possesses a

valid saltwater products license with both a

marine life fishery endorsement and a

restricted species endorsement issued by the

Department of Natural Resources.

(2) Persons harvesting tropical ornamental

marine life species or tropical ornamental

marine plants for commercial purposes shall

have a season that begins on January 1 of
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16423

each year and continues through December

31 of the same year. These persons shall not

harvest, possess while in or on the waters of

the state, or land tropical ornamental marine

life species in excess of the following limits:

(a) A limit of 75 angelfish (Family

Pomacanthidae) per person per day or 150

angelfish per vessel per day, whichever is

less.

(b) A limit of 75 butterflyfishes (Family

Chaetodontidae) per vessel per day.

(c) There shall be no limits on the harvest

for commercial purposes of gorgonians

unless and until the season for all harvest of

gorgonians in federal Exclusive Economic

Zone (EEZ) waters adjacent to state waters is

closed. At such time, the season for harvest

of gorgonians in state waters shall also close

until the following January 1, upon notice

given by the Executive Director of the

Department of Natural Resources, in the

manner provided in Section 120.52(16)(d),

Florida Statutes.

(d) A limit of 200 giant Caribbean or ‘‘pinktipped’’ anemones (Condylactus gigantea)

per vessel per day.

Specific Authority 370.027(2), F.S. Law

Implemented 370.025, 370.027, F.S. History:

New 1–1–91, Amended 7–1–92.

46–42.007 Gear Specifications and

Prohibited Gear.

(1) The following types of gear shall be the

only types allowed for the harvest of any

tropical fish, whether from state waters or

from federal Exclusive Economic Zone (EEZ)

waters adjacent to state waters:

(a) Hand held net.

(b) Barrier net, with a mesh size not

exceeding 3/4 inch stretched mesh.

(c) Drop net, with a mesh size not

exceeding 3/4 inch stretched mesh.

(d) Slurp gun.

(e) Quinaldine may be used for the harvest

of tropical fish if the person using the

chemical or possessing the chemical in or on

the waters of the state meets each of the

following conditions:

1. The person also possesses and maintains

aboard any vessel used in the harvest of

tropical fish with quinaldine a special

activity license authorizing the use of

quinaldine, issued by the Division of Marine

Resources of the Department of Natural

Resources pursuant to Section 370.08(8),

Florida Statutes.

2. The quinaldine possessed or applied

while in or on the waters of the state is in

a diluted form of no more than 2%

concentration in solution with seawater.

Prior to dilution in seawater, quinaldine shall

only be mixed with isopropyl alcohol or

ethanol.

(f) A roller frame trawl operated by a

person possessing a valid live bait shrimping

license issued by the Department of Natural

Resources pursuant to Section 370.15,

Florida Statutes, if such tropical fish are

taken as an incidental bycatch of shrimp

lawfully harvested with such trawl.

(g) A trawl meeting the following

specifications used to collect live specimens

of the dwarf seahorse, Hippocampus

zosterae, if towed by a vessel no greater than

15 feet in length at no greater than idle speed:

1. The trawl opening shall be no larger

than 12 inches by 48 inches.

2. The trawl shall weigh no more than 5

pounds wet when weighed out of the water.

(2) This rule shall not be construed to

prohibit the use of any bag or container used

solely for storing collected specimens or the

use of a single blunt rod in conjunction with

any allowable gear, which rod meets each of

the following specifications:

(a) The rod shall be made of nonferrous

metal, fiberglass, or wood.

(b) The rod shall be no longer than 36

inches and have a diameter no greater than

3/4 inch at any point.

(3) No person shall harvest in or from state

waters any tropical fish by or with the use

of any gear other than those types specified

in subsection (1); provided, however, that

tropical fish harvested as an incidental

bycatch of other species lawfully harvested

for commercial purposes with other types of

gear shall not be deemed to be harvested in

violation of this rule, if the quantity of

tropical fish so harvested does not exceed the

bag limits established in Rule 46–42.005.

Specific Authority 370.027(2), F.S. Law

Implemented 370.025, 370.027, F.S. History:

New 1–1–91, Amended 7–1–92.

PART 937—[REMOVED AND

RESERVED]

2. Part 937 is removed and reserved.

[FR Doc. 95–7669 Filed 3–29–95; 8:45 am]

BILLING CODE 3510–12–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Chapter I

46 CFR Chapter I

[CGD 95–022]

Presidential Regulation Review

AGENCY: Coast Guard, DOT.

ACTION: Public meeting; request for

comments.

SUMMARY: The Coast Guard will conduct

a public meeting to provide the public

an opportunity to comment on Coast

Guard regulations and the regulatory

process. Comments are sought on

changes to Coast Guard regulations that

would make them less burdensome or

more flexible, including use of

negotiated rulemaking to effect changes,

and on improvements that could be

made to the enforcement process, while

still ensuring a high level of safety and

environmental protection.

DATES: The meeting will be held April

20, 1995, from 9 a.m. to 3 p.m. Written

material must be received not later than

May 1, 1995.

ADDRESSES: The meeting will be held in

room 2415, Coast Guard Headquarters,

2100 Second Street SW., Washington,

DC 20593–0001. Written comments may

be mailed to the Executive Secretary,

Marine Safety Council (G–LRA), U.S.

Coast Guard, 2100 Second Street, SW.,

Washington, DC 20593–0001, or may be

delivered to room 3406 at the same

address between 8 a.m. and 3 p.m.,

Monday through Friday, except Federal

holidays.

Comments will become part of this

docket and will be available for

inspection or copying at room 3406,

Coast Guard Headquarters, between 8

a.m. and 3 p.m., Monday through

Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr.

Bruce P. Novak, Regulations

Coordinator, Oil Pollution Act (OPA 90)

Staff, U.S. Coast Guard, 2100 Second

Street SW., Washington, DC 20593–

0001, telephone (202) 267–6819. This

telephone is equipped to record

messages on a 24-hour basis.

SUPPLEMENTARY INFORMATION: The

President recently announced a

Regulatory Reinvention initiative.

Under this initiative agencies are

directed to review their regulations;

improve their enforcement efforts to

focus on results, not punishment; meet

with the people affected by their

regulations; and substantially increase

their efforts to promote consensual

rulemaking.

In reviewing existing regulations the

Coast Guard will be focussing on the

following issues: (1) Identification of

obsolete regulations; (2) suggestions for

achieving the intended goal of

regulations that would be more efficient

and/or less intrusive; (3) identification

of private sector alternatives to

regulations such as market mechanisms,

that can achieve the objectives of

regulations; (4) could private business,

setting its own standards and being

subject to public accountability, do the

job as well; and (5) could State or local

government regulations be used in lieu

of Coast Guard regulation?

The Coast Guard is interested in

suggestions on areas where the goals of

our regulatory and enforcement

programs are not clear, and on

recommendations for improvements

that would focus on attaining defined

safety and environmental protection

results rather than mandating the use of

specific methods or equipment.

The Coast Guard would also like to

discuss techniques for developing

consensus rules. Negotiated rulemaking

is currently being offered as the primary

way of achieving consensus rulemaking.

The Coast Guard has used negotiated

rulemaking and has explored its use for

several rulemaking projects. While

negotiated rulemaking has the ability to