[Federal Register Volume 74, Number 146 (Friday, July 31, 2009)]
[Rules and Regulations]
[Pages 38092-38095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17825]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 0810241396-91118-02]
RIN 0648-AX34


Changes to the Florida Keys National Marine Sanctuary 
Regulations; Technical Corrections and Minor Substantive Changes

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

ACTION: Final rule.

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SUMMARY: NOAA publishes this final rule for certain regulations for the 
Florida Keys National Marine Sanctuary. This final rule makes technical 
corrections and modifications to several areas in the regulations. As 
part of these modifications, NOAA: amends the definition of coral to

[[Page 38093]]

specifically include the common sea fan, Gorgonia ventalina and Venus 
sea fan, Gorgonia flabellum, which are both important sanctuary 
resources and are currently managed under the category ``live rock''; 
specifies that ``touching'' coral is an injury and therefore, a 
prohibited activity in the FKNMS; amends the minimum distance between 
vessels and ``divers down'' flags to be 100 yards instead of 100 feet; 
clarifies that the prohibitions listed for Sanctuary Preservation Areas 
and Ecological Reserves also apply in Research-only Areas; and corrects 
several citations that were currently out of date.

DATES: The effective date of these regulations is August 31, 2009.

ADDRESSES: Sean Morton, Acting Superintendent, Florida Keys National 
Marine Sanctuary, 33 East Quay Road, Key West, FL 33040. This Federal 
Register document is also accessible via the Internet at http://sanctuaries.noaa.gov/management/fr_notices.html.

FOR FURTHER INFORMATION CONTACT: Sean Morton, Acting Superintendent, 
Florida Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL 
33040.

SUPPLEMENTARY INFORMATION:

I. Background

    In recognition of its important ecological role as a rich and 
unique marine environment with seagrass meadows, mangrove islands, and 
extensive living coral reefs, Congress designated the Florida Keys 
National Marine Sanctuary (FKNMS or Sanctuary) in 1990 (Pub. L. 101-
605). Through this designation, Congress directed NOAA and the State of 
Florida to jointly develop a comprehensive program to reduce the risk 
of damage to these living marine resources, reduce the pollution in the 
waters of the Florida Keys, and to protect and restore the water 
quality, coral reefs, and other living marine resources of the Florida 
Keys. As such, NOAA and the State of Florida worked together to create 
the management plan for the FKNMS. The FKNMS regulations implementing 
the designation were published on June 12, 1997 (62 FR 32154) and 
became effective on July 1, 1997.
    In the 18 years since designation, several regulatory issues have 
arisen that were not clearly addressed when the FKNMS regulations were 
adopted. In addition, there have been several changes to the Florida 
state laws during the same period and several technical errors 
identified in the current FKNMS regulations. With this final rule, NOAA 
updates the FKNMS regulations to make technical corrections and minor 
substantive clarifications; and codifies existing regulatory 
interpretation to address these issues and provide consistency with 
state law.

II. Summary of the Revisions

A. Changes to Sec.  922.162 and Sec.  922.163, Modification of Existing 
Regulations on Corals and Prohibited Activities

1. Definition of Coral (Sec.  922.162(a))
    The FKNMS regulations to protect corals and live rock include a 
list of activities that are prohibited, and include a definition of 
``coral'' and ``live rock'' to which these protections extend. NOAA now 
adds the common sea fan, Gorgonia ventalina, and Venus sea fan, 
Gorgonia flabellum, to the list of coral species in the definition of 
coral. These coral species were unintentionally omitted from the 
definition. NOAA also makes the list of corals non-exclusive in case 
additional coral species are identified in the future. NOAA also amends 
the definition of coral to correctly identify black corals as part of 
the subclass Ceriantipatharia. The subclass for black corals was 
incorrectly listed in the regulations as Hexacorallia.
2. Touching Coral (Sec.  922.163(a)(2))
    Touching coral or live rock injures the resource and has been 
historically interpreted as such by NOAA, charter dive and snorkeling 
operations, and enforcement personnel. When corals are touched or 
handled, the organisms are injured and could suffer mortality. This 
final rule clarifies and codifies NOAA's interpretation of injury to 
coral and live rock by adding ``touching'' coral to the list of 
prohibited activities. Clarifying that touching coral and live rock 
causes injury aids in sanctuary education and outreach efforts and 
helps public compliance with the prohibition.

B. Other Proposed Modifications and Technical Corrections to Section 
Sec.  922.163

1. Permit Live Rock Aquaculture (Sec.  922.163(a)(2)(i))
    Section 922.163(a)(2)(i) cited 50 CFR part 638 as the authority to 
permit certain types of live rock aquaculture under the Magnuson-
Stevens Act (MSA). However, that part of the CFR no longer exists. The 
authority to permit certain types of live rock aquaculture under the 
MSA is located at 50 CFR part 622. Therefore, NOAA makes a correction 
to the regulations to reflect the updated citation.
2. Dive Areas (Sec.  922.163(a)(5)(iii)(C))
    NOAA regulations regarding dive area restrictions are inconsistent 
with State of Florida regulations that specify the safe distance 
between vessels and ``divers down'' flags (Section 327.331 Florida 
Statutes: Divers; definitions; divers-down flag required). According to 
the State of Florida regulations, the safe distance between vessels and 
``divers down'' flags is 100 yards. In contrast, the FKNMS regulations 
indicated that the safe distance between vessels and ``divers down'' 
flags was 100 feet. In order to be consistent with the regulations 
issued by the State of Florida, NOAA changes the distance in the 
regulations at Sec.  922.163 (a)(5)(iii)(C) from ``100 feet'' to ``100 
yards.'' Greater consistency allows for improved public education and 
compliance. The change to regulations improves safety and reduces 
conflict between divers and vessel operations.
3. Marine Life Rule (Sec.  922.163(a)(12))
    NOAA makes a technical correction to its regulations to amend 
references to Florida's Marine Life Rule (MLR). NOAA is editing the 
language at Sec.  922.163(a)(12) to reference section 68B-42 of the 
Florida Administrative Code. NOAA is also removing Appendix VIII to 
Subpart P of Part 922 to eliminate the excerpts of the MLR from the 
FKNMS regulations.
4. Updating CFR References (Sec.  922.163)
    Sections 922.163(c) and 922.168 allowed NOAA to ``grandfather'' 
certain activities taking place in the Sanctuary when the regulations 
were issued in 1997. These sections are no longer applicable because 
the affected entities were allowed only 90 days from the designation of 
the Sanctuary (July 1, 1997) to notify the Director and request 
certification of any pre-existing and otherwise prohibited activities 
being conducted pursuant to a valid authorization in the Sanctuary. 
These provisions are no longer needed because the certification period 
expired on September 29, 1997. Because the regulations expired over ten 
years ago, NOAA deletes these sections from the FKNMS regulations, and 
renumbers the remaining sections accordingly. Because Sec.  922.168 is 
referenced in other sections of the FKNMS regulations, NOAA makes 
conforming changes to those affected sections. Finally, NOAA amends the 
language to the newly redesignated Sec.  922.163(c) to reflect Sec.  
922.49, which is the appropriate citation for authorization of current 
activities

[[Page 38094]]

C. Special-Use (Research-Only) Areas (Sec.  922.164(e)(1))

    Research-only Areas are a type of Special-use Area defined in the 
FKNMS regulations at Sec.  922.164(e)(1)(iii). Except for passage 
without interruption or for law enforcement purposes, access to 
research-only areas is restricted to scientific research or educational 
use specifically authorized by and conducted in accordance with the 
scope, purpose, terms and conditions of a sanctuary permit. Entities 
granted access to the research-only area by the permit may conduct only 
those activities described in the permit; all other activities within 
the research-only area are prohibited. However, the prohibition against 
conducting activities other than those allowed under the permit in 
research-only areas was not stated clearly in the FKNMS regulations. 
Therefore, NOAA amends Sec.  922.164(d) to add a new paragraph (e)(5) 
to the section to specify that the prohibited activities listed for 
Sanctuary Preservation Areas (SPAs) and Ecological Reserves (ERs) as 
listed at Sec.  922.164(d) also apply in Research-only Areas. This 
change provides better notice to the public and to permittees who 
receive access to conduct activities in Research-only Areas, and 
facilitates voluntary compliance as well as enforcement of sanctuary 
regulations.

III. Response to Comments

    On December 19, 2008, NOAA published a proposed rule that solicited 
comments on the changes made by this rule (73 FR 77557). NOAA received 
only one comment during the 30-day public comment period from December 
2008-January 2009. The comment expressed overwhelming support for the 
proposed regulatory changes anticipating benefits of increased resource 
protection, user safety and public awareness. The commentor 
specifically supported requiring a minimum distance of 100 yards 
between vessels and diver down flags because of improved safety to 
scuba divers. The commentor also supported the prohibition on touching 
coral due to it providing more documentation for diver operators to 
enforce this protection with their customers. On March 5, 2009, NOAA 
published an amendment to the proposed rule to correct an inaccurate 
reference to U.S. Coast Guard regulations, which served as a supporting 
basis for one of the proposed modifications. Due to this error, NOAA 
extended the comment period until March 26, 2009 (74 FR 9574). No 
additional comments were received during the 21-day comment period.

IV. Classification

A. National Environmental Policy Act

    The technical corrections and minor substantive changes do not have 
significant environmental impacts and are categorically excluded from 
the need to prepare an environmental assessment pursuant to the 
National Environmental Policy Act (NAO 216-6 Section 6.03c.3(i)).

B. Executive Order 12866: Regulatory Impact

    This rule has been determined to be not significant within the 
meaning of Executive Order 12866.

C. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 13132. The State of Florida was 
consulted during the promulgation of this rule.

D. Paperwork Reduction Act

    This rule does not contain any new or revisions to the existing 
information collection requirement that was approved by OMB (OMB 
Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501 et seq.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this rule does not have a significant 
economic impact on a substantial number of small entities. The factual 
basis for the certification was published in the proposed rule and is 
not repeated here. No comments were received regarding the economic 
impact of this rule. As a result, a final regulatory flexibility 
analysis is not required and none was prepared.

    Dated: July 21, 2009.
William Corso,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fish, 
Fisheries, Historic preservation, Intergovernmental relations, Marine 
resources, Monuments and memorials, Natural resources, Wildlife, 
Wildlife refuges, Wildlife management areas, Sanctuary preservation 
areas, Ecological reserves, Areas to be avoided, State of Florida, U.S. 
Coast Guard.


0
For the reasons above, amend title 15, part 922 of the Code of Federal 
Regulations as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

    Authority:  15 U.S.C. 1431 et seq.


0
2. Amend Sec.  922.162(a) by revising the definition for Coral to read 
as follows:


Sec.  922.162  Definitions.

    (a) * * *
    Coral means but is not limited to the corals of the Class Hydrozoa 
(stinging and hydrocorals); Class Anthozoa, Subclass Hexacorallia, 
Order Scleractinia (stony corals); Class Anthozoa, Subclass 
Ceriantipatharia, Order Antipatharia (black corals); and Class 
Anthozoa, Subclass Ocotocorallia, Order Gorgonacea, species Gorgonia 
ventalina and Gorgonia flabellum (sea fans).
* * * * *

0
3. Amend Sec.  922.163:
0
a. By revising paragraph (a)(2)(i);
0
b. By revising paragraph (a)(5)(iii)(C);
0
c. By revising paragraph (a)(12);
0
d. By removing paragraph (c) and redesignating paragraphs (d) through 
(h) as (c) through (g), respectively;
0
e. And by revising newly redesignated paragraph (c).
    The revisions read as follows:


Sec.  922.163  Prohibited activities--Sanctuary-wide.

    (a) * * *
    (2) * * *
    (i) Moving, removing, taking, harvesting, damaging, disturbing, 
touching, 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 622.
* * * * *
    (5) * * *
    (iii) * * *
    (C) Within 100 yards of the red and white ``divers down'' flag (or 
the blue and white ``alpha'' flag in Federal waters);
* * * * *
    (12) Harvest or possession of marine life species. Harvesting, 
possessing, or

[[Page 38095]]

landing any marine life species, or part thereof, within the Sanctuary, 
except in accordance with rules 68B-42 of the Florida Administrative 
Code, 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 section and in Sec.  
922.164, and any access and use restrictions imposed pursuant thereto, 
a person may conduct an activity specifically authorized by any valid 
Federal, State, or local lease, permit, license, approval, or other 
authorization issued after the effective date of these regulations, 
provided that the applicant complies with Sec.  922.49, the Director 
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 deems reasonably necessary 
to protect Sanctuary resources and qualities. Amendments, renewals and 
extensions of authorizations in existence on the effective date of 
these regulations constitute authorizations issued after the effective 
date of these regulations.
* * * * *

0
4. Amend Sec.  922.164 in paragraph (d) by revising the heading and 
paragraph (d)(1) introductory text; and in paragraph (e) by adding 
paragraph (e)(5) to read as follows:


Sec.  922.164  Additional activity regulations by Sanctuary area.

* * * * *
    (d) Ecological Reserves, Sanctuary Preservation Areas, and Special 
Use (Research only) Areas. (1) The following activities are prohibited 
within the Ecological Reserves described in Appendix IV to this 
subpart, within the Sanctuary Preservation Areas described in Appendix 
V to this subpart, and within the Special Use (Research only Areas) 
described in Appendix VI to this subpart:
* * * * *
    (e) * * *
    (5) In addition to paragraph (e)(3) of this section no person shall 
conduct activities listed in paragraph (d) of this section in 
``Research-only Areas.''

0
5. Remove and reserve Sec.  922.168.


Sec.  922.168  [Removed and reserved]

0
6. Remove Appendix VIII to Subpart P of Part 922--Marine Life Rule [As 
Excerpted from Chapter 46-42 of the Florida Administrative Code].

[FR Doc. E9-17825 Filed 7-30-09; 8:45 am]
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