Everglades National Park Special Regulations

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AB10

Everglades National Park Special Regulations

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This final rule revises the special regulations for Everglades

National Park. It enables the park to adopt State fishing regulations

and provides more specific authority to the Superintendent to closely

regulate fishing and boating in the park. The rule prohibits the taking

and possession of any marine life (including lobster or conch species)

other than shrimp, bait or recreational finfish and shellfish species

in the park and redefines ``commercial fishing''. The final rule

enables the NPS to be more responsive in its mission to protect and

conserve public resources and deletes obsolete regulations pertaining

to mining and commercial fishing.

EFFECTIVE DATE: December 15, 1994.

FOR FURTHER INFORMATION CONTACT: Superintendent, Everglades National

Park, 40001 State Road 9336, Homestead, FL 33034. Telephone (305) 242-

7730.

SUPPLEMENTARY INFORMATION:

Background

On December 21, 1992 the National Park Service (NPS) published in

the Federal Register (FR 57 60496) a proposed rule changing the special

regulations for Everglades National Park. The final rule completely

revises the special regulations for the park. The rule achieves

consistency with State fishing rules and allows the park to adopt State

fishing regulations. It more closely regulates the activities of

commercial guide fishing and redefines ``commercial fishing'' to

include the taking of sponges and other non-edible marine life.

The final rule allows the NPS to take a more proactive role in its

mission to protect and conserve natural and cultural resources and

gives the Superintendent more specific authority to regulate fishing

and boating. It prohibits the use of personal watercraft, closes

accessible marine wilderness areas to the use of motorized vessels and

allows for better management of wildlife habitat sites. The rule also

deletes existing obsolete regulations from the Code of Federal

Regulations pertaining to mining and commercial fishing.

American Crocodile

On September 25, 1975, the American crocodile was placed on the

Federal list of endangered species. On February 15, 1980, the NPS

closed the following areas within Everglades National Park to public

entry: Little Madeira Bay, Taylor River, East Creek, Mud Creek, Davis

Creek, Joe Bay, Snag Bay, and all creeks inland from Long Sound to U.S.

Highway 1. Though not so named in the regulations, they became known

collectively as the ``crocodile sanctuary.'' Prior to the complete

closure, the sanctuary had been closed to the public during nesting

season.

Studies done before the closure showed the sanctuary to be the most

active area, the ``core'' of nesting activity by the American

crocodile. Further studies showed that the sanctuary was the most

productive area for hatchlings in the Park. Of the estimated 300-400

crocodiles in south Florida, about 200-300, or as much as 75%, are

found in Everglades National Park. Of the estimated 30 breeding females

within the south Florida population, about 18-20, or roughly two-thirds

are found in Everglades National Park. The U.S. Fish and Wildlife

Service, the lead agency in administration of the Endangered Species

Act, developed a recovery plan for the American crocodile. It lists 60

breeding females in the south Florida population among its criteria for

changing the status of the species from endangered to threatened; the

time frame to reach that level, under present conditions, is 20-30

years.

Given (1) the high percentages of overall numbers and breeding

females within the park, and (2) the high survival rate of hatchlings

in the sanctuary areas, it follows that management actions taken by the

NPS that impact crocodiles within the park, particularly the sanctuary,

will significantly affect the species as a whole.

A NPS study entitled ``A Draft Assessment of Recreational Boating

and its Potential Impact on Resources Within the Crocodile Sanctuary of

Everglades National Park'' (1992), proposed a plan whereby the

crocodile sanctuary could be opened to varying degrees to public

access. The study concluded the sanctuary could be opened under a

specific set of criteria, including the establishment of ``no wake''

zones for the protection of young crocodiles, regulatory signing,

monitoring of population numbers and condition in the sanctuary,

increased law enforcement patrols to protect the animals and maintain

``no wake'' areas, controlled regular trimming of opened creek areas,

and development of a schedule for opening and closing parts of the

sanctuary, relative to breeding, nesting and hatching activity.

The U.S. Fish and Wildlife Service, in an informal consultation,

concluded the sanctuary could be opened without endangering the

American crocodile, provided the NPS implemented and enforced the

protective measures outlined in the assessment.

On September 15, 1993, a paper entitled ``Deterioration of the

Florida Bay Ecosystem: An Evaluation of the Scientific Evidence,'' was

published. It included a summary of the manifestations of

deterioration, such as seagrass and mangrove die-offs, algal blooms,

increased salinity in the bay, reduction of bird and fish populations,

and changes in American crocodile nesting patterns. The consensus of

the six scientists on the evaluation panel is that the deterioration

process is complex and its mechanics are not yet understood. They

cautioned against making major policy and management decisions with the

inadequate amount of existing information available.

Based on available information and comment, the areas colloquially

known as the ``crocodile sanctuary'' will remain closed for the

following reasons:

1. Funding to support enforcement of seasonal closures and no-wake

zones, regular patrols, adequate resource management monitoring,

installation and maintenance of signs and trimming of vegetation along

opened creeks in the sanctuary areas, which are criteria necessary for

protection of the American crocodile is not available.

2. Aerial manatee surveys done in 1980/81 showed no animals in the

sanctuary area. Recently, they have been shown to be using the closed

area for activities sensitive to disturbance, such as calving. The

significance of the new activity relative to the status of the

endangered manatee has not yet been determined.

3. The closed areas, in their present state, contribute

significantly to the recovery of the American crocodile. Because part

of the recovery plan is to attain 60 reproducing females, any area that

supports a vital hatchery should be protected.

Saltwater Fisheries

Pursuant to Chapter 80-162, Laws of Florida, a Saltwater Fisheries

Study and Advisory Council was appointed by the Governor to recommend

to the State Legislature a comprehensive saltwater fishery conservation

and management policy. In keeping with this charge, the Council holds

public hearings and drafts rules to govern fishing activities within

the fisheries of the State of Florida. To date, rules have promulgated

setting seasons, size limits, and bag limits for various species of

saltwater game fish.

However, there is concern among fishermen, the park, and the State

over the apparent conflict of bag limits set by the Council and those

prescribed in the existing regulations which limits possession to ten

(10) fish of one species, excluding bait fish, and a total of no more

than twenty (20) fish of all species. Specifically, in the cases of

such popular and stressed species as snook, tarpon, red drum, bonefish,

grouper, snapper, and tarpon, the State of Florida has acted, based on

professional fisheries management principles, to restrict possession of

these species to limits far lower than the park's ten fish per species

limit. The National Park Service does not wish to retain unmodified, a

regulation that conflicts with such State regulatory actions, and fails

to provide appropriate protection to species under great fishing

pressure.

Everglades National Park has been closed to personal watercraft

through 36 CFR 1.5(a)(1) (Closures and Public Use Limits) for a number

of years. The purpose for which the park was established, to protect a

unique natural system, made activities such as water skiing and use of

personal watercraft incompatible with preserving wilderness qualities

such as serenity. Because the closure to personal watercraft will

become permanent with this rulemaking, the closure will now become a

part of Sec. 7.45.

Mining

The NPS has revised the special regulations of the park in order

to, among other things, delete obsolete mining rules found in the

special regulations for Everglades National Park.

Provisions of the acts of October 10, 1949 (63 Stat. 733), and July

2, 1958 (72 Stat. 280), which will be referred to as ``the acts of 1949

and 1958'', allowed mineral owners within Everglades National Park to

explore for and develop their mineral properties until October 9, 1967.

The acts of 1949 and 1958 also provided that if any production of oil

or gas occurred during that period, the right to explore and develop

would be extended for all mineral owners for the life of such

production. At least four exploratory oil and gas wells were drilled

during this period, but no discovery was made and no production

occurred.

Therefore, the provision allowing these activities expired on

October 9, 1967. The acts of 1949 and 1958 also provided that former

mineral owners were entitled to customary royalties from any production

of their former mineral properties should the Federal government so

authorize anytime before January 1, 1965. The Federal government made

no authorizations.

The National Park Service adopted special regulations found in 36

CFR 7.45(a) ``to govern the exploration, development, extraction, and

removal of oil, gas, and other minerals on lands acquired for

Everglades National Park.'' The suspense dates authorized by the acts

of 1949 and 1958 for former mineral owners to explore or develop their

properties or to benefit from any production by the Federal government

have passed.

Through the Everglades National Park Protection and Expansion Act

of 1989, (Pub.L. 101-229) approximately 107,400 acres, known as ``East

Everglades'' was included inside the park. The tract is a mosaic of

park-owned and private land. Because of the still formative stage of

the addition and language contained within the Act, regulations

relating to off-road conveyances fall outside the scope of these

special regulation changes, and will be deferred until a later date.

Summary of Comments

The National Park Service has carefully considered all comments

received and in some cases, adopted suggestions made. In addition, a

critical review of the content and format of the proposed regulations

was done; they were edited and reorganized as a result, but significant

changes in substance did not occur.

Those comments and reasons for accepting or rejecting them, and the

changes are included below.

The Service received one comment regarding the change in the

definition, under Sec. 7.45(c)(6), ``guide fisherman.'' The respondent

was concerned because of the deletion of ``interpretation of natural

resources;'' his main activity was interpretive trips as opposed to

fishing services. The proposed definition will stand, as the guide

fisherman permit system is designed to regulate fishing activity at

Everglades National Park. Commercial interpretive services, i.e.,

tours, will be regulated through the concessions management program.

Kawasaki Motors Corporation, U.S.A. commented on the definition of

``personal watercraft,'' objecting to the phrase ``thrill craft.'' The

Service agrees, and the definition has been rewritten. Definitions used

by the personal watercraft industry and the States of Texas and Florida

were incorporated. Industry trade names, which are used colloquially to

describe personal watercraft, were added to give focus to the

definition.

One comment was received regarding the definition of ``ornamental

tropical fish'' (Sec. 7.45(d)(10)), pointing out the limitations of the

definition. The definition and reference were eliminated. It was meant

to separate sport fishing from the action of collection of tropical

fish, a much different activity, but failed to include a comprehensive

listing of all tropical species in Everglades National Park. The phrase

``and live in close relationship with coral communities'' did not

reflect habitat in Everglades National Park, where tropical fish live

in association with seagrass, mangroves and sponges. The revision of

fishing restrictions, Sec. 7.45(d) (1) and (2), eliminates the need to

define and control the taking of tropical fish in this special

regulation.

Three comments were received from guide fishermen on proposed

Sec. 7.45(e)(12)(iii) during the comment period; one opposed and two

favored the change. The new regulation would have restricted the number

of fish aboard guide boats to the bag limit per person multiplied by

the number of customers on board, meaning each fish caught by a fish

guide would reduce the bag limit for his clients by one fish. One

newspaper article was written about the proposed change. Four other

verbal comments, two in favor and two against, were received outside

the comment period. One respondent wrote that fish guides who did

business from inside the park did not have the same opportunity as

guides who were based outside the boundary to catch fish for personal

consumption. The written and verbal comments in favor were simply

expressions of support for the rule. The newspaper article cited

vulnerability of sea trout as habitat shrank and the need to protect

population numbers as a reason for the restriction of bag limits on

guide fishing boats. The final rule has been changed to include bag

limits under Sec. 7.45(d) (1) and (2) which apply to guide fishermen.

These limits will be reviewed and changed annually as needed. Section

7.45(e)(12)(iii), is therefore, eliminated from the final rule.

In 1989, the public became aware the NPS was considering opening

the crocodile sanctuary. Everglades received written comments from 11/

89 through 1/90 that supported returning to conditions before the 1980

closure, i.e., closure of the sanctuary only during the crocodile

nesting season. Fifteen people wrote to comment in favor of opening the

sanctuary. Four people specifically mentioned closing the area during

nesting season. Three of the four commented that ``recent studies'' had

shown no reason to maintain a complete closure.

Ten of the fifteen writers asked the area be opened for fishing and

sightseeing. Reasons given for opening the area were as follows: eight

people wanted it opened so they could use the area, one person asked it

be opened, giving no reason; and one person asked it be opened because

it was more convenient than other areas he fished.

In addition to letters, there were two petitions signed by a total

of 194 people. The petitions asked ``to see the closed creeks and lakes

of Northeast Florida Bay opened for fishing and sightseeing, as they

once were.''

``A Draft Assessment of Recreational Boating and its Potential

Impact on Resources Within the Crocodile Sanctuary of Everglades

National Park'' was released for public comment in 1992 and generated

extensive written comments. Twenty-five private individuals and ten

representatives from State and Federal Agencies and academic

institutions sent comments. A list of those agencies and institutions

who commented are listed below:

National Park Service

National Oceanographic and Atmospheric Administration (NOAA)

U.S. Fish and Wildlife Service (FWS)

Florida Freshwater Fish and Game Commission

Florida Department of Natural Resources

Cooperative Fish and Wildlife Research Unit, University of Florida

Department of Biological Sciences, Public University at Miami

Department of Natural Resources, Dade County, Florida

Sixteen private individuals mentioned only the Taylor River area

asking it be opened to the public. Eleven of them gave the remoteness

of the area as a reason for opening it, ten saying the fishing pressure

there would be ``minimal.'' The remaining five asked to be able to fish

there.

The remaining nine letters asked to open the sanctuary area. Five

of the nine commented the area had been closed too long, one asked the

area be opened on a one-year trial basis, one felt the crocodile was no

longer endangered, one said Everglades National Park should be opened

to fishing instead of closed as it is now, and one asked merely for the

seasonal opening plan.

Comment from public agencies fell into three basic categories. The

FWS and NOAA supported the assessment as it was written. The Florida

Freshwater Fish and Game Commission supported the plan, with the

following modifications: (1) Increase the length of the seasonal

closure by two weeks, beginning in February instead of March; (2)

Correct a comment relating to crocodile habituation to human presence;

(3) List prohibited recreational activities in the sanctuary areas; (4)

Restrict use of the areas to daylight only; (5) Expand monitoring

before and after open periods.

The remaining agencies took the position that the assessment did

not include sufficient scientific information to justify opening the

sanctuary area. The Florida DNR was concerned about the effect of the

opening on manatees; they asked for a delay in implementation until a

manatee protection plan was completed. The two universities expressed

the feeling that protection of the sanctuary was critical to recovery

of the species; they voiced concern that opening the area would have

unacceptable impact on the crocodile recovery. The remaining agency

comments recommended more detailed study before opening the area was

considered. The lack of research in relation to the impact of human

intrusion on crocodile reproduction was cited in two of the responses.

Seven of the comments asked for a more conservative approach with

respect to opening the sanctuary area.

Two written comments were received regarding the proposal to

substitute existing Sec. 7.45(g), relating to the specific closure of

the area known as the ``crocodile sanctuary,'' with a broader authority

in proposed Sec. 7.45(e)(1), which would allow for the opening or

closing of areas in the park as needed. One was from an NPS employee

and one from a local organized fishing guide association. One NPS

employee questioned the need to place any closure statute in Sec. 7.45,

as he felt it was adequately covered by 1.5. The fish guide association

made a general statement about the need to close certain critical

areas, and asked for the opportunity to express their feelings about

any proposed closures. The writer also commented that the proposed

special regulations were ``important steps in a continued march toward

conservation and preservation of Park resources and improved fisheries

management.''

The closed areas for ``saltwater fisheries'' will remain closed

under the authority found at 36 CFR 1.5, for the following reasons:

1. Flexibility: The closure will be reviewed on an annual basis, in

order to be more responsive to technical information from the

scientific community. Although the same scientific criteria must be met

whether the closure is authorized under 36 CFR 1.5 or 36 CFR 7.45, it

will be easier to manage small individual closure areas without

affecting the status of the entire closure. Any areas that are opened

will be subject to full compliance scrutiny by FWS as well as the

research center at Everglades National Park. For example, with proper

research and documentation, one section of the area may be opened to

public access, while another area discovered critical to crocodile

survival may be closed.

2. Changing conditions: The present sanctuary area is a fixed

physical area, which may not always contain the critical reproductive

areas of the crocodile population. Under Sec. 1.5, it will be easier to

adjust the closed areas as the focus of the high success population

changed.

3. Uniformity: Protection of any endangered species, while

dependent on the unique characteristics of the individual species, is

managed under uniform resources management policies and principles. The

NPS goal is to provide the maximum level of protection for all species

within Everglades National park; one of those species is the American

crocodile. Any other future area closures for benefit of the crocodile

should be perceived as equally important to the recovery of the

species, and as having received the same high level of consideration as

those presently closed. The term ``sanctuary'' implies a high level of

protection; anything that is closed but not called a sanctuary may be

thought to have less priority or importance with respect to protection

efforts.

One comment was received asking if Sec. 7.45(e)(7) allowed boats up

to, but including 6 horsepower. The rule reads that boats with motors

up to and including 6 horsepower are allowed under the specified

conditions.

One comment was received from Kawasaki Motors Corporation, U.S.

regarding proposed prohibition of personal watercraft in Everglades

National Park. The company's position: Exclusion of personal watercraft

from the park is discriminatory and ``arbitrary, capricious, and

without basis in fact.'' They put forth three main arguments:

(1) U.S. Coast Guard regulations classify personal watercraft as

Class A motorboats, along with all other motorized vessels fitting the

criteria, the NPS adopts Coast Guard regulations, which must be

complementary to and not in derogation of U.S. Guard regulations,

therefore NPS regulation (exclusion) of personal watercraft apart from

other Class A motorboats is not legal;

(2) ``Although reasons exist for excluding all motorized vessels

from areas of emergency vegetation and areas frequented by feeding

birds, no such justification has been or could be provided for

prohibiting personal watercraft in areas where other Class A motorboats

are permitted;''

(3) There have been no studies that specifically deal with the

impact of personal watercraft on natural areas, as differentiated from

other motorized vessels.

Section 1a-2(h) of 16 United States Code gives the NPS authority to

regulate boating activity within areas of the National Park System,

``including areas subject to the jurisdiction of the United States.''

It goes on the say, however, ``That any regulations adopted * * * shall

be complementary to and not in derogation of the authority of the U.S.

Coast Guard to regulate the use of waters subject to the jurisdiction

of the United States.''

Interpretation of that section is included under the Legislative

History (Pub.L. 95-458) House Report No. 94-1569, September 16, 1976,

pages 4290 through 4311. The background section of the history says

``Secretary (of the interior) is specifically authorized to promulgate

and enforce regulations concerning boating * * *'' It is further

interpreted by the Department of the Interior, Office of the Secretary,

pg. 4299, to mean ``such regulations would be promulgated for the

purposes of * * * protecting the natural, wildlife, cultural and

historical resources.''

The U.S. Coast Guard, while objecting to the exact wording of the

statute, agreed with the principle: ``This Department (Transportation)

has no objection to the Secretary of the Interior promulgating

regulations relating to operational matters on waters within areas of

the National Park System.'' The Department of Transportation went on to

say that it was concerned about conflicting regulations in certain

areas. To clarify that position, they suggested the following text,

based on their interpretation of the U.S. Coast Guard mission:

``Promulgate and enforce regulations concerning boating operations and

other activities on or relating to waters located within areas of the

National Park System * * * Provided that any regulations concerning (1)

boat design, safety and numbering, (2) vessel documentation and

inspection, and (3) Rules for the Prevention of Collisions shall be

promulgated under this subsection (read 16 USC 1-2a(h)) only with the

concurrence of the Secretary (of Transportation) * * *'' The exclusion

of a type of vessel or activity, then, does not fall under an area for

which the U.S. Coast Guard reserves judgement, but for which the

Department of Interior says is necessary for `` * * * protecting the

natural, wildlife * * * resources.'' The argument of legality is not

applicable in this case.

The 1934 Act of Congress that created Everglades National Park

directs: ``The said area or areas shall be permanently preserved as

wilderness, and no development of the project (park) or plan for the

entertainment of the visitors shall be undertaken which will interfere

with the preservation intact of the unique flora and fauna and the

essential primitive natural conditions now prevailing in this area.''

(16 U.S.C. 410c.) The park's significance is reinforced by designation

from the United Nations Education, Scientific and Cultural Organization

(UNESCO) as an International Biosphere Reserve. Further, it possesses

such ``outstanding universal value as part of the world's natural

heritage'' that it carries the status of a World Heritage Site. Under

the World Heritage Convention, the United States Government has treaty

obligations to take necessary actions to protect the park. In December,

1993, the Convention added Everglades National Park to its list of

endangered areas.

The NPS publication ``Management Policies'' (1988) states: ``All

proposals for parks uses will be evaluated in terms of their

consistency with all applicable legislation * * * as well as their

actual and potential effects on park values, purposes and resources''

(Chapter 8:1). A NPS study titled ``A Review of Personal Watercraft and

their Potential Impact on the Natural Resources of Everglades National

Park'' found potential negative impact on the park by personal

watercraft.

In addition, the management plan for the Great White Heron and Key

Deer National Wildlife Refuges contains information based on five

years' observation of personal watercraft activity in those areas by a

Fish and Wildlife Service biologist. He observed differences in the

behavior and use of personal watercraft, as opposed to other

motorboats: They tended to travel in groups of 2-5 vessels, and

occasionally 15 or more; they travel at high speed, make repeated

circuits in a concentrated area; and make repeated circles, in shallow

water, around small islands. In one case, a personal watercraft ran

circuits near an osprey nest for one hour, chasing the bird away from

its nest and eggs 11 times.

``Management Policies'' further states: ``The National Park Service

will encourage recreational activities * * * that are also consistent

with the protection of the resources, and that are compatible with

other visitor uses'' (Chapter 8:2). It goes on to say: ``* * * because

of differences in individual park enabling legislation and resources

and differences in the missions of the National Park Service and other

federal agencies, an activity that is entirely appropriate when

conducted in one location may be inappropriate if conducted in

another'' (Chapter 8:2-3). That is, the use of a personal watercraft in

a recreation area that, as one of its primary missions, provides a

water environment to support a wide variety of water oriented

recreational activity, may be appropriate under its enabling

legislation and management policies. Conversely, Everglades National

Park, with its mission to conserve a distinctive natural ecosystem, has

a different focus. Appropriate recreation and visitor use must be

consistent with the purpose for which the park exists. For example,

most keys in the Florida Bay area of the park are closed to public

entry, for the protection of animal and plant life. Visitor enjoyment

of personal watercraft is dependent on the presence or absence of

suitable water resources, which may be found in a great variety of

locations. The realization of the Service's goal to provide for

recreational use of a natural area balanced against the preservation of

the combination of tangible and intangible features that constitute

Everglades National Park is best served with the exclusion of personal

watercraft.

Modification of the Proposed Regulations

The definition of ``commercial fishing,'' proposed Sec. 7.45(d)(3)

and renumbered Sec. 7.45(c)(3), is revised to include freshwater

species, because the park contains a significant freshwater aquatic

resource used by visitors.

The definition of ``hovercraft,'' Sec. 7.45(d)(6) is eliminated, as

36 CFR 1.4 includes a definition of hovercraft under ``aircraft.''

The definitions for ``mullet,'' ``shrimp'' and ``spiny lobster''

are eliminated from proposed Sec. 7.45(d) (Definitions), and will be

covered under 36 CFR 1.5 as set forth in Sec. 7.45(d)(2) (Fishing).

Proposed Sec. 7.45(e) was renumbered Sec. 7.45(d) (Fishing) and

rewritten to allow, as in most State fisheries management systems,

annual review of fishing restrictions. The change more clearly realizes

the intent and effect of the proposed rule, which is to permit the park

to closely conform to State law. This includes yearly changes, as much

as possible, but also reflects current NPS natural resources management

mandates, which may require some fishing restrictions to be stricter

than state law, in order to address specific threats to the Everglades

National Park biological system. The change eliminates proposed

Sec. 7.45(e)(12) (Fishing), because the finalized regulation found at

Sec. 7.45(d) (Fishing) includes bag limits.

Section 2.3(d)(4) prohibits commercial fishing unless authorized by

statute. With the adoption of this final rule, all regulations relating

to commercial fishing within Everglades National Park are eliminated.

Therefore, commercial fishing references have been eliminated because

they are unnecessary.

Proposed Sec. 7.45(e)(6) (Fishing) and Sec. 7.45(e)(9) (Fishing)

are eliminated, as Sec. 7.45(d)(2) (Fishing) addresses bag limits and

species that may be taken. At present, the State of Florida, for health

reasons, has closed most of the waters of the park to the taking of

oysters. The Superintendent used discretionary authority found at 1.5

for a closure to oyster fishing until the state classifies park waters

or parts thereof as ``approved'' for oysters. Without the modification,

it may appear Sec. 7.45 allows taking oysters, while discretionary

authority invoked under 1.5 prohibits it. As changed, the final rule

may allow the taking of oysters at a future time, subject to current

restrictions. It also allows for changing the status of finfish, shrimp

and bait species when the need for protection changes.

Proposed Sec. 7.45(e)(13) (Fishing) is renumbered as

Sec. 7.45(d)(8) (Fishing) and revised by deleting the sentences ``All

fish which do not meet size or species * * *'' and ``The intentional

disturbing * * *'' These sentences merely duplicate the intent of

2.3(d)(7). Proposed Sec. 7.45(e)(14) (Fishing), renumbered as

Sec. 7.45(d)(7) (Fishing) is revised for clarity, and to allow for the

possibility that other fish cleaning facilities may be developed within

the park.

Proposed Sec. 7.45(e)(15) (Fishing) has been edited and renumbered

as Sec. 7.45(d)(8) (Fishing).

Proposed Sec. 7.45(f)(4) (Boating) is amended as Sec. 7.45(e)(5)

(Boating) to identify the Act of Congress, Pub. L. 95-625, as the

authority for the creation of the wilderness area cited. When written

in the proposed rule, it appeared that Sec. 7.45 itself was

establishing the named areas as wilderness, as evidenced by the phrase

``the following coastal areas are designated wilderness.''

Proposed Sec. 7.45(f)(6) (Boating) is edited and renumbered as

Sec. 7.45(e)(7) (Boating).

Proposed Sec. 7.45(f)(7) (Boating) is edited and renumbered as

Sec. 7.45(e)(2) (Boating).

Proposed Sec. 7.45(f)(8) (Boating) is eliminated as redundant.

Proposed Sec. 7.45(f)(10) (Boating), prohibition of hovercraft, is

deleted in the final rule, because 36 CFR 2.18(e) already addresses

that issue.

New Sec. 7.45(f) (Violations) is added as a general statement that

covers all provisions of Sec. 7.45, consolidating a number of ``* * *

is prohibited'' statements.

Drafting Information

The following persons participate in the writing of the final rule:

Mark Lewis, Gulf Island National Seashore (formerly of Everglades

National Park), and Larry Belli, Elaine Hall, Reed Detring and Philip

A. Selleck, Everglades National Park.

Paperwork Reduction Act

The information collection requirements contained in the rule have

been approved by the Office of Management and Budget under 44 U.S.C.

3501 et seq. and assigned clearance #1024-0026.

Compliance with Other Laws

This rule was not subject to office of Management and Budget review

under Executive Order 12866. The Service has determined that this rule

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.). This conclusion is based on the fact that the deletion of

obsolete and duplicate regulations will have no economic effect. The

fishing regulation changes would be minimal, with no negative impact on

fishing related industries adjacent to Everglades National Park. Lower

bag limits will improve the available stock in park waters, and

consistency with State rules will avoid confusion among visitor fishing

in park waters.

The Service has determined that this rulemaking will not have a

significant effect on the quality of the human environment, health and

safety. In accordance with the procedural requirements of the National

Environment Policy Act (NEPA) and the Departmental regulations 516 DM

6, a categorical exclusion has been granted.

This rulemaking does affect public access to habitat of the

American crocodile, an endangered species. Pursuant to Section 7

requirements of the Endangered Species Act, the National Park Service

has consulted with the U.S. Fish and Wildlife Service regarding the

proposed changes in the crocodile sanctuary. The U.S. Fish and Wildlife

Service has concurred with these proposals.

List of Subjects in 36 CFR Part 7

National parks; Reporting and record-keeping requirements.

For the reasons set out in the preamble, Title 36, Chapter I, 7.45

of the Code of Federal Regulations is revised to read as follows:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

1. The authority citation for Part 7 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a 462(k).

2. Section 7.45 is revised as follows:

Sec. 7.45 Everglades National Park.

(a) Information collection. The information collection requirements

contained in this section have been approved by the Office of

Management and Budget under 44 U.S.C. 3501 et.seq., and assigned

clearance number 1024-0026. This information is being collected to

solicit information necessary for the Superintendent to issue permits

used to grant administrative benefits. The obligation to respond is

required in order to obtain a benefit.

(b) Prohibited conveyances. Only hand-propelled vessels may be

operated upon those areas of emergency vegetation commonly called

marshes, wetlands, or ``the glades.'' Operation of a motorized vessel

in such areas is prohibited.

(c) Definitions. The following definitions shall apply to this

section:

(1) Ballyhoo means a member of the genus Hemiramphus (family:

Exocoetidae).

(2) Cast net means a type of circular falling net, weighted on its

periphery, which is thrown and retrieved by hand.

(3) Commercial fishing means the activity of taking or harvesting,

or attempting to take or harvest any edible or non-edible form of fresh

or salt water aquatic life for the purpose of sale or barter.

(4) Dipnet means a hand-held device for obtaining bait, the netting

of which is fastened in a frame.

(5) Guide fishing means the activity, of a person, partnership,

firm, corporation, or other commercial entity to provide fishing

services, for hire, to visitors of the park.

(6) Minnow means a fish used for bait from the family

Cyprinodointidae, Poeciliidae, or Atherinidae.

(7) Mojarra or ``goats'' means a member of the family Gerreidae.

(8) Oyster means a mollusk of the suborder Ostraeaccea.

(9) Personal watercraft means a vessel powered by an outboard

motor, water-jet or an enclosed propeller or impeller system, where

persons ride standing, sitting or kneeling primarily on or behind the

vessel, as opposed to standing or sitting inside; these craft are

sometimes referred to by, but not limited to, such terms as ``wave

runner,'' ``jet ski,'' ``wet bike,'' or ``Sea-doo.''

(10) Pilchard means a member of the herring family (Clupeidae),

generally used for bait.

(11) Pinfish means a member of the genus Lagodon (family:

Spiradae).

(d) Fishing. (1) Fishing restrictions, based on management

objectives described in the park's Resources Management Plan, are

established annually by the Superintendent.

(2) The Superintendent may impose closures and establish conditions

or restrictions, in accordance with procedures found at Secs. 1.5 and

1.7 of this chapter, on any activity pertaining to fishing, including,

but not limited to species of fish that may be taken, seasons and hours

during which fishing may take place, methods of taking, and size, creel

and possession limits.

(3) The following waters are closed to fishing:

(i) All waters of T. 58 S., R. 37 E., sections 10 through 15,

inclusive, measured from Tallahassee meridian and base, in the vicinity

of Royal Palm Visitor Center, except Hole in the Donut or Hidden Lake,

and Pine Island Lake.

(ii) All waters in T.54 S., R. 36 E., sections 19, 30, and 31, and

in T. 55 S., R. 36 E., sections 6, 7, 18, 19, and 30, measured from

Tallahassee meridian and base, in the vicinity of Shark Valley Loop

Road from Tamiami Trail south.

(4) A person engaged in guide fishing must possess a guide fishing

permit issued by the Superintendent and administered under the terms of

Sec. 1.6 of this chapter. Guide fishing without a valid permit is

prohibited.

(5) Except for taking finfish, shrimp, bait, crabs, and oysters, as

provided in this section or as modified under 36 CFR 1.5, the taking,

possession, or disturbance of any fresh or saltwater aquatic life is

prohibited.

(6) Methods of taking. Except as provided in this section, only a

closely attended hook and line may be used for fishing activities

within the park.

(i) Crabbing for stone or blue crabs may be conducted using

attended gear only and no more than five (5) traps per person. Persons

using traps must remain within one hundred (100) feet of those traps.

Unattended gear or use of more than five (5) traps per person is

prohibited.

(ii) Shrimp, mullet, and bait fish (minnows, pilchards, pinfish,

mojarras, ballyhoo or bait mullet (less than eight (8) inches in total

length) may be taken with hook and line, dipnet (not exceeding 3 feet

at its widest point) or cast net, for use as bait or personal

consumption.

(iii) A dipnet or cast net may not be dragged, trawled, or held

suspended in the water.

(7) Tagging, marking, fin clipping, mutilation or other disturbance

to a caught fish, prior to release is prohibited without written

authorization from the Superintendent.

(8) Fish may not be fileted while in the park, except that:

(i) Up to four (4) filets per person may be produced for immediate

cooking and consumption at designated campsites or on board vessels

equipped with cooking facilities.

(ii) Fish may be fileted while at the designated park fish cleaning

facilities, before transportation to their final destination.

(9) Nets and gear that are legal to use in State waters, and fish

and other edible or non-edible sea life that are legally acquired in

State waters but are illegal to possess in the waters of Everglades

National Park may be transported through the park only over Indian Key

Pass, Sand Fly Pass, Rabbit Key Pass, Chokoloskee Pass and across

Chokoloskee Bay, along the most direct route to or from Everglades

City, Chokoloskee Island or Fakahatchee Bay.

(i) Boats traveling through these passages with such nets, gear,

fish, or other edible products of the sea must remain in transit unless

disabled or weather and sea conditions combine to make safe passage

impossible, at which time the boats may be anchored to await assistance

or better conditions.

(e) Boating. (1) The Superintendent may close an area to all

motorized vessels, or vessels with motors greater than a specified

horsepower, or impose other restrictions as necessary, in accordance

with Secs. 1.5 and 1.7 of this chapter.

(2) For purposes of this section, a vessel in which the motor(s) is

(are) removed from the gunnels or transom and stored to be inoperable,

is considered to be not motorized.

(3) The following areas are closed to all vessels:

(i) T. 54 S., R. 36 E., sections 19, 30, 31; T. 55 S., R. 36 E.,

sections 6, 7, 18, 19, and 30, bordering the Shark Valley Loop Road

from the Tamiami Trail south.

(ii) Eco Pond, Mrazek Pond, Royal Palm Ponds except for Hidden

Lake, Parachute Key ponds north of the Main Park Road, and Lake

Chekika.

(4) The following inland fresh water areas are closed to the use of

motorized vessels: Coot Bay Pond, Nine Mile Pond, Paurotis Pond,

Sweetbay Pond, Big Ficus Pond, Sisal Pond, Pine Glade Lake, Long Pine

Key Lake, Tower Lake, Hidden Lake, Pine Island, and L-67 canal.

(5) The following coastal waters, designated by statute as

wilderness (Pub. L. 95-625), are closed to the use of motorized

vessels: Mud, Bear, East Fox, Middle Fox, Little Fox, and Gator Lakes;

Homestead Canal; all associated small lakes on Cape Sable inland from

Lake Ingraham; Cuthbert, Henry, Little Henry, Seven Palm, Middle,

Monroe, Long, and the Lungs Lakes; Alligator Creek from the shoreline

of Garfield Bight to West Lake; all inland creeks and lakes north of

Long Sound, Joe Bay, and Little Madeira Bay except those ponds and

lakes associated with Taylor River.

(6) Except to effect a rescue, or unless otherwise officially

authorized, no person shall land on keys of Florida Bay except those

marked by signs denoting the area open, or on the mainland shorelines

from Terrapin Point eastward to U.S. Highway 1, including the shores of

all inland bays and waters and those shorelines contiguous with Long

Sound, Little Blackwater Sound, and Blackwater Sound.

(7) West Lake Pond and West Lake shall be closed to all vessels

when they are being used by feeding birds. At all other times, these

areas shall be open only to hand-propelled vessels or Class A

motorboats powered by motors not to exceed 6 horsepower.

(8) Launching, and or operating a personal watercraft is prohibited

in the park.

(9) Vessels used as living quarters shall not remain in or be

operated in the waters of the Park for more than 14 days without a

permit issued by the Superintendent. Said permit will prescribe

anchorage location, length of stay, sanitary requirements and such

other conditions as considered necessary.

(f) Violation of any of the provisions of Sec. 7.45 is prohibited.

Dated: September 8, 1994.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 94-28071 Filed 11-14-94; 8:45 am]

BILLING CODE 4310-70-P