Florida Keys National Marine Sanctuary Final Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Parts 922, 929, and 937

[Docket No. 9607292-6192-03]

RIN 0648-AD85

Florida Keys National Marine Sanctuary Final Regulations

AGENCY: Office of Ocean and Coastal Resource Management (OCRM),

National Ocean Service (NOS), National Oceanic and Atmospheric

Administration (NOAA), Department of Commerce.

ACTION: Notice of effective date; modifications to final rule.

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SUMMARY: Pursuant to the Florida Keys National Marine Sanctuary and

Protection Act and the National Marine Sanctuaries Act, NOAA developed

the comprehensive final management plan for the Florida Keys National

Marine Sanctuary (FKNMS or the Sanctuary). NOAA issued final

regulations on January 30, 1997, to implement that plan and govern the

conduct of activities within the Sanctuary. Congress and the Governor

of the State of Florida (Governor) had forty-five days of continuous

session of Congress beginning on the day on which the final regulations

were published to review those regulations and management plan. After

the forty-five day review period, the regulations would become final

and take effect, except that any term or terms of the regulations or

management plan the Governor certified to the Secretary of Commerce as

unacceptable would not take effect in the area of the Sanctuary lying

within the seaward boundary of the State.

During the forty-five day review period the Governor submitted to

the Secretary of Commerce a certification that implementation of the

management plan and certain regulations were unacceptable unless

specific amendments were made to the regulations. In response to the

Governor's certification, NOAA amended those regulations certified as

unacceptable to incorporate the Governor's changes. Consequently, upon

their effective date the regulations, as modified by this notice, and

management plan, in their entirety, will apply throughout the

Sanctuary, including within State waters of the Sanctuary.

This notice amends the regulations published in the January 30,

1997, Federal Register, in response to the Governor's certification,

and announces the effective date of the regulations.

EFFECTIVE DATE: The final rule published on January 30, 1997, at 62 FR

4578 and the revision of 15 CFR part 922, subpart P in this document

are effective July 1, 1997.

ADDRESSES: Requests for a copy of the FMP/EIS, the Final Regulatory

Flexibility Analysis, or the Federalism Assessment should be submitted

to the Sanctuary Superintendent, Florida Keys National Marine

Sanctuary, P.O. Box 500368, Marathon, Florida 33050.

FOR FURTHER INFORMATION CONTACT: Billy Causey, Sanctuary

Superintendent, 305/743-2437 or Edward Lindelof, East Coast Branch

Chief, Sanctuaries and Reserves Division, 301/713-3137 Extension 131.

SUPPLEMENTARY INFORMATION:

I. Introduction

The FKNMS was designated by an act of Congress entitled the Florida

Keys National Marine Sanctuary and Protection Act (FKNMSPA, Pub.L. 101-

605) which was signed into law on November 16, 1990. The FKNMSPA

directed the Secretary of Commerce to develop a comprehensive

management plan and regulations for the Sanctuary pursuant to sections

303 and 304 of the National Marine Sanctuaries Act (NMSA) (also known

as Title III of the Marine Protection, Research, and Sanctuaries Act of

1972), as amended, 16 U.S.C. 1431 et seq. The NMSA authorizes the

development of management plans and regulations for national marine

sanctuaries to protect their conservation, recreational, ecological,

historical, research, educational, or aesthetic qualities.

The authority of the Secretary to designate national marine

sanctuaries and implement designated sanctuaries was delegated to the

Under Secretary of Commerce for Oceans and Atmosphere by the Department

of Commerce, Organization Order 10-15, Sec. 3.01(z) (Jan. 11, 1988).

The authority to administer the other provisions of the NMSA was

delegated to the Assistant Administrator for Ocean Services and Coastal

Zone Management of NOAA by NOAA Circular 83-38, Directive 05-50 (Sept.

21, 1983, as amended).

II. Forty-Five Day Review Period Under the National Marine

Sanctuaries Act

NOAA published the final Sanctuary regulations on January 30, 1997,

(62 FR 4578) to implement the management plan and govern the conduct of

activities within the Sanctuary. Under the NMSA, Congress and the

Governor had forty-five days of continuous session of Congress

beginning on the day on which the final regulations were published to

review the terms of designation (i.e., management plan and

regulations). After forty-five days, the regulations would become final

and take effect, except that any term or terms the Governor certified

within the forty-five day period to the Secretary of Commerce as

unacceptable would not take effect in the area of the Sanctuary lying

within the seaward boundary of the State. Congress could also act on

the terms of designation. The following discusses the Governor and

Congress' actions during the forty-five day period and corresponding

modifications to the final regulations made by NOAA in response to

those actions.

Certification by the Governor of Florida

On March 20, 1997, during the forty-five day review period under

the NMSA, the Governor of the State of Florida certified by letter to

the Secretary of Commerce that implementation of the management plan

and certain regulations were unacceptable in State waters. However, the

management plan and regulations certified as unacceptable would be

acceptable if NOAA amended the regulations and the Co-Trustees

Agreement for Cooperative Management (Co-Trustees Agreement), contained

in the management plan, as requested in the Governor's certification

letter. NOAA has amended the regulations and the Co-Trustees Agreement

to incorporate the modifications requested by the Governor in his

letter. By doing so, the regulations and management plan, as modified,

are accepted by the Governor and, therefore, will apply within State

waters of the Sanctuary upon the effective date of these regulations.

The following is the text of the March 20, 1997, letter from the

Governor of Florida to the Secretary of Commerce. Per the Governor's

request, the letter is followed by the text of the Resolution passed by

the Board of Trustees of the Internal Improvement Trust Fund of the

State of Florida (Board of Trustees). The Resolution was adopted on

January 28, 1997, and provides the basis for many of the items in the

Governor's certification.

[[Page 32155]]

Lawton Chiles

Governor

State of Florida

Office of the Governor

The Capitol

Tallahassee, Florida 32399-0001

March 20, 1997.

Honorable William M. Daley, Secretary, United States Department of

Commerce, Herbert C. Hoover Building, 14 Street and Constitution

Avenue Northwest, Washington, DC 20230.

Dear Mr. Secretary:

On January 28, 1997, the Florida Cabinet and I, sitting as the

Board of Trustees of the Internal Improvement Trust Fund, adopted a

resolution to include state sovereign submerged lands within the

boundary of the Florida Keys National Marine Sanctuary (FKNMS). It

is our intention to create a partnership with the National Oceanic

and Atmospheric Administration (NOAA) for management under the

provisions of the FKNMS Management Plan and the Memoranda of

Agreement included in the management plan, with certain conditions

to be applied to the portions of the sanctuary within Florida

Territorial Waters. A copy of the resolution is enclosed. We request

that the resolution be placed in the preamble to the final notice

for the FKNMS regulations.

In accordance with subsection 304(b)(1) of the National Marine

Sanctuaries Act and that resolution, the following terms are

certified as unacceptable in state waters:

1. Sanctuary fees for allowed public uses unless first approved

by the Board of Trustees of the Internal Improvement Trust Fund of

the State of Florida.

2. Sanctuary emergency regulations unless and until first

approved by the Governor. Accordingly, the following sentence shall

be added to section 922.165 CFR as published January 30, 1997:

``Emergency regulations shall not take effect in Florida territorial

waters until approved by the Governor of the State of Florida.''

3. Requirements for governmental entities within the state,

including but not limited to the State of Florida and Monroe County,

to provide funding for the implementation of sanctuary regulations

or other actions.

4. Sanctuary fisheries regulations unless established by the

Florida Marine Fisheries Commission following promulgation under the

provisions of section 370.025(2), F.S. (1995), which requires public

input and final approval by the Board of Trustees of the Internal

Improvement Trust Fund of the State of Florida. Accordingly, the

following sentence shall be added to section 922.42 CFR as published

January 30, 1997: ``Any fishery regulations in the Florida Keys

National Marine Sanctuary shall not take effect in Florida

Territorial Waters until established by the Florida Marine Fisheries

Commission.''

5. Sanctuary regulation of discharging or depositing, from

beyond the boundary of the Sanctuary, any material or other matter

that subsequently enters the Sanctuary and injures a Sanctuary

resource or quality, if the discharging or depositing is authorized

under Monroe County land use permits or under state permits.

Accordingly, 15 CFR section 922.163(a)(4)(ii), concerning prohibited

activities, shall be amended to read as follows: ``Discharging or

depositing, from beyond the boundary of the Sanctuary, any material

or other matter that subsequently enters the Sanctuary and injures a

Sanctuary resource or quality, except those listed in paragraph

(a)(4)(I) (A) through (D) of this section and those authorized under

Monroe County land use permits or under state permits.''

6. The implementation of any additional ecological reserves or

any other type of zoning or regulation unless first approved by the

Board of Trustees. Accordingly, the following provision shall be

added to 15 CFR section 922.163 as published January 30, 1997: ``(h)

Any amendment to these regulations shall not take effect in Florida

Territorial Waters until approved by the Board of Trustees of the

Internal Improvement Trust Fund of the State of Florida;'' and the

following provision shall be added to 15 CFR section 962.164: ``(f)

Additional wildlife management areas, ecological reserves, sanctuary

preservation areas, or special use areas, and additional

restrictions in such areas, shall not take effect in Florida

Territorial Waters unless first approved by the Board of Trustees of

the Internal Improvement Trust Fund of the State of Florida.''

7. Implementation of the management plan in its entirety unless

the Co-Trustees agreement is amended to provide as follows:

a. The Florida Department of Environmental Protection (FDEP)

employee who has been designated by the Secretary of FDEP and

confirmed by the Board of Trustees shall represent the Board of

Trustees as an equal partner to work in consultation with the

Sanctuary superintendent for the oversight of Sanctuary operations.

b. The FDEP and NOAA shall manage the FKNMS through a

cooperative partnership and consult on all management activities

throughout the Sanctuary. The intent of this partnership is that the

final resolution of any management issues resulting in policy

conflicts between the state and NOAA shall be decided by the

managing partners consistent with state and federal laws.

c. The state reserves the right to initiate proposed changes to

the plan, and NOAA, if necessary, shall initiate the federal rule

promulgation process required to make revisions to sanctuary

regulations requested by the Board of Trustees.

d. Section 304(e) of the National Marine Sanctuary Act requires

the Secretary of Commerce to review the management plan and

regulations for the Sanctuary every five years, evaluate the

substantive progress toward implementing the management plan and

goals for the Sanctuary; especially the effectiveness of site-

specific management techniques, and revise the management plan and

regulations as necessary to fulfill the purposes and policies of the

Act. When the management plan and regulations for the FKNMS are re-

evaluated, the Secretary of Commerce will re-propose the management

plan and regulations in their entirety and the State of Florida will

have the opportunity to review the management plan and regulations,

in their entirety, and indicate if any or all of the terms are

unacceptable, in which case the unacceptable terms shall not take

effect in state waters.

Accordingly, the following provisions shall be added to 15 CFR

section 922.160: ``Section 304(e) of the NMSA requires the Secretary

to review management plans and regulations every five years, and

make necessary revisions. Upon completion of the five year review of

the Sanctuary management plan and regulations, the Secretary will

repropose the regulations in their entirety with any proposed

changes thereto, including those regulations in subparts A and E of

this part that apply to the Sanctuary. The Governor of the State of

Florida will have the opportunity to review the re-proposed

regulations before they take effect and if the Governor certifies

such regulations as unacceptable, they will not take effect in State

waters of the Sanctuary.''

We also call to your attention the now erroneous reference in

section 922.166(b)(2)(iii) to the Submerged Cultural Resources

Agreement contained in Volume 1 of the management plan. We suggest

striking that reference. The final agreement is that considered by

the Board of Trustees on January 28, 1997 and executed by the

signatory parties.

We believe that implementation of the plan provides balanced,

common sense protection of this fragile, unique and endangered

marine treasure and advances the state and federal commitment to

jointly manage these resources. We look forward to that continuing

relationship.

With kind regards, I am

Sincerely,

Lawton Chiles

LC/khw/mlp

Enclosure

cc: Honorable Frank Brogan

Honorable Bob Butterworth

Honorable Bob Crawford

Honorable Debbie Horan

Honorable Bob Milligan

Honorable Sandra Mortham

Honorable Bill Nelson

Resolution

WHEREAS, the United States Congress passed the Florida Keys

National Marine Sanctuary and Protection Act (PL 101-605, ``the

Act'') to protect the unique and invaluable natural and cultural

resources of the Florida Keys; and

WHEREAS, the President of the United States signed this

legislation into law on November 16, 1990; and

WHEREAS, the Florida Keys National Marine Sanctuary (FKNMS)

boundary encompasses 2800 square nautical miles of the Atlantic

Ocean, Gulf of Mexico, and Florida Bay, of which approximately 65%

is Florida state territorial waters; and

WHEREAS, the Board of Trustees of the Internal Improvement Trust

Fund (``the Board of Trustees'') is vested with the authority and

charged with the responsibility for the acquisition, administration,

management, control, supervision, conservation, protection, and

disposition of

[[Page 32156]]

all state lands, including sovereignty submerged lands, as set forth

in Chapter 253, Florida Statutes; and

WHEREAS, upon enactment of the Act, the Board of Trustees

resolved on December 16, 1990, to include state waters within the

sanctuary boundary under certain specified conditions; and

WHEREAS, the Florida Coastal Resources Interagency Management

Committee resolved in February of 1991 to include appropriate state

representation in the Florida Keys National Marine Sanctuary

Management Plan development process; and

WHEREAS, an ``Interim Memorandum of Agreement'' was executed on

September 15, 1992, between the National Oceanic and Atmospheric

Administration (NOAA) and Board of Trustees specifying the

conditions under which state sovereign submerged lands were to be

included in the Sanctuary and managed during the management plan

development process; and

WHEREAS, the management plan development period was extended to

six years to provide the maximum opportunity for participation by

all segments of government, industry, and the citizens of Florida

and the United States; and

WHEREAS, Memoranda of Agreement to manage the marine ecosystem

of the Florida Keys through a cooperative partnership have been

developed and included in the management plan, including the:

(1) Interagency Compact Agreement

(2) Co-Trustees Agreement for Cooperative Management

(3) Submerged Cultural Resources Agreement

(4) Cooperative Enforcement Agreement

(5) Agreement for Coordination of Civil Claims

(6) Protocol for Cooperative Fisheries Management

(7) Protocol for Emergency Response Notification

(8) Certification/Authorization of Permits Agreement

(9) Water Quality Program Steering Committee By-laws; and

WHEREAS, the citizens and government of the State of Florida

have expressed continuing interest in issues not specifically

addressed or resolved in the management plan or memoranda of

agreement relating to the:

(1) Imposition of fees for public use of the marine resources;

(2) Disposition of funds recovered from natural resource damage

claims;

(3) Imposition of emergency regulations on state sovereign

submerged lands;

(4) Obligation of governmental entities, including the State of

Florida, to implement the regulations of the management plan without

having been allocated additional funding for that specific purpose;

(5) Promulgation of federal fisheries regulations that are more

restrictive than those established by the Florida Marine Fisheries

Commission under Florida statutory authority;

(6) Imposition of restrictions on the use of adjacent uplands

exceeding those established by the State of Florida;

(7) Purpose, goals and measures of success associated with the

Western Sambos Ecological Reserve;

(8) Parity of state and federal management authority for the

implementation and ongoing operations of the FKNMS;

(9) Prospects of designating additional ecological reserves in

the future as proposed in the draft management plan;

(10) Periodic evaluation of the effectiveness of the sanctuary

management plan in the protection and preservation of the marine

resources of the Florida Keys;

(11) Resolution of differences between the respective government

agencies with Sanctuary management authority for the State of

Florida and the United States of America;

(12) Right of the State to initiate changes to the plan;

(13) Article V of the Designation Document; and

(14) Right of the State to revisit the plan and regulations in

their entirety.

NOW, THEREFORE, BE IT RESOLVED that the sovereign submerged

lands of the State of Florida located within the boundaries of the

Florida Keys National Marine Sanctuary, as specified by the United

States Congress in PL 101-605, are hereby included in the Sanctuary

for management in partnership between the Board of Trustees and NOAA

under the provisions of: the Florida Keys National Marine Sanctuary

Management Plan; the Memoranda of Agreement included in the

management plan; and, the following conditions to be applied to the

portions of the Sanctuary within Florida territorial waters:

(1) Federal sanctuary fees for allowed public uses of the marine

resources shall not be imposed without having first been approved by

the Board of Trustees;

(2) The Memorandum of Agreement for the Coordination of Civil

Claims shall be amended to provide that, with regard to proceedings

to recover compensation for injury to state resources within the

Sanctuary, Board of Trustees' approval on the use of funds recovered

by NOAA under section 312 is required;

(3) The imposition of federal sanctuary emergency regulations

shall not be authorized without the Governor's approval;

(4) No provision of the management plan will require

governmental entities within the state, including but not limited to

the State of Florida and Monroe County, to provide funding for the

implementation of regulations or other actions;

(5) The implementation of fisheries regulations is unacceptable

unless established by the Florida Marine Fisheries Commission

following promulgation under the provisions of section 370.025(2),

F.S. (1995), which requires public input and final Board of

Trustees' approval;

(6) The Certification/Authorization of Permits Agreement shall

be amended to provide that NOAA will have only a review and comment

role on state permits for activities beyond the boundary of the

Sanctuary. To the maximum extent possible the state will consider

NOAA's comments as specified in the agreement. However, NOAA shall

not require an additional permit. In addition, 15 CFR section

922.163(a)(4)(ii), concerning prohibited activities, shall be

amended to read as follows: ``Discharging or depositing, from beyond

the boundary of the Sanctuary, any material or other matter that

subsequently enters the Sanctuary and injures a Sanctuary resource

or quality, except those listed in paragraph (a)(4)(i) (A) through

(D) above and those authorized under Monroe County land use permits

or under state permits.'';

(7) The purpose of the Ecological Reserve in the Western Sambos

is to maintain a natural assemblage of living marine resources by

setting aside an area that assures minimal human disturbance and is

not designed to perform any fishery enhancement or fishery

management functions. Monitoring of ecological parameters will be

performed to provide information on the status of fish, coral and

other benthic components of the Reserve. At the end of five years

the success of the Ecological Reserve in the Western Sambos will be

assessed. If the state or NOAA finds the area is not fulfilling the

purpose for which the reserve was established, the Board of Trustees

may take action to initiate the removal of the site;

(8) The Secretary of the FDEP shall designate, with subsequent

confirmation by the Board of Trustees, a DEP employee as its

representative as an equal partner to work in consultation with the

Sanctuary superintendent for the oversight of Sanctuary operations;

(9) The implementation of any additional ecological reserves, or

any other type of zoning or regulation, which is applicable to state

waters shall require advance Board of Trustees' approval;

(10) The FDEP, in cooperation with NOAA, shall submit to the

Board of Trustees an annual status report of the Sanctuary, and a

five-year evaluation of the overall effectiveness of the

implementation of the Sanctuary management plan toward the goal of

protecting the marine resources of the Florida Keys including

recommendations for change;

(11) The FDEP and NOAA shall manage the FKNMS through a

cooperative partnership and consult on all management activities

throughout the Sanctuary. The intent of this partnership is that the

final resolution of any management issues resulting in policy

conflicts between the state and NOAA shall be decided by the

managing partners consistent with state and federal laws. The Board

of Trustees has not conveyed title to or relinquished authority over

any state-owned lands or other state-owned resources by agreeing to

include state-owned land and resources within the Sanctuary

boundary. If necessary, NOAA shall initiate the federal rule

promulgation process required to make Board of Trustees' requested

revisions to the regulations of the FKNMS management plan;

(12) The state reserves the right to initiate proposed changes

to the plan. The FDEP will monitor public opinion and provide a

process for consideration of grievances and petitions for change;

(13) Article V of the Designation Document shall be amended to

strike the first paragraph which states: ``If any valid regulation

issued

[[Page 32157]]

by any Federal, State or local authority of competent jurisdiction,

regardless of when issued, conflicts with a Sanctuary regulation the

regulation deemed by the Director, Office of Ocean and Coastal

Resource Management, National Oceanic and Atmospheric

Administration, or his or her designee to be more protective of

Sanctuary resources and qualities shall govern.'' Further, it shall

be amended to strike the last sentence of the second paragraph which

states: ``However, the Secretary of Commerce or designee may

regulate the exercise (including, but not limited to, the imposition

of terms and conditions) of such authorization or right consistent

with the purposes for which the Sanctuary is designated.''; and

(14) The Co-Trustees Agreement for Cooperative Management shall

be amended to add: Section 304(e) of the National Marine Sanctuary

Act requires the Secretary of Commerce to review the management plan

and regulations for the Sanctuary every five years, evaluate the

substantive progress toward implementing the management plan and

goals for the Sanctuary, especially the effectiveness of site-

specific management techniques, and revise the management plan and

regulations as necessary to fulfill the purposes and policies of the

Act. When the management plan and regulations for the Florida Keys

National Marine Sanctuary are re-evaluated, the Secretary will re-

propose the management plan and regulations in their entirety. The

State of Florida will have the opportunity to review the management

plan and regulations, in their entirety, and indicate if any or all

of its terms are unacceptable in which case the unacceptable terms

shall not take effect in state waters.

IN TESTIMONY WHEREOF, the Governor and Cabinet sitting as the

Board of Trustees of the Internal Improvement Trust Fund of the

State of Florida have hereunto subscribed their names and have

caused the Official Seal of the State of Florida to be hereunto

affixed in the City of Tallahassee on the 28th day of January, 1997.

Lawton Chiles,

Governor.

Sandra B. Mortham,

Secretary of State.

Bob Butterworth,

Attorney General.

Robert F. Milligan,

Comptroller.

Bill Nelson,

Treasurer.

Bob Crawford,

Commissioner of Agriculture.

Frank T. Brogan,

Commissioner of Education.

NOAA's Response to Governor's Certification

In response to the Governor's certification of March 20, 1997, NOAA

has amended those regulations certified by the Governor as being

unacceptable in State waters. With the modifications, the entire

regulations and management plan are accepted by the Governor and will

apply throughout the Sanctuary, including within State waters of the

Sanctuary, upon their effective date. The basis and purpose of the

changes to the regulations are as follows.

(1) Per item number 2 of the Governor's letter which certified as

unacceptable in State waters emergency regulations unless approved by

the Governor, Sec. 922.165 of subpart P is amended by adding

``Emergency regulations shall not take effect in Florida State waters

until approved by the Governor of the State of Florida.'' This is

consistent with the management plan which provides that any new

regulation or substantive modification to existing Sanctuary

regulations will require the Governor's approval in order to take

effect in State waters of the Sanctuary.

(2) Per item number 4 of the Governor's letter which certified as

unacceptable in State waters Sanctuary fishing regulations unless

established by the Florida Marine Fisheries Commission pursuant to

section 370.025(2), F.S. (1995), Sec. 922.163 of subpart P is amended

by adding a new paragraph (h) to read in pertinent part ``Any fishery

regulations in the Sanctuary shall not take effect in Florida State

waters until established by the Florida Marine Fisheries Commission.''

The Governor's certification proposed including this language in

Sec. 922.42 of part 922, which is a programmatic sanctuary regulation

applicable to all sanctuaries. NOAA determined that a more appropriate

place for the language is in the Sanctuary specific regulations at a

new Sec. 922.163(h) of subpart P, which has been added in response to

item number 6 of the Governor's certification.

Item number 4 of the Governor's certification reflects actions

already initiated by NOAA. In the January 30 Federal Register notice

publishing the final regulations and triggering the forty-five day

review period under the NMSA, NOAA stated that Sec. 922.164(d), which

pertains to Ecological Reserves (Reserves) and Sanctuary Preservation

Areas (SPAs), will not take effect in State waters before July 1, 1997,

to allow the State of Florida Marine Fisheries Commission (Commission)

time to complete its rulemaking process related to the Western Sambos

Ecological Reserve and those Sanctuary Preservation Areas located in

State waters. The Commission's rule was adopted on May 13, 1997, and is

substantively similar to NOAA's except in two instances. First, the

Commission's Rule 46-6.003(1)(B), pertaining to the issue of possession

of fishing gear, which essentially mirrors 15 CFR

Sec. 922.164(d)(1)(iii) of NOAA's regulations, does not contain the

phrase ``no presumption of fishing activity shall be drawn'' from

possession of gear, because, according to the State, the Commission has

no authority to address the issue of presumptions. Further, the

Commission's Rule 46-6.003(1)(a), pertaining to possession of marine

organisms within a Reserve or SPA, which mirrors 15 CFR

Sec. 922.164(d)(1)(ii) of NOAA's regulations, adds the element that to

fall within the exception allowing possession of marine organisms in

such areas, a vessel must be in ``continuous transit'' through the

Reserve or SPA. NOAA's regulation did not require continuous transit.

In the January 30 Federal Register notice, NOAA stated that if the

Commission's rule is not substantively the same as NOAA's, then NOAA

would modify its regulations to conform with the State's, or would

consult on whether the non-conforming portions of the Sanctuary

regulations should be withdrawn from applying in State waters. NOAA

consulted with the State and agreed that no changes are necessary to 15

CFR Sec. 922.164(d)(1)(iii). As regards Sec. 922.164(d)(1)(ii), the

Governor requested that NOAA revise it to conform to the Commission's

Rule 46-6.003(1)(a). In response to the Governor's request, and

consistent with NOAA's January 30 Federal Register notice, therefore,

NOAA has amended Sec. 922.164(d)(1)(ii) to read as follows:

(ii) Possessing, moving, harvesting, removing, taking, damaging,

disturbing, breaking, cutting, spearing, or otherwise injuring any

coral, marine invertebrate, fish, bottom formation, algae, seagrass

or other living or dead organism, including shells, or attempting

any of these activities. However, fish, invertebrates, and marine

plants may be possessed aboard a vessel in an Ecological Reserve or

Sanctuary Preservation Area, provided such resources can be shown

not to have been harvested within, removed from, or taken within,

the Ecological Reserve or Sanctuary Preservation Area, as

applicable, by being stowed in a cabin, locker, or similar storage

area prior to entering and during transit through such reserves or

areas, provided further that in an Ecological Reserve or Sanctuary

Preservation Area located in Florida State waters, such vessel is in

continuous transit through the Ecological Reserve or Sanctuary

Preservation Area.

Therefore, Sec. 922.164(d)(1)(ii), consistent with the Commission's

rule, now requires vessels possessing fish, invertebrates, or marine

plants that are transiting through a Reserve or SPA located in State

waters to be in continuous transit through the Reserve or SPA. These

areas are the Western

[[Page 32158]]

Sambos Ecological Reserve, and the Cheeca Rocks, Eastern Dry Rocks,

Hens and Chickens, Newfound Harbor Key, Rock Key, and Sand Key

Sanctuary Preservation Areas.

The conforming change to Sec. 922.164(d)(1)(ii) is made to the

regulation only as it applies to Reserves and SPAs located in State

waters because under the National Marine Sanctuaries Act, the

Governor's actions during the forty-five day review period apply to the

management plan and regulations as they pertain to the area of the

Sanctuary lying within the seaward boundary of the State. Further,

under the sanctuary program regulations as 15 CFR Sec. 922.42, all

activities may be conducted unless specifically prohibited by a

sanctuary's regulations, ``subject to all prohibitions, regulations,

restrictions, and conditions validly imposed by any Federal, State, or

local authority of competent jurisdiction, including Federal and State

fishery management authorities.'' Consequently, as regards State waters

of the Sanctuary, regardless of whether NOAA amends

Sec. 922.164(d)(1)(ii), users would be subject to the State prohibition

requiring continuous transit through a Reserve or SPA in State waters

if such vessel possesses fish, invertebrates or marine plants. Finally,

under the amended Sanctuary regulation, vessels possessing such marine

organisms are not precluded from transiting the Reserve or SPA, which

addresses the primary concern raised in the public comments NOAA

received on the proposed regulation. In addition, during the State's

rulemaking proceeding, it received no comments regarding the provision

requiring continuous transit, supporting that there appear to be no

significant concerns over the provision.

For consistency throughout the Sanctuary, NOAA will propose to

amend the regulation as it pertains to the Ecological Reserves and

Sanctuary Preservation Areas in federal waters in a separate

rulemaking.

(3) Per item number 5 of the Governor's letter which certified as

unacceptable in State waters the prohibition of discharging or

depositing from beyond the Sanctuary boundary any material or other

matter that subsequently enters the Sanctuary and injures a Sanctuary

resource or quality, Sec. 922.163(a)(4)(ii) of subpart P is amended by

adding ``or under state permits'' after ``Monroe County land use

permits.'' This modification broadens the subject exception to include

discharge or deposit activities authorized under State permits. Many

upland projects that could result in discharges or deposits outside the

Sanctuary that end up in the Sanctuary require Monroe County land use

permits, which were already excepted from the Sanctuary prohibition.

(4) Per item number 6 of the Governor's letter which certifies as

unacceptable in State waters the implementation of any additional

Ecological Reserves or any other type of zoning or regulation unless

first approved by the Board of Trustees, Sec. 922.163 of subpart P is

amended by adding new paragraph (h) to read ``Any amendment to these

regulations shall not take effect in Florida State waters until

approved by the Board of Trustees of the Internal Improvement Trust

Fund of the State of Florida.'' Further, Sec. 922.164 is amended by

adding a new paragraph (f) to read: ``Additional Wildlife Management

Areas, Ecological Reserves, Sanctuary Preservation Areas, or Special-

use Areas, and additional restrictions in such areas, shall not take

effect in Florida State waters unless first approved by the Board of

Trustees of the Internal Improvement Trust Fund of the State of

Florida.'' As discussed above, this modification merely codifies in the

regulations what is contained in the management plan.

(5) Per item number 7 of the Governor's letter which certifies as

unacceptable in State waters the implementation of the management plan

unless the Co-Trustee Agreement and Sec. 922.160 is amended to add a

provision regarding the five year review of the management plan and

regulations, Sec. 922.160 of subpart P is amended by adding:

Section 304(e) of the NMSA requires the Secretary to review

management plans and regulations every five years, and make

necessary revisions. Upon completion of the five year review of the

Sanctuary management plan and regulations, the Secretary will

repropose the regulations in their entirety with any proposed

changes thereto, including those regulations in subparts A and E of

this part that apply to the Sanctuary. The Governor of the State of

Florida will have the opportunity to review the re-proposed

regulations before they take effect and if the Governor certifies

such regulations as unacceptable, they will not take effect in State

waters of the Sanctuary.

A corresponding amendment, as well as other amendments, have also

been made to the Co-Trustees Agreement per item 7 of the Governor's

letter. The modification to the regulation essentially codifies the

requirement under the NMSA to conduct reviews of sanctuary management

plans and regulations every five years. In the FKNMS context, NOAA has

determined that at the conclusion of the five year review of the

Sanctuary, it will repropose the regulations for the Governor's review,

similar to the forty-five day review period under the NMSA that

preceded this notice.

(6) The erroneous reference to the Submerged Cultural Resources

Agreement has been corrected by eliminating the reference to Volume I

of the management plan.

For clarity, this notice publishes the revised Sanctuary specific

regulations at 15 CFR part 922, subpart P in their entirety, which will

replace subpart P as published in the January 30, 1997 Federal Register

notice. Consequently, subpart P as published in this notice and all

remaining regulations in the January 30, 1997, notice shall become

effective on July 1, 1997.

Congressional Action on the Final Regulations

During the comment period on the draft management plan/

environmental impact statement (DMP/EIS), the Sanctuary Advisory

Council (SAC) and other public commentors singled out the operation of

personal watercraft (PWC) in the Sanctuary as a matter of concern. In

response to comments received on the DMP/EIS, NOAA stated the following

in the FMP/EIS, and January 30 Federal Register notice regarding the

operation of personal watercraft (PWC) in the Sanctuary:

NOAA has developed a multi-pronged approach to address the

public's concern about the use of personal watercraft. NOAA has

accepted the SAC's recommendation to add a new section to the final

regulations (Sec. 922.163(a)(v)) which prohibits reckless operation

of all watercraft. Additionally, proposed Sec. 922.163(a)(5)(iii)

has been modified to prohibit operating a vessel at greater than

idle speed only/no wake (except in marked channels) in designated

areas within 100 yards from residential shorelines, stationary

vessels and navigational aids marking emerging or shallow reefs.

NOAA has also incorporated into its regulations the authority to

enforce all idle-speed only/no wake areas throughout the Sanctuary.

NOAA will use the existing county and State process for designating

these areas. NOAA accepts that the industry is seriously committed

to self regulation and will develop successful educational efforts

geared toward changing user behavior. The final component of NOAA's

approach is a modification of the SAC's recommendation. NOAA will

begin establishing broad zones with restrictions on the use of

personal watercraft (consistent with the SAC recommendation) in one

year only if these initial efforts are not successful at

significantly reducing or eliminating the nuisance and safety

problems, as well as the threats to the natural resources.

FMP/EIS Vol. III, page L-10; 62 FR 4578, 4591.

During the forty-five day review period under the NMSA, no

[[Page 32159]]

Congressional hearings were held. However, NOAA received inquiries from

Representative Don Young, Chair of the House of Representatives

Committee on Resources, and Representative Walter B. Jones, Jr.

regarding how NOAA was going to measure ``success'' of the PWC

industry's educational efforts at significantly reducing or eliminating

threats to natural resources and the nuisance and safety problems posed

by the operation of personal watercraft, and how evaluation criteria

will be developed. There was also one meeting with Congressional aides

where concern was expressed about the Sanctuary regulating the safety

of vessel operations in general and PWC (e.g., jet skis) in particular.

As indicated above, the FMP/EIS carefully considered the SAC

recommendations and public comments, including those from the PWC

industry in setting forth its multi-pronged approach to the PWC issue.

In general, the success of any Sanctuary action plan or management

strategy is measured primarily against whether the Sanctuary resource

protection goals are being met, and whether the multiple uses of the

Sanctuary are being facilitated consistent with the primary objective

of resource protection. The FMP/EIS is the result of a long and

laborious public process to identify the threats to Sanctuary resources

and qualities, and then to develop management strategies and action

plans to address these resource management issues, including resource

protection and multiple use management, which includes addressing user

conflicts.

The FMP/EIS sets forth an action plan and strategies to address the

concerns arising from the use of PWCs in regards to protecting

Sanctuary resources, and facilitating compatible multiple use of the

Sanctuary. The FMP/EIS therefore provides additional criteria for the

measurement of success. The STRATEGY FOR STEWARDSHIP (Overview or

Executive Summary of the FKNMS MP/EIS--pages 9, 11-12, 19-20, 23)

discusses these concerns, and a plan to address problems arising from

PWCs, as well as other vessels. NOAA's decision to modify the SAC's

recommendations on PWC regulation was in part based on PWC industry

statements on how it should be given an opportunity to ``self-

regulate'' PWCs, work with NOAA on education geared toward changing

user behavior, and establish criteria for the management of commercial

PWC rental operations.

The problems regarding operation of PWCs and the planned solutions

are identified and discussed throughout the FMP/EIS and therefore

provide criteria against which success can be measured. See Volume I

pp. 16-17 (noise and operation harass wildlife as well as other users),

pp. 108-109 (PWC strategy B-17 discussed under NOAA Regulatory

Actions); Vol. II Environmental Impact Analysis, p. 124 (user conflicts

and habitat impacts), p. 141 (alternative strategies); p. 151 (strategy

Z-5 Special Use Zones to address PWC problems), pp. 182, 203 (PWC

strategy B-17); Vol. III H-3, K-3, L-9, L-10, L-17, M-1, M-2, M-3, M-6,

M-11, M-12, M-22, M-26, M-27, M-28. The public comments on this issue

also provide important input for developing criteria to measure the

success for both the PWC industry and NOAA.

NOAA is already working with the PWC industry to develop broad

measurable milestones by which the industry will increase public

awareness and educate the public about the use of PWCs in the

Sanctuary. When these are achieved by the PWC industry, NOAA is

confident that the proposed education and self-regulation activities

should address concerns that surfaced during the development of the

final management plan. Such measures include the industry conducting

training workshops and school programs, information distribution, and

community awareness. In addition, the PWC industry, NOAA and Florida

Department of Environmental Protection will also develop a two to five

year work plan for the industry based on strategies included in the

Education and Outreach Action Plan contained in the management plan for

the Sanctuary. Further, the PWC industry will conduct research on the

effects of PWC operation on shallow-water seagrass and hardbottom

communities in the Florida Keys. If the PWC industry adequately

implements these measures within the first year after the effective

date of these regulations, NOAA would view this as a significant effort

to address the concerns raised during the development of the final

management plan. In the event zones are subsequently determined to be

necessary, NOAA would seek to discuss such measures with the PWC

industry early in the process. Further, at a minimum under the

Administrative Procedure Act, there would have to be a public notice of

a proposed rule as well as a public comment period. This would likely

involve public hearings before any rule would become final. Moreover,

the rule would also have to be approved by the Governor through the

Board of Trustees in order to become effective in State waters.

Other Modifications to the Final Regulations

In the Federal Register notice of January 30, 1997, appendices II,

IV and V of subpart P, which delineate the boundary coordinates of

Existing Management Areas, Ecological Reserves, and Sanctuary

Preservation Areas, respectively, stated that ``When differential

Global Positioning Systems [GPS] data becomes available, these

coordinates may be revised by Federal Register notice to reflect the

increased accuracy of such data.'' Since publication of the final

regulations on January 30, NOAA has ground-truthed, using differential

GPS, the Western Sambos Ecological Reserve, the Sanctuary Preservation

Areas, and the four Special-use Areas (listed in appendix VI to subpart

P). Consequently, NOAA has modified the regulations to incorporate the

more accurate coordinates for those areas it has ground-truthed using

differential GPS. When differential GPS data become available for the

Existing Management Areas, their coordinates may be revised by Federal

Register notice to reflect the increased accuracy of such data.

III. Summary of the Changes to the Final Regulations at Subpart P

The following summarizes the Sanctuary regulations at 15 CFR part

922, subpart P, modified by this notice. Except as noted below, this

section remains the same as in the January 30, 1997, Federal Register

notice. With the changes, the final rule published on January 30, 1997,

at 62 FR 4578, and the revision of 15 CFR part 922, subpart P, in this

document shall apply throughout the Sanctuary, including within State

waters of the Sanctuary, on July 1, 1997.

Section 922.160 sets forth the purpose of the regulations--to

implement the comprehensive final management plan for the Sanctuary by

regulating activities affecting the Sanctuary in order to protect,

preserve, and manage the conservation, ecological, recreational,

research, educational, historical and aesthetic resources and qualities

of the area. Section 922.160 also describes the five-year review of the

management plan and regulations for the Sanctuary.

Section 922.163 prohibits a variety of activities within the

Sanctuary and in limited instances, outside the Sanctuary, thus making

it unlawful for any person to conduct them or cause them to be

conducted.

The fourth activity prohibited, Sec. 922.163(a)(4), is the

discharge or

[[Page 32160]]

deposit of materials or other matter. Exceptions are made for such

things as fish baits in connection with and during traditional fishing,

biodegradable vessel effluents, graywater, and vessel exhaust and

cooling water. Under Sec. 922.163(a)(4)(ii), upland discharge or

deposit activities conducted pursuant to Monroe County and State

permits are also excepted from the prohibition against discharging or

depositing outside the Sanctuary any material or other matter that

subsequently enters the Sanctuary and injures any Sanctuary resource.

Section 922.163(h) provides that any substantive (non-technical,

non-editorial) amendment to the regulations will not take effect in

State waters until approved by the Florida Board of Trustees. Fishing

regulations will not take effect in State waters until established by

the Florida Marine Fisheries Commission.

Section 922.164 sets forth by Sanctuary zone, restrictions and

prohibitions above and beyond those applicable on a Sanctuary-wide

basis (most of the Sanctuary is not zoned and, therefore, only the

Sanctuary-wide prohibitions of Sec. 922.163 apply). The six types of

Sanctuary zones are: (1) Areas to be Avoided (ATBAs); (2) Existing

Management Areas; (3) Wildlife Management Areas; (4) Ecological

Reserves; (5) Sanctuary Preservation Areas; and (6) Special-use Areas.

Details on the location of these zones are specified in Appendices II,

III, IV, V and VI to subpart P, respectively. The intent of the zoning

regulations is to protect Sanctuary resources, ecosystem and

biodiversity, and provide for effective management and facilitation of

multiple, compatible uses, consistent with the purposes of the

Sanctuary. Activities located within two or more overlapping Sanctuary

zones are concurrently subject to the regulations applicable to each

overlapping area.

Section 922.164(d)(1)(ii) prohibits possessing, moving, harvesting,

removing, taking, damaging, disturbing, breaking, cutting, spearing, or

otherwise injuring any coral, marine invertebrate, fish, bottom

formation, algae, seagrass or other living or dead organism, including

shells, or attempting any of these activities. However, fish,

invertebrates, and marine plants may be possessed aboard a vessel in an

Ecological Reserve or Sanctuary Preservation Area, provided such

resources can be shown not to have been harvested within, removed from,

or taken within, the Ecological Reserve or Sanctuary Preservation Area,

as applicable, by being stowed in a cabin, locker, or similar storage

area prior to entering and during transit through such reserves or

areas, provided further that in an Ecological Reserve or Sanctuary

Preservation Area located in Florida State waters, such vessel is in

continuous transit through the Ecological Reserve or Sanctuary

Preservation Area.

Section 922.164(f) provides that any additional Wildlife Management

Areas, Ecological Reserves, Sanctuary Preservation Areas, or Special-

Use Areas, and additional restrictions in such areas will not take

effect in State waters unless first approved by the Florida Board of

Trustees.

Section 922.165 provides that where necessary to prevent or

minimize the destruction of, loss of, or injury to a Sanctuary

resource, or imminent risk of such destruction of, loss of, or injury,

any and all activities are subject to immediate temporary regulation,

including prohibition. Any such temporary regulation may be in effect

for up to 60 days with one 60-day extension. Additional or extended

action is subject to the provisions of the Administrative Procedure

Act. No emergency regulation will take effect in State waters of the

Sanctuary until approved by the Governor of Florida.

IV. Miscellaneous Rulemaking Requirements

Except as noted below, this section remains the same as in the

January 30, 1997 Federal Register notice.

National Marine Sanctuaries Act

Section 304 of the National Marine Sanctuaries Act provides that

Congress and the Governor have forty-five days of continuous session of

Congress beginning on the day on which the final regulations were

published to review the terms of designation (i.e., regulations and

management plan). After forty-five days, the regulations would become

final and take effect, except that any term or terms of designation the

Governor certified to the Secretary of Commerce as unacceptable would

not take effect in the State waters portion of the Sanctuary. The

forty-five day review period began on January 30, 1997, the date the

final regulations were published in the Federal Register, and concluded

on April 16, 1997. During that period the Governor submitted to the

Secretary a certification that the management plan and certain

regulations were unacceptable unless specific amendments were made to

such regulations. NOAA amended those regulations certified as

unacceptable by incorporating the Governor's changes. Consequently,

upon their effective date the regulations, as revised by this Federal

Register notice, and management plan, in their entirety, will apply

throughout the Sanctuary, including within State waters of the

Sanctuary.

Administrative Procedure Act

The final Sanctuary regulations at 15 CFR part 922, subpart P,

which were promulgated on January 30, 1997, through notice and comment

rulemaking, have been amended pursuant to and consistent with the

procedures required under the National Marine Sanctuaries Act. The NMSA

provides that during the review period of forty-five day continuous

session of Congress, the Governor may certify to the Secretary of

Commerce any regulation as unacceptable and, if the Governor so

certifies, the regulation shall not take effect in the State waters

portion of the Sanctuary. As the changes requested by the Governor and

herein made by NOAA are within the scope of the proposed rule,

additional prior notice and opportunity for public comment are not

required by the Administrative Procedure Act (APA), 5 U.S.C. 553. The

basis and purpose of the changes to the final regulations requested by

the Governor have been set forth above.

The Assistant Administrator for Ocean Services and Coastal Zone

Management has determined that, pursuant to 5 U.S.C. 553(d)(3), there

is good cause for making the modifications to the final regulations

published in this document effective without a thirty day delay in

effective date. The primary purpose of the delayed effective date is to

provide the public a reasonable time to prepare to comply with the

regulations. The modifications to the final regulations pertaining to

the Governor's approval of new and emergency regulations, and the five

year review of the management plan and regulations do not require

compliance by the general public and, therefore, a delayed effective

date is unnecessary. Further, the requirement that vessels possessing

fish, invertebrates or marine plants must be in continuous transit

through SPAs and Reserves located in State waters is currently a

requirement under State regulations and, therefore, a delayed effective

date is also unnecessary as the general public must already comply with

that corresponding restriction. Finally, the modification to the

exception to the prohibition against discharging and depositing outside

the Sanctuary any material or other matter that subsequently enters and

injures a Sanctuary resource broadens the exception to include

activities authorized by State permit and,

[[Page 32161]]

therefore, relieves a restriction, specifically excepted from a delay

in effective date under 5 U.S.C. 553(d)(1). Consequently, the final

rule published on January 30, 1997, at 62 FR 4578 and the revision of

15 CFR part 922, subpart P in this document are effective July 1, 1997.

Regulatory Flexibility Act

The January 30, 1997 Federal Register notice stated:

Because the Assistant General Counsel for Legislation and

Regulation of the Department of Commerce certified to the Chief

Counsel for Advocacy of the Small Business Administration that the

proposed regulations, if adopted, would not have a significant

economic impact on a substantial number of small entities, an

Initial Regulatory Flexibility Analysis (IRFA) was not prepared.

Nevertheless, because the final regulations will affect a

substantial number of small entities, although not in an

economically significant way, and particularly because some

representatives of the small entity fishing industry criticized the

DEIS socioeconomic assessment of the zoning scheme, a Final

Regulatory Flexibility Analysis (FRFA) was prepared that fully

complies with the requirements of Regulatory Flexibility Act.

The changes made in response to the Governor's request do not

change the basis for that certification. In response to the FRFA, the

Office of the Chief Counsel for Advocacy of the Small Business

Administration (SBA) received several comments critical of certain

portions of the FRFA, specifically as regards the treatment of

submerged cultural resources and the impacts to treasure salvors.

Comments were also received from the Florida Keys Marine Life

Association raising concerns that the impacts to their industry have

not been properly qualified in the economic impact analysis. Because of

the time provided by the forty-five day review period under the

National Marine Sanctuaries Act, NOAA is supplementing the FRFA to

address the comments received by the SBA. The final supplemental FRFA

will be completed prior to the effective date of these regulations.

Upon its completion, NOAA will publish a Federal Register notice

summarizing the supplemental FRFA and announcing its availability, and,

if appropriate, making any changes to the regulations NOAA determines

are necessary as a result of the supplemental FRFA.

List of Subjects in 15 CFR Parts 922, 929, and 937

Administrative practice and procedure, Coastal zone, Education,

Environmental protection, Marine resources, Natural resources,

Penalties, Recreation and recreation areas, Reporting and recordkeeping

requirements, Research.

Dated: June 5, 1997.

Nancy Foster,

Assistant Administrator for Ocean Services and Coastal Zone Management.

Accordingly, for the reasons set forth above, 15 CFR part 922 is

amended as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

1. The authority citation for part 922 continues to read as

follows:

Authority: 16 U.S.C. 1431 et seq.

2. Part 922 is amended by revising subpart P to read as follows:

Subpart P--Florida Keys National Marine Sanctuary

Sec.

922.160 Purpose.

922.161 Boundary.

922.162 Definitions.

922.163 Prohibited activities--Sanctuary-wide.

922.164 Additional activity regulations by Sanctuary area.

922.165 Emergency regulations.

922.166 Permits--application procedures and issuance criteria.

922.167 Certification of preexisting leases, licenses, permits,

approvals, other authorizations, or rights to conduct a prohibited

activity.

Appendix I to Subpart P of Part 922--Florida Keys National Marine

Sanctuary Boundary Coordinates

Appendix II to Subpart P of Part 922--Existing Management Areas

Boundary Coordinates

Appendix III to Subpart P of Part 922--Wildlife Management Areas

Access Restrictions

Appendix IV to Subpart P of Part 922--Ecological Reserves Boundary

Coordinates

Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas

Boundary Coordinates

Appendix VI to Subpart P of Part 922--Special-use Areas Boundary

Coordinates and Use Designations

Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary

Coordinates

Appendix VIII to Subpart P of Part 922--Marine Life Rule [As

Excerpted From Chapter 46-42 of the Florida Administrative Code]

Subpart P--Florida Keys National Marine Sanctuary

Sec. 922.160 Purpose.

(a) The purpose of the regulations in this subpart is to implement

the comprehensive management plan for the Florida Keys National Marine

Sanctuary by regulating activities affecting the resources of the

Sanctuary or any of the qualities, values, or purposes for which the

Sanctuary is designated, in order to protect, preserve and manage the

conservation, ecological, recreational, research, educational,

historical, and aesthetic resources and qualities of the area. In

particular, the regulations in this part are intended to protect,

restore, and enhance the living resources of the Sanctuary, to

contribute to the maintenance of natural assemblages of living

resources for future generations, to provide places for species

dependent on such living resources to survive and propagate, to

facilitate to the extent compatible with the primary objective of

resource protection all public and private uses of the resources of the

Sanctuary not prohibited pursuant to other authorities, to reduce

conflicts between such compatible uses, and to achieve the other

policies and purposes of the Florida Keys National Marine Sanctuary and

Protection Act and the National Marine Sanctuaries Act.

(b) Section 304(e) of the NMSA requires the Secretary to review

management plans and regulations every five years, and make necessary

revisions. Upon completion of the five year review of the Sanctuary

management plan and regulations, the Secretary will repropose the

regulations in their entirety with any proposed changes thereto,

including those regulations in subparts A and E of this part that apply

to the Sanctuary. The Governor of the State of Florida will have the

opportunity to review the re-proposed regulations before they take

effect and if the Governor certifies such regulations as unacceptable,

they will not take effect in State waters of the Sanctuary.

Sec. 922.161 Boundary.

The Sanctuary consists of all submerged lands and waters from the

mean high water mark to the boundary described in Appendix I to this

subpart, with the exception of areas within the Dry Tortugas National

Park. Appendix I to this subpart sets forth the precise Sanctuary

boundary established by the Florida Keys National Marine Sanctuary and

Protection Act. (See FKNMSPA Sec. 5(b)(2)).

Sec. 922.162 Definitions.

(a) The following definitions apply to the Florida Keys National

Marine Sanctuary regulations. To the extent that a definition appears

in Sec. 922.3 and this section, the definition in this section governs.

[[Page 32162]]

Acts means the Florida Keys National Marine Sanctuary and

Protection Act, as amended, (FKNMSPA) (Pub. L. 101-605), and the

National Marine Sanctuaries Act (NMSA), also known as Title III of the

Marine Protection, Research, and Sanctuaries Act, as amended, (MPRSA)

(16 U.S.C. 1431 et seq.).

Adverse effect means any factor, force, or action that

independently or cumulatively damages, diminishes, degrades, impairs,

destroys, or otherwise harms any Sanctuary resource, as defined in

section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this section, or

any of the qualities, values, or purposes for which the Sanctuary is

designated.

Airboat means a vessel operated by means of a motor driven

propeller that pushes air for momentum.

Areas To Be Avoided means the areas in which vessel operations are

prohibited pursuant to section 6(a)(1) of the FKNMSPA (see

Sec. 922.164(a)). Appendix VII to this subpart sets forth the

geographic coordinates of these areas, including any modifications

thereto made in accordance with section 6(a)(3) of the FKNMSPA.

Closed means all entry or use is prohibited.

Coral means the corals of the Class Hydrozoa (stinging and

hydrocorals); the Class Anthozoa, Subclass Hexacorallia, Order

Scleractinia (stony corals) and Antipatharia (black corals).

Coral area means marine habitat where coral growth abounds

including patch reefs, outer bank reefs, deepwater banks, and

hardbottoms.

Coral reefs means the hard bottoms, deep-water banks, patch reefs,

and outer bank reefs.

Ecological Reserve means an area of the Sanctuary consisting of

contiguous, diverse habitats, within which uses are subject to

conditions, restrictions and prohibitions, including access

restrictions, intended to minimize human influences, to provide natural

spawning, nursery, and permanent residence areas for the replenishment

and genetic protection of marine life, and also to protect and preserve

natural assemblages of habitats and species within areas representing a

broad diversity of resources and habitats found within the Sanctuary.

Appendix IV to this subpart sets forth the geographic coordinates of

these areas.

Existing Management Area means an area of the Sanctuary that is

within or is a resource management area established by NOAA or by

another Federal authority of competent jurisdiction as of the effective

date of these regulations where protections above and beyond those

provided by Sanctuary-wide prohibitions and restrictions are needed to

adequately protect resources. Appendix II to this subpart sets forth

the geographic coordinates of these areas.

Exotic species means a species of plant, invertebrate, fish,

amphibian, reptile or mammal whose natural zoogeographic range would

not have included the waters of the Atlantic Ocean, Caribbean, or Gulf

of Mexico without passive or active introduction to such area through

anthropogenic means.

Fish means finfish, mollusks, crustaceans, and all forms of marine

animal and plant life other than marine mammals and birds.

Fishing means:

(1) The catching, taking, or harvesting of fish; the attempted

catching, taking, or harvesting of fish; any other activity which can

reasonably be expected to result in the catching, taking, or harvesting

of fish; or any operation at sea in support of, or in preparation for,

any activity described in this subparagraph (1).

(2) Such term does not include any scientific research activity

which is conducted by a scientific research vessel.

Hardbottom means a submerged marine community comprised of

organisms attached to exposed solid rock substrate. Hardbottom is the

substrate to which corals may attach but does not include the corals

themselves.

Idle speed only/no-wake means a speed at which a boat is operated

that is no greater than 4 knots or does not produce a wake.

Idle speed only/no-wake zone means a portion of the Sanctuary where

the speed at which a boat is operated may be no greater than 4 knots or

may not produce a wake.

Live rock means any living marine organism or an assemblage thereof

attached to a hard substrate, including dead coral or rock but not

individual mollusk shells (e.g., scallops, clams, oysters). Living

marine organisms associated with hard bottoms, banks, reefs, and live

rock may include, but are not limited to: sea anemones (Phylum

Cnidaria: Class Anthozoa: Order Actinaria); sponges (Phylum Porifera);

tube worms (Phylum Annelida), including fan worms, feather duster

worms, and Christmas tree worms; bryozoans (Phylum Bryzoa); sea squirts

(Phylum Chordata); and marine algae, including Mermaid's fan and cups

(Udotea spp.), corraline algae, green feather, green grape algae

(Caulerpa spp.) and watercress (Halimeda spp.).

Marine life species means any species of fish, invertebrate, or

plant included in sections (2), (3), or (4) of Rule 46-42.001, Florida

Administrative Code, reprinted in Appendix VIII to this subpart.

Military activity means an activity conducted by the Department of

Defense with or without participation by foreign forces, other than

civil engineering and other civil works projects conducted by the U.S.

Army Corps of Engineers.

No-access buffer zone means a portion of the Sanctuary where

vessels are prohibited from entering regardless of the method of

propulsion.

No motor zone means an area of the Sanctuary where the use of

internal combustion motors is prohibited. A vessel with an internal

combustion motor may access a no motor zone only through the use of a

push pole, paddle, sail, electric motor or similar means of operation

but is prohibited from using it's internal combustion motor.

Not available for immediate use means not readily accessible for

immediate use, e.g., by being stowed unbaited in a cabin, locker, rod

holder, or similar storage area, or by being securely covered and

lashed to a deck or bulkhead.

Officially marked channel means a channel marked by Federal, State

of Florida, or Monroe County officials of competent jurisdiction with

navigational aids except for channels marked idle speed only/no wake.

Personal watercraft means any jet or air-powered watercraft

operated by standing, sitting, or kneeling on or behind the vessel, in

contrast to a conventional boat, where the operator stands or sits

inside the vessel, and that uses an inboard engine to power a water jet

pump for propulsion, instead of a propeller as in a conventional boat.

Prop dredging means the use of a vessel's propulsion wash to dredge

or otherwise alter the seabed of the Sanctuary. Prop dredging includes,

but is not limited to, the use of propulsion wash deflectors or similar

means of dredging or otherwise altering the seabed of the Sanctuary.

Prop dredging does not include the disturbance to bottom sediments

resulting from normal vessel propulsion.

Prop scarring means the injury to seagrasses or other immobile

organisms attached to the seabed of the Sanctuary caused by operation

of a vessel in a manner that allows its propeller or other running

gear, or any part thereof, to cause such injury (e.g., cutting seagrass

rhizomes). Prop scarring does not include minor disturbances to bottom

sediments or seagrass blades resulting from normal vessel propulsion.

[[Page 32163]]

Residential shoreline means any man-made or natural:

(1) Shoreline,

(2) Canal mouth,

(3) Basin, or

(4) Cove adjacent to any residential land use district, including

improved subdivision, suburban residential or suburban residential

limited, sparsely settled, urban residential, and urban residential

mobile home under the Monroe County land development regulations.

Sanctuary means the Florida Keys National Marine Sanctuary.

Sanctuary Preservation Area means an area of the Sanctuary that

encompasses a discrete, biologically important area, within which uses

are subject to conditions, restrictions and prohibitions, including

access restrictions, to avoid concentrations of uses that could result

in significant declines in species populations or habitat, to reduce

conflicts between uses, to protect areas that are critical for

sustaining important marine species or habitats, or to provide

opportunities for scientific research. Appendix V to this subpart sets

forth the geographic coordinates of these areas.

Sanctuary wildlife means any species of fauna, including avifauna,

that occupy or utilize the submerged resources of the Sanctuary as

nursery areas, feeding grounds, nesting sites, shelter, or other

habitat during any portion of their life cycles.

Seagrass means any species of marine angiosperms (flowering plants)

that inhabit portions of the seabed in the Sanctuary. Those species

include, but are not limited to: Thalassia testudinum (turtle grass);

Syringodium filiforme (manatee grass); Halodule wrightii (shoal grass);

Halophila decipiens, H. engelmannii, H. johnsonii; and Ruppia maritima.

Special-use Area means an area of the Sanctuary set aside for

scientific research and educational purposes, recovery or restoration

of Sanctuary resources, monitoring, to prevent use or user conflicts,

to facilitate access and use, or to promote public use and

understanding of Sanctuary resources. Appendix VI to this subpart sets

forth the geographic coordinates of these areas.

Tank vessel means any vessel that is constructed or adapted to

carry, or that carries, oil or hazardous material in bulk as cargo or

cargo residue, and that--

(1) Is a United States flag vessel;

(2) Operates on the navigable waters of the United States; or

(3) Transfers oil or hazardous material in a port or place subject

to the jurisdiction of the United States [46 U.S.C. 2101].

Traditional fishing means those commercial or recreational fishing

activities that were customarily conducted within the Sanctuary prior

to its designation as identified in the Environmental Impact Statement

and Management Plan for this Sanctuary.

Tropical fish means any species included in section (2) of Rule 46-

42.001, Florida Administrative Code, reproduced in Appendix VIII to

this subpart, or any part thereof.

Vessel means a watercraft of any description, including, but not

limited to, motorized and non-motorized watercraft, personal

watercraft, airboats, and float planes while maneuvering on the water,

capable of being used as a means of transportation in/on the waters of

the Sanctuary. For purposes of this part, the terms ``vessel,''

``watercraft,'' and ``boat'' have the same meaning.

Wildlife Management Area means an area of the Sanctuary established

for the management, protection, and preservation of Sanctuary wildlife

resources, including such an area established for the protection and

preservation of endangered or threatened species or their habitats,

within which access is restricted to minimize disturbances to Sanctuary

wildlife; to ensure protection and preservation consistent with the

Sanctuary designation and other applicable law governing the protection

and preservation of wildlife resources in the Sanctuary. Appendix III

to this subpart lists these areas and their access restrictions.

(b) Other terms appearing in the regulations in this part are

defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and

Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 et seq. and 16

U.S.C. 1431 et seq.

Sec. 922.163 Prohibited activities--Sanctuary-wide.

(a) Except as specified in paragraph (b) through (e) of this

section, the following activities are prohibited and thus are unlawful

for any person to conduct or to cause to be conducted:

(1) Mineral and hydrocarbon exploration, development and

production. Exploring for, developing, or producing minerals or

hydrocarbons within the Sanctuary.

(2) Removal of, injury to, or possession of coral or live rock. (i)

Moving, removing, taking, harvesting, damaging, disturbing, breaking,

cutting, or otherwise injuring, or possessing (regardless of where

taken from) any living or dead coral, or coral formation, or attempting

any of these activities, except as permitted under 50 CFR part 638.

(ii) Harvesting, or attempting to harvest, any live rock from the

Sanctuary, or possessing (regardless of where taken from) any live rock

within the Sanctuary, except as authorized by a permit for the

possession or harvest from aquaculture operations in the Exclusive

Economic Zone, issued by the National Marine Fisheries Service pursuant

to applicable regulations under the appropriate Fishery Management

Plan, or as authorized by the applicable State authority of competent

jurisdiction within the Sanctuary for live rock cultured on State

submerged lands leased from the State of Florida, pursuant to

applicable State law. See Sec. 370.027, Florida Statutes and

implementing regulations.

(3) Alteration of, or construction on, the seabed. Drilling into,

dredging, or otherwise altering the seabed of the Sanctuary, or

engaging in prop-dredging; or constructing, placing or abandoning any

structure, material, or other matter on the seabed of the Sanctuary,

except as an incidental result of:

(i) Anchoring vessels in a manner not otherwise prohibited by this

part (see Secs. 922.163(a)(5)(ii) and 922.164(d)(1)(v));

(ii) Traditional fishing activities not otherwise prohibited by

this part;

(iii) Installation and maintenance of navigational aids by, or

pursuant to valid authorization by, any Federal, State, or local

authority of competent jurisdiction;

(iv) Harbor maintenance in areas necessarily associated with

Federal water resource development projects in existence on July 1,

1997, including maintenance dredging of entrance channels and repair,

replacement, or rehabilitation of breakwaters or jetties;

(v) Construction, repair, replacement, or rehabilitation of docks,

seawalls, breakwaters, piers, or marinas with less than ten slips

authorized by any valid lease, permit, license, approval, or other

authorization issued by any Federal, State, or local authority of

competent jurisdiction.

(4) Discharge or deposit of materials or other matter. (i)

Discharging or depositing, from within the boundary of the Sanctuary,

any material or other matter, except:

(A) Fish, fish parts, chumming materials, or bait used or produced

incidental to and while conducting a traditional fishing activity in

the Sanctuary;

(B) Biodegradable effluent incidental to vessel use and generated

by a marine sanitation device approved in

[[Page 32164]]

accordance with section 312 of the Federal Water Pollution Control Act,

as amended, (FWPCA), 33 U.S.C. 1322 et seq.;

(C) Water generated by routine vessel operations (e.g., deck wash

down and graywater as defined in section 312 of the FWPCA), excluding

oily wastes from bilge pumping; or

(D) Cooling water from vessels or engine exhaust;

(ii) Discharging or depositing, from beyond the boundary of the

Sanctuary, any material or other matter that subsequently enters the

Sanctuary and injures a Sanctuary resource or quality, except those

listed in paragraph (a)(4)(i) (A) through (D) of this section and those

authorized under Monroe County land use permits or under State permits.

(5) Operation of vessels. (i) Operating a vessel in such a manner

as to strike or otherwise injure coral, seagrass, or any other immobile

organism attached to the seabed, including, but not limited to,

operating a vessel in such a manner as to cause prop-scarring.

(ii) Having a vessel anchored on living coral other than hardbottom

in water depths less than 40 feet when visibility is such that the

seabed can be seen.

(iii) Except in officially marked channels, operating a vessel at a

speed greater than 4 knots or in manner which creates a wake:

(A) Within an area designated idle speed only/no wake;

(B) Within 100 yards of navigational aids indicating emergent or

shallow reefs (international diamond warning symbol);

(C) Within 100 feet of the red and white ``divers down'' flag (or

the blue and white ``alpha'' flag in Federal waters);

(D) Within 100 yards of residential shorelines; or

(E) Within 100 yards of stationary vessels.

(iv) Operating a vessel in such a manner as to injure or take

wading, roosting, or nesting birds or marine mammals.

(v) Operating a vessel in a manner which endangers life, limb,

marine resources, or property.

(6) Conduct of diving/snorkeling without flag. Diving or snorkeling

without flying in a conspicuous manner the red and white ``divers

down'' flag (or the blue and white ``alpha'' flag in Federal waters).

(7) Release of exotic species. Introducing or releasing an exotic

species of plant, invertebrate, fish, amphibian, or mammals into the

Sanctuary.

(8) Damage or removal of markers. Marking, defacing, or damaging in

any way or displacing, removing, or tampering with any official signs,

notices, or placards, whether temporary or permanent, or with any

navigational aids, monuments, stakes, posts, mooring buoys, boundary

buoys, trap buoys, or scientific equipment.

(9) Movement of, removal of, injury to, or possession of Sanctuary

historical resources. Moving, removing, injuring, or possessing, or

attempting to move, remove, injure, or possess, a Sanctuary historical

resource.

(10) Take or possession of protected wildlife. Taking any marine

mammal, sea turtle, or seabird in or above the Sanctuary, except as

authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16

U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16

U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended,

(MBTA) 16 U.S.C. 703 et seq.

(11) Possession or use of explosives or electrical charges.

Possessing, or using explosives, except powerheads, or releasing

electrical charges within the Sanctuary.

(12) Harvest or possession of marine life species. Harvesting,

possessing, or landing any marine life species, or part thereof, within

the Sanctuary, except in accordance with rules 46-42.001 through 46-

42.003, 46-42.0035, and 46-42.004 through 46-42.007, and 46.42.009 of

the Florida Administrative Code, reproduced in Appendix VIII to this

subpart, and such rules shall apply mutatis mutandis (with necessary

editorial changes) to all Federal and State waters within the

Sanctuary.

(13) Interference with law enforcement. Interfering with,

obstructing, delaying or preventing an investigation, search, seizure,

or disposition of seized property in connection with enforcement of the

Acts or any regulation or permit issued under the Acts.

(b) Notwithstanding the prohibitions in this section and in

Sec. 922.164, and any access and use restrictions imposed pursuant

thereto, a person may conduct an activity specifically authorized by,

and conducted in accordance with the scope, purpose, terms, and

conditions of, a National Marine Sanctuary permit issued pursuant to

Sec. 922.166.

(c) Notwithstanding the prohibitions in this section and in

Sec. 922.164, and any access and use restrictions imposed pursuant

thereto, a person may conduct an activity specifically authorized by a

valid Federal, State, or local lease, permit, license, approval, or

other authorization in existence on the effective date of these

regulations, or by any valid right of subsistence use or access in

existence on the effective date of these regulations, provided that the

holder of such authorization or right complies with Sec. 922.167 and

with any terms and conditions on the exercise of such authorization or

right imposed by the Director as a condition of certification as he or

she deems reasonably necessary to achieve the purposes for which the

Sanctuary was designated.

(d) Notwithstanding the prohibitions in this section and in

Sec. 922.164, and any access and use restrictions imposed pursuant

thereto, a person may conduct an activity specifically authorized by

any valid Federal, State, or local lease, permit, license, approval, or

other authorization issued after the effective date of these

regulations, provided that the applicant complies with Sec. 922.168,

the Director notifies the applicant and authorizing agency that he or

she does not object to issuance of the authorization, and the applicant

complies with any terms and conditions the Director deems reasonably

necessary to protect Sanctuary resources and qualities. Amendments,

renewals and extensions of authorizations in existence on the effective

date of these regulations constitute authorizations issued after the

effective date of these regulations.

(e) (1) All military activities shall be carried out in a manner

that avoids to the maximum extent practical any adverse impacts on

Sanctuary resources and qualities. The prohibitions in paragraph (a) of

this section and Sec. 922.164 do not apply to existing classes of

military activities which were conducted prior to the effective date of

these regulations, as identified in the Environmental Impact Statement

and Management Plan for the Sanctuary. New military activities in the

Sanctuary are allowed and may be exempted from the prohibitions in

paragraph (a) of this section and in Sec. 922.164 by the Director after

consultation between the Director and the Department of Defense

pursuant to section 304(d) of the NMSA. When a military activity is

modified such that it is likely to destroy, cause the loss of, or

injure a Sanctuary resource or quality in a manner significantly

greater than was considered in a previous consultation under section

304(d) of the NMSA, or it is likely to destroy, cause the loss of, or

injure a Sanctuary resource or quality not previously considered in a

previous consultation under section 304(d) of the NMSA, the activity is

considered a new activity for purposes of this paragraph. If it is

determined that an activity may be carried out, such activity shall be

carried out in a manner that avoids to the maximum extent practical any

[[Page 32165]]

adverse impact on Sanctuary resources and qualities.

(2) In the event of threatened or actual destruction of, loss of,

or injury to a Sanctuary resource or quality resulting from an untoward

incident, including but not limited to spills and groundings caused by

the Department of Defense, the cognizant component shall promptly

coordinate with the Director for the purpose of taking appropriate

actions to prevent, respond to or mitigate the harm and, if possible,

restore or replace the Sanctuary resource or quality.

(f) The prohibitions contained in paragraph (a)(5) of this section

do not apply to Federal, State and local officers while performing

enforcement duties and/or responding to emergencies that threaten life,

property, or the environment in their official capacity.

(g) Notwithstanding paragraph (b) of this section and paragraph (a)

of Sec. 922.168, in no event may the Director issue a permit under

Sec. 922.166 authorizing, or otherwise approve, the exploration for,

leasing, development, or production of minerals or hydrocarbons within

the Sanctuary, the disposal of dredged material within the Sanctuary

other than in connection with beach renourishment or Sanctuary

restoration projects, or the discharge of untreated or primary treated

sewage (except by a certification, pursuant to Sec. 922.167, of a valid

authorization in existence on the effective date of these regulations),

and any purported authorizations issued by other authorities after the

effective date of these regulations for any of these activities within

the Sanctuary shall be invalid.

(h) Any amendment to these regulations shall not take effect in

Florida State waters until approved by the Board of Trustees of the

Internal Improvement Trust Fund of the State of Florida. Any fishery

regulations in the Sanctuary shall not take effect in Florida State

waters until established by the Florida Marine Fisheries Commission.

Sec. 922.164 Additional activity regulations by Sanctuary area.

In addition to the prohibitions set forth in Sec. 922.163, which

apply throughout the Sanctuary, the following regulations apply with

respect to activities conducted within the Sanctuary areas described in

this section and in Appendix (II) through (VII) to this subpart.

Activities located within two or more overlapping Sanctuary areas are

concurrently subject to the regulations applicable to each overlapping

area.

(a) Areas To Be Avoided. Operating a tank vessel or a vessel

greater than 50 meters in registered length is prohibited in all areas

to be avoided, except if such vessel is a public vessel and its

operation is essential for national defense, law enforcement, or

responses to emergencies that threaten life, property, or the

environment. Appendix VII to this subpart sets forth the geographic

coordinates of these areas.

(b) Existing Management Areas.--(1) Key Largo and Looe Key

Management Areas. The following activities are prohibited within the

Key Largo and Looe Key Management Areas (also known as the Key Largo

and Looe Key National Marine Sanctuaries) described in Appendix II to

this subpart:

(i) Removing, taking, damaging, harmfully disturbing, breaking,

cutting, spearing or similarly injuring any coral or other marine

invertebrate, or any plant, soil, rock, or other material, except

commercial taking of spiny lobster and stone crab by trap and

recreational taking of spiny lobster by hand or by hand gear which is

consistent with these regulations and the applicable regulations

implementing the applicable Fishery Management Plan.

(ii) Taking any tropical fish.

(iii) Fishing with wire fish traps, bottom trawls, dredges, fish

sleds, or similar vessel-towed or anchored bottom fishing gear or nets.

(iv) Fishing with, carrying or possessing, except while passing

through without interruption or for law enforcement purposes: pole

spears, air rifles, bows and arrows, slings, Hawaiian slings, rubber

powered arbaletes, pneumatic and spring-loaded guns or similar devices

known as spearguns.

(2) Great White Heron and Key West National Wildlife Refuge

Management Areas. Operating a personal watercraft, operating an

airboat, or water skiing except within Township 66 South, Range 29

East, Sections 5, 11, 12 and 14; Township 66 South, Range 28 East,

Section 2; Township 67 South, Range 26 East, Sections 16 and 20, all

Tallahassee Meridian, are prohibited within the marine portions of the

Great White Heron and Key West National Wildlife Refuge Management

Areas described in Appendix II to this subpart.

(c) Wildlife Management Areas. (1) Marine portions of the Wildlife

Management Areas listed in Appendix III to this subpart or portions

thereof may be designated ``idle speed only/no-wake,'' ``no-motor'' or

``no-access buffer'' zones or ``closed''. The Director, in cooperation

with other Federal, State, or local resource management authorities, as

appropriate, shall post signs conspicuously, using mounting posts,

buoys, or other means according to location and purpose, at appropriate

intervals and locations, clearly delineating an area as an ``idle speed

only/no wake'', a ``no-motor'', or a ``no-access buffer'' zone or as

``closed'', and allowing instant, long-range recognition by boaters.

Such signs shall display the official logo of the Sanctuary.

(2) The following activities are prohibited within the marine

portions of the Wildlife Management Areas listed in Appendix III to

this subpart:

(i) In those marine portions of any Wildlife Management Area

designated an ``idle speed only/no wake'' zone in Appendix III to this

subpart, operating a vessel at a speed greater that idle speed only/no

wake.

(ii) In those marine portions of any Wildlife Management Area

designated a ``no-motor'' zone in Appendix III to this subpart, using

internal combustion motors or engines for any purposes. A vessel with

an internal combustion motor or engine may access a ``no-motor'' zone

only through the use of a push pole, paddle, sail, electric motor or

similar means of propulsion.

(iii) In those marine portions of any Wildlife Management Area

designated a ``no-access buffer'' zone in Appendix III of this subpart,

entering the area by vessel.

(iv) In those marine portions of any Wildlife Management Area

designated as closed in Appendix III of this subpart, entering or using

the area.

(3) The Director shall coordinate with other Federal, State, or

local resource management authorities, as appropriate, in the

establishment and enforcement of access restrictions described in

paragraph (c)(2) (i)-(iv) of this section in the marine portions of

Wildlife Management Areas.

(4) The Director may modify the number and location of access

restrictions described in paragraph (c)(2) (i)-(iv) of this section

within the marine portions of a Wildlife Management Area if the

Director finds that such action is reasonably necessary to minimize

disturbances to Sanctuary wildlife, or to ensure protection and

preservation of Sanctuary wildlife consistent with the purposes of the

Sanctuary designation and other applicable law governing the protection

and preservation of wildlife resources in the Sanctuary. The Director

will effect such modification by:

(i) Publishing in the Federal Register, after notice and an

opportunity for public comments in accordance, an amendment to the list

of such areas set forth in Appendix III to this subpart, and a notice

regarding the time and place where maps depicting the precise locations

of such restrictions will be

[[Page 32166]]

made available for public inspection, and

(ii) Posting official signs delineating such restrictions in

accordance with paragraph (c)(1) of this section.

(d) Ecological Reserves and Sanctuary Preservation Areas. (1) The

following activities are prohibited within the Ecological Reserves

described in Appendix IV to this subpart, and within the Sanctuary

Preservation Areas, described in Appendix V to this subpart:

(i) Discharging or depositing any material or other matter except

cooling water or engine exhaust.

(ii) Possessing, moving, harvesting, removing, taking, damaging,

disturbing, breaking, cutting, spearing, or otherwise injuring any

coral, marine invertebrate, fish, bottom formation, algae, seagrass or

other living or dead organism, including shells, or attempting any of

these activities. However, fish, invertebrates, and marine plants may

be possessed aboard a vessel in an Ecological Reserve or Sanctuary

Preservation Area, provided such resources can be shown not to have

been harvested within, removed from, or taken within, the Ecological

Reserve or Sanctuary Preservation Area, as applicable, by being stowed

in a cabin, locker, or similar storage area prior to entering and

during transit through such reserves or areas, provided further that in

an Ecological Reserve or Sanctuary Preservation Area located in Florida

State waters, such vessel is in continuous transit through the

Ecological Reserve or Sanctuary Preservation Area.

(iii) Except for catch and release fishing by trolling in the Conch

Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, fishing by any

means. However, gear capable of harvesting fish may be aboard a vessel

in an Ecological Reserve or Sanctuary Preservation Area, provided such

gear is not available for immediate use when entering and during

transit through such Ecological Reserve or Sanctuary Preservation Area,

and no presumption of fishing activity shall be drawn therefrom.

(iv) Touching living or dead coral, including but not limited to,

standing on a living or dead coral formation.

(v) Placing any anchor in a way that allows the anchor or any

portion of the anchor apparatus (including the anchor, chain or rope)

to touch living or dead coral, or any attached organism. When anchoring

dive boats, the first diver down must inspect the anchor to ensure that

it is not touching living or dead coral, and will not shift in such a

way as to touch such coral or other attached organisms. No further

diving shall take place until the anchor is placed in accordance with

these requirements.

(vi) Anchoring instead of mooring when a mooring buoy is available

or anchoring in other than a designated anchoring area when such areas

have been designated and are available.

(vii) Except for passage without interruption through the area, for

law enforcement purposes, or for purposes of monitoring pursuant to

paragraph (d)(2) of this section, violating a temporary access

restriction imposed by the Director pursuant to paragraph (d)(2) of

this section.

(2) The Director may temporarily restrict access to any portion of

any Sanctuary Preservation Area or Ecological Reserve if the Director,

on the basis of the best available data, information and studies,

determines that a concentration of use appears to be causing or

contributing to significant degradation of the living resources of the

area and that such action is reasonably necessary to allow for recovery

of the living resources of such area. The Director will provide for

continuous monitoring of the area during the pendency of the

restriction. The Director will provide public notice of the restriction

by publishing a notice in the Federal Register, and by such other means

as the Director may deem appropriate. The Director may only restrict

access to an area for a period of 60 days, with one additional 60 day

renewal. The Director may restrict access to an area for a longer

period pursuant to a notice and opportunity for public comment

rulemaking under the Administrative Procedure Act. Such restriction

will be kept to the minimum amount of area necessary to achieve the

purposes thereof.

(e) Special-use Areas. (1) The Director may set aside discrete

areas of the Sanctuary as Special-use Areas, and, by designation

pursuant to this paragraph, impose the access and use restrictions

specified in paragraph (e)(3) of this section. Special-use Areas are

described in Appendix VI to this subpart, in accordance with the

following designations and corresponding objectives:

(i) ``Recovery area'' to provide for the recovery of Sanctuary

resources from degradation or other injury attributable to human uses;

(ii) ``Restoration area'' to provide for restoration of degraded or

otherwise injured Sanctuary resources;

(iii) ``Research-only area'' to provide for scientific research or

education relating to protection and management, through the issuance

of a Sanctuary General permit for research pursuant to Sec. 922.166 of

these regulations; and

(iv) ``Facilitated-use area'' to provide for the prevention of use

or user conflicts or the facilitation of access and use, or to promote

public use and understanding, of Sanctuary resources through the

issuance of special-use permits.

(2) A Special-use Area shall be no larger than the size the

Director deems reasonably necessary to accomplish the applicable

objective.

(3) Persons conducting activities within any Special-use Area shall

comply with the access and use restrictions specified in this paragraph

and made applicable to such area by means of its designation as a

``recovery area,'' ``restoration area,'' ``research-only area,'' or

``facilitated-use area.'' Except for passage without interruption

through the area or for law enforcement purposes, no person may enter a

Special-use Area except to conduct or cause to be conducted the

following activities:

(i) in such area designated as a ``recovery area'' or a

``restoration area'', habitat manipulation related to restoration of

degraded or otherwise injured Sanctuary resources, or activities

reasonably necessary to monitor recovery of degraded or otherwise

injured Sanctuary resources;

(ii) in such area designated as a ``research only area'',

scientific research or educational use specifically authorized by and

conducted in accordance with the scope, purpose, terms and conditions

of a valid National Marine Sanctuary General or Historical Resources

permit, or

(iii) in such area designated as a ``facilitated-use area'',

activities specified by the Director or specifically authorized by and

conducted in accordance with the scope, purpose, terms, and conditions

of a valid Special-use permit.

(4)(i) The Director may modify the number of, location of, or

designations applicable to, Special-use Areas by publishing in the

Federal Register, after notice and an opportunity for public comment in

accordance with the Administrative Procedure Act, an amendment to

Appendix VI to this subpart, except that, with respect to such areas

designated as a ``recovery area,'' ``restoration area,'' or ``research

only area,'' the Director may modify the number of, location of, or

designation applicable to, such areas by publishing a notice of such

action in the Federal Register if the Director determines that

immediate action is reasonably necessary to:

(A) Prevent significant injury to Sanctuary resources where

[[Page 32167]]

circumstances create an imminent risk to such resources;

(B) Initiate restoration activity where a delay in time would

significantly impair the ability of such restoration activity to

succeed;

(C) Initiate research activity where an unforeseen natural event

produces an opportunity for scientific research that may be lost if

research is not initiated immediately.

(ii) If the Director determines that a notice of modification must

be promulgated immediately in accordance with paragraph (e)(4)(i) of

this section, the Director will, as part of the same notice, invite

public comment and specify that comments will be received for 15 days

after the effective date of the notice. As soon as practicable after

the end of the comment period, the Director will either rescind, modify

or allow the modification to remain unchanged through notice in the

Federal Register.

(f) Additional Wildlife Management Areas, Ecological Reserves,

Sanctuary Preservation Areas, or Special-use Areas, and additional

restrictions in such areas, shall not take effect in Florida State

waters unless first approved by the Board of Trustees of the Internal

Improvement Trust Fund of the State of Florida.

Sec. 922.165 Emergency regulations.

Where necessary to prevent or minimize the destruction of, loss of,

or injury to a Sanctuary resource or quality, or minimize the imminent

risk of such destruction, loss, or injury, any and all activities are

subject to immediate temporary regulation, including prohibition.

Emergency regulations shall not take effect in Florida territorial

waters until approved by the Governor of the State of Florida. Any

temporary regulation may be in effect for up to 60 days, with one 60-

day extension. Additional or extended action will require notice and

comment rulemaking under the Administrative Procedure Act, notice in

local newspapers, notice to Mariners, and press releases.

Sec. 922.166 Permits--application procedures and issuance criteria.

(a) National Marine Sanctuary General Permit.--(1) A person may

conduct an activity prohibited by Secs. 922.163 or 922.164, other than

an activity involving the survey/inventory, research/recovery, or

deaccession/transfer of Sanctuary historical resources, if such

activity is specifically authorized by, and provided such activity is

conducted in accordance with the scope, purpose, terms and conditions

of, a National Marine Sanctuary General permit issued under this

paragraph (a).

(2) The Director, at his or her discretion, may issue a General

permit under this paragraph (a), subject to such terms and conditions

as he or she deems appropriate, if the Director finds that the activity

will:

(i) Further research or monitoring related to Sanctuary resources

and qualities;

(ii) Further the educational value of the Sanctuary;

(iii) Further the natural or historical resource value of the

Sanctuary;

(iv) Further salvage or recovery operations in or near the

Sanctuary in connection with a recent air or marine casualty;

(v) Assist in managing the Sanctuary; or

(vi) Otherwise further Sanctuary purposes, including facilitating

multiple use of the Sanctuary, to the extent compatible with the

primary objective of resource protection.

(3) The Director shall not issue a General permit under this

paragraph (a), unless the Director also finds that:

(i) The applicant is professionally qualified to conduct and

complete the proposed activity;

(ii) The applicant has adequate financial resources available to

conduct and complete the proposed activity;

(iii) The duration of the proposed activity is no longer than

necessary to achieve its stated purpose;

(iv) The methods and procedures proposed by the applicant are

appropriate to achieve the proposed activity's goals in relation to the

activity's impacts on Sanctuary resources and qualities;

(v) The proposed activity will be conducted in a manner compatible

with the primary objective of protection of Sanctuary resources and

qualities, considering the extent to which the conduct of the activity

may diminish or enhance Sanctuary resources and qualities, any

indirect, secondary or cumulative effects of the activity, and the

duration of such effects;

(vi) It is necessary to conduct the proposed activity within the

Sanctuary to achieve its purposes; and

(vii) The reasonably expected end value of the activity to the

furtherance of Sanctuary goals and purposes outweighs any potential

adverse impacts on Sanctuary resources and qualities from the conduct

of the activity.

(4) For activities proposed to be conducted within any of the areas

described in Sec. 922.164 (b)-(e), the Director shall not issue a

permit unless he or she further finds that such activities will further

and are consistent with the purposes for which such area was

established, as described in Secs. 922.162 and 922.164 and in the

management plan for the Sanctuary.

(b) National Marine Sanctuary Survey/Inventory of Historical

Resources Permit. (1) A person may conduct an activity prohibited by

Secs. 922.163 or 922.164 involving the survey/inventory of Sanctuary

historical resources if such activity is specifically authorized by,

and is conducted in accordance with the scope, purpose, terms and

conditions of, a Survey/Inventory of Historical Resources permit issued

under this paragraph (b). Such permit is not required if such survey/

inventory activity does not involve any activity prohibited by

Secs. 922.163 or 922.164. Thus, survey/inventory activities that are

non-intrusive, do not include any excavation, removal, or recovery of

historical resources, and do not result in destruction of, loss of, or

injury to Sanctuary resources or qualities do not require a permit.

However, if a survey/inventory activity will involve test excavations

or removal of artifacts or materials for evaluative purposes, a Survey/

Inventory of Historical Resources permit is required. Regardless of

whether a Survey/Inventory permit is required, a person may request

such permit. Persons who have demonstrated their professional abilities

under a Survey/Inventory permit will be given preference over other

persons in consideration of the issuance of a Research/Recovery permit.

While a Survey/Inventory permit does not grant any rights with regards

to areas subject to pre-existing rights of access which are still

valid, once a permit is issued for an area, other survey/inventory

permits will not be issued for the same area during the period for

which the permit is valid.

(2) The Director, at his or her discretion, may issue a Survey/

Inventory permit under this paragraph (b), subject to such terms and

conditions as he or she deems appropriate, if the Director finds that

such activity:

(i) Satisfies the requirements for a permit issued under paragraph

(a)(3) of this section;

(ii) Either will be non-intrusive, not include any excavation,

removal, or recovery of historical resources, and not result in

destruction of, loss of, or injury to Sanctuary resources or qualities,

or if intrusive, will involve no more than the minimum manual

alteration of the seabed and/or the removal of artifacts or other

material necessary for evaluative purposes and will cause no

significant adverse impacts on Sanctuary resources or qualities; and

[[Page 32168]]

(iii) That such activity will be conducted in accordance with all

requirements of the Programmatic Agreement for the Management of

Submerged Cultural Resources in the Florida Keys National Marine

Sanctuary among NOAA, the Advisory Council on Historic Preservation,

and the State of Florida (hereinafter SCR Agreement), and that such

permit issuance is in accordance with such SCR Agreement. Copies of the

SCR Agreement may also be examined at, and obtained from, the

Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource

Management, National Ocean Service, National Oceanic and Atmospheric

Administration, 1305 East-West Highway, 12th floor, Silver Spring, MD

20910; or from the Florida Keys National Marine Sanctuary Office, P.O.

Box 500368, Marathon, FL 33050.

(c) National Marine Sanctuary Research/Recovery of Sanctuary

Historical Resources Permit. (1) A person may conduct any activity

prohibited by Secs. 922.163 or 922.164 involving the research/recovery

of Sanctuary historical resources if such activity is specifically

authorized by, and is conducted in accordance with the scope, purpose,

terms and conditions of, a Research/Recovery of Historical Resources

permit issued under this paragraph (c).

(2) The Director, at his or her discretion, may issue a Research/

Recovery of Historical Resources permit, under this paragraph (c), and

subject to such terms and conditions as he or she deems appropriate, if

the Director finds that:

(i) Such activity satisfies the requirements for a permit issued

under paragraph (a)(3) of this section;

(ii) The recovery of the resource is in the public interest as

described in the SCR Agreement;

(iii) Recovery of the resource is part of research to preserve

historic information for public use; and

(iv) Recovery of the resource is necessary or appropriate to

protect the resource, preserve historical information, and/or further

the policies and purposes of the NMSA and the FKNMSPA, and that such

permit issuance is in accordance with, and that the activity will be

conducted in accordance with, all requirements of the SCR Agreement.

(d) National Marine Sanctuary Special-use Permit. (1) A person may

conduct any commercial or concession-type activity prohibited by

Secs. 922.163 or 922.164, if such activity is specifically authorized

by, and is conducted in accordance with the scope, purpose, terms and

conditions of, a Special-use permit issued under this paragraph (d). A

Special-use permit is required for the deaccession/transfer of

Sanctuary historical resources.

(2) The Director, at his or her discretion, may issue a Special-use

permit in accordance with this paragraph (d), and subject to such terms

and conditions as he or she deems appropriate and the mandatory terms

and conditions of section 310 of the NMSA, if the Director finds that

issuance of such permit is reasonably necessary to: establish

conditions of access to and use of any Sanctuary resource; or promote

public use and understanding of any Sanctuary resources. No permit may

be issued unless the activity is compatible with the purposes for which

the Sanctuary was designated and can be conducted in a manner that does

not destroy, cause the loss of, or injure any Sanctuary resource, and

if for the deaccession/transfer of Sanctuary Historical Resources,

unless such permit issuance is in accordance with, and that the

activity will be conducted in accordance with, all requirements of the

SCR Agreement.

(3) The Director may assess and collect fees for the conduct of any

activity authorized by a Special-use permit issued pursuant to this

paragraph (d). No Special-use permit shall be effective until all

assessed fees are paid, unless otherwise provided by the Director by a

fee schedule set forth as a permit condition. In assessing a fee, the

Director shall include:

(i) All costs incurred, or expected to be incurred, in reviewing

and processing the permit application, including, but not limited to,

costs for:

(A) Number of personnel;

(B) Personnel hours;

(C) Equipment;

(D) Biological assessments;

(E) Copying; and

(F) Overhead directly related to reviewing and processing the

permit application;

(ii) All costs incurred, or expected to be incurred, as a direct

result of the conduct of the activity for which the Special-use permit

is being issued, including, but not limited to:

(A) The cost of monitoring the conduct both during the activity and

after the activity is completed in order to assess the impacts to

Sanctuary resources and qualities;

(B) The use of an official NOAA observer, including travel and

expenses and personnel hours; and

(C) Overhead costs directly related to the permitted activity; and

(iii) An amount which represents the fair market value of the use

of the Sanctuary resource and a reasonable return to the United States

Government.

(4) Nothing in this paragraph (d) shall be considered to require a

person to obtain a permit under this paragraph for the conduct of any

fishing activities within the Sanctuary.

(e) Applications. (1) Applications for permits should be addressed

to the Director, Office of Ocean and Coastal Resource Management; ATTN:

Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O.

Box 500368, Marathon, FL 33050. All applications must include:

(i) A detailed description of the proposed activity including a

timetable for completion of the activity and the equipment, personnel

and methodology to be employed;

(ii) The qualifications and experience of all personnel;

(iii) The financial resources available to the applicant to conduct

and complete the proposed activity;

(iv) A statement as to why it is necessary to conduct the activity

within the Sanctuary;

(v) The potential impacts of the activity, if any, on Sanctuary

resources and qualities;

(vi) The benefit to be derived from the activity; and

(vii) Such other information as the Director may request depending

on the type of activity. Copies of all other required licenses,

permits, approvals, or other authorizations must be attached to the

application.

(2) Upon receipt of an application, the Director may request such

additional information from the applicant as he or she deems reasonably

necessary to act on the application and may seek the views of any

persons. The Director may require a site visit as part of the permit

evaluation. Unless otherwise specified, the information requested must

be received by the Director within 30 days of the postmark date of the

request. Failure to provide such additional information on a timely

basis may be deemed by the Director to constitute abandonment or

withdrawal of the permit application.

(f) A permit may be issued for a period not exceeding five years.

All permits will be reviewed annually to determine the permittee's

compliance with permit scope, purpose, terms and conditions and

progress toward reaching the stated goals and appropriate action taken

under paragraph (g) of this section if warranted. A permittee may

request permit renewal pursuant to the same procedures for applying for

a new permit. Upon the permittee's request for renewal, the Director

shall review all

[[Page 32169]]

reports submitted by the permittee as required by the permit

conditions. In order to renew the permit, the Director must find that

the:

(1) Activity will continue to further the purposes for which the

Sanctuary was designated in accordance with the criteria applicable to

the initial issuance of the permit;

(2) Permittee has at no time violated the permit, or these

regulations; and

(3) The activity has not resulted in any unforeseen adverse impacts

to Sanctuary resources or qualities.

(g) The Director may amend, suspend, or revoke a permit for good

cause. The Director may deny a permit application, in whole or in part,

if it is determined that the permittee or applicant has acted in

violation of a previous permit, of these regulations, of the NMSA or

FKNMSPA, or for other good cause. Any such action shall be communicated

in writing to the permittee or applicant by certified mail and shall

set forth the reason(s) for the action taken. Procedures governing

permit sanctions and denials for enforcement reasons are set forth in

Subpart D of 15 CFR part 904.

(h) The applicant for or holder of a National Marine Sanctuary

permit may appeal the denial, conditioning, amendment, suspension or

revocation of the permit in accordance with the procedures set forth in

Sec. 922.50.

(i) A permit issued pursuant to this section other than a Special-

use permit is nontransferable. Special-use permits may be transferred,

sold, or assigned with the written approval of the Director. The

permittee shall provide the Director with written notice of any

proposed transfer, sale, or assignment no less than 30 days prior to

its proposed consummation. Transfers, sales, or assignments consummated

in violation of this requirement shall be considered a material breach

of the Special-use permit, and the permit shall be considered void as

of the consummation of any such transfer, sale, or assignment.

(j) The permit or a copy thereof shall be maintained in legible

condition on board all vessels or aircraft used in the conduct of the

permitted activity and be displayed for inspection upon the request of

any authorized officer.

(k) Any permit issued pursuant to this section shall be subject to

the following terms and conditions:

(1) All permitted activities shall be conducted in a manner that

does not destroy, cause the loss of, or injure Sanctuary resources or

qualities, except to the extent that such may be specifically

authorized.

(2) The permittee agrees to hold the United States harmless against

any claims arising out of the conduct of the permitted activities.

(3) All necessary Federal, State, and local permits from all

agencies with jurisdiction over the proposed activities shall be

secured before commencing field operations.

(l) In addition to the terms and conditions listed in paragraph (k)

of this section, any permit authorizing the research/recovery of

historical resources shall be subject to the following terms and

conditions:

(1) A professional archaeologist shall be in charge of planning,

field recovery operations, and research analysis.

(2) An agreement with a conservation laboratory shall be in place

before field recovery operations are begun, and an approved nautical

conservator shall be in charge of planning, conducting, and supervising

the conservation of any artifacts and other materials recovered.

(3) A curation agreement with a museum or facility for curation,

public access and periodic public display, and maintenance of the

recovered historical resources shall be in place before commencing

field operations (such agreement for the curation and display of

recovered historical resources may provide for the release of public

artifacts for deaccession/transfer if such deaccession/transfer is

consistent with preservation, research, education, or other purposes of

the designation and management of the Sanctuary. Deaccession/transfer

of historical resources requires a Special-use permit issued pursuant

to paragraph (d) and such deaccession/transfer shall be executed in

accordance with the requirements of the SCR Agreement).

(4) The site's archaeological information is fully documented,

including measured drawings, site maps drawn to professional standards,

and photographic records.

(m) In addition to the terms and conditions listed in paragraph (k)

and (l) of this section, any permit issued pursuant to this section is

subject to such other terms and conditions, including conditions

governing access to, or use of, Sanctuary resources, as the Director

deems reasonably necessary or appropriate and in furtherance of the

purposes for which the Sanctuary is designated. Such terms and

conditions may include, but are not limited to:

(1) Any data or information obtained under the permit shall be made

available to the public.

(2) A NOAA official shall be allowed to observe any activity

conducted under the permit.

(3) The permittee shall submit one or more reports on the status,

progress, or results of any activity authorized by the permit.

(4) The permittee shall submit an annual report to the Director not

later than December 31 of each year on activities conducted pursuant to

the permit. The report shall describe all activities conducted under

the permit and all revenues derived from such activities during the

year and/or term of the permit.

(5) The permittee shall purchase and maintain general liability

insurance or other acceptable security against potential claims for

destruction, loss of, or injury to Sanctuary resources arising out of

the permitted activities. The amount of insurance or security should be

commensurate with an estimated value of the Sanctuary resources in the

permitted area. A copy of the insurance policy or security instrument

shall be submitted to the Director.

Sec. 922.167 Certification of preexisting leases, licenses, permits,

approvals, other authorizations, or rights to conduct a prohibited

activity.

(a) A person may conduct an activity prohibited by Secs. 922.163 or

922.164 if such activity is specifically authorized by a valid Federal,

State, or local lease, permit, license, approval, or other

authorization in existence on July 1, 1997, or by any valid right of

subsistence use or access in existence on July 1, 1997, provided that:

(1) The holder of such authorization or right notifies the

Director, in writing, within 90 days of July 1, 1997, of the existence

of such authorization or right and requests certification of such

authorization or right;

(2) The holder complies with the other provisions of this

Sec. 922.167; and

(3) The holder complies with any terms and conditions on the

exercise of such authorization or right imposed as a condition of

certification, by the Director, to achieve the purposes for which the

Sanctuary was designated.

(b) The holder of an authorization or right described in paragraph

(a) of this section authorizing an activity prohibited by Secs. 922.163

or 922.164 may conduct the activity without being in violation of

applicable provisions of Secs. 922.163 or 922.164, pending final agency

action on his or her certification request, provided the holder is in

compliance with this Sec. 922.167.

(c) Any holder of an authorization or right described in paragraph

(a) of this section may request the Director to issue a finding as to

whether the activity for which the authorization has been issued, or

the right given, is prohibited

[[Page 32170]]

by Secs. 922.163 or 922.164, thus requiring certification under this

section.

(d) Requests for findings or certifications should be addressed to

the Director, Office of Ocean and Coastal Resource Management; ATTN:

Sanctuary Superintendent, Florida Keys National Marine Sanctuary, P.O.

Box 500368, Marathon, FL 33050. A copy of the lease, permit, license,

approval, or other authorization must accompany the request.

(e) The Director may request additional information from the

certification requester as he or she deems reasonably necessary to

condition appropriately the exercise of the certified authorization or

right to achieve the purposes for which the Sanctuary was designated.

The information requested must be received by the Director within 45

days of the postmark date of the request. The Director may seek the

views of any persons on the certification request.

(f) The Director may amend any certification made under this

Sec. 922.167 whenever additional information becomes available

justifying such an amendment.

(g) Upon completion of review of the authorization or right and

information received with respect thereto, the Director shall

communicate, in writing, any decision on a certification request or any

action taken with respect to any certification made under this

Sec. 922.167, in writing, to both the holder of the certified lease,

permit, license, approval, other authorization, or right, and the

issuing agency, and shall set forth the reason(s) for the decision or

action taken.

(h) Any time limit prescribed in or established under this

Sec. 922.167 may be extended by the Director for good cause.

(i) The holder may appeal any action conditioning, amending,

suspending, or revoking any certification in accordance with the

procedures set forth in Sec. 922.50.

(j) Any amendment, renewal, or extension made after July 1, 1997,

to a lease, permit, license, approval, other authorization or right is

subject to the provisions of Sec. 922.49.

Appendix I to Subpart P of Part 922--Florida Keys National Marine

Sanctuary Boundary Coordinates

(Appendix Based on North American Datum of 1983)

The boundary of the Florida Keys National Marine Sanctuary--

(a) Begins at the northeasternmost point of Biscayne National Park

located at approximately 25 degrees 39 minutes north latitude, 80

degrees 5 minutes west longitude, then runs eastward to the 300-foot

isobath located at approximately 25 degrees 39 minutes north latitude,

80 degrees 4 minutes west longitude;

(b) Then runs southward and connects in succession the points at

the following coordinates:

(i) 25 degrees 34 minutes north latitude, 80 degrees 4 minutes west

longitude,

(ii) 25 degrees 28 minutes north latitude, 80 degrees 5 minutes

west longitude, and

(iii) 25 degrees 21 minutes north latitude, 80 degrees 7 minutes

west longitude;

(iv) 25 degrees 16 minutes north latitude, 80 degrees 8 minutes

west longitude;

(c) Then runs southwesterly approximating the 300-foot isobath and

connects in succession the points at the following coordinates:

(i) 25 degrees 7 minutes north latitude, 80 degrees 13 minutes west

longitude,

(ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes

west longitude,

(iii) 24 degrees 39 minutes north latitude, 80 degrees 52 minutes

west longitude,

(iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes

west longitude,

(v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes

west longitude,

(vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes

west longitude,

(vii) 24 degrees 37 minutes north latitude, 83 degrees 6 minutes

west longitude,

(viii) 24 degrees 40 minutes north latitude, 83 degrees 6 minutes

west longitude,

(ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes

west longitude,

(x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes

west longitude,

(xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes

west longitude, and

(xii) 24 degrees 55 minutes north latitude, 80 degrees 56 minutes

west longitude;

(d) then follows the boundary of Everglades National Park in a

southerly then northeasterly direction through Florida Bay, Buttonwood

Sound, Tarpon Basin, and Blackwater Sound;

(e) after Division Point, then departs from the boundary of

Everglades National Park and follows the western shoreline of Manatee

Bay, Barnes Sound, and Card Sound;

(f) then follows the southern boundary of Biscayne National Park to

the southeasternmost point of Biscayne National Park; and

(g) then follows the eastern boundary of Biscayne National Park to

the beginning point specified in paragraph (a).

Appendix II to Subpart P of Part 922--Existing Management Areas

Boundary Coordinates

The Existing Management Areas are located within the following

geographic boundary coordinates:

National Oceanic and Atmospheric Administration,

Preexisting National Marine Sanctuaries:

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

Key Largo Management Area (Key Largo National Marine Sanctuary)

------------------------------------------------------------------------

1............................. 25 deg.19.45' N 80 deg.12.00' W

2............................. 25 deg.16.02' N 80 deg.08.07' W

3............................. 25 deg.07.05' N 80 deg.12.05' W

4............................. 24 deg.58.03' N 80 deg.19.08' W

5............................. 25 deg.02.02' N 80 deg.25.25' W

------------------------------------------------------------------------

Looe Key Management Area (Looe Key National Marine Sanctuary)

------------------------------------------------------------------------

1............................. 24 deg.31.62' N 81 deg.26.00' W

2............................. 24 deg.33.57' N 81 deg.26.00' W

3............................. 24 deg.34.15' N 81 deg.23.00' W

4............................. 24 deg.32.20' N 81 deg.23.00' W

------------------------------------------------------------------------

United States Fish and Wildlife Service:

Great White Heron National Wildlife Refuge

(based on the North American Datum of 1983)

------------------------------------------------------------------------

1............................. 24 deg.43.8' N 81 deg.48.6' W

2............................. 24 deg.43.8' N 81 deg.37.2' W

3............................. 24 deg.49.2' N 81 deg.37.2' W

4............................. 24 deg.49.2' N 81 deg.19.8' W

5............................. 24 deg.48.0' N 81 deg.19.8' W

6............................. 24 deg.48.0' N 81 deg.14.4' W

7............................. 24 deg.49.2' N 81 deg.14.4' W

8............................. 24 deg.49.2' N 81 deg.08.4' W

9............................. 24 deg.43.8' N 81 deg.08.4' W

10............................ 24 deg.43.8' N 81 deg.14.4' W

11............................ 24 deg.43.2' N 81 deg.14.4' W

12............................ 24 deg.43.2' N 81 deg.16.2' W

13............................ 24 deg.42.6' N 81 deg.16.2' W

14............................ 24 deg.42.6' N 81 deg.21.0' W

15............................ 24 deg.41.4' N 81 deg.21.0' W

16............................ 24 deg.41.4' N 81 deg.22.2' W

17............................ 24 deg.43.2' N 81 deg.22.2' W

18............................ 24 deg.43.2' N 81 deg.22.8' W

19............................ 24 deg.43.8' N 81 deg.22.8' W

20............................ 24 deg.43.8' N 81 deg.24.0' W

21............................ 24 deg.43.2' N 81 deg.24.0' W

22............................ 24 deg.43.2' N 81 deg.26.4' W

23............................ 24 deg.43.8' N 81 deg.26.4' W

24............................ 24 deg.43.8' N 81 deg.27.0' W

25............................ 24 deg.43.2' N 81 deg.27.0' W

26............................ 24 deg.43.2' N 81 deg.29.4' W

27............................ 24 deg.42.6' N 81 deg.29.4' W

28............................ 24 deg.42.6' N 81 deg.30.6' W

29............................ 24 deg.41.4' N 81 deg.30.6' W

[[Page 32171]]

30............................ 24 deg.41.4' N 81 deg.31.2' W

31............................ 24 deg.40.8' N 81 deg.31.2' W

32............................ 24 deg.40.8' N 81 deg.32.4' W

33............................ 24 deg.41.4' N 81 deg.32.4' W

34............................ 24 deg.41.4' N 81 deg.34.2' W

35............................ 24 deg.40.8' N 81 deg.34.2' W

36............................ 24 deg.48.0' N 81 deg.35.4' W

37............................ 24 deg.39.6' N 81 deg.35.4' W

38............................ 24 deg.39.6' N 81 deg.36.0' W

39............................ 24 deg.39.0' N 81 deg.36.0' W

40............................ 24 deg.39.0' N 81 deg.37.2' W

41............................ 24 deg.37.8' N 81 deg.37.2' W

42............................ 24 deg.37.8' N 81 deg.37.8' W

43............................ 24 deg.37.2' N 81 deg.37.8' W

44............................ 24 deg.37.2' N 81 deg.40.2' W

45............................ 24 deg.36.0' N 81 deg.40.2' W

46............................ 24 deg.36.0' N 81 deg.40.8' W

47............................ 24 deg.35.4' N 81 deg.40.8' W

48............................ 24 deg.35.4' N 81 deg.42.0' W

49............................ 24 deg.36.0' N 81 deg.42.0' W

50............................ 24 deg.36.0' N 81 deg.48.6' W

------------------------------------------------------------------------

Key West National Wildlife Refuge

------------------------------------------------------------------------

1............................. 24 deg.40' N 81 deg.49' W

2............................. 24 deg.40' N 82 deg.10' W

3............................. 24 deg.27' N 82 deg.10' W

4............................. 24 deg.27' N 81 deg.49' W

------------------------------------------------------------------------

When differential Global Positioning Systems data becomes

available, these coordinates may be revised by Federal Register notice

to reflect the increased accuracy of such data.

Appendix III to Subpart P of Part 922--Wildlife Management Areas

Access Restrictions

------------------------------------------------------------------------

Area Access restrictions

------------------------------------------------------------------------

Bay Keys.......................................... No-motor zone (300

feet) around one

key; idle speed

only/no-wake zones

in tidal creeks.

Boca Grande Key................................... South one-half of

beach closed (beach

above mean high

water closed by

Department of the

Interior).

Woman Key......................................... One-half of beach

and sand spit on

southeast side

closed (beach and

sand spit above

mean high water

closed by

Department of the

Interior).

Cayo Agua Keys.................................... Idle speed only/no-

wake zones in all

navigable tidal

creeks.

Cotton Key........................................ No-motor zone on

tidal flat.

Snake Creek....................................... No-motor zone on

tidal flat.

Cottrell Key...................................... No-motor zone (300

feet) around entire

key.

Little Mullet Key................................. No-access buffer

zone (300 feet)

around entire key.

Big Mullet Key.................................... No-motor zone (300

feet) around entire

key.

Crocodile Lake.................................... No-access buffer

zone (100 feet)

along shoreline

between March 1 and

October 1.

East Harbor Key................................... No-access buffer

zone (300 feet)

around northernmost

island.

Lower Harbor Keys................................. Idle speed only/no-

wake zones in

selected tidal

creeks.

Eastern Lake Surprise............................. Idle speed only/no-

wake zone east of

highway U.S. 1.

Horseshoe Key..................................... No-access buffer

zone (300 feet)

around main island

(main island closed

by Department of

the Interior).

Marquesas Keys.................................... (i) No-motor zones

(300 feet) around

three smallest keys

on western side of

chain; (ii) no-

access buffer zone

(300 feet) around

one island at

western side of

chain; (iii) idle

speed only/no-wake

zone in southwest

tidal creek.

Tidal flat south of Marvin Key.................... No-access buffer

zone on tidal flat.

Mud Keys.......................................... (i) Idle speed only/

no-wake zones in

the two main tidal

creeks; (ii) two

smaller creeks on

west side closed.

Pelican Shoal..................................... No-access buffer

zone out to 50

meters from shore

between April 1 and

August 31 (shoal

closed by the

Florida Game and

Freshwater Fish

Commission).

Rodriguez Key..................................... No-motor zone on

tidal flats.

Dove Key.......................................... No-motor zone on

tidal flats; area

around the two

small islands

closed.

Tavernier Key..................................... No-motor zone on

tidal flats.

Sawyer Keys....................................... Tidal creeks on

south side closed.

Snipe Keys........................................ (i) Idle speed only/

no-wake zone in

main tidal creek;

(ii) no-motor zone

in all other tidal

creeks.

Upper Harbor Key.................................. No-access buffer

zone (300 feet)

around entire key.

East Content Keys................................. Idle speed only/no-

wake zones in tidal

creeks between

southwesternmost

keys.

West Content Keys................................. Idle speed only/no-

wake zones in

selected tidal

creeks; no-access

buffer zone in one

cove.

Little Crane Key.................................. No-access buffer

zone (300 feet)

around entire key.

------------------------------------------------------------------------

Appendix IV to Subpart P of Part 922--Ecological Reserves Boundary

Coordinates

One Ecological Reserve--the Western Sambos Ecological Reserve--is

designated in the area of Western Sambos reef. NOAA has committed to

designating a second Ecological Reserve within two years from issuance

of this plan in the area of the Dry Tortugas. The establishment of a

Dry Tortugas Ecological Reserve will be proposed by a notice of

proposed rulemaking with a proposed boundary determined through a joint

effort among the Sanctuary, and the National Park Service, pursuant to

a public process involving a team consisting of managers, scientists,

conservationists, and affected user groups.

The Western Sambos Ecological Reserve (based on differential Global

Positioning Systems data) is located within the following geographic

boundary coordinates:

* Western Sambos

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

1............................. 24 deg.33.70' N..... 81 deg.40.80' W

2............................. 24 deg.28.85' N..... 81 deg.41.90' W

3............................. 24 deg.28.50' N..... 81 deg.43.70' W

4............................. 24 deg.33.50' N..... 81 deg.43.10' W

------------------------------------------------------------------------

(* Denotes located in State waters)

Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas

Boundary Coordinates

The Sanctuary Preservation Areas (SPAs) (based on differential

Global Positioning Systems data) are located within the following

geographic boundary coordinates:

[[Page 32172]]

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

Alligator Reef

------------------------------------------------------------------------

1............................. 24 deg.50.98'N 80 deg.36.84'W

2............................. 24 deg.50.51'N 80 deg.37.35'W

3............................. 24 deg.50.81'N 80 deg.37.63'W

4............................. 24 deg.51.23'N 80 deg.37.17'W

------------------------------------------------------------------------

Catch and release fishing by trolling only is allowed in this SPA.

------------------------------------------------------------------------

Carysfort/South Carysfort Reef

------------------------------------------------------------------------

1............................. 25 deg.13.78'N 80 deg.12.00'W

2............................. 25 deg.12.03'N 80 deg.12.98'W

3............................. 25 deg.12.24'N 80 deg.13.77'W

4............................. 25 deg.14.13'N 80 deg.12.78'W

------------------------------------------------------------------------

* Cheeca Rocks

------------------------------------------------------------------------

1............................. 24 deg.54.42'N 80 deg.36.91'W

2............................. 24 deg.54.25'N 80 deg.36.77'W

3............................. 24 deg.54.10'N 80 deg.37.00'W

4............................. 24 deg.54.22'N 80 deg.37.15'W

------------------------------------------------------------------------

Coffins Patch

------------------------------------------------------------------------

1............................. 24 deg.41.47'N 80 deg.57.68'W

2............................. 24 deg.41.12'N 80 deg.57.53'W

3............................. 24 deg.40.75'N 80 deg.58.33'W

4............................. 24 deg.41.06'N 80 deg.58.48'W

------------------------------------------------------------------------

Conch Reef

------------------------------------------------------------------------

1............................. 24 deg.57.48'N 80 deg.27.47'W

2............................. 24 deg.57.34'N 80 deg.27.26'W

3............................. 24 deg.56.78'N 80 deg.27.52'W

4............................. 24 deg.56.96'N 80 deg.27.73'W

------------------------------------------------------------------------

Catch and release fishing by trolling only is allowed in this SPA.

------------------------------------------------------------------------

Davis Reef

------------------------------------------------------------------------

1............................. 24 deg.55.61'N 80 deg.30.27'W

2............................. 24 deg.55.41'N 80 deg.30.05'W

3............................. 24 deg.55.11'N 80 deg.30.35'W

4............................. 24 deg.55.34'N 80 deg.30.52'W

------------------------------------------------------------------------

Dry Rocks

------------------------------------------------------------------------

1............................. 25 deg.07.59'N 80 deg.17.91'W

2............................. 25 deg.07.41'N 80 deg.17.70'W

3............................. 25 deg.07.25'N 80 deg.17.82'W

4............................. 25 deg.07.41'N 80 deg.18.09'W

------------------------------------------------------------------------

Grecian Rocks

------------------------------------------------------------------------

1............................. 25 deg.06.91'N 80 deg.18.20'W

2............................. 25 deg.06.67'N 80 deg.18.06'W

3............................. 25 deg.06.39'N 80 deg.18.32'W

4............................. 25 deg.06.42'N 80 deg.18.48'W

5............................. 25 deg.06.81'N 80 deg.18.44'W

------------------------------------------------------------------------

* Eastern Dry Rocks

------------------------------------------------------------------------

1............................. 24 deg.27.92'N 81 deg.50.55'W

2............................. 24 deg.27.73'N 81 deg.50.33'W

3............................. 24 deg.27.47'N 81 deg.50.80'W

4............................. 24 deg.27.72'N 81 deg.50.86'W

------------------------------------------------------------------------

The Elbow

------------------------------------------------------------------------

1............................. 25 deg.08.97'N 80 deg.15.63'W

2............................. 25 deg.08.95'N 80 deg.15.22'W

3............................. 25 deg.08.18'N 80 deg.15.64'W

4............................. 25 deg.08.50'N 80 deg.16.07'W

------------------------------------------------------------------------

French Reef

------------------------------------------------------------------------

1............................. 25 deg.02.20'N 80 deg.20.63'W

2............................. 25 deg.01.81'N 80 deg.21.02'W

3............................. 25 deg.02.36'N 80 deg.21.27'W

------------------------------------------------------------------------

* Hen and Chickens

------------------------------------------------------------------------

1............................. 24 deg.56.38'N 80 deg.32.86'W

2............................. 24 deg.56.21'N 80 deg.32.63'W

3............................. 24 deg.55.86'N 80 deg.32.95'W

4............................. 24 deg.56.04'N 80 deg.33.19'W

------------------------------------------------------------------------

Looe Key

------------------------------------------------------------------------

1............................. 24 deg.33.24'N 81 deg.24.03'W

2............................. 24 deg.32.70'N 81 deg.23.85'W

3............................. 24 deg.32.52'N 81 deg.24.70'W

4............................. 24 deg.33.12'N 81 deg.24.81'W

------------------------------------------------------------------------

Molasses Reef

------------------------------------------------------------------------

1............................. 25 deg.01.00'N 80 deg.22.53'W

2............................. 25 deg.01.06'N 80 deg.21.84'W

3............................. 25 deg.00.29'N 80 deg.22.70'W

4............................. 25 deg.00.72'N 80 deg.22.83'W

------------------------------------------------------------------------

* Newfound Harbor Key

------------------------------------------------------------------------

1............................. 24 deg.37.10'N 81 deg.23.34'W

2............................. 24 deg.36.85'N 81 deg.23.28'W

3............................. 24 deg.36.74'N 81 deg.23.80'W

4............................. 24 deg.37.00'N 81 deg.23.86'W

------------------------------------------------------------------------

* Rock Key

------------------------------------------------------------------------

1............................. 24 deg.27.48'N 81 deg.51.35'W

2............................. 24 deg.27.30'N 81 deg.51.15'W

3............................. 24 deg.27.21'N 81 deg.51.60'W

4............................. 24 deg.27.45'N 81 deg.51.65'W

------------------------------------------------------------------------

* Sand Key

------------------------------------------------------------------------

1............................. 24 deg.27.58'N 81 deg.52.29'W

2............................. 24 deg.27.01'N 81 deg.52.32'W

3............................. 24 deg.27.02'N 81 deg.52.95'W

4............................. 24 deg.27.61'N 81 deg.52.94'W

------------------------------------------------------------------------

Catch and release fishing by trolling only is allowed in this SPA.

------------------------------------------------------------------------

Sombrero Key

------------------------------------------------------------------------

1............................. 24 deg.37.91'N 81 deg.06.78'W

2............................. 24 deg.37.50'N 81 deg.06.19'W

3............................. 24 deg.37.25'N 81 deg.06.89'W

------------------------------------------------------------------------

Catch and release fishing by trolling only is allowed in this SPA.

------------------------------------------------------------------------

(* denotes located in State waters)

Appendix VI to Subpart P of Part 922--Special-Use Areas Boundary

Coordinates and Use Designations

The Special-use Areas (based on differential Global Positioning

Systems data) are located within the following geographic boundary

coordinates:

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

Conch Reef (Research Only)

------------------------------------------------------------------------

1............................. 24 deg.56.83'N 80 deg.27.26'W

2............................. 24 deg.57.10'N 80 deg.26.93'W

3............................. 24 deg.56.99'N 80 deg.27.42'W

4............................. 24 deg.57.34'N 80 deg.27.26'W

------------------------------------------------------------------------

Eastern Sambos (Research Only)

------------------------------------------------------------------------

1............................. 24 deg.29.84'N 81 deg.39.59'W

2............................. 24 deg.29.55'N 81 deg.39.35'W

3............................. 24 deg.29.37'N 81 deg.39.96'W

4............................. 24 deg.29.77'N 81 deg.40.03'W

------------------------------------------------------------------------

Looe Key (Research Only)

------------------------------------------------------------------------

1............................. 24 deg.34.17'N 81 deg.23.01'W

2............................. 24 deg.33.98'N 81 deg.22.96'W

3............................. 24 deg.33.84'N 81 deg.23.60'W

4............................. 24 deg.34.23'N 81 deg.23.68'W

------------------------------------------------------------------------

Tennessee Reef (Research Only)

------------------------------------------------------------------------

1............................. 24 deg.44.77'N 80 deg.47.12'W

2............................. 24 deg.44.57'N 80 deg.46.98'W

3............................. 24 deg.44.68'N 80 deg.46.59'W

4............................. 24 deg.44.95'N 80 deg.46.74'W

------------------------------------------------------------------------

Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary

Coordinates

------------------------------------------------------------------------

Point Latitude Longitude

------------------------------------------------------------------------

In The Vicinity of the Florida Keys

(Reference Charts: United States 11466, 27th Edition--September 1, 1990

and United States 11450, 4th Edition--August 11, 1990)

------------------------------------------------------------------------

1............................. 25 deg.45.00'N 80 deg.06.10'W

2............................. 25 deg.38.70'N 80 deg.02.70'W

3............................. 25 deg.22.00'N 80 deg.03.00'W

4............................. 25 deg.00.20'N 80 deg.13.40'W

5............................. 24 deg.37.90'N 80 deg.47.30'W

6............................. 24 deg.29.20'N 81 deg.17.30'W

7............................. 24 deg.22.30'N 81 deg.43.17'W

8............................. 24 deg.28.00'N 81 deg.43.17'W

9............................. 24 deg.28.70'N 81 deg.43.50'W

10............................ 24 deg.29.80'N 81 deg.43.17'W

11............................ 24 deg.33.10'N 81 deg.35.15'W

12............................ 24 deg.33.60'N 81 deg.26.00'W

13............................ 24 deg.38.20'N 81 deg.07.00'W

14............................ 24 deg.43.20'N 80 deg.53.20'W

15............................ 24 deg.46.10'N 80 deg.46.15'W

16............................ 24 deg.51.10'N 80 deg.37.10'W

17............................ 24 deg.57.50'N 80 deg.27.50'W

18............................ 25 deg.09.90'N 80 deg.16.20'W

19............................ 25 deg.24.00'N 80 deg.09.10'W

20............................ 25 deg.31.50'N 80 deg.07.00'W

21............................ 25 deg.39.70'N 80 deg.06.85'W

22............................ 25 deg.45.00'N 80 deg.06.10'W

------------------------------------------------------------------------

In the Vicinity of Key West Harbor

(Reference Chart: United States 11434, 21st Edition--August 11, 1990)

------------------------------------------------------------------------

23............................ 24 deg.27.95'N 81 deg.48.65'W

24............................ 24 deg.23.00'N 81 deg.53.50'W

25............................ 24 deg.26.60'N 81 deg.58.50'W

26............................ 24 deg.27.75'N 81 deg.55.70'W

27............................ 24 deg.29.35'N 81 deg.53.40'W

28............................ 24 deg.29.35'N 81 deg.50.00'W

[[Page 32173]]

29............................ 24 deg.27.95'N 81 deg.48.65'W

------------------------------------------------------------------------

Area Surrounding the Marquesas Keys

(Reference Chart: United States 11434, 21st Edition--August 11, 1990)

------------------------------------------------------------------------

30............................ 24 deg.26.60'N 81 deg.59.55'W

31............................ 24 deg.23.00'N 82 deg.03.50'W

32............................ 24 deg.23.60'N 82 deg.27.80'W

33............................ 24 deg.34.50'N 82 deg.37.50'W

34............................ 24 deg.43.00'N 82 deg.26.50'W

35............................ 24 deg.38.31'N 81 deg.54.06'W

36............................ 24 deg.37.91'N 81 deg.53.40'W

37............................ 24 deg.36.15'N 81 deg.51.78'W

38............................ 24 deg.34.40'N 81 deg.50.60'W

39............................ 24 deg.33.44'N 81 deg.49.73'W

40............................ 24 deg.31.20'N 81 deg.52.10'W

41............................ 24 deg.28.70'N 81 deg.56.80'W

42............................ 24 deg.26.60'N 81 deg.59.55'W

------------------------------------------------------------------------

Area Surrounding the Dry Tortugas Islands

(Reference Chart: United States 11434, 21st Edition--August 11, 1990)

------------------------------------------------------------------------

43............................ 24 deg.32.00'N 82 deg.53.50'W

44............................ 24 deg.32.00'N 83 deg.00.05'W

45............................ 24 deg.39.70'N 83 deg.00.05'W

46............................ 24 deg.45.60'N 82 deg.54.40'W

47............................ 24 deg.45.60'N 82 deg.47.20'W

48............................ 24 deg.42.80'N 82 deg.43.90'W

49............................ 24 deg.39.50'N 82 deg.43.90'W

50............................ 24 deg.35.60'N 82 deg.46.40'W

51............................ 24 deg.32.00'N 82 deg.53.50'W

------------------------------------------------------------------------

Appendix VIII to Subpart P of Part 922--Marine Life Rule [As

Excerpted From Chapter 46-42 of the Florida Administrative Code]

46-42.001 Purpose and Intent; Designation of Restricted Species;

Definition of ``Marine Life Species.''

46-42.002 Definitions.

46-42.003 Prohibition of Harvest: Longspine Urchin, Bahama Starfish.

46-42.0035 Live Landing and Live Well Requirements.

46-42.0036 Harvest in Biscayne National Park.*

46-42.004 Size Limits.

46-42.005 Bag Limits.

46-42.006 Commercial Season, Harvest Limits.

46-42.007 Gear Specifications and Prohibited Gear.

46-42.008 Live Rock.*

46-42.009 Prohibition on the Taking, Destruction, or Sale of Marine

Corals and Sea Fans.

*--Part 42.0036 was not reproduced because it does not apply to

the Sanctuary.

*--Part 42.008 was not reproduced because it is regulated

pursuant to this Part 922.163(2)(ii).

46-42.001 Purpose and Intent; Designation of Restricted Species;

Definition of ``Marine Life Species''.--

(1) (a) The purpose and intent of this chapter are to protect and

conserve Florida's tropical marine life resources and assure the

continuing health and abundance of these species. The further intent of

this chapter is to assure that harvesters in this fishery use nonlethal

methods of harvest and that the fish, invertebrates, and plants so

harvested be maintained alive for the maximum possible conservation and

economic benefits.

(b) It is the express intent of the Marine Fisheries Commission

that landing of live rock propagated through aquaculture will be

allowed pursuant to the provisions of this chapter.

(2) The following fish species, as they occur in waters of the

state and in federal Exclusive Economic Zone (EEZ) waters adjacent to

state waters, are hereby designated as restricted species pursuant to

Section 370.01(20), Florida Statutes:

(a) Moray eels--Any sp

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