[Federal Register Volume 77, Number 82 (Friday, April 27, 2012)]
[Rules and Regulations]
[Pages 25060-25070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10093]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 100222109-2171-02]
RIN 0648-AY35
Flower Garden Banks National Marine Sanctuary Regulations
AGENCIES: Office of National Marine Sanctuaries (ONMS), National
Oceanic and Atmospheric Administration (NOAA), Department of Commerce
(DOC).
ACTION: Final rule; Public availability of final management plan and
environmental assessment.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
amending the regulations for Flower Garden Banks National Marine
Sanctuary to improve vessel and user safety, protect sanctuary
resources from user impacts, clarify discharge language, and make other
technical changes and corrections.
DATES: Effective Date: May 29, 2012.
ADDRESSES: Copies of the final management plan (FMP) and environmental
assessment (EA) described in this rule and the Finding of No
Significant Impact (FONSI) are available upon request to Flower Garden
Banks National Marine Sanctuary, 4700 Avenue U, Building 216,
Galveston, TX 77551. The FMP and EA can also be viewed on the Web and
downloaded at http://flowergarden.noaa.gov.
FOR FURTHER INFORMATION CONTACT: George Schmahl, Superintendent, Flower
Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216,
Galveston, TX 77551. Email: fgbmanagementplan@noaa.gov. Phone: (409)
621-5151.
SUPPLEMENTARY INFORMATION:
I. Background
The National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate and
protect as a national marine sanctuary areas of the marine environment
that are of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archeological, educational, or esthetic qualities. Day-to-day
management of national marine sanctuaries has been delegated by the
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The
primary objective of the NMSA is to protect sanctuary resources, such
as coral reefs, and cultural resources, such as historical shipwrecks,
historic structures, and archaeological sites.
NOAA designated Flower Garden Banks National Marine Sanctuary
(FGBNMS or sanctuary) on December 5, 1991 (56 FR 63634). Congress
subsequently passed a law recognizing the designation in January 1992
(Pub. L. 102-251, Title I, Sec. 101). At the time, the Sanctuary
consisted of two areas known as East and West Flower Garden Banks (56
FR 63634). Congress later added Stetson Bank in 1996 (Pub. L. 104-283).
These three areas are located in the northwestern Gulf of Mexico
and are described as underwater hills formed by rising domes of ancient
salt. The sanctuary ranges in depth from 55 feet to nearly 500 feet,
providing conditions that support several distinct habitats, including
the northern-most coral reefs in the continental United States. These
and similar formations throughout the northern Gulf of Mexico provide
the foundation for essential habitat for a variety of species. The
combination of location and geology makes the sanctuary an extremely
productive and diverse ecosystem, but it also presents a unique set of
challenges for managing and protecting its natural wonders.
The FGBNMS regulations implementing the sanctuary were first
published on December 5, 1991 (56 FR 63634). Those regulations became
effective on January 18, 1994 (58 FR 65664). Among other things, the
regulations set forth the sanctuary boundaries, prohibit a relatively
narrow range of activities, and establish permit and certification
procedures. The regulations were revised in December 2000 to add
Stetson Bank to the boundary pursuant to Public Law 104-283 (65 FR
81176). NOAA amended the FGBNMS regulations again in 2001 (66 FR 58370)
to conform to the regulations adopted by the International Maritime
Organization and prohibit all anchoring in the sanctuary and restrict
mooring to vessels 100 feet (30.48 meters) or shorter.
The ONMS is required by NMSA Section 304(e) to periodically review
sanctuary management plans to ensure that sanctuary management
continues to best conserve, protect, and enhance the sanctuaries'
nationally significant living and cultural resources. Management plans
generally outline regulatory goals, describe boundaries, identify
staffing and budget needs, and set priorities and performance measures
for resource protection, research, and education programs. The plans
also guide the development of future management activities.
The FGBNMS management plan review process began in the fall of 2006
with the release of the Flower Garden Banks National Marine Sanctuary
State of the Sanctuary Report. At the outset, NOAA held a series of
public meetings to obtain information about the public's interests and
priorities for FGBNMS management (71 FR 52757; September 7, 2006). NOAA
then worked with the FGBNMS Advisory Council to prioritize issues and
develop appropriate management strategies and activities for the
preparation of a draft revised management plan. Based on this input,
NOAA prepared a revised management plan consisting of six action plans:
Sanctuary expansion, education and outreach, research and monitoring,
resource protection, visitor use, and operations and administration.
Because the resource protection and visitor use action plans include
several strategies that require changes to the FGBNMS regulations, NOAA
sought to amend the regulations for the sanctuary. Pursuant to the
National Environmental Policy Act, 42 U.S.C. 4331-4345 (NEPA), NOAA
also prepared a programmatic environmental assessment to analyze the
environmental impacts associated with the proposed management plan
revision and proposed rule. On October 22, 2010, the proposed rule,
draft management plan, and programmatic environmental assessment were
released for 90-day public review and comment (75 FR 65256).
NOAA is now amending the FGBNMS regulations to reflect these new
strategies. The changes address: Potential conflicts between vessels
and divers; protection of rays and whale sharks; and discharges and
deposits. The changes also eliminate outdated references to paragraphs
that no longer exist, update cross references to other paragraphs, and
establish definitions for various new terms adopted in this rulemaking.
II. Summary of the Revisions
This rulemaking:
1. Requires any vessel moored in the sanctuary to exhibit the blue
and white International Code flag ``A'' (``alpha'' dive flag) or red
and white ``sports diver'' flag whenever a SCUBA diver from that vessel
is in the water and
[[Page 25061]]
remove the ``alpha'' dive flag or ``sports diver'' flag after all
divers exit the water and return on board the vessel, consistent with
U.S. Coast Guard guidelines relating to sports diving as contained
within ``Special Notice to Mariners'' (00-208) for the Gulf of Mexico;
2. Clarifies and updates the prohibition on discharges or deposits
of any material or other matter;
3. Prohibits killing, injuring, attracting, touching, or disturbing
a ray or whale shark; and
4. Makes technical corrections.
A. Dive Flag Requirements
NOAA is requiring any vessel engaged in diving activity within the
FGBNMS to clearly exhibit the blue and white International Code flag
``A'' (``alpha'' dive flag) or the red and white ``sports diver'' flag
whenever a SCUBA diver from that vessel is in the water and remove the
``alpha'' dive flag or ``sports diver'' flag after all SCUBA divers
exit the water and return on board the vessel. This is consistent with
U.S. Coast Guard guidelines relating to sports diving as contained
within ``Special Notice to Mariners'' (00-208) for the Gulf of Mexico.
Specifically, the U.S. Coast Guard (USCG) requires any vessel in
federal waters engaged in diving operations to use an ``alpha'' dive
flag, when that vessel is of a size that makes it impracticable to
exhibit all lights and shapes prescribed in USCG regulations (33 CFR
83.27). However, the U.S. Coast Guard makes the distinction between
diving operations where divers are attached to the vessel (i.e. surface
supplied diving) vs. ``free swimming'' divers (i.e. SCUBA).
In a ``Special Notice to Mariners'' (00-2008) for the Gulf of
Mexico (``Special Notice to Mariners''), issued in 2009 (available
online at: http://www.uscg.mil/d8/waterways/marinfo.asp), the U.S.
Coast Guard encourages the use of the red and white ``sports diver''
flag for ``free swimming'' divers. The Special Notice to Mariners
states, ``The Alpha flag is to be flown on small vessels engaged in
diving operations whenever these vessels are restricted in their
ability to maneuver if divers are attached to the vessel. But in sports
diving, where divers are usually free swimming, the Alpha flag does not
have to be shown and the Coast Guard encourages the continued use of
the traditional sports diver flag. The distinction the Coast Guard
wants to make clear is: The Alpha flag is a navigational signal
intended to protect the vessel from collision. The sports diver flag is
an unofficial signal that, through custom, has come to be used to
protect the diver in the water. It is the responsibility of the
operator of a diving vessel to determine if his craft's movements are
restricted.''
NOAA acknowledges that Federal law and policy strongly favor
uniform rules wherever it is deemed practical and appropriate. Because
the entire sanctuary is within federal waters, NOAA proposes to make
the regulations consistent with USCG dive flag requirements.
B. General Discharge/Deposit Prohibition
NOAA is updating and amending the prohibition on discharges or
deposits (hereafter referred collectively as ``discharges'') in the
FGBNMS regulations by: (1) Clarifying that the prohibition applies to
discharges into the sanctuary as well as from within the sanctuary
boundaries; (2) modifying the exception for the discharge of fish
parts; (3) revising the exception for effluent from marine sanitation
devices (MSDs); (4) requiring that MSDs be locked; (5) eliminating the
word ``biodegradable'' and replacing that term with a more clear
standard; and (6) clarifying the scope of the exception for discharges
associated with ``routine vessel operation.''
1. Clarification of a ``direct discharge.'' Since the sanctuary was
designated in 1992, NOAA has prohibited discharges or deposits of
material or other matter. In doing so, NOAA's regulations have
differentiated between discharges that originate from within the
boundaries of the sanctuary (hereafter referred to as ``direct
discharges'') and those that originate from beyond the sanctuary
boundaries, enter the sanctuary, and injure sanctuary resources. The
primary difference between these two classes is that proof of injury is
required with respect to the latter class for there to be a violation
whereas no such proof is required for a violation arising from a direct
discharge.
To clarify the intended application of the direct discharge
prohibition and to ensure consistency among the regulations for other
sanctuaries, this rule clarifies that the prohibition on discharging or
depositing any material or other matter applies to discharges or
deposits from within ``or into'' the sanctuary.
By adding the words ``or into'', NOAA is clarifying that the
prohibition does not only apply to discharges originating in the waters
of the sanctuary, the prohibition also applies, for example, to
immediate discharges and deposits into the sanctuary from aircraft,
when waste is thrown into the sanctuary from a vessel, or from other
similar activities.
This regulatory change will not have an effect on the existing oil
and gas activities in the vicinity of the sanctuary. For example, the
two existing platforms closest to the sanctuary are: (a) High Island
384, located 0.26 miles (1373 feet) from the boundary of West Flower
Bank; and (b) High Island 376, located 0.22 miles (1162 feet) from East
Flower Garden Bank. Because of the distance between those platforms and
the sanctuary boundaries, NOAA does not foresee that either platform
would be impacted by the new rule because NOAA does not envision
conditions that would enable a discharge from these platforms to be
considered a direct discharge under sanctuary regulations and
consequently violate 15 CFR 922.122(a)(3)(i).
The purpose of the regulation is not to create new restrictions on
otherwise lawful activities occurring beyond, but adjacent to, the
sanctuary boundaries. Rather, NOAA's goal is to ensure consistency
among the regulations of other sanctuaries and clarify the discharge
and deposit regulations. Discharges or deposits originating from beyond
the sanctuary would still remain subject to the regulations at Sec.
922.122(a)(3)(ii), which requires proof of entry into the sanctuary and
injury to sanctuary resources to constitute a violation.
In the event NOAA decides to pursue sanctuary expansion (as
described in the final management plan for the sanctuary, published
concurrently with this rulemaking), NOAA will consider the need to
revise this regulation and consult with stakeholders, including the oil
and gas industry, to ensure adjacent activities are not unnecessarily
affected.
2. Exception for discharges of fish parts. The rule also clarifies
that the exception to the prohibition on discharges or deposits
(hereafter referred collectively as ``discharges'') for fish, fish
parts, or chumming materials (bait) applies only to discharges made
during the conduct of fishing with conventional hook and line gear
within the sanctuary. This rule prevents the dumping of fish, fish
parts, or chumming materials at all other times except for during
fishing with conventional hook and line gear within the sanctuary.
3. Exception for MSD effluent. This rule clarifies that the
exception for discharge or deposit of vessel waste generated by a
federally approved marine sanitation device was not intended to allow
the discharge of untreated sewage (e.g., discharges from Type III MSDs)
into the sanctuary. Type
[[Page 25062]]
I and Type II MSDs treat sewage, whereas Type III MSDs store sewage
until it is removed at designated pump-out stations on shore or
discharged at sea. Therefore, NOAA is modifying the FGBNMS regulations
to clarify that only discharges of effluent from properly functioning
Type I or II MSDs are allowed in the sanctuary.
4. Locking MSDs. In addition, NOAA is requiring all MSDs be locked
in a manner that prevents discharge or deposit of untreated sewage. The
requirement that MSDs be locked (e.g., locking closed an overboard
discharge valve) helps prevent both intentional and unintentional
overboard discharges of untreated sewage within the sanctuary.
5. Standard for excepted discharges or deposits. The revised
regulations would only allow a vessel to discharge clean effluent from
a Type I or Type II MSD. The use of the word ``clean'' would replace
the use of the word ``biodegradable'' in the regulations. Under the
revised regulations, ``clean'' means not containing detectable levels
of harmful matter; and ``harmful matter'' means any substance, or
combination of substances, that because of quantity, concentration, or
physical, chemical, or infectious characteristics may pose a present or
potential threat to sanctuary resources or qualities, including but not
limited to: Fishing nets, fishing line, hooks, fuel, oil, and those
contaminants (regardless of quantity) listed at 40 CFR 302.4 (Sec.
922.131) pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended (42 U.S.C 9601(14)).
NOAA decided to remove the term ``biodegradable'' from the
regulations because NOAA has determined that the term has no recognized
legal definition, and products are labeled ``biodegradable'' without
reference to a fixed set of standards. NOAA could define the term;
however, it would not be reasonable to expect a vessel operator to know
which of the wide spectrum of products labeled as ``biodegradable''
meet NOAA's definition. Defining the terms ``clean'' and ``harmful
matter'' provide vessel operators with a definition of what is
prohibited, and focuses on the types of contaminants that pose the
greatest threat to water quality within the sanctuary.
6. Scope of discharges or deposits from routine vessel operations.
NOAA is replacing the exception for ``water generated from routine
vessel operations'' with an exception for clean deck wash down, clean
cooling water, and clean bilge water provided they are free of
detectable levels of ``harmful matter'' as defined by the regulations.
This facilitates compliance by clearly identifying what types of
discharges from routine vessel operations are allowed, and focusing on
those contaminants that pose the greatest threat to water quality. The
requirement also makes the regulations consistent with recent
requirements governing other national marine sanctuaries.
C. Killing, Injuring, Attracting, Touching or Disturbing a Ray or Whale
Shark
Approximately 20 species of sharks and rays have been documented at
the Flower Garden and Stetson Banks; some are seasonal, and others
frequent the sanctuary year-round. During the winter months, spotted
eagle rays (Aetobatus narinari) visit all three banks. The reason for
the seasonal visits is unclear, but the occurrence is quite
predictable. Summer months usually bring whale sharks (Rhincodon
typus). These filter-feeding creatures can reach over 30 feet (9
meters) in length. Manta rays (Manta birostris) and the very similar-
looking mobula rays (Mobula spp.) are regular visitors to the sanctuary
throughout the year. At least 58 different individual manta rays have
been documented and identified by distinctive markings on their
undersides. Recent acoustic tracking of the manta rays has revealed
that the mantas are moving between the three banks of the sanctuary.
Whale sharks and rays are transient creatures and migrate between
areas for feeding and mating. The sanctuary is a place where rays and
whale sharks should be protected from human-induced death, injury, or
other harm. Humans can physically harm rays and whale sharks by
attracting, touching, riding, or pursuing these animals. Their external
sensory systems are affected by unnatural activation, which has unknown
consequences on their ability to sense their environment. These animals
may actively avoid diver interaction by changing direction or diving,
and may exhibit violent shuddering. When these responses occur, rays
and whale sharks expend energy in ways other than feeding and other
natural activities, which can adversely affect their overall health. In
addition, people can injure the skin of these animals through touching,
and can expose the animals to other potential injuries. Finally,
attracting rays and whale sharks changes their behavior and may
negatively impact their health. As an example of how rays have been
affected by divers, stingrays in the Cayman Islands have developed
shoaling behavior and altered feeding habits, as well as exhibit skin
abrasions from handling. Scientific citations regarding the concerns
and examples here can be found in the references section of the
environmental assessment (see ADDRESSES for instructions on obtaining a
copy).
Rays and whale sharks are not listed under the Endangered Species
Act (ESA). These species are also not designated as depleted under the
Marine Mammal Protection Act (MMPA) because they are not mammals.
Therefore, they are not protected in the same manner as threatened or
endangered species protected under the ESA or depleted marine mammals
protected under the MMPA. With this final rule, NOAA is strengthening
the protection of rays and whale sharks from harm (or likelihood
thereof) in the sanctuary by prohibiting killing, injuring, attracting,
touching, or disturbing these animals. The intent is to prevent
intentional human interaction with rays and whale sharks in such a
manner that the animals change direction, dive away from human
interaction, shudder, or have any other adverse behavioral or physical
reaction. An exception to this new prohibition is made for incidental
by-catch of a ray or whale shark when using conventional hook-and-line
fishing gear. In order to make this new prohibition as clear as
possible, NOAA is adding definitions for the terms ``attract or
attracting'' and ``disturb or disturbing a ray or whale shark'' in
Sec. 922.121.
D. Technical Corrections
NOAA is making a technical correction to eliminate the references
in the regulations to Sec. 922.122(a)(4), because that clause no
longer exists. This subparagraph references a specific prohibition on
vessel anchoring activities that was eliminated from the FGBNMS
regulations in 2001 (66 FR 58370).
NOAA also is updating cross references in Sec. 922.122(c) through
(g) and updating cross references in Sec. 922.123(a) and (c) that may
change as a result of the re-designation of paragraphs associated with
this rule.
Last, NOAA is amending the regulations to update the sanctuary
office address in Sec. 922.123(b). The sanctuary office moved from
Bryan, TX to Galveston, TX in 2006, and the regulations were not
amended immediately following the move.
III. Differences Between the Proposed Rule and the Final Rule
The Administrative Procedure Act (APA) notice-and-comment process
(5 U.S.C. 553) contemplates that changes may be made to the proposed
rule without triggering an additional round
[[Page 25063]]
of public notice and comment so long as the changes are ``in character
with the original scheme'' and are of a type that could have been
reasonably anticipated by the public (i.e., a logical outgrowth of the
proposal or comments received) (Foss v. National Marine Fisheries
Service, 161 F.3d 584, 591 (9th Cir. 1998); Chemical Mfrs Ass'n v.
United States Environmental Protection Agency, 870 F.2d 177 (5th Cir.
1989). In addition, the APA provides exceptions to notice and comment
rulemaking for ``(A) interpretive rules, general statements of policy,
or rules of agency organization, procedure, or practice; or (B) when
the agency for good cause finds * * * that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest'' (5 U.S.C. 553(b)). The proposed rule text published in
October 2010 (75 FR 65256) and this final rule, including the bases for
changes, are summarized as follows:
A. NOAA is amending the ``alpha'' dive flag requirement (proposed
as Sec. 922.122(a)(2)(iii)). The proposed rule published in October
2010 only required the use of the ``alpha'' flag (75 FR 65256). In this
final rule, NOAA is requiring any vessel engaged in diving activity
within the FGBNMS to clearly exhibit the blue and white International
Code flag ``A'' (``alpha'' dive flag) or the red and white ``sports
diver'' flag whenever a SCUBA diver from that vessel is in the water
and remove the ``alpha'' dive flag or ``sports diver'' flag once all
SCUBA divers exit the water and return on board the vessel. This is
consistent with U.S. Coast Guard guidelines relating to sports diving
as contained within ``Special Notice to Mariners'' (00-208) for the
Gulf of Mexico. NOAA is making this change in the final rule to ensure
consistency with the U.S. Coast Guard regulations and the Special
Notice to Mariners (available online at: http://www.uscg.mil/d8/waterways/marinfo.asp). NOAA views the change in the final rule as a
logical outgrowth of the originally proposed rule.
B. NOAA is amending the definition for ``disturb or disturbing a
ray or whale shark''. NOAA received many public comments requesting a
change to the definition proposed in the Notice of Proposed Rulemaking
published in 75 FR 65256. The public was mainly concerned that under
the definition (as originally proposed) a violation could arise if the
animal initiated interaction or if the animal exhibited some natural
behavioral traits (like shuddering) without provocation. That was not
NOAA's intent. Therefore, in response to these comments, the final rule
clarifies that behavioral responses by the animal produced by passive
interaction with a human does not constitute a violation of the
regulations. NOAA is only concerned with active human conduct that
disturbs a ray or whale shark, through (but not limited to) touching,
handling, riding, pursuing, chasing, hunting, or restraining the
animal.
C. NOAA is creating a new exception for the prohibition on killing,
injuring, attracting, touching or disturbing a ray or whale shark.
Public comments received by NOAA indicate that some small rays such as
sting rays can sometimes be caught as by-catch by lawful hook-and-line
fishing. NOAA's intention with this new regulation was not to impose
restrictions on users of conventional hook and line gear, as the
species of rays and whale sharks NOAA is concerned about protecting
would not be likely by-catch of hook and line recreational fishing. By
adding an exception for the use of conventional hook and line gear,
NOAA clarifies that the prohibition on killing, injuring, attracting,
touching or disturbing rays and whale sharks does not apply to
incidental by-catch during lawful fishing in the sanctuary.
D. NOAA is amending the regulations to update the sanctuary office
address in Sec. 922.123(b). The sanctuary office moved from Bryan, TX
to Galveston, TX in 2006, and the regulations were not amended
immediately following the move. NOAA finds good cause to change the
address because the public must be able to contact the office for
permit applications and other reasons, and the modification is exempt
from normal notice and comment procedures since it is a minor technical
change affecting current agency organization or practice.
E. NOAA is amending Sec. 922.122(a)(4) to clarify that the only
exception to the prohibition on drilling into, dredging or otherwise
altering the seabed is for activities conducted in areas of the
sanctuary outside the no-activity zones and incidental to exploration
for, development of, or production of oil or gas in those areas (Sec.
922.122(c)). The original regulatory language provided a broad
exception for anchoring; however, this was rendered obsolete with the
promulgation of the anchoring prohibition in 2001 (66 FR 58370). Since
the only anchoring currently allowed in FGBNMS pertains to Sec.
922.122(c), NOAA finds good cause to clarify the regulations. NOAA
views this as a technical change and logical outgrowth of the 2001
rulemaking. This change does not alter the intent of the regulations,
nor is it expected to substantially impact any users of the sanctuary
since the existing anchoring prohibition in FGBNMS has been in effect
for more than a decade; therefore, no changes were made to the
environmental assessment associated with this rulemaking and additional
notice and comment is not required under the APA.
For ease of reference and understanding, NOAA is reprinting section
922.122 as it would read in its entirety as amended, and section
922.123(a) through (c), rather than printing individual, editorial
instructions to the Federal Register. Except as noted above, there are
no additional changes to the sections from the proposed rule.
IV. Responses to Public Comments
The National Oceanic and Atmospheric Administration (NOAA)
conducted two public hearings to gather input on the FGBNMS draft
management plan (DMP)/programmatic environmental assessment (PEA) and
proposed rule during the public comment period from October 22, 2010 to
January 20, 2011. All written and verbal comments received during the
public comment period were compiled and grouped into eight categories.
Similar comments from multiple submissions have been treated as one
comment for purposes of response. NOAA considered all comments
(including editorial comments on the DMP/PEA) and, where appropriate,
made changes that are reflected in this final rule, the final
management plan (FMP), and the programmatic environmental assessment
(EA). Substantive comments received are summarized below, followed by
NOAA's response.
Sanctuary Expansion
Comment 1. Sanctuary expansion is not necessary because the
proposed reefs and banks have relatively low visitation by scuba divers
and fishers compared to other sanctuaries. Are there other ways to
protect additional reefs and banks in the Gulf of Mexico without
sanctuary expansion?
The National Marine Sanctuaries Act (NMSA) authorizes the Secretary
of Commerce to designate and protect areas of the marine environment
with special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archeological, educational, or esthetic qualities as national marine
sanctuaries. It is this concept of special places that persuades us to
protect and enhance certain marine areas, even before impacts occur or
without immediate
[[Page 25064]]
pressures on the resource. Sanctuary expansion would allow other reefs
and banks in the northwestern Gulf of Mexico to benefit from
comprehensive management, something currently not available by other
means.
The sanctuary expansion action plan does not make any determination
regarding the various options for expanding the sanctuary or
regulations within expansion areas. The action plan only lays out the
framework for conducting a thorough environmental review required by
NEPA and NMSA. Alteration to the boundaries of FGBNMS (or expanding the
sanctuary) would necessitate a change to the FGBNMS terms of
designation, regulations, and coordinates. Should NOAA decide to pursue
boundary expansion, NOAA would prepare a draft environmental impact
statement (DEIS) and conduct extensive public review.
Other means of protecting additional reefs and banks in the Gulf of
Mexico include, for example, No Activity Zones managed by the Bureau of
Ocean Energy Management (BOEM) or Habitat Areas of Particular Concern
managed by NOAA's National Marine Fisheries Service. These kinds of
conservation measures have specific purposes and are not designed to
address the need to protect an ecosystem from a holistic perspective.
Comment 2. The public should not have limited access to and use of
potential new sanctuary areas. Regulations in any new sanctuary areas
should not prohibit fishing and diving.
This final rule does not expand any area of the Sanctuary. NOAA has
yet to determine potential areas to be added to the sanctuary or what
regulations are needed in possible new expansion areas. The management
plan states that new areas would be subject to the regulations of the
current sanctuary, which generally allow fishing and diving; however,
site specific regulations may be appropriate. The current FGBNMS
management plan would apply or a new management plan would be written
and applied to any new areas. Should NOAA decide to pursue boundary
expansion, NOAA would prepare a DEIS and conduct extensive public
review.
Comment 3. NOAA has not conducted socioeconomic studies to support
sanctuary expansion or research only areas.
Activity 1.1 of the sanctuary expansion action plan in the final
management plan states that NOAA will develop a DEIS to evaluate
alternatives for incorporating additional reefs and banks in the
northwestern Gulf of Mexico into FGBNMS. The DEIS will discuss the
consequences of sanctuary expansion on the human environment or the
socioeconomic resources of the region. The socioeconomic impact
analysis will focus on the industries/user groups that depend on the
resources of the current FGBNMS and the banks currently being evaluated
for inclusion in FGBNMS through sanctuary expansion.
Comment 4. If sanctuary expansion occurs, NOAA should install
mooring buoys at all new sites to enhance fishing and diving activities
as anchoring would be prohibited.
NOAA agrees that mooring buoys are a useful tool to promote
sanctuary use that is compatible with resource protection. Activity 3.1
of the visitor use action plan in the final management plan proposes to
create a mooring buoy plan that will evaluate the need for additional
buoys, both in the existing sanctuary and in the event any new areas
are considered in a sanctuary expansion process. The sanctuary
expansion action plan does not make any determination regarding the
various options for expanding the sanctuary or regulations within
expansion areas. The action plan only lays out the framework for
conducting a thorough environmental review required by NEPA and NMSA.
Alteration to the boundaries of FGBNMS (or expanding the sanctuary)
would necessitate a change to the FGBNMS terms of designation,
regulations, and coordinates. Should NOAA decide to pursue boundary
expansion, NOAA will prepare a draft environmental impact statement
(DEIS) and conduct extensive public review. NOAA has yet to determine
the areas to be potentially added to the sanctuary or what regulations
are needed in possible new expansion areas. The management plan states
that as an extension of the current sanctuary, it is assumed that if
any areas are considered for future addition those new areas will be
subject to the regulations of the current sanctuary; however, site
specific regulations may be appropriate. The current FGBNMS management
plan would apply or a new management plan would be written and applied
to any new areas. Should NOAA decide to pursue boundary expansion, NOAA
would prepare a DEIS and conduct extensive public review.
Comment 5. Designating new reefs and banks in the northwestern Gulf
of Mexico as sanctuaries will increase visibility and activity by
fishers and divers leading to increased impacts to the resources.
Similarly, too much information about the habitats of the sanctuary and
surrounding areas, and fishing sites, is provided on the FGBNMS Web
site.
The criteria for evaluation of potential new sites were based on
the primary NMSA mandate of resource protection. The benefits of a
comprehensive management approach offered by sanctuary designation
could outweigh any risk that might exist from increased visibility and
activity by fishers and divers. Should NOAA decide to pursue boundary
expansion, NOAA will prepare a DEIS that would include an analysis of
the potential impacts of increased visibility and visitation.
Research results and information provided on both the FGBNMS Web
site and the National Coastal Data Development Center (NCDDC) Web site
are in the public domain and intended for use by sanctuary users and
constituents. One of the purposes and policies of the NMSA is to
enhance public awareness, understanding, appreciation, and wise and
sustainable use of the marine environment, and the natural, historical,
cultural, and archeological resources of the National Marine Sanctuary
System. NOAA's goal is to make people aware of their impacts and give
them the knowledge and skills to become good stewards of the sanctuary
and the regional marine environment.
Fishing
Comment 6. NOAA's gear prohibition for fish harvesting in FGBNMS
should be reconsidered. The impact of spearfishing on the sanctuary
environment is minimal. What research has been done to support the
current prohibition and why is spearfishing not allowed in the
sanctuary?
NOAA is not proposing to change regulations associated with
spearfishing, or any other type of fishing, at this time. If the
boundary of FGBNMS is expanded, however, any regulations related to
fishing, including spearfishing, would be evaluated through a public
process for each new area under consideration.
Spearfishing has been prohibited in FGBNMS since its designation in
1992. The prohibition was due primarily to concerns raised by studies
that demonstrated that spearfishing could be detrimental to fisheries
resources through the selective removal of large predator species.
Research conducted since sanctuary designation supports this concern
and reinforces the rationale for a spearfishing prohibition. A summary
of this research is available on the sanctuary Web site (http://flowergarden.noaa.gov).
Comment 7. NOAA should allow boaters to carry stowed spearguns on
[[Page 25065]]
board vessels in FGBNMS to facilitate spearfishing in areas outside of
the sanctuary before or after a sanctuary visit.
Sanctuary regulations prohibit the possession of any type of
fishing equipment (including spearguns), except for conventional hook
and line gear, unless passing through without interruption. The reason
for this restriction is related to the ability to reasonably enforce
the regulation. It is difficult to enforce a spearfishing prohibition
if the possession of spearfishing equipment is allowed in the
sanctuary. If only the use of such equipment is prohibited, it would
require that direct observation of spearfishing activity be made by a
law enforcement entity. In a remote location such as FGBNMS, where the
activity would occur 70-100 feet below the surface, enforcement by
observation only would be nearly impossible. The existing regulation
has been in effect since designation 20 years ago, and it has not
resulted in undue restriction on visitor use and activity. Therefore,
the regulation will remain as written. If expansion is considered in
future analysis, when regulations are considered for any potential new
areas to be added to the sanctuary, the use and possession of spearguns
would be evaluated on an individual area basis.
Comment 8. NOAA should limit the use of inappropriate fishing gear
to protect sanctuary resources or prohibit fishing altogether in the
existing sanctuary.
National marine sanctuaries are managed by NOAA to protect and
conserve their resources, and to allow uses that are compatible with
resource protection. Current FGBNMS regulations limit fishing within
the sanctuary to conventional hook and line gear. Fishing by use of any
other gear, including spear guns, is prohibited.
During the scoping process for the revised management plan and in
response to the DMP, many commenters asked NOAA to consider closing all
or portions of the FGBNMS to fishing. Although fishing pressure is
perceived to be moderate, the impact on local fish populations is not
well known at this time. The spatial resolution of fishing data is
currently not precise enough to quantitatively assess fishing pressure
within the sanctuary. The research and monitoring action plan and the
visitor use action plan in the final management plan lay out strategies
to obtain information that would allow NOAA to evaluate compatible uses
of the sanctuary. In addition, Activity 2.3 of the resource protection
action plan addresses the need for additional measures to protect
resources from impacts associated with inappropriate fishing gear.
Comment 9. NOAA has not presented evidence that further fishing
restrictions are needed or that fish populations are declining. Why are
fishing and diving impact studies necessary?
At this time, NOAA is not proposing any regulations that would
further restrict fishing activity.
It is well documented that most fishery stocks for which there are
stock assessments in the northern Gulf of Mexico have undergone or are
still undergoing overfishing. Many species, such as snapper, some
species of grouper, amberjack and others have declined significantly in
the Gulf of Mexico since records have been kept. Although there are
recent data to suggest that some species (such as red snapper) have
shown limited recovery in population size, they are still much lower
than historical levels. It is logical to assume that fish populations
within FGBNMS have also been similarly affected by the general decline
of fish stocks throughout the Gulf of Mexico. However, the data that do
exist, such as fish landing survey information, have not been collected
at a scale to adequately evaluate impacts on an area the size of the
sanctuary. Therefore, NOAA believes that the fishing and diving impact
studies would provide valuable information for the management of the
sanctuary.
Diving
Comment 10. Through multiple DMP proposals, NOAA is pursuing
policies that seem to discourage recreational diving. The recreational
dive community should be embraced and encouraged to assist with
resource protection.
ONMS embraces and welcomes diving at FGBNMS. The management
strategies are not intended to discourage recreational diving within
the sanctuary. Rather, NOAA is protecting the resource while enhancing
visitor safety. Traditionally, recreational divers have been among the
strongest supporters of the sanctuary--from leading the effort for
sanctuary designation, to serving as naturalists onboard charter boats,
to reporting observations when visiting the sanctuary. NOAA intends
that the changes in sanctuary management will not diminish the
recreational diver's experience. By working together with sanctuary
users, especially recreational divers, NOAA can more effectively meet
its goals and protect sanctuary resources.
Comment 11. NOAA should adopt the ``Blue Star'' program for FGBNMS.
The Blue Star program was established by Florida Keys National
Marine Sanctuary management to recognize charter boat operators who
promote responsible, sustainable, and educational diving and snorkeling
practices. An activity to examine the implementation of the Blue Star
program for FGBNMS was added to the Education and Outreach Action Plan
(activity 3.3).
Ray/Whale Shark Regulations
Comment 12. The proposed regulation prohibiting the disturbance of
whale sharks and all species of rays is too broad. The prohibition
should only apply to manta rays and whale sharks.
There are a variety of ray species that utilize the habitats within
FGBNMS. In addition to the giant manta, there are other pelagic (free
swimming) ray species commonly observed, including at least two species
of mobula (devil) rays, the spotted eagle ray, and the cownose ray.
Several species of bottom-dwelling rays also live within the sanctuary,
including the southern stingray and roughtail stingray. NOAA believes
that all species of rays should be included in the regulation that
prohibits disturbance. It has been demonstrated in other areas of the
world that stingrays and other rays can be subject to negative
disturbance from visitor activities. See the programmatic environmental
assessment for additional detail and references regarding impacts on
ray species in the FGBNMS.
Comment 13. The proposed regulation to protect rays and whale
sharks relies on a definition of ``disturb or disturbing a ray or whale
shark'' that includes any activity that ``has the potential to
disrupt.'' NOAA should revise this catch-all phrase in the definition
which would potentially place every sanctuary visitor in violation of
the proposed rule.
NOAA agrees. The definition has been revised to address this
concern and additional information has been added to the preamble.
Comment 14. Using scientific studies from other locations (e.g. the
Cayman Islands) to support regulations at FGBNMS is inappropriate
because the interactions between sanctuary visitors and wildlife are
different at the sanctuary than elsewhere. FGBNMS does not have heavy
visitor use like other areas.
The purpose of the reference to the Cayman Island study on
stingrays was to provide an example of an area that is experiencing
visitor use that may be having potentially detrimental impacts on a
species of ray. It is not anticipated
[[Page 25066]]
or suggested that this particular issue is or will ever be a problem at
FGBNMS. It is relevant, however, because stingrays are included in the
proposed regulation for FGBNMS, and it clearly demonstrates that
intense visitor activity can affect the behavior and health of a ray
species, requiring management action to control potential impacts.
Comment 15. NOAA has not demonstrated that divers are causing
physical harm to rays and whale sharks. The proposed regulation is
excessive.
NOAA has supplemented the programmatic environmental assessment
with additional information and references on the impacts of divers on
rays and whale sharks.
Visitor Use
Comment 16. The proposed dive flag regulation should include the
use of the red and white diver down or ``sports diver'' flag, because
it is more widely recognized by divers. The proposed regulation also
appears to be inconsistent with the existing requirement for use of the
alpha flag in the USCG navigation rules.
NOAA agrees. The regulation has been revised to address this
concern and make it consistent with USCG navigation rules.
Comment 17. NOAA should implement a vessel registration system for
FGBNMS. Access to the sanctuary could be controlled by issuing
visitation permits.
Although NOAA agrees that a vessel registration system would
provide information on visitor use dynamics, establishing a visitation
permitting system would be difficult. NOAA plans to evaluate the
effectiveness of the voluntary registration system before considering a
mandatory visitation permitting system. NOAA is gathering more
information about sanctuary use and has asked visitors to use the
voluntary trip report form available on the FGBNMS Web site. Activities
1.1 and 1.2 of the visitor use action plan describe the need for and
benefits of voluntary vessel registration and a visitor use monitoring
program.
Comment 18. NOAA should collaborate with other agencies and
industry to increase enforcement efforts at FGBNMS. More enforcement is
needed. Add surveillance equipment to platforms.
NOAA agrees. Currently, enforcement of sanctuary regulations is
done with support from the U.S. Coast Guard and NOAA's Office of Law
Enforcement. NOAA plans to increase collaboration with those entities
as well as the Texas and Louisiana state law enforcement agencies.
Enforcement at the sanctuary is logistically difficult due to the
distance from shore. NOAA recognizes that partnering with industry to
place monitoring or surveillance equipment on the production platform
that lies within current sanctuary boundaries could greatly enhance
enforcement capabilities. Therefore, NOAA has added an activity to the
resource protection action plan in the final management plan to
consider this more thoroughly.
Discharge
Comment 19. NOAA should prohibit all discharges within the
sanctuary, including treated sewage.
NOAA is not prepared to prohibit all discharges within the
sanctuary at this time. Given the distance from shore, water depth,
number and type of vessels currently operating in the area, and current
scientific knowledge, NOAA feels that allowing clean discharges will
provide adequate protection for sanctuary resources while still
allowing compatible uses.
Comment 20. The new language in the proposed rule that prohibits
``discharging or depositing from within or into the sanctuary'' is too
broad and open-ended and is cause for concern by the oil and gas
industry, especially where entities are already permitted under a
National Pollutant Discharge Elimination System (NPDES) general permit
for the Gulf of Mexico.
By adding the words ``or into'', NOAA is clarifying that the
prohibition does not only apply to discharges originating in the
sanctuary, the prohibition also applies, for example, to immediate
discharges and deposits into the sanctuary from aircraft, when waste is
thrown into the sanctuary from a vessel, or from other similar
activities.
This regulatory change will not have an effect on the existing oil
and gas activities in the vicinity of the sanctuary. For example, the
two existing platforms closest to the sanctuary are: (a) High Island
384, located 0.26 miles (1373 feet) from the boundary of West Flower
Bank; and (b) High Island 376, located 0.22 miles (1162 feet) from East
Flower Garden Bank. Because of the distance between those platforms and
the sanctuary boundaries, NOAA does not foresee that either platform
would be impacted by the new rule because NOAA does not envision
conditions that would enable a discharge from these platforms to be
considered a direct discharge under sanctuary regulations and
consequently violate 15 CFR 922.122(a)(3)(i).
The purpose of the regulation is not to create new restrictions on
otherwise lawful activities occurring beyond, but adjacent to, the
sanctuary boundaries. Rather, NOAA's goal is to ensure consistency
among the regulations of other sanctuaries. Discharges or deposits
originating from beyond the sanctuary would still remain subject to the
regulations at Sec. 922.122(a)(3)(ii), which requires proof of entry
into the sanctuary and injury to sanctuary resources to constitute a
violation.
Education and Outreach
Comment 21. NOAA should build constituency and numbers of sanctuary
advocates by increasing volunteer recruitment.
NOAA agrees and recognizes the need for increased volunteer
involvement. The strategy to increase public support and stewardship of
the sanctuary in the final management plan (EO.3, activity 3.2)
includes an activity to enhance the FGBNMS volunteer program. The
planned addition of a volunteer coordinator (OA.1, activity 1.1),
subject to budget allocations, would enable NOAA to fully develop the
FGBNMS volunteer program.
Comment 22. NOAA should establish outreach programs in coastal area
communities other than Galveston. It should establish a presence in
Louisiana near recommended sanctuary expansion areas.
Due to limited budget for outreach, NOAA is currently focusing the
majority of its sanctuary outreach efforts in the Galveston area in
order to develop a strong local constituency in the region closest to
the sanctuary. Nonetheless, NOAA agrees that outreach efforts should
not be limited only to the Galveston area, and welcomes opportunities
to work with partners throughout the region. For example, NOAA already
has sanctuary outreach programs in the form of exhibits in the Audubon
Aquarium of the Americas in New Orleans, LA, the Texas State Aquarium
in Corpus Christi, TX and the Tennessee Aquarium in Chattanooga, TN.
NOAA has also begun to develop avenues for communicating with fishermen
and divers in Louisiana. In the event that the sanctuary is expanded to
include banks off of Louisiana, education and outreach programs to
reach that region would be developed at that time. The sanctuary
expansion action plan does not make any determination regarding the
various options for expanding the sanctuary or regulations within
expansion areas. The action plan only lays out the framework for
conducting a thorough environmental review required by NEPA and NMSA.
[[Page 25067]]
Comment 23. Education and outreach programs should emphasize how
human activities impact marine habitats and the benefits of marine
reserves.
NOAA education and outreach presentations, programs, and products
routinely include information about human impacts on marine habitats.
NOAA also recognizes the value and importance of educating people about
a variety of marine management techniques, including marine reserves.
For example, NOAA produces lesson plans and activities on topics such
as watersheds and marine debris. In addition, information about human
impacts is incorporated throughout the FGBNMS Web site.
Other
Comment 24. The FGBNMS management plan should thoroughly address
the potential risks to FGBNMS associated with oil and gas industry
operations in the Gulf of Mexico. NOAA should consider additional
regulations due to the potential impact of oil spills.
The FGBNMS is located within one of the most heavily developed
offshore oil and gas exploration areas in the world. The potential for
impact to the marine environment of the Flower Garden Banks from an
oil-related incident has been considered since before the area became a
national marine sanctuary. Beginning in the 1970s, the Minerals
Management Service (now reorganized into the Bureau of Ocean Energy
Management (BOEM) and the Bureau of Safety and Environmental
Enforcement (BSEE)), identified the Flower Garden Banks and many other
reefs and banks of the northwestern Gulf of Mexico as areas that
warranted special protection. They developed a set of requirements,
called stipulations, to help minimize the threat of impact from
offshore oil and gas activities (Reference: Notice to Lessees, NTL No.
2009-G39, ``Biologically-Sensitive Underwater Features and Areas'',
Effective Date: January 27, 2010). The earliest such stipulations were
published in the Final Environmental Impact Statement for the Gulf of
Mexico Outer Continental Shelf (OCS) lease sale 34 in May 1974. Since
the time that these, and other stipulations, have been in place, they
have shown to be very effective in protecting the sanctuary from
routine operations associated with offshore oil and gas exploration and
development.
Planning for an appropriate response to an oil spill or other
hazardous material release in the vicinity of the Flower Garden Banks
is of the highest priority for the sanctuary. The Oil Pollution Act of
1990 requires the U.S. Coast Guard to develop an Area Contingency Plan
(ACP) for each region of coastal waters. NOAA continues to coordinate
with the USCG on updating and refining the ACP for Texas and Louisiana
offshore waters. In addition, NOAA will assist the USCG in the
development of a specific sub-area contingency plan for oil spill
response for the Flower Garden Banks National Marine Sanctuary area, as
described in Activity 2.4 of the Resource Protection Action Plan.
Prior to the Deepwater Horizon event in April 2010, which occurred
slightly east of the northwestern Gulf of Mexico, there had not been a
significant hydrocarbon spill or other incident in the region since the
designation of FGBNMS. However, a similar incident could potentially
occur in an area that would threaten the health of sanctuary resources.
For that reason, NOAA is working closely with BOEM and EPA in
reviewing, and revising, if necessary, environmental policies related
to offshore oil and gas leasing and development to ensure the highest
level of protection of sensitive biological communities.
Given these existing various mechanisms geared toward protecting
the FGBNMS from the disastrous effects of a potential oil spill, NOAA
did not include a specific action plan on this topic in the revised
management plan. Rather, staff effort will focus on continuing to
coordinate with other agencies. Similarly, NOAA did not revise the
sanctuary regulations. NOAA believes the current regulations in place
addressing disturbance of the seafloor and discharges in the sanctuary
are adequate at this time.
Comment 25. Climate change is the biggest threat to sanctuary
resources.
NOAA recognizes that climate change is a potential threat to
sanctuary resources. In 2010, NOAA finalized a Climate Strategy for
national marine sanctuaries and implemented a ``Climate-Smart
Sanctuaries'' Initiative. Language has been added to the operation and
administration and education and outreach action plans to incorporate
various aspects of this initiative. In addition, NOAA will develop a
climate change site scenario and climate change action plan for FGBNMS
and plans to pursue Climate-Smart Sanctuary Certification as detailed
in activity 2.6 of the resource protection action plan in the final
management plan.
Comment 26. Artificial reefs should be protected.
There are no artificial reefs in FGBNMS. If presented with
opportunities to make recommendations during decommissioning processes
for platforms within sanctuary boundaries, NOAA would examine the
options on a case-by-case basis.
Comment 27. NOAA must take aggressive action to prevent the
establishment of the invasive lionfish in FGBNMS.
Lionfish have been observed in sanctuary waters since July 2011. As
stated in Activity 5.2 of the research and monitoring action plan in
the final management plan, NOAA is currently developing research
priorities and a response plan to study and manage the impacts of
invasive species, including lionfish, on sanctuary resources.
At this time, NOAA's policy is to remove any lionfish encountered
in sanctuary boundaries using prescribed protocols. Permits for the
removal of lionfish have been issued to some dive masters of
recreational dive charters that frequent the sanctuary to assist in
this effort. The diving public is also encouraged to help monitor the
situation by reporting any lionfish sightings, including date, time,
location, size of the lionfish, and any other information about the
habitat or the behavior of the fish to sanctuary staff.
Comment 28. The cost to implement the management plan is
unreasonably high. NOAA should carefully consider availability of funds
during the proposed sanctuary expansion and prioritize activities,
which should include R/V Manta operations.
The budget estimates given in the draft management plan are those
necessary to support all of the activities identified within the
various action plans. While the plan was developed with realistic
expectations, NOAA recognizes that not all of the activities can or
will be carried out due to budgetary restrictions or other factors.
Therefore, NOAA agrees with the suggestion that activities should be
prioritized in the plan, and this has been added to the document.
However, over the years, NOAA has taken a number of steps to increase
resources available for sanctuaries. These have included pursuing
outside funding sources for critical operations such as grants, partner
cost-sharing, donations, and special use permit fees. NOAA has also
been successful in leveraging partner capabilities and in-kind support.
For example, the U.S. Coast Guard has provided aerial overflights for
surveillance and enforcement at FGBNMS.
During the preliminary evaluation of possible sanctuary expansion
alternatives by the Sanctuary Advisory Council, budgetary factors were
taken into consideration. For example, the areas presented for
potential expansion
[[Page 25068]]
by the Sanctuary Advisory Council were limited by the distance that
could be serviced within the operational capabilities of the existing
sanctuary vessel (approximately 200 miles from Galveston TX), reducing
the need for additional vessels or infrastructure. Priority
consideration was also given to the anticipated amount of funds
available in the sanctuary budget to operate the R/V Manta in other
areas of the Gulf of Mexico.
The effective operation of the R/V Manta is necessary in the
implementation of almost all aspects of sanctuary management. As such,
the continued maintenance of this asset is a high priority for NOAA,
and will be given due consideration in the allocation of available
resources.
V. Classification
A. National Environmental Policy Act
NOAA has prepared a final programmatic environmental assessment to
analyze the potential environmental impacts of this rulemaking. The
programmatic environmental assessment analyzes the administrative and
programmatic activities associated with the No Action Alternative and
the Preferred Alternative to revise the FGBNMS management plan and take
regulatory actions. Administrative activities conducted within existing
facilities, such as consultations, outreach, administrative frameworks,
development of plans, and data analysis will have little to no
potential to significantly affect the quality of the human environment
according to NEPA standards. Activities to manage the sanctuary as
outlined in the final management plan, considered together with the
many natural and human-induced stressors to sanctuary resources,
generally result in a cumulative beneficial impact to these resources.
However, as with the administrative activities, the positive impacts do
not meet the NEPA threshold for significance. This is because at a
programmatic level, no single activity, when taken in consideration
with others, will have significant beneficial or negative impacts on
any individual or combined resource.
To the extent that future activities considered under any of the
action plans (which range from infrastructure construction, management
measures to implement sanctuary expansion, or establishment of an
experimental closure to evaluate the impacts of diving and fishing) are
conducted in the human environment, a NEPA review to analyze the
impacts of alternatives would be conducted.
The programmatic environmental assessment on the final management
plan and revised regulations for FGBNMS results in a Finding of No
Significant Impact (FONSI). Accordingly, no environmental impact
statement was prepared. Copies of the environmental assessment and
FONSI are available at the address and Web site listed in the ADDRESSES
section of this final rule.
B. Executive Order 12866: Regulatory Impact
Under Executive Order 12866, if the proposed regulations are
``significant'' as defined in section 3(f) of the Order, an assessment
of the potential costs and benefits of the regulatory action must be
prepared and submitted to the Office of Management and Budget. This
rule has been determined to be not significant within the meaning of
Executive Order 12866.
C. Executive Order 13132: Federalism Assessment
All of the actions occur in the Exclusive Economic Zone beyond
state jurisdiction. NOAA has concluded this regulatory action does not
have federalism implications sufficient to warrant preparation of a
federalism assessment under Executive Order 13132.
D. Paperwork Reduction Act
This rule does not contain any new information or revisions to the
existing information collection requirement that was previously
approved for this rule 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
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Chief Counsel for Regulation at the Department of Commerce
certified to the Chief Counsel for Advocacy, Small Business
Administration that this action will not have a significant economic
impact on a substantial number of small entities. The factual basis for
this certification was published with 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 was
not prepared.
VI. References for Citations
All references that NOAA used as a basis for this rule can be made
available to the public upon request as specified in the ADDRESSES
section.
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.
Dated: April 18, 2012.
David M. Kennedy,
Assistant Administrator for Ocean Services and Coastal Zone Management.
For the reasons discussed in the preamble, part 922, title 15 of
the Code of Federal Regulations is amended as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
0
1. The authority citation for part 922 continues to read as follows:
Authority: 16 U.S.C. 1431 et seq.
0
2. Revise Sec. 922.121 to read as follows:
Sec. 922.121 Definitions.
As used in this subpart:
Attract or attracting means the conduct of any activity that lures
or may lure any animal in the Sanctuary by using food, bait, chum,
dyes, decoys (e.g., surfboards or body boards used as decoys),
acoustics or any other means, except the mere presence of human beings
(e.g., swimmers, divers, boaters, kayakers, surfers).
Clean means not containing detectable levels of harmful matter.
Disturb or disturbing a ray or whale shark means to, or attempt to
touch, handle, ride, pursue, chase away, hunt, restrain, detain (no
matter how temporarily), capture, collect, or conduct any other
activity that disrupts or has the potential to disrupt any ray or whale
shark in the Sanctuary by any means. Notwithstanding the above, the
mere presence of human beings (e.g., swimmers, divers, boaters,
kayakers) is exempted from this definition.
Harmful matter means any substance, or combination of substances,
that because of its quantity, concentration, or physical, chemical, or
infectious characteristics may pose a present or potential threat to
Sanctuary resources or qualities, including but not limited to: Fishing
nets, fishing line, hooks,
[[Page 25069]]
fuel, oil, and those contaminants (regardless of quantity) listed at 40
CFR 302.4 pursuant to 42 U.S.C. 9601(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended.
No-activity zone means the two geographic areas delineated by the
Department of the Interior in stipulations for OCS lease sale 112 over
and surrounding the East and West Flower Garden Banks, and the
geographic area delineated by the Department of the Interior in
stipulations for OCS lease sale 171 over and surrounding Stetson Bank,
as areas in which activities associated with exploration for,
development of, or production of hydrocarbons are prohibited. The
precise aliquot part description of these areas around the East and
West Flower Garden Banks are provided in appendix B of this subpart;
the no-activity zone around Stetson Bank is defined as the 52 meter
isobath. These particular aliquot part descriptions for the East and
West Flower Garden Banks, and the 52 meter isobath around Stetson Bank,
define the geographic scope of the ``no-activity zones'' for purposes
of the regulations in this subpart. The descriptions for the East and
West Flower Garden Banks no-activity zones are based on the ``1/41/41/
4'' system formerly used by the Department of the Interior, a method
that delineates a specific portion of a block rather than the actual
underlying isobath.
0
3. Revise Sec. 922.122 to read as follows:
Sec. 922.122 Prohibited or otherwise regulated activities.
(a) Except as specified in paragraphs (c) through (h) of this
section, the following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted:
(1) Exploring for, developing, or producing oil, gas, or minerals
except outside of all no-activity zones and provided all drilling
cuttings and drilling fluids are shunted to the seabed through a
downpipe that terminates an appropriate distance, but no more than ten
meters, from the seabed.
(2) (i) Anchoring any vessel within the Sanctuary.
(ii) Mooring any vessel within the Sanctuary, except that vessels
100 feet (30.48 meters) or less in registered length may moor to a
Sanctuary mooring buoy.
(iii) Mooring a vessel in the Sanctuary without clearly displaying
the blue and white International Code flag ``A'' (``alpha'' dive flag)
or the red and white ``sports diver'' flag whenever a SCUBA diver from
that vessel is in the water and removing the ``alpha'' dive flag or
``sports diver'' flag after all SCUBA divers exit the water and return
back on board the vessel, consistent with U.S. Coast Guard guidelines
relating to sports diving as contained within ``Special Notice to
Mariners'' (00-208) for the Gulf of Mexico.
(3)(i) Discharging or depositing from within or into the Sanctuary
any material or other matter except:
(A) Fish, fish parts, chumming materials, or bait used in or
resulting from fishing with conventional hook and line gear in the
Sanctuary, provided that such discharge or deposit occurs during the
conduct of such fishing within the Sanctuary;
(B) Clean effluent generated incidental to vessel use by an
operable Type I or Type II marine sanitation device (U.S. Coast Guard
classification) approved in accordance with section 312 of the Federal
Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel
operators must lock marine sanitation devices in a manner that prevents
discharge or deposit of untreated sewage;
(C) Clean vessel deck wash down, clean vessel engine cooling water,
clean vessel generator cooling water, clean bilge water, or anchor
wash;
(D) Engine exhaust;
(E) In areas of the Sanctuary outside the no-activity zones,
drilling cuttings and drilling fluids necessarily discharged incidental
to the exploration for, development of, or production of oil or gas in
those areas and in accordance with the shunting requirements of
paragraph (a)(1) of this section unless such discharge injures a
Sanctuary resource or quality.
(ii) Discharging or depositing, from beyond the boundaries of the
Sanctuary, any material or other matter, except those listed in
paragraphs (a)(3)(i)(A) through (D) of this section, that subsequently
enters the Sanctuary and injures a Sanctuary resource or quality.
(4) Drilling into, dredging, or otherwise altering the seabed of
the Sanctuary (except as allowed under paragraph (c) of this section);
or constructing, placing, or abandoning any structure, material, or
other matter on the seabed of the Sanctuary.
(5) Injuring or removing, or attempting to injure or remove, any
coral or other bottom formation, coralline algae or other plant, marine
invertebrate, brine-seep biota, or carbonate rock within the Sanctuary.
(6) Taking any marine mammal or turtle within the Sanctuary, except
as permitted by regulations, as amended, promulgated under the Marine
Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq., and the
Endangered Species Act, as amended, 16 U.S.C. 1531 et seq.
(7) Killing, injuring, attracting, touching, or disturbing a ray or
whale shark in the Sanctuary. Notwithstanding the above, the incidental
and unintentional injury to a ray or whale shark as a result of fishing
with conventional hook and line gear is exempted from this prohibition.
(8) Injuring, catching, harvesting, collecting, or feeding, or
attempting to injure, catch, harvest, collect, or feed, any fish within
the Sanctuary by use of bottom longlines, traps, nets, bottom trawls,
or any other gear, device, equipment, or means except by use of
conventional hook and line gear.
(9) Possessing within the Sanctuary (regardless of where collected,
caught, harvested or removed), except for valid law enforcement
purposes, any carbonate rock, coral or other bottom formation,
coralline algae or other plant, marine invertebrate, brine-seep biota,
or fish (except for fish caught by use of conventional hook and line
gear).
(10) Possessing or using within the Sanctuary, except possessing
while passing without interruption through it or for valid law
enforcement purposes, any fishing gear, device, equipment or means
except conventional hook and line gear.
(11) Possessing, except for valid law enforcement purposes, or
using explosives or releasing electrical charges within the Sanctuary.
(b) If any valid regulation issued by any Federal authority of
competent jurisdiction, regardless of when issued, conflicts with a
Sanctuary regulation, the regulation deemed by the Director as more
protective of Sanctuary resources and qualities shall govern.
(c) The prohibitions in paragraphs (a)(2)(i), (a)(4), and (a)(11)
of this section do not apply to necessary activities conducted in areas
of the Sanctuary outside the no-activity zones and incidental to
exploration for, development of, or production of oil or gas in those
areas.
(d) The prohibitions in paragraphs (a)(2) through (11) of this
section do not apply to activities necessary to respond to emergencies
threatening life, property, or the environment.
(e)(1) The prohibitions in paragraphs (a)(2) through (11) of this
section do not apply to activities being carried out by the Department
of Defense as of the effective date of Sanctuary designation (January
18, 1994). Such activities shall be carried out in a manner that
minimizes any adverse impact on Sanctuary resources and qualities. The
prohibitions in paragraphs (a)(2)
[[Page 25070]]
through (11) of this section do not apply to any new activities carried
out by the Department of Defense that do not have the potential for any
significant adverse impacts on Sanctuary resources or qualities. Such
activities shall be carried out in a manner that minimizes any adverse
impact on Sanctuary resources and qualities. New activities with the
potential for significant adverse impacts on Sanctuary resources or
qualities may be exempted from the prohibitions in paragraphs (a)(2)
through (11) of this section by the Director after consultation between
the Director and the Department of Defense. If it is determined that an
activity may be carried out, such activity shall be carried out in a
manner that minimizes any adverse impact on Sanctuary resources and
qualities.
(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
a component of the Department of Defense, the cognizant component shall
promptly coordinate with the Director for the purpose of taking
appropriate actions to respond to and mitigate the harm and, if
possible, restore or replace the Sanctuary resource or quality.
(f) The prohibitions in paragraphs (a)(2) through (11) of this
section do not apply to any activity executed in accordance with the
scope, purpose, terms, and conditions of a National Marine Sanctuary
permit issued pursuant to Sec. 922.48 and Sec. 922.123 or a Special
Use permit issued pursuant to section 310 of the Act.
(g) The prohibitions in paragraphs (a)(2) through (11) of this
section do not apply to any activity authorized by any lease, permit,
license, approval or other authorization issued after January 18, 1994,
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 necessary to protect
Sanctuary resources and qualities.
(h) Notwithstanding paragraphs (f) and (g) of this section, in no
event may the Director issue a National Marine Sanctuary permit under
Sec. 922.48 and Sec. 922.123 or a Special Use permit under section 10
of the Act authorizing, or otherwise approve, the exploration for,
development of, or production of oil, gas, or minerals in a no-activity
zone. Any leases, permits, approvals, or other authorizations
authorizing the exploration for, development of, or production of oil,
gas, or minerals in a no-activity zone and issued after the January 18,
1994 shall be invalid.
0
4. Amend Sec. 922.123 by revising paragraphs (a) through (c) as
follows:
Sec. 922.123 Permit procedures and criteria.
(a) A person may conduct an activity prohibited by Sec.
922.122(a)(2) through (11) if conducted in accordance with the scope,
purpose, terms, and conditions of a permit issued under this section
and Sec. 922.48.
(b) Applications for such permits should be addressed to the
Director, Office of National Marine Sanctuaries; Attn: Superintendent,
Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building
216, Galveston, TX 77551.
(c) The Director, at his or her discretion, may issue a permit,
subject to such terms and conditions as he or she deems appropriate, to
conduct an activity prohibited by Sec. 922.122(a)(2) through (11), if
the Director finds that the activity will: Further research related to
Sanctuary resources; 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. In deciding whether to
issue a permit, the Director shall 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 cumulative effects of the
activity; and the end value of the activity. In addition, the Director
may consider such other factors as he or she deems appropriate.
* * * * *
[FR Doc. 2012-10093 Filed 4-26-12; 8:45 am]
BILLING CODE 3510-NK-P