[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Rules and Regulations]
[Pages 32154-32176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15252]
[[Page 32153]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Parts 922, 929, and 937
Florida Keys National Marine Sanctuary Regulations; Final Rule
Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Rules
and Regulations
[[Page 32154]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Parts 922, 929, and 937
[Docket No. 9607292-6192-03]
RIN 0648-AD85
Florida Keys National Marine Sanctuary Final Regulations
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce.
ACTION: Notice of effective date; modifications to final rule.
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SUMMARY: Pursuant to the Florida Keys National Marine Sanctuary and
Protection Act and the National Marine Sanctuaries Act, NOAA developed
the comprehensive final management plan for the Florida Keys National
Marine Sanctuary (FKNMS or the Sanctuary). NOAA issued final
regulations on January 30, 1997, to implement that plan and govern the
conduct of activities within the Sanctuary. Congress and the Governor
of the State of Florida (Governor) had forty-five days of continuous
session of Congress beginning on the day on which the final regulations
were published to review those regulations and management plan. After
the forty-five day review period, the regulations would become final
and take effect, except that any term or terms of the regulations or
management plan the Governor certified to the Secretary of Commerce as
unacceptable would not take effect in the area of the Sanctuary lying
within the seaward boundary of the State.
During the forty-five day review period the Governor submitted to
the Secretary of Commerce a certification that implementation of the
management plan and certain regulations were unacceptable unless
specific amendments were made to the regulations. In response to the
Governor's certification, NOAA amended those regulations certified as
unacceptable to incorporate the Governor's changes. Consequently, upon
their effective date the regulations, as modified by this notice, and
management plan, in their entirety, will apply throughout the
Sanctuary, including within State waters of the Sanctuary.
This notice amends the regulations published in the January 30,
1997, Federal Register, in response to the Governor's certification,
and announces the effective date of the regulations.
EFFECTIVE DATE: The final rule published on January 30, 1997, at 62 FR
4578 and the revision of 15 CFR part 922, subpart P in this document
are effective July 1, 1997.
ADDRESSES: Requests for a copy of the FMP/EIS, the Final Regulatory
Flexibility Analysis, or the Federalism Assessment should be submitted
to the Sanctuary Superintendent, Florida Keys National Marine
Sanctuary, P.O. Box 500368, Marathon, Florida 33050.
FOR FURTHER INFORMATION CONTACT: Billy Causey, Sanctuary
Superintendent, 305/743-2437 or Edward Lindelof, East Coast Branch
Chief, Sanctuaries and Reserves Division, 301/713-3137 Extension 131.
SUPPLEMENTARY INFORMATION:
I. Introduction
The FKNMS was designated by an act of Congress entitled the Florida
Keys National Marine Sanctuary and Protection Act (FKNMSPA, Pub.L. 101-
605) which was signed into law on November 16, 1990. The FKNMSPA
directed the Secretary of Commerce to develop a comprehensive
management plan and regulations for the Sanctuary pursuant to sections
303 and 304 of the National Marine Sanctuaries Act (NMSA) (also known
as Title III of the Marine Protection, Research, and Sanctuaries Act of
1972), as amended, 16 U.S.C. 1431 et seq. The NMSA authorizes the
development of management plans and regulations for national marine
sanctuaries to protect their conservation, recreational, ecological,
historical, research, educational, or aesthetic qualities.
The authority of the Secretary to designate national marine
sanctuaries and implement designated sanctuaries was delegated to the
Under Secretary of Commerce for Oceans and Atmosphere by the Department
of Commerce, Organization Order 10-15, Sec. 3.01(z) (Jan. 11, 1988).
The authority to administer the other provisions of the NMSA was
delegated to the Assistant Administrator for Ocean Services and Coastal
Zone Management of NOAA by NOAA Circular 83-38, Directive 05-50 (Sept.
21, 1983, as amended).
II. Forty-Five Day Review Period Under the National Marine
Sanctuaries Act
NOAA published the final Sanctuary regulations on January 30, 1997,
(62 FR 4578) to implement the management plan and govern the conduct of
activities within the Sanctuary. Under the NMSA, Congress and the
Governor had forty-five days of continuous session of Congress
beginning on the day on which the final regulations were published to
review the terms of designation (i.e., management plan and
regulations). After forty-five days, the regulations would become final
and take effect, except that any term or terms the Governor certified
within the forty-five day period to the Secretary of Commerce as
unacceptable would not take effect in the area of the Sanctuary lying
within the seaward boundary of the State. Congress could also act on
the terms of designation. The following discusses the Governor and
Congress' actions during the forty-five day period and corresponding
modifications to the final regulations made by NOAA in response to
those actions.
Certification by the Governor of Florida
On March 20, 1997, during the forty-five day review period under
the NMSA, the Governor of the State of Florida certified by letter to
the Secretary of Commerce that implementation of the management plan
and certain regulations were unacceptable in State waters. However, the
management plan and regulations certified as unacceptable would be
acceptable if NOAA amended the regulations and the Co-Trustees
Agreement for Cooperative Management (Co-Trustees Agreement), contained
in the management plan, as requested in the Governor's certification
letter. NOAA has amended the regulations and the Co-Trustees Agreement
to incorporate the modifications requested by the Governor in his
letter. By doing so, the regulations and management plan, as modified,
are accepted by the Governor and, therefore, will apply within State
waters of the Sanctuary upon the effective date of these regulations.
The following is the text of the March 20, 1997, letter from the
Governor of Florida to the Secretary of Commerce. Per the Governor's
request, the letter is followed by the text of the Resolution passed by
the Board of Trustees of the Internal Improvement Trust Fund of the
State of Florida (Board of Trustees). The Resolution was adopted on
January 28, 1997, and provides the basis for many of the items in the
Governor's certification.
[[Page 32155]]
Lawton Chiles
Governor
State of Florida
Office of the Governor
The Capitol
Tallahassee, Florida 32399-0001
March 20, 1997.
Honorable William M. Daley, Secretary, United States Department of
Commerce, Herbert C. Hoover Building, 14 Street and Constitution
Avenue Northwest, Washington, DC 20230.
Dear Mr. Secretary:
On January 28, 1997, the Florida Cabinet and I, sitting as the
Board of Trustees of the Internal Improvement Trust Fund, adopted a
resolution to include state sovereign submerged lands within the
boundary of the Florida Keys National Marine Sanctuary (FKNMS). It
is our intention to create a partnership with the National Oceanic
and Atmospheric Administration (NOAA) for management under the
provisions of the FKNMS Management Plan and the Memoranda of
Agreement included in the management plan, with certain conditions
to be applied to the portions of the sanctuary within Florida
Territorial Waters. A copy of the resolution is enclosed. We request
that the resolution be placed in the preamble to the final notice
for the FKNMS regulations.
In accordance with subsection 304(b)(1) of the National Marine
Sanctuaries Act and that resolution, the following terms are
certified as unacceptable in state waters:
1. Sanctuary fees for allowed public uses unless first approved
by the Board of Trustees of the Internal Improvement Trust Fund of
the State of Florida.
2. Sanctuary emergency regulations unless and until first
approved by the Governor. Accordingly, the following sentence shall
be added to section 922.165 CFR as published January 30, 1997:
``Emergency regulations shall not take effect in Florida territorial
waters until approved by the Governor of the State of Florida.''
3. Requirements for governmental entities within the state,
including but not limited to the State of Florida and Monroe County,
to provide funding for the implementation of sanctuary regulations
or other actions.
4. Sanctuary fisheries regulations unless established by the
Florida Marine Fisheries Commission following promulgation under the
provisions of section 370.025(2), F.S. (1995), which requires public
input and final approval by the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida. Accordingly, the
following sentence shall be added to section 922.42 CFR as published
January 30, 1997: ``Any fishery regulations in the Florida Keys
National Marine Sanctuary shall not take effect in Florida
Territorial Waters until established by the Florida Marine Fisheries
Commission.''
5. Sanctuary regulation of discharging or depositing, from
beyond the boundary of the Sanctuary, any material or other matter
that subsequently enters the Sanctuary and injures a Sanctuary
resource or quality, if the discharging or depositing is authorized
under Monroe County land use permits or under state permits.
Accordingly, 15 CFR section 922.163(a)(4)(ii), concerning prohibited
activities, shall be amended to read as follows: ``Discharging or
depositing, from beyond the boundary of the Sanctuary, any material
or other matter that subsequently enters the Sanctuary and injures a
Sanctuary resource or quality, except those listed in paragraph
(a)(4)(I) (A) through (D) of this section and those authorized under
Monroe County land use permits or under state permits.''
6. The implementation of any additional ecological reserves or
any other type of zoning or regulation unless first approved by the
Board of Trustees. Accordingly, the following provision shall be
added to 15 CFR section 922.163 as published January 30, 1997: ``(h)
Any amendment to these regulations shall not take effect in Florida
Territorial Waters until approved by the Board of Trustees of the
Internal Improvement Trust Fund of the State of Florida;'' and the
following provision shall be added to 15 CFR section 962.164: ``(f)
Additional wildlife management areas, ecological reserves, sanctuary
preservation areas, or special use areas, and additional
restrictions in such areas, shall not take effect in Florida
Territorial Waters unless first approved by the Board of Trustees of
the Internal Improvement Trust Fund of the State of Florida.''
7. Implementation of the management plan in its entirety unless
the Co-Trustees agreement is amended to provide as follows:
a. The Florida Department of Environmental Protection (FDEP)
employee who has been designated by the Secretary of FDEP and
confirmed by the Board of Trustees shall represent the Board of
Trustees as an equal partner to work in consultation with the
Sanctuary superintendent for the oversight of Sanctuary operations.
b. The FDEP and NOAA shall manage the FKNMS through a
cooperative partnership and consult on all management activities
throughout the Sanctuary. The intent of this partnership is that the
final resolution of any management issues resulting in policy
conflicts between the state and NOAA shall be decided by the
managing partners consistent with state and federal laws.
c. The state reserves the right to initiate proposed changes to
the plan, and NOAA, if necessary, shall initiate the federal rule
promulgation process required to make revisions to sanctuary
regulations requested by the Board of Trustees.
d. Section 304(e) of the National Marine Sanctuary Act requires
the Secretary of Commerce to review the management plan and
regulations for the Sanctuary every five years, evaluate the
substantive progress toward implementing the management plan and
goals for the Sanctuary; especially the effectiveness of site-
specific management techniques, and revise the management plan and
regulations as necessary to fulfill the purposes and policies of the
Act. When the management plan and regulations for the FKNMS are re-
evaluated, the Secretary of Commerce will re-propose the management
plan and regulations in their entirety and the State of Florida will
have the opportunity to review the management plan and regulations,
in their entirety, and indicate if any or all of the terms are
unacceptable, in which case the unacceptable terms shall not take
effect in state waters.
Accordingly, the following provisions shall be added to 15 CFR
section 922.160: ``Section 304(e) of the NMSA requires the Secretary
to review management plans and regulations every five years, and
make necessary revisions. Upon completion of the five year review of
the Sanctuary management plan and regulations, the Secretary will
repropose the regulations in their entirety with any proposed
changes thereto, including those regulations in subparts A and E of
this part that apply to the Sanctuary. The Governor of the State of
Florida will have the opportunity to review the re-proposed
regulations before they take effect and if the Governor certifies
such regulations as unacceptable, they will not take effect in State
waters of the Sanctuary.''
We also call to your attention the now erroneous reference in
section 922.166(b)(2)(iii) to the Submerged Cultural Resources
Agreement contained in Volume 1 of the management plan. We suggest
striking that reference. The final agreement is that considered by
the Board of Trustees on January 28, 1997 and executed by the
signatory parties.
We believe that implementation of the plan provides balanced,
common sense protection of this fragile, unique and endangered
marine treasure and advances the state and federal commitment to
jointly manage these resources. We look forward to that continuing
relationship.
With kind regards, I am
Sincerely,
Lawton Chiles
LC/khw/mlp
Enclosure
cc: Honorable Frank Brogan
Honorable Bob Butterworth
Honorable Bob Crawford
Honorable Debbie Horan
Honorable Bob Milligan
Honorable Sandra Mortham
Honorable Bill Nelson
Resolution
WHEREAS, the United States Congress passed the Florida Keys
National Marine Sanctuary and Protection Act (PL 101-605, ``the
Act'') to protect the unique and invaluable natural and cultural
resources of the Florida Keys; and
WHEREAS, the President of the United States signed this
legislation into law on November 16, 1990; and
WHEREAS, the Florida Keys National Marine Sanctuary (FKNMS)
boundary encompasses 2800 square nautical miles of the Atlantic
Ocean, Gulf of Mexico, and Florida Bay, of which approximately 65%
is Florida state territorial waters; and
WHEREAS, the Board of Trustees of the Internal Improvement Trust
Fund (``the Board of Trustees'') is vested with the authority and
charged with the responsibility for the acquisition, administration,
management, control, supervision, conservation, protection, and
disposition of
[[Page 32156]]
all state lands, including sovereignty submerged lands, as set forth
in Chapter 253, Florida Statutes; and
WHEREAS, upon enactment of the Act, the Board of Trustees
resolved on December 16, 1990, to include state waters within the
sanctuary boundary under certain specified conditions; and
WHEREAS, the Florida Coastal Resources Interagency Management
Committee resolved in February of 1991 to include appropriate state
representation in the Florida Keys National Marine Sanctuary
Management Plan development process; and
WHEREAS, an ``Interim Memorandum of Agreement'' was executed on
September 15, 1992, between the National Oceanic and Atmospheric
Administration (NOAA) and Board of Trustees specifying the
conditions under which state sovereign submerged lands were to be
included in the Sanctuary and managed during the management plan
development process; and
WHEREAS, the management plan development period was extended to
six years to provide the maximum opportunity for participation by
all segments of government, industry, and the citizens of Florida
and the United States; and
WHEREAS, Memoranda of Agreement to manage the marine ecosystem
of the Florida Keys through a cooperative partnership have been
developed and included in the management plan, including the:
(1) Interagency Compact Agreement
(2) Co-Trustees Agreement for Cooperative Management
(3) Submerged Cultural Resources Agreement
(4) Cooperative Enforcement Agreement
(5) Agreement for Coordination of Civil Claims
(6) Protocol for Cooperative Fisheries Management
(7) Protocol for Emergency Response Notification
(8) Certification/Authorization of Permits Agreement
(9) Water Quality Program Steering Committee By-laws; and
WHEREAS, the citizens and government of the State of Florida
have expressed continuing interest in issues not specifically
addressed or resolved in the management plan or memoranda of
agreement relating to the:
(1) Imposition of fees for public use of the marine resources;
(2) Disposition of funds recovered from natural resource damage
claims;
(3) Imposition of emergency regulations on state sovereign
submerged lands;
(4) Obligation of governmental entities, including the State of
Florida, to implement the regulations of the management plan without
having been allocated additional funding for that specific purpose;
(5) Promulgation of federal fisheries regulations that are more
restrictive than those established by the Florida Marine Fisheries
Commission under Florida statutory authority;
(6) Imposition of restrictions on the use of adjacent uplands
exceeding those established by the State of Florida;
(7) Purpose, goals and measures of success associated with the
Western Sambos Ecological Reserve;
(8) Parity of state and federal management authority for the
implementation and ongoing operations of the FKNMS;
(9) Prospects of designating additional ecological reserves in
the future as proposed in the draft management plan;
(10) Periodic evaluation of the effectiveness of the sanctuary
management plan in the protection and preservation of the marine
resources of the Florida Keys;
(11) Resolution of differences between the respective government
agencies with Sanctuary management authority for the State of
Florida and the United States of America;
(12) Right of the State to initiate changes to the plan;
(13) Article V of the Designation Document; and
(14) Right of the State to revisit the plan and regulations in
their entirety.
NOW, THEREFORE, BE IT RESOLVED that the sovereign submerged
lands of the State of Florida located within the boundaries of the
Florida Keys National Marine Sanctuary, as specified by the United
States Congress in PL 101-605, are hereby included in the Sanctuary
for management in partnership between the Board of Trustees and NOAA
under the provisions of: the Florida Keys National Marine Sanctuary
Management Plan; the Memoranda of Agreement included in the
management plan; and, the following conditions to be applied to the
portions of the Sanctuary within Florida territorial waters:
(1) Federal sanctuary fees for allowed public uses of the marine
resources shall not be imposed without having first been approved by
the Board of Trustees;
(2) The Memorandum of Agreement for the Coordination of Civil
Claims shall be amended to provide that, with regard to proceedings
to recover compensation for injury to state resources within the
Sanctuary, Board of Trustees' approval on the use of funds recovered
by NOAA under section 312 is required;
(3) The imposition of federal sanctuary emergency regulations
shall not be authorized without the Governor's approval;
(4) No provision of the management plan will require
governmental entities within the state, including but not limited to
the State of Florida and Monroe County, to provide funding for the
implementation of regulations or other actions;
(5) The implementation of fisheries regulations is unacceptable
unless established by the Florida Marine Fisheries Commission
following promulgation under the provisions of section 370.025(2),
F.S. (1995), which requires public input and final Board of
Trustees' approval;
(6) The Certification/Authorization of Permits Agreement shall
be amended to provide that NOAA will have only a review and comment
role on state permits for activities beyond the boundary of the
Sanctuary. To the maximum extent possible the state will consider
NOAA's comments as specified in the agreement. However, NOAA shall
not require an additional permit. In addition, 15 CFR section
922.163(a)(4)(ii), concerning prohibited activities, shall be
amended to read as follows: ``Discharging or depositing, from beyond
the boundary of the Sanctuary, any material or other matter that
subsequently enters the Sanctuary and injures a Sanctuary resource
or quality, except those listed in paragraph (a)(4)(i) (A) through
(D) above and those authorized under Monroe County land use permits
or under state permits.'';
(7) The purpose of the Ecological Reserve in the Western Sambos
is to maintain a natural assemblage of living marine resources by
setting aside an area that assures minimal human disturbance and is
not designed to perform any fishery enhancement or fishery
management functions. Monitoring of ecological parameters will be
performed to provide information on the status of fish, coral and
other benthic components of the Reserve. At the end of five years
the success of the Ecological Reserve in the Western Sambos will be
assessed. If the state or NOAA finds the area is not fulfilling the
purpose for which the reserve was established, the Board of Trustees
may take action to initiate the removal of the site;
(8) The Secretary of the FDEP shall designate, with subsequent
confirmation by the Board of Trustees, a DEP employee as its
representative as an equal partner to work in consultation with the
Sanctuary superintendent for the oversight of Sanctuary operations;
(9) The implementation of any additional ecological reserves, or
any other type of zoning or regulation, which is applicable to state
waters shall require advance Board of Trustees' approval;
(10) The FDEP, in cooperation with NOAA, shall submit to the
Board of Trustees an annual status report of the Sanctuary, and a
five-year evaluation of the overall effectiveness of the
implementation of the Sanctuary management plan toward the goal of
protecting the marine resources of the Florida Keys including
recommendations for change;
(11) The FDEP and NOAA shall manage the FKNMS through a
cooperative partnership and consult on all management activities
throughout the Sanctuary. The intent of this partnership is that the
final resolution of any management issues resulting in policy
conflicts between the state and NOAA shall be decided by the
managing partners consistent with state and federal laws. The Board
of Trustees has not conveyed title to or relinquished authority over
any state-owned lands or other state-owned resources by agreeing to
include state-owned land and resources within the Sanctuary
boundary. If necessary, NOAA shall initiate the federal rule
promulgation process required to make Board of Trustees' requested
revisions to the regulations of the FKNMS management plan;
(12) The state reserves the right to initiate proposed changes
to the plan. The FDEP will monitor public opinion and provide a
process for consideration of grievances and petitions for change;
(13) Article V of the Designation Document shall be amended to
strike the first paragraph which states: ``If any valid regulation
issued
[[Page 32157]]
by any Federal, State or local authority of competent jurisdiction,
regardless of when issued, conflicts with a Sanctuary regulation the
regulation deemed by the Director, Office of Ocean and Coastal
Resource Management, National Oceanic and Atmospheric
Administration, or his or her designee to be more protective of
Sanctuary resources and qualities shall govern.'' Further, it shall
be amended to strike the last sentence of the second paragraph which
states: ``However, the Secretary of Commerce or designee may
regulate the exercise (including, but not limited to, the imposition
of terms and conditions) of such authorization or right consistent
with the purposes for which the Sanctuary is designated.''; and
(14) The Co-Trustees Agreement for Cooperative Management shall
be amended to add: Section 304(e) of the National Marine Sanctuary
Act requires the Secretary of Commerce to review the management plan
and regulations for the Sanctuary every five years, evaluate the
substantive progress toward implementing the management plan and
goals for the Sanctuary, especially the effectiveness of site-
specific management techniques, and revise the management plan and
regulations as necessary to fulfill the purposes and policies of the
Act. When the management plan and regulations for the Florida Keys
National Marine Sanctuary are re-evaluated, the Secretary will re-
propose the management plan and regulations in their entirety. The
State of Florida will have the opportunity to review the management
plan and regulations, in their entirety, and indicate if any or all
of its terms are unacceptable in which case the unacceptable terms
shall not take effect in state waters.
IN TESTIMONY WHEREOF, the Governor and Cabinet sitting as the
Board of Trustees of the Internal Improvement Trust Fund of the
State of Florida have hereunto subscribed their names and have
caused the Official Seal of the State of Florida to be hereunto
affixed in the City of Tallahassee on the 28th day of January, 1997.
Lawton Chiles,
Governor.
Sandra B. Mortham,
Secretary of State.
Bob Butterworth,
Attorney General.
Robert F. Milligan,
Comptroller.
Bill Nelson,
Treasurer.
Bob Crawford,
Commissioner of Agriculture.
Frank T. Brogan,
Commissioner of Education.
NOAA's Response to Governor's Certification
In response to the Governor's certification of March 20, 1997, NOAA
has amended those regulations certified by the Governor as being
unacceptable in State waters. With the modifications, the entire
regulations and management plan are accepted by the Governor and will
apply throughout the Sanctuary, including within State waters of the
Sanctuary, upon their effective date. The basis and purpose of the
changes to the regulations are as follows.
(1) Per item number 2 of the Governor's letter which certified as
unacceptable in State waters emergency regulations unless approved by
the Governor, Sec. 922.165 of subpart P is amended by adding
``Emergency regulations shall not take effect in Florida State waters
until approved by the Governor of the State of Florida.'' This is
consistent with the management plan which provides that any new
regulation or substantive modification to existing Sanctuary
regulations will require the Governor's approval in order to take
effect in State waters of the Sanctuary.
(2) Per item number 4 of the Governor's letter which certified as
unacceptable in State waters Sanctuary fishing regulations unless
established by the Florida Marine Fisheries Commission pursuant to
section 370.025(2), F.S. (1995), Sec. 922.163 of subpart P is amended
by adding a new paragraph (h) to read in pertinent part ``Any fishery
regulations in the Sanctuary shall not take effect in Florida State
waters until established by the Florida Marine Fisheries Commission.''
The Governor's certification proposed including this language in
Sec. 922.42 of part 922, which is a programmatic sanctuary regulation
applicable to all sanctuaries. NOAA determined that a more appropriate
place for the language is in the Sanctuary specific regulations at a
new Sec. 922.163(h) of subpart P, which has been added in response to
item number 6 of the Governor's certification.
Item number 4 of the Governor's certification reflects actions
already initiated by NOAA. In the January 30 Federal Register notice
publishing the final regulations and triggering the forty-five day
review period under the NMSA, NOAA stated that Sec. 922.164(d), which
pertains to Ecological Reserves (Reserves) and Sanctuary Preservation
Areas (SPAs), will not take effect in State waters before July 1, 1997,
to allow the State of Florida Marine Fisheries Commission (Commission)
time to complete its rulemaking process related to the Western Sambos
Ecological Reserve and those Sanctuary Preservation Areas located in
State waters. The Commission's rule was adopted on May 13, 1997, and is
substantively similar to NOAA's except in two instances. First, the
Commission's Rule 46-6.003(1)(B), pertaining to the issue of possession
of fishing gear, which essentially mirrors 15 CFR
Sec. 922.164(d)(1)(iii) of NOAA's regulations, does not contain the
phrase ``no presumption of fishing activity shall be drawn'' from
possession of gear, because, according to the State, the Commission has
no authority to address the issue of presumptions. Further, the
Commission's Rule 46-6.003(1)(a), pertaining to possession of marine
organisms within a Reserve or SPA, which mirrors 15 CFR
Sec. 922.164(d)(1)(ii) of NOAA's regulations, adds the element that to
fall within the exception allowing possession of marine organisms in
such areas, a vessel must be in ``continuous transit'' through the
Reserve or SPA. NOAA's regulation did not require continuous transit.
In the January 30 Federal Register notice, NOAA stated that if the
Commission's rule is not substantively the same as NOAA's, then NOAA
would modify its regulations to conform with the State's, or would
consult on whether the non-conforming portions of the Sanctuary
regulations should be withdrawn from applying in State waters. NOAA
consulted with the State and agreed that no changes are necessary to 15
CFR Sec. 922.164(d)(1)(iii). As regards Sec. 922.164(d)(1)(ii), the
Governor requested that NOAA revise it to conform to the Commission's
Rule 46-6.003(1)(a). In response to the Governor's request, and
consistent with NOAA's January 30 Federal Register notice, therefore,
NOAA has amended Sec. 922.164(d)(1)(ii) to read as follows:
(ii) Possessing, moving, harvesting, removing, taking, damaging,
disturbing, breaking, cutting, spearing, or otherwise injuring any
coral, marine invertebrate, fish, bottom formation, algae, seagrass
or other living or dead organism, including shells, or attempting
any of these activities. However, fish, invertebrates, and marine
plants may be possessed aboard a vessel in an Ecological Reserve or
Sanctuary Preservation Area, provided such resources can be shown
not to have been harvested within, removed from, or taken within,
the Ecological Reserve or Sanctuary Preservation Area, as
applicable, by being stowed in a cabin, locker, or similar storage
area prior to entering and during transit through such reserves or
areas, provided further that in an Ecological Reserve or Sanctuary
Preservation Area located in Florida State waters, such vessel is in
continuous transit through the Ecological Reserve or Sanctuary
Preservation Area.
Therefore, Sec. 922.164(d)(1)(ii), consistent with the Commission's
rule, now requires vessels possessing fish, invertebrates, or marine
plants that are transiting through a Reserve or SPA located in State
waters to be in continuous transit through the Reserve or SPA. These
areas are the Western
[[Page 32158]]
Sambos Ecological Reserve, and the Cheeca Rocks, Eastern Dry Rocks,
Hens and Chickens, Newfound Harbor Key, Rock Key, and Sand Key
Sanctuary Preservation Areas.
The conforming change to Sec. 922.164(d)(1)(ii) is made to the
regulation only as it applies to Reserves and SPAs located in State
waters because under the National Marine Sanctuaries Act, the
Governor's actions during the forty-five day review period apply to the
management plan and regulations as they pertain to the area of the
Sanctuary lying within the seaward boundary of the State. Further,
under the sanctuary program regulations as 15 CFR Sec. 922.42, all
activities may be conducted unless specifically prohibited by a
sanctuary's regulations, ``subject to all prohibitions, regulations,
restrictions, and conditions validly imposed by any Federal, State, or
local authority of competent jurisdiction, including Federal and State
fishery management authorities.'' Consequently, as regards State waters
of the Sanctuary, regardless of whether NOAA amends
Sec. 922.164(d)(1)(ii), users would be subject to the State prohibition
requiring continuous transit through a Reserve or SPA in State waters
if such vessel possesses fish, invertebrates or marine plants. Finally,
under the amended Sanctuary regulation, vessels possessing such marine
organisms are not precluded from transiting the Reserve or SPA, which
addresses the primary concern raised in the public comments NOAA
received on the proposed regulation. In addition, during the State's
rulemaking proceeding, it received no comments regarding the provision
requiring continuous transit, supporting that there appear to be no
significant concerns over the provision.
For consistency throughout the Sanctuary, NOAA will propose to
amend the regulation as it pertains to the Ecological Reserves and
Sanctuary Preservation Areas in federal waters in a separate
rulemaking.
(3) Per item number 5 of the Governor's letter which certified as
unacceptable in State waters the prohibition of discharging or
depositing from beyond the Sanctuary boundary any material or other
matter that subsequently enters the Sanctuary and injures a Sanctuary
resource or quality, Sec. 922.163(a)(4)(ii) of subpart P is amended by
adding ``or under state permits'' after ``Monroe County land use
permits.'' This modification broadens the subject exception to include
discharge or deposit activities authorized under State permits. Many
upland projects that could result in discharges or deposits outside the
Sanctuary that end up in the Sanctuary require Monroe County land use
permits, which were already excepted from the Sanctuary prohibition.
(4) Per item number 6 of the Governor's letter which certifies as
unacceptable in State waters the implementation of any additional
Ecological Reserves or any other type of zoning or regulation unless
first approved by the Board of Trustees, Sec. 922.163 of subpart P is
amended by adding new paragraph (h) to read ``Any amendment to these
regulations shall not take effect in Florida State waters until
approved by the Board of Trustees of the Internal Improvement Trust
Fund of the State of Florida.'' Further, Sec. 922.164 is amended by
adding a new paragraph (f) to read: ``Additional Wildlife Management
Areas, Ecological Reserves, Sanctuary Preservation Areas, or Special-
use Areas, and additional restrictions in such areas, shall not take
effect in Florida State waters unless first approved by the Board of
Trustees of the Internal Improvement Trust Fund of the State of
Florida.'' As discussed above, this modification merely codifies in the
regulations what is contained in the management plan.
(5) Per item number 7 of the Governor's letter which certifies as
unacceptable in State waters the implementation of the management plan
unless the Co-Trustee Agreement and Sec. 922.160 is amended to add a
provision regarding the five year review of the management plan and
regulations, Sec. 922.160 of subpart P is amended by adding:
Section 304(e) of the NMSA requires the Secretary to review
management plans and regulations every five years, and make
necessary revisions. Upon completion of the five year review of the
Sanctuary management plan and regulations, the Secretary will
repropose the regulations in their entirety with any proposed
changes thereto, including those regulations in subparts A and E of
this part that apply to the Sanctuary. The Governor of the State of
Florida will have the opportunity to review the re-proposed
regulations before they take effect and if the Governor certifies
such regulations as unacceptable, they will not take effect in State
waters of the Sanctuary.
A corresponding amendment, as well as other amendments, have also
been made to the Co-Trustees Agreement per item 7 of the Governor's
letter. The modification to the regulation essentially codifies the
requirement under the NMSA to conduct reviews of sanctuary management
plans and regulations every five years. In the FKNMS context, NOAA has
determined that at the conclusion of the five year review of the
Sanctuary, it will repropose the regulations for the Governor's review,
similar to the forty-five day review period under the NMSA that
preceded this notice.
(6) The erroneous reference to the Submerged Cultural Resources
Agreement has been corrected by eliminating the reference to Volume I
of the management plan.
For clarity, this notice publishes the revised Sanctuary specific
regulations at 15 CFR part 922, subpart P in their entirety, which will
replace subpart P as published in the January 30, 1997 Federal Register
notice. Consequently, subpart P as published in this notice and all
remaining regulations in the January 30, 1997, notice shall become
effective on July 1, 1997.
Congressional Action on the Final Regulations
During the comment period on the draft management plan/
environmental impact statement (DMP/EIS), the Sanctuary Advisory
Council (SAC) and other public commentors singled out the operation of
personal watercraft (PWC) in the Sanctuary as a matter of concern. In
response to comments received on the DMP/EIS, NOAA stated the following
in the FMP/EIS, and January 30 Federal Register notice regarding the
operation of personal watercraft (PWC) in the Sanctuary:
NOAA has developed a multi-pronged approach to address the
public's concern about the use of personal watercraft. NOAA has
accepted the SAC's recommendation to add a new section to the final
regulations (Sec. 922.163(a)(v)) which prohibits reckless operation
of all watercraft. Additionally, proposed Sec. 922.163(a)(5)(iii)
has been modified to prohibit operating a vessel at greater than
idle speed only/no wake (except in marked channels) in designated
areas within 100 yards from residential shorelines, stationary
vessels and navigational aids marking emerging or shallow reefs.
NOAA has also incorporated into its regulations the authority to
enforce all idle-speed only/no wake areas throughout the Sanctuary.
NOAA will use the existing county and State process for designating
these areas. NOAA accepts that the industry is seriously committed
to self regulation and will develop successful educational efforts
geared toward changing user behavior. The final component of NOAA's
approach is a modification of the SAC's recommendation. NOAA will
begin establishing broad zones with restrictions on the use of
personal watercraft (consistent with the SAC recommendation) in one
year only if these initial efforts are not successful at
significantly reducing or eliminating the nuisance and safety
problems, as well as the threats to the natural resources.
FMP/EIS Vol. III, page L-10; 62 FR 4578, 4591.
During the forty-five day review period under the NMSA, no
[[Page 32159]]
Congressional hearings were held. However, NOAA received inquiries from
Representative Don Young, Chair of the House of Representatives
Committee on Resources, and Representative Walter B. Jones, Jr.
regarding how NOAA was going to measure ``success'' of the PWC
industry's educational efforts at significantly reducing or eliminating
threats to natural resources and the nuisance and safety problems posed
by the operation of personal watercraft, and how evaluation criteria
will be developed. There was also one meeting with Congressional aides
where concern was expressed about the Sanctuary regulating the safety
of vessel operations in general and PWC (e.g., jet skis) in particular.
As indicated above, the FMP/EIS carefully considered the SAC
recommendations and public comments, including those from the PWC
industry in setting forth its multi-pronged approach to the PWC issue.
In general, the success of any Sanctuary action plan or management
strategy is measured primarily against whether the Sanctuary resource
protection goals are being met, and whether the multiple uses of the
Sanctuary are being facilitated consistent with the primary objective
of resource protection. The FMP/EIS is the result of a long and
laborious public process to identify the threats to Sanctuary resources
and qualities, and then to develop management strategies and action
plans to address these resource management issues, including resource
protection and multiple use management, which includes addressing user
conflicts.
The FMP/EIS sets forth an action plan and strategies to address the
concerns arising from the use of PWCs in regards to protecting
Sanctuary resources, and facilitating compatible multiple use of the
Sanctuary. The FMP/EIS therefore provides additional criteria for the
measurement of success. The STRATEGY FOR STEWARDSHIP (Overview or
Executive Summary of the FKNMS MP/EIS--pages 9, 11-12, 19-20, 23)
discusses these concerns, and a plan to address problems arising from
PWCs, as well as other vessels. NOAA's decision to modify the SAC's
recommendations on PWC regulation was in part based on PWC industry
statements on how it should be given an opportunity to ``self-
regulate'' PWCs, work with NOAA on education geared toward changing
user behavior, and establish criteria for the management of commercial
PWC rental operations.
The problems regarding operation of PWCs and the planned solutions
are identified and discussed throughout the FMP/EIS and therefore
provide criteria against which success can be measured. See Volume I
pp. 16-17 (noise and operation harass wildlife as well as other users),
pp. 108-109 (PWC strategy B-17 discussed under NOAA Regulatory
Actions); Vol. II Environmental Impact Analysis, p. 124 (user conflicts
and habitat impacts), p. 141 (alternative strategies); p. 151 (strategy
Z-5 Special Use Zones to address PWC problems), pp. 182, 203 (PWC
strategy B-17); Vol. III H-3, K-3, L-9, L-10, L-17, M-1, M-2, M-3, M-6,
M-11, M-12, M-22, M-26, M-27, M-28. The public comments on this issue
also provide important input for developing criteria to measure the
success for both the PWC industry and NOAA.
NOAA is already working with the PWC industry to develop broad
measurable milestones by which the industry will increase public
awareness and educate the public about the use of PWCs in the
Sanctuary. When these are achieved by the PWC industry, NOAA is
confident that the proposed education and self-regulation activities
should address concerns that surfaced during the development of the
final management plan. Such measures include the industry conducting
training workshops and school programs, information distribution, and
community awareness. In addition, the PWC industry, NOAA and Florida
Department of Environmental Protection will also develop a two to five
year work plan for the industry based on strategies included in the
Education and Outreach Action Plan contained in the management plan for
the Sanctuary. Further, the PWC industry will conduct research on the
effects of PWC operation on shallow-water seagrass and hardbottom
communities in the Florida Keys. If the PWC industry adequately
implements these measures within the first year after the effective
date of these regulations, NOAA would view this as a significant effort
to address the concerns raised during the development of the final
management plan. In the event zones are subsequently determined to be
necessary, NOAA would seek to discuss such measures with the PWC
industry early in the process. Further, at a minimum under the
Administrative Procedure Act, there would have to be a public notice of
a proposed rule as well as a public comment period. This would likely
involve public hearings before any rule would become final. Moreover,
the rule would also have to be approved by the Governor through the
Board of Trustees in order to become effective in State waters.
Other Modifications to the Final Regulations
In the Federal Register notice of January 30, 1997, appendices II,
IV and V of subpart P, which delineate the boundary coordinates of
Existing Management Areas, Ecological Reserves, and Sanctuary
Preservation Areas, respectively, stated that ``When differential
Global Positioning Systems [GPS] data becomes available, these
coordinates may be revised by Federal Register notice to reflect the
increased accuracy of such data.'' Since publication of the final
regulations on January 30, NOAA has ground-truthed, using differential
GPS, the Western Sambos Ecological Reserve, the Sanctuary Preservation
Areas, and the four Special-use Areas (listed in appendix VI to subpart
P). Consequently, NOAA has modified the regulations to incorporate the
more accurate coordinates for those areas it has ground-truthed using
differential GPS. When differential GPS data become available for the
Existing Management Areas, their coordinates may be revised by Federal
Register notice to reflect the increased accuracy of such data.
III. Summary of the Changes to the Final Regulations at Subpart P
The following summarizes the Sanctuary regulations at 15 CFR part
922, subpart P, modified by this notice. Except as noted below, this
section remains the same as in the January 30, 1997, Federal Register
notice. With the changes, the final rule published on January 30, 1997,
at 62 FR 4578, and the revision of 15 CFR part 922, subpart P, in this
document shall apply throughout the Sanctuary, including within State
waters of the Sanctuary, on July 1, 1997.
Section 922.160 sets forth the purpose of the regulations--to
implement the comprehensive final management plan for the Sanctuary by
regulating activities affecting the Sanctuary in order to protect,
preserve, and manage the conservation, ecological, recreational,
research, educational, historical and aesthetic resources and qualities
of the area. Section 922.160 also describes the five-year review of the
management plan and regulations for the Sanctuary.
Section 922.163 prohibits a variety of activities within the
Sanctuary and in limited instances, outside the Sanctuary, thus making
it unlawful for any person to conduct them or cause them to be
conducted.
The fourth activity prohibited, Sec. 922.163(a)(4), is the
discharge or
[[Page 32160]]
deposit of materials or other matter. Exceptions are made for such
things as fish baits in connection with and during traditional fishing,
biodegradable vessel effluents, graywater, and vessel exhaust and
cooling water. Under Sec. 922.163(a)(4)(ii), upland discharge or
deposit activities conducted pursuant to Monroe County and State
permits are also excepted from the prohibition against discharging or
depositing outside the Sanctuary any material or other matter that
subsequently enters the Sanctuary and injures any Sanctuary resource.
Section 922.163(h) provides that any substantive (non-technical,
non-editorial) amendment to the regulations will not take effect in
State waters until approved by the Florida Board of Trustees. Fishing
regulations will not take effect in State waters until established by
the Florida Marine Fisheries Commission.
Section 922.164 sets forth by Sanctuary zone, restrictions and
prohibitions above and beyond those applicable on a Sanctuary-wide
basis (most of the Sanctuary is not zoned and, therefore, only the
Sanctuary-wide prohibitions of Sec. 922.163 apply). The six types of
Sanctuary zones are: (1) Areas to be Avoided (ATBAs); (2) Existing
Management Areas; (3) Wildlife Management Areas; (4) Ecological
Reserves; (5) Sanctuary Preservation Areas; and (6) Special-use Areas.
Details on the location of these zones are specified in Appendices II,
III, IV, V and VI to subpart P, respectively. The intent of the zoning
regulations is to protect Sanctuary resources, ecosystem and
biodiversity, and provide for effective management and facilitation of
multiple, compatible uses, consistent with the purposes of the
Sanctuary. Activities located within two or more overlapping Sanctuary
zones are concurrently subject to the regulations applicable to each
overlapping area.
Section 922.164(d)(1)(ii) prohibits possessing, moving, harvesting,
removing, taking, damaging, disturbing, breaking, cutting, spearing, or
otherwise injuring any coral, marine invertebrate, fish, bottom
formation, algae, seagrass or other living or dead organism, including
shells, or attempting any of these activities. However, fish,
invertebrates, and marine plants may be possessed aboard a vessel in an
Ecological Reserve or Sanctuary Preservation Area, provided such
resources can be shown not to have been harvested within, removed from,
or taken within, the Ecological Reserve or Sanctuary Preservation Area,
as applicable, by being stowed in a cabin, locker, or similar storage
area prior to entering and during transit through such reserves or
areas, provided further that in an Ecological Reserve or Sanctuary
Preservation Area located in Florida State waters, such vessel is in
continuous transit through the Ecological Reserve or Sanctuary
Preservation Area.
Section 922.164(f) provides that any additional Wildlife Management
Areas, Ecological Reserves, Sanctuary Preservation Areas, or Special-
Use Areas, and additional restrictions in such areas will not take
effect in State waters unless first approved by the Florida Board of
Trustees.
Section 922.165 provides that where necessary to prevent or
minimize the destruction of, loss of, or injury to a Sanctuary
resource, or imminent risk of such destruction of, loss of, or injury,
any and all activities are subject to immediate temporary regulation,
including prohibition. Any such temporary regulation may be in effect
for up to 60 days with one 60-day extension. Additional or extended
action is subject to the provisions of the Administrative Procedure
Act. No emergency regulation will take effect in State waters of the
Sanctuary until approved by the Governor of Florida.
IV. Miscellaneous Rulemaking Requirements
Except as noted below, this section remains the same as in the
January 30, 1997 Federal Register notice.
National Marine Sanctuaries Act
Section 304 of the National Marine Sanctuaries Act provides that
Congress and the Governor have forty-five days of continuous session of
Congress beginning on the day on which the final regulations were
published to review the terms of designation (i.e., regulations and
management plan). After forty-five days, the regulations would become
final and take effect, except that any term or terms of designation the
Governor certified to the Secretary of Commerce as unacceptable would
not take effect in the State waters portion of the Sanctuary. The
forty-five day review period began on January 30, 1997, the date the
final regulations were published in the Federal Register, and concluded
on April 16, 1997. During that period the Governor submitted to the
Secretary a certification that the management plan and certain
regulations were unacceptable unless specific amendments were made to
such regulations. NOAA amended those regulations certified as
unacceptable by incorporating the Governor's changes. Consequently,
upon their effective date the regulations, as revised by this Federal
Register notice, and management plan, in their entirety, will apply
throughout the Sanctuary, including within State waters of the
Sanctuary.
Administrative Procedure Act
The final Sanctuary regulations at 15 CFR part 922, subpart P,
which were promulgated on January 30, 1997, through notice and comment
rulemaking, have been amended pursuant to and consistent with the
procedures required under the National Marine Sanctuaries Act. The NMSA
provides that during the review period of forty-five day continuous
session of Congress, the Governor may certify to the Secretary of
Commerce any regulation as unacceptable and, if the Governor so
certifies, the regulation shall not take effect in the State waters
portion of the Sanctuary. As the changes requested by the Governor and
herein made by NOAA are within the scope of the proposed rule,
additional prior notice and opportunity for public comment are not
required by the Administrative Procedure Act (APA), 5 U.S.C. 553. The
basis and purpose of the changes to the final regulations requested by
the Governor have been set forth above.
The Assistant Administrator for Ocean Services and Coastal Zone
Management has determined that, pursuant to 5 U.S.C. 553(d)(3), there
is good cause for making the modifications to the final regulations
published in this document effective without a thirty day delay in
effective date. The primary purpose of the delayed effective date is to
provide the public a reasonable time to prepare to comply with the
regulations. The modifications to the final regulations pertaining to
the Governor's approval of new and emergency regulations, and the five
year review of the management plan and regulations do not require
compliance by the general public and, therefore, a delayed effective
date is unnecessary. Further, the requirement that vessels possessing
fish, invertebrates or marine plants must be in continuous transit
through SPAs and Reserves located in State waters is currently a
requirement under State regulations and, therefore, a delayed effective
date is also unnecessary as the general public must already comply with
that corresponding restriction. Finally, the modification to the
exception to the prohibition against discharging and depositing outside
the Sanctuary any material or other matter that subsequently enters and
injures a Sanctuary resource broadens the exception to include
activities authorized by State permit and,
[[Page 32161]]
therefore, relieves a restriction, specifically excepted from a delay
in effective date under 5 U.S.C. 553(d)(1). Consequently, the final
rule published on January 30, 1997, at 62 FR 4578 and the revision of
15 CFR part 922, subpart P in this document are effective July 1, 1997.
Regulatory Flexibility Act
The January 30, 1997 Federal Register notice stated:
Because the Assistant General Counsel for Legislation and
Regulation of the Department of Commerce certified to the Chief
Counsel for Advocacy of the Small Business Administration that the
proposed regulations, if adopted, would not have a significant
economic impact on a substantial number of small entities, an
Initial Regulatory Flexibility Analysis (IRFA) was not prepared.
Nevertheless, because the final regulations will affect a
substantial number of small entities, although not in an
economically significant way, and particularly because some
representatives of the small entity fishing industry criticized the
DEIS socioeconomic assessment of the zoning scheme, a Final
Regulatory Flexibility Analysis (FRFA) was prepared that fully
complies with the requirements of Regulatory Flexibility Act.
The changes made in response to the Governor's request do not
change the basis for that certification. In response to the FRFA, the
Office of the Chief Counsel for Advocacy of the Small Business
Administration (SBA) received several comments critical of certain
portions of the FRFA, specifically as regards the treatment of
submerged cultural resources and the impacts to treasure salvors.
Comments were also received from the Florida Keys Marine Life
Association raising concerns that the impacts to their industry have
not been properly qualified in the economic impact analysis. Because of
the time provided by the forty-five day review period under the
National Marine Sanctuaries Act, NOAA is supplementing the FRFA to
address the comments received by the SBA. The final supplemental FRFA
will be completed prior to the effective date of these regulations.
Upon its completion, NOAA will publish a Federal Register notice
summarizing the supplemental FRFA and announcing its availability, and,
if appropriate, making any changes to the regulations NOAA determines
are necessary as a result of the supplemental FRFA.
List of Subjects in 15 CFR Parts 922, 929, and 937
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Natural resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
Dated: June 5, 1997.
Nancy Foster,
Assistant Administrator for Ocean Services and Coastal Zone Management.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
amended as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
1. The authority citation for part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
2. Part 922 is amended by revising subpart P to read as follows:
Subpart P--Florida Keys National Marine Sanctuary
Sec.
922.160 Purpose.
922.161 Boundary.
922.162 Definitions.
922.163 Prohibited activities--Sanctuary-wide.
922.164 Additional activity regulations by Sanctuary area.
922.165 Emergency regulations.
922.166 Permits--application procedures and issuance criteria.
922.167 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
Appendix I to Subpart P of Part 922--Florida Keys National Marine
Sanctuary Boundary Coordinates
Appendix II to Subpart P of Part 922--Existing Management Areas
Boundary Coordinates
Appendix III to Subpart P of Part 922--Wildlife Management Areas
Access Restrictions
Appendix IV to Subpart P of Part 922--Ecological Reserves Boundary
Coordinates
Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas
Boundary Coordinates
Appendix VI to Subpart P of Part 922--Special-use Areas Boundary
Coordinates and Use Designations
Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary
Coordinates
Appendix VIII to Subpart P of Part 922--Marine Life Rule [As
Excerpted From Chapter 46-42 of the Florida Administrative Code]
Subpart P--Florida Keys National Marine Sanctuary
Sec. 922.160 Purpose.
(a) The purpose of the regulations in this subpart is to implement
the comprehensive management plan for the Florida Keys National Marine
Sanctuary by regulating activities affecting the resources of the
Sanctuary or any of the qualities, values, or purposes for which the
Sanctuary is designated, in order to protect, preserve and manage the
conservation, ecological, recreational, research, educational,
historical, and aesthetic resources and qualities of the area. In
particular, the regulations in this part are intended to protect,
restore, and enhance the living resources of the Sanctuary, to
contribute to the maintenance of natural assemblages of living
resources for future generations, to provide places for species
dependent on such living resources to survive and propagate, to
facilitate to the extent compatible with the primary objective of
resource protection all public and private uses of the resources of the
Sanctuary not prohibited pursuant to other authorities, to reduce
conflicts between such compatible uses, and to achieve the other
policies and purposes of the Florida Keys National Marine Sanctuary and
Protection Act and the National Marine Sanctuaries Act.
(b) Section 304(e) of the NMSA requires the Secretary to review
management plans and regulations every five years, and make necessary
revisions. Upon completion of the five year review of the Sanctuary
management plan and regulations, the Secretary will repropose the
regulations in their entirety with any proposed changes thereto,
including those regulations in subparts A and E of this part that apply
to the Sanctuary. The Governor of the State of Florida will have the
opportunity to review the re-proposed regulations before they take
effect and if the Governor certifies such regulations as unacceptable,
they will not take effect in State waters of the Sanctuary.
Sec. 922.161 Boundary.
The Sanctuary consists of all submerged lands and waters from the
mean high water mark to the boundary described in Appendix I to this
subpart, with the exception of areas within the Dry Tortugas National
Park. Appendix I to this subpart sets forth the precise Sanctuary
boundary established by the Florida Keys National Marine Sanctuary and
Protection Act. (See FKNMSPA Sec. 5(b)(2)).
Sec. 922.162 Definitions.
(a) The following definitions apply to the Florida Keys National
Marine Sanctuary regulations. To the extent that a definition appears
in Sec. 922.3 and this section, the definition in this section governs.
[[Page 32162]]
Acts means the Florida Keys National Marine Sanctuary and
Protection Act, as amended, (FKNMSPA) (Pub. L. 101-605), and the
National Marine Sanctuaries Act (NMSA), also known as Title III of the
Marine Protection, Research, and Sanctuaries Act, as amended, (MPRSA)
(16 U.S.C. 1431 et seq.).
Adverse effect means any factor, force, or action that
independently or cumulatively damages, diminishes, degrades, impairs,
destroys, or otherwise harms any Sanctuary resource, as defined in
section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or
any of the qualities, values, or purposes for which the Sanctuary is
designated.
Airboat means a vessel operated by means of a motor driven
propeller that pushes air for momentum.
Areas To Be Avoided means the areas in which vessel operations are
prohibited pursuant to section 6(a)(1) of the FKNMSPA (see
Sec. 922.164(a)). Appendix VII to this subpart sets forth the
geographic coordinates of these areas, including any modifications
thereto made in accordance with section 6(a)(3) of the FKNMSPA.
Closed means all entry or use is prohibited.
Coral means the corals of the Class Hydrozoa (stinging and
hydrocorals); the Class Anthozoa, Subclass Hexacorallia, Order
Scleractinia (stony corals) and Antipatharia (black corals).
Coral area means marine habitat where coral growth abounds
including patch reefs, outer bank reefs, deepwater banks, and
hardbottoms.
Coral reefs means the hard bottoms, deep-water banks, patch reefs,
and outer bank reefs.
Ecological Reserve means an area of the Sanctuary consisting of
contiguous, diverse habitats, within which uses are subject to
conditions, restrictions and prohibitions, including access
restrictions, intended to minimize human influences, to provide natural
spawning, nursery, and permanent residence areas for the replenishment
and genetic protection of marine life, and also to protect and preserve
natural assemblages of habitats and species within areas representing a
broad diversity of resources and habitats found within the Sanctuary.
Appendix IV to this subpart sets forth the geographic coordinates of
these areas.
Existing Management Area means an area of the Sanctuary that is
within or is a resource management area established by NOAA or by
another Federal authority of competent jurisdiction as of the effective
date of these regulations where protections above and beyond those
provided by Sanctuary-wide prohibitions and restrictions are needed to
adequately protect resources. Appendix II to this subpart sets forth
the geographic coordinates of these areas.
Exotic species means a species of plant, invertebrate, fish,
amphibian, reptile or mammal whose natural zoogeographic range would
not have included the waters of the Atlantic Ocean, Caribbean, or Gulf
of Mexico without passive or active introduction to such area through
anthropogenic means.
Fish means finfish, mollusks, crustaceans, and all forms of marine
animal and plant life other than marine mammals and birds.
Fishing means:
(1) The catching, taking, or harvesting of fish; the attempted
catching, taking, or harvesting of fish; any other activity which can
reasonably be expected to result in the catching, taking, or harvesting
of fish; or any operation at sea in support of, or in preparation for,
any activity described in this subparagraph (1).
(2) Such term does not include any scientific research activity
which is conducted by a scientific research vessel.
Hardbottom means a submerged marine community comprised of
organisms attached to exposed solid rock substrate. Hardbottom is the
substrate to which corals may attach but does not include the corals
themselves.
Idle speed only/no-wake means a speed at which a boat is operated
that is no greater than 4 knots or does not produce a wake.
Idle speed only/no-wake zone means a portion of the Sanctuary where
the speed at which a boat is operated may be no greater than 4 knots or
may not produce a wake.
Live rock means any living marine organism or an assemblage thereof
attached to a hard substrate, including dead coral or rock but not
individual mollusk shells (e.g., scallops, clams, oysters). Living
marine organisms associated with hard bottoms, banks, reefs, and live
rock may include, but are not limited to: sea anemones (Phylum
Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera);
tube worms (Phylum Annelida), including fan worms, feather duster
worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts
(Phylum Chordata); and marine algae, including Mermaid's fan and cups
(Udotea spp.), corraline algae, green feather, green grape algae
(Caulerpa spp.) and watercress (Halimeda spp.).
Marine life species means any species of fish, invertebrate, or
plant included in sections (2), (3), or (4) of Rule 46-42.001, Florida
Administrative Code, reprinted in Appendix VIII to this subpart.
Military activity means an activity conducted by the Department of
Defense with or without participation by foreign forces, other than
civil engineering and other civil works projects conducted by the U.S.
Army Corps of Engineers.
No-access buffer zone means a portion of the Sanctuary where
vessels are prohibited from entering regardless of the method of
propulsion.
No motor zone means an area of the Sanctuary where the use of
internal combustion motors is prohibited. A vessel with an internal
combustion motor may access a no motor zone only through the use of a
push pole, paddle, sail, electric motor or similar means of operation
but is prohibited from using it's internal combustion motor.
Not available for immediate use means not readily accessible for
immediate use, e.g., by being stowed unbaited in a cabin, locker, rod
holder, or similar storage area, or by being securely covered and
lashed to a deck or bulkhead.
Officially marked channel means a channel marked by Federal, State
of Florida, or Monroe County officials of competent jurisdiction with
navigational aids except for channels marked idle speed only/no wake.
Personal watercraft means any jet or air-powered watercraft
operated by standing, sitting, or kneeling on or behind the vessel, in
contrast to a conventional boat, where the operator stands or sits
inside the vessel, and that uses an inboard engine to power a water jet
pump for propulsion, instead of a propeller as in a conventional boat.
Prop dredging means the use of a vessel's propulsion wash to dredge
or otherwise alter the seabed of the Sanctuary. Prop dredging includes,
but is not limited to, the use of propulsion wash deflectors or similar
means of dredging or otherwise altering the seabed of the Sanctuary.
Prop dredging does not include the disturbance to bottom sediments
resulting from normal vessel propulsion.
Prop scarring means the injury to seagrasses or other immobile
organisms attached to the seabed of the Sanctuary caused by operation
of a vessel in a manner that allows its propeller or other running
gear, or any part thereof, to cause such injury (e.g., cutting seagrass
rhizomes). Prop scarring does not include minor disturbances to bottom
sediments or seagrass blades resulting from normal vessel propulsion.
[[Page 32163]]
Residential shoreline means any man-made or natural:
(1) Shoreline,
(2) Canal mouth,
(3) Basin, or
(4) Cove adjacent to any residential land use district, including
improved subdivision, suburban residential or suburban residential
limited, sparsely settled, urban residential, and urban residential
mobile home under the Monroe County land development regulations.
Sanctuary means the Florida Keys National Marine Sanctuary.
Sanctuary Preservation Area means an area of the Sanctuary that
encompasses a discrete, biologically important area, within which uses
are subject to conditions, restrictions and prohibitions, including
access restrictions, to avoid concentrations of uses that could result
in significant declines in species populations or habitat, to reduce
conflicts between uses, to protect areas that are critical for
sustaining important marine species or habitats, or to provide
opportunities for scientific research. Appendix V to this subpart sets
forth the geographic coordinates of these areas.
Sanctuary wildlife means any species of fauna, including avifauna,
that occupy or utilize the submerged resources of the Sanctuary as
nursery areas, feeding grounds, nesting sites, shelter, or other
habitat during any portion of their life cycles.
Seagrass means any species of marine angiosperms (flowering plants)
that inhabit portions of the seabed in the Sanctuary. Those species
include, but are not limited to: Thalassia testudinum (turtle grass);
Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass);
Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima.
Special-use Area means an area of the Sanctuary set aside for
scientific research and educational purposes, recovery or restoration
of Sanctuary resources, monitoring, to prevent use or user conflicts,
to facilitate access and use, or to promote public use and
understanding of Sanctuary resources. Appendix VI to this subpart sets
forth the geographic coordinates of these areas.
Tank vessel means any vessel that is constructed or adapted to
carry, or that carries, oil or hazardous material in bulk as cargo or
cargo residue, and that--
(1) Is a United States flag vessel;
(2) Operates on the navigable waters of the United States; or
(3) Transfers oil or hazardous material in a port or place subject
to the jurisdiction of the United States [46 U.S.C. 2101].
Traditional fishing means those commercial or recreational fishing
activities that were customarily conducted within the Sanctuary prior
to its designation as identified in the Environmental Impact Statement
and Management Plan for this Sanctuary.
Tropical fish means any species included in section (2) of Rule 46-
42.001, Florida Administrative Code, reproduced in Appendix VIII to
this subpart, or any part thereof.
Vessel means a watercraft of any description, including, but not
limited to, motorized and non-motorized watercraft, personal
watercraft, airboats, and float planes while maneuvering on the water,
capable of being used as a means of transportation in/on the waters of
the Sanctuary. For purposes of this part, the terms ``vessel,''
``watercraft,'' and ``boat'' have the same meaning.
Wildlife Management Area means an area of the Sanctuary established
for the management, protection, and preservation of Sanctuary wildlife
resources, including such an area established for the protection and
preservation of endangered or threatened species or their habitats,
within which access is restricted to minimize disturbances to Sanctuary
wildlife; to ensure protection and preservation consistent with the
Sanctuary designation and other applicable law governing the protection
and preservation of wildlife resources in the Sanctuary. Appendix III
to this subpart lists these areas and their access restrictions.
(b) Other terms appearing in the regulations in this part are
defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and
Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16
U.S.C. 1431 et seq.
Sec. 922.163 Prohibited activities--Sanctuary-wide.
(a) Except as specified in paragraph (b) through (e) of this
section, the following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted:
(1) Mineral and hydrocarbon exploration, development and
production. Exploring for, developing, or producing minerals or
hydrocarbons within the Sanctuary.
(2) Removal of, injury to, or possession of coral or live rock. (i)
Moving, removing, taking, harvesting, damaging, disturbing, breaking,
cutting, or otherwise injuring, or possessing (regardless of where
taken from) any living or dead coral, or coral formation, or attempting
any of these activities, except as permitted under 50 CFR part 638.
(ii) Harvesting, or attempting to harvest, any live rock from the
Sanctuary, or possessing (regardless of where taken from) any live rock
within the Sanctuary, except as authorized by a permit for the
possession or harvest from aquaculture operations in the Exclusive
Economic Zone, issued by the National Marine Fisheries Service pursuant
to applicable regulations under the appropriate Fishery Management
Plan, or as authorized by the applicable State authority of competent
jurisdiction within the Sanctuary for live rock cultured on State
submerged lands leased from the State of Florida, pursuant to
applicable State law. See Sec. 370.027, Florida Statutes and
implementing regulations.
(3) Alteration of, or construction on, the seabed. Drilling into,
dredging, or otherwise altering the seabed of the Sanctuary, or
engaging in prop-dredging; or constructing, placing or abandoning any
structure, material, or other matter on the seabed of the Sanctuary,
except as an incidental result of:
(i) Anchoring vessels in a manner not otherwise prohibited by this
part (see Secs. 922.163(a)(5)(ii) and 922.164(d)(1)(v));
(ii) Traditional fishing activities not otherwise prohibited by
this part;
(iii) Installation and maintenance of navigational aids by, or
pursuant to valid authorization by, any Federal, State, or local
authority of competent jurisdiction;
(iv) Harbor maintenance in areas necessarily associated with
Federal water resource development projects in existence on July 1,
1997, including maintenance dredging of entrance channels and repair,
replacement, or rehabilitation of breakwaters or jetties;
(v) Construction, repair, replacement, or rehabilitation of docks,
seawalls, breakwaters, piers, or marinas with less than ten slips
authorized by any valid lease, permit, license, approval, or other
authorization issued by any Federal, State, or local authority of
competent jurisdiction.
(4) Discharge or deposit of materials or other matter. (i)
Discharging or depositing, from within the boundary of the Sanctuary,
any material or other matter, except:
(A) Fish, fish parts, chumming materials, or bait used or produced
incidental to and while conducting a traditional fishing activity in
the Sanctuary;
(B) Biodegradable effluent incidental to vessel use and generated
by a marine sanitation device approved in
[[Page 32164]]
accordance with section 312 of the Federal Water Pollution Control Act,
as amended, (FWPCA), 33 U.S.C. 1322 et seq.;
(C) Water generated by routine vessel operations (e.g., deck wash
down and graywater as defined in section 312 of the FWPCA), excluding
oily wastes from bilge pumping; or
(D) Cooling water from vessels or engine exhaust;
(ii) Discharging or depositing, from beyond the boundary of the
Sanctuary, any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality, except those
listed in paragraph (a)(4)(i) (A) through (D) of this section and those
authorized under Monroe County land use permits or under State permits.
(5) Operation of vessels. (i) Operating a vessel in such a manner
as to strike or otherwise injure coral, seagrass, or any other immobile
organism attached to the seabed, including, but not limited to,
operating a vessel in such a manner as to cause prop-scarring.
(ii) Having a vessel anchored on living coral other than hardbottom
in water depths less than 40 feet when visibility is such that the
seabed can be seen.
(iii) Except in officially marked channels, operating a vessel at a
speed greater than 4 knots or in manner which creates a wake:
(A) Within an area designated idle speed only/no wake;
(B) Within 100 yards of navigational aids indicating emergent or
shallow reefs (international diamond warning symbol);
(C) Within 100 feet of the red and white ``divers down'' flag (or
the blue and white ``alpha'' flag in Federal waters);
(D) Within 100 yards of residential shorelines; or
(E) Within 100 yards of stationary vessels.
(iv) Operating a vessel in such a manner as to injure or take
wading, roosting, or nesting birds or marine mammals.
(v) Operating a vessel in a manner which endangers life, limb,
marine resources, or property.
(6) Conduct of diving/snorkeling without flag. Diving or snorkeling
without flying in a conspicuous manner the red and white ``divers
down'' flag (or the blue and white ``alpha'' flag in Federal waters).
(7) Release of exotic species. Introducing or releasing an exotic
species of plant, invertebrate, fish, amphibian, or mammals into the
Sanctuary.
(8) Damage or removal of markers. Marking, defacing, or damaging in
any way or displacing, removing, or tampering with any official signs,
notices, or placards, whether temporary or permanent, or with any
navigational aids, monuments, stakes, posts, mooring buoys, boundary
buoys, trap buoys, or scientific equipment.
(9) Movement of, removal of, injury to, or possession of Sanctuary
historical resources. Moving, removing, injuring, or possessing, or
attempting to move, remove, injure, or possess, a Sanctuary historical
resource.
(10) Take or possession of protected wildlife. Taking any marine
mammal, sea turtle, or seabird in or above the Sanctuary, except as
authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16
U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16
U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended,
(MBTA) 16 U.S.C. 703 et seq.
(11) Possession or use of explosives or electrical charges.
Possessing, or using explosives, except powerheads, or releasing
electrical charges within the Sanctuary.
(12) 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 46-42.001 through 46-
42.003, 46-42.0035, and 46-42.004 through 46-42.007, and 46.42.009 of
the Florida Administrative Code, reproduced in Appendix VIII to this
subpart, and such rules shall apply mutatis mutandis (with necessary
editorial changes) to all Federal and State waters within the
Sanctuary.
(13) Interference with law enforcement. Interfering with,
obstructing, delaying or preventing an investigation, search, seizure,
or disposition of seized property in connection with enforcement of the
Acts or any regulation or permit issued under the Acts.
(b) 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,
and conducted in accordance with the scope, purpose, terms, and
conditions of, a National Marine Sanctuary permit issued pursuant to
Sec. 922.166.
(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 a
valid Federal, State, or local lease, permit, license, approval, or
other authorization in existence on the effective date of these
regulations, or by any valid right of subsistence use or access in
existence on the effective date of these regulations, provided that the
holder of such authorization or right complies with Sec. 922.167 and
with any terms and conditions on the exercise of such authorization or
right imposed by the Director as a condition of certification as he or
she deems reasonably necessary to achieve the purposes for which the
Sanctuary was designated.
(d) 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. 922.168,
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.
(e) (1) All military activities shall be carried out in a manner
that avoids to the maximum extent practical any adverse impacts on
Sanctuary resources and qualities. The prohibitions in paragraph (a) of
this section and Sec. 922.164 do not apply to existing classes of
military activities which were conducted prior to the effective date of
these regulations, as identified in the Environmental Impact Statement
and Management Plan for the Sanctuary. New military activities in the
Sanctuary are allowed and may be exempted from the prohibitions in
paragraph (a) of this section and in Sec. 922.164 by the Director after
consultation between the Director and the Department of Defense
pursuant to section 304(d) of the NMSA. When a military activity is
modified such that it is likely to destroy, cause the loss of, or
injure a Sanctuary resource or quality in a manner significantly
greater than was considered in a previous consultation under section
304(d) of the NMSA, or it is likely to destroy, cause the loss of, or
injure a Sanctuary resource or quality not previously considered in a
previous consultation under section 304(d) of the NMSA, the activity is
considered a new activity for purposes of this paragraph. If it is
determined that an activity may be carried out, such activity shall be
carried out in a manner that avoids to the maximum extent practical any
[[Page 32165]]
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
the Department of Defense, the cognizant component shall promptly
coordinate with the Director for the purpose of taking appropriate
actions to prevent, respond to or mitigate the harm and, if possible,
restore or replace the Sanctuary resource or quality.
(f) The prohibitions contained in paragraph (a)(5) of this section
do not apply to Federal, State and local officers while performing
enforcement duties and/or responding to emergencies that threaten life,
property, or the environment in their official capacity.
(g) Notwithstanding paragraph (b) of this section and paragraph (a)
of Sec. 922.168, in no event may the Director issue a permit under
Sec. 922.166 authorizing, or otherwise approve, the exploration for,
leasing, development, or production of minerals or hydrocarbons within
the Sanctuary, the disposal of dredged material within the Sanctuary
other than in connection with beach renourishment or Sanctuary
restoration projects, or the discharge of untreated or primary treated
sewage (except by a certification, pursuant to Sec. 922.167, of a valid
authorization in existence on the effective date of these regulations),
and any purported authorizations issued by other authorities after the
effective date of these regulations for any of these activities within
the Sanctuary shall be invalid.
(h) Any amendment to these regulations shall not take effect in
Florida State waters until approved by the Board of Trustees of the
Internal Improvement Trust Fund of the State of Florida. Any fishery
regulations in the Sanctuary shall not take effect in Florida State
waters until established by the Florida Marine Fisheries Commission.
Sec. 922.164 Additional activity regulations by Sanctuary area.
In addition to the prohibitions set forth in Sec. 922.163, which
apply throughout the Sanctuary, the following regulations apply with
respect to activities conducted within the Sanctuary areas described in
this section and in Appendix (II) through (VII) to this subpart.
Activities located within two or more overlapping Sanctuary areas are
concurrently subject to the regulations applicable to each overlapping
area.
(a) Areas To Be Avoided. Operating a tank vessel or a vessel
greater than 50 meters in registered length is prohibited in all areas
to be avoided, except if such vessel is a public vessel and its
operation is essential for national defense, law enforcement, or
responses to emergencies that threaten life, property, or the
environment. Appendix VII to this subpart sets forth the geographic
coordinates of these areas.
(b) Existing Management Areas.--(1) Key Largo and Looe Key
Management Areas. The following activities are prohibited within the
Key Largo and Looe Key Management Areas (also known as the Key Largo
and Looe Key National Marine Sanctuaries) described in Appendix II to
this subpart:
(i) Removing, taking, damaging, harmfully disturbing, breaking,
cutting, spearing or similarly injuring any coral or other marine
invertebrate, or any plant, soil, rock, or other material, except
commercial taking of spiny lobster and stone crab by trap and
recreational taking of spiny lobster by hand or by hand gear which is
consistent with these regulations and the applicable regulations
implementing the applicable Fishery Management Plan.
(ii) Taking any tropical fish.
(iii) Fishing with wire fish traps, bottom trawls, dredges, fish
sleds, or similar vessel-towed or anchored bottom fishing gear or nets.
(iv) Fishing with, carrying or possessing, except while passing
through without interruption or for law enforcement purposes: pole
spears, air rifles, bows and arrows, slings, Hawaiian slings, rubber
powered arbaletes, pneumatic and spring-loaded guns or similar devices
known as spearguns.
(2) Great White Heron and Key West National Wildlife Refuge
Management Areas. Operating a personal watercraft, operating an
airboat, or water skiing except within Township 66 South, Range 29
East, Sections 5, 11, 12 and 14; Township 66 South, Range 28 East,
Section 2; Township 67 South, Range 26 East, Sections 16 and 20, all
Tallahassee Meridian, are prohibited within the marine portions of the
Great White Heron and Key West National Wildlife Refuge Management
Areas described in Appendix II to this subpart.
(c) Wildlife Management Areas. (1) Marine portions of the Wildlife
Management Areas listed in Appendix III to this subpart or portions
thereof may be designated ``idle speed only/no-wake,'' ``no-motor'' or
``no-access buffer'' zones or ``closed''. The Director, in cooperation
with other Federal, State, or local resource management authorities, as
appropriate, shall post signs conspicuously, using mounting posts,
buoys, or other means according to location and purpose, at appropriate
intervals and locations, clearly delineating an area as an ``idle speed
only/no wake'', a ``no-motor'', or a ``no-access buffer'' zone or as
``closed'', and allowing instant, long-range recognition by boaters.
Such signs shall display the official logo of the Sanctuary.
(2) The following activities are prohibited within the marine
portions of the Wildlife Management Areas listed in Appendix III to
this subpart:
(i) In those marine portions of any Wildlife Management Area
designated an ``idle speed only/no wake'' zone in Appendix III to this
subpart, operating a vessel at a speed greater that idle speed only/no
wake.
(ii) In those marine portions of any Wildlife Management Area
designated a ``no-motor'' zone in Appendix III to this subpart, using
internal combustion motors or engines for any purposes. A vessel with
an internal combustion motor or engine may access a ``no-motor'' zone
only through the use of a push pole, paddle, sail, electric motor or
similar means of propulsion.
(iii) In those marine portions of any Wildlife Management Area
designated a ``no-access buffer'' zone in Appendix III of this subpart,
entering the area by vessel.
(iv) In those marine portions of any Wildlife Management Area
designated as closed in Appendix III of this subpart, entering or using
the area.
(3) The Director shall coordinate with other Federal, State, or
local resource management authorities, as appropriate, in the
establishment and enforcement of access restrictions described in
paragraph (c)(2) (i)-(iv) of this section in the marine portions of
Wildlife Management Areas.
(4) The Director may modify the number and location of access
restrictions described in paragraph (c)(2) (i)-(iv) of this section
within the marine portions of a Wildlife Management Area if the
Director finds that such action is reasonably necessary to minimize
disturbances to Sanctuary wildlife, or to ensure protection and
preservation of Sanctuary wildlife consistent with the purposes of the
Sanctuary designation and other applicable law governing the protection
and preservation of wildlife resources in the Sanctuary. The Director
will effect such modification by:
(i) Publishing in the Federal Register, after notice and an
opportunity for public comments in accordance, an amendment to the list
of such areas set forth in Appendix III to this subpart, and a notice
regarding the time and place where maps depicting the precise locations
of such restrictions will be
[[Page 32166]]
made available for public inspection, and
(ii) Posting official signs delineating such restrictions in
accordance with paragraph (c)(1) of this section.
(d) Ecological Reserves and Sanctuary Preservation Areas. (1) The
following activities are prohibited within the Ecological Reserves
described in Appendix IV to this subpart, and within the Sanctuary
Preservation Areas, described in Appendix V to this subpart:
(i) Discharging or depositing any material or other matter except
cooling water or engine exhaust.
(ii) Possessing, moving, harvesting, removing, taking, damaging,
disturbing, breaking, cutting, spearing, or otherwise injuring any
coral, marine invertebrate, fish, bottom formation, algae, seagrass or
other living or dead organism, including shells, or attempting any of
these activities. However, fish, invertebrates, and marine plants may
be possessed aboard a vessel in an Ecological Reserve or Sanctuary
Preservation Area, provided such resources can be shown not to have
been harvested within, removed from, or taken within, the Ecological
Reserve or Sanctuary Preservation Area, as applicable, by being stowed
in a cabin, locker, or similar storage area prior to entering and
during transit through such reserves or areas, provided further that in
an Ecological Reserve or Sanctuary Preservation Area located in Florida
State waters, such vessel is in continuous transit through the
Ecological Reserve or Sanctuary Preservation Area.
(iii) Except for catch and release fishing by trolling in the Conch
Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any
means. However, gear capable of harvesting fish may be aboard a vessel
in an Ecological Reserve or Sanctuary Preservation Area, provided such
gear is not available for immediate use when entering and during
transit through such Ecological Reserve or Sanctuary Preservation Area,
and no presumption of fishing activity shall be drawn therefrom.
(iv) Touching living or dead coral, including but not limited to,
standing on a living or dead coral formation.
(v) Placing any anchor in a way that allows the anchor or any
portion of the anchor apparatus (including the anchor, chain or rope)
to touch living or dead coral, or any attached organism. When anchoring
dive boats, the first diver down must inspect the anchor to ensure that
it is not touching living or dead coral, and will not shift in such a
way as to touch such coral or other attached organisms. No further
diving shall take place until the anchor is placed in accordance with
these requirements.
(vi) Anchoring instead of mooring when a mooring buoy is available
or anchoring in other than a designated anchoring area when such areas
have been designated and are available.
(vii) Except for passage without interruption through the area, for
law enforcement purposes, or for purposes of monitoring pursuant to
paragraph (d)(2) of this section, violating a temporary access
restriction imposed by the Director pursuant to paragraph (d)(2) of
this section.
(2) The Director may temporarily restrict access to any portion of
any Sanctuary Preservation Area or Ecological Reserve if the Director,
on the basis of the best available data, information and studies,
determines that a concentration of use appears to be causing or
contributing to significant degradation of the living resources of the
area and that such action is reasonably necessary to allow for recovery
of the living resources of such area. The Director will provide for
continuous monitoring of the area during the pendency of the
restriction. The Director will provide public notice of the restriction
by publishing a notice in the Federal Register, and by such other means
as the Director may deem appropriate. The Director may only restrict
access to an area for a period of 60 days, with one additional 60 day
renewal. The Director may restrict access to an area for a longer
period pursuant to a notice and opportunity for public comment
rulemaking under the Administrative Procedure Act. Such restriction
will be kept to the minimum amount of area necessary to achieve the
purposes thereof.
(e) Special-use Areas. (1) The Director may set aside discrete
areas of the Sanctuary as Special-use Areas, and, by designation
pursuant to this paragraph, impose the access and use restrictions
specified in paragraph (e)(3) of this section. Special-use Areas are
described in Appendix VI to this subpart, in accordance with the
following designations and corresponding objectives:
(i) ``Recovery area'' to provide for the recovery of Sanctuary
resources from degradation or other injury attributable to human uses;
(ii) ``Restoration area'' to provide for restoration of degraded or
otherwise injured Sanctuary resources;
(iii) ``Research-only area'' to provide for scientific research or
education relating to protection and management, through the issuance
of a Sanctuary General permit for research pursuant to Sec. 922.166 of
these regulations; and
(iv) ``Facilitated-use area'' to provide for the prevention of use
or user conflicts or the facilitation of access and use, or to promote
public use and understanding, of Sanctuary resources through the
issuance of special-use permits.
(2) A Special-use Area shall be no larger than the size the
Director deems reasonably necessary to accomplish the applicable
objective.
(3) Persons conducting activities within any Special-use Area shall
comply with the access and use restrictions specified in this paragraph
and made applicable to such area by means of its designation as a
``recovery area,'' ``restoration area,'' ``research-only area,'' or
``facilitated-use area.'' Except for passage without interruption
through the area or for law enforcement purposes, no person may enter a
Special-use Area except to conduct or cause to be conducted the
following activities:
(i) in such area designated as a ``recovery area'' or a
``restoration area'', habitat manipulation related to restoration of
degraded or otherwise injured Sanctuary resources, or activities
reasonably necessary to monitor recovery of degraded or otherwise
injured Sanctuary resources;
(ii) in such area designated as a ``research only area'',
scientific research or educational use specifically authorized by and
conducted in accordance with the scope, purpose, terms and conditions
of a valid National Marine Sanctuary General or Historical Resources
permit, or
(iii) in such area designated as a ``facilitated-use area'',
activities specified by the Director or specifically authorized by and
conducted in accordance with the scope, purpose, terms, and conditions
of a valid Special-use permit.
(4)(i) The Director may modify the number of, location of, or
designations applicable to, Special-use Areas by publishing in the
Federal Register, after notice and an opportunity for public comment in
accordance with the Administrative Procedure Act, an amendment to
Appendix VI to this subpart, except that, with respect to such areas
designated as a ``recovery area,'' ``restoration area,'' or ``research
only area,'' the Director may modify the number of, location of, or
designation applicable to, such areas by publishing a notice of such
action in the Federal Register if the Director determines that
immediate action is reasonably necessary to:
(A) Prevent significant injury to Sanctuary resources where
[[Page 32167]]
circumstances create an imminent risk to such resources;
(B) Initiate restoration activity where a delay in time would
significantly impair the ability of such restoration activity to
succeed;
(C) Initiate research activity where an unforeseen natural event
produces an opportunity for scientific research that may be lost if
research is not initiated immediately.
(ii) If the Director determines that a notice of modification must
be promulgated immediately in accordance with paragraph (e)(4)(i) of
this section, the Director will, as part of the same notice, invite
public comment and specify that comments will be received for 15 days
after the effective date of the notice. As soon as practicable after
the end of the comment period, the Director will either rescind, modify
or allow the modification to remain unchanged through notice in the
Federal Register.
(f) Additional Wildlife Management Areas, Ecological Reserves,
Sanctuary Preservation Areas, or Special-use Areas, and additional
restrictions in such areas, shall not take effect in Florida State
waters unless first approved by the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida.
Sec. 922.165 Emergency regulations.
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or minimize the imminent
risk of such destruction, loss, or injury, any and all activities are
subject to immediate temporary regulation, including prohibition.
Emergency regulations shall not take effect in Florida territorial
waters until approved by the Governor of the State of Florida. Any
temporary regulation may be in effect for up to 60 days, with one 60-
day extension. Additional or extended action will require notice and
comment rulemaking under the Administrative Procedure Act, notice in
local newspapers, notice to Mariners, and press releases.
Sec. 922.166 Permits--application procedures and issuance criteria.
(a) National Marine Sanctuary General Permit.--(1) A person may
conduct an activity prohibited by Secs. 922.163 or 922.164, other than
an activity involving the survey/inventory, research/recovery, or
deaccession/transfer of Sanctuary historical resources, if such
activity is specifically authorized by, and provided such activity is
conducted in accordance with the scope, purpose, terms and conditions
of, a National Marine Sanctuary General permit issued under this
paragraph (a).
(2) The Director, at his or her discretion, may issue a General
permit under this paragraph (a), subject to such terms and conditions
as he or she deems appropriate, if the Director finds that the activity
will:
(i) Further research or monitoring related to Sanctuary resources
and qualities;
(ii) Further the educational value of the Sanctuary;
(iii) Further the natural or historical resource value of the
Sanctuary;
(iv) Further salvage or recovery operations in or near the
Sanctuary in connection with a recent air or marine casualty;
(v) Assist in managing the Sanctuary; or
(vi) Otherwise further Sanctuary purposes, including facilitating
multiple use of the Sanctuary, to the extent compatible with the
primary objective of resource protection.
(3) The Director shall not issue a General permit under this
paragraph (a), unless the Director also finds that:
(i) The applicant is professionally qualified to conduct and
complete the proposed activity;
(ii) The applicant has adequate financial resources available to
conduct and complete the proposed activity;
(iii) The duration of the proposed activity is no longer than
necessary to achieve its stated purpose;
(iv) The methods and procedures proposed by the applicant are
appropriate to achieve the proposed activity's goals in relation to the
activity's impacts on Sanctuary resources and qualities;
(v) The proposed activity will be conducted in a manner compatible
with the primary objective of protection of Sanctuary resources and
qualities, considering the extent to which the conduct of the activity
may diminish or enhance Sanctuary resources and qualities, any
indirect, secondary or cumulative effects of the activity, and the
duration of such effects;
(vi) It is necessary to conduct the proposed activity within the
Sanctuary to achieve its purposes; and
(vii) The reasonably expected end value of the activity to the
furtherance of Sanctuary goals and purposes outweighs any potential
adverse impacts on Sanctuary resources and qualities from the conduct
of the activity.
(4) For activities proposed to be conducted within any of the areas
described in Sec. 922.164 (b)-(e), the Director shall not issue a
permit unless he or she further finds that such activities will further
and are consistent with the purposes for which such area was
established, as described in Secs. 922.162 and 922.164 and in the
management plan for the Sanctuary.
(b) National Marine Sanctuary Survey/Inventory of Historical
Resources Permit. (1) A person may conduct an activity prohibited by
Secs. 922.163 or 922.164 involving the survey/inventory of Sanctuary
historical resources if such activity is specifically authorized by,
and is conducted in accordance with the scope, purpose, terms and
conditions of, a Survey/Inventory of Historical Resources permit issued
under this paragraph (b). Such permit is not required if such survey/
inventory activity does not involve any activity prohibited by
Secs. 922.163 or 922.164. Thus, survey/inventory activities that are
non-intrusive, do not include any excavation, removal, or recovery of
historical resources, and do not result in destruction of, loss of, or
injury to Sanctuary resources or qualities do not require a permit.
However, if a survey/inventory activity will involve test excavations
or removal of artifacts or materials for evaluative purposes, a Survey/
Inventory of Historical Resources permit is required. Regardless of
whether a Survey/Inventory permit is required, a person may request
such permit. Persons who have demonstrated their professional abilities
under a Survey/Inventory permit will be given preference over other
persons in consideration of the issuance of a Research/Recovery permit.
While a Survey/Inventory permit does not grant any rights with regards
to areas subject to pre-existing rights of access which are still
valid, once a permit is issued for an area, other survey/inventory
permits will not be issued for the same area during the period for
which the permit is valid.
(2) The Director, at his or her discretion, may issue a Survey/
Inventory permit under this paragraph (b), subject to such terms and
conditions as he or she deems appropriate, if the Director finds that
such activity:
(i) Satisfies the requirements for a permit issued under paragraph
(a)(3) of this section;
(ii) Either will be non-intrusive, not include any excavation,
removal, or recovery of historical resources, and not result in
destruction of, loss of, or injury to Sanctuary resources or qualities,
or if intrusive, will involve no more than the minimum manual
alteration of the seabed and/or the removal of artifacts or other
material necessary for evaluative purposes and will cause no
significant adverse impacts on Sanctuary resources or qualities; and
[[Page 32168]]
(iii) That such activity will be conducted in accordance with all
requirements of the Programmatic Agreement for the Management of
Submerged Cultural Resources in the Florida Keys National Marine
Sanctuary among NOAA, the Advisory Council on Historic Preservation,
and the State of Florida (hereinafter SCR Agreement), and that such
permit issuance is in accordance with such SCR Agreement. Copies of the
SCR Agreement may also be examined at, and obtained from, the
Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource
Management, National Ocean Service, National Oceanic and Atmospheric
Administration, 1305 East-West Highway, 12th floor, Silver Spring, MD
20910; or from the Florida Keys National Marine Sanctuary Office, P.O.
Box 500368, Marathon, FL 33050.
(c) National Marine Sanctuary Research/Recovery of Sanctuary
Historical Resources Permit. (1) A person may conduct any activity
prohibited by Secs. 922.163 or 922.164 involving the research/recovery
of Sanctuary historical resources if such activity is specifically
authorized by, and is conducted in accordance with the scope, purpose,
terms and conditions of, a Research/Recovery of Historical Resources
permit issued under this paragraph (c).
(2) The Director, at his or her discretion, may issue a Research/
Recovery of Historical Resources permit, under this paragraph (c), and
subject to such terms and conditions as he or she deems appropriate, if
the Director finds that:
(i) Such activity satisfies the requirements for a permit issued
under paragraph (a)(3) of this section;
(ii) The recovery of the resource is in the public interest as
described in the SCR Agreement;
(iii) Recovery of the resource is part of research to preserve
historic information for public use; and
(iv) Recovery of the resource is necessary or appropriate to
protect the resource, preserve historical information, and/or further
the policies and purposes of the NMSA and the FKNMSPA, and that such
permit issuance is in accordance with, and that the activity will be
conducted in accordance with, all requirements of the SCR Agreement.
(d) National Marine Sanctuary Special-use Permit. (1) A person may
conduct any commercial or concession-type activity prohibited by
Secs. 922.163 or 922.164, if such activity is specifically authorized
by, and is conducted in accordance with the scope, purpose, terms and
conditions of, a Special-use permit issued under this paragraph (d). A
Special-use permit is required for the deaccession/transfer of
Sanctuary historical resources.
(2) The Director, at his or her discretion, may issue a Special-use
permit in accordance with this paragraph (d), and subject to such terms
and conditions as he or she deems appropriate and the mandatory terms
and conditions of section 310 of the NMSA, if the Director finds that
issuance of such permit is reasonably necessary to: establish
conditions of access to and use of any Sanctuary resource; or promote
public use and understanding of any Sanctuary resources. No permit may
be issued unless the activity is compatible with the purposes for which
the Sanctuary was designated and can be conducted in a manner that does
not destroy, cause the loss of, or injure any Sanctuary resource, and
if for the deaccession/transfer of Sanctuary Historical Resources,
unless such permit issuance is in accordance with, and that the
activity will be conducted in accordance with, all requirements of the
SCR Agreement.
(3) The Director may assess and collect fees for the conduct of any
activity authorized by a Special-use permit issued pursuant to this
paragraph (d). No Special-use permit shall be effective until all
assessed fees are paid, unless otherwise provided by the Director by a
fee schedule set forth as a permit condition. In assessing a fee, the
Director shall include:
(i) All costs incurred, or expected to be incurred, in reviewing
and processing the permit application, including, but not limited to,
costs for:
(A) Number of personnel;
(B) Personnel hours;
(C) Equipment;
(D) Biological assessments;
(E) Copying; and
(F) Overhead directly related to reviewing and processing the
permit application;
(ii) All costs incurred, or expected to be incurred, as a direct
result of the conduct of the activity for which the Special-use permit
is being issued, including, but not limited to:
(A) The cost of monitoring the conduct both during the activity and
after the activity is completed in order to assess the impacts to
Sanctuary resources and qualities;
(B) The use of an official NOAA observer, including travel and
expenses and personnel hours; and
(C) Overhead costs directly related to the permitted activity; and
(iii) An amount which represents the fair market value of the use
of the Sanctuary resource and a reasonable return to the United States
Government.
(4) Nothing in this paragraph (d) shall be considered to require a
person to obtain a permit under this paragraph for the conduct of any
fishing activities within the Sanctuary.
(e) Applications. (1) Applications for permits should be addressed
to the Director, Office of Ocean and Coastal Resource Management; ATTN:
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O.
Box 500368, Marathon, FL 33050. All applications must include:
(i) A detailed description of the proposed activity including a
timetable for completion of the activity and the equipment, personnel
and methodology to be employed;
(ii) The qualifications and experience of all personnel;
(iii) The financial resources available to the applicant to conduct
and complete the proposed activity;
(iv) A statement as to why it is necessary to conduct the activity
within the Sanctuary;
(v) The potential impacts of the activity, if any, on Sanctuary
resources and qualities;
(vi) The benefit to be derived from the activity; and
(vii) Such other information as the Director may request depending
on the type of activity. Copies of all other required licenses,
permits, approvals, or other authorizations must be attached to the
application.
(2) Upon receipt of an application, the Director may request such
additional information from the applicant as he or she deems reasonably
necessary to act on the application and may seek the views of any
persons. The Director may require a site visit as part of the permit
evaluation. Unless otherwise specified, the information requested must
be received by the Director within 30 days of the postmark date of the
request. Failure to provide such additional information on a timely
basis may be deemed by the Director to constitute abandonment or
withdrawal of the permit application.
(f) A permit may be issued for a period not exceeding five years.
All permits will be reviewed annually to determine the permittee's
compliance with permit scope, purpose, terms and conditions and
progress toward reaching the stated goals and appropriate action taken
under paragraph (g) of this section if warranted. A permittee may
request permit renewal pursuant to the same procedures for applying for
a new permit. Upon the permittee's request for renewal, the Director
shall review all
[[Page 32169]]
reports submitted by the permittee as required by the permit
conditions. In order to renew the permit, the Director must find that
the:
(1) Activity will continue to further the purposes for which the
Sanctuary was designated in accordance with the criteria applicable to
the initial issuance of the permit;
(2) Permittee has at no time violated the permit, or these
regulations; and
(3) The activity has not resulted in any unforeseen adverse impacts
to Sanctuary resources or qualities.
(g) The Director may amend, suspend, or revoke a permit for good
cause. The Director may deny a permit application, in whole or in part,
if it is determined that the permittee or applicant has acted in
violation of a previous permit, of these regulations, of the NMSA or
FKNMSPA, or for other good cause. Any such action shall be communicated
in writing to the permittee or applicant by certified mail and shall
set forth the reason(s) for the action taken. Procedures governing
permit sanctions and denials for enforcement reasons are set forth in
Subpart D of 15 CFR part 904.
(h) The applicant for or holder of a National Marine Sanctuary
permit may appeal the denial, conditioning, amendment, suspension or
revocation of the permit in accordance with the procedures set forth in
Sec. 922.50.
(i) A permit issued pursuant to this section other than a Special-
use permit is nontransferable. Special-use permits may be transferred,
sold, or assigned with the written approval of the Director. The
permittee shall provide the Director with written notice of any
proposed transfer, sale, or assignment no less than 30 days prior to
its proposed consummation. Transfers, sales, or assignments consummated
in violation of this requirement shall be considered a material breach
of the Special-use permit, and the permit shall be considered void as
of the consummation of any such transfer, sale, or assignment.
(j) The permit or a copy thereof shall be maintained in legible
condition on board all vessels or aircraft used in the conduct of the
permitted activity and be displayed for inspection upon the request of
any authorized officer.
(k) Any permit issued pursuant to this section shall be subject to
the following terms and conditions:
(1) All permitted activities shall be conducted in a manner that
does not destroy, cause the loss of, or injure Sanctuary resources or
qualities, except to the extent that such may be specifically
authorized.
(2) The permittee agrees to hold the United States harmless against
any claims arising out of the conduct of the permitted activities.
(3) All necessary Federal, State, and local permits from all
agencies with jurisdiction over the proposed activities shall be
secured before commencing field operations.
(l) In addition to the terms and conditions listed in paragraph (k)
of this section, any permit authorizing the research/recovery of
historical resources shall be subject to the following terms and
conditions:
(1) A professional archaeologist shall be in charge of planning,
field recovery operations, and research analysis.
(2) An agreement with a conservation laboratory shall be in place
before field recovery operations are begun, and an approved nautical
conservator shall be in charge of planning, conducting, and supervising
the conservation of any artifacts and other materials recovered.
(3) A curation agreement with a museum or facility for curation,
public access and periodic public display, and maintenance of the
recovered historical resources shall be in place before commencing
field operations (such agreement for the curation and display of
recovered historical resources may provide for the release of public
artifacts for deaccession/transfer if such deaccession/transfer is
consistent with preservation, research, education, or other purposes of
the designation and management of the Sanctuary. Deaccession/transfer
of historical resources requires a Special-use permit issued pursuant
to paragraph (d) and such deaccession/transfer shall be executed in
accordance with the requirements of the SCR Agreement).
(4) The site's archaeological information is fully documented,
including measured drawings, site maps drawn to professional standards,
and photographic records.
(m) In addition to the terms and conditions listed in paragraph (k)
and (l) of this section, any permit issued pursuant to this section is
subject to such other terms and conditions, including conditions
governing access to, or use of, Sanctuary resources, as the Director
deems reasonably necessary or appropriate and in furtherance of the
purposes for which the Sanctuary is designated. Such terms and
conditions may include, but are not limited to:
(1) Any data or information obtained under the permit shall be made
available to the public.
(2) A NOAA official shall be allowed to observe any activity
conducted under the permit.
(3) The permittee shall submit one or more reports on the status,
progress, or results of any activity authorized by the permit.
(4) The permittee shall submit an annual report to the Director not
later than December 31 of each year on activities conducted pursuant to
the permit. The report shall describe all activities conducted under
the permit and all revenues derived from such activities during the
year and/or term of the permit.
(5) The permittee shall purchase and maintain general liability
insurance or other acceptable security against potential claims for
destruction, loss of, or injury to Sanctuary resources arising out of
the permitted activities. The amount of insurance or security should be
commensurate with an estimated value of the Sanctuary resources in the
permitted area. A copy of the insurance policy or security instrument
shall be submitted to the Director.
Sec. 922.167 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
(a) A person may conduct an activity prohibited by Secs. 922.163 or
922.164 if such activity is specifically authorized by a valid Federal,
State, or local lease, permit, license, approval, or other
authorization in existence on July 1, 1997, or by any valid right of
subsistence use or access in existence on July 1, 1997, provided that:
(1) The holder of such authorization or right notifies the
Director, in writing, within 90 days of July 1, 1997, of the existence
of such authorization or right and requests certification of such
authorization or right;
(2) The holder complies with the other provisions of this
Sec. 922.167; and
(3) The holder complies with any terms and conditions on the
exercise of such authorization or right imposed as a condition of
certification, by the Director, to achieve the purposes for which the
Sanctuary was designated.
(b) The holder of an authorization or right described in paragraph
(a) of this section authorizing an activity prohibited by Secs. 922.163
or 922.164 may conduct the activity without being in violation of
applicable provisions of Secs. 922.163 or 922.164, pending final agency
action on his or her certification request, provided the holder is in
compliance with this Sec. 922.167.
(c) Any holder of an authorization or right described in paragraph
(a) of this section may request the Director to issue a finding as to
whether the activity for which the authorization has been issued, or
the right given, is prohibited
[[Page 32170]]
by Secs. 922.163 or 922.164, thus requiring certification under this
section.
(d) Requests for findings or certifications should be addressed to
the Director, Office of Ocean and Coastal Resource Management; ATTN:
Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O.
Box 500368, Marathon, FL 33050. A copy of the lease, permit, license,
approval, or other authorization must accompany the request.
(e) The Director may request additional information from the
certification requester as he or she deems reasonably necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purposes for which the Sanctuary was designated.
The information requested must be received by the Director within 45
days of the postmark date of the request. The Director may seek the
views of any persons on the certification request.
(f) The Director may amend any certification made under this
Sec. 922.167 whenever additional information becomes available
justifying such an amendment.
(g) Upon completion of review of the authorization or right and
information received with respect thereto, the Director shall
communicate, in writing, any decision on a certification request or any
action taken with respect to any certification made under this
Sec. 922.167, in writing, to both the holder of the certified lease,
permit, license, approval, other authorization, or right, and the
issuing agency, and shall set forth the reason(s) for the decision or
action taken.
(h) Any time limit prescribed in or established under this
Sec. 922.167 may be extended by the Director for good cause.
(i) The holder may appeal any action conditioning, amending,
suspending, or revoking any certification in accordance with the
procedures set forth in Sec. 922.50.
(j) Any amendment, renewal, or extension made after July 1, 1997,
to a lease, permit, license, approval, other authorization or right is
subject to the provisions of Sec. 922.49.
Appendix I to Subpart P of Part 922--Florida Keys National Marine
Sanctuary Boundary Coordinates
(Appendix Based on North American Datum of 1983)
The boundary of the Florida Keys National Marine Sanctuary--
(a) Begins at the northeasternmost point of Biscayne National Park
located at approximately 25 degrees 39 minutes north latitude, 80
degrees 5 minutes west longitude, then runs eastward to the 300-foot
isobath located at approximately 25 degrees 39 minutes north latitude,
80 degrees 4 minutes west longitude;
(b) Then runs southward and connects in succession the points at
the following coordinates:
(i) 25 degrees 34 minutes north latitude, 80 degrees 4 minutes west
longitude,
(ii) 25 degrees 28 minutes north latitude, 80 degrees 5 minutes
west longitude, and
(iii) 25 degrees 21 minutes north latitude, 80 degrees 7 minutes
west longitude;
(iv) 25 degrees 16 minutes north latitude, 80 degrees 8 minutes
west longitude;
(c) Then runs southwesterly approximating the 300-foot isobath and
connects in succession the points at the following coordinates:
(i) 25 degrees 7 minutes north latitude, 80 degrees 13 minutes west
longitude,
(ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes
west longitude,
(iii) 24 degrees 39 minutes north latitude, 80 degrees 52 minutes
west longitude,
(iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes
west longitude,
(v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes
west longitude,
(vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes
west longitude,
(vii) 24 degrees 37 minutes north latitude, 83 degrees 6 minutes
west longitude,
(viii) 24 degrees 40 minutes north latitude, 83 degrees 6 minutes
west longitude,
(ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes
west longitude,
(x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes
west longitude,
(xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes
west longitude, and
(xii) 24 degrees 55 minutes north latitude, 80 degrees 56 minutes
west longitude;
(d) then follows the boundary of Everglades National Park in a
southerly then northeasterly direction through Florida Bay, Buttonwood
Sound, Tarpon Basin, and Blackwater Sound;
(e) after Division Point, then departs from the boundary of
Everglades National Park and follows the western shoreline of Manatee
Bay, Barnes Sound, and Card Sound;
(f) then follows the southern boundary of Biscayne National Park to
the southeasternmost point of Biscayne National Park; and
(g) then follows the eastern boundary of Biscayne National Park to
the beginning point specified in paragraph (a).
Appendix II to Subpart P of Part 922--Existing Management Areas
Boundary Coordinates
The Existing Management Areas are located within the following
geographic boundary coordinates:
National Oceanic and Atmospheric Administration,
Preexisting National Marine Sanctuaries:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
Key Largo Management Area (Key Largo National Marine Sanctuary)
------------------------------------------------------------------------
1............................. 25 deg.19.45' N 80 deg.12.00' W
2............................. 25 deg.16.02' N 80 deg.08.07' W
3............................. 25 deg.07.05' N 80 deg.12.05' W
4............................. 24 deg.58.03' N 80 deg.19.08' W
5............................. 25 deg.02.02' N 80 deg.25.25' W
------------------------------------------------------------------------
Looe Key Management Area (Looe Key National Marine Sanctuary)
------------------------------------------------------------------------
1............................. 24 deg.31.62' N 81 deg.26.00' W
2............................. 24 deg.33.57' N 81 deg.26.00' W
3............................. 24 deg.34.15' N 81 deg.23.00' W
4............................. 24 deg.32.20' N 81 deg.23.00' W
------------------------------------------------------------------------
United States Fish and Wildlife Service:
Great White Heron National Wildlife Refuge
(based on the North American Datum of 1983)
------------------------------------------------------------------------
1............................. 24 deg.43.8' N 81 deg.48.6' W
2............................. 24 deg.43.8' N 81 deg.37.2' W
3............................. 24 deg.49.2' N 81 deg.37.2' W
4............................. 24 deg.49.2' N 81 deg.19.8' W
5............................. 24 deg.48.0' N 81 deg.19.8' W
6............................. 24 deg.48.0' N 81 deg.14.4' W
7............................. 24 deg.49.2' N 81 deg.14.4' W
8............................. 24 deg.49.2' N 81 deg.08.4' W
9............................. 24 deg.43.8' N 81 deg.08.4' W
10............................ 24 deg.43.8' N 81 deg.14.4' W
11............................ 24 deg.43.2' N 81 deg.14.4' W
12............................ 24 deg.43.2' N 81 deg.16.2' W
13............................ 24 deg.42.6' N 81 deg.16.2' W
14............................ 24 deg.42.6' N 81 deg.21.0' W
15............................ 24 deg.41.4' N 81 deg.21.0' W
16............................ 24 deg.41.4' N 81 deg.22.2' W
17............................ 24 deg.43.2' N 81 deg.22.2' W
18............................ 24 deg.43.2' N 81 deg.22.8' W
19............................ 24 deg.43.8' N 81 deg.22.8' W
20............................ 24 deg.43.8' N 81 deg.24.0' W
21............................ 24 deg.43.2' N 81 deg.24.0' W
22............................ 24 deg.43.2' N 81 deg.26.4' W
23............................ 24 deg.43.8' N 81 deg.26.4' W
24............................ 24 deg.43.8' N 81 deg.27.0' W
25............................ 24 deg.43.2' N 81 deg.27.0' W
26............................ 24 deg.43.2' N 81 deg.29.4' W
27............................ 24 deg.42.6' N 81 deg.29.4' W
28............................ 24 deg.42.6' N 81 deg.30.6' W
29............................ 24 deg.41.4' N 81 deg.30.6' W
[[Page 32171]]
30............................ 24 deg.41.4' N 81 deg.31.2' W
31............................ 24 deg.40.8' N 81 deg.31.2' W
32............................ 24 deg.40.8' N 81 deg.32.4' W
33............................ 24 deg.41.4' N 81 deg.32.4' W
34............................ 24 deg.41.4' N 81 deg.34.2' W
35............................ 24 deg.40.8' N 81 deg.34.2' W
36............................ 24 deg.48.0' N 81 deg.35.4' W
37............................ 24 deg.39.6' N 81 deg.35.4' W
38............................ 24 deg.39.6' N 81 deg.36.0' W
39............................ 24 deg.39.0' N 81 deg.36.0' W
40............................ 24 deg.39.0' N 81 deg.37.2' W
41............................ 24 deg.37.8' N 81 deg.37.2' W
42............................ 24 deg.37.8' N 81 deg.37.8' W
43............................ 24 deg.37.2' N 81 deg.37.8' W
44............................ 24 deg.37.2' N 81 deg.40.2' W
45............................ 24 deg.36.0' N 81 deg.40.2' W
46............................ 24 deg.36.0' N 81 deg.40.8' W
47............................ 24 deg.35.4' N 81 deg.40.8' W
48............................ 24 deg.35.4' N 81 deg.42.0' W
49............................ 24 deg.36.0' N 81 deg.42.0' W
50............................ 24 deg.36.0' N 81 deg.48.6' W
------------------------------------------------------------------------
Key West National Wildlife Refuge
------------------------------------------------------------------------
1............................. 24 deg.40' N 81 deg.49' W
2............................. 24 deg.40' N 82 deg.10' W
3............................. 24 deg.27' N 82 deg.10' W
4............................. 24 deg.27' N 81 deg.49' W
------------------------------------------------------------------------
When differential Global Positioning Systems data becomes
available, these coordinates may be revised by Federal Register notice
to reflect the increased accuracy of such data.
Appendix III to Subpart P of Part 922--Wildlife Management Areas
Access Restrictions
------------------------------------------------------------------------
Area Access restrictions
------------------------------------------------------------------------
Bay Keys.......................................... No-motor zone (300
feet) around one
key; idle speed
only/no-wake zones
in tidal creeks.
Boca Grande Key................................... South one-half of
beach closed (beach
above mean high
water closed by
Department of the
Interior).
Woman Key......................................... One-half of beach
and sand spit on
southeast side
closed (beach and
sand spit above
mean high water
closed by
Department of the
Interior).
Cayo Agua Keys.................................... Idle speed only/no-
wake zones in all
navigable tidal
creeks.
Cotton Key........................................ No-motor zone on
tidal flat.
Snake Creek....................................... No-motor zone on
tidal flat.
Cottrell Key...................................... No-motor zone (300
feet) around entire
key.
Little Mullet Key................................. No-access buffer
zone (300 feet)
around entire key.
Big Mullet Key.................................... No-motor zone (300
feet) around entire
key.
Crocodile Lake.................................... No-access buffer
zone (100 feet)
along shoreline
between March 1 and
October 1.
East Harbor Key................................... No-access buffer
zone (300 feet)
around northernmost
island.
Lower Harbor Keys................................. Idle speed only/no-
wake zones in
selected tidal
creeks.
Eastern Lake Surprise............................. Idle speed only/no-
wake zone east of
highway U.S. 1.
Horseshoe Key..................................... No-access buffer
zone (300 feet)
around main island
(main island closed
by Department of
the Interior).
Marquesas Keys.................................... (i) No-motor zones
(300 feet) around
three smallest keys
on western side of
chain; (ii) no-
access buffer zone
(300 feet) around
one island at
western side of
chain; (iii) idle
speed only/no-wake
zone in southwest
tidal creek.
Tidal flat south of Marvin Key.................... No-access buffer
zone on tidal flat.
Mud Keys.......................................... (i) Idle speed only/
no-wake zones in
the two main tidal
creeks; (ii) two
smaller creeks on
west side closed.
Pelican Shoal..................................... No-access buffer
zone out to 50
meters from shore
between April 1 and
August 31 (shoal
closed by the
Florida Game and
Freshwater Fish
Commission).
Rodriguez Key..................................... No-motor zone on
tidal flats.
Dove Key.......................................... No-motor zone on
tidal flats; area
around the two
small islands
closed.
Tavernier Key..................................... No-motor zone on
tidal flats.
Sawyer Keys....................................... Tidal creeks on
south side closed.
Snipe Keys........................................ (i) Idle speed only/
no-wake zone in
main tidal creek;
(ii) no-motor zone
in all other tidal
creeks.
Upper Harbor Key.................................. No-access buffer
zone (300 feet)
around entire key.
East Content Keys................................. Idle speed only/no-
wake zones in tidal
creeks between
southwesternmost
keys.
West Content Keys................................. Idle speed only/no-
wake zones in
selected tidal
creeks; no-access
buffer zone in one
cove.
Little Crane Key.................................. No-access buffer
zone (300 feet)
around entire key.
------------------------------------------------------------------------
Appendix IV to Subpart P of Part 922--Ecological Reserves Boundary
Coordinates
One Ecological Reserve--the Western Sambos Ecological Reserve--is
designated in the area of Western Sambos reef. NOAA has committed to
designating a second Ecological Reserve within two years from issuance
of this plan in the area of the Dry Tortugas. The establishment of a
Dry Tortugas Ecological Reserve will be proposed by a notice of
proposed rulemaking with a proposed boundary determined through a joint
effort among the Sanctuary, and the National Park Service, pursuant to
a public process involving a team consisting of managers, scientists,
conservationists, and affected user groups.
The Western Sambos Ecological Reserve (based on differential Global
Positioning Systems data) is located within the following geographic
boundary coordinates:
* Western Sambos
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
1............................. 24 deg.33.70' N..... 81 deg.40.80' W
2............................. 24 deg.28.85' N..... 81 deg.41.90' W
3............................. 24 deg.28.50' N..... 81 deg.43.70' W
4............................. 24 deg.33.50' N..... 81 deg.43.10' W
------------------------------------------------------------------------
(* Denotes located in State waters)
Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas
Boundary Coordinates
The Sanctuary Preservation Areas (SPAs) (based on differential
Global Positioning Systems data) are located within the following
geographic boundary coordinates:
[[Page 32172]]
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
Alligator Reef
------------------------------------------------------------------------
1............................. 24 deg.50.98'N 80 deg.36.84'W
2............................. 24 deg.50.51'N 80 deg.37.35'W
3............................. 24 deg.50.81'N 80 deg.37.63'W
4............................. 24 deg.51.23'N 80 deg.37.17'W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this SPA.
------------------------------------------------------------------------
Carysfort/South Carysfort Reef
------------------------------------------------------------------------
1............................. 25 deg.13.78'N 80 deg.12.00'W
2............................. 25 deg.12.03'N 80 deg.12.98'W
3............................. 25 deg.12.24'N 80 deg.13.77'W
4............................. 25 deg.14.13'N 80 deg.12.78'W
------------------------------------------------------------------------
* Cheeca Rocks
------------------------------------------------------------------------
1............................. 24 deg.54.42'N 80 deg.36.91'W
2............................. 24 deg.54.25'N 80 deg.36.77'W
3............................. 24 deg.54.10'N 80 deg.37.00'W
4............................. 24 deg.54.22'N 80 deg.37.15'W
------------------------------------------------------------------------
Coffins Patch
------------------------------------------------------------------------
1............................. 24 deg.41.47'N 80 deg.57.68'W
2............................. 24 deg.41.12'N 80 deg.57.53'W
3............................. 24 deg.40.75'N 80 deg.58.33'W
4............................. 24 deg.41.06'N 80 deg.58.48'W
------------------------------------------------------------------------
Conch Reef
------------------------------------------------------------------------
1............................. 24 deg.57.48'N 80 deg.27.47'W
2............................. 24 deg.57.34'N 80 deg.27.26'W
3............................. 24 deg.56.78'N 80 deg.27.52'W
4............................. 24 deg.56.96'N 80 deg.27.73'W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this SPA.
------------------------------------------------------------------------
Davis Reef
------------------------------------------------------------------------
1............................. 24 deg.55.61'N 80 deg.30.27'W
2............................. 24 deg.55.41'N 80 deg.30.05'W
3............................. 24 deg.55.11'N 80 deg.30.35'W
4............................. 24 deg.55.34'N 80 deg.30.52'W
------------------------------------------------------------------------
Dry Rocks
------------------------------------------------------------------------
1............................. 25 deg.07.59'N 80 deg.17.91'W
2............................. 25 deg.07.41'N 80 deg.17.70'W
3............................. 25 deg.07.25'N 80 deg.17.82'W
4............................. 25 deg.07.41'N 80 deg.18.09'W
------------------------------------------------------------------------
Grecian Rocks
------------------------------------------------------------------------
1............................. 25 deg.06.91'N 80 deg.18.20'W
2............................. 25 deg.06.67'N 80 deg.18.06'W
3............................. 25 deg.06.39'N 80 deg.18.32'W
4............................. 25 deg.06.42'N 80 deg.18.48'W
5............................. 25 deg.06.81'N 80 deg.18.44'W
------------------------------------------------------------------------
* Eastern Dry Rocks
------------------------------------------------------------------------
1............................. 24 deg.27.92'N 81 deg.50.55'W
2............................. 24 deg.27.73'N 81 deg.50.33'W
3............................. 24 deg.27.47'N 81 deg.50.80'W
4............................. 24 deg.27.72'N 81 deg.50.86'W
------------------------------------------------------------------------
The Elbow
------------------------------------------------------------------------
1............................. 25 deg.08.97'N 80 deg.15.63'W
2............................. 25 deg.08.95'N 80 deg.15.22'W
3............................. 25 deg.08.18'N 80 deg.15.64'W
4............................. 25 deg.08.50'N 80 deg.16.07'W
------------------------------------------------------------------------
French Reef
------------------------------------------------------------------------
1............................. 25 deg.02.20'N 80 deg.20.63'W
2............................. 25 deg.01.81'N 80 deg.21.02'W
3............................. 25 deg.02.36'N 80 deg.21.27'W
------------------------------------------------------------------------
* Hen and Chickens
------------------------------------------------------------------------
1............................. 24 deg.56.38'N 80 deg.32.86'W
2............................. 24 deg.56.21'N 80 deg.32.63'W
3............................. 24 deg.55.86'N 80 deg.32.95'W
4............................. 24 deg.56.04'N 80 deg.33.19'W
------------------------------------------------------------------------
Looe Key
------------------------------------------------------------------------
1............................. 24 deg.33.24'N 81 deg.24.03'W
2............................. 24 deg.32.70'N 81 deg.23.85'W
3............................. 24 deg.32.52'N 81 deg.24.70'W
4............................. 24 deg.33.12'N 81 deg.24.81'W
------------------------------------------------------------------------
Molasses Reef
------------------------------------------------------------------------
1............................. 25 deg.01.00'N 80 deg.22.53'W
2............................. 25 deg.01.06'N 80 deg.21.84'W
3............................. 25 deg.00.29'N 80 deg.22.70'W
4............................. 25 deg.00.72'N 80 deg.22.83'W
------------------------------------------------------------------------
* Newfound Harbor Key
------------------------------------------------------------------------
1............................. 24 deg.37.10'N 81 deg.23.34'W
2............................. 24 deg.36.85'N 81 deg.23.28'W
3............................. 24 deg.36.74'N 81 deg.23.80'W
4............................. 24 deg.37.00'N 81 deg.23.86'W
------------------------------------------------------------------------
* Rock Key
------------------------------------------------------------------------
1............................. 24 deg.27.48'N 81 deg.51.35'W
2............................. 24 deg.27.30'N 81 deg.51.15'W
3............................. 24 deg.27.21'N 81 deg.51.60'W
4............................. 24 deg.27.45'N 81 deg.51.65'W
------------------------------------------------------------------------
* Sand Key
------------------------------------------------------------------------
1............................. 24 deg.27.58'N 81 deg.52.29'W
2............................. 24 deg.27.01'N 81 deg.52.32'W
3............................. 24 deg.27.02'N 81 deg.52.95'W
4............................. 24 deg.27.61'N 81 deg.52.94'W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this SPA.
------------------------------------------------------------------------
Sombrero Key
------------------------------------------------------------------------
1............................. 24 deg.37.91'N 81 deg.06.78'W
2............................. 24 deg.37.50'N 81 deg.06.19'W
3............................. 24 deg.37.25'N 81 deg.06.89'W
------------------------------------------------------------------------
Catch and release fishing by trolling only is allowed in this SPA.
------------------------------------------------------------------------
(* denotes located in State waters)
Appendix VI to Subpart P of Part 922--Special-Use Areas Boundary
Coordinates and Use Designations
The Special-use Areas (based on differential Global Positioning
Systems data) are located within the following geographic boundary
coordinates:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
Conch Reef (Research Only)
------------------------------------------------------------------------
1............................. 24 deg.56.83'N 80 deg.27.26'W
2............................. 24 deg.57.10'N 80 deg.26.93'W
3............................. 24 deg.56.99'N 80 deg.27.42'W
4............................. 24 deg.57.34'N 80 deg.27.26'W
------------------------------------------------------------------------
Eastern Sambos (Research Only)
------------------------------------------------------------------------
1............................. 24 deg.29.84'N 81 deg.39.59'W
2............................. 24 deg.29.55'N 81 deg.39.35'W
3............................. 24 deg.29.37'N 81 deg.39.96'W
4............................. 24 deg.29.77'N 81 deg.40.03'W
------------------------------------------------------------------------
Looe Key (Research Only)
------------------------------------------------------------------------
1............................. 24 deg.34.17'N 81 deg.23.01'W
2............................. 24 deg.33.98'N 81 deg.22.96'W
3............................. 24 deg.33.84'N 81 deg.23.60'W
4............................. 24 deg.34.23'N 81 deg.23.68'W
------------------------------------------------------------------------
Tennessee Reef (Research Only)
------------------------------------------------------------------------
1............................. 24 deg.44.77'N 80 deg.47.12'W
2............................. 24 deg.44.57'N 80 deg.46.98'W
3............................. 24 deg.44.68'N 80 deg.46.59'W
4............................. 24 deg.44.95'N 80 deg.46.74'W
------------------------------------------------------------------------
Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary
Coordinates
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
In The Vicinity of the Florida Keys
(Reference Charts: United States 11466, 27th Edition--September 1, 1990
and United States 11450, 4th Edition--August 11, 1990)
------------------------------------------------------------------------
1............................. 25 deg.45.00'N 80 deg.06.10'W
2............................. 25 deg.38.70'N 80 deg.02.70'W
3............................. 25 deg.22.00'N 80 deg.03.00'W
4............................. 25 deg.00.20'N 80 deg.13.40'W
5............................. 24 deg.37.90'N 80 deg.47.30'W
6............................. 24 deg.29.20'N 81 deg.17.30'W
7............................. 24 deg.22.30'N 81 deg.43.17'W
8............................. 24 deg.28.00'N 81 deg.43.17'W
9............................. 24 deg.28.70'N 81 deg.43.50'W
10............................ 24 deg.29.80'N 81 deg.43.17'W
11............................ 24 deg.33.10'N 81 deg.35.15'W
12............................ 24 deg.33.60'N 81 deg.26.00'W
13............................ 24 deg.38.20'N 81 deg.07.00'W
14............................ 24 deg.43.20'N 80 deg.53.20'W
15............................ 24 deg.46.10'N 80 deg.46.15'W
16............................ 24 deg.51.10'N 80 deg.37.10'W
17............................ 24 deg.57.50'N 80 deg.27.50'W
18............................ 25 deg.09.90'N 80 deg.16.20'W
19............................ 25 deg.24.00'N 80 deg.09.10'W
20............................ 25 deg.31.50'N 80 deg.07.00'W
21............................ 25 deg.39.70'N 80 deg.06.85'W
22............................ 25 deg.45.00'N 80 deg.06.10'W
------------------------------------------------------------------------
In the Vicinity of Key West Harbor
(Reference Chart: United States 11434, 21st Edition--August 11, 1990)
------------------------------------------------------------------------
23............................ 24 deg.27.95'N 81 deg.48.65'W
24............................ 24 deg.23.00'N 81 deg.53.50'W
25............................ 24 deg.26.60'N 81 deg.58.50'W
26............................ 24 deg.27.75'N 81 deg.55.70'W
27............................ 24 deg.29.35'N 81 deg.53.40'W
28............................ 24 deg.29.35'N 81 deg.50.00'W
[[Page 32173]]
29............................ 24 deg.27.95'N 81 deg.48.65'W
------------------------------------------------------------------------
Area Surrounding the Marquesas Keys
(Reference Chart: United States 11434, 21st Edition--August 11, 1990)
------------------------------------------------------------------------
30............................ 24 deg.26.60'N 81 deg.59.55'W
31............................ 24 deg.23.00'N 82 deg.03.50'W
32............................ 24 deg.23.60'N 82 deg.27.80'W
33............................ 24 deg.34.50'N 82 deg.37.50'W
34............................ 24 deg.43.00'N 82 deg.26.50'W
35............................ 24 deg.38.31'N 81 deg.54.06'W
36............................ 24 deg.37.91'N 81 deg.53.40'W
37............................ 24 deg.36.15'N 81 deg.51.78'W
38............................ 24 deg.34.40'N 81 deg.50.60'W
39............................ 24 deg.33.44'N 81 deg.49.73'W
40............................ 24 deg.31.20'N 81 deg.52.10'W
41............................ 24 deg.28.70'N 81 deg.56.80'W
42............................ 24 deg.26.60'N 81 deg.59.55'W
------------------------------------------------------------------------
Area Surrounding the Dry Tortugas Islands
(Reference Chart: United States 11434, 21st Edition--August 11, 1990)
------------------------------------------------------------------------
43............................ 24 deg.32.00'N 82 deg.53.50'W
44............................ 24 deg.32.00'N 83 deg.00.05'W
45............................ 24 deg.39.70'N 83 deg.00.05'W
46............................ 24 deg.45.60'N 82 deg.54.40'W
47............................ 24 deg.45.60'N 82 deg.47.20'W
48............................ 24 deg.42.80'N 82 deg.43.90'W
49............................ 24 deg.39.50'N 82 deg.43.90'W
50............................ 24 deg.35.60'N 82 deg.46.40'W
51............................ 24 deg.32.00'N 82 deg.53.50'W
------------------------------------------------------------------------
Appendix VIII to Subpart P of Part 922--Marine Life Rule [As
Excerpted From Chapter 46-42 of the Florida Administrative Code]
46-42.001 Purpose and Intent; Designation of Restricted Species;
Definition of ``Marine Life Species.''
46-42.002 Definitions.
46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama Starfish.
46-42.0035 Live Landing and Live Well Requirements.
46-42.0036 Harvest in Biscayne National Park.*
46-42.004 Size Limits.
46-42.005 Bag Limits.
46-42.006 Commercial Season, Harvest Limits.
46-42.007 Gear Specifications and Prohibited Gear.
46-42.008 Live Rock.*
46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine
Corals and Sea Fans.
*--Part 42.0036 was not reproduced because it does not apply to
the Sanctuary.
*--Part 42.008 was not reproduced because it is regulated
pursuant to this Part 922.163(2)(ii).
46-42.001 Purpose and Intent; Designation of Restricted Species;
Definition of ``Marine Life Species''.--
(1) (a) The purpose and intent of this chapter are to protect and
conserve Florida's tropical marine life resources and assure the
continuing health and abundance of these species. The further intent of
this chapter is to assure that harvesters in this fishery use nonlethal
methods of harvest and that the fish, invertebrates, and plants so
harvested be maintained alive for the maximum possible conservation and
economic benefits.
(b) It is the express intent of the Marine Fisheries Commission
that landing of live rock propagated through aquaculture will be
allowed pursuant to the provisions of this chapter.
(2) The following fish species, as they occur in waters of the
state and in federal Exclusive Economic Zone (EEZ) waters adjacent to
state waters, are hereby designated as restricted species pursuant to
Section 370.01(20), Florida Statutes:
(a) Moray eels--Any species of the Family Muraenidae.
(b) Snake eels--Any species of the Genera Myrichthys and Myrophis
of the Family Ophichthidae.
(c) Toadfish--Any species of the Family Batrachoididae.
(d) Frogfish--Any species of the Family Antennariidae.
(e) Batfish--Any species of the Family Ogcocephalidae.
(f) Clingfish--Any species of the Family Gobiesocidae.
(g) Trumpetfish--Any species of the Family Aulostomidae.
(h) Cornetfish--Any species of the Family Fistulariidae.
(i) Pipefish/seahorses--Any species of the Family Syngnathidae.
(j) Hamlet/seabass--Any species of the Family Serranidae, except
groupers of the genera Epinephalus and Mycteroperca, and seabass of the
genus Centropristis.
(k) Basslets--Any species of the Family Grammistidae.
(l) Cardinalfish--Any species of the Family Apogonidae.
(m) High-hat, Jackknife-fish, Spotted drum, Cubbyu--Any species of
the genus Equetus of the Family Sciaenidae.
(n) Reef Croakers--Any of the species Odontocion dentex.
(o) Sweepers--Any species of the Family Pempherididae.
(p) Butterflyfish--Any species of the Family Chaetodontidae.
(q) Angelfish--Any species of the Family Pomacanthidae.
(r) Damselfish--Any species of the Family Pomacentridae.
(s) Hawkfish--Any species of the Family Cirrhitidae.
(t) Wrasse/hogfish/razorfish--Any species of the Family Labridae,
except hogfish, Lachnolaimus maximus.
(u) Parrotfish--Any species of the Family Scaridae.
(v) Jawfish--Any species of the Family Opistognathidae.
(w) Blennies--Any species of the Families Clinidae or Blenniidae.
(x) Sleepers--Any species of the Family Eleotrididae.
(y) Gobies--Any species of the Family Gobiidae.
(z) Tangs and surgeonfish--Any species of the Family Acanthuridae.
(aa) Filefish/triggerfish--Any species of the Family Balistes,
except gray triggerfish, Balistidae capriscus.
(bb) Trunkfish/cowfish--Any species of the Family Ostraciidae.
(cc) Pufferfish/burrfish/balloonfish--Any of the following species:
1. Balloonfish--Diodon holocanthus.
2. Sharpnose puffer--Canthigaster rostrata.
3. Striped burrfish--Chilomycterus schoepfi.
(3) The following invertebrate species, as they occur in waters of
the state and in federal Exclusive Economic Zone (EEZ) waters adjacent
to state waters, are hereby designated as restricted species pursuant
to Section 370.01(20), Florida Statutes:
(a) Sponges--Any species of the Class Demospongia, except
sheepswool, yellow, grass, glove, finger, wire, reef, and velvet
sponges, Order Dictyoceratida.
(b) Upside-down jellyfish--Any species of the Genus Cassiopeia.
(c) Siphonophores/hydroids--Any species of the Class Hydrozoa,
except fire corals, Order Milleporina.
(d) Soft corals--Any species of the Subclass Octocorallia, except
sea fans Gorgonia flabellum and Gorgonia ventalina.
(e) Sea anemones--Any species of the Orders Actinaria, Zoanthidea,
Corallimorpharia, and Ceriantharia.
(f) Featherduster worms/calcareous tubeworms--Any species of the
Families Sabellidae and Serpulidae.
(g) Star-shells--Any of the species Astraea americana or Astraea
phoebia.
(h) Nudibranchs/sea slugs--Any species of the Subclass
Opisthobranchia.
(i) Fileclams--Any species of the Genus Lima.
(j) Octopods--Any species of the Order Octopoda, except the common
octopus, Octopodus vulgaris.
(k) Shrimp--Any of the following species:
1. Cleaner shrimp and peppermint shrimp--Any species of the Genera
Periclimenes or Lysmata.
2. Coral shrimp--Any species of the Genus Stenopus.
3. Snapping shrimp--Any species of the Genus Alpheus.
(l) Crabs--Any of the following species:
[[Page 32174]]
1. Yellowline arrow crab--Stenorhynchus seticornis.
2. Furcate spider or decorator crab--Stenocionops furcata.
3. Thinstripe hermit crab--Clibanarius vittatus.
4. Polkadotted hermit crab--Phimochirus operculatus.
5. Spotted porcelain crab--Porcellana sayana.
6. Nimble spray or urchin crab--Percnon gibbesi.
7. False arrow crab--Metoporhaphis calcarata.
(m) Starfish--Any species of the Class Asteroidea, except the
Bahama starfish, Oreaster reticulatus.
(n) Brittlestars--Any species of the Class Ophiuroidea.
(o) Sea urchins--Any species of the Class Echinoidea, except
longspine urchin, Diadema antillarum, and sand dollars and sea
biscuits, Order Clypeasteroida.
(p) Sea cucumbers--Any species of the Class Holothuroidea.
(q) Sea lillies--Any species of the Class Crinoidea.
(4) The following species of plants, as they occur in waters of the
state and in federal Exclusive Economic Zone (EEZ) waters adjacent to
state waters, are hereby designated as restricted species pursuant to
Section 370.01(20), Florida Statutes:
(a) Caulerpa--Any species of the Family Caulerpaceae.
(b) Halimeda/mermaid's fan/mermaid's shaving brush--Any species of
the Family Halimedaceae.
(c) Coralline red algae--Any species of the Family Corallinaceae.
(5) For the purposes of Section 370.06(2)(d), Florida Statutes, the
term ``marine life species'' is defined to mean those species
designated as restricted species in subsections (2), (3), and (4) of
this rule.
Specific Authority 370.01(20), 370.027(2), 370.06(2)(d), F.S. Law
Implemented 370.01(20), 370.025, 370.027, 370.06(2)(d), F.S. History--
New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.002 Definitions.-- As used in this rule chapter:
(1) ``Barrier net,'' also known as a ``fence net,'' means a seine
used beneath the surface of the water by a diver to enclose and
concentrate tropical fish and which may be made of either nylon or
monofilament.
(2) ``Drop net'' means a small, usually circular, net with weights
attached along the outer edge and a single float in the center, used by
a diver to enclose and concentrate tropical fish.
(3) ``Hand held net'' means a landing or dip net as defined in Rule
46-4.002(4), except that a portion of the bag may be constructed of
clear plastic material, rather than mesh.
(4) ``Harvest'' means the catching or taking of a marine organism
by any means whatsoever, followed by a reduction of such organism to
possession. Marine organisms that are caught but immediately returned
to the water free, alive, and unharmed are not harvested. In addition,
temporary possession of a marine animal for the purpose of measuring it
to determine compliance with the minimum or maximum size requirements
of this chapter shall not constitute harvesting such animal, provided
that it is measured immediately after taking, and immediately returned
to the water free, alive, and unharmed if undersize or oversize.
(5) ``Harvest for commercial purposes'' means the taking or
harvesting of any tropical ornamental marine life species or tropical
ornamental marine plant for purposes of sale or with intent to sell.
The harvest of tropical ornamental marine life species or tropical
ornamental marine plants in excess of the bag limit shall constitute
prima facie evidence of intent to sell.
(6) ``Land,'' when used in connection with the harvest of marine
organisms, means the physical act of bringing the harvested organism
ashore.
(7) ``Live rock'' means rock with living marine organisms attached
to it.
(8) ``Octocoral'' means any erect, nonencrusting species of the
Subclass Octocorallia, except the species Gorgonia flabellum and
Gorgonia ventalina.
(9) ``Slurp gun'' means a self-contained, handheld device that
captures tropical fish by rapidly drawing seawater containing such fish
into a closed chamber.
(10) ``Total length'' means the length of a fish as measured from
the tip of the snout to the tip of the tail.
(11) ``Trawl'' means a net in the form of an elongated bag with the
mouth kept open by various means and fished by being towed or dragged
on the bottom. ``Roller frame trawl'' means a trawl with all of the
following features and specifications:
(a) A rectangular rigid frame to keep the mouth of the trawl open
while being towed.
(b) The lower horizontal beam of the frame has rollers to allow the
trawl to roll over the bottom and any obstructions while being towed.
(c) The trawl opening is shielded by a grid of vertical bars spaced
no more than 3 inches apart.
(d) The trawl is towed by attaching a line or towing cable to a
tongue located above yor at the center of the upper horizontal beam of
the frame.
(e) The trawl has no doors attached to keep the mouth of the trawl
open.
(12) ``Tropical fish'' means any species included in subsection (2)
of Rule 46-42.001, or any part thereof.
(13) ``Tropical ornamental marine life species'' means any species
included in subsections (2) or (3) of Rule 46-42.001, or any part
thereof.
(14) ``Tropical ornamental marine plant'' means any species
included in subsection (4) of Rule 46-42.001.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama
Starfish.-- No person shall harvest, possess while in or on the waters
of the state, or land any of the following species:
(1) Longspine urchin, Diadema antillarum.
(2) Bahama starfish, Oreaster reticulatus.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92.
46-42.0035 Live Landing and Live Well Requirements.--
(1) Each person harvesting any tropical ornamental marine life
species or any tropical ornamental marine plant shall land such marine
organism alive.
(2) Each person harvesting any tropical ornamental marine life
species or any tropical ornamental marine plant shall have aboard the
vessel being used for such harvest a continuously circulating live well
or aeration or oxygenation system of adequate size and capacity to
maintain such harvested marine organisms in a healthy condition.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 7-1-92.
46-42.004 Size Limits.--
(1) Angelfishes.--
(a) No person harvesting for commercial purposes shall harvest,
possess while in or on the waters of the state, or land any of the
following species of angelfish, of total length less than that set
forth below:
1. One-and-one-half (1 1/2) inches for:
a. Gray angelfish (Pomacanthus arcuatus).
b. French angelfish (Pomacanthus paru).
2. One-and-three-quarters (1\3/4\) inches for:
a. Blue angelfish (Holacanthus bermudensis).
b. Queen angelfish (Holacanthus ciliaris).
[[Page 32175]]
3. Two (2) inches for rock beauty (Holacanthus tricolor).
(b) No person shall harvest, possess while in or on the waters of
the state, or land any angelfish (Family Pomacanthidae), of total
length greater than that specified below:
1. Eight (8) inches for angelfish, except rock beauty (Holacanthus
tricolor).
2. Five (5) inches for rock beauty.
(c) Except as provided herein, no person shall purchase, sell, or
exchange any angelfish smaller than the limits specified in paragraph
(a) or larger than the limits specified in paragraph (b). This
prohibition shall not apply to angelfish legally harvested outside of
state waters or federal Exclusive Economic Zone (EEZ) waters adjacent
to state waters, which angelfish are entering Florida in interstate or
international commerce. The burden shall be upon any person possessing
such angelfish for sale or exchange to establish the chain of
possession from the initial transaction after harvest, by appropriate
receipt(s), bill(s) of sale, or bill(s) of lading, and any customs
receipts, and to show that such angelfish originated from a point
outside the waters of the State of Florida or federal Exclusive
Economic Zone (EEZ) waters adjacent to Florida waters and entered the
state in interstate or international commerce. Failure to maintain such
documentation or to promptly produce same at the request of any duly
authorized law enforcement officer shall constitute prima facie
evidence that such angelfish were harvested from Florida waters or
adjacent EEZ waters for purposes of this paragraph.
(2) Butterflyfishes.--
(a) No person harvesting for commercial purposes shall harvest,
possess while in or on the waters of the state, or land any
butterflyfish (Family Chaetodontidae) of total length less than one (1)
inch.
(b) No person shall harvest, possess while in or on the waters of
the state, or land any butterflyfish of total length greater than 4
inches.
(3) Gobies--No person shall harvest, possess while in or on the
waters of the state, or land any gobie (Family Gobiidae) of total
length greater than 2 inches.
(4) Jawfishes--No person shall harvest, possess while in or on the
waters of the state, or land any jawfish (Family Opistognathidae) of
total length greater than 4 inches.
(5) Spotfin and Spanish hogfish--
(a) No person shall harvest, possess while in or on the waters of
this state, or land any Spanish hogfish (Bodianus rufus) of total
length less than 2 inches.
(b) No person shall harvest, possess while in or on the waters of
this state, or land any Spanish hogfish (Bodianus rufus) or spotfin
hogfish (Bodianus pulchellus) of total length greater than 8 inches.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.005 Bag limit.--
(1) Except as provided in Rule 46-42.006 or subsections (3) or (4)
of this rule, no person shall harvest, possess while in or on the
waters of the state, or land more than 20 individuals per day of
tropical ornamental marine life species, in any combination.
(2) Except as provided in Rule 46-42.006, no person shall harvest,
possess while in or on the waters of the state, or land more than one
(1) gallon per day of tropical ornamental marine plants, in any
combination of species.
(3) Except as provided in Rule 46-42.006, no person shall harvest,
possess while in or on the waters of the state, or land more than 5
angelfishes (Family Pomacanthidae) per day. Each angelfish shall be
counted for purposes of the 20 individual bag limit specified in
subsection (1) of this rule.
(4)(a) Unless the season is closed pursuant to paragraph (b), no
person shall harvest, possess while in or on the waters of the state,
or land more than 6 colonies per day of octocorals. Each colony of
octocoral or part thereof shall be considered an individual of the
species for purposes of subsection (1) of this rule and shall be
counted for purposes of the 20 individual bag limit specified therein.
Each person harvesting any octocoral as authorized by this rule may
also harvest substrate within 1 inch of the perimeter of the holdfast
at the base of the octocoral, provided that such substrate remains
attached to the octocoral.
(b) If the harvest of octocorals in federal Exclusive Economic Zone
(EEZ) waters adjacent to state waters is closed to all harvesters prior
to September 30 of any year, the season for harvest of octocorals in
state waters shall also close until the following October 1, upon
notice given by the Secretary of the Department of Environmental
Protection, in the manner provided in s.120.52(16)(d), Florida
Statutes.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 1-1-95.
46-42.006 Commercial Season, Harvest Limits.--
(1) Except as provided in Rule 46-42.008(7), no person shall
harvest, possess while in or on the waters of the state, or land
quantities of tropical ornamental marine life species or tropical
ornamental marine plants in excess of the bag limits established in
Rule 46-42.005 unless such person possesses a valid saltwater products
license with both a marine life fishery endorsement and a restricted
species endorsement issued by the Department of Environmental
Protection.
(2) Persons harvesting tropical ornamental marine life species or
tropical ornamental marine plants for commercial purposes shall have a
season that begins on October 1 of each year and continues through
September 30 of the following year. These persons shall not harvest,
possess while in or on the waters of the state, or land tropical
ornamental marine life species in excess of the following limits:
(a) A limit of 75 angelfish (Family Pomacanthidae) per person per
day or 150 angelfish per vessel per day, whichever is less.
(b) A limit of 75 butterflyfishes (Family Chaetodontidae) per
vessel per day.
(c) There shall be no limits on the harvest for commercial purposes
of octocorals unless and until the season for all harvest of octocorals
in federal Exclusive Economic Zone (EEZ) waters adjacent to state
waters is closed. At such time, the season for harvest of octocorals in
state waters shall also close until the following October 1, upon
notice given by the Secretary of the Department of Environmental
Protection, in the manner provided in Section 120.52(16)(d), Florida
Statutes. Each person harvesting any octocoral as authorized by this
rule may also harvest substrate within 1 inch of the perimeter of the
holdfast at the base of the octocoral, provided that such substrate
remains attached to the octocoral.
(d) A limit of 400 giant Caribbean or ``pink-tipped'' anemones
(Genus Condylactus) per vessel per day.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.007 Gear Specifications and Prohibited Gear.--
(1) The following types of gear shall be the only types allowed for
the harvest of any tropical fish, whether from state waters or from
federal Exclusive Economic Zone (EEZ) waters adjacent to state waters:
(a) Hand held net.
(b) Barrier net, with a mesh size not exceeding \3/4\ inch
stretched mesh.
[[Page 32176]]
(c) Drop net, with a mesh size not exceeding \3/4\ inch stretched
mesh.
(d) Slurp gun.
(e) Quinaldine may be used for the harvest of tropical fish if the
person using the chemical or possessing the chemical in or on the
waters of the state meets each of the following conditions:
1. The person also possesses and maintains aboard any vessel used
in the harvest of tropical fish with quinaldine a special activity
license authorizing the use of quinaldine, issued by the Division of
Marine Resources of the Department of Environmental Protection pursuant
to Section 370.08(8), Florida Statutes.
2. The quinaldine possessed or applied while in or on the waters of
the state is in a diluted form of no more than 2% concentration in
solution with seawater. Prior to dilution in seawater, quinaldine shall
only be mixed with isopropyl alcohol or ethanol.
(f) A roller frame trawl operated by a person possessing a valid
live bait shrimping license issued by the Department of Environmental
Protection pursuant to Section 370.15, Florida Statutes, if such
tropical fish are taken as an incidental bycatch of shrimp lawfully
harvested with such trawl.
(g) A trawl meeting the following specifications used to collect
live specimens of the dwarf seahorse, Hippocampus zosterae, if towed by
a vessel no greater than 15 feet in length at no greater than idle
speed:
1. The trawl opening shall be no larger than 12 inches by 48
inches.
2. The trawl shall weigh no more than 5 pounds wet when weighed out
of the water.
(2) This rule shall not be construed to prohibit the use of any bag
or container used solely for storing collected specimens or the use of
a single blunt rod in conjunction with any allowable gear, which rod
meets each of the following specifications:
(a) The rod shall be made of nonferrous metal, fiberglass, or wood.
(b) The rod shall be no longer than 36 inches and have a diameter
no greater than \3/4\ inch at any point.
(3) No person shall harvest in or from state waters any tropical
fish by or with the use of any gear other than those types specified in
subsection (1); provided, however, that tropical fish harvested as an
incidental bycatch of other species lawfully harvested for commercial
purposes with other types of gear shall not be deemed to be harvested
in violation of this rule, if the quantity of tropical fish so
harvested does not exceed the bag limits established in Rule 46-42.005.
Specific Authority 370.027(2), F.S. Law Implemented 370.025,
370.027, F.S. History--New 1-1-91, Amended 7-1-92, 1-1-95.
46-42.009 Prohibition on the Taking, Destruction, or Sale of
Marine Corals and Sea Fans; Exception; Repeal of Section 370.114,
Florida Statutes.--
(1) Except as provided in subsection (2), no person shall take,
attempt to take, or otherwise destroy, or sell, or attempt to sell, any
sea fan of the species Gorgonia flabellum or of the species Gorgonia
ventalina, or any hard or stony coral (Order Scleractinia) or any fire
coral (Genus Millepora). No person shall possess any such fresh,
uncleaned, or uncured sea fan, hard or stony coral, or fire coral.
(2) Subsection (1) shall not apply to:
(a) Any sea fan, hard or stony coral, or fire coral legally
harvested outside of state waters or federal Exclusive Economic Zone
(EEZ) waters adjacent to state waters and entering Florida in
interstate or international commerce. The burden shall be upon any
person possessing such species to establish the chain of possession
from the initial transaction after harvest, by appropriate receipt(s),
bill(s) of sale, or bill(s) of lading, and any customs receipts, and to
show that such species originated from a point outside the waters of
the State of Florida or federal Exclusive Economic Zone (EEZ) adjacent
to state waters and entered the state in interstate or international
commerce. Failure to maintain such documentation or to promptly produce
same at the request of any duly authorized law enforcement officer
shall constitute prima facie evidence that such species were harvested
from Florida waters in violation of this rule.
(b) Any sea fan, hard or stony coral, or fire coral harvested and
possessed pursuant to permit issued by the Department of Environmental
Protection for scientific or educational purposes as authorized in
Section 370.10(2), Florida Statutes.
(c) Any sea fan, hard or stony coral, or fire coral harvested and
possessed pursuant to the aquacultured live rock provisions of Rule 46-
42.008(3)(a) or pursuant to a Live Rock Aquaculture Permit issued by
the National Marine Fisheries Service under 50 CFR Part 638 and meeting
the following requirements:
1. Persons possessing these species in or on the waters of the
state shall also possess a state submerged lands lease for live rock
aquaculture and a Department of Environmental Protection permit for
live rock culture deposition and removal or a federal Live Rock
Aquaculture Permit. If the person possessing these species is not the
person named in the documents required herein, then the person in such
possession shall also possess written permission from the person so
named to transport aquacultured live rock pursuant to this exception.
2. The nearest office of the Florida Marine Patrol shall be
notified at least 24 hours in advance of any transport in or on state
waters of aquacultured live rock pursuant to this exception.
3. Persons possessing these species off the water shall maintain
and produce upon the request of any duly authorized law enforcement
officer sufficient documentation to establish the chain of possession
from harvest on a state submerged land lease for live rock aquaculture
or in adjacent Exclusive Economic Zone (EEZ) waters pursuant to a
federal Live Rock Aquaculture Permit.
4. Any sea fan, hard or stony coral, or fire coral harvested
pursuant to Rule 46-42.008(3)(a) shall remain attached to the cultured
rock.
Specific Authority 370.027(2), F.S.; Section 6, Chapter 83-134,
Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Law
Implemented 370.025, 370.027, F.S.; Section 6, Chapter 83-134, Laws of
Florida, as amended by Chapter 84-121, Laws of Florida. History--New 1-
1-95.2222
[FR Doc. 97-15252 Filed 6-11-97; 8:45 am]
BILLING CODE 3510-12-P
