[Federal Register Volume 62, Number 131 (Wednesday, July 9, 1997)]
[Rules and Regulations]
[Pages 36655-36657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17709]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 960712192-7160-02]
RIN 0648-AD85
Florida Keys National Marine Sanctuary; Supplemental Final
Regulatory Flexibility Analysis: Commercial Treasure Salvors
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce.
ACTION: Final rule; availability of Supplemental Final Regulatory
Flexibility Analysis (Supplemental FRFA).
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SUMMARY: Pursuant to the Florida Keys National Marine Sanctuary and
Protection Act and the National Marine Sanctuaries Act, NOAA developed
a 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, and modified them on June
12, 1997.
A Final Regulatory Flexibility Analysis (FRFA) was prepared for the
final regulations. The FRFA was summarized in the Federal Register
document issuing the final Sanctuary regulations (62 FR 4578, January
30, 1997), and its availability announced. The Office of the Chief
Counsel for Advocacy of the Small Business Administration (SBA)
reviewed the FRFA and received several comments critical of certain
portions of the FRFA, mainly with regard to the discussion of submerged
cultural resources and the impacts on treasure salvors. The Office of
the Chief Counsel for Advocacy informally suggested to NOAA that the
portion of the FRFA on treasure salvage be supplemented. Consequently,
prior to the effective date of the final Sanctuary regulations (July 1,
1997) NOAA prepared a Supplemental FRFA covering commercial treasure
salvage. The Assistant Administrator for Ocean Services and Coastal
Zone Management upon reviewing the Supplemental FRFA concluded that it
presented no information warranting modifications to the final
regulations. Consequently, the Assistant Administrator has ratified the
final regulations. This document summarizes and announces the
availability of the Supplemental FRFA.
ADDRESSES: Requests for a copy of the Supplemental Final Regulatory
Flexibility Analysis: Commercial Treasure Salvage, the Final Regulatory
Flexibility Analysis, or the Final Management Plan/Environmental Impact
Statement 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. No.
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).
[[Page 36656]]
NOAA published final Sanctuary regulations to implement the
management plan on January 30, 1997 (62 FR 4578), and modified them on
June 12, 1997 (62 FR 32154). The effective date of the final Sanctuary
regulations is July 1, 1997.
II. Regulatory Flexibility Act
The economic impacts to commercial treasure salvors are addressed
in the Draft and Final Environmental Impact Statements; the assessment
conducted pursuant to E.O. 12866, the FRFA, as well as in the
Supplemental FRFA.
The FRFA was summarized in the Federal Register document issuing
the final Sanctuary regulations (62 FR 4578, 4605-4606), and its
availability announced. The Office of the Chief Counsel for Advocacy of
the Small Business Administration (SBA) reviewed the FRFA and received
several comments critical of certain portions of the FRFA, mainly with
regard to the treatment of submerged cultural resources and the impacts
on treasure salvors. At SBA's suggestion, and because of the time
provided by the forty-five day Congressional review period under the
National Marine Sanctuaries Act, NOAA prepared a supplement to the FRFA
to further address the comments received by the SBA regarding
commercial treasure salvage. The following provides a summary of the
Supplemental FRFA.
Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires
that the FRFA contain a succinct statement of the need for, and
objectives of, the rule. The FKNMSPA mandated the development of a
final management plan and implementing regulations in order to protect
and manage Sanctuary resources in a manner which facilitates multiple
uses of the Sanctuary which are consistent with the primary objective
of resource protection.
Prior to Sanctuary designation, the recovery of artifacts from
historic shipwrecks by treasure hunters and commercial salvors was
controlled by a contract system under Florida State law and the
maritime admiralty law of finds and salvage outside State submerged
lands and waters. The statutory designation of the FKNMS in 1990 made
historic shipwreck public sanctuary resources, just like the coral,
seagrass beds and other natural resources of the Sanctuary. Federal
historic preservation law generally prohibits the unauthorized removal
and privatization of public resources. Therefore, unless the recovery
is conducted pursuant to some valid pre-existing Federal or State
authorization or is expressly authorized by a Sanctuary permit, the
salvage is prohibited. The Sanctuary regulations include a permit
system for recovery and privatization of public resources under certain
circumstances. Without this permit system, no private recovery would be
lawful under the existing Federal Archaeological Program (FAP), the
underlying Federal Historic Preservation Laws and the NMSA.
Section 604(a)(2) of the RFA requires a summary of the significant
issues raised by the public comments in response to the Initial
Regulatory Flexibility Analysis (IRFA), a summary of the assessment of
the agency of such issues, and a statement of any changes to the
proposed rule as a result of such comments. While an IRFA was
determined not to be require for the Draft Management Plan/Draft
Environmental Impact Statement (DMP/DEIS) and therefore was not
prepared, a socioeconomic impact analysis was conducted and was
summarized in the DMP/DEIS. The socioeconomic impact analysis stated
that the adverse impacts were expected to be minimal for several
reasons, including past and present salvage activities, the likelihood
of new discoveries, enactment of the Abandoned Shipwreck Act and other
Federal historic preservation laws, and the shift of the treasure
salvage industry away from the Florida Keys to waters outside the
United States, particularly in the Caribbean. NOAA received comments on
its proposed management of submerged cultural resources (SCRs) from the
public, and for the most part, treasure salvors, particularly the
Historic Shipwreck Salvage Policy Council (HSSPC), throughout the
development of the final regulations and management plan, as well as
comments received by the SBA on the FRFA. NOAA's responses to these
comments, and a description of what changes are made in the final
regulations and management plan, are found in the Final Management
Plan/Final Environmental Impact Statement, final regulations, FRFA and
Supplemental FRFA. The issues raised in the comments received, and
NOAA's responses thereto, address: (1) The ban on treasure salvage; (2)
penalties; (3) prohibiting treasure hunting and not issuing permits for
private profit; (4) SCR plan/permits and costs to treasure salvors'
businesses; (5) Special Use Permits; fees/waiver in SCR Context; (6)
public access to SCRs; (7) inventory of SCRs--responsibility & expense;
and (8) survey/inventory permits.
Section 604(a)(3) requires a description of, and an estimate of,
the number of small entities to which the rule will apply or an
explanation of why no such estimate is available. The small businesses
that directly use the Sanctuary and its resources, and therefore will
be subject to the Sanctuary regulations, include commercial treasure
salvors. The Supplemental FRFA describes the creation and evolution of
the treasure hunting-commercial salvage industry; the current
commercial treasure salvage industry in Florida and the Florida Keys--
professional treasure hunters, part-time treasure hunters, and amateur
souvenir collectors/hobbyists. The Supplemental FRFA also describes
other groups interested in historic sanctuary resources--recreational
divers, archaeologists, historians, educators, fishermen, and the
public.
Section 604(a)(4) requires that the FRFA contain a description of
the reporting, recordkeeping and other compliance requirements of the
rule, including an estimate of the classes of small entities which will
be subject to the requirement and the type of professional skills
necessary for preparation of the report or record. As discussed in the
FRFA, the Sanctuary regulations require that permittees submit status
reports for activities conducted under Sanctuary permits. The reporting
requirement for SCR permits may be more rigorous than the existing
State contracts, but they are necessary to preserve historical and
archaeological information consistent with existing Federal historic
preservation laws. The number of small entities which must comply with
this requirement will depend on the number of applicants; expected to
be less than 20 per year. The Supplemental FRFA adds that as regards
commercial treasure salvors, the reporting and recordkeeping
requirements under this rule is limited to the SCR permit system which
consists of: (1) A survey/inventory permit (phase 1); (2) a research/
recovery permit (phase 2); and (3) a Special Use Permit for
deaccession/transfer (phase 3). No permit is required for the search
with non-intrusive remote sensing devices. However, a permit is
required if there is even limited excavation for identification
purposes because of the potential loss or injury to Sanctuary resources
(natural and historic).
Section 604(a)(5) requires a description of the steps taken to
minimize the significant economic impacts on small entities consistent
with the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency which
affect the impact on small entities was rejected. In the 25 year
history of the National Marine
[[Page 36657]]
Sanctuary Program, and consistent with the FAP, commercial treasure
salvage has never been permitted in any national marine sanctuary prior
to the Sanctuary plan. The final Sanctuary regulations and management
plan, as they pertain to SCRs and commercial treasure salvage, were
based on the meetings with and comments from treasure salvors, comments
from historic preservationists, and the public. In response to
comments, the final regulations and plan reflect changes that were made
in an effort to make the permit system more pragmatic from the
perspective of the commercial treasure salvors without compromising the
primary objectives of protecting significant natural and historic
sanctuary resources. In particular, the final plan and regulations
contain more detail on the criteria for NOAA/State decisions regarding
the circumstances when SCRs may recovered under the Sanctuary permit
system. The regulations also establish a system by which a permittee
may retain possession of the SCRs, make money off their display, and in
certain circumstances, be able to privatize the public resource for
sale, transfer or distribution to investors. Other changes to the
regulations are further described in the Supplemental FRFA.
The SBA also received an E-mail from the Conch Coalition stating
that the Florida Keys Marine Life Association had just become aware
that the Sanctuary regulations would have significant adverse economic
impacts on the Florida Keys marine life industry and that the FRFA did
not properly deal with those impacts. The E-mail stated that detailed
comments on this issue would be forthcoming from the Florida Keys
Marine Life Association. Such comments were never received.
Accordingly, the FRFA has not been supplemented with respect to the
Florida Keys marine life industry.
A copy of the supplemental FRFA may be obtained upon request.
List of Subjects in 15 CFR Part 922
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 30, 1997.
Nancy Foster,
Assistant Administrator for Ocean Services and Coastal Zone Management.
[FR Doc. 97-17709 Filed 7-8-97; 8:45 am]
BILLING CODE 3510-12-M
