Regulations for the Florida Keys National Marine Sanctuary Management Review: Blueprint for Restoration

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 241204-0311]

RIN 0648-BJ14

Regulations for the Florida Keys National Marine Sanctuary Management Review: Blueprint for Restoration

AGENCY:

Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION:

Final rule.

SUMMARY:

As part of its Restoration Blueprint initiative, the National Oceanic and Atmospheric Administration (NOAA) is issuing final regulations for the Florida Keys National Marine Sanctuary (FKNMS or sanctuary) that will expand the boundary of the sanctuary, update sanctuary-wide regulations, update the individual marine zones and their associated regulations, and revise the sanctuary's terms of designation. NOAA is also finalizing a revised management plan and final environmental impact statement (EIS) as part of this action. The final rule describes how NOAA will work to improve the condition of resources in FKNMS through a series of regulatory measures designed to reduce threats and, where appropriate, restore coral reefs, seagrasses, and other important habitats. The intended effect of this final rule is to manage and protect the living and heritage resources of FKNMS for the benefit of the public.

DATES:

Effective Date:

Pursuant to section 304(b) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and regulations shall take effect and become final after the close of a review period of forty-five days of continuous session of Congress, beginning on the date on which this Federal rulemaking is published, which is January 17, 2025; however, if the Governor of the State of Florida certifies to the Secretary of Commerce during that same review period that any such regulation is unacceptable, the regulation(s) will not take effect in State waters of the sanctuary. The public can track days of the congressional session at the following website:

https://www.congress.gov/days-in-session.

NOAA will publish an announcement of the effective date of the final regulations in the

Federal Register

.

Incorporation by reference:

The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register as of after the close of a review period of forty-five days of continuous session of Congress, beginning on the date on which this Federal rulemaking is published, which is January 17, 2025. NOAA will publish an announcement of the IBR approval date in the

Federal Register

.

Delay of effective date:

NOAA is delaying the effective date of §§ 922.163(a)(5)(x) and 922.164(e)(3), (f)(2), (g)(1), and (h)(1) until January 19, 2027.

ADDRESSES:

Copies of the final EIS and management plan described in this rule, the Record of Decision (ROD), and additional background materials are available at

https://floridakeys.noaa.gov/blueprint/.

FOR FURTHER INFORMATION CONTACT:

Beth Dieveney, Policy Analyst, FKNMS, 33 East Quay Rd., Key West, FL 33040, 305-797-6818 phone, or by email at

beth.dieveney@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

1. Florida Keys National Marine Sanctuary

Designated in 1990, FKNMS was the ninth national marine sanctuary in the National Marine Sanctuary System. As one of the largest marine protected areas in the United States, FKNMS encompasses approximately 3,800 square miles of coastal and ocean waters from the estuarine waters of South Florida along the Florida Keys archipelago to the Dry Tortugas, encompassing more than 1,700 islands. FKNMS provides habitats for more than 6,000 species of fishes, invertebrates, and plants, in addition to uniquely expansive and diverse seagrass and coral reef communities. Within the boundaries of the sanctuary lie spectacular, unique, and nationally significant marine resources including North America's only coral barrier reef, extensive seagrass beds, mangrove-fringed islands, and more than 6,000 species of marine life. The sanctuary also protects pieces of our Nation's history such as shipwrecks and other archeological resources. This final rule follows NOAA's publication of a 2022 proposed rule and a 2019 draft EIS, which included a range of alternatives.

The health of the marine environment around the Florida Keys and the health of the Florida Keys community in Monroe County, Florida, are inextricably linked. A declining marine environment puts the economy and jobs at risk. Relying on the existence and maintenance of a healthy marine environment, the Florida Keys support more than 82,874 residents and approximately 5.13 million visitors annually (Rockport Analytics, 2019). Tourism value to the Florida Keys economy was estimated at $2.4 billion (in 2018, the most recent year data were available), supporting 43% of jobs and employment in Monroe County and sales tax paid by visitors to Monroe County made up roughly 59% of state and local tax receipts attributed to tourism (Rockport Analytics, 2019).

2. Need for the Rulemaking

NOAA's management of FKNMS is directed by the purposes and policies of the NMSA and the Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA, Public Law 101-605). The NMSA requires the Secretary of Commerce (Secretary) to evaluate the substantive progress toward implementing the management plan and goals for the sanctuary, especially the effectiveness of site-specific management techniques and strategies, and . . . revise the management plan and regulations as necessary to fulfill the purposes and policies of this chapter. (16 U.S.C. 1434(e)). Those purposes and policies include:

• Provide authority for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities (16 U.S.C. 1431(b)(2));

• Maintain the natural biological communities in the national marine sanctuaries, and to protect, and, where appropriate, restore and enhance natural habitats, populations, and ecological processes (

id.

1431(b)(3));

• Facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities (

id.

(b)(6));

• Develop and implement coordinated plans for the protection and management of these areas with appropriate Federal agencies, State and local governments . . . and other public and private interests concerned with the continuing health and resilience of these marine areas (

id.

1431(b)(7)); and

• Create models of, and incentives for, ways to conserve and manage these areas, including the application of innovative management techniques (

id.

1431(b)(8)).

The FKNMSPA directs NOAA to protect and preserve living and other resources of the Florida Keys marine environment, provide education on and interpretation of sanctuary resources to the public, and manage human uses of the sanctuary consistent with the FKNMSPA (Sec. 3, Pub. L. 101-605, 104 Stat. 3090).

In order to ensure long-term resource viability and ecosystem function, NOAA is updating the FKNMS management framework to address current and future threats to sanctuary resources, such as diminished water quality originating from both within and outside the sanctuary, significant decrease in coral cover, and habitat degradation from vessel impacts including anchor damage, propeller-scarring, and groundings. Each of these threats has major implications for FKNMS.

In addition, NOAA is updating FKNMS management efforts to respond to the 2011 FKNMS Condition Report,

1

which concluded that resources in the Florida Keys were in fair to fair/poor condition and generally either stable or in decline. Since the release of the 2011 condition report, sanctuary resources have been further degraded by Hurricane Irma (2017), a serious and widespread coral disease outbreak, a seagrass die-off, and warming ocean temperatures as evident during the summer 2023 marine heat wave, among other threats.

1

https://sanctuaries.noaa.gov/science/condition/fknms/welcome.html

.

Furthermore, during the comment phase on the draft documents for this action, the public emphasized the need for a more ecosystem-based management approach to better protect the region's marine resources. To that end, there was strong public support for sanctuary expansion and updated marine zones—actions that are consistent with the purposes and policies of the NMSA and the FKNMSPA. As a result, this final rule extends national marine sanctuary management actions to areas that have demonstrated biological and ecological connectivity with existing sanctuary resources and includes adaptive management strategies to better respond to changing conditions, use patterns, and emerging threats to resources.

In addition to these regulatory updates, NOAA is enhancing research, restoration, and education efforts to conserve and restore these nationally significant sanctuary resources. These efforts, which are described in the final management plan, are critical for assessing changes occurring in the environment, fostering a stewardship ethic, and developing a better understanding of the ecosystem services that sanctuary resources provide for communities throughout the Florida Keys.

In a parallel process, which involved a separate regulatory review aimed at creating consistency and streamlining national marine sanctuary regulations, on January 6, 2023, NOAA updated some of the regulations found at 15 CFR part 922 (88 FR 953

2

). Part 922 includes general regulations applicable to all national marine sanctuaries (subparts A through E) and site-specific regulations that relate to each individual sanctuary (subparts F through T). All regulatory references to 15 CFR part 922 in this final rule conform with the 88 FR 953 final rule.

2

https://www.federalregister.gov/documents/2023/01/06/2022-28225/national-marine-sanctuary-regulations

.

3. Incorporation by Reference

The definitions in § 922.162 for “marine life species” and “tropical fish” incorporate by reference the same definitions under State of Florida regulations for Marine Life found at Florida Administrative Code (F.A.C.) 68B-42.001 and 68B-42.002. Specifically, under these Florida regulations, the definitions of “marine life species” and “tropical fish” in 68B-42.002 incorporate lists of species designated as “restricted species” found at 68B-42.001. Under Florida regulations, a fishing permit is required to target any species that falls under the definition of “marine life species” and “tropical fish.” Similarly, sanctuary regulations at § 922.163(a)(12) require, among other things, that marine life species only be harvested from the sanctuary if authorized by a state permit or exemption. Sanctuary regulations at § 922.164(b)(2) also prohibit the collection of tropical fish from within two management areas of the sanctuary that were formerly the Key Largo and Looe Key national marine sanctuaries. Florida regulations are readily accessible at

https://www.flrules.org/.

These Florida regulations are currently referenced in the existing sanctuary regulations; at this time NOAA is updating the language in order to comply with Office of

Federal Register

regulations for incorporation by reference found at 1 CFR part 51.

II. The Restoration Blueprint Process

1. Notice of Intent & Scoping

On April 19, 2012, NOAA and the U.S. Department of the Interior's (DOI) U.S. Fish and Wildlife Service (USFWS) published a notice of intent in the

Federal Register

. The notice informed the public of the proposal to develop a draft environmental impact statement (draft EIS), announced five public scoping meetings, and solicited public comment. NOAA and USFWS held public scoping meetings throughout the Florida Keys, in Ft. Myers and Miami and accepted written comments from April 19, 2012, to June 29, 2012. The website provides a scoping comments summary document

3

and original comments can be found at the regulations.gov docket for this notice of intent:

NOAA-NOS-2012-0061.

3

https://nmsfloridakeys.blob.core.windows.net/floridakeys-prod/media/archive/review/documents/scopingcommentssummary.pdf

.

In addition, as part of formal scoping, the FKNMS Sanctuary Advisory Council played a significant role throughout this review and the alternatives development process. Informed by their 2012 Regulatory and Marine Zone Alternatives Development Work Plan

4

and input from four community working groups,

5

the Sanctuary Advisory Council provided over 200 recommendations for the sanctuary superintendent as well as the USFWS Florida Keys National Wildlife Refuges Complex manager to consider when developing alternatives related to regulations and marine zones within the sanctuary. The website

https://floridakeys.noaa.gov/review/workgroups.html

provides more information and summary documents of the Sanctuary Advisory Council and working groups.

4

https://nmsfloridakeys.blob.core.windows.net/floridakeys-prod/media/archive/sac/othermaterials/121211draftworkplan.pdf

.

5

These working groups included 35 additional community member participants, many of whom represented local, small Florida Keys businesses. For details see:

https://floridakeys.noaa.gov/review/workgroups.html

.

2. Environmental Impact Statement (EIS)

Following the NOI and scoping, in accordance with the National Environmental Policy Act (NEPA, 42 U.S.C. 4321

et seq.

) and the NMSA (16 U.S.C. 1434), NOAA prepared and released a draft EIS and updated draft management plan on (84 FR 45728, August 30, 2019). NOAA accepted public comments on the draft EIS from August 2019 to January 2020 and hosted six public hearings and two Sanctuary Advisory Council meetings to hear public comment. NOAA received comment from 1,213 distinct commenters during the public comment period and several letters and petitions with multiple signatories for a total of well over 35,000 comments.

The draft EIS, also referred to as the Florida Keys National Marine Sanctuary Restoration Blueprint, evaluated the environmental consequences of four specific alternatives and provided an in-depth resource assessment. The alternatives in the draft EIS considered sanctuary boundary expansion to protect ecologically connected habitats; proposed new or modified sanctuary-wide regulations; proposed to establish new and modify existing marine zones to protect additional sensitive and threatened coral reef, seagrass, hardbottom habitats and species dependent on these habitats; and included an updated draft management plan. The draft EIS alternatives aimed to address threats and protect sanctuary resources by separating conflicting uses and managing high intensity and concentrated use activities while still allowing sustainable uses compatible with FKNMS natural resource protection goals.

A final EIS was prepared following the release of the 2022 Notice of Proposed Rulemaking (NOPR) described below. The final EIS includes the four alternatives evaluated in the draft EIS, the 2022 NOPR proposal, and a preferred alternative. The preferred alternative in the final EIS matches the regulations in this rule. The final EIS was released on December 13, 2024 and is available at

https://floridakeys.noaa.gov/blueprint/.

All alternatives analyzed in the final EIS are consistent with NOAA's mission to conserve and manage coastal and marine ecosystems and resources, would further the FKNMS mission to “protect the marine resources of the Florida Keys while facilitating human uses that are consistent with the primary objective of sanctuary resource protection,” would provide for more comprehensive management and protection of important and vulnerable ecological and cultural resources in the Florida Keys, and would provide important opportunities for research and recovery of resources from observed impacts. No significant adverse impacts to the human environment were identified under any alternative considered in the final EIS.

3. The Notice of Proposed Rulemaking

The proposed rule combined individual aspects of each of the four alternatives presented in the draft EIS, was directly informed by the thousands of public and agency comments received on the draft EIS, and considered updated environmental and socioeconomic information.

On July 18, 2022, NOAA published a NOPR modifying the FKNMS boundary, sanctuary-wide regulations, and marine zones and associated regulations (87 FR 42800). NOAA hosted five public comment meetings, throughout the Florida Keys and virtually, and accepted written comments from July 18, 2022, to October 26, 2022. NOAA accepted comments in the form of letters and written comments through electronic submissions to

http://regulations.gov,

letters submitted by mail, and both in-person and virtual public hearings. NOAA received 426 unique comments during the public comment period on the NOPR. All public comments on the proposed rule are available at

https://www.regulations.gov/docket/NOAA-NOS-2019-0094.

NOAA's response to the public comments is set forth in Section V of this document.

In addition to public comment, NOAA consulted with and received technical assistance and comment from several Federal agencies, fishery management councils (FMCs), and State agencies. A brief summary of engagement follows.

a. U.S. Fish & Wildlife Service Consultation

USFWS has been engaged in the Restoration Blueprint process since NOAA and USFWS jointly published a

Federal Register

notice of intent on April 19, 2012, to notify the public of the agencies' intent to prepare a draft EIS and to initiate the scoping process. 77 FR 23425 (April 19, 2012). USFWS participated in the public scoping events and relevant community working groups and provided subject matter expertise throughout development of the draft EIS, the proposed rule and this final rule. In addition, NOAA initiated informal Endangered Species Act (ESA) consultation with USFWS Ecological Services in August 2019 and received comment on June 22, 2020. In that comment letter, USFWS Ecological Services concurred with NOAA's determination that the proposed action is unlikely to adversely affect listed species or adversely modify critical habitat and noted that coordination with the Florida Keys National Wildlife Refuges would be ongoing in the development of the proposed and final rule. NOAA provided USFWS the proposed rule on July 18, 2022 and on February 21, 2024, a description of the minor changes anticipated to that rule following public comment. NOAA concluded that these updates to the regulations since publication of the draft EIS do not change NOAA's determination, and USFWS concurred on February 23, 2024.

b. Regional Fishery Management Council Consultation

Pursuant to NMSA Section 304(a)(5), NOAA sent letters on August 22, 2019, to initiate consultation with the Gulf of Mexico Fishery Management Council (GMFMC) and the South Atlantic Fishery Management Council (SAFMC) on potential regulatory changes that affect Federal fisheries. NOAA also provided multiple updates at the respective Council meetings and various advisory and technical committees over the course of the development of the draft EIS and throughout the public comment period following its release. Both the GMFMC and SAFMC submitted comment letters on the draft EIS on February 21, 2020 and March 13, 2020 respectively.

NOAA continued to engage with and provide briefings for both FMCs and their individual advisory panels during the proposed rule public comment period. Both the GMFMC and SAFMC submitted comment letters on the proposed rule on February 15 and February 22, 2023, respectively, which are responded to below.

c. U.S. Department of Defense Coordination

The Department of the Navy provided a summary of their operational environment and activities at Naval Air Station (NAS) Key West during development of the 2019 draft EIS, in a comment letter on March 2, 2020, and during development of the proposed and final rule. This information was used to inform the updated list of military activities that are exempted from NOAA regulations under 922.163(d) (see Appendix F of the final EIS).

d. State of Florida Coordination

NOAA has worked closely with several Florida State agencies throughout the public scoping process, and development of the draft and final EISs and the proposed and final rule. Approximately 60 percent of the sanctuary is within Florida State waters, and the sanctuary is cooperatively managed with the State of Florida, with the Department of Environmental Protection (DEP) and Florida Fish and Wildlife Conservation Commission (FWC) as lead agencies. The Florida Department of State through the State Historic Preservation Office (SHPO) is also a key resource management partner for sanctuary historical resources. NOAA coordinates with other State agencies as needed on topic-specific issues. Several co-trustee agreements outline a framework for this cooperative

management relationship. Finally, NOAA has evaluated this final rule to ensure compliance with the requirements of Section 307 of the Coastal Zone Management Act specifically in relation to the enforceable policies of Florida's Coastal Zone Management Program. NOAA submitted its consistency determination to the State on May 21, 2024.

Florida Department of Environmental Protection

NOAA coordinated extensively with Florida DEP throughout the process. DEP was represented at most Sanctuary Advisory Council community working group meetings where they provided management perspective and resource status and use data and has an official seat on the Sanctuary Advisory Council. DEP submitted comment letters to NOAA on the 2019 draft EIS on May 1, 2020, and on the proposed rule on March 31, 2023.

Florida Fish and Wildlife Conservation Commission

Florida FWC staff has coordinated directly with sanctuary staff, notably with Florida Fish and Wildlife Research Institute (FWRI) experts assigned to provide scientific and technical support for each of the Sanctuary Advisory Council community working groups. Florida FWC staff also served as a co-chair to facilitate one of the working groups, and has an official seat on the Sanctuary Advisory Council. NOAA also provided multiple updates at FWC meetings over the course of the development of the 2019 draft EIS and throughout the public comment period. In addition, FWRI research findings directly informed various regulatory and zoning aspects of this final rule. FWC submitted a comment letter to NOAA on the 2019 draft EIS on April 29, 2020, and for the proposed rule on March 30, 2023.

Florida State Historic Preservation Office

The Florida SHPO and Florida Division of Historical Resources staff have coordinated with FKNMS staff to review and develop an updated draft

Programmatic Agreement under Section 106 of the National Historic Preservation Act regarding Florida Keys National Marine Sanctuary Operations, Management, and Permitting

(Programmatic Agreement), which was included in the draft EIS (Appendix C) for public comment. In addition, the SHPO submitted a comment letter to NOAA on the 2019 draft EIS on January 31, 2020, that noted the draft EIS Preferred Alternative (Alternative 3) would sufficiently address NOAA's National Historic Preservation Act Section 106 (54 U.S.C. 306108) responsibilities through implementation of the new management plan and Section 106 Programmatic Agreement. On October 13, 2022, NOAA sent a follow-up letter to the SHPO notifying the SHPO of the publication of the NOPR and an updated management plan and providing a finding of no adverse effects to historic properties. The SHPO did not offer further comment.

III. Changes From Proposed to Final Rule

1. Sanctuary Boundary

In this rule, NOAA is modifying the sanctuary boundary to expand the sanctuary's area from the existing 3,800 square miles to 4,539 square miles but is not including the proposed expansion area in Pulley Ridge. The final sanctuary boundary is expanded to include the Area To Be Avoided (ATBA) regulatory zone and the Tortugas Region, as was proposed in the 2022 NOPR. Concurrent with considering boundary expansion to include Pulley Ridge, as noted in the proposed rule, the United States proposed that the International Maritime Organization (IMO) designate a No Anchoring Area in the southern portion of Pulley Ridge, which was approved and implemented starting June 1, 2023 (IMO SN.1/Circ.342

6

). Therefore, given the IMO action to protect these habitats from anchor damage from all vessels and the additional protections in place through GMFMC Habitat Area of Particular Concern (HAPC) regulations for fishing vessels, NOAA has determined that sanctuary expansion to include Pulley Ridge is not necessary at this time, and it is not included in this final rule.

6

See also

https://www.imo.org/en/MediaCentre/MeetingSummaries/Pages/NCSR-9th-session.aspx.

2. Sanctuary-Wide Regulations

a. Definitions

NOAA amends the definitions for “anchoring” and “no anchoring” from the definition in the proposed rule to include an exception for allowing the use of a mooring buoy. Commenters raised concerns that the proposed definitions would prohibit use of a mooring buoy since a mooring buoy is technically anchored to the seabed. NOAA amends the definition for “at risk of becoming derelict” and “deserting” to align with the State of Florida definition, which was updated since release of the 2022 NOPR.

NOAA amends the definition for “traditional fishing” to set the baseline of activities considered traditional to those fishing activities customarily conducted in the sanctuary as of the effective date of this rule. The NOPR had set the baseline of traditional fishing activities as those described in the 1996 Florida Keys National Marine Sanctuary FMP/EIS (Vol. II), consistent with the existing regulation. This change is made based on comments received from the FWC, SAFMC, and GMFMC. This change is intended to define “traditional fishing” as those fishing activities customarily conducted in the sanctuary, as managed by the FWC in State waters and by NMFS in the EEZ, as of the effective date of this rule. Fishing regulations change, and by defining traditional fishing as those activities customarily conducted as of the effective date of this rule, NOAA does not intend to exclude fishing activities subject to routine changes to state and federal fishery management regulations. Routine changes include changes to size limits, bag limits, vessel limits, trip limits, possession limits, retention limits, quotas, harvest, catch limits, or catch targets and routine season modifications including in-season adjustments or closures. On the other hand, substantial changes to state and federal fishery management regulations for a fishing activity would make that activity no longer considered traditional fishing and the changes to that fishing activity would not be exempted from the corresponding sanctuary prohibition. Substantial changes include new or modified regulations that allow use of new gear types or methods or that modify allowable or authorized gear types or methods. Any future update to the traditional fishing definition would require a separate rulemaking in order to consider public comment and to conduct an environmental analysis under NEPA of the potential impacts of new or innovative gear types or fishing activities on sanctuary resources. NOAA would collaborate closely with, and rely on the expertise of, fishery managers for the FWC, FMCs, and NMFS when considering any updates to the definition of traditional fishing. Appendix G of the 2024 final EIS provides additional description of the fishing activities managed by the FWC in State waters and by NMFS in the EEZ that are intended to be considered traditional fishing.

Between the draft and final rule, NOAA has added a definition for “derelict vessels” and amends definitions of “at-risk of becoming

derelict” and “deserting” to align more clearly with the State of Florida's program for addressing derelict vessels and vessels at-risk of becoming derelict. The timelines for 24-hour notification and removal of such vessels within 72 hours of notification have been moved from the definition of “deserting” to the prohibition at 922.163(a)(5)(viii) to reduce confusion and redundancy and to make it clearer that these timelines also apply to derelict vessels and vessels at risk of becoming derelict, regardless of whether the vessel is occupied.

b. Discharge and Deposit Regulation Exception

Consistent with the proposed rule, NOAA updates the existing discharge and deposit regulation to explicitly prohibit the discharge or deposit of any material or other matter from a cruise ship, except cooling water, and to simplify and clarify terminology by removing the exception for “exhaust gas” and “water generated by routine vessel operations.” In response to public comment on the proposed rule, the final rule further clarifies the exception for the discharge or deposit of deck washdown by adding the term “runoff” to the list of exceptions, thereby allowing weather/rain runoff to be discharged or deposited into the sanctuary from a vessel other than a cruise ship.

c. Large Vessel Mooring Buoys

As explained above in the

DATES

section of this document, NOAA is delaying the effective date for the large vessel mooring buoy requirement (§ 922.163(a)(5)(x)) for two years beyond the effective date of this final rule. The purpose of this delay is to provide NOAA with adequate time to finalize a mooring buoy plan, including numbers and locations of mooring buoys; to secure materials; and to install new mooring buoys. Until this provision is effective, large vessels may continue to use regular mooring buoys.

d. Temporary Regulation for Emergency and Adaptive Management

With regard to the issuance of temporary emergency regulations, NOAA's final rule is the same as the proposed rule with one minor technical correction to 922.165(c)(2) which provides an opportunity for public comment after publication of a temporary emergency rule. As required under section 553 of the APA, NOAA will collect public comment before issuing an emergency rule and will delay the effective date by 30 days, unless NOAA finds good cause that doing so is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B), (d)(3). The proposed rule provided that the Director shall receive public comments on the necessity for, and extent of, the temporary regulation for a period of 15 days after the effective date of notification. This final rule changes the word “shall” to “may.” NOAA may choose to collect public comment for 15 days after issuing an emergency temporary rule when, in NOAA's discretion, it determines that post-decision comment would be necessary and in the public interest, such as to inform potential modifications to the emergency or temporary response action and/or its duration. While NOAA has every intention of accepting public comment after publication of a temporary emergency rule whenever NOAA is unable to collect pre-publication notice and comment, there may be cases where public comment would not inform a further agency action and post-publication public comment would serve no agency or public interest.

e. Authorizations of Sunken Military Craft Act Permits

Sunken military craft in FKNMS are administered by the respective Secretary concerned pursuant to the Sunken Military Craft Act. NOAA will develop an MOA with the appropriate agencies regarding collaboration on implementing the Sunken Military Craft Act. The ONMS Director will request approval from the respective Secretary concerned for any terms and conditions of ONMS authorizations that may involve sunken military craft in FKNMS.

3. Marine Zone Boundaries and Associated Marine Zone Regulations

a. Conservation Areas

This final rule adopts the same boundaries and associated regulations for Conservation Areas as the proposed rule. In addition, as explained above in the

DATES

section of this document, NOAA is delaying the effective date for the prohibition on anchoring in CAs for two years beyond the effective date of this final rule. The purpose of this delay is to provide NOAA with adequate time to finalize a mooring buoy plan including numbers and locations of mooring buoys, secure materials, and install new mooring buoys. All other CA regulations will become effective as described in the

DATES

section above (

i.e.,

after the close of a review period of forty-five days of continuous session of Congress).

b. Sanctuary Preservation Areas (SPAs)

In this final rule, NOAA modifies the size of two SPAs presented in the proposed rule. Turtle Rocks is modified slightly from 2.3 square miles in the proposed rule to 2.5 square miles in this final rule in order to align this SPA with the existing John Pennekamp Coral Reef State Park marine zone. Sombrero Key is modified from 0.52 square miles in the proposed rule to 0.33 square miles in this final rule. This change is made to focus SPA protection on the area with the greatest amount of coral and to exclude areas of primarily sandy bottom.

In addition, as explained above in the

DATES

section of this document, NOAA is delaying the effective date for the prohibition on anchoring on SPAs for two years beyond the effective date of this final rule. The purpose of this delay is to provide NOAA with adequate time to finalize a mooring buoy plan, including numbers and locations of mooring buoys, to secure materials, and to install new mooring buoys. All other SPA regulations will become effective as of the effectiveness date of this final rule (

i.e.,

after the close of a review period of forty-five days of continuous session of Congress), including eliminating the exception for catch and release fishing by trolling in Conch Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, and stopping the practice of issuing permits for baitfishing in SPAs.

c. Restoration Areas

The final rule includes two Nursery Restoration Areas in addition to the nine other restoration areas that were included in the proposed rule. These two areas were established and permitted as coral nursery sites after the proposed rule was released for comment. NOAA received comments requesting that these two nursery sites be included as Nursery Restoration Areas in this final rule. Both sites are in the Upper Keys region and are in Federal waters of the sanctuary. Key Largo Nursery Restoration Area is approximately 0.07 square miles (46.8 acres) and Islamorada Nursery Restoration Area is approximately 0.07 square miles (47.2 acres).

In addition, as explained above in the

DATES

section of this document, NOAA is delaying the effective date for the prohibition on anchoring in SPAs for two years beyond the effective date of this final rule. Habitat and Nursery Restoration Areas apply the same prohibitions as SPAs, so the prohibition on anchoring in Restoration Areas will also be delayed two years.

d. Wildlife Management Areas

NOAA's final rule amends 9 WMAs from what was included in the proposed rule and eliminates two proposed new WMAs that were included in the proposed rule. Details follow.

•

Crocodile Lake:

In response to a request from USFWS, this zone is expanded slightly to include a rookery island.

•

Barnes-Card Sound:

In response to a request from FWC, the regulations applied in this zone are modified to be idle speed no wake instead of no motor.

•

Eastern Lake Surprise:

In response to a request from USFWS, the no entry area in the proposed rule is expanded to include the entire shoreline.

•

Whitmore Bight:

In response to a request from the Florida DEP and public comment, the no motor zone is expanded to include a John Pennekamp Coral Reef State Park no motor zone.

•

Dove and Rodriguez Key:

In response to public comment, the northern boundary is adjusted slightly, opening more area for general use.

•

Tavernier Key:

In response to public comment, the boundary is adjusted slightly, opening more area for general use, and this final rule does not include a no anchor regulation specific to this zone.

•

Ashbey-Horseshoe Key:

This area is within an existing Lignumvitae Key Aquatic Preserve and Lignumvitae Key Botanical State Park no motor zone; therefore this rule does not include a new sanctuary marine zone at this site at this time.

•

Channel Key Banks:

In response to public comment and input from the FWC, this zone is modified slightly to better align with the bank habitat areas, to add a no entry area around Channel Key, and to open additional channels for normal operation.

•

Red Bay Banks:

In response to public comment and input from the FWC, this zone's boundary is modified slightly to better align with existing channels.

•

East Content Keys and Upper Harbor Key Flats:

In response to a request from the Florida DEP and FWC, this zone's southern boundary is expanded slightly to include additional islands.

•

Howe Key:

In response to input from the USFWS, Florida DEP, FWC and public comment, the regulation applied in this zone is changed from no entry (NOPR) to no motor (this final rule).

•

Archer Key:

Informed by public comment and requests from Florida DEP and FWC, this rule does not include a new marine zone at this site.

IV. Summary of all Final Regulations

Based on public comments received between July and October 2023, internal deliberations, interagency consultations, meetings with constituent groups, and evaluation of this input with the USFWS and the State of Florida, with this final rule, NOAA is implementing the following measures.

These sections are organized in the same way they were presented in the 2019 draft EIS and 2024 final EIS for the FKNMS Restoration Blueprint:

1. sanctuary boundary;

2. sanctuary-wide regulations;

3. marine zone boundaries within the sanctuary; and

4. marine zone regulations.

A final management plan is included in the final EIS and is available at the address and website listed in the

ADDRESSES

section of this rule.

1. Sanctuary Boundary

As noted above, pursuant to the procedures in FKNMSPA, Sec. 5(a) Pub. L. 101-605 and section 304(a) of the NMSA, 16 U.S.C. 1434(a),

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NOAA is modifying the sanctuary boundary to expand the sanctuary's area from 3,800 square miles to 4,539 square miles. The final sanctuary boundary is expanded to include the ATBA regulatory zone and the Tortugas Region.

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Section 5(d) of the FKNMSPA authorized NOAA to make minor modifications to the sanctuary boundary no later than the issuance of the draft EIS, which under section 7(a) was one of the documents required to be completed within 30 months of the passage of the Act. Section 5(a) of the FKNMSPA provides that FKNMS shall be managed and regulations enforced under all applicable provisions of such title III as if the Sanctuary had been designated under such title. NOAA published the draft EIS in 1995, and, in 1997 finalized the designation process by publishing the final EIS/management plan, regulations, and terms of designation. Accordingly, 5(d) no longer applies and, pursuant to NMSA section 304(a), NOAA follows the process required in section 304 of the NMSA to modify the terms of designation and sanctuary boundaries.

First, the boundary expansion to align with the ATBA will result in a consistent regulatory boundary, which is intended to provide clarity for mariners and additional ecosystem protections. The ATBA areas within the sanctuary were established through the FKNMSPA and prohibit operating any tank vessel or vessel over 50 meters length within specified areas to protect coral reef habitat from potential vessel impacts, including groundings. Second, the expansion in the Tortugas Region aligns with the existing particularly sensitive sea area (PSSA), established by the IMO in 2002. PSSAs are used to protect areas for special ecological, socioeconomic, or scientific reasons and areas that are vulnerable to damage by international maritime activities. This expansion provides additional protections for important ecological resources and the ecological connectivity in the region, particularly between Tortugas North and South Conservation Areas and Tortugas Bank. In addition, expansion in the Tortugas Region takes into account recently collected and compiled mapping coverage data and remotely operated vehicle imagery in the southern portion of the existing Tortugas South Ecological Reserve, which show unique and sensitive habitat features in this area.

2. Sanctuary-Wide Regulations

a. Live Rock Aquaculture

The final rule is the same as the proposed rule, which maintains the current exception for live rock aquaculture from sanctuary-wide regulatory prohibitions if authorized by a Florida Sovereignty Submerged Land Live Rock Aquaculture Lease issued by the Florida Department of Agricultural and Consumer Services in conjunction with U.S. Army Corps of Engineers via the Programmatic General Permit SAJ-99, or a NMFS Aquacultured Live Rock permit, which is issued under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) in conjunction with the U.S. Army Corps of Engineers via the Programmatic General Permit SAJ-71.

b. Discharge and Deposit Regulation Exception

The final rule updates the existing discharge and deposit regulation to explicitly prohibit the discharge or deposit of any material or other matter from a cruise ship, except cooling water, and to simplify and clarify terminology by removing the exception for “exhaust gas” and “water generated by routine vessel operations.” In response to public comment, the final rule provides an exception from the prohibition for the discharge or deposit of deck runoff for discharges from all vessels except cruise ships, thereby allowing weather/rain runoff to be discharged or deposited into the sanctuary. Each of these provisions are explained in more detail below.

NOAA has a long history of regulating various discharges under the NMSA to ensure that the discharges do not degrade water quality within the sanctuary. These regulations are often more stringent than regulations promulgated under other State or Federal authorities, such as the Clean Water Act (CWA), to recognize that the unique resources of the sanctuary

deserve additional protections. When the original FKNMS regulations were promulgated in 1997, NOAA established prohibitions against discharging most material into the sanctuary, with limited and specified exceptions for bait or chum, biodegradable effluent from approved marine sanitation devices, graywater and deck washdown during routine vessel operations, and vessel cooling water and engine exhaust. In sanctuary zones, such as Sanctuary Preservation Areas and Ecological Reserves, NOAA established more stringent regulations to only allow discharge of vessel cooling water and engine exhaust. The 1997 regulations also prohibited the discharge of material or other matter from outside the sanctuary that enters and injures a sanctuary resource. In 1999, the U.S. Environmental Protection Agency (EPA) established a No Discharge Zone under the CWA for vessel sewage in Key West, Florida, within State waters, in response to a petition from the State of Florida. The No Discharge Zone prohibited the discharge of untreated or treated vessel sewage, including from marine sanitation devices. Subsequently EPA expanded the No Discharge Zone to all State waters of the sanctuary (67 FR 35735

8

; May 21, 2002). In 2010, NOAA removed the exception for discharges from marine sanitation devices in the entire sanctuary under the NMSA, thereby making all sanctuary waters a no discharge zone under the NMSA (

75 FR 72655

9

; Nov. 26, 2010). Comments on NOAA's rulemaking at that time also supported banning harmful vessel graywater discharges, especially from large cruise ships and cargo vessels. While NOAA did not ban graywater discharges in 2010, NOAA responded by noting that additional water quality regulations may be considered in future FKNMS management plan reviews.

8

https://www.govinfo.gov/app/details/FR-2002-05-21/02-12283.

9

https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/management/fr/75_fr_72655.pdf.

Under its NMSA authorities, NOAA now further restricts discharges from cruise ships while in the sanctuary. Specifically, the rule prohibits discharges or deposits of any material or other matter from a cruise ship except cooling water. This change results in prohibiting the discharges or deposits of graywater and deck washdown from cruise ships, which are currently exempt from the prohibitions. Cruise ships are among the largest vessels traversing the sanctuary and the source of a considerable volume of graywater discharges generated by carrying passengers (

e.g.,

showers, laundry, sinks, kitchens). In addition, certain routine maintenance activities may occur while a cruise ship is in port within the sanctuary, including deck washdown, which may affect water quality. These routine maintenance activities could occur outside of the sanctuary in other less environmentally sensitive ports. Scientific literature discusses the adverse effects of various cruise ship discharges on the marine environment, including brine from desalination equipment, ballast water, and spa/pool water, among others. NOAA believes that it is feasible for cruise ships to successfully avoid discharging or depositing in sanctuary waters because cruise ship operations in sanctuary waters are limited to entering and leaving the port of Key West. In short, NOAA is prohibiting all discharges from cruise ships except for cooling water to avoid impacts to sanctuary resources and because it is feasible for cruise ships to avoid these discharges for the short period they are in the sanctuary waters. This final rule is informed by information received through coordination with the EPA, notably that agency's studies related to cruise ship discharges and vessel operations in other sensitive marine environments (classified as “Waters Federally Protected wholly or in part for Conservation Purposes” under the EPA Vessel General Permit). NOAA also considered information related to the successful management of cruise ship operations in certain national parks, including Glacier Bay, Alaska, where, through concession agreements, cruise ships operate with higher environmental standards when in park waters.

NOAA is also banning discharges besides cooling water from cruise ships to prevent pollution from new and emerging technologies and activities that may result in discharges into ocean waters, such as the increased use of exhaust gas cleaning systems (EGCS). While recent technology such as engine exhaust gas scrubbers may help reduce air emissions from large vessel engines that use high sulfur fuels, including cruise ships, this results in the pollution being discharged in waste water from the EGCS open loop system. While the wash water may be treated before discharge, the discharge still contains metals, polycyclic aromatic hydrocarbons, and higher pH. The long-term accumulation of metals and hydrocarbons in estuaries or harbors is greater, and of more concern to scientists, than the long-term discharge of these contaminants in the open ocean (Teuchies et al., 2020). Vessels with EGCS currently switch to low sulfur fuels in other areas where EGCS discharges are prohibited.

NOAA will continue to provide an exception to the discharge and deposit prohibition for cooling water from all vessels, including cruise ships, because it is currently technologically infeasible for ships to operate without discharging or depositing cooling water. However, this exception does not apply if cooling water is mixed with other substances. In particular, cooling water that is mixed with any other substances, such as EGCS wash water, brine, and ballast water is prohibited.

NOAA is removing the exception for exhaust gas from its discharge and deposit prohibitions for all vessels to reduce confusion that the exemption for exhaust gas was intended to exempt EGCS washwater, which it does not. NOAA does not exempt discharges of EGCS washwaters from the discharge and deposit prohibition. The original intent of this exception was to allow the discharge or deposit of boat engine wet exhaust, rather than exempting exhaust emissions or EGCS washwater. NOAA interprets the term “cooling water” to encompass boat engine wet exhaust, which is defined in the EPA Vessel General Permit (Section 2.2.21) as the ambient water that is injected into the exhaust for cooling and noise reduction purposes and then discharged, typical of marine outboard engine operation.

NOAA is also simplifying the exception for discharges and deposits of water generated by routine vessel operations. The current regulatory exception for discharges or deposits of “water generated by routine vessel operations (

e.g.,

deck wash down and graywater as defined in section 312 of the CWA), excluding oily wastes from bilge pumping,” does not clearly define what types of discharges or deposits are allowed. Specifically, the term “water generated by routine vessel operations” is not defined in FKNMS or other agency rules (compared with the terminology used by the Clean Water Act for “discharges incidental to the normal operation of a vessel”), creating ambiguity as to what, if any, additional discharges or deposits are meant to be excepted from the regulatory prohibition besides deck washdown and graywater. Based on a review of the original regulations and management plan for the sanctuary, NOAA believes the intention of this exception was simply to allow discharges or deposits of cooling water (including boat engine wet exhaust), deck washdown and runoff, and graywater, and to explicitly prohibit the discharge or deposit of oily

bilge wastes. At this time, NOAA is making technical corrections to the discharge and deposit exceptions to simplify this provision to clearly explain that cooling water, deck washdown and runoff, and graywater are allowable discharges and deposits from vessels other than cruise ships, but oily wastes from bilge pumping are not. Under this rule, the terms “cooling water,” “deck washdown and runoff,” “graywater,” and “oily wastes from bilge pumping” continue to have the same meaning as these terms hold under section 312 of the CWA and any implementing regulations, but NOAA believes that citing the CWA in the regulatory text is unnecessary. Discharges or deposits of fish and fish parts when part of a traditional fishing activity are allowed under another exception to the discharge and deposit prohibitions and will not change.

Of note, on December 4, 2018, Congress passed the Vessel Incidental Discharge Act (VIDA) (Title IX of the Frank LoBiondo Coast Guard Authorization Act of 2018), CWA 312(p). VIDA requires the EPA to develop new national standards of performance for commercial vessel incidental discharges and the United States Coast Guard to develop corresponding implementing regulations. EPA published a final rule on October 9, 2024 (89 FR 82074), but at the time of publication of this final rule, implementing regulations for VIDA have not yet been promulgated by the United States Coast Guard. However, when those regulations are finalized, there will be additional discharge prohibitions placed on vessels operating in federally protected waters such as national marine sanctuaries. NOAA will review any VIDA implementing regulations to ensure they are consistent with the sanctuary's primary goal of resource protection (16 U.S.C. 1431(b)(6)) and to determine whether conforming changes to the sanctuary regulations may be necessary and appropriate.

c. Temporary Regulation for Emergency and Adaptive Management

The final rule updates the existing regulations to allow for rapid, temporary rulemaking to facilitate time-sensitive, adaptive management and to respond to emergencies. First, this rule expands the time frame during which any temporary regulation could remain in place from 60 days to six months, with the option for one additional extension of six months (rather than the currently authorized additional 60 days). This increased time frame is consistent with the emergency time frames outlined in section 305(c) of the MSA, as well as NOAA's regulations for other national marine sanctuaries. While NOAA is extending the potential time frame that a temporary regulation could be in effect, NOAA would consider the specific circumstances and craft any temporary regulation for the appropriate duration, which may be less than the maximum time allowed under this regulation. Second, this rule outlines three categories for which NOAA will issue temporary regulations (as outlined below in this section). Third, this rule sets out the procedure by which a temporary regulation would be promulgated, including the requirement that the agency provide a justification for the time sensitivity of the action to comply with the Administrative Procedure Act (5 U.S.C. 553(b)(B)). This procedure also (1) addresses notice and comment requirements, and (2) requires State approval for any temporary regulations proposed in State waters.

NOAA identified three categories for temporary regulation to protect sanctuary resources when time is of the essence. The first category will allow for temporary regulations to prevent or minimize destruction of, loss of, or injury to sanctuary resources from any human-made or natural circumstances, including a concentration of human use, change in migratory or habitat use patterns, vessel impacts, natural disaster or similar emergency, disease, or bleaching. Second, temporary regulations may be used to initiate restoration, recovery, or other activities where a delay would undermine the success of the activity. Lastly, NOAA may use temporary regulations to initiate research where an unforeseen event produces an opportunity for scientific research that may be lost if it is not initiated immediately.

Importantly, temporary regulations will only allow NOAA to shorten or bypass minimum public comment periods if NOAA makes a finding of good cause that such procedures are impracticable, unnecessary, or contrary to the public interest pursuant to the APA, 5 U.S.C. 553(b)(B). This finding must be made before promulgating a temporary regulation without following the full rulemaking procedures, including public notice and comment. While NOAA must make this required finding before promulgating a temporary regulation under this proposal, NOAA believes that all three of the temporary regulation categories will satisfy this good cause requirement because each of these categories requires NOAA to take rapid, immediate actions in order to address an important and time-sensitive environmental need. However, when any given issue arises, NOAA will review it on a case-by-case basis to determine if application of a temporary rule is consistent with the APA. Where the agency determines that time is available without jeopardizing the effectiveness of the action, NOAA will follow notice and comment procedures before taking action. Additionally, NOAA may choose to collect public comment for 15 days after issuing an emergency temporary rule when, in the agency's discretion, it determines that post-decision comment would be worthwhile, such as to inform potential modifications to the emergency or temporary response action.

While NOAA is updating these regulations to allow greater responsiveness to emerging issues and in response to public comment, since FKNMS was designated in 1990, NOAA has only issued emergency regulations four times. In 1997, the emergency regulation was used to prohibit anchoring of vessels 50 meters or greater in an area of Tortugas Bank, which was subsequently established through a full rulemaking process. In 2002, an area of approximately 0.58 acres was identified as an area to avoid for a period of 104 days at the M/V

Wellwood

grounding site. In 2003, two areas totaling 425 acres were closed for a period of 60 days to prevent additional injury to living coral in an area impacted by a rapidly spreading coral disease outbreak. Most recently, in 2023 in response to extreme ocean temperatures, a 0.07 square mile temporary special use area was established to protect endangered corals relocated to a nursery in deeper water locations with conditions more conducive to coral survival. This emergency regulation was effective September 6 through November 6, 2023, and was extended for an additional 60-days until January 5, 2024.

d. Historical Resources Permitting

The rule updates historical resource permitting by replacing the current survey/inventory, research/recovery, and deaccession/transfer permit categories with a new, single archaeological research permit category. This rule also defines the term “archaeological research,” explains criteria that must be met in order for NOAA to issue an archaeological research permit (including applicant qualifications), and prescribes certain conditions that will apply to these permits. This aligns sanctuary historical resource permitting with State permitting regulations for archaeological research promulgated under Chapter 1A-32, Florida Administrative Code, and optimizes compliance with the

Federal archaeology program.

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The Federal archaeology program is a general term used to encompass archeological activities on public land, as well as archaeological activities for federally financed, permitted, or licensed activities on non-federal land. Its foundation is based upon historic preservation laws like the National Historic Preservation Act and Archaeological Resources Protection Act. Dozens of Federal agencies, including NOAA, undertake archeological activities and contribute to the Federal archeology program. The Secretary of the Interior is charged with providing general guidance and coordination for all of Federal archeology.

10

https://www.nps.gov/archeology/sites/fedarch.htm.

The single archaeological research permit category simplifies permitting research focused on historical resources in the sanctuary, including the State waters portion of the sanctuary. Research that results in adverse effects to historic properties would not qualify for a permit under this simplified permitting process. For example, adverse effects to historical resources may result from site excavation, in which case the proposed activity would need to be separately permitted by the State and sanctuary.

The current permitting system is unnecessarily complicated and confusing to applicants as it artificially bisects the archaeological research process. Division of permits into either survey/inventory or research/recovery often resulted in insufficient research plans to meet project goals. The archaeological research permit category will require that applicants commit to following an explicit statement of objectives and that project methods be chosen to gather the information required to meet the stated objectives.

This new archaeological research permit category also requires that an applicant be the project's supervising archaeologist whose qualifications meet the Secretary of the Interior's Professional Qualification Standards for archaeology. This aligns with the required credentials for investigators receiving a State archaeological research permit under Chapter 1A-32, Florida Administrative Code. Additionally, this permit category requires that the supervising archaeologist be on site for any excavation and/or artifact recovery. As a result of these changes, NOAA believes that the quality of the research, both proposed and conducted, will be improved. NOAA anticipates that the reporting of research results will also be of higher quality when directed by a professional archaeologist with the required field experience. For the above reasons, NOAA believes that this new archaeological research permit category with associated application and review criteria will increase the protection of historical resources throughout the sanctuary.

In addition to the above changes, this rule eliminates the permit category allowing for the deaccession/transfer of historical resources. Eliminating the deaccession/transfer of historical sanctuary resources is consistent with Chapter 1A-31, Florida Administrative Code, which states that the State of Florida will not issue permits for exploration and recovery of historic shipwreck sites by commercial salvors or for transferring objects recovered by commercial salvors for areas of FKNMS. Eliminating the deaccession/transfer permit category is also consistent with the Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Programs and Standards for the Treatment of Historic Properties, which focus on the preservation and long-term curation of any recovered historical resources for the benefit of the public (as opposed to private ownership). Likewise, this approach is consistent with the Abandoned Shipwreck Act Guidelines, which recommend that, at a minimum, state-owned shipwrecks located within a national marine sanctuary or in other areas (like habitat areas or coralline formations) protected under Federal or State statute, order, or regulation not be available for commercial salvage, treasure hunting or personal collecting. These Federal guidelines, and the statutes that underpin them, are part of the Federal archaeology program and align with NOAA's long-standing classification and protection of historical resources as sanctuary resources under the NMSA.

To date, no deaccession/transfer permit has ever been issued and, as such, the impact of this change will be minimal. NOAA intends to continue engaging directly with current sanctuary historical resource permit holders and entities with pre-existing, valid rights of access to clarify how updated historical resource permitting regulations would or would not affect potential future activities.

e. Sunken Military Craft Act Permitting

The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects from unauthorized disturbance all sunken military craft that are owned by the United States government, as well as foreign sunken military craft that lie within United States waters, as defined in the SMCA. Thousands of U.S. sunken military craft lie in waters around the world, many accessible to looters, treasure hunters, and others who may cause damage to them. These craft, and their associated contents, represent a collection of non-renewable and significant historical resources that often also serve as maritime graves, carry unexploded ordnance, or contain oil and other hazardous materials. By protecting sunken military craft, the SMCA helps reduce the potential for irreversible harm to these nationally important historical and cultural resources.

Sunken military craft are administered under the SMCA by the respective secretaries of the various military departments and, in the case of a Coast Guard vessel, the Secretary of the Department in which the Coast Guard is operating.

Sunken military craft are administered by the respective Secretary concerned pursuant to the SMCA. The Secretary concerned is solely responsible for authorizing disturbance of sunken military craft under the SMCA, specifically for archaeological, historical, or educational purposes, and will consult with NOAA when considering permitting such activities. The Secretary concerned is also responsible for determinations of sunken military craft status and ownership, publicly disclosing the location of sunken military craft, and determining eligibility and nominating sunken military craft as historic properties to the National Register of Historic Places. Any agreements with foreign sovereigns regarding sunken military craft in U.S waters are negotiated by the Secretary of Defense, the Secretary of State, and the Secretary of the Navy, according to authorities vested in each by the SMCA. The final rule provides that the Secretary concerned or his or her designee and NOAA will ensure coordination and foster collaboration on any research, monitoring, and educational activities pertaining to sunken military craft located within the sanctuary system. The Director will request approval from the Secretary concerned for any terms and conditions of FKNMS authorizations that may involve sunken military craft.

f. Fish Feeding

The final rule includes a new sanctuary-wide regulation prohibiting the feeding or attracting of fish, including sharks, or other marine

species from any vessel and/or while diving and new definitions for “diving,” and “feeding.” The terms “attract” and “attracting” are already defined in the National Marine Sanctuary System-wide regulations at 15 CFR 922.11. The regulatory text has been developed with additional input from agency staff with expertise in impacts to sharks and shark depredation, human safety concerns, and compliance and enforcement. NOAA does not provide a “grandfather” clause for current eco-tour/fish feeding operations (

i.e.,

an exemption for pre-existing operators), although NOAA received some comments requesting such a provision. Instead, NOAA will consider issuing general permits to pre-existing eco-tour/fish feeding operators who are able to satisfy all general permit application requirements. Any permits would contain specific terms and conditions to protect sanctuary resources.

This new fish feeding regulation does not affect the existing regulatory exception that allows the discharge or deposit of fish, fish parts, chumming materials, or bait that is used or generated incidental to and while conducting traditional fishing in the sanctuary.

As noted in the Changes from Proposed Rule to Final Rule section above, NOAA is modifying the regulatory definition for traditional fishing to set the baseline of activities considered traditional to the effective date of this rule. Any future update to the definition of “traditional fishing” would be done through a separate rulemaking in order to consider public comment and to conduct an environmental analysis under NEPA of the potential impacts of new or innovative gear types or fisheries activities on sanctuary resources. NOAA would collaborate closely with, and rely on the expertise of, the FWC, FMCs, and NMFS when considering any updates to the list of traditional fishing activities.

g. Grounded, Deserted, and Derelict Vessels and Harmful Matter

NOAA's final rule prohibits anchoring, mooring, operating, deserting, or occupying a derelict vessel or a vessel at risk of becoming derelict or deserting a vessel aground or adrift in the sanctuary. Deserted, aground, derelict, or at risk of becoming derelict vessels are subject to the same 24-hour notification requirements and must be removed from the sanctuary within 72 hours of such notification, unless the Director approves of an exception. This provision has been updated to align with the State of Florida's regulatory procedures for derelict vessels.

Operators or owners of a vessel that strikes the seabed or runs aground must notify the Director within 24 hours of such incident regardless of whether or not sanctuary resources are injured. Vessels will be considered unlawfully deserted unless operators or owners of a vessel notify the Director within 24 hours of leaving a vessel unoccupied that is adrift or run aground or 24 hours after the Director has taken reasonable steps to notify the operator or owner of a vessel found adrift or aground. This definition of “deserting” will apply in FKNMS instead of the system-wide definition of “deserting” found in section 922.11.

Vessels that are aground, deserted, derelict, or at risk of becoming derelict must be removed within 72 hours of the Director's notification absent extenuating circumstances like weather or safety or unless otherwise consistent with a removal plan approved by the Director. NOAA has chosen one deadline of 72 hours to be consistent with the State of Florida's requirements to remove grounded vessels under Florida's Coral Reef Protection Act, Florida Statute 403.93345. While the State of Florida has several different deadlines for removal of derelict vessels or vessels at risk of becoming derelict, NOAA adopts a 72-hour deadline for removing all such vessels for simplicity and consistency. NOAA intends to use its discretion to grant exceptions to the 72-hour deadline for safety, weather, and approved removal plans, to align with State removal deadlines, where appropriate.

The final rule also prohibits leaving harmful matter aboard a grounded, deserted, derelict, or at risk of becoming derelict vessel. The term “harmful matter” is already defined in the National Marine Sanctuary System-wide regulations at 15 CFR 922.11.

h. Large Vessels Use of Mooring Buoys

NOAA's final rule requires large vessels to use designated large vessel mooring buoys and all other vessels to use regular mooring buoys. An associated new definition for “large vessel” is also added. Mooring buoys serve as an important management tool in FKNMS, providing boaters the ability to moor their vessel safely and avoid damaging coral reefs and other important ecosystems. However, mooring buoy use by large vessels has been shown to damage the mooring buoy anchoring hardware and in some cases the substrate to which the hardware is secured. As explained above in the

DATES

section of this document, NOAA is delaying the effective date for the large vessel mooring buoy requirement for two years beyond the effective date of this final rule to provide NOAA with adequate time to finalize a mooring buoy plan, including numbers and locations of mooring buoys, to secure materials, and to install new mooring buoys. Until this provision is effective, large vessels may continue to use regular mooring buoys. Additional information about sanctuary mooring buoy management, including plans to engage user groups to help identify areas of use, numbers of users, and placement of mooring buoys, is included in the final management plan.

i. Technical Revisions to Sanctuary Regulations

NOAA's final rule includes technical revisions and updates to regulatory definitions, terms, and provisions (see the general summary included in Appendix D of the final EIS). As this is the first comprehensive review of FKNMS regulations since they were implemented in 1997, NOAA has undertaken a thorough review of all existing regulations. These technical changes can be grouped in four broad categories described below.

Definitions and Terms

are updated for greater consistency with the F.A.C., National Marine Sanctuary System-wide regulations, other sanctuary-specific regulations, FKNMS regulations, and the revised management plan. For example, due to new regulations, several new terms and definitions are added including, but not limited to, “anchoring,” “derelict,” “at risk of becoming derelict,” “continuous transit,” and “deserting.” Several terms that are no longer needed or are being replaced with new terms are eliminated, such as “Ecological Reserve,” “no access buffer,” and “closed.” Terms that are now defined in National Marine Sanctuary System-wide regulations at 922.11 are removed, including “seagrass” and “vessel.” While the new National Marine Sanctuary System-wide definitions at 922.11 include a definition for “deserting,” this rule provides a modified version for the sanctuary to align with the State of Florida timelines and procedures for derelict vessels.

Changes Required for Consistency With the NMSA

NOAA updates one and eliminates another regulatory provision to eliminate redundancy or confusion pertaining to the authority granted to State Governors under the NMSA. Under section 304(b)(1) of the NMSA, at the time of sanctuary designation, the Governor of any State in which a national marine sanctuary is located

partially or entirely within the state's seaward boundary may certify that the designation or any of its terms is unacceptable and the designation or unacceptable term will not take effect in State waters. Under 304(a)(4), the terms of designation may be modified only by the same procedures by which the original designation is made, which includes the procedures at 304(b)(1). In this rule, NOAA is eliminating the provisions at 922.163(g) and 922.164(f) because these provisions provide that new sanctuary regulations will not take effect in Florida State waters unless approved by the Board of Trustees of the Internal Improvement Trust Fund, and, regarding fishing regulations in the sanctuary, until established by the Florida Marine Fisheries Commission. These provisions inappropriately provided additional authorities to State entities, other than the Governor, that were not delegated to the states by Congress under the NMSA.

Military Exemption

NOAA's final rule revises the existing military exemption regulation in two ways. First, NOAA updates the list of exempted military activities from the list found in the 1996 Final Environmental Impact Statement and Management Plan for the sanctuary to the 2024 final EIS for the sanctuary. Second, NOAA clarifies the process for new military activities to be exempted from sanctuary prohibitions. Each change is described below.

Current FKNMS regulations reference military activities conducted by the Department of Defense (DOD) in the sanctuary and, for certain military activities, provide an exemption from sanctuary prohibitions. The current exemptions for DOD military activities in the sanctuary reference existing classes of military activities that were conducted prior to the effective date of these regulations as identified in the Environmental Impact Statement and Management Plan for the Sanctuary. NOAA has long interpreted this exemption to refer to the description of military activities contained in the 1996 FKNMS FEIS (Volume II, pages 93-96), which was prepared prior to the effective date of the 1997 regulations. Through this rule, NOAA is updating this exemption to include military activities currently conducted within the sanctuary that NOAA has determined are appropriate for exemption because the activities are not likely to injure sanctuary resources or will be carried out in a manner that avoids to the maximum extent practical any adverse impact on sanctuary resources and qualities. An updated list is provided in Appendix F of the final EIS that reflects current DOD activities conducted in the sanctuary that NOAA considers to be exempt. The updated list includes activities that are already exempt, the effects of which were analyzed in the 1996 FKNMS FEIS, and are considered in the 2024 final EIS. In addition, the updated list includes one new activity, the effects of which were analyzed in the Navy's 2018 Atlantic Fleet Testing and Training Environmental Impact Statement and is considered in the 2024 final EIS. The updated list of exemptions does not include DOD activities that occur outside of the sanctuary or DOD activities that occur inside the sanctuary but are not prohibited by FKNMS regulations. The updated exemptions apply to activities that occur within the current sanctuary boundary and boundary expansion area.

NOAA commits to working with DOD to consider exempting new activities from the prohibitions. NOAA would use the same standard to exempt new activities as used to update the list of DOD exemptions in the 2024 final EIS. In other words, NOAA would exempt a new activity from the prohibitions if NOAA determines such activity is not likely to injure sanctuary resources or will be carried out in a manner that avoids to the maximum extent practical any adverse impact on sanctuary resources and qualities. Any changes to this list of exempted military activities would only occur after compliance with all applicable laws, such as the APA and NEPA, as necessary, and after public notice and comment, as applicable.

NOAA has removed from the military exemption regulation reference to NMSA 304(d) Interagency Cooperation. The regulation previously referenced 304(d) as the mechanism for exempting new DOD activities from the prohibitions. However, NOAA has removed the reference to the 304(d) Interagency Cooperation process because 304(d) applies to all Federal agency actions that are likely to destroy, cause the loss of, or injure sanctuary resources, including those conducted by DOD, regardless of whether the specific actions are prohibited by sanctuary regulations. Additionally, certain activities that DOD may seek to exempt from the prohibitions would not require 304(d) consultation if the activities are not likely to injure sanctuary resources (see also final EIS Appendix F).

General Editorial changes

are made to clarify, remove redundancy, and reorganize and simplify regulations where possible to make them easier to understand. These changes are solely editorial, grammatical, or stylistic, and no new requirements are established by these changes.

Editorial changes to permitting regulations

are made to reduce redundancy with National Marine Sanctuary System-wide permitting regulations (15 CFR part 922 subpart D), which were recently updated and consolidated (

88 FR 953;

January 6, 2023). These changes are solely editorial, and no new requirements are established by these changes.

First, since the 1997 FKNMS regulations, NOAA has published application guidelines to aid potential applicants for permits in national marine sanctuaries. The

application guidelines

11

explain the necessary parts of an application and how to submit it. Updated National Marine Sanctuary System-wide regulations (15 CFR part 922 subpart D) codify these requirements. As such, in this final rule, NOAA removes redundant application instructions from the FKNMS-specific regulations.

11

https://sanctuaries.noaa.gov/management/permits/welcome.html.

Second, this rule also includes two new general permit categories that are unique to FKNMS—one for Archaeological Research and one for Restoration—which are discussed in detail in other sections of this document. A third general permit category specific to FKNMS, activities that further FKNMS purposes, is found at 15 CFR part 922 subpart D. This final rule specifies only where different or additional information or procedures are needed for general permit categories that are unique to FKNMS (such as Tortugas North Conservation Area access permits).

Lastly, this rule adds a provision for the certification of any valid lease, permit, license, or right of subsistence use or access that is in existence when the revised sanctuary terms of designation (see Section VI of this rule) become effective. Under National Marine Sanctuary System-wide regulations, NOAA currently has authority to certify such pre-existing rights of access or use (15 CFR 922.10). This rule adds procedures and criteria to clarify how NOAA would issue such certification permits for FKNMS. A certification permit would be available to persons holding such valid and pre-existing rights of access or use in the sanctuary expansion areas. Certification permits would also be available to persons holding valid and pre-existing rights of access or use to conduct activities in the sanctuary that were not

previously regulated but now will be regulated.

3. Marine Zone Boundaries and Associated Regulations Within the Sanctuary

The final rule includes five marine zone types: Management Areas, Conservation Areas, Sanctuary Preservation Areas, Restoration Areas, and Wildlife Management Areas (WMAs). This section includes a summary of the marine zones and associated regulations in this rule. In addition to marine zone-specific regulations, sanctuary-wide regulations apply within all marine zones of the sanctuary. Global Positioning System (GPS) coordinates for all marine zones included in NOAA's final rule can be found in Appendices C through I. An interactive map and updated individual marine zone maps are available at the website listed in the

ADDRESSES

section above in this rule.

a. Management Areas

The final rule maintains the existing Key Largo and Looe Key marine zones as Management Areas. These two areas were designated as national marine sanctuaries in 1975 and 1981, respectively, which preceded designation of FKNMS and were therefore included within the FKNMS boundary and referred to as “Existing Management Areas.” With this rule, all marine zones established with the 1997 regulations could be considered existing; therefore this qualifier is removed from the Key Largo and Looe Key marine zones.

In the final rule, the Key West and Great White Heron National Wildlife Refuges, which are currently referred to as Existing Management Areas, are referred to by their full names. Existing sanctuary regulations in the Key West and Great White Heron National Wildlife Refuges are maintained with the exception of a minor change to the area where personal watercraft are allowed (see part III, section 4q.

Personal Watercraft

below).

b. Conservation Areas

The final rule combines the existing Ecological Reserves and Special Use Areas (SUA) into one Conservation Area zone type and maintains and applies the existing SUA regulations prohibiting fishing, requiring continuous transit without interruption, and requiring stowage of gear in such areas. “Conservation Area” means an area of the sanctuary that provides natural spawning, nursery, and residence areas for the replenishment and genetic protection of marine life and protects and preserves groups of habitats and species, within which activities are subject to conditions, restrictions and prohibitions to achieve these objectives. These areas consist of contiguous, diverse habitats; protect a variety of sanctuary resources; and/or facilitate scientific research that promotes sanctuary management or recovery of sanctuary resources. In addition, these areas, with the exception of Western Sambo, have similar regulations, which are intended to provide the greatest level of protection to these contiguous habitats and areas set aside to support scientific research.

The final rule includes six Conservation Areas, all of which are existing sanctuary marine zones. The final rule slightly expands the spatial area of three existing zones (Tennessee Reef, Western Sambo, and Tortugas South) and eliminates one zone (the existing Looe Key SUA). Western Sambo is also included as a Conservation Area with slightly different regulations as outlined below. With the exception of the zone name change to Conservation Area, NOAA makes no changes to the existing Conch Reef SUA, Eastern Sambo SUA, or Tortugas North Ecological Reserve. The Conservation Areas range in size from the smallest, Conch Reef, at 0.15 square miles to the largest, Tortugas North, at 109.05 square miles. The total area included in the six Conservation Areas is 213.11 square miles.

A summary of the Conservation Areas included in this final rule and changes from current FKNMS zoning and regulations follows. Note that for all of the zones below, the zone name will be changed to Conservation Area.

•

Conch Reef:

No changes to the regulations or area.

•

Tennessee Reef:

No changes to regulations. This zone is extended to the 90-foot contour line to capture additional deep reef habitats.

•

Looe Key:

This existing SUA zone is eliminated. This area will, instead, be managed as part of the larger Looe Key Management Area, as described above in section 3.a.

Management Areas.

•

Eastern Sambo:

No changes to the regulations or area.

•

Western Sambo:

This existing zone is extended to the 90-foot contour line to capture additional deep reef habitats. In addition, no-anchor restrictions apply for the southern portion of the zone in the area of most prominent coral reef development. All other existing regulations in Western Sambo are maintained, including, but not limited to, prohibitions on discharging or depositing any matter or other material, fishing by any means, and harvesting any marine life. This is the only Conservation Area that allows access for snorkeling and diving.

•

Tortugas North:

No changes to the regulations or area. In addition, see part III, section 4.

Additional Marine Zone Regulations,

below, for information on administrative changes to Tortugas North Access Permit requirements.

•

Tortugas South:

No changes to the regulations. This zone is extended to the west by one mile along its entire length. This expansion captures additional habitat west of Riley's Hump that is known to support fish spawning aggregations and important deep reef habitats. Recently collected and compiled mapping coverage data and remotely operated vehicle (ROV) imagery show unique habitat features in this area, including rock escarpment formations and a well-defined ledge. These data also showed the presence of a diversity of fish species. Therefore, the final rule maintains the southern boundary of the Tortugas South Conservation Area as proposed despite some comments on the draft EIS.

c. Sanctuary Preservation Areas (SPAs)

The final rule includes 17 SPAs, defined as a discrete, biologically important area of the sanctuary within which activities are subject to conditions, restrictions, and prohibitions 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. The SPAs range in size from the smallest, Cheeca Rocks SPA, at 0.07 square miles to the largest, Carysfort Reef SPA, at 3.78 square miles. The total area included in the 17 SPAs is 12.14 square miles.

SPA regulations included in this rule eliminate the current exception allowing catch and release fishing in four existing SPAs (Conch Reef, Alligator Reef, Sombrero Key, and Sand Key). In addition, anchoring is prohibited in all SPAs. This final rule includes a new definition for “anchoring,” which means securing a vessel to the seabed by any means except when using a mooring buoy. All other existing SPA regulations remain, including, but not limited to, prohibitions on discharging or depositing any matter except cooling water, fishing by any means, and harvesting any marine life. Consistent regulations throughout SPAs are intended to clarify for the public what is allowed and what is restricted to promote understanding and compliance

and to facilitate enforcement and management. Finally, the management practice of issuing permits allowing baitfishing in all SPAs will be phased out over a 3-year period.

As explained above in the

DATES

section of this document, NOAA is delaying the effective date for the no anchoring regulation in all SPAs (§ 922.164(e)(3)) for two years beyond the effective date of this final rule. The purpose of this delay is to provide NOAA with adequate time to finalize a mooring buoy plan, including numbers and locations of mooring buoys, to secure materials, and to install new mooring buoys. The no anchoring prohibition will likewise be delayed for Habitat and Nursery Restoration Areas under sections 922.164(g)(1), (h)(1), which apply the SPA prohibitions. All other SPA regulations will become effective as of the effectiveness date of this final rule (

i.e.,

after the close of a review period of forty-five days of continuous session of Congress), including eliminating the exception for catch and release fishing by trolling in Conch Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs and stopping the practice of issuing permits for baitfishing in SPAs. A summary of Sanctuary Preservation Areas included in the final rule follows (listed northeast to southwest). For all of the zones listed below, the SPA regulations as outlined above and at 15 CFR 922.164(e) will apply.

•

Turtle Rocks:

This rule establishes a new SPA.

•

Carysfort Reef:

This existing SPA is expanded to the 90-foot contour to include additional deep reef habitat.

•

The Elbow:

Existing SPA; no boundary change.

•

Key Largo Dry Rocks-Grecian Rocks:

The final rule connects two existing SPAs into a single SPA.

•

Molasses Reef:

Existing SPA; no boundary change.

•

Conch Reef:

Existing SPA; no boundary change. The regulatory exception that allows catch and release fishing by trolling in the SPA is removed.

•

Davis Reef:

Existing SPA; no boundary change.

•

Hen and Chickens Reef:

Existing SPA; no boundary change.

•

Cheeca Rocks:

Existing SPA; no boundary change.

•

Alligator Reef:

This existing SPA is expanded to the 90-foot contour to include additional deep reef habitat. The regulatory exception that allows catch and release fishing by trolling in the SPA is removed.

•

Turtle Shoal:

This rule establishes a new SPA.

•

Coffins Patch:

Existing SPA; no boundary change.

•

Sombrero Key:

This existing SPA is expanded slightly to include remnant elkhorn corals, a species listed under the Endangered Species Act. The regulatory exception that allows catch and release fishing by trolling in the SPA is removed.

•

Newfound Harbor Key:

Existing SPA; no boundary change.

•

Looe Key:

Existing SPA; no boundary change.

•

Eastern Dry Rocks:

Existing SPA; no boundary change.

•

Sand Key:

Existing SPA; no boundary change. The regulatory exception that allows catch and release fishing by trolling in the SPA is removed.

d. Restoration Areas

Given the increase in important habitat restoration activities in the sanctuary over the past two decades, NOAA's final rule includes a new Restoration Area zone type to support species or habitat recovery. The zone includes two distinct designations:

•

Nursery Restoration Area

zone type encompasses existing nursery areas and are regulated similar to Conservation Areas to provide the highest level of protection to sensitive corals and other organisms while they are being propagated. These regulations prohibit, among other things, fishing, anchoring, and discharges or deposits and require that vessels remain in transit through the area.

•

Habitat Restoration Area

zone type protects sites where active transplanting and restoration activities are ongoing. These areas are managed with the same regulations that apply to SPAs to provide for access and educational opportunities while prohibiting, among other things, fishing, anchoring, and discharges or deposits.

As explained above in the

DATES

section of this document, NOAA is delaying the effective date for the no anchoring regulation for all SPAs (§ 922.164(e)(3)) for two years beyond the effective date of this final rule. This delay will apply to the no anchoring prohibition for Habitat Restoration Zones, which apply the SPA regulations.

i. Nursery Restoration Areas

Specifically, this final rule includes eleven Nursery Restoration Areas with regulations prohibiting, among other things, fishing, anchoring, and discharges or deposits, and requiring that vessels remain in transit through the area. All Nursery Restoration Areas are very small (individual zones are approximately 70 acres (0.1 square miles)) and are designed to protect the underwater nursery structures and associated corals growing on them with a 200-yard buffer. The total area of Nursery Restoration Areas is 748.8 acres (1.17 square miles).

NOAA establishes all existing, permitted coral nurseries as distinct Nursery Restoration Areas. The following existing, permitted coral nurseries are included in the final rule as distinct Nursery Restoration Areas (listed northeast to southwest):

•

Carysfort Reef

•

Key Largo:

This area was established and permitted as a coral nursery site after the proposed rule was released for comment. NOAA received comments requesting that this site be included as a Nursery Restoration Area in this final rule. Key Largo Nursery Restoration Area, approximately 0.07 square miles (46.8 acres), is in Federal waters of the Upper Keys region of the sanctuary.

•

Pickles Reef West

•

Islamorada:

This area was established and permitted as a coral nursery site after the proposed rule was released for comment. NOAA received comments requesting that this site be included as a Nursery Restoration Area in this final rule. Islamorada Nursery Restoration Area, approximately 0.07 square miles (47.2 acres), is in Federal waters of the Upper Keys region of the sanctuary.

•

The Elbow Reef

•

Marathon

•

Middle Keys

•

Looe Key East

•

Looe Key West

•

Key West

•

Sand Key

ii. Habitat Restoration Areas

NOAA is also establishing four new Habitat Restoration Areas to protect existing, permitted active coral reef restoration sites. All Habitat Restoration Areas are small, ranging from 5 to 220 acres (<0.01 to 0.35 square miles), with an average size of 85 acres (0.13 square miles), and are designed to protect sites supporting active coral restoration with a 200-yard buffer. The total area of Habitat Restoration Areas is 339 acres (0.53 square miles). The final rule establishes the following Habitat Restoration Areas with regulations prohibiting, among other things, fishing, anchoring, and discharges or deposits:

•

Horseshoe Reef

•

Pickles Reef East

•

Cheeca Rocks East

•

Cheeca Rocks South

In this rule all Habitat Restoration Areas protect active coral reef

restoration; however, NOAA does not intend to limit application of this new zone type to coral restoration activities only. The Habitat Restoration Area zone type could be applied in the future in any area to support and facilitate restoration of other degraded habitats or species (

e.g.,

seagrass, hardbottom, etc.). In addition, a framework for establishing short-term, time-sensitive protections to support critical management including habitat restoration is described in the updated temporary regulation for emergency and adaptive management (see part IV, section 2.

Sanctuary-wide Regulations

above and the full regulatory text included in 15 CFR 922.165.) Additional information about how this zone type may be used in the future can be found in the final management plan. Future nursery and habitat restoration area site locations, sizes, and duration will be informed by site-specific habitat restoration plans, which could be prepared as part of a disease response or Restoration permit application.

Finally, to further facilitate habitat restoration and to complement this zone type, this rule includes a new category of general permit for Restoration.

e. Wildlife Management Areas (WMAs)

The final rule includes 44 WMAs, defined as an area of the sanctuary in which various access and use restrictions are applied to manage, protect, preserve, and minimize disturbance to sanctuary wildlife resources, including, but not limited to, endangered or threatened species or the habitats, special places, or conditions on which they rely. Access and use restrictions applied in WMAs address the specific protections necessary to minimize disturbances to sanctuary habitats and wildlife and are therefore tailored for the specific location and resource need. In addition, these access and use restrictions may be for a limited or seasonal time period. These WMAs aim to balance resource protection with compatible uses. This final rule generally favors sanctuary resource protection over access where biological and impact data demonstrate a need; however, the least restrictive access regulations and zone size needed to meet the resource protection goals are applied.

The final rule includes no change and/or only minor technical modifications to existing regulations for nine existing WMAs, spatial and/or regulatory modifications for 15 existing WMAs, and 20 new WMAs. In addition, the final rule eliminates three existing WMAs. The average size of WMAs (excluding the existing Tortugas Bank zone) is 0.62 square miles, ranging from 0.01 to 6.37 square miles (the newly established Pelican Shoal WMA and Marquesas Turtle WMA, respectively). The total area included in WMAs is 64.87 square miles of which 32.23 square miles is the existing Tortugas Bank no anchor zone.

Nine of the twenty-eight existing WMAs have no spatial or regulatory changes, or only minor technical changes, in this rule. The minor technical changes include (1) spatial changes that clarify exceptions to access regulations for certain channels and (2) regulatory changes in zone access terminology such that the existing “no access buffer” and “closed” regulations are changed to “no entry” to be consistent with the intent of the regulation and with State regulations.

NOAA is eliminating the existing no access buffer and closed zone regulations and is replacing them with a no entry regulation that has the same effect. The existing no access buffer zones are portions of the sanctuary where vessels are prohibited from entering regardless of the method of propulsion. In general practice, the no access buffer, closed, and no entry regulations have similar intent. In addition, this change in nomenclature creates consistency in application of this regulation throughout the sanctuary and aligns with State regulations. In addition to the zones discussed in this section, the no-access buffer zones at Crocodile Lake and Marquesas Keys WMAs are eliminated; however, both of these WMAs have additional minor spatial and/or regulatory changes and are more fully discussed in the section below.

The WMAs in this rule with no spatial or regulatory changes, or only minor technical changes, follow:

•

Horseshoe Key:

This is an existing 300 foot no access buffer zone with the island closed by the USFWS to decrease disturbance to nesting and roosting birds. NOAA is making a technical update to change the existing no access buffer regulation to no entry.

•

West Content Keys:

This is an existing zone with idle speed no wake in selected creeks and no access buffer in one cove to decrease disturbance to shorebirds using the area for nesting and foraging. NOAA is making a technical update to change the existing no access buffer regulation to no entry.

•

Sawyer Key:

This is an existing zone where the tidal creeks on the south side are closed to decrease disturbance to nesting birds. NOAA is making a technical update to change the existing closed regulation to no entry.

•

East Harbor Key:

This is an existing 300 foot no access buffer zone to decrease disturbance to various resting and nesting birds. NOAA is making a technical update to change the existing no access buffer regulation to no entry.

•

Cayo Agua Keys:

This is an existing zone with idle speed no wake in all navigable creeks to decrease disturbance to nesting and roosting birds, including great white heron, osprey, and the large numbers of resting shorebirds. There is no change from the status quo.

•

Big Mullet Key:

This is an existing 300 foot no motor zone around the island to decrease disturbance to nesting birds and resting shorebirds. There is no change from the status quo.

•

Little Mullet Key:

This is an existing 300 foot no access buffer zone to decrease disturbance to nesting, roosting, and foraging birds and shallow seagrass flats around the island, which exhibit prop scarring. NOAA is making a technical update to change the existing no access buffer regulation to no entry.

•

Pelican Shoal:

This is an existing no access buffer zone to decrease disturbance to nesting roseate terns and is an area that is thought to be the last active ground-breeding location for this ESA-listed species in Florida. Additionally, this is an FWC Critical Wildlife Area that was established in 1990. NOAA is making a technical update to change the existing no access buffer regulation to no entry.

•

Tortugas Bank:

This is an existing sanctuary zone prohibiting anchoring by vessels over 50 meters in length, which protects coral and hardbottom habitats on Tortugas Bank from anchor damage. NOAA is making no change in the spatial area or regulations for this zone.

As noted above, WMAs protect important habitats and species dependent on those habitats with access and use restrictions tailored for the specific location and resource need. Listed below (approximately northeast to southwest) are existing WMAs with changes to spatial boundaries, regulations, or a combination of both. Informed by public and agency comments, and additional data on resources and human uses, the final rule refines the spatial areas included in WMAs and the specific regulations that apply to most efficiently protect sanctuary resources while allowing the greatest level of use compatible with the resource protection goals.

•

Crocodile Lake:

This existing March 1 to October 1 no access buffer WMA is modified to become a year-round no entry zone except for Steamboat Creek. The final rule expands the WMA slightly to encompass an important bird

nesting site. The portion of the existing Crocodile Lake WMA on the northwestern shoreline of Eastern Lake Surprise becomes part of the Eastern Lake Surprise WMA as it is contiguous with that area.

•

Eastern Lake Surprise:

This existing WMA is modified to include a no entry area along the western shoreline that is currently part of the Crocodile Lake WMA. In the canal and basin on the southeast side of Eastern Lake Surprise, the existing regulations are changed from idle speed no wake to no entry; in addition, the no entry regulation is extended along the entire shoreline.

•

Dove and Rodriguez Keys:

These two existing WMAs are combined to create one no motor zone WMA. The existing regulation that closes two small islands near Dove Key is eliminated.

•

Tavernier Key:

This is an existing no motor zone. The final rule maintains the no motor regulation with exceptions for Tavernier Creek and the unnamed channel to the northeast leading to it.

•

Snake Creek:

This existing no motor zone is extended to the west along the shoreline up to but not including the existing Monroe County no motor zone. An exception to the no motor regulations is made for Snake Creek itself and the three channels providing access to Windley Key.

•

Cotton Key:

This existing no motor zone is extended to include an area west of Cotton Key that exhibits prop scarring.

•

East Content Keys and Upper Harbor Key Flats:

East Content Keys and Upper Harbor Key Flats are both existing marine zones. East Content Keys WMA consists of an existing small idle speed no wake zone in the largest tidal creek. This final rule applies additional idle speed no wake regulations in the remaining tidal creeks at East Content Keys. In addition, the seagrass flats to the east, north, and south of East Content Key, extending beyond Upper Harbor Key, are designated as idle speed no wake as this area exhibits scarring. Upper Harbor Keys WMA is an existing 300-foot no access zone around the entire island. NOAA is making a technical update to change the existing no access buffer regulation to no entry. This zone will be encompassed within the larger East Content Keys and Upper Harbor Key Flats idle speed no wake WMA.

•

Snipe Keys:

This existing marine zone is modified with the addition of a no entry area, which is an important roosting area for magnificent frigatebirds that are easily disturbed by motorized and non-motorized boat traffic. The existing no motor and idle speed no wake areas will not change.

•

Mud Keys:

This existing marine zone includes idle speed no wake and closed areas within the channels. This final rule updates this to idle speed no wake in all channels.

•

Lower Harbor Keys:

This existing zone includes idle speed no wake in selected tidal creeks. This final rule expands the idle speed no wake area to further protect and decrease disturbance to various nesting, roosting, and wading birds.

•

Bay Keys:

This existing marine zone is modified by expanding the current idle speed no wake area in the channel leading to the northwest island, maintaining that island as no motor, and includes an additional adjacent island to the southeast as no motor.

•

Cottrell Key:

This existing no motor zone is changed to a no entry zone to decrease disturbance to nesting and roosting birds. Cottrell Key has one of the highest annual counts of nesting great white herons in the Lower Keys, and serves as an important island for other nesting, roosting and foraging birds.

•

Woman Key:

This existing zone, which currently includes one-half of the beach and sand spit as closed, is changed to no entry and expanded to include 300-feet offshore of the beach to further decrease disturbance to nesting and roosting birds and ESA-listed sea turtles, which may be impacted during nesting by high concentrations of visitors.

•

Boca Grande Key:

This existing zone currently includes a closed area on the south half of the beach and the island is closed by the USFWS. In this final rule, the WMA is changed to no entry and expanded to include 300-feet offshore of the beach to decrease disturbance to nesting and roosting birds and ESA-listed sea turtles, which may be impacted during nesting by high concentrations of visitors.

•

Marquesas Keys:

This is an existing zone with a 300-foot no motor regulation around three keys, a 300-foot no access buffer zone around one island (all on the western side of Mooney Harbor), and idle speed no wake in a southwest tidal creek. NOAA's final rule maintains all of these areas; however, the no motor and no access buffer zones are changed to no entry, and one additional island on the south end of Mooney Harbor is added as no entry.

NOAA's final rule includes 20 new WMAs, eleven of these fall within USFWS National Wildlife Refuge boundaries, nine of which specifically serve to protect USFWS trust species (

e.g.,

species for which the Refuge was established to protect and/or Migratory Bird Treaty Act species).

•

Barnes-Card Sound:

This final rule establishes a new idle speed no wake WMA.

•

Whitmore Bight:

This final rule establishes a new no motor WMA that includes an area along the shoreline in John Pennekamp State Coral Reef Park that includes the State Park managed no motor zone.

•

Pelican Key:

This final rule establishes a new no entry WMA.

•

Pigeon Key:

This final rule establishes a new no entry WMA.

•

Channel Key Banks:

This final rule establishes a new idle speed no wake WMA. This final rule allows exceptions for normal operation in established channels and includes Channel Key as a no entry area.

•

Red Bay Bank:

This final rule establishes a new idle speed no wake WMA.

•

Marathon Oceanside Shoreline:

This final rule establishes a new idle speed no wake WMA with exceptions for established channels.

•

East Bahia Honda Key:

This final rule establishes a new no motor WMA.

•

West Bahia Honda Key:

This final rule establishes a new no motor WMA.

•

Little Pine Key Mangrove:

This final rule establishes a new no entry WMA.

•

Water Key Mangroves:

This final rule establishes a new no entry WMA.

•

Howe Key Mangrove:

This final rule establishes a new no motor WMA.

•

Torch Key Mangroves:

This final rule establishes a new no entry WMA.

•

Crane Key:

This final rule establishes a new no entry WMA.

•

Northeast Tarpon Belly Keys:

This final rule establishes a new no motor WMA.

•

Happy Jack Key:

This final rule establishes a new no entry WMA.

•

Western Dry Rocks:

This final rule establishes a new WMA that will mirror newly established

FWC regulations

12

(February 2021) with a seasonal no fishing prohibition from April 1 to July 31 and a no anchor regulation during this same seasonal time period.

12

https://www.flrules.org/gateway/ruleNo.asp?id=68B-6.004.

•

Barracuda Keys:

This final rule establishes a new idle speed no wake WMA.

•

Ballast and Man Keys Flats:

This final rule establishes a new idle speed no wake WMA.

•

Marquesas Turtle:

This final rule establishes a new idle speed no wake WMA.

This final rule does not include two WMAs that were included in the 2022 NOPR:

•

Archer Key:

This final rule does not include a new sanctuary marine zone at

this site due to comments received from the public and requests from Florida DEP and FWC.

•

Ashbey-Horseshoe Key:

This final rule does not include a new sanctuary marine zone at this site. This area is an existing no motor zone within Lignumvitae Key Aquatic Preserve and Lignumvitae Key Botanical State Park therefore this rule does not include a new sanctuary marine zone at this site at this time.

4. Additional Marine Zone Regulations

a. Motorized Personal Watercraft

NOAA's final rule includes regulatory changes to allow motorized personal watercraft (PWC) operation in a small portion of the Key West National Wildlife Refuge, west of the Key West main ship channel around marker G13, where PWC operation is otherwise prohibited.

b. Tortugas North Access Permits

The final rule streamlines the permit application process for persons wishing to enter the Tortugas North Conservation Area. The current regulation requires that access permits must be requested at least 72 hours, but no earlier than one month, before the date that access is requested. This final rule removes the current requirement to request access permits no earlier than one month before the date of entrance to the area and removes the requirement to notify FKNMS before entering and upon leaving the area. The requirement to request an access permit at least 72 hours in advance will remain.

c. Catch and Release Fishing by Trolling in Four SPAs

The final rule eliminates the exception allowing catch and release fishing by trolling in four SPAs (Conch Reef, Alligator Reef, Sombrero Key, and Sand Key). Over two decades of management experience with marine zones in the sanctuary points to providing zones with consistent and clear regulations and indicates that user compliance is greatly reduced and enforcement greatly hindered when exceptions to regulations in specific zones are provided.

d. Bait Fishing Permits

NOAA is eliminating over a three-year period the practice of issuing bait fishing permits of any kind in all SPAs. As noted above, over two decades of management experience with marine zones in the sanctuary points to providing zones with consistent and clear regulations and indicates that user compliance is greatly reduced and enforcement greatly hindered when exceptions to regulations in specific zones are provided.

5. Sanctuary Management Plan

The final EIS includes a final revised management plan. The management plan, which includes non-regulatory actions, complements and further supports this rulemaking. The management plan actions are largely focused on understanding and improving the condition of sanctuary resources by reducing threats and addressing emerging issues. Actions also include engaging with and strengthening partnerships to address issues and impacts that occur outside the sanctuary boundary and fall within the jurisdiction or authority of partner Federal or State agencies. A copy of the final management plan is available at the address and website listed in the

ADDRESSES

section of this rule.

V. Changes to the Sanctuary Terms of Designation

1. Summary of Changes to the Terms of Designation

Section 304(a)(4) of the NMSA requires that the terms of designation for national marine sanctuaries include: (1) the geographic area of the sanctuary; (2) the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or aesthetic value; and (3) the types of activities subject to regulation by NOAA to protect those characteristics. Section 304(a)(4) also specifies that the terms of designation may be modified only by the same procedures by which the original designation was made, including public notice and comment, and preparation of an EIS. Terms of designation include the geographic area of the sanctuary, characteristics of the area that give it value, and the types of activities that will be subject to regulation. Therefore, the revised FKNMS terms of designation set forth below:

1. Modify Article I (“Designation and Effect”) to include the expanded sanctuary boundary;

2. Modify Article II (“Description of the Area”) by changing the geographic description and size of the sanctuary;

3. Modify Article III (“Characteristics of the Area That Give it Particular Value”) by updating the size of the sanctuary and the description of the special resources contained within it;

4. Modify Article IV (“Scope of Regulation”) by simplifying descriptions of the categories of activities that may be subject to regulation. As originally drafted, the Terms of Designation contain a level of detail similar to, if not the same, as the regulations. Instead, NOAA proposes to provide broad categories of activities to be more consistent with the legislative intent of section 304(a)(4) of the NMSA to merely identify the “types of activities” and rely on the regulations themselves to provide the specific regulatory details (see

e.g.,

15 CFR 922.163). Otherwise, the “Scope of Regulation” section would be duplicative of the regulations and serve no purpose. By simplifying the activity descriptions, NOAA is not broadening in any way the scope of the regulations and is not adding any new or different activities to be subject to regulation. The regulations themselves contain the operative language and only the regulations are enforceable;

5. Modify Article V (“Effect on Leases, Permits, Licenses, and Rights”) by modifying language to be consistent with section 304(c) of the NMSA related to any valid lease, permit, license, approval, or other authorization or right in existence prior to the effective date of the revised terms of designation, and to cite the correct section of Office of National Marine Sanctuaries regulations for certifying such valid rights; and

6. Modify the “Florida Keys National Marine Sanctuary Boundary Coordinates” to include the expanded sanctuary boundary.

Terms of Designation for the Florida Keys National Marine Sanctuary

Article I. Designation and Effect

On November 16, 1990, the Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA), Pub. L. 101-605 (16 U.S.C. 1433 note), became law. That Act designated an area of waters and submerged lands, including the living and nonliving resources within those waters, as described therein, as the Florida Keys National Marine Sanctuary (sanctuary). The FKNMSPA specifies that the sanctuary, is designated . . . under title III of the Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1431

et seq.

). The Sanctuary shall be managed and regulations enforced under all applicable provisions of such title III as if the Sanctuary had been designated under such title. FKNMSA Sec. 5(a). In 2001, pursuant to the procedures outlined in section 304 of the NMSA, 16 U.S.C. 1434, the boundary of the sanctuary was expanded to include important coral reefs and other resources in two areas west of the Dry Tortugas National Park, including Sherwood Forest and Riley's Hump. In 2024, the boundary of the sanctuary was further expanded to include areas: (a)

north of the existing northern extent of the sanctuary, offshore of Miami-Dade County, to align with the Area To Be Avoided, (b) seaward of the existing southern boundary of the sanctuary to align with the ATBA, (c) at the far western end of the existing sanctuary boundary, to extend by approximately one mile westward and encompass the outer boundaries of the Tortugas South Conservation Area (formerly the Tortugas South Ecological Reserve) and square off the sanctuary boundary in its northwestern corner.

Section 304 of the NMSA, 16 U.S.C. 1434, authorizes the Secretary of Commerce to issue such regulations as are necessary and reasonable to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, scientific, educational, cultural, archaeological or aesthetic resources and qualities of a national marine sanctuary. Section 1 of Article IV of the Terms of Designation lists activities of the type that are presently being regulated or may have to be regulated in the future in order to protect sanctuary resources and qualities. Listing in section 1 does not mean that a type of activity will be regulated in the future; however, if a type of activity is not listed, it may not be regulated, except on an emergency basis, unless section 1 is amended, following the procedures for designation of a sanctuary set forth in paragraphs (a) and (b) of section 304 of the NMSA, to include the type of activity.

Article II. Description of the Area

The Florida Keys National Marine Sanctuary boundary encompasses a total of approximately 3,427 square nautical miles (4,539 square statute miles) of coastal, ocean, and Gulf of Mexico waters, and the submerged lands thereunder, surrounding the Florida Keys in south Florida. The northernmost point of the sanctuary lies just east of Miami and Key Biscayne. The contiguous area boundary on the Atlantic Ocean side of the Florida Keys runs south from just north of Biscayne National Park generally curving in a southwesterly direction along the Florida Keys archipelago until southwest of the Dry Tortugas and Loggerhead Key. The contiguous area boundary on the Gulf of Mexico side of the Florida Keys continues from this southwestern point to the north approximately 32 miles until it reaches a point northwest of Loggerhead Key and the Dry Tortugas. The boundary then continues east to approximately 8 miles north of Cottrell Key, and then from there it continues generally to the northeast to just north of Sprigger Bank. The boundary then generally approximates the southeastern Everglades National Park boundary until it continues along the western shore of Manatee Bay, Barnes Sound, and Card Sound. The boundary then generally approximates the southern boundary of Biscayne National Park and continues to do so north along the park's eastern boundary until it reaches the sanctuary's northeastern most point.

The landward boundary of the contiguous sanctuary area is the shoreline as defined by the mean high-water line. The Dry Tortugas National Park is not included within the sanctuary and the inner sanctuary boundary in this location is coterminous with this national park boundary. The sanctuary boundary encompasses the entire Florida coral reef tract, all of the mangrove islands of the Florida Keys, and some of the seagrass meadows of the Florida Keys. The precise boundary of the sanctuary is set forth at the end of this Designation Document.

Article III. Characteristics of the Area That Give it Particular Value

The Florida Keys extend approximately 223 miles southwest from the southern tip of the Florida peninsula. Adjacent to the Florida Keys land mass are located spectacular unique, nationally significant marine environments, including seagrass meadows, mangrove islands, and extensive living coral reefs. These marine environments support rich biological communities possessing extensive conservation, recreational, commercial, ecological, historical, research, educational, and aesthetic values which give this area special national significance. These environments are the marine equivalent of tropical rain forests in that they support high levels of biodiversity, are fragile and easily susceptible to damage from human activities, and possess high value to humans if properly conserved. These marine environments are subject to damage and loss of their ecological integrity from a variety of sources of disturbance.

The Florida Keys are a limestone island archipelago. The Keys are located at the southern edge of the Florida Plateau, a large carbonate platform made of a depth of up to 7000 meters of marine sediments, which have been accumulating for 150 million years and which have been structurally modified by subsidence and sea level fluctuation. The Keys region is generally divided into five distinct areas: the Florida reef tract, one of the world's largest coral reef tracts and the only barrier reef in the United States; Florida Bay, a large, shallow seagrass-dominated estuary and world-famous game fishing region that sits at the interface between the Florida Everglades and the Florida Reef Tract; the Southwest Continental Shelf; the Straits of Florida; and the Keys themselves.

The sanctuary contains one of North America's most diverse assemblages of terrestrial, estuarine, and marine fauna and flora. In addition to the Florida reef tract, the sanctuary includes thousands of patch reefs, various hardbottom habitats, mangrove fringed shorelines and mangrove islands, and a substantial portion of one of the world's largest seagrass communities that covers 3.6 million acres of the nearshore marine environment in south Florida. These diverse habitats provide shelter and food for thousands of species of marine plants and animals, including more than 50 species of animals identified under Federal or State law as endangered or threatened. The Keys were at one time a major seafaring center for European and American trade routes to the Caribbean, and submerged cultural and historic resources (

i.e.,

shipwrecks) abound in the surrounding waters. In addition, the sanctuary contains substantial archaeological resources of pre-European cultures.

The uniqueness of the marine environment draws multitudes of visitors to the Keys. The major industry in the Florida Keys is tourism, including activities related to the Keys' marine resources, such as dive shops, charter fishing and dive boats and marinas, as well as hotels and restaurants. The abundance of the resources also supports a large commercial fishing employment sector.

The number of visitors to the Keys grows each year, with a concomitant increase in the number of residents, homes, jobs, and businesses. As population grows and the Keys accommodate ever-increasing resource use pressures, the quality and quantity of sanctuary resources are increasingly threatened. These pressures require coordinated and comprehensive monitoring and researching of the Florida Keys' region.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation

The following activities are subject to regulation under the NMSA, either throughout the entire sanctuary or within identified portions of it or, as indicated, in areas beyond the boundary of the sanctuary, to the extent necessary and reasonable. Such regulation may

include prohibitions to ensure the protection and management of the conservation, recreational, ecological, historical, scientific, educational, cultural, archaeological or aesthetic resources and qualities of the area (

e.g.,

15 CFR 922.163). Because an activity is listed here does not mean that such activity is being or will be regulated. Listing an activity here means that the Secretary of Commerce can regulate the activity in accordance with all applicable laws without going through the designation procedures required by paragraphs (a) and (b) of section 304 of the NMSA, 16 U.S.C. 1434(a) and (b). Further, no regulation issued under the authority of the NMSA may take effect in Florida State waters within the sanctuary if the Governor of the State of Florida certifies to the Secretary of Commerce that such regulation is unacceptable within the forty-five day review period specified in NMSA.

Activities Subject to Regulation:

1. Mineral or hydrocarbon exploration, development, or production;

2. Destroying, causing the loss of, or injuring coral or live rock or attempting to do so;

3. Altering or placing any structure, object, or other material on the seabed, except as authorized by appropriate permits or as part of lawful fishing;

4. Discharging or depositing any material or discharging or depositing any material beyond the sanctuary that then enters the sanctuary and injures a sanctuary resource or quality;

5. Operating a vessel, including anchoring, in a manner that may destroy, cause the loss of, or injure sanctuary resources or property or in a manner that may injure or endanger the life of sanctuary users;

6. Diving in a manner that could harm sanctuary resources, sanctuary property, or other users of the sanctuary;

7. Stocking within the sanctuary or releasing within or from beyond the boundary of the sanctuary any non-native or exotic species;

8. Defacing, marking, or damaging in any way or displacing, removing, or tampering with any markers, signs, notices, placards, navigational aids, monuments, stakes, posts, mooring buoys, boundary buoys, trap buoys, or scientific equipment;

9. Moving, removing, injuring, preserving, curating, and managing historic resources;

10. Taking, removing, moving, catching, collecting, harvesting, feeding, attracting, injuring, destroying, or causing the loss of or attempting to take, remove, move, catch, collect, harvest, feed, attract, injure, destroy, or cause the loss of any sanctuary resource;

11. Conducting or attempting to conduct any manner of activities within specially designated marine areas, including removing, injuring, or disturbing any living or dead organism or bottom formation; possessing or using certain fishing gear; operating or anchoring vessels; entering areas; and diving;

12. Harvesting marine life species;

13. Possessing or using explosives, electrical charges, or toxic substances within the sanctuary, or using explosives, electrical charges, or toxic substances beyond the sanctuary that then enter the sanctuary and injure a sanctuary resource or quality;

14. Abandoning fishing gear or vessels and removing (including salvaging) fishing gear and grounded, derelict, or abandoned vessels;

15. Maintaining or deserting a derelict vessel or vessel at risk of becoming derelict and leaving harmful matter aboard a grounded or deserted vessel; and,

16. Interfering with any enforcement action.

Section 2. Emergency and/or temporary regulation.

Any and all activities are subject to immediate emergency and/or temporary regulation, including any not listed in Section 1 of this article.

Article V. Effect on Leases, Permits, Licenses, and Rights

Pursuant to paragraph (c)(1) of section 304 of the NMSA, 16 U.S.C. 1434(c)(1), a person may conduct an activity prohibited by sanctuary regulations if such activity is specifically authorized by a valid Federal, State, or local lease, permit, license, approval, or other authorization or right in existence prior to the effective date of these revised terms of designation, provided that the holder of the lease, permit, license, approval, or other authorization complies with the procedures outlined in this subpart and subpart E.

However, in no event may the Secretary of Commerce or his or her designee issue any form of approval for the: (1) exploration, leasing, development, or production of minerals or hydrocarbons; (2) disposal of dredged material within the sanctuary other than in connection with beach renourishment or sanctuary restoration projects; or (3) discharge of untreated or primary treated sewage. Any purported authorizations issued by other authorities for any of these activities within the sanctuary shall be invalid.

Article VI. Alteration of this Designation

The terms of designation, as defined in paragraph (a) of section 304 of the NMSA, 16 U.S.C. 1434(a), may be modified only by the procedures outlined in paragraphs (a) and (b) of section 304 of the NMSA, 16 U.S.C. 1434(a) and (b), including public hearings, consultation with interested Federal, State, and local government agencies, review by the appropriate congressional committees, review by the Governor of the State of Florida, and approval by the Secretary of Commerce, or his or her designee. No designation, term of designation, or implementing regulation may take effect in Florida State waters within the sanctuary if the Governor of the State of Florida certifies to the Secretary of Commerce that such designation, term of designation, or regulation is unacceptable within the forty-five day review period specified in NMSA.

Florida Keys National Marine Sanctuary Boundary Coordinates

The Florida Keys National Marine Sanctuary (sanctuary) encompasses an area of 3,427 square nautical miles (4,539 square miles) of coastal, ocean, and Gulf of Mexico waters and the submerged lands thereunder from the boundary to the shoreline as defined by the mean high water tidal datum surrounding the Florida Keys in southern Florida. The precise boundary coordinates are listed in Appendix I to this Subpart.

The sanctuary boundary begins approximately 4 miles east of the northern extent of Key Biscayne at Point 1 and continues roughly south and then southwest and west in numerical order to Point 15 approximately 27 miles SW of Loggerhead Key. From Point 15 the sanctuary boundary continues north to Point 17 which is approximately 18 miles NW of Loggerhead Key and then continues roughly east in numerical order to Point 23 just north of Sprigger Bank. From Point 23 the boundary continues in numerical order roughly SE to Point 26 just north of Old Dan Bank. From Point 26 the boundary continues NE in numerical order through Bowlegs Cut and Steamboat Channel to Point 42 near the southern entrance to Cowpens Cut west of Plantation Key.

From Point 42 the boundary continues towards Point 43 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly NNE until it intersects the line segment formed between Point 44 and Point 45.

From this intersection the boundary continues NNE to Point 45 and then roughly NE in numerical order to Point 61 just west of Hammer Point in Tavernier, FL. From Point 61 the boundary continues in numerical order roughly north and then NW to Point 64 just west of Pigeon Key. From Point 64 the boundary continues in numerical order roughly NE then NNE through Baker Cut to Point 69. From Point 69 the boundary continues in numerical order roughly NE through Buttonwood Sound to Point 73.

From Point 73 the boundary continues towards Point 74 until it intersects the shoreline near the southern entrance to Grouper Creek west of Key Largo, FL. From this intersection the boundary follows the shoreline NE along Grouper Creek until it intersects the line segment formed between Point 75 and Point 76. From this intersection the boundary continues towards Point 76 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly east until it intersects the line segment formed between Point 77 and Point 78.

From this intersection the boundary continues to Point 78 and then roughly ESE in numerical order through Tarpon Basin to Point 85. From Point 85 the boundary continues NE and then NW to Point 92.

From Point 92 the boundary continues towards Point 93 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly north along Dusenberry Creek until it intersects the line segment formed between Point 94 and Point 95.

From this intersection the boundary continues to Point 95 and then NE in numerical order through Blackwater Sound to Point 102 south of the entrance to Jewfish Creek.

From Point 102 the boundary continues towards Point 103 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly NNE and then NW until it intersects the line segment formed between Point 104 and Point 105. From this intersection the boundary continues towards Point 105 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly NNE and then roughly west along southwestern Barnes Sound and around Division Point until it intersects the line segment formed between Point 106 and Point 107 near Manatee Creek east of Long Sound. From this intersection the boundary continues towards Point 107 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly NNW until it intersects the line segment formed between Point 108 and Point 109. From this intersection the boundary continues towards Point 109 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly east until it intersects the line segment formed between Point 109 and 110. From this intersection the boundary continues towards Point 110 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly north and then NE until it intersects the line segment formed between Point 111 and Point 112. From this intersection the boundary continues towards Point 112 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly east and then north around Bay Point and then west until it intersects the line segment formed between Point 113 and Point 114. From this intersection the boundary continues towards Point 114 until it intersects the shoreline. From this intersection the boundary follows the shoreline north along the western side of Manatee Bay until it intersects the line segment formed between Point 115 and Point 116. From this intersection the boundary continues towards Point 116 until it intersects the shoreline.

From this intersection the boundary follows the shoreline around northern Manatee Bay and Barnes Sound until it intersects the line segment formed between Point 117 and Point 118. From this intersection the boundary continues towards Point 118 until it intersects the shoreline. From this intersection the boundary follows the shoreline roughly to the SE south of FL State Route 905A—Card Sound Road then NW and roughly north along western Little Card Sound and then Card Sound cutting off the mouths of canals and drainage ditches until it intersects the line segment formed between Point 119 and Point 120 south of Midnight Pass. From this intersection the boundary continues to Point 120 and then roughly SE to each successive point in numerical order approximating the southern boundary of Biscayne National Park to Point 142 approximately 3 miles ENE of Turtle Rocks. From Point 142 the boundary continues roughly N to each successive point in numerical order ending at Point 158.

The inner landward sanctuary boundary is defined by and follows the shoreline where not already specified in the description above.

Dry Tortugas National Park is not included within the FKNMS and the inner sanctuary boundary in this area is coterminous with this national park boundary and begins at Point DT1 and continues in numerical order counterclockwise around the national park ending at Point DT10.

VI. Response to Comments

NOAA collected comments on the 2019 draft EIS as well as the 2022 proposed rule. For the purposes of full transparency and responsiveness, the following section addresses all of these comments. The subject matter of each comment category is first summarized, followed by NOAA's response. Responses may refer to portions of the regulations, management plan, or EIS that NOAA modified as a result of comments it received. Comments and responses are organized primarily by applicable regulation or to a few cross-cutting categories of comments.

General

Comment 1:

NOAA received comments that opposed any additional regulatory action and called for no change to the current regulations and management plan.

Response:

As described in Section I.2 above, NOAA determined it was necessary to update the FKNMS management framework, including modifying regulations, in order to ensure long-term resource viability and ecosystem function and to address current and future threats to sanctuary resources such as diminished water quality originating from both within and outside the sanctuary, significant decrease in coral cover, and habitat degradation from vessel impacts including anchor damage, propeller-scarring, and groundings. Each of these threats has major implications for FKNMS. In addition, the 2011 FKNMS Condition Report

13

concluded that resources in the Florida Keys appear to be in fair to fair/poor condition and are generally either stable or in decline. Since the release of the 2011 condition report, sanctuary resources have been further degraded by Hurricane Irma (2017), a serious and widespread coral disease outbreak, a seagrass die-off, and warming ocean temperatures as evident during the summer 2023 marine heat wave, among other threats. New regulations are necessary to address these conditions.

13

https://sanctuaries.noaa.gov/science/condition/fknms/welcome.html.

Sanctuary Boundary

Comment 2:

NOAA received comments supporting the sanctuary boundary expansion alternative to include the ATBA, the Tortugas region,

and Pulley Ridge. Comments noted support for sanctuary-wide boundary expansion to reduce confusion and create consistency, particularly through the ATBA boundary expansion. Comments acknowledged the need for greater ecological protection in the Florida Keys that could be achieved through boundary expansion, particularly by including the entire Tortugas region and Pulley Ridge. NOAA received comments opposing the sanctuary boundary expansion alternatives, largely due to concern about loss of access for traditional fishing activities.

Response:

NOAA's action to include the final preferred alternative aligns the sanctuary boundary with the ATBA boundary to create a consistent geographic and regulatory boundary. In addition, including the ATBA and the Tortugas region provides additional protections for the resources that are present in the expanded area, including those that are ecologically connected. In response to concerns about sanctuary boundary expansion resulting in loss of fishing access, the boundary expansion does not affect activities that are considered traditional fishing as defined at 15 CFR 922.162.

Comment 3:

NOAA received comments supporting and opposing expanding the sanctuary boundary to include a distinct unit at Pulley Ridge. Comments in support noted its value as the deepest known photosynthesizing coral reef off the continental U.S. with physical and biological connections to the Florida Keys. Comments in opposition noted this area is already regulated as a HAPC with associated GMFMC regulations and requested that NOAA pursue other avenues to protect the area from all vessel anchoring.

Response:

The final rule does not include Pulley Ridge in the sanctuary boundary. The existing HAPC with associated GMFMC regulations prohibits, among other things, anchoring by fishing vessels. NOAA's purpose for proposing a designation of a new unit in Pulley Ridge was to protect important mesophotic reef habitat from anchoring by all vessels. Concurrent with considering boundary expansion to include Pulley Ridge, as noted in the proposed rule, the United States proposed that the IMO designate a No Anchoring Area in the southern portion of Pulley Ridge, which was approved and implemented starting June 1, 2023 (IMO SN.1/Circ.342). The IMO designation has prohibited all anchoring on Pulley Ridge and, therefore, the need for additional regulation by NOAA is greatly reduced. Finally, given that this area of Pulley Ridge is managed as a HAPC with associated fishing regulations under the MSA, the final rule does not restrict fishing in this area.

Comment 4:

NOAA received comments that opposed any change to the sanctuary boundary citing reasons including (1) the lack of sufficient enforcement; (2) concern of restricting use/access for the public, particularly for commercial fishing and most notably shrimp fishing; (3) budget and management limitations; and (4) socioeconomic consequences to certain industries.

Response:

NOAA considered all of these concerns throughout the Restoration Blueprint process, including at the draft EIS and draft management plan phase, the notice of proposed rulemaking, the final EIS and final management plan, and in this final rule. Specifically, (1) enforcement is identified as one of six management priorities in the final management plan (see the priorities section and activities 3.3.1 and 5.3.2). NOAA/ONMS will work with partners to enhance enforcement capacity to achieve visible resource protection benefits. ONMS is also committed to enhancing public knowledge, understanding, and compliance through establishing consistent regulations, where feasible, and targeted education and interpretation of those regulations. These efforts will strengthen enforcement of the final regulations. (2) Public access, including fishing access, is not affected by expanding the sanctuary boundary. Sanctuary-wide regulations will apply, which may affect how someone operates (

e.g.,

prohibition on impact to the seabed) but do not affect access. Specific to fishing activity, exemptions from specific sanctuary-wide regulations exist for traditional fishing activities, the definition for which is updated in the final rule. (3) NOAA will address resource limitations by identifying priorities towards which resources will be directed. NOAA's final management plan includes a suite of six management priorities and Appendix I outlines a prioritization framework that initially evaluates cost and level of effort needed followed by consideration of the following five factors: importance, impact, feasibility, requirements, and connection to one of the six priority themes. In addition, NOAA will continue to work with partners that play an essential role in how the sanctuary conducts its operations and programs. Appendix II includes a list of representative partners. (4) As summarized in the 2022 Socioeconomic Report (Schwarzmann et.al., 2022), the estimated economic effects of the 2022 NOPR alternative are not considered significant under section 3(f)(1) of Executive Order 12866. Estimated losses to small businesses in the commercial fishing and recreational for-hire fishing sectors resulting from proposed boundary changes are expected to be less than 1% of average revenue with the exception of the lobster fishery, which may experience a loss of roughly 2%. In this final rule, NOAA is selecting a smaller sanctuary boundary expansion than the 2022 NOPR Alternative; therefore, socioeconomic impacts are expected to be less than what was estimated in the 2022 Socioeconomic Report.

Sanctuary-Wide Regulations

Comment 5:

Commenters requested NOAA consider adding an exception to the proposed anchoring definition to include an exemption for push poles and power poles.

Response:

NOAA's final rule prohibits anchoring in all SPAs, Habitat Restoration Areas, and Conservation Areas, except in the Western Sambo Conservation Area. Given that these areas prohibit take (

i.e.,

fishing) and the use of push poles and power poles is not commonplace, the final rule does not modify the anchoring definition to allow exceptions. The final rule does not regulate anchoring for nearshore WMAs, where push poles and power poles are more commonplace. See the response to comments in the WMA section.

Comment 6:

NOAA received comments requesting a definition for trolling given the existing exception for catch and release fishing by trolling in 4 SPAs and the proposal to include a “trolling only” zone at the proposed Western Dry Rocks (Alternatives 2 and 3).

Response:

The final rule does not include any provisions related to trolling, so a definition is not needed.

Comment 7:

NOAA received comments opposing the proposed update to the traditional fishing definition. Commenters requested that the definition more fully capture existing fishing regulations promulgated by State and Federal authorities and allow for the future development and use of innovative gear types intended to reduce impacts on FKNMS resources. Commenters also recommended that the final rule include the complete definition of traditional fishing, instead of being included as a reference to another section or document.

Response:

After further consideration and close coordination with the Florida Fish and Wildlife Conservation Commission, the GMFMC, and the

SAFMC, NOAA agrees with the recommendation to capture existing fishing practices in the definition of traditional fishing rather than limiting the definition to activities that were in existence as of 1997. NOAA has included an updated definition for “traditional fishing” in the final rule that includes fishing activities taking place as of the effective date of this final rule.

NOAA provides further guidance in final EIS Appendix G that includes an updated description of the current fisheries managed by the FWC in State waters and by NMFS in the EEZ. The traditional fishing activities described in Appendix G are currently occurring in this sanctuary subject to FWC/NMFS regulation and will remain subject to the sanctuary's marine zone regulations where additional protections are needed to address impacts of traditional fishing activities on sanctuary resources.

NOAA agrees that it may be appropriate to update the traditional fishing definition in the future, particularly to recognize new or innovative gear types that become widely used and are demonstrated to reduce impacts to sanctuary resources. Any update to the definition and the fishing activities that are considered traditional fishing would be done through a separate rulemaking in order to consider public comment and to conduct an environmental analysis under NEPA of the potential impacts of new or innovative gear types or fisheries activities on sanctuary resources. New or innovative gear types, along with other new or modified fishing activities, would continue to require sanctuary permits or authorization while they are being tested. NOAA would collaborate closely with, and rely on the expertise of, FWC and the FMCs when considering any updates to the definition of traditional fishing activities.

Discharge and Deposit Regulation Exception

Comment 8:

NOAA received comments strongly supporting a specific regulation to limit discharges from cruise ships and asserting that cruise ship discharges are a significant cause of water quality problems in the FKNMS. Specific comments requested clarification about exceptions from the discharge prohibitions for certain discharges (

e.g.,

rainwater, ballast water) from cruise ships. Commenters also requested that NOAA continually review this provision to see if technology advances warrant additional or modified discharge regulations. Commenters also stated that discharges from cruise ships are sufficiently regulated by the U.S. EPA, including through the CWA and VIDA. Finally, commenters claimed there is no scientific support for prohibiting exhaust gas cleaning system discharges and no need to rely on the precautionary principle.

Response:

NOAA has updated and clarified the cruise ship discharge and deposit prohibition in this final rule to more clearly prohibit discharging or depositing of any material or other matter from a cruise ship except cooling water. NOAA determined that other alternatives, which proposed instead to specify certain discharges that would be allowed by cruise ships (

e.g.,

“clean wash water”), would be extremely difficult to define based on changing industry standards. The use of such terms could be interpreted differently among stakeholders, which could create compliance and enforcement challenges. EPA has recently issued a final rule setting national standards of performance for commercial vessel incidental discharges, but these standards will not be effective until the United States Coast Guard has promulgated implementing regulations. Additionally, the sanctuary was designated by Congress, in part, for the purpose of protecting water quality, and sanctuary regulations have long imposed more stringent vessel discharge standards than the CWA. For instance, the sanctuary's current discharge and deposit prohibition, which provides a limited exception for certain routine vessel discharges, was promulgated almost ten years before EPA began regulating incidental vessel discharges in 2007.

Discharges of EGCS wash water contain PAH's, higher pH water, and heavy metals. EPA's national standards for discharge of EGCS wash water is based largely on the IMO 2015 Guidelines for Exhaust Gas Cleaning Systems (Resolution MEPC.259(68)), but these standards may not be sufficiently protective for FKNMS. Although the degree of harm of these releases depends on the local environmental conditions, scientific studies indicate a cause for concern of impacts to sensitive ecosystems such as FKNMS (Teuchies et al., 2020). NOAA does not require scientific certainty to prohibit EGCS wash water discharges. While EPA's regulations do not ban EGCS wash water, a ban narrowly tailored to cruise ships in FKNMS is feasible. Cruise ships spend a short time traveling in the Sanctuary to visit Key West, and cruise ships currently switch to low sulfur fuels when entering harbors and ports where EGCS discharges are prohibited. Though low-sulfur fuel is more costly, cruise ships spend a very short time traveling through the sanctuary to visit Key West. This regulatory change meets the express purpose of the Act to facilitate uses in the sanctuary to the extent compatible with the primary objective of resource protection by, in this case, considering the low economic impact on cruise ships and the risk of harm to sanctuary resources. 16 U.S.C. 1431(b)(6).

Comment 9:

NOAA received comments raising concerns about compliance with the prohibition of discharges from cruise ships and enforcement of violations. Specifically, commenters noted that this regulation lacks the appropriate enforcement mechanism and mandatory penalty consequences.

Response:

Cruise ships are subject to a comprehensive system of regulation and oversight. State and Federal agencies may conduct announced and unannounced inspections and enforce compliance with State and Federal laws and regulations. A cruise ship found to be in violation of the sanctuary's discharge and deposit prohibition could be subject to civil penalties under the NMSA, 16 U.S.C. 1437(d), or, in some cases, criminal prosecution. If a discharge and deposit results in destruction, loss of, or injury to sanctuary resources, a cruise ship may also be liable for resulting response costs and damages under 16 U.S.C. 1443.

Comment 10:

NOAA received public comments requesting that proposed discharge prohibition for cruise ships be extended to all commercial vessels over 79 feet.

Response:

NOAA appreciates these comments and considered them carefully. Cruise ships are a unique source of a considerable volume of greywater discharges generated by carrying passengers (

i.e.,

showers, laundry, sinks, kitchens, etc.) and have the ability to refrain from discharging during their short time in the sanctuary. NOAA may consider extending this discharge prohibition to other large vessels in a future rulemaking after evaluating water quality monitoring data and assessing the types, numbers, and sizes of vessels present in FKNMS.

Comment 11:

NOAA received comments recommending that a regulation be added to specifically address turbidity (

e.g.,

suspended sediments in the water column) generated from cruise ships and other large vessels.

Response:

NOAA's final rule was designed to limit discharges of greywater and runoff from cruise ships

because these discharges are well studied as having potential adverse effects on water quality, and cruise ships are capable of reducing these discharges while in the sanctuary. More study is needed to weigh the costs and benefits of any regulation aimed at reducing turbidity from cruise ship transit. Ship-caused turbidity could have localized impacts to sanctuary resources in the vicinity of the transit channel. It is unclear if measures to address those impacts could be taken other than reducing the size or frequency of cruise ships entering Key West, which could have measurable economic impacts.

Additionally, the Florida DEP is responsible for reviewing, establishing and revising water quality standards, including turbidity. Pursuant to the Federal Clean Water Act, DEP conducts a comprehensive review of water quality standards every three years. The Water Quality Protection Program (WQPP) may invite additional review, discussion and recommendations about proposed or adopted revisions to water quality standards that impact waters of the Florida Keys.

Comment 12:

NOAA received comments acknowledging that in some cases vessels provide affordable housing options. These commenters were concerned about the use of these vessels as homes, the use of vessels as overnight rentals, and the potential environmental impact of discharge from such vessels if they aren't regulated specifically.

Response:

NOAA acknowledges the reality of vessels serving as affordable housing and that the use of vessels as short-term rentals could potentially cause harm to the environment from discharges from residential uses. However, NOAA already regulates vessel discharges, regardless of the duration of a visit. State waters of the Florida Keys have been designated as a No Discharge Zone since 2002. This designation was extended into Federal waters in 2010, and current sanctuary regulations prohibit the discharge or deposit of any material or other matter into the sanctuary, with limited exceptions. NOAA continues to work with the FKNMS Water Quality Protection Program (WQPP) (established through the FKNMSPA and administered by the U.S. EPA and the State of Florida's DEP in cooperation with NOAA), its partners, and the community to support outreach to vessel owners about sanctuary discharge regulations and options for marine sanitation device pump out. NOAA also continues to support NOAA OLE, FWC, and USCG enforcement efforts related to discharge. See also the comments and responses to Overnight Mooring Buoys.

Temporary Regulation for Emergency and Adaptive Management

Comment 13:

NOAA received comments supporting an expanded time frame for the existing emergency regulation to allow increased responsiveness to emergencies and emerging issues that would benefit from immediate management action. NOAA also received comments expressing concerns that an increased time frame could subvert the public comment process required for rulemaking. Commenters also suggested that the sanctuary consider different time frames for sanctuary-wide versus marine zone-specific emergencies. Finally, NOAA received comments that “emergency” was not clearly defined which raised uncertainty about the drivers that would potentially allow for greater flexibility in modifying zones to address changing resource management needs.

Response:

The final rule includes a new regulatory framework for temporary emergency rules that was developed in response to public comments. The final rule includes an increased time frame for the Temporary Regulation for Emergency and Adaptive Management in order to provide the greatest level of flexibility to NOAA for responding to emergency management needs in the sanctuary. While NOAA's final rule has a maximum time frame (six months with one six-month extension), NOAA will consider shorter time frames where appropriate to meet management needs. In addition, this extended time frame provides sufficient time for NOAA to go through a full rulemaking process if the situation warranted. An increased time frame also aligns with the emergency time frames outlined in section 305(c) of the MSA. This increased time frame is also consistent with other national marine sanctuaries that have emergency regulations.

In addition, the final rule addresses the comments in a number of ways. Specifically:

• To address concerns about subverting the public notice and comment process, NOAA is making clear that the existing APA requirements—to provide for prior notice and opportunity for public comment, unless NOAA can demonstrate good cause apply to these emergency rulemakings;

• To respond to questions regarding what NOAA would consider an emergency, the agency has identified categories for which temporary regulations may be promulgated. NOAA believes it is clearer and more efficient to establish well-defined categories, criteria, and processes for temporary regulations to respond to time-sensitive needs to manage sanctuary resources, rather than attempt to define “emergency;” and

• With respect to concerns raised about application of emergency action in State waters, the final rule explicitly acknowledges that temporary regulations shall be subject to the Governor's review pursuant to section 304(b)(1) of the NMSA.

Historical Resources Permitting

Comment 14:

NOAA received comments supporting updating historical resource permits to align with the State process, noting that historic resources are nonrenewable resources and NOAA has an obligation to manage them as such. Comments specifically acknowledged that aligning NOAA's historical resource permits with Florida's archaeological research permit standards should make the permitting process more efficient for researchers working in the State waters of the sanctuary. Some commenters noted that this alignment would in turn serve to increase protection of FKNMS historical resources.

Response:

NOAA agrees and is updating the historical resource permits for these reasons. The current permitting system is unnecessarily complicated and confusing to applicants as it artificially bisects the archaeological research process into either survey/inventory or research/recovery, often resulting in insufficient research plans to meet project goals. The archaeological research permit category requires that applicants commit to following an explicit statement of objectives and that project methods be chosen to gather the information required to meet the stated objectives. The quality of the research, both proposed and conducted, will be improved by these changes, and the reporting of research results will also be of higher quality when directed by a professional archaeologist with the required education and experience. Finally, the archaeological research permit category with associated application and review criteria will increase the protection of historical resources throughout the sanctuary. These changes support the agency's efforts to meet National Historic Preservation Act (NHPA) responsibilities in combination with the new managem

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