[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Proposed Rules]
[Pages 77557-77560]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29832]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 0810241396-81397-01]
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: Proposed rule; request for public comments.
-----------------------------------------------------------------------
SUMMARY: NOAA proposes to amend the regulations implementing the
Florida Keys National Marine Sanctuary to make technical corrections
and modifications to clarify intent to several areas in the
regulations. As part of these modifications, NOAA proposes to amend the
definition of coral to 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;'' specify that ``touching'' coral is an injury
and therefore, a prohibited activity in the FKNMS; amend the safe
distance between vessels and ``divers down'' flags to be 100 yards
instead of 100 feet; clarify that the prohibitions listed for Sanctuary
Preservation Areas and Ecological Reserves also apply in Research-only
Areas; and Correct several citations that are currently out of date.
DATES: Comments on this proposed rule may be made until January 20,
2009.
ADDRESSES: Comments may be submitted by any of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Submit electronic comments via the Federal e-Rulemaking Portal.
Mail: David A. Score, Superintendent, Florida Keys
National Marine Sanctuary, 33 East Quay Road, Key West, FL 33040.
Instructions: All comments received are a part of the
public record and will be generally posted to http://
www.regulations.gov without change. All Personal Identifying
Information (for example, name, address, etc.) voluntarily submitted by
the commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
NOAA will accept anonymous comments (enter N/A in the required fields
if you wish to remain anonymous). Attachments to electronic comments
will be accepted in Microsoft Word, Excel, Wordperfect, or Adobe PDF
file formats only.
FOR FURTHER INFORMATION CONTACT: David A. Score, Superintendent,
Florida Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL
33040.
SUPPLEMENTARY INFORMATION:
Electronic Access
This Federal Register document is also accessible via the Internet
at http://www.access.gpo.gov/su-docs/aces/aces_1_40.html.
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 (FKINMS 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. NOAA is thus proposing to
update the FKNMS regulations to make technical corrections, minor
substantive clarifications, and codification of existing regulatory
interpretation to address these issues and provide consistency with
state law.
[[Page 77558]]
II. Summary of the Proposed Revisions
A. Changes to Section 922.162 and Section 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 is
concerned that the common sea fan, Gorgonia ventalina, and Venus sea
fan, Gorgoniaflabellum, are not currently listed as coral species in
the definition of coral. Although these species of Gorgonia are
actually coral, to date, they have been managed under the category of
live rock because live rock, defined as any living marine organism or
an assemblage thereof attached to a hard substrate, including dead
coral or rock, is not limited to identified species. NOAA proposes to
make a provision to explicitly include Gorgonia ventalina and
Gorgoniafiabellum in the list of protected corals in the FKNIMS
regulations and to make the list of corals non-exclusive in case
additional coral species are identified in the future.
In addition, the subclass for black corals was incorrectly listed
in the original regulations as Hexacorallia. The correct subclass
designation is Ceriantipatharia. The definition of coral would be
corrected to identify black corals as part of the subclass
Ceriantipatharia.
2. Touching Coral (Sec. 922.163(a)(2))
The act of touching coral or live rock is an injury to the resource
and has been historically interpreted as such by the FKNMS staff,
charter dive and snorkeling operations, and enforcement personnel. When
corals are touched or handled, the organisms are injured, and could
suffer mortality. However, touching is not specifically listed in the
injury prohibition in the FKNMS regulations. NOAA proposes to clarify
and codify the interpretation of injury to coral and live rock by
adding ``touching'' to the list of prohibited activities in the FKNMS.
NOAA believes that by clarifying that touching coral and live rock
causes injury aids in sanctuary education and outreach efforts to
inform the public that this activity is harmful to the coral, and will
help public compliance with the prohibition.
B. Other Proposed Modifications and Technical Corrections to Section
922.163
1. Permit Live Rock Aquaculture (Sec. 922.163(a)(2)(i))
Section 922.1 63(a)(2)(i) currently cites 50 CFR part 638 for
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 now located at 50 CFR part 622. Therefore, we propose
to make a correction to our regulatory citations to reflect this
change.
2. Dive Areas (Sec. 922.163(a)(5)(iii)(C))
NOAA regulations regarding dive area restrictions are inconsistent
with regulations that both the State of Florida (Chapter 27 of the 2003
Florida Statutes: 327.331 Divers; definitions; divers-down flag
required; obstruction to navigation of certain waters; penalty) and the
U.S. Coast Guard (USCG: Rule 27e--Vessel Engaged in Diving Operations)
use to specify the safe distance between vessels and ``divers down''
flags. The State of Florida and the USCG regulations both indicate that
the safe distance between vessels and ``divers down'' flags is 100
yards. In contrast, the FKNMS regulations currently indicate that the
safe distance between vessels and ``divers down'' flags is 100 feet. In
order to be consistent with the regulations issued by the State of
Florida and the USCG, we propose to change our regulations from ``100
feet'' in 922.163(a)(5)(iii)(C) to ``100 yards.'' Improved consistency
allows for better 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 proposes a few technical corrections related to Florida's
Marine Life Rule (MLR). NOAA proposes to edit the language at Sec.
922.163(a)(12) to update Florida Marine Life Rule citation as 68B-42,
F.A.C. NOAA also proposes to delete Appendix VIII to Subpart P of Part
922 to eliminate the excerpts of the MLR from the FKNMS regulations and
simply reference the MLR citation in the regulation.
4. Updating CFR References (Sec. 922.163)
Sections 922.163(c) and 922.168 are no longer applicable because
persons conducting any pre-existing otherwise prohibited activities
pursuant to a valid authorization in the Sanctuary area were given 90
days from the designation of the Sanctuary (July 1, 1997) to notify the
Director and request certification of the activity. Therefore, these
provisions are no longer needed because the certification period
expired over ten years ago. Therefore, NOAA proposes to delete these
sections from the FKNMS regulations, and to renumber the remaining
sections accordingly. Because section 922.168 is referenced in other
sections of the FKNMS regulations, we also propose to delete the
references to that section. Finally, NOAA proposes to amend the
language to the newly redesignated section 922.163(c) to reflect the
appropriate citation for authorization of current activities which is
Sec. 922.49.
C. Special-Use (Research-Only) Areas (Sec. 922.1 64(e)(1))
Research-only areas are a type of Special-use Area defined in the
FKNMS regulations at Sec. 922.1 64(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. In
addition, even if access is allowed by permit, only the activities
described in the permit may be conducted because all other activities
within the research-only area are prohibited. However, the prohibition
against conducting activities in research-only areas is not stated
clearly in the FKNMS regulations and, therefore, NOAA proposes to amend
Sec. 922.164(d) and 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 would
provide better notice to the public and to permittees who receive
access to conduct activities in Research-only Areas, and would
facilitate voluntary compliance as well as enforcement of sanctuary
regulations.
III. Classification
A. National Environmental Policy Act
The technical corrections and minor substantive changes to the
FKNMS regulations do not have significant environmental impacts and are
categorically excluded for the need to prepare an environmental
assessment pursuant to the National Environmental Policy Act (NAO 2 16-
6 Section 6.03c.3(i)).
[[Page 77559]]
B. Executive Order 12866: Regulatory Impact
This proposed 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 0MB (0MB
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 0MB 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 proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities.
The factual basis for this certification is as follows:
Making the technical corrections to correct citations and
obsolete sections of the regulations as proposed by this rule would not
substantively change the effect or impact from the current regulations;
Amending the definition of coral to specifically include
the common sea fan and Venus sea fan also do not impact small entities
because these species are already currently managed as sanctuary
resources under the category ``live rock;''
Clarifying and codifying that ``touching'' coral is an
injury and therefore, a prohibited activity in the FKNMS does not
change the practices of small business operators, such as dive or
snorkel charter boats, because they already interpret the regulation as
such and currently inform tourists that touching coral or live rock
while diving or snorkeling injures the organisms;
Amending the safe distance between vessels and ``divers
down'' flags to be 100 yards instead of 100 feet provides consistency
with regulations already in place by the U.S. Coast Guard and the State
of Florida and will therefore not change the current operations of
small business operators; and
Specifying that the prohibitions listed for Sanctuary
Preservation Areas and Ecological Reserves also apply in Research-only
Areas also does not affect small businesses because entering Research-
only Areas is already prohibited unless a permit is obtained from the
Sanctuary. The amendment is intended to clarify and promote enforcement
of specific activity violations.
IV. Request for Comments
NOAA requests comments on this proposed rule to make technical
corrections and amendments to the FKNMS regulations.
Dated: December 11, 2008.
John H. Dunnigan,
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.
For the reasons above, the National Oceanic and Atmospheric
Administration proposes to amend title 15, part 922 of the Code of
Federal Regulations as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
1. The authority citation for part 922 continues to read as
follows:
Authority: 15 U.S.C. 1431 et seq.
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 Scieractinia (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).
* * * * *
3. In Sec. 922.163 revise paragraphs (a)(2)(i), (a)(5)(iii)(C),
and (a)(12), remove paragraph (c), redesignate paragraphs (d) through
(h) as (c) through (g), and revise the newly redesignated paragraph (c)
to 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 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.
* * * * *
4. In Sec. 922.164, revise paragraph (d)(l) and add paragraph
(e)(5) to read as follows:
[[Page 77560]]
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.''
* * * * *
Sec. 922.168 [Removed and reserved]
5. Remove and reserve Sec. 922.168.
Appendix VIII to Subpart P of Part 922 [Removed]
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. E8-29832 Filed 12-18-08; 8:45 am]
BILLING CODE 3510-NK-M