Florida Keys National Marine Sanctuary Final Regulations

SUMMARY: Pursuant to the Florida Keys National Marine Sanctuary and

Protection Act and the National Marine Sanctuaries Act, NOAA has

developed the comprehensive final management plan for the Florida Keys

National Marine Sanctuary (FKNMS or the Sanctuary). NOAA hereby issues

final regulations to implement that plan and govern the conduct of

activities within the Sanctuary. This document also summarizes the

Final Management Plan--Environmental Impact Statement (FMP/EIS) for the

Sanctuary. The FMP/EIS details the goals and objectives, management

responsibilities, research activities, educational and outreach

programs, and interpretive enforcement activities for the Sanctuary.

The intended effect of the final regulations, and FMP/EIS is to protect

and manage the conservation, recreational, ecological, historical,

research, educational, and aesthetic qualities of the Sanctuary

consistent with the Florida Keys National Marine Sanctuary and

Protection Act and the National Marine Sanctuaries Act.

EFFECTIVE DATES: Congress and the Governor of the State of Florida have

forty-five days of continuous session of Congress beginning on the day

on which this document is published to review the regulations before

they take effect. After forty-five days, the regulations automatically

become final and take effect, unless the Governor of the State of

Florida certifies within the forty-five-day period to the Secretary of

Commerce that a regulation or regulations is unacceptable. In such

case, the regulation (or regulations) cannot take effect in the area of

the Sanctuary lying within the seaward boundary of the State of

Florida. In no event will Sec. 922.164(d) become effective in State

waters before July 1, 1997. A document announcing the effective dates

will be published in the Federal Register.

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, 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. Summary of Final Management Plan/Environmental Impact Statement

The FMP/EIS sets forth the affected environment of the Sanctuary

including the boundary and details its resources and human uses of the

Sanctuary. The FMP/EIS also describes the resource protection,

research, education and interpretive enforcement programs, and details

the specific activities to be conducted in each management program

area. The FMP/EIS includes a discussion, by program area, of agency

roles and responsibilities.

The goals and objectives for the Sanctuary are to: (1) Enhance

resource protection through comprehensive and coordinated conservation

and ecosystem management that complements existing regulatory

authorities; (2) support, promote, and coordinate scientific research

on, and monitoring of, the site-specific marine resources to improve

management decision-making in national marine sanctuaries; (3) enhance

public awareness, understanding, and the wise use of the marine

environment through public education, and interpretive enforcement; and

(4) facilitate, to the extent compatible with the primary objective of

resource protection, multiple uses of the Sanctuary.

A. Resource Protection

The highest priority management goal is to protect the marine

environment, resources, and qualities of the Sanctuary. The specific

objectives of protection efforts are to: (1) Reduce threats to

Sanctuary resources; (2) encourage participation by interested agencies

and organizations in addressing specific management concerns (e.g.,

monitoring and emergency-response programs); (3) develop an effective

and coordinated program for the interpretive enforcement of Sanctuary

regulations in addition to other regulations already in place; (4)

promote public awareness of, and voluntary compliance with, Sanctuary

regulations and objectives through an educational/interpretive program

stressing resource sensitivity and wise use; (5) ensure that the water

quality of the Florida Keys is maintained at a level consistent with

the purposes of Sanctuary designation; (6) establish cooperative

agreements and other mechanisms for coordination among all the agencies

participating in Sanctuary management; (7) ensure that the appropriate

management agencies incorporate research results and scientific data

into effective resource protection strategies; and (8) coordinate

policies and procedures among the agencies sharing responsibility for

protection and management of Sanctuary resources.

B. Research Program

Effective management of the Sanctuary requires the conduct of a

Sanctuary research program. The purpose of Sanctuary research is to

improve understanding of the Florida Keys' coastal and offshore

environment, resources, and qualities, and to resolve specific

management problems. Some of

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these management problems involve resources common to coastal and

offshore waters, and nearby Federal, State, and local refuges and

reserves. Research results will both support management efforts to

protect Sanctuary resources and qualities, and be incorporated into

interpretative programs for visitors and others interested in the

Sanctuary.

Specific objectives for the research program are to: (1) Establish

a framework and procedures for administering research to ensure that

research projects are responsive to management concerns and that

results contribute to improved management of the Sanctuary; (2) focus

and coordinate data collection efforts on the physical, chemical,

geological, and biological oceanography of the Sanctuary; (3) encourage

studies that integrate research from the variety of coastal habitats

with nearshore and open ocean processes; (4) initiate a monitoring

program to assess environmental changes as they occur due to natural

and human processes; (5) identify the range of effects on the

environment that would result from predicted changes in human activity

or natural phenomena; (6) encourage information exchange and

cooperation among all the organizations and agencies undertaking

management-related research in the Sanctuary to promote more informed

management; and (7) incorporate research results into the interpretive/

education program in a format useful for the general public.

C. Education and Outreach

The goal for the Sanctuary education and outreach program is to

improve public awareness and understanding of the significance of the

Sanctuary and the need to protect its resources and qualities.

The management objectives designed to meet this goal are to: (1)

Provide the public with information on the Sanctuary and its goals and

objectives, with an emphasis on the need to use Sanctuary resources and

qualities wisely to ensure their long-term viability; (2) broaden

support for Sanctuary management by offering programs suited to

visitors with a diverse range of interests; (3) provide for public

involvement by encouraging feedback on the effectiveness of education

programs, collaboration with Sanctuary management staff in extension

and outreach programs, and participation in other volunteer programs;

and (4) collaborate with other organizations to provide educational

services complementary to the Sanctuary program.

D. Visitor Use

The Sanctuary goal for visitor use management is to facilitate, to

the extent compatible with the primary objective of resource

protection, public and private uses of the resources of the Sanctuary

not prohibited pursuant to other authorities.

Specific management objectives are to: (1) Provide relevant

information about Sanctuary regulations, use policies, and standards;

(2) collaborate with public and private organizations in promoting

compatible uses of the Sanctuary; (3) encourage the public who use the

Sanctuary to respect sensitive Sanctuary resources and qualities; and

(4) monitor and assess the levels of use to identify and control

potential degradation of resources and qualities, and minimize

potential user conflicts.

The Sanctuary is currently managed from offices located in Key

Largo and Key West, with the headquarters in Marathon.

III. Summary of the Final Regulations

Two sets of existing regulations are eliminated and replaced by

this final rule. Specifically, parts 929 and 937 to title 15 of the

Code of Federal Regulations, which govern activities in the Key Largo

and Looe Key National Marine Sanctuaries, respectively, are removed and

replaced by the new regulations which govern the entire FKNMS.

Consistent with the FKNMSPA, the Looe Key and Key Largo National Marine

Sanctuaries have been incorporated into the FKNMS as Existing

Management Areas (Sec. 922.164(b)(1)).

Organizationally, these final regulations are revised from the

proposed regulations in furtherance of the President's Regulatory

Reinvention Initiative to, among other things, consolidate duplicative

regulatory provisions. Consequently, the new regulations for the most

part appear in a new subpart P to 15 CFR part 922 (15 CFR 922.160--

922.167) and in Appendixes I through VIII to subpart P. Existing

Secs. 922.3, 922.42, 922.45, 922.46, 922.49 and 922.50 of 15 CFR part

922 are also applicable to the Sanctuary. In some instances, this rule

makes minor revisions to those and other sections of the National

Marine Sanctuary Program Regulations at 15 C.F.R. part 922 to make them

meld with the new subpart P.

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 922.161 and Appendix I describe the boundary of the

Sanctuary as established by section 5 of the FKNMSPA.

Existing Sec. 922.3 defines terms applicable to all National Marine

Sanctuaries. The Marine Protection, Research, and Sanctuaries Act also

defines other terms applicable to all National Marine Sanctuaries. The

terms ``historical resource,'' and ``sanctuary quality'' were slightly

revised to reflect the Sanctuary's definitions as they appeared in the

proposed regulations. The modified definitions further clarify the

meaning of these terms, which are applicable to all the sanctuaries

found in part 922.

Section 922.162 defines terms only applicable to the FKNMS.

Existing Sec. 922.42 specifies that all activities, including

fishing, boating, diving, research, and education, are allowed in the

National Marine Sanctuaries except to the extent that those activities

are restricted or prohibited by subparts F through P of part 922 (in

the case of the FKNMS by Secs. 922.163, 922.164), subject to any

emergency regulation (in the case of the FKNMS under Sec. 922.165), and

subject to all prohibitions, regulations, restrictions, and conditions

validly imposed by any Federal, State, or local authority of competent

jurisdiction. This section is intended to assure that if activities are

not prohibited or otherwise restricted or conditioned pursuant to this

part, or by any other Federal, State, or local authority of competent

jurisdiction, then they are expressly allowed within 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 first activity prohibited is exploring for, developing, or

producing minerals or hydrocarbons within the Sanctuary. The FKNMSPA

already prohibits these activities. The Sanctuary's significant natural

resources and qualities are especially sensitive to potential impacts

from outer continental shelf minerals or hydrocarbon activities and

should be protected. Specifically, the corals, seagrasses, and

mangroves of the Florida Keys and the Sanctuary's water quality are

especially vulnerable to oil and gas activities in the area. The

prohibition on oil, gas and mineral activities will help protect the

Sanctuary's resources and qualities.

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This specific prohibition is consistent with the general prohibition on

drilling into, dredging or otherwise altering the seabed discussed

below. The codification of the statutory prohibitions into the

Sanctuary regulations is for regulatory cohesiveness (so that all

restrictions or prohibitions found in the statute or imposed pursuant

to the statute's authority can be found in one place) rather than to

provide any additional protections.

The second activity prohibited is the removal of, injury to, or

possession of coral or live rock except as authorized by a Federal or

State permit. The intent of this prohibition is to conserve the coral

reefs, to protect the biodiversity of the Sanctuary, to protect the

habitats of commercially and ecologically important species, and to

preserve the natural functional aspects of the coral reef ecosystem.

The third activity prohibited is alteration of, or construction on,

the seabed. Such actions as drilling, dredging, and prop dredging are

prohibited by this regulation. The seabed and the water over the seabed

are the basic elements for all marine ecosystems. This prohibition

protects the seabed as well as the resources in and on the seabed, such

as shipwrecks, and seagrasses. Exceptions are made for anchoring in

manners not otherwise prohibited, traditional fishing activities not

otherwise prohibited, installation and maintenance of navigational

aids, harbor maintenance, repair and replacement of jetties, and

breakwaters, and construction, repair, and replacement of docks and

piers.

The fourth activity prohibited is the discharge or 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. The

primary intent of this prohibition is to protect the Sanctuary

resources and qualities against the harmful effects of land and marine

based pollution, particularly vessel source pollution, to reduce and

prevent contamination by marine debris and related impacts associated

with pollution of the marine environment of the Sanctuary. Together

with the prohibition on the alteration of, or construction on, the

seabed, this provides a safety net for protection of specific resources

and the ecosystem.

The fifth activity prohibited is the operation of vessels in a

manner which harms significant Sanctuary resources such as operating a

vessel in such a manner as to strike or otherwise injure coral,

seagrass, other immobile organism attached to the seabed, or to injure

or take wading, nesting, or roosting seabirds or marine mammals. Also

specifically prohibited is having a vessel anchored on living coral

other than hardbottom in less than 40 feet of water when visibility is

such that the seabed can be seen, operating a vessel at a speed greater

than idle speed only/no wake within an area designated as idle speed

only/no wake, within 100 yards of navigational aids indicating emergent

or shallow reefs, residential shorelines, or stationary vessels, within

100 feet of divers flags, and operating a vessel in a manner which

endangers life, limb, marine resources, or property.

The sixth activity prohibited is diving without a red and white

``divers down'' flag or a blue and white ``alpha'' flag in Federal

waters. The intent of this prohibition on divers in conjunction with

the previous restriction on vessel operation is to help prevent injury

to humans and facilitate safe, multiple use of the Sanctuary.

The seventh activity prohibited is the release of exotic species.

Exotic species can permanently alter a natural ecosystem and its

assemblages by such things as out competing indigenous species and

preying on indigenous species. The intent of this prohibition is to

prevent injury to Sanctuary resources, to protect the biodiversity of

the Sanctuary, and to preserve the natural functional aspects of the

ecosystem. By protecting the natural ecosystem and assemblages, it also

addresses concerns from commercial and recreational users dependent

upon the natural ecosystem and assemblages.

The eighth activity prohibited is the tampering with official signs

or markers or navigational aids. The signs, markers and navigational

aids generally are posted to inform the users about regulations as well

as the existence of certain Sanctuary resources, primarily corals and

seagrasses, in order to prevent injury to those resources. They also

address safety concerns for humans and property. Prohibiting tampering

is reasonable and necessary for effective prevention and enforcement of

regulations.

The ninth activity prohibited is the removing or injuring of

Sanctuary historical resources. Submerged historical resources

constitute important, irreplaceable, public resources of the Sanctuary

because they contain important information about human heritage,

history, and culture. This prohibition is designed to protect these

resources and ensure their availability for present and future

research, education and other uses compatible with the NMSA and the

Abandoned Shipwreck Act (ASA).

The tenth activity prohibited is taking or possessing certain

protected wildlife. The Sanctuary is an important staging area,

breeding area, and feeding area for a variety of wildlife, including a

number of endangered and threatened species. The intent of this

prohibition is to protect Sanctuary resources and endangered and/or

threatened species.

The eleventh activity prohibited is the possession or use of

explosives and electrical charges. The intent of this prohibition is to

prevent injury to Sanctuary resources.

The twelfth activity prohibited is the harvest or possession of

marine life species (tropical fish and plants), except in accordance

with the Marine Life Rule of the Florida Administrative Code reproduced

in Appendix VIII to this subpart. The intent of this regulation is to

protect Sanctuary resources and biodiversity by adopting relevant

portions of the Florida Marine Life rule as a uniform regulation to be

applied throughout the Federal and State waters of the Sanctuary.

The thirteenth activity prohibited is interfering with law

enforcement officers. The intent of this prohibition is to prevent the

obstruction of justice.

Section 922.163 provides certain exemptions from the prohibitions

such as when a prohibited activity is conducted by a Federal, State, or

local officer while performing enforcement duties and/or while

responding to emergencies. Certain activities conducted by the U.S.

Department of Defense are also exempt. Also, a prohibited activity may

be conducted if specifically authorized by, and conducted in accordance

with a National Marine Sanctuary Permit.

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 type 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

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overlapping Sanctuary zones are concurrently subject to the regulations

applicable to each overlapping area.

Section 922.164(a) prohibits the operation of a tank vessel or a

vessel greater than 50 meters in registered length in an ATBA. The

boundary coordinates for the ATBAs are listed in Appendix VII to this

subpart. This prohibition merely codifies into the Sanctuary

regulations the prohibition in the FKNMSPA against this activity in the

ATBAs. The prohibition should prevent or minimize large or tank vessel

groundings on the coral reef, and thus minimize the risk of extensive

physical damage, spills and associated, possibly irreparable, injury to

Sanctuary resources likely to result from a grounding of a large vessel

or tank vessel.

Section 922.164(b) sets forth additional restrictions applicable to

Existing Management Areas--areas of the Sanctuary that are already

within a resource management area established by NOAA or by another

Federal authority of competent jurisdiction, and in need of a level of

protection higher than that provided by the Sanctuary-wide prohibitions

and restrictions of Sec. 922.163. The Existing Management Areas are the

Looe Key and Key Largo National Marine Sanctuaries and the Key West and

Great White Heron National Wildlife Refuges. The boundaries of these

areas are set forth in Appendix II to subpart P.

The FKNMSPA subsumed the Key Largo and Looe Key National Marine

Sanctuaries into the FKNMS. The qualities and values for which those

Sanctuaries were originally designated remain and require a continued

level of protection above and beyond those applicable Sanctuary-wide.

Therefore, consistent with the FKNMSPA, additional restrictions will

remain applicable to those two areas. In order to do so, the areas of

the two Sanctuaries have been zoned as Existing Management Areas with

portions thereof also designated as Sanctuary Preservation Areas and

Special-use Areas. Therefore, the special restrictions applicable to

the two areas appear in the restrictions applicable to Existing

Management Areas, Sanctuary Preservation Areas, and Special-use Areas.

Section 922.164(b)(1) sets forth the special restrictions

applicable to the entire Key Largo and Looe Key Existing Management

Areas: (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 National Marine Fisheries Service Fishery

Management Plans; (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; and (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.

Also designated Existing Management Areas are the Great White Heron

and Key West National Wildlife Refuge Management Areas. The Refuges are

subject to the continuing management and control of the Department of

the Interior, notwithstanding the exercise of concurrent regulatory

authority by NOAA in the surrounding marine environment in accordance

with this part. The development of these Sanctuary regulations was the

result of coordination with the Department of the Interior, U.S. Fish

and Wildlife Service. Such coordination will continue in the

implementation and enforcement of these rules and regulations in a

manner that complements the Sanctuary final management plan as well as

existing refuge management plans. The Sanctuary's interpretive

enforcement approach will be utilized in these areas to supplement

existing enforcement by the U.S. Fish and Wildlife Service.

Section 922.164(b)(2) incorporates existing U.S. Fish and Wildlife

Service restrictions which prohibit waterskiing, operating personal

watercraft, and operating airboats within the Great White Heron and Key

West National Wildlife Refuge Management Areas into Sanctuary

regulations. By incorporating those provisions into the Sanctuary

regulations, civil penalties can be sought for violation of Sanctuary

regulations. Presently, only criminal sanctions, which are more

difficult to prove and not always the best means of obtaining

compliance, are available.

Section 922.164(c) sets forth the procedures for designating and

changing the designation of all or part of the marine portions of the

27 Wildlife Management Areas listed in Appendix III as ``idle speed

only/no-wake'', ``no motor'', ``no access buffer'' or ``closed'' areas.

Wildlife Management Areas are areas established for the management,

protection, and preservation of wildlife resources, including such

areas established for the protection and preservation of endangered or

threatened species or their habitats, within which access is restricted

to minimize disturbances to wildlife and to ensure protection and

preservation consistent with the Sanctuary designation and other

applicable law governing the protection and preservation of wildlife

resources. Only the marine portions of these areas are within the

Sanctuary, the land portions are under the Department of the Interior's

and the State of Florida's jurisdiction and protection.

An ``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. A ``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. A ``no-access buffer zone'' means a portion

of the Sanctuary where vessels are prohibited from entering regardless

of the method of propulsion. ``Closed'' means all entry or use is

prohibited.

The regulations require the Director or designee, in cooperation

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

appropriate, to effect such designations by posting official signs

conspicuously, using mounting posts, buoys, or other means according to

location and purpose, at appropriate intervals and locations. Appendix

III also sets forth the access restrictions applicable to the marine

portions of the Wildlife Management Areas. The intent of these rules is

to protect wildlife resources from injury or harmful disturbance within

sensitive areas and habitats. It is also the intent of these

restrictions to protect Sanctuary resources and qualities through

coordination with the Department of the Interior and others in a manner

that recognizes and complements the existing management of the land

portions of these areas. For example, a closure of a beach above the

mean high water by the Department of the Interior is complemented by a

closure of adjacent marine areas in the Sanctuary regulations. More

importantly, the Sanctuary's interpretive enforcement approach will be

utilized in these areas to supplement existing enforcement by the

Department of the Interior. As discussed above, civil sanctions are

available to address violations of

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Sanctuary regulations while only criminal sanctions are available to

address violations of the Interior's rules.

Section 922.164(d) sets forth prohibitions applicable to activities

conducted within Ecological Reserves and Sanctuary Preservation Areas.

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 sets forth the geographic coordinates of the Western Sambos

Ecological Reserve-the only Ecological Reserve established by the final

regulations. Another Ecological Reserve-the Dry Tortugas Ecological

Reserve will be proposed by a separate rulemaking.

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 sets forth the

geographic coordinates of the 18 Sanctuary Preservation Areas

established by the final regulations.

Above and beyond the activities prohibited Sanctuary-wide, the

following activities are prohibited in the Ecological Reserves and

Sanctuary Preservation Areas: (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; (iii) except for catch

and release fishing by trolling in the Conch Reef, Alligator Reef,

Sombrero Reef, and Sand Key Sanctuary Preservation Areas, 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 (baitfishing by net for ballyhoo in SPAs will be

allowed pursuant to a Sanctuary permit); (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 a

temporary access restriction or closure, violating a temporary access

restriction imposed by the Director.

Section 922.164(d)(2) authorizes the Director to 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 must provide for continuous monitoring of the area during

the pendency of the restriction. The Director must 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.

It should be noted that Sec. 922.164(d) will not take effect in

State waters before July 1, 1997, to allow the State of Florida Marine

Fisheries Commission to complete its rulemaking process related to the

Sambos Ecological Reserve and those Sanctuary Preservation Areas

located in State waters. If the Commission's rule is not substantively

the same as NOAA's, then NOAA will modify these regulations to conform

with those of the State or will consult with the State on whether the

non-conforming portions of the Sanctuary regulations should be

withdrawn from applying in State waters.

The intent of the establishment of, and regulation of uses within,

the Sanctuary Preservation Areas is to avoid concentrations of uses

that could result in significant declines in species populations or

habitat, to reduce conflicts between uses, to protect areas that are

critical for sustaining important marine species or habitats, or to

provide opportunities for scientific research. The intent of the

establishment of, and regulation of uses within, the Ecological

Reserves is 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.

Section 922.164(e) sets forth the procedures and criteria pursuant

to which the Director or designee may set aside discrete areas of the

Sanctuary as Special-use Areas, designate such areas as ``recovery

areas'' to provide for the recovery of Sanctuary resources from

degradation or other injury attributable to human uses; ``restoration

areas'' to provide for restoration of degraded or otherwise injured

Sanctuary resources; ``research-only areas'' to provide for scientific

research or education relating to protection and management, through

the issuance of a Sanctuary General permit for research; or

``facilitated use areas'' 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, as appropriate, and impose access and use

restrictions to

[[Page 4583]]

protect the Sanctuary resources and qualities and allow for multiple,

compatible uses within the Sanctuary. Special-use Areas must be no

larger than the size the Director deems reasonably necessary to

accomplish the applicable objective. Appendix VI sets forth the

boundaries of the four Special-use Areas established by the final

regulations. All four of these areas are ``research-only areas''.

Persons conducting activities within any Special-use Area are

required to comply with the access and use restrictions specified in

Sec. 922.164(e)(3) 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.

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, 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: (1) Prevent significant injury to Sanctuary resources where

circumstances create an imminent risk to such resources; (2) initiate

restoration activity where a delay in time would significantly impair

the ability of such restoration activity to succeed; or (3) initiate

research activity where an unforeseen natural event produces an

opportunity for scientific research that may be lost if research is not

initiated immediately. If the Director determines that a notice of

modification must be promulgated immediately, the Director must, 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 must either rescind, modify or allow the modification to

remain unchanged through notice in the Federal Register.

Section 922.165 provides that where necessary to prevent, minimize,

or minimize the imminent risk of destruction of, loss of, or injury to

a Sanctuary resource, 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.

Section 922.45 sets forth the maximum civil penalty for violating

the NMSA or FKNMSPA, the regulations or any permit issued pursuant

thereto--$100,000. Each day of a continuing violation constitutes a

separate violation. Regulations setting forth the procedures for civil

penalties, permit sanctions, use of written warnings and release or

forfeiture of seized property appear at 15 CFR part 904.

Section 922.46 repeats the provision in section 312 of the NMSA

that any person who destroys, causes the loss of, or injures any

Sanctuary resource is liable to the United States for response costs,

damages and interest resulting from such destruction, loss or injury,

and any vessel used to destroy, cause the loss of, or injure any

Sanctuary resource is liable in rem to the United States for response

costs, damages and interest resulting from destruction, loss or injury.

The purpose of Secs. 922.45 and 922.46 is to further notify the

public of the liability for violating a Sanctuary regulation, permit

issued pursuant thereto, or the NMSA, or for causing the destruction,

loss of, or injury to Sanctuary resources.

Section 922.166(a) sets forth the procedures for applying for a

National Marine Sanctuary General Permit to conduct a prohibited

activity and the criteria governing the issuance, denial, amendment,

suspension and revocation of such permits. A General Permit may be

issued by the Director or designee if he or she finds that the activity

will: Further research or monitoring related to Sanctuary resources and

qualities; further the educational, natural or historical resource

value of the Sanctuary; further salvage or recovery operations in or

near the Sanctuary in connection with a recent air or marine casualty;

assist in managing the Sanctuary; or otherwise further Sanctuary

purposes, including facilitating multiple use of the Sanctuary, to the

extent compatible with the primary objective of resource protection.

The Director cannot issue a General Permit without finding that: The

applicant has the professional qualifications and financial resources

to conduct and complete the activity; the duration of the activity is

no longer than necessary and the methods and procedures are appropriate

to achieve the stated purpose; the activity will be conducted in a

manner compatible with the primary objective of protection of Sanctuary

resources and qualities; it is necessary to conduct the activity within

the Sanctuary to achieve its purposes; the reasonably expected end

value of the activity will further Sanctuary goals and purposes and

outweighs any potential adverse impacts of the activity on Sanctuary

resources. For activities proposed to be conducted within an Existing

Management Area, a Wildlife Management Area, an Ecological Reserve, a

Sanctuary Preservation Area, or a Special-use Area, the Director cannot

issue a Permit unless he or she also finds that such activities will

further and are consistent with the purposes for which such area was

established.

Section 922.166(b) sets forth the application procedures and

issuance criteria for National Marine Sanctuary Survey/Inventory of

Historical Resources Permits. Such permits are not required if such

survey/inventory activity does not involve any activity prohibited by

Secs. 922.163 or 922.164. 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. A Survey/Inventory permit may be issued if the activity 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. Such permit may also be

issued if the activities are intrusive but 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

[[Page 4584]]

will cause no significant adverse impacts on Sanctuary resources or

qualities. Such permit must be determined to be in the public interest

and be consistent with the Programmatic Agreement Among NOAA, the

Advisory Council on Historic Preservation, and the State of Florida on

Submerged Cultural Resources (hereinafter SCR Agreement).

Pursuant to Sec. 922.166(c), a National Marine Sanctuary Research/

Recovery of Sanctuary Historical Resources Permit may be issued for a

person to conduct any activity prohibited by Secs. 922.163 or 922.164

involving the research/recovery of Sanctuary historical resources. Such

research/recovery of resources must be determined to be in the public

interest as described in these regulations and the SCR agreement.

Intrusive research and/or recovery may destroy the resources and

therefore the consideration of such permits will be based upon a

balancing of factors and criteria to determine whether the goals of

preservation, research, education, and public access are better served

by permitting this type of activity as opposed to leaving the historic

resources in place.

Pursuant to Sec. 922.166(d) (1) and (2), National Marine Sanctuary

Special-use permits may be issued to conduct a commercial or

concession-type activity prohibited by Secs. 922.163 or 922.164. Such

permits may be issued 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 proposed

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 and Sanctuary resource; and for the

deaccession-transfer of Sanctuary Historical Resources, unless the

activity will be conducted in accordance with all requirements of the

SCR Agreement.

Section 922.166(d)(3) allows the Director to assess and collect

fees for the conduct of any activity authorized by a Special-use permit

issued pursuant to this section. No Special-use permit can be effective

until all assessed fees are paid. This section also provides the

criteria for determining the appropriate costs and fees.

Section 922.166(e) specifies the information which must be

submitted when applying for a permit and the address for submissions

and for submitting supplementary information.

Section 922.166(f) states that a permit may be issued for a period

not exceeding five years. Renewals must follow the same procedures as

those for applying for a new permit. All permits will be reviewed

annually to determine the permittee's compliance.

Section 922.166(g) states that the Director may amend, suspend, or

revoke a permit for good cause. Further, the Director may deny a permit

if the permittee or applicant has acted in violation of a previous

permit, or for other good cause. Procedures governing permit sanctions

and denials for enforcement reasons are set forth in subpart D of 15

CFR part 904.

Pursuant to Sec. 922.166(h), the applicant for or holder of a

Sanctuary permit may appeal the denial conditioning, amendment,

suspension or revocation of a permit pursuant to the procedures set

forth in Sec. 922.50.

Pursuant to Sec. 922.166(i), a permit issued other than a Special-

use permit is nontransferable. Special-use permits may be transferred,

sold, or assigned with the written approval of the Director as

described in this section.

Section 922.166(j) requires that permits (or a copy thereof) issued

pursuant to these regulations must be maintained in legible condition

on board all vessels or aircraft used in the conduct of the permitted

activity.

Pursuant to Sec. 922.166(k), any permit issued pursuant to this

section is subject to the following terms and conditions: all permitted

activities will be conducted in a manner that does not destroy, cause

the loss of, or injury Sanctuary resources or qualities, except as

specifically authorized; the permittee agrees to hold the United States

harmless against any claims arising from permitted activities; all

necessary Federal, State and local permits from all agencies with

jurisdiction over the proposed activities shall be secured before

commencing field operations.

Pursuant to Sec. 922.166(l), in addition to Sec. 922.166(k), the

permits for research/recovery of historical resources require that a

professional archaeologist be in charge of the research-recovery

planning, field recovery operations, and research analysis; an

agreement with a conservation laboratory shall be in place before field

recovery operations begin; an approved nautical conservator shall be in

charge of conservation activities; and a curation agreement with a

museum or facility shall be in place before commencing field operations

which addresses the curation, public access, display and maintenance of

the recovered historical resources. Deaccession/transfer of historical

resources require a Special-use permit pursuant to paragraph (d). Such

Special-use permits must also be executed in accordance with the

requirements of the SCR Agreement.

In addition to the paragraphs above, Sec. 922.166(m) stipulates

that any permit issued pursuant to this section is subject to such

other terms and conditions as the Director deems necessary for the

purposes for which the Sanctuary is designated, including but not

limited to: Any data or information obtained under the permit shall be

made available to the public; a NOAA official shall be allowed to

observe any activity conducted under the permit, the permittee shall

submit one or more reports on the status, progress or results of

activity authorized under the permit; the permittee shall submit an

annual report; the permittee shall purchase and maintain general

liability insurance or other acceptable security against potential

claims for loss.

Section 922.167 sets forth procedures for requesting certification

of preexisting leases, licenses, permits, approvals, other

authorizations or rights to conduct a prohibited activity in existence

on the effective date of these regulations authorizing the conduct of

an otherwise prohibited activity. The holder of such authorization must

notify the Director within 90 days of the effective date of these

regulations of the existence of such authorization and request

certification of such authorization; the holder must comply with other

provisions of this section and must comply with any terms and

conditions on the exercise of such authorization by the Director to

achieve the purposes for which the Sanctuary was designated. The permit

holder may continue the authorized activity without being in violation

of these regulations pending final agency action on his or her

certification request. Requests for findings or certifications must be

addressed to the FKNMS office in Marathon, Florida. The Director may

request additional information from the certification requester as is

deemed necessary to determine if the activity is consistent with the

purposes for which the Sanctuary was designated. This section also

provides the appeal process for any action conditioning, amending,

suspending, or revoking certifications. Any amendment, renewal or

extension made after the effective date of this regulation is subject

to the provisions of Sec. 922.168.

Section 922.49 addresses notification and review of applications

for leases, licenses, permits, approvals or other authorizations to

conduct a prohibited activity in the FKNMS. A person may conduct an

activity prohibited by these regulations if such activity is authorized

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

or other authority after the effective date of these

[[Page 4585]]

regulations provided that the applicant notifies the Director in

writing within 15 days of filing the application or the effective date

of these regulations, whichever is later; the applicant complies with

the other provisions of this section; the Director notifies the

applicant and authorizing agency that he or she does not object to the

issuance of the authorization; and the applicant complies with any

terms and conditions the Director deems reasonably necessary to protect

Sanctuary resources and qualities.

Pursuant to paragraph (b), any potential applicant for an

authorization described in this part may request the Director to issue

a finding as to whether the activity is prohibited by Secs. 922.163 or

922.164. Paragraph (c) provides that applications be mailed to the

address found, in the case of the FKNMS, in subpart P. Paragraph (d)

authorizes for the Director to request additional information as

necessary for the applicant to enable a determination whether to object

to issuance of an authorization described in paragraph (a) above.

Paragraph (e) requires the Director to notify the agency to which the

application was made in writing whether he or she has an objection to

issuance and what terms and conditions he or she deems necessary to

protect Sanctuary resources.

Paragraphs (f) and (g) provide the administrative ability for the

Director to amend the terms and conditions necessary to protect

Sanctuary resources and qualities whenever additional information

becomes available and extend any time limit for good cause. Paragraph

(h) specifies that an applicant may appeal any objection by, or terms

or conditions imposed by, the Director to the Assistant Administrator

or designee in accordance with the provisions of Sec. 922.50.

Section 922.50 sets forth the appeals process for administrative

actions related to the issuance for permits except for enforcement

actions.

Major Issues Addressed in Comments and NOAA's Responses

On March 30, 1995 NOAA published a proposed Designation Document

and proposed implementing regulations and announced the availability of

the draft management plan and environmental impact statement (DMP/EIS)

(60 FR 16399). Public hearings to receive comments on the proposed

regulations, and the DMP/EIS were held on November 1 in Miami; November

3 in Key Largo; November 6 in Marathon; November 7 in Key West;

November 9 in St. Petersburg; and November 14 in Silver Spring, MD.

The nine month public review period ending on December 31, 1995,

resulted in NOAA receiving over 6,400 statements of public comment on

the DMP/EIS. In addition, the Sanctuary Advisory Council (SAC) provided

NOAA with its comments on the plan. All comments received on the DMP/

EIS were recorded in a computerized database and assigned a unique

comment identification number. These records consist of the reviewer's

name; company, organization, or agency; address; a synopsis of the

comment; and NOAA's response. Details of this public review process are

provided in the general introduction to Volume I of the final

management plan and environmental impact statement (FMP/EIS).

Comments were received about many aspects of the management plan

and EIS, however, a majority of the comments focused on a limited

number of issues. Comments were received from diverse groups and

individuals, including private businesses and organizations, elected

officials, the SAC and representatives of Federal, State, and county

agencies.

NOAA received a number of specific comments on the DMP/EIS,

including recommendations on strategies, activities, and priority

levels. Some comments were specific enough to cite page numbers and

recommended language revisions. NOAA appreciates the level of public

comment and has revised the document based on a balance of these

comments in light of the requirements of the NMSA, FKNMSPA, NEPA, and

other applicable laws. Consistent with the requirements of NEPA and the

Administrative Procedure Act (APA), this section discusses the

significant issues and substantive concerns that the commentors have

brought to NOAA's attention.

All comments received by NOAA in response to the Federal Register

notices and public hearings were considered and, where appropriate,

were incorporated. A summary of the significant comments on the

proposed regulations and DMP/EIS and NOAA's responses is set forth

below. The comments are also presented and responded to in the

administrative record.

The Need for the Florida Keys National Marine Sanctuary

Comment: There is no need for a Sanctuary.

Response: NOAA disagrees. In 1990, Congress enacted the FKNMSPA in

recognition of the need to provide comprehensive protection and

management of the diverse marine environments of the Florida Keys.

These environments possess important and unique living and non-living

resources, including seagrass meadows, mangrove islands, and extensive

living coral reefs. These habitats support rich biological communities,

possessing extensive conservation, recreational, commercial,

ecological, historical, research, educational, and aesthetic values

which give the area special national significance. Congress found these

environments to be the marine equivalent of tropical rain forests in

that they support a rich level of biological diversity, are fragile and

easily susceptible to damage from human activities, and possess high

value to human beings if properly conserved. To this end, the Act

expressly prohibits oil drilling within the Sanctuary and prevents tank

vessels or ships greater than 50 meters in length from entering the

Area to be Avoided within the Sanctuary boundary.

Past resource management efforts in the Florida Keys have only

focused on small portions of the coral reef ecosystem in a checkerboard

fashion. These efforts have not taken a holistic approach to protecting

the marine environment of the Florida Keys and as a consequence, the

coral reef resources have declined steadily over the past two decades.

Piecemeal management of the marine resources of the Florida Keys,

especially the coral reefs, seagrass communities, hardbottom habitats,

and mangrove fringed shorelines, combined with a continued decline in

the quality of the water that flows over these habitats, has resulted

in a threat to the stability of the marine environment in the Keys.

Consequently, since the economy of the Florida Keys is so closely

linked to a healthy marine environment, the status quo approach to

managing the marine resources of the Keys could result in an economic

collapse in the near future.

The Act directed NOAA to develop a comprehensive management plan

and implementing regulations for the Sanctuary in consultation with

appropriate Federal, State and local governments and with the SAC.

Pursuant to this mandate, NOAA developed a comprehensive management

plan and regulations to protect and manage the living and non-living

resources of the Sanctuary. Regulations were developed to protect

Sanctuary resources and minimize conflicts among the various users of

those resources. For example, establishing zones with special

restrictions to protect habitat in those zones and prohibiting

potentially

[[Page 4586]]

harmful activities such as prop dredging and prop scarring throughout

the Sanctuary are effective management tools. Regulations supplement,

but do not duplicate, existing management authorities with jurisdiction

in the Sanctuary.

The FKNMS will provide a comprehensive and coordinated regime to

protect, manage and conserve the nationally significant resources of

the Florida Keys so they may be enjoyed by both present and future

generations.

The Need for Management of the Sanctuary

Comment: Many commentors asserted that the Sanctuary will add

another costly layer of bureaucracy, while others commented on the

benefits of integration and the role the FKNMS has played in

interagency planning.

Response: The Sanctuary is not an extra layer of bureaucracy and

there are many ways in which the National Marine Sanctuary Program will

improve management of the Keys' marine resources. National Marine

Sanctuaries are designated to protect marine resources that are unique

and possess high national significance. Boundaries of National Marine

Sanctuaries only extend to the mean-high tide mark and do not include

land above that mark. The concept of a National Marine Sanctuary as a

``place'' seems to be overlooked by some of the public. The Sanctuary

is not a thing or an ``extra layer of bureaucracy'; and it is not a

collection of agencies, environmental groups, or user groups, it is a

very special place, deserving of protection for the use and enjoyment

of present and future generations. The waters and marine resources

surrounding the Keys are unlike any other on earth and they need and

deserve our immediate attention. We will lose our coral reefs if the

declines we've witnessed over the past two decades continue.

Congress, through the FKNMSPA, designated the Sanctuary, drew a

line around the Keys and declared to the world that the marine

resources of the Keys are special and unique. The Act also delegated to

NOAA, an agency with experience in managing marine protected areas

where the economy is highly dependent on healthy marine resources, the

responsibility to manage the Sanctuary and make the Sanctuary part of a

national program internationally known for its ability to manage marine

resources for multiple uses, both recreational and commercial; a

program that emphasizes an educational approach to management. The

FKNMSPA also places an important safeguard on the agency: ``Nothing in

this Act is intended to restrict activities that do not cause an

adverse effect to the resources or property of the Sanctuary or that do

not pose harm to users of the Sanctuary.''

The National Marine Sanctuary Program is not new to the Florida

Keys. The program has had a very successful 20 year history in the

Keys, protecting some of the most popular coral reef dive sites in the

world. The Key Largo National Marine Sanctuary, designated in 1975,

protects all the coral reefs along a 20 mile stretch in the upper Keys.

The relationship of the Sanctuary with the business community has been

excellent. The Key Largo Chamber of Commerce continues to be a

tremendous supporter of the Sanctuary where divers, dive operators,

recreational and charter fishermen, and commercial fishermen continue

to work and play.

Looe Key National Marine Sanctuary was designated in 1981,

following a lengthy designation process where local businesses, divers,

and commercial fishermen in the vicinity of Big Pine Key reacted in

opposition. Rumors, misinformation, and a basic misunderstanding of

what a ``National Marine Sanctuary'' actually is, were the fuels that

fired lengthy debates. Shortly after Looe Key became operational and

management measures were implemented, many of the fears such as

commercial fishermen being ``put out of business'' disappeared. A good

working relationship was established with the regular users of the Looe

Key Sanctuary and businesses dependent on a healthy coral reef

continued to flourish. As a result of good management, in 1985, a

travel writer for the Miami Herald declared Looe Key as one of the top

ten dive destinations in the world.

During the past 15 years the Looe Key and Key Largo National Marine

Sanctuaries have been used as models for managing marine protected

areas, both domestically and internationally. This reputation was well

known to the authors of the FKNMSPA that was passed to designate the

Sanctuary.

The National Marine Sanctuary Program protects and manages

Sanctuary resources for their continued use by present and future

generations. A goal of National Marine Sanctuaries is to facilitate

compatible use of marine resources by businesses that are economically

dependent upon them, to the extent those uses are compatible with the

primary objective of resource protection. This is the first step toward

sustainability of this marine area for present and future generations.

The Key Largo and Looe Key National Marine Sanctuaries make up

about 23 linear miles of the 220 mile long coral reef tract along the

Florida Keys. The designation of the FKNMS provides resource protection

to the remaining 197 miles of coral reef and marine ecosystem that were

not previously protected. This is not an extra layer of bureaucracy

because prior to the Sanctuary's designation little comprehensive

resource protection management existed.

National Marine Sanctuaries are known for their integrated

comprehensive management through establishing partnerships. In Florida,

the Sanctuary Program started ``reinventing government'' in 1980, by

establishing a cooperative agreement with the State of Florida,

Department of Natural Resources, for the management of the Key Largo

National Marine Sanctuary and later, the Looe Key National Marine

Sanctuary. These were areas located entirely in Federal waters, but

managed by State staff, through 100 percent Federal (NOAA) funding.

Today, more than half of the Sanctuary staff are State employees paid

entirely by Federal funds, including the education staff, Sanctuary

officers, and the lower Florida Keys' administration.

The concept of interagency partnerships has been expanded in the

management plan for the FKNMS. Dozens of representatives from local,

State, and Federal agencies came to the table to assist in the

development of the most comprehensive management plan ever attempted in

a marine protected area. They also assisted in the development of the

National Marine Sanctuary Program's first water quality protection

plan. As a special place, the Keys are deserving of the best kind of

management that could be afforded.

There are many agencies involved in various management activities

in the Keys. However, these activities have not been integrated in the

past, and consequently there has not been a holistic approach to

managing the fragile marine resources of the Keys. The potential

benefits of integrated management of marine resources are numerous

including better protection of the marine resources, savings to tax

payers by agencies sharing resources, less duplication of efforts,

opportunities for increased interagency coordination, and the list goes

on.

The regulations do not usurp the authority or jurisdiction within

the Sanctuary boundary of other agencies to impose regulations more

protective of Sanctuary resources than the Sanctuary regulations. The

State will continue to have that authority in State waters and other

Federal laws, such as the Magnuson-Stevens Fisheries Conservation and

Management Act, will

[[Page 4587]]

continue to apply. However, other agencies cannot authorize a violation

of Sanctuary regulations, just as the Sanctuary cannot authorize a

violation of State or Federal agency regulations.

The FKNMSPA prohibits oil, gas and mineral development within the

Sanctuary and prohibits tank vessels or ships greater than 50 meters in

length from entering the Area to be Avoided within the Sanctuary

boundary. No other management program provides this level of

comprehensive protection to the marine resources (e.g., seagrasses,

hard bottoms, and coral reefs) of the Florida Keys, or provides the

legislative mandate and authority to holistically manage and protect

all of the marine communities as an ecosystem. This is a charge given

specifically to NOAA and is not redundant of other management programs,

nor is it an extra layer of bureaucracy.

Furthermore, NOAA has developed regulations that complement, rather

than duplicate, existing authorities. In some cases, NOAA regulations

supplement and fill gaps in existing authorities. To this end, NOAA has

integrated its planning efforts with the Federal, State, and local

agencies in the Florida Keys. This will improve management coordination

between the agencies and will lessen the amount of agency overlap in

key management areas such as education, research, enforcement, damage

assessment, and emergency response. Through integrated planning and

implementation, the FKNMS will, at a minimum, streamline the use of

public funds and programs to achieve resource protection. This will

improve coordination between the various agencies responsible for

management of the marine environment in the Sanctuary. Increased agency

coordination will benefit Sanctuary resources and the public's use of

those resources.

Coordination of Fisheries Management

Comment: The fisheries protocol should not be implemented because

it will add another layer of regulations.

Response: NOAA disagrees. The existing fisheries management

authorities will continue to manage fisheries under State law, the

Magnuson Act, and other Federal law. However, there are three separate

sets of fisheries regulations within the boundary of the Sanctuary and

coordination of the fishing regulations within the Sanctuary was

identified as a goal early in the scoping process. Under the current

system, there is confusion in the fishing community which leads to less

compliance by the public as they may not understand which regulations

apply to a specific geographical area. Uniform regulations would make

it easier for the fisherman to comply with the rules and for the

agencies to enforce them. This management action will have a positive

result on fisheries management by State and Federal agencies. The net

result will be beneficial to Sanctuary resources and to the public.

Under the protocol, the existing authorities may accomplish this goal

under Sanctuary regulations or their own respective authorities. The

existing fishery management authorities and NOAA may agree to develop

uniform fishing regulations, but they can only be implemented as

Sanctuary regulations if there is consensus. The establishment of a

consistent set of fishing regulations for the Sanctuary will not result

in a fourth set of regulations.

Funding

Comment: There were a variety of comments on the topic of funding

of the FKNMS. Some commentors suggested the Sanctuary should be given

the necessary funding to implement the management plan and its goals.

Other commentors stated NOAA will never have adequate funding to

implement all of the programs outlined in the management plan, implying

that NOAA could never comprehensively manage the entire Sanctuary.

Others suggested that the funding for the Sanctuary be totally directed

at solving water quality issues before implementing any other

management programs. Suggestions were made that Florida Tourist

Development Council (TDC) ``bed tax'' funds be used for managing

Sanctuary activities.

Response: Clearly, implementation of all the programs contained in

the management plan would require more funding than the Sanctuary can

anticipate presently, or in the near future. However, the management

plan is comprehensive and includes suggested actions for the near and

long terms. The plan offers a wide variety of management options to

address various and diverse management problems in order to give

Sanctuary managers the ability to select the most cost effective

management tools to address immediate and future problems. It is not

NOAA's intent to request funding for immediate implementation of all

the management programs outlined in the management plan, but rather use

it as a guide for immediate and future plans of action, including the

effective use of human and financial resources.

Additionally, the human and financial resource costs for

implementing the action plans established to focus Sanctuary management

efforts will be shared among the participating Federal, State, and

local agencies responsible for various activities. For example, Monroe

County receives Boating Improvement Fund allocations that are designed

to enhance boating and have specifically been applied to channel/reef

marking needs in the Sanctuary. Further, Sanctuary volunteers perform

tasks that benefit the goals at a substantial savings to the program.

Finally, in addition to annual appropriations, the Sanctuary has the

statutory authority to receive donations to support programs. These

funds could be received from foundations, non-profit organizations, the

Sanctuary Friends organization and others.

NOAA disagrees that all funding should only be used to address

water quality or any other single issue within the Sanctuary. Congress,

through the FKNMSPA, directed the Secretary of Commerce to develop a

comprehensive plan to manage the Sanctuary and gave specific directions

as to what should be considered in the development of the plan. Many of

the impacts affecting the health of the coral reef community arise from

direct, physical injuries that can be lessened with the implementation

of the comprehensive management plan. Additionally, the FKNMSPA

requires that EPA, along with the State and NOAA, address Sanctuary

water quality issues. Many of these management actions will take years

to implement and their positive results will not be realized for some

years into the future. By implementing the comprehensive management

plan, the FKNMS will be able to address some of the immediate threats

confronting the coral reef community as a result of direct human

activity.

The State of Florida determines the use of Florida TDC funding (bed

tax) for management activities.

User Fees

Comment: Some reviewers raised concern regarding the concept of

user fees to fund various programs within the Sanctuary. While some

commentors were supportive of the concept, the majority of commentors

were against funding Sanctuary management through user fees. A small

number of reviewers raised concern that the concept was still contained

in the draft plan following a highly publicized workshop on user fees

to fund the management of National Marine Sanctuaries where NOAA

publicly announced it was not pursuing obtaining the general

legislative authority to charge ``user fees'' to manage Sanctuaries.

[[Page 4588]]

Response: NOAA acknowledges that the concept of charging user fees

to fund Sanctuary management is not popular, particularly among user

groups. The strategy (B.8) for charging user fees to fund the

management of the FKNMS has been dropped from the action plans in the

FMP/EIS. There are no regulations authorizing the collection of user

fees for general access to, or use of, the Sanctuary.

The process used to develop the draft management plan allowed all

suggestions to be considered for the draft plan. The concept of user

fees was suggested by some during the planning process and remained in

the draft plan following the ``user fee workshop'' because of the

process used to develop the draft plan. Considering that some were in

favor of ``user fees,'' NOAA felt it was necessary to get public

comment on the concept in the draft plan.

Many innovative sources of alternative funding have been identified

by the public in the workshop and otherwise. NOAA will work with the

SAC to explore some of these options.

Ecosystem-Based Approach

Comment: There were conflicting comments on what NOAA's role should

be in managing Sanctuary resources. Some recognized that NOAA has done

a good job of managing the coral reefs within the Key Largo and Looe

Key National Marine Sanctuaries and suggested that NOAA should focus

its management on the coral reef tract. Some of these same reviewers

pointed out that the primary cause of water quality decline in the

Florida Keys was originating from water management and water quality

problems in mainland South Florida and the resultant decline in water

quality in Florida Bay. In some instances, the Federal Government was

blamed for the cause of water quality decline in south Florida. Some

reviewers stated NOAA could not have any influence on the water quality

problems that were originating outside the boundary of the Sanctuary.

Other reviewers pointed to the decline of water quality in the

near-shore waters of the Florida Keys as a result of improper waste

water treatment facilities and poor management of storm water runoff

and that NOAA should focus its management on these water quality

problems.

Other reviewers recognized the importance of NOAA's role in

ecosystem management and the significance of the authority that the

FKNMS has to address water quality issues that originate both within

its boundary, as well as those problems that originate outside and

upstream of the Sanctuary. These reviewers were supportive of NOAA's

active role in the South Florida Ecosystem Restoration Task Force and

the Governor's Commission for a Sustainable South Florida.

Response: In light of its experience of the resource protection

accomplished at Key Largo and Looe Key National Marine Sanctuaries, its

role in ecosystem management in South Florida, and directions under the

NMSA and the FKNMSPA, NOAA will continue to take an ecosystem based

management approach in this Sanctuary.

The FKNMSPA directed the Federal Government and the State of

Florida to develop a comprehensive program to reduce pollution in the

waters offshore the Florida Keys to protect and restore the water

quality, coral reefs, and other living marine resources of the Florida

Keys environment. The FKNMSPA and NMSA direct NOAA's development of a

comprehensive ecosystem management plan rather than one based solely on

the coral reef tract. In order to be successful, Sanctuary managers

must be able to address impacts that occur across the range of habitats

that comprise the coral reef community in an ecosystem-based management

approach. This is especially important in addressing issues that

influence the quality of the water that affects the marine communities

of the Sanctuary. Between 1982 and 1989, NOAA sponsored research

projects that helped characterize the movement of water in and around

the two existing Sanctuaries. The studies concluded that a portion of

the water that influences the coral reef flows from Florida Bay and the

Keys, before it mixes with water from the Florida Current in the

vicinity of the reef tract. Scientists agree that the sources of the

decline in water quality that influence the health of the coral reef

resources originate upstream of the reef tract, in the direction of the

Keys and Florida Bay. No matter how intensely NOAA manages activities

on the coral reef, the health of the corals will continue to decline

until the sources of the water quality decline upstream are addressed

in a comprehensive manner.

The designation of the FKNMS gave NOAA a role in the development

and the implementation of a water quality protection program with EPA

and the State. Sanctuary legislation directed EPA, the State and NOAA

to look beyond the boundary of the Sanctuary toward the problems

occurring upstream. The designation also gave NOAA the ability to

manage in a holistic manner, all of the marine communities that are

important to maintaining the biodiversity of the Sanctuary. This was

the first step toward ecosystem management, the ability to manage all

the marine communities of the coral reef component of the south Florida

ecosystem.

NOAA disagrees with comments that it cannot influence, or does not

have a role in addressing, the water quality problems originating

outside the boundary of the Sanctuary, in Florida Bay, and mainland

South Florida. The designation of the FKNMS has given NOAA a prominent

role in the South Florida Ecosystem Restoration Task Force whose

objectives include the restoration of clean water flows into Florida

Bay. NOAA is currently funding approximately 40 percent of the research

projects in Florida Bay and the South Florida ecosystem restoration

effort. These efforts will result in a positive influence on water

quality before it enters the Sanctuary. NOAA leadership has recognized

the importance of supporting the efforts of the South Florida Ecosystem

Restoration Task Force in order to be successful in the management of

the Sanctuary.

The most prominent role for the Florida Keys in the south Florida

ecosystem restoration effort has been through the representation of the

Sanctuary on the Task Force and the roles of EPA and the State in the

Water Quality Protection Program as it is represented on the Task

Force. Without the efforts of these agencies on behalf of the FKNMS,

the Florida Keys coral reef communities would not be represented on the

South Florida Ecosystem Restoration Task Force. Thus, the Sanctuary

clearly has a role in influencing the impacts of water quality

originating outside its boundary.

Concerns over the demise of Florida Bay have been the topic of

debate for at least a decade prior to the designation of the FKNMS. At

the first SAC meeting in February 1992, members of the SAC familiar

with problems in Florida Bay raised the issue of water quality decline

in that area. Commercial fishermen and flats guides shared their

observations of decline in Florida Bay water quality. In addition, the

Water Quality Protection Program for the Sanctuary recognized that some

of the sources of the water quality problems affecting the coral reef

were originating upstream of the Florida Keys and Florida Bay. In just

over a year, all of the agencies responsible for managing components of

the South Florida region had signed an interagency agreement directed

at restoring the South Florida ecosystem.

[[Page 4589]]

The agencies had agreed that the ecosystem begins in the Kissimmee

River basin and includes Lake Okeechobee, the Everglades Agricultural

Area, the Everglades, Florida Bay, through the Keys, and all the way to

the coral reef tract. This was the first time the scope and dimension

of the ecosystem had been defined at this scale. It is with this vision

that ecosystem management must be implemented in the Sanctuary. The

proper water quality and hydrological and ecological linkages

throughout the ecosystem must be re-established in order to reverse

declines on the coral reef. Each of the agencies responsible for

management of components of the ecosystem must work to improve the

quality of water in their segment of the ecosystem, while working with

other members of the restoration task force to improve the entire

ecosystem functions.

Accountability and Power of NOAA

Comment: Some commentors were concerned about the powers of NOAA in

general, and some were particularly concerned about the powers of the

Director because decisions affecting user groups would be made by

authorities in Washington headquarters, as opposed to locally. Some

commentors indicated that NOAA should be held accountable for its

management actions.

Response: NOAA notes that under various laws and the management

plan itself, the powers of other Federal and State authorities remains

intact. Moreover, there are a number of checks and balances whereby

NOAA is held accountable for their management actions. The Congress

holds NOAA accountable through its review of individual Sanctuary

management plans and periodic reviews of the National Marine Sanctuary

Program. There are also numerous Federal statutes which ensure the

accountability of Federal programs, including the Administrative

Procedure Act. For example, with the exception of emergency

regulations, all substantive changes to Sanctuary regulations will

require prior notice and opportunity for public comment before they

become effective. In this Sanctuary, the State of Florida, as a

management partner, will continue to be a check on NOAA's authority,

including the application of Sanctuary regulations in State waters. The

EPA and the State of Florida will continue to have the lead in

addressing the Water Quality issues that affect the Sanctuary.

To user groups, perhaps the most important check on NOAA's

accountability may be SAC. The SAC is comprised of members representing

the various Sanctuary user groups (commercial fishermen, charter boat

operators, tourism industry, scientific and educational organizations,

and conservation groups, etc.). Consistent with the FKNMSPA, the SAC

provides NOAA with advice and recommendations on the management plan

and its implementation, including resource protection, research,

monitoring, education, outreach and other general policy issues related

to Sanctuary management. The SAC is also a forum to enhance

communication and cooperation between the public, user groups, the

Federal/State and local agencies, and non-governmental entities in

furtherance of coordinated, efficient and effective management of the

Sanctuary. SAC meetings are open to the public and interested persons

are given the opportunity to present oral or written statements to the

Council.

Under the NMSA and the FKNMSPA, the Secretary of Commerce is

directed to develop a Sanctuary management plan and implement it. Under

Departmental Orders, this authority has been delegated to the Director

of NOAA's Office of Ocean and Coastal Resource Management. The

regulations were drafted accordingly. While the Director has in turn

delegated most of the day to day Sanctuary management decisions to

local Sanctuary managers with appropriate reservations, the regulations

were not changed and will continue to reflect the Departmental Orders.

The Director's responsibilities for the FKNMS are commensurate with

other sanctuaries.

Designation Document/Appendix K

Comment: Many reviewers expressed concern over the Scope of

Regulations contained in the draft Designation Document for the FKNMS

(Volume III, Appendix K). The concerns were primarily that the Scope of

Regulations was too broad. For example, they were surprised to see that

the Scope included airplane flights, dock construction, and a broad

range of other activities that seemed outside the authority of the

Sanctuary. Many feared that NOAA could easily regulate activities

within the Scope of Regulations in the future with little or no public

input. Some questioned the need for a designation document as the

Sanctuary was designated by statute. Many, including the SAC, urged

NOAA to eliminate the Scope of Regulations. However, some reviewers

expressed support of the broad Scope of Regulations and urged NOAA to

retain what was presented in the draft plan.

Response: The Designation Document is a charter or constitution for

the Sanctuary. The Scope of Regulations, which is part of the

Designation Document, sets forth the types of activities which may be

subject to future regulation. Consistent with the recommendations of

the SAC and other commentors, NOAA has reduced the Scope of Regulations

to more closely track the final regulations by eliminating certain

activities.

NOAA cannot issue regulations for activities listed in the Scope of

Regulations unless NOAA complies with the provisions of the

Administrative Procedure Act. These procedures require that the public

be given notice and the opportunity for comment. The courts are a check

against decisions that are arbitrary and capricious, the State must

approve regulations that apply to State waters, and Congress maintains

continual oversight.

Degradation of Environmental Resources

Comment: NOAA received many comments providing anecdotal

information concerning the state of the Florida Keys' marine

environment. These comments were personal observations of significant

changes in reef species assemblage, visibility of the water, and number

of fish. Comments were also received to the effect that even though all

people have a right to use the resources of the Keys, people do not use

the resources equally and therefore some regulation of behavior is

necessary.

Response: The Sanctuary was designated in recognition of the

observed declines in the health of the natural marine resources of the

Keys. The primary objective of the management plan is protection of

natural resources while facilitating private and public use that does

not compromise this objective. Thus, Sanctuary management will address

such issues as water quality and habitat protection through various

strategies and techniques ecosystem-wide in an effort to preserve or

restore the resources to a more natural state.

Support for Sanctuary and Management Plan

Comment: NOAA received many comments of support for the Sanctuary,

the management plan, and NOAA's history of protecting national marine

sanctuary resources.

Response: NOAA thanks all who commented on the Sanctuary, the draft

management plan, and proposed regulations regardless of whether in

support or in opposition. NOAA has had a long history of facilitating

all compatible public and private uses of its

[[Page 4590]]

National Marine Sanctuaries, including those off Florida. The Sanctuary

will continue to encourage public involvement, interagency cooperation,

and continuous management actions to achieve resource protection.

Limit the Sanctuary Boundary to the Reef Tract

Comment: Some reviewers recognized that NOAA has done a good job of

managing the coral reefs within the Key Largo and Looe Key National

Marine Sanctuaries but suggested that NOAA should only focus its

management on the coral reef tract.

Response: The FKNMSPA directed the Federal Government and the State

of Florida to jointly develop and implement a comprehensive program to

reduce pollution in the waters offshore the Florida Keys to protect and

restore water quality, coral reefs, and other living marine resources

of the Florida Keys' environment. The Act set forth the boundary as

well as the scale of protection necessary to effectively manage natural

and cultural resources in a holistic manner. Thus, NOAA strongly

disagrees that it should just focus its management on the coral reef

tract. In order to be successful, Sanctuary managers must be able to

address impacts that occur across the range of habitats that comprise

the coral reef community in an ecosystem-based management approach.

Allowed Activities

Comment: NOAA received comments requesting that the management plan

include a list of allowed activities, not only prohibitions. The SAC

discussed a bill of rights and ultimately recommended that there be a

list of activities that would be allowed in the Sanctuary.

Response: In response to these comments, NOAA has modified the

regulations at Sec. 922.42 to state that ``all activities (e.g.,

fishing, boating, diving, research, education) may be conducted unless

prohibited or otherwise regulated. * * *.'' The change is not intended

to provide a legal defense for actions against those who violate

Sanctuary regulations, but rather to clarify that such activities are

allowed to be conducted in the Sanctuary at present and will be allowed

in the future, subject to appropriate regulation. There are also

specific exemptions to certain prohibited activities to avoid or

minimize application to fishermen and other small entities.

Property Rights and Land-Use

Comment: Many comments were received questioning what authority the

Sanctuary will have over land use and property rights.

Response: The regulations were specifically modified to exempt

Monroe County land use permits. However, in general there have been no

conflicts over property rights because Sanctuary regulations are

directed at activities in the marine environment. They may apply to

activities that directly threaten or impact marine resources within the

Sanctuary, which are those lying below mean-high tide. Sanctuary

regulations do not take away rights of property owners or affect

activities that do not adversely affect Sanctuary resources.

Special-Use Permits

Comment: Some commented that the section on Special-use Permits

needs to be more specific.

Response: This regulatory section reflects the provisions of

section 310 of the NMSA regarding Special-use Permits. The National

Marine Sanctuary Program has had the authority to issue Special-use

Permits since 1988, but has only issued few such permits to date. While

the NMSA and its legislative history indicates that section 310 is

self-implementing and does not require implementing regulations, NOAA

has considered the comments and determined that additional information

and public input would be appropriate before the development of more

regulations with more specificity than is presently in section 310. To

the extent more specificity is needed, it should be done in guidelines

for the National Marine Sanctuary Program rather than for this

particular Sanctuary. In the interim, the Program will continue to work

with individual applicants and the public on Special-use Permits.

Coordination With Other Agencies/Conflict Resolution

Comment: Some commentors expressed the need for coordination

between agencies and a mechanism to resolve conflicts between agencies

and the public. Others suggested a mechanism be established that

provides an administrative appeals process consistent with the

Administrative Procedure Act.

Response: NOAA is establishing an Interagency Group to assist in

coordinating the implementation of the final management plan for the

FKNMS. Additionally, Appendix J contains a Co-trustees Agreement that

is accompanied by a series of draft protocols and memoranda of

agreements that will serve to outline the way the agencies will conduct

the management of the Sanctuary.

The administrative appeal process for Sanctuary management

decisions is set forth at Sec. 922.50. Agency decisions, including any

amendments to Sanctuary regulations, must be done in accordance with

the procedures and requirements of the Administrative Procedure Act.

Monroe County and/or the State Should Manage the Sanctuary

Comment: Some commentors suggested that the State of Florida or

Monroe County be charged with developing a management plan and managing

the resources of the Florida Keys.

Response: Under the FKNMSPA and the NMSA, NOAA is required to

develop and implement a Sanctuary management plan. However, the

Sanctuary planning process has included the State and county as

partners in the development of the comprehensive management plan. The

continuous management process, as described in Volume I of the FMP/EIS,

includes Federal, State and county agency managers in the continuous

management of the Sanctuary. This will help NOAA assure the integration

of management programs between the various agencies in a comprehensive

manner.

Socio-Economic Impacts

Comment: Some reviewers commented that NOAA did not provide a

thorough socio-economic analysis of its actions on commercial or

recreational fishing. NOAA also received comments that the Sanctuary

will negatively impact the economy of the Keys, as well as comments

that the Sanctuary is the only hope to sustain the Keys' tourist

economy which is heavily dependent on the presence of a healthy marine

environment.

Response: NOAA prepared a socio-economic assessment for the Draft

Management Plan and Environmental Impact Statement in compliance with

the NMSA and National Environmental Policy Act (NEPA). In response to

comments, NOAA has provided a more detailed explanation of the careful

balancing of environmental and socio-economic impacts in developing the

Preferred Alternative/Management Plan section of the Volume I. A more

thorough assessment of the socio-economic impacts on various user

groups from management alternatives is found in Volume III, Appendix M.

In an effort to maximize resource protection and minimize adverse

impacts on users, NOAA considered socio-economic impacts in developing

the draft management plan. Based on the public comments and reports

[[Page 4591]]

supplied by the fishing industry, NOAA has further detailed this

analysis in the final environmental impact statement and modified the

final management plan accordingly.

Personal Watercraft

Comment: NOAA received many comments from the public reminding NOAA

that personal watercraft owners and users act responsibly and

requesting that personal watercraft not be singled out and treated

differently from other vessels. NOAA also received comments noting

frequent environmental nuisance and safety issues associated with the

operation of personal watercraft. These included: reckless operating

behavior, harassment of endangered and other species, harassment of

other boaters (including disruption of fishing on flats), and noisy

operation in canals or adjacent to residential shorelines. These

commentors requested limiting, restricting or banning the use of

personal watercraft within the Sanctuary.

The SAC recommended that NOAA work with the industry, the SAC, and

the public to establish zones for the voluntary use of personal

watercraft in specified areas within one year after issuance of the

final management plan. The SAC also recommended that if these zones

were not voluntarily established within one year, then NOAA should ban

the use of personal watercraft throughout the Sanctuary. In addition,

the SAC recommended adding to the regulations a prohibition against

reckless operation of vessels. The SAC also recommended that the

proposed vessel operation regulation (proposed Sec. 929.5(a)(5)(iv)) be

modified to restrict vessels from operating at speeds greater than idle

speed only/no-wake in designated idle speed only/no-wake zones, and

modify the minimum distance requirements in the regulation.

The personal watercraft industry commented that there was no basis

to impose severe regulatory restrictions on the use of personal

watercraft, but generally supported the strategy of restricting all

motorized vessel use in certain buffer zones and establishing idle

speed only/no wake areas. The industry also strongly endorsed the

strategy of working with NOAA to educate recreational personal

watercraft users in the Sanctuary, and develop industry standards for

rental operations in the Sanctuary.

The State of Florida questioned whether distance restrictions

delineated in the buffer zones could be adequately enforced.

Response: 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.

Channel/Reef Marking Action Plan

Boater Education

Comment: Channel/reef marking must be supplemented with boater

education in order to limit impacts on shallow water marine resources.

The channel/reef marking action plan does not contain strategies that

address education.

Response: NOAA agrees that boater education is a critical component

for protection of shallow water resources of the Sanctuary. The

education and outreach strategies directed at boating impacts are

contained in other management action plans.

Marking Shallow Water Habitats and Vessel Routes

Comment: The action plan does not address marking coral reefs and

other shallow water habitats outside of channels, to warn boaters of

sensitive areas. The action plan should be revised to include

navigational aides that warn boaters and should be renamed

``Navigational Marking Action Plan'' or the ``Channel/Reef Marking

Action Plan''.

Response: NOAA agrees that providing navigational aides that warn

boaters of sensitive, shallow water habitats is a necessary component

of resource protection. NOAA will work closely with the USCG, the

State, and the county to provide appropriate internationally recognized

navigational aides to mark sensitive, shallow water habitats such as

coral reefs. NOAA also recognizes that providing a logical and clearly

marked system of channels in high traffic areas is the preferred method

of routing vessel activity away from sensitive habitats. In addition,

strategic placement of navigational aides used to warn boaters is

necessary in many areas and will be pursued. NOAA has revised the

action plan and has renamed the plan as the ``Channel/Reef Marking

Action Plan.''

Channel Marking Criteria

Comment: The criteria for determining the priorities for marking

channels as well as the locations of high priority channels should be

included in the plan. The SAC recommended draft channel marking

criteria and a list of high priority channels to be marked.

Response: The criteria for channel marking prioritization as

recommended by the SAC has been included in the final action plan.

However, including a list of high priority channels recommended by the

SAC is premature. Instead, the action plan establishes a process for

identifying and prioritizing channels to be marked.

The list of proposed channels recommended by the SAC has not been

subject to review and prioritization by those criteria. All areas to be

marked should be reviewed through the process set forth in the action

plan. Thus, the list of priority channels has not been included in the

final action plan, but the criteria and process have been included.

NOAA's Role

Comment: The draft action plan does not clearly define NOAA's role

in the channel/reef marking program.

Response: The final plan (Strategy B.4, Activity 8, Implementation)

more clearly defines NOAA's role in this effort.

Effectiveness Assessment

Comment: Expand the activity associated with the assessment of

channel marking effectiveness to include on-site monitoring and

research, in addition to aerial photography.

Response: NOAA agrees and the final action plan (Strategy B.4,

Activity 6) reflects this comment. Further, Strategy B.4, Activity 8

has been expanded to address removal of markers that are found to have

a detrimental effect.

[[Page 4592]]

Update Status

Comment: Many of the activities originally described in the action

plan have already been completed or their status needs to be updated.

Response: NOAA agrees. The final action plan reflects the current

status of activities.

Four Point Program

Comment: Some reviewers support the Boating Impact Working Group's

(BIWG) ``Four Point Program.'' The final management plan needs to be

expanded to include establishment of no access and restricted access

areas, as recommended by the BIWG.

Response: NOAA agrees that the establishment of no access and

restricted access areas is an effective method to reduce shallow water

impacts. The plan recognizes this and adopts a series of restricted

access areas associated with the Wildlife Management Areas (see

Regulatory Action Plan, Appendix III to Subpart P--Wildlife Management

Areas, and the Zoning Action Plan maps). Most of these areas are part

of or are adjacent to DOI National Wildlife Refuges, however seven non-

associated areas were added. These are the only areas that NOAA

received specific input on during the planning process. NOAA will

monitor the effectiveness of designating these areas as Wildlife

Management Areas and imposing access restrictions and will consider

adding other areas in future revisions of the plan.

Removal of Problematic Aides to Navigation

Comment: There is no mechanism in the plan to remove channel

markers that prove to be problematic because they increase vessel

impacts to shallow water areas.

Response: Strategy B.4, Activity 6 provides a mechanism to evaluate

the effectiveness of channel markers for the protection of marine

resources. Strategy B.4, Activity 8 has been expanded to address

removal of markers that are found to have a detrimental effect on

marine resources.

Channel/Reef Marking Is Expensive

Comment: The proposed channel/reef marking program is too costly at

a time when the government is trying to economize.

Response: The primary funding source identified in the plan for

channel/reef marking is the Boating Improvement Fund (BIF) and the

current aides to navigation program administered by the U.S. Coast

Guard. The BIF is an existing funding source that is administered by

Monroe County. The money is derived from a portion of State vessel

registration fees which are returned to the county where they were

generated. This money must be used for projects designed to enhance

boating, and is specifically targeted at channel/reef marking,

launching facilities and similar projects. Currently, Monroe County

receives approximately $125,000 annually from this source. Therefore,

this money is available for channel/reef marking already, and the

management plan is designed to provide a coordinated effort at

prioritizing expenditures. Additionally, the U.S. Coast Guard continues

to fund the installation and maintenance of many of the aides to

navigation used in the Sanctuary. These funds do not come directly from

NOAA.

Stay in the Channels Only

Comment: There are fears that once the channels are marked, boaters

will be prohibited from going outside of the channels. Further, in the

interim, boaters-especially fishermen-should not be penalized for prop

dredging until the markers are installed.

Response: The regulations do not prohibit vessels from navigating

outside marked channels regardless of depth. What the regulations do

prohibit is the destruction of seagrass and other shallow marine

resources as a result of imprudent operation of vessels.

Deep Water Access

Comment: Several reviewers requested that a definition of deep

water access be added to the regulations and questioned how the

Sanctuary will address areas that are accessible only at certain tides.

Response: The channel/reef marking action plan assumes a 4 ft mean

low water as a threshold criteria for deep water access. This is

consistent with current State and local regulation and criteria.

Channel/reef marking will not be a substitute for local knowledge or

normal prudent navigation skills.

Arrows on Channel/Reef Markers

Comment: Navigational aids should be clearly understandable to

guide boaters through channels and warn them of shallow areas. It was

also suggested that channel/reef markers include arrows indicating the

direction of the channel.

Response: It is necessary that standardized channel marking for the

Sanctuary conform to the international rules of the road as required by

the US Coast Guard and the State of Florida. The Coast Guard

discourages the use of arrows on posts, but will allow gated (double)

markers to mark particularly sensitive areas.

Education and Outreach Action Plan

Education v. Outreach

Comment: A number of reviewers expressed concern that the draft

management plan addresses education at the expense of outreach noting

that, while compatible, they are distinct and address different needs

and audiences.

Response: NOAA agrees, and the final management plan clearly

reflects both responsibilities. The Education Action Plan has been

renamed the Education and Outreach Action Plan.

Education Supports Resource Protection

Comment: A number of reviewers recommended the inclusion of a new

education goal to reflect the intent of the Education Program in

achieving resource protection and management goals of the Sanctuary.

The National Park Service made several suggestions on how the plan

should be modified to reflect that the educational strategies include

cultural as well as natural resources. Additionally, some reviewers

said that an adequate education program could alleviate the need for

additional regulations.

Response: The final management plan states that the intent of the

program is to educate the public about Sanctuary resources (natural and

cultural), thus complementing the protection and management goals of

the plan. Education and regulation are complimentary management tools

in resource protection. It is hoped that increased education will

result in voluntary compliance with regulations through increased

understanding.

Spanish-Speaking Staff

Comment: A number of reviewers recommended the hiring of a Spanish-

speaking staff member for the Education program.

Response: In order to address the multi-lingual nature of many

Education and Outreach activities, the contracting or hiring of a

Spanish-speaking education staff member or intern will be given

priority consideration.

Funding for Education and Outreach

Comment: Reviewers recommended increased funding of the Education

Action Plan. Additionally, the pursuit of alternative sources of

funding was also recommended.

Response: Education is a primary management tool in resource

protection and will be considered in budget allocations. The management

plan addresses alternative funding.

[[Page 4593]]

Priorities

Comment: Many reviewers expressed concern that the education

strategies ranged from an overall priority level of three to five and

had an anticipated low level of action in year one.

Response: Some of these activities are already underway in the

Sanctuary's Education and Outreach program. NOAA agrees that the

priority level for education and outreach should be elevated. As a

result, the document has been revised and updated.

Enforcement Action Plan

Interpretive Enforcement/Connection Between Enforcement & Education

Comment: Many reviewers did not understand the concept of

interpretive enforcement. Others felt that law enforcement officers

should supplement the Sanctuary's education program. Others commented

that NOAA should educate the resource users rather than using

enforcement officers to catch violators who are making mistakes.

Response: The term ``interpretive enforcement'' refers to the

merging of education functions with the enforcement officers' duties.

NOAA strongly agrees that an effective enforcement program includes not

only enforcement of violations, but education of Sanctuary users to

achieve voluntary compliance with regulations. Although Sanctuary

officers have full authority to enforce regulations, education is a

primary tool of enforcement as outlined in the Enforcement Action Plan

and the Education and Outreach Action Plan. The Sanctuary will

undertake an outreach effort to make users aware of the regulations.

For example, law enforcement officers distribute Sanctuary pamphlets in

their contact with boaters during water patrols, and use this education

opportunity to gain voluntary compliance.

Standardization

Comment: Wording in the draft management plan is ambiguous,

therefore it leaves interpretation to the enforcement officers. The

comment also charged that information received from officers is not

consistent from officer to officer.

Response: Through coordination and training of law enforcement

officers, standardized enforcement procedures, including interpretive

enforcement, will be achieved. This is outlined in the Enforcement

Action Plan.

Coordination With Existing Agencies

Comment: There are 24 agencies currently responsible for protecting

the natural and cultural resources of the Florida Keys. What is NOAA

going to do to make them do their jobs?

Response: There are numerous agencies with responsibilities and

somewhat limited ability for full enforcement of all rules everywhere.

NOAA will seek to coordinate their activities, thus achieving more

effective enforcement of all regulations. To this end, the FKNMS has

developed an agreement with other enforcement agencies such as the US

Coast Guard, the State of Florida, the US Fish and Wildlife Service,

and the National Park Service to maximize and coordinate existing

assets concerning Sanctuary enforcement. Since the Sanctuary includes

both State and Federal waters, close coordination between the State and

NOAA is essential.

Funding/Additional Enforcement

Comment: The management plan states that an additional 30 law

enforcement officers will be needed for the Sanctuary. Many reviewers

agreed that additional officers are needed to enforce laws, but

questions were raised: Where will the funding come from for these

officers? What is the timing for hiring additional officers?

Response: NOAA agrees that enforcement is important for successful

comprehensive resource protection and management. In balance with other

Sanctuary management needs, the expansion of the law enforcement

program will be phased in as funding allows. Funding is critical but

limited and must be balanced with other management goals such as

education and outreach, research and monitoring. The hiring of an

additional 30 law enforcement officers is a goal of the enforcement

program. NOAA will work actively with the State to identify alternative

funding sources for hiring additional law enforcement officers.

Mooring Buoy Action Plan

Use of Volunteers

Comment: Encourage the utilization of volunteer assistance in

mooring buoy management and reference the interaction with the

Volunteer Action Plan.

Response: The benefit of using volunteers in various stages of

mooring buoy management is recognized, and reference to utilizing

volunteers and volunteer programs was included in the draft. However,

NOAA agrees that more emphasis should be placed upon the use of

volunteers and the plan has been revised to reflect this (Strategy B15,

Activity 1, Implementation; Activity 8, Implementation). In the area of

mooring buoy maintenance, volunteers will be used at the direction of

those responsible under contract for the maintenance program.

Participation by the SAC

Comment: The SAC should be formally involved with all aspects of

mooring buoy planning and management.

Response: NOAA agrees, and the Final Management Plan reflects this

(Strategy B15, Activity 2, Activity 3, Activity 4, Activity 6, Activity

9).

Streamline Permitting

Comment: The permitting process to install mooring buoys needs to

be streamlined to assure easier ability to accept donated mooring buoys

or funding to install mooring buoys.

Response: The purpose of the mooring buoy plan is to identify

appropriate sites for installation of new mooring buoys within the

Sanctuary. Once the plan is finalized, it is NOAA's intent to obtain

approval for the installation of all buoys from all applicable

agencies.

Carrying Capacity Strategy

Comment: Considerable comment was received on the concept of

carrying capacity. Some noted that the implementation of carrying

capacity based on mooring buoy placement alone is inappropriate. This

is because it is the number of divers on a vessel that is the most

important aspect, not the number of vessels. The SAC recommended to

remove the Carrying Capacity Strategy (Strategy R.5) from the Mooring

Buoy Action Plan. This strategy should only occur in the Research and

Monitoring Action Plan. Others suggested to separate the issue of

carrying capacity from mooring buoys by developing a carrying capacity

action plan. However, comment was also received that carrying capacity

must be established for high use coral reef areas and that the use of

mooring buoys is one method to implement carrying capacity.

Response: NOAA agrees that the issue of carrying capacity is much

larger and more complex than can be addressed in the Mooring Buoy

Action Plan alone. Mooring buoys are only one possible tool that could

be used in the implementation of carrying capacity. At this time, there

are no definitive studies available that could aid in establishing

carrying capacity limits. The Research and Monitoring Action Plan will

provide the opportunity for studying this topic. Therefore, it is

necessary to undertake additional research before such limits can be

considered. NOAA has revised the management plan to remove the carrying

capacity strategy from the Mooring Buoy Action Plan. It

[[Page 4594]]

remains in the Research and Monitoring Action Plan and will be given a

high level of priority. It is not advisable to create an entire new

action plan for carrying capacity at this time.

No Anchoring in the SPAs

Comment: A large number of comments were received that recommended

a no-anchoring policy within Sanctuary Preservation Areas (SPAs) where

mooring buoys are present. The SAC recommended that the SPAs become no-

anchoring zones, but that this should be phased in as sufficient

mooring buoys are placed to accommodate existing uses. They also

recommended that this issue be divorced from the Mooring Buoy Action

Plan and be inserted into the zoning and regulatory action plans.

Response: NOAA agrees that the SPAs should become no-anchor zones.

Before this policy is implemented, there should be a sufficient number

of buoys in each SPA to accommodate a reasonable level of demand. The

Working Group established in the Mooring Buoy Action Plan (Strategy

B.15, Activity 4) will determine the sufficiency of the number of

mooring buoys in the SPAs in developing the mooring buoy management

plan. In the meantime, the regulations require boaters to use mooring

buoys when they are available in SPAs and prohibit anchoring on coral.

Thus, anchoring would be allowed on sand.

Support for Mooring Buoy Program

Comment: Numerous comments were received that indicated strong

general support for mooring buoys. Some indicated that the buoys should

not be just for divers but should consider the needs of fishermen as

well.

Response: NOAA feels that the mooring buoy program is one of the

most important proactive resource management actions that the Sanctuary

has taken. The mooring buoy program will continue to be a major

emphasis of the FKNMS. The FKNMS management team will consider mooring

buoys for fishing uses in addition to those used primarily by divers.

Installation and Management of Mooring Buoys by Non-Profits

Comment: Several comments were received that stated that the FKNMS

should leave the management of mooring buoys in the hands of existing

agencies and non-profit organizations. Federal money would be better

spent by giving it to non-profits. Some reviewers indicated that NOAA

had overestimated the cost of mooring buoy maintenance.

Response: The Mooring Buoy Action Plan calls for encouraging new

and continued efforts of non-profits and other organizations, as well

as exploring other innovative funding mechanisms for installing and

maintaining mooring buoys. The National Marine Sanctuary Program

currently maintains approximately two thirds of the mooring buoys in

the Florida Keys. It has been found to be a cost effective program

utilizing local contractors for maintenance service. The costs in the

action plan were somewhat high, as they were originally based on the

maximum deployment of mooring buoys throughout the Sanctuary, not on

current conditions. Cost was also based on a five year planning time

frame, which was not made clear in the plan. The action plan has been

revised to consider a more modest deployment of mooring buoys and has

been clarified in regard to annual maintenance costs.

Raise the Priority of Mooring Buoy Program in Management Plan

Comment: Raise the overall Sanctuary priority level for mooring

buoy activities from 3 to 2, in order to emphasize its importance.

Response: NOAA agrees that mooring buoy management is a high

priority and the final management plan reflects the change from a

medium to high level of priority.

Limit the Size of Vessels Using Mooring Buoys

Comment: Some reviewers recommended that NOAA limit the size of

vessels using mooring buoys.

Response: Considering that the size of the anchoring apparatus

increases with the size of the vessel, NOAA is hesitant to limit the

size of vessels that use mooring buoys because this action may force

large vessels to anchor thus increasing the potential impact to the

coral reefs. However, the mooring buoy action plan contains activities

that address the management of large vessel use on mooring buoys in

high use or sensitive areas and NOAA is committed to improving mooring

buoy technology to accommodate large vessel use. Additionally, NOAA has

included a restriction on damaging mooring buoys in the regulations

which places the burden on large vessel operators to assure that their

use of mooring buoys is conducted in a manner so as not to damage the

mooring buoy or hardware. This includes adding additional tag line to

the mooring buoy in rough seas.

Regulatory Action Plan/Regulations

Definitions

Comment: NOAA received comments suggesting that several definitions

be added to the list of definitions in the Sanctuary regulations.

Response: NOAA has added definitions, including those for coral,

coral area, coral reefs, hardbottom, and residential shorelines, to the

regulations.

Anchoring

Comment: NOAA has received several comments on the issue of

anchoring within the Sanctuary. Comments ranged from requests for a

Sanctuary-wide prohibition on anchoring on coral to those suggesting a

prohibition only on the shallow reefs. Commentors stated that the

bottom is often not visible in 50 feet of water, and therefore the

anchoring restriction was impractical.

Response: NOAA has revised proposed Sec. 922.163(a)(5)(ii) to

prohibit having a vessel anchored on live coral other than hardbottom

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

be seen. This restriction does not apply to anchoring on hardbottom.

This regulation is necessary to address the impact of anchoring on

coral.

Vessel Operation

Comment: Operation of vessels, particularly personal watercraft

(jet-skis) generated considerable comment during the review process.

Many reviewers were concerned about the operation of personal

watercraft in such a way as to create a nuisance, or in a manner that

disturbed wildlife or affected the health of Sanctuary resources. One

reviewer said, ``jet skis take the magic out of the Keys.'' On the

other hand, there were numerous comments that the operation of personal

watercraft should not be singled out from the operation of other

vessels. Others commented about the adverse impacts from all vessels on

shallow water habitats and wildlife in the Sanctuary. Careless

operation of all vessels was also an issue of concern by the public.

NOAA received considerable comment from the public, the SAC, and

the State of Florida on the proposed regulations for operation of

vessels at greater than idle speed only/no wake near islands,

residential shorelines, stationary vessels, and emergent reefs.

Considerable comment was received on the proposed regulation that

restricted vessel operation at a speed greater than idle speed only or

no wake within 200 yards of mangrove fringed islands, residential

areas, flats, stationary vessels, and other features.

[[Page 4595]]

Response: NOAA recognizes the adverse impact on Sanctuary resources

and the user conflicts that can occur from the operation of all

vessels. The threat to Sanctuary resources is universal to the

operation of all vessels, not just any one type. However, the size,

maneuverability, and shallow draft of personal watercraft results in

operator behavior that makes them a greater source of user conflict and

threatens Sanctuary resources more than any other vessel, particularly

in shallow water habitat. Approximately 40 percent of the boating

accidents in Monroe County in 1995 resulted from personal watercraft.

This statistic indicates that the potential for careless operation of

personal watercraft is very high. Most of the negative public comments

about personal watercraft were behavior related examples.

The final regulations do not single out personal watercraft.

Rather, the regulations apply to operation of all vessels to

comprehensively address the potential resource impact, user conflicts

and safety problems within the Sanctuary. The final regulations specify

that, except in marked channels, vessels are prohibited from operating

above idle speed or creating a wake in areas marked idle speed only/no

wake, and within 100 yards of residential shorelines, stationary

vessels, and marked emergent reefs, and 100 feet from a divers down

flag. As regards the 100 foot distance requirement from diver down

flags, NOAA modified this from the proposed 100 yard requirement to be

consistent with State regulations.

Personal Watercraft Rentals

Comment: Many reviewers commented on the use of rented personal

watercraft. Some in support, some in opposition, and some in support

with appropriate restrictions. The SAC recommended that NOAA work with

the personal watercraft (PWC) industry to begin a process to identify

whether there is a need to establish restrictive zones. Comments from

the personal watercraft industry representatives indicate interest in

self regulation.

Response: NOAA plans to work with the PWC industry, the SAC and the

public to determine regulatory and non-regulatory steps to address the

issue, including the potential need and location of PWC rental use-

zones.

Emergency Closures

Comment: Some reviewers were concerned about the ability of the

Director or his designee to close areas or impose limited access

provisions for unspecified periods of time.

Response: Section 922.165, the authority to impose emergency

regulations, including area closures or access restrictions, has been

revised to limit the term of an emergency regulation to 60 days, with

the option of one 60-day renewal. In addition, under the Co-Trustee

Agreement, the Governor and Cabinet will be provided advance notice of

all emergency regulations. The Governor has the authority to reopen an

area in State waters by certifying his or her objection to NOAA.

Similarly, the Florida Marine Fisheries Commission will be provided

advance notice of closure of areas to fishing activities. Any closure

beyond 120 days would require providing the public the opportunity for

notice and comment as required by the Administrative Procedure Act.

Such area closures will be limited to the minimum amount of area

necessary so as to achieve the purpose of the closure and avoid or

minimize adverse impacts to Sanctuary users.

Civil Penalties

Comment: Some reviewers expressed an interest in having a penalty

schedule published in the final management plan showing a scale of

penalties for various infractions. Many reviewers have expressed

concern about the discretion of enforcement officers in handling

violations. Reviewers feared that NOAA could abuse it's authority and

charge the maximum $100,000 civil penalty per day for a minor

infraction. Some commented that civil penalties as outlined in draft

regulations implied an ``all or nothing'' approach to enforcement and

that the potential economic consequences if boaters are scared away

from using the Sanctuary because of excessive regulations should be

noted. Some commented that the penalty structure must be expanded to

include degrees of violations, both intentional and unintentional. Some

commented that the threat of enforcement for the intentional vandal

should be significant while the inadvertent accident of a well-meaning

citizen should not be the grounds for a severe penalty. Some asked who

would develop the penalty structure and what public review process the

penalty structure would go through?

Response: Civil monetary penalties are developed for Sanctuary

violations by NOAA's Office of the Assistant General Counsel for

Enforcement and Litigation, with input from the Office of Law

Enforcement, the Sanctuary program, the Regional Administrator for the

Southeast Region, and the U.S. Coast Guard. The schedule will include

enforcement actions that may be taken against violators, which may

include verbal warnings, written warnings, civil monetary penalties,

permit sanctions, and/or seizures of property. Many factors are taken

into account in determining an appropriate penalty for a particular

violation, including prior violations, the severity of the offense, and

other aggravating or mitigating circumstances. The schedules will be

available to the public before the regulations become effective and are

enforced.

Sanctuary Certification/Authorization of Permits/Leases/Licenses

Comment: Some reviewers, including the SAC, expressed concern over

the application of terms and conditions to leases, permits, licenses

particularly those in existence prior to the designation of the

Sanctuary. The public's concern was that the regulations on Sanctuary

certification of pre-existing permits (proposed Sec. 929.14) and

Sanctuary authorization of other agency permits or authorizations after

the effective date of the Sanctuary (proposed Sec. 929.15) were too

broad and appeared to give the Director the power to change existing

authorizations. Commentors indicated that such power should not be

handed over to a non-elected official without the right of appeal on

the part of the individual holding the permit, lease, license or

authorization.

Response: The State, county and other Federal agencies will

continue to exercise their authority to issue permits. The Sanctuary

will not pre-empt their authority to issue permits. In order to avoid

duplicative permits and paperwork requirement, NOAA will seek to

address Sanctuary concerns through those existing authorities. However,

those authorities cannot authorize something that the Sanctuary

prohibits. This regulatory authority is consistent with most

sanctuaries and is based on provisions of the NMSA. Although the NMSA

authorizes NOAA to regulate existing permits, including adding

conditions, such regulations may not terminate any pre-existing

permits, licenses or leases. Furthermore, Secs. 922.167(i) and

922.49(h) provide that the Director's conditions or other decisions may

be appealed. The appeal procedures are set forth in Sec. 922.50. In

addition, there are other checks and balances in place that prevent

abuse of discretion relating to permits. NOAA and the State have

developed a draft interagency agreement which identifies which

activities will be subject to certification and authorization, and how

the review process will be coordinated.

[[Page 4596]]

Sanctuary Permits--Time Limitations

Comment: Some reviewers requested that NOAA place a time limit on

itself in which to respond to a permit request. The SAC suggested a 60-

day time limit.

Response: Sanctuary concerns will be addressed for most activities

and projects in other Federal permits and, if none exist, in State

permits. Sanctuary permits are issued only if Sanctuary concerns cannot

be addressed in the existing Federal/State permit regimes. NOAA has not

imposed any time constraint for responding to permit requests. NOAA

agrees that 60 days is a reasonable time in which to respond to most

permit applications. NOAA normally responds within 3 weeks to a month

after receipt of a complete application for most permits. However, a

60-day time frame may not be appropriate for large or complex projects.

Sanctuary Permit Reporting Procedures

Comment: Some reviewers expressed concern over the reporting

requirements for permits.

Response: NOAA has not changed the permit reporting requirements.

No reports are required more often than monthly. For permits issued for

one year, the reports required are a ``quick look'' report and final

report. Longer permits require a ``quick look'', annual, and final

reports. Reports assist the Sanctuary in assessing the progress and

impacts of a permitted activity and provide information useful to

Sanctuary management.

Fee Schedule/Special Use Permits

Comment: Some reviewers suggested NOAA develop a fee schedule,

based on fair market value, for the issuance of Special-use Permits.

Response: NOAA has not included a fee schedule in the final plan.

The need for a Special-use Permit fee schedule is programmatic, not

Sanctuary specific, and the details and specifics of Special-use

Permits have not been completed by the Sanctuary and Reserves Division

of NOAA. Further, the small number of Special-use Permits issued to

date has not warranted the administrative review and development of

such a schedule. Special-use permits will continue to be considered on

a case-by-case basis.

Effectiveness of Enforcement of Regulations

Comment: There was comment expressing concern about the

effectiveness of enforcing the Sanctuary regulations.

Response: NOAA feels that effective and efficient resource

protection requires coordination with existing regulations. As a

result, the Sanctuary is developing an agreement with other enforcement

agencies such as the US Coast Guard, State of Florida, US Fish and

Wildlife Service, and the National Park Service to maximize and

coordinate existing assets concerning Sanctuary enforcement. Since the

Sanctuary includes both State and Federal waters, close coordination

between the State and NOAA is essential.

Florida Clean Vessel Act/Vessel Discharge

Comment: The State of Florida and other reviewers recommended that

NOAA establish regulations throughout Federal waters that meet the

requirements of the Florida Clean Vessel Act.

Response: NOAA has not incorporated the provisions of the Florida

Clean Vessel Act in the final regulations. This act does, however,

apply to the 65 percent of the Sanctuary in State waters. Further, the

final regulations prohibit all discharging and depositing of any

material or other matter except cooling water or engine exhaust in

Ecological Reserves or Sanctuary Preservation Areas. Thus, discharge

from marine sanitation devices in these areas is prohibited. This will

protect the shallow coral reefs from discharge of nutrients. In

addition, NOAA will work with the State of Florida and the Water

Quality Steering Committee concerning incorporation of provisions

similar to the Florida Clean Vessel Act throughout the Sanctuary.

Transiting No-Take Zones

Comment: Some fishermen expressed concern over the inability to

transit no take zones with their equipment on board and their catch

taken from outside the zones.

Response: The final regulations allow transiting an ER or SPA with

catch taken outside the ER or SPA, provided it is stowed prior to

entering and during transmit. The final regulations also allow

transiting with otherwise prohibited gear provided it is unbaited and

stowed in a cabin, locker, rod holder or similar storage area, or is

securely covered and lashed to a deck or bulkhead unbaited, prior to

entering and transiting the area.

Live Rock Harvest, Shell and Tropical Fish Collecting

Comment: Many reviewers commented on the collection and harvest of

live marine organisms and mollusc shells.

Response: Live rock harvesting is currently prohibited under State

and Federal fisheries law. The prohibition has been added to Sanctuary

regulations to protect these Sanctuary resources should the

restrictions under other laws be removed. Shell collecting and tropical

fish collecting and other consumptive activities are prohibited in the

SPAs and Ecological Reserves. In addition, the Florida Marine Life Rule

has been incorporated by reference into the Sanctuary regulations and

thereby extended into Federal waters. These regulations will address

some concerns of exploitation while minimizing economic impact. The

marine life rule is referred to in Sec. 922.163(a)(12) of the Sanctuary

regulations and is reproduced in Appendix VIII.

Diver Impact

Comment: Some commented that stronger regulations were needed to

prohibit coral touching and recommended specific regulations dealing

with diver and snorkeler impacts on the coral reefs. Some suggested

prohibiting the use of gloves or requiring float coats for snorkelers.

There was also a comment that there should be no prohibition against

impacts to dead coral.

Response: Section 922.164(d)(iv) of the Sanctuary regulations

prohibits divers and snorkelers from touching or standing on living or

dead coral formations in the SPAs and ERs. Approximately eighty to

eighty-five percent of the year-round diving and snorkeling activity

within the Sanctuary takes place in the 18 SPAs and one ER established

by the final regulations. This single regulation will address the issue

of diver impact on coral reefs without having to develop a series of

regulations on gear requirements that accomplishes the same goal. NOAA

included ``living or dead'' coral formations with the understanding

that some visitors to the Sanctuary do not know the difference between

living and dead corals. Additionally, impacts to dead coral formations

may disrupt new coral recruits. The removal or injury to corals is also

prohibited Sanctuary-wide.

Spearfishing

Comment: Some reviewers expressed concern about spearfishing within

the Sanctuary, while others urged NOAA to allow it to continue in a

managed manner.

Response: In balancing the public's concern and interest over the

issue of spearfishing within the Sanctuary, NOAA has prohibited

spearfishing in the SPAs, ERs, Research-only Special-use Areas, and

some of the Existing Management Areas. NOAA has addressed the concerns

of over-harvest

[[Page 4597]]

by this fishing technique in eighty to eighty-five percent of the total

area within the Sanctuary dived by recreational divers and snorkelers.

However, spearfishing will continue to be allowed and managed under

fisheries management regulations in the remainder of the Sanctuary.

This balance of concerns on the issue will have positive impacts on the

resources.

Military Activities Within the Sanctuary

Comment: Some commented that a prohibition on the use of explosives

within the Sanctuary should be extended to the military.

Response: The final regulations provide that all military

activities shall be carried out in a manner that avoids to the maximum

extent practicable any adverse impacts on Sanctuary resources and

qualities. Sections 922.163 and 922.164 do not apply to existing

classes of military activities as identified in the final environmental

impact statement. New military activities may also be exempted from all

or part of these two sections upon consultation with the Director. NOAA

has been assured by the Navy that live (explosive) ordinances are not

currently used within the Sanctuary. The Patricia Range is the only

target site within the Sanctuary and live explosives are not used.

Research & Monitoring Action Plan

Management Should Be Based on Good Science

Comment: Management actions should be based on good science and

should not occur until the science is done to back it up.

Response: Management actions should be based on the best available

science. However, there is always a degree of uncertainty associated

with science and, in some cases, it is imprudent to suspend management

actions until the science is completed. A precautionary approach to

management of Sanctuary resources should be taken in order to ensure

that lack of scientific certainty does not preclude implementation of

reasonable management measures. An adaptive management approach will be

used in the Sanctuary when necessary.

Studies Are Needed To Determine Sustainability

Comment: Studies are needed to determine the level of human

activity sustainable by the resources.

Response: NOAA agrees and has included a carrying capacity strategy

in the Research and Monitoring Action Plan. The strategy calls for

carrying capacity research to be conducted at several of the SPAs and

Research-only Special-use Areas.

Too Much Emphasis on Research and Monitoring

Comment: The draft management plan places too much emphasis on

research and monitoring.

Response: Research and monitoring is an essential component of

effective resource management. The reason many strategies have a

research or monitoring component is to assess the strategies''

effectiveness or feasibility in order to determine whether it needs to

be modified, continued, or terminated prior to committing additional

resources in the future.

Queen Conch Stocking

Comment: A moratorium on stocking would adversely effect the

State's queen conch stocking program.

Response: NOAA has revised Strategy F.3 by eliminating the

moratorium on stocking and replacing it with a requirement for

permitting of all stocking programs.

Monitoring of Zones

Comment: Research and monitoring of zones needs to be a top

priority.

Response: Scientific monitoring to determine the effectiveness of

the zones is a top priority for NOAA. In 1993, NOAA began to collect

baseline data on reef fish populations in and around the proposed no-

take zones in preparation for their implementation. Research in the

zones is also a top priority and will begin once the zones are

finalized. The Research and Monitoring Action Plan explains how the

zones will be used for research and monitoring.

Volunteer Research and Monitoring Programs

Comment: Some reviewers pointed out the need to incorporate

volunteer monitoring efforts such as some of those currently underway

by groups like Reef Relief, The Nature Conservancy, and R.E.E.F. They

also pointed out the importance of using the knowledge of local experts

to help better understand the health of Sanctuary resources.

Response: NOAA has incorporated the use of monitoring projects by

the public and volunteers in the Research and Monitoring Action Plan.

The long-term goals of the Sanctuary include using such monitoring

programs as a basis of detecting change in the coral reef environment.

Submerged Cultural Resources Action Plan

Prevent Treasure Hunting & No Permits for Private Profit

Comment: Several reviewers, including the National Park Service,

Minerals Management Service, and the Department of the Navy stated that

no treasure hunting should be permitted in the Sanctuary and that the

proposed Submerged Cultural Resources (SCR) permit system was in

conflict with the Federal Archaeological Program and particularly the

Abandoned Shipwreck Act (ASA) guidelines. Other reviewers indicated

that some commercial treasure salvage should be permitted, but should

be strictly regulated to prevent any harm to the natural resources of

the Sanctuary.

Response: NOAA agrees that ``treasure hunting'' that is, the search

for and recovery of intrinsically valuable artifacts with little, if

any, regard for the archaeological context and historical significance

of the finds, should not be allowed in the Sanctuary.

However, the Submerged Cultural Resources (SCR) Action Plan does

provide for public and private sector recovery of shipwrecks consistent

with protecting historical values and the environmental integrity of

the shipwrecks and sites. NOAA and the State of Florida have agreed

that the SCR plan, consistent with the multiple use mandates of the

NMSA and the ASA, should provide for the in situ preservation of highly

significant historical Sanctuary resources under strict regulations

protecting historical values and the environmental integrity of the

shipwrecks and sites and that the recovery of SCRs should only be

permitted when it is determined to be in the public's interest and done

in an environmentally and archaeologically sound manner.

No recovery permits will be issued in areas where there is coral,

seagrass or other significant natural resources. However, private

recovery of certain SCRs may be permitted in other areas of the

Sanctuary which are relatively devoid of natural resources. In such

recovery efforts, the highly significant resources will be required to

be preserved in a museum of public access consistent with the standards

of the Federal Archaeological Program. Objects of low to moderate

historic or archaeological significance may be deaccessioned or

transferred for sale or other disposition.

As regards the ASA guidelines, NOAA acknowledges that the

accommodation of commercial salvage, that is, the search for and the

recovery

[[Page 4598]]

of shipwreck artifacts using archaeological recovery techniques and

historical documentation to maximize the intrinsic value of the finds,

does appear to conflict with certain ASA guidelines suggesting that no

commercial salvage be permitted in marine sanctuaries. However, NOAA's

position is that the SCR Action Plan is consistent with the ASA

guidelines when read as a whole. In other words, there is no commercial

salvage permitted in the zoned areas and other areas of significant

natural resources. Commercial salvage will be permitted only in areas

relatively devoid of significant natural resources. NOAA does not

suggest that the FKNMS SCR Action Plan be used as a model for other

national marine sanctuaries, or for other Federal/State protected areas

or preserve systems. There are several distinguishing reasons for the

departure from those ASA Guidelines in the FKNMS: (1) 65 percent of the

Sanctuary is in State waters--under the NMSA and the ASA due deference

must be given to the State's interests in managing Sanctuary resources,

particularly abandoned shipwrecks to which the State has title; (2)

treasure hunting and commercial salvage of historic shipwrecks has been

a traditional activity in the Keys for decades and is part of the local

culture; (3) the NMSA and the ASA are multiple use statutes; (4) the

establishment of multiple use areas where commercial salvage can occur

as well as not permitting any recovery where there is coral, seagrass

or other significant natural resources is analogous to the zoning

approach proposed for protecting natural resource habitat areas; (5)

the SAC recommended that some commercial salvage be permitted in the

Sanctuary; and 6) numerous other public comments recommended that some

commercial salvage should be permitted in the Sanctuary.

Consistent with the recommendations of the SAC, the State, and

public comments, the SCR Action Plan provides a permit system which

will strictly regulate private, for profit, recovery of SCRs, to ensure

that it is done in an environmentally and archaeologically sound

manner. Private, for profit, recovery will not be allowed unless it is

in the public interest and will include public display of the recovered

SCRs. Certain SCRs will be required to be maintained in museums and

similar institutions of public access while duplicative objects may be

deaccessioned and transferred to the permittee for sale or other

disposition, but only after there has been a proper recording and

reporting of the archaeological information. Under the multiple use

mandate of the NMSA and the ASA, some SCRs may be recovered while other

more significant SCRs will remain in the Sanctuary for in situ

preservation and use by present and future generations.

Comment: The National Park Service commented that the Antiquities

Act applies in National Marine Sanctuaries and therefore an Antiquities

Act permit should be required for the excavation and recovery of SCRs.

Response: NOAA agrees that the Antiquities Act applies in the

Sanctuary. However, as the Federal agency that exercises control over

Sanctuary resources, NOAA is the appropriate Federal agency to issue

permits for the management of Sanctuary resources, including

antiquities. Moreover, as the Sanctuary SCR permits will be issued in

compliance with the NMSA, the ASA, the NHPA, and the standards and

guidelines of the Federal Archaeological Program, an additional permit

under the Antiquities Act appears unnecessarily duplicative.

Comment: The Department of the Navy objected to the SCR permits and

expressed concern about the Navy's historic shipwrecks in the Sanctuary

as well as the potential precedent for other Navy historic shipwrecks

outside the Sanctuary.

Response: The permits for private recovery and deaccession/transfer

only apply to abandoned vessels. As a trustee for such resources, NOAA

will continue to respect the interests of the owners of the vessels and

the sovereigns that represent those interests consistent with domestic

and international law. Sunken warships and other public vessels

entitled to sovereign immunity, regardless of location, remain the

property of the nation to which it belonged at the time of sinking,

unless that nation has taken formal action to abandon it or to transfer

title to another party. It is a long-standing Navy policy that it does

not abandon its public vessels. Therefore, no permits will be issued

for the private recovery of Navy vessels without the express written

permission of the Department of the Navy. In considering permits for

the private recovery of other vessels entitled to sovereign immunity,

NOAA may require the express permission of the appropriate sovereign

representatives, or otherwise consider their interests in the vessel

and its recovery.

SCR Plan/Permits & Costs to Treasure Salvors Business

Comment: At the scoping meetings, workshops, SAC meetings, other

public meetings, and in public comments the treasure salvors have

continuously asserted that the FKNMS would put them out of business and

commented that the Sanctuary should adopt the State's existing contract

system. Others commented that commercial treasure salvage should be

permitted, but should be strictly regulated to prevent harm to natural

resources from various commercial treasure salvage methodologies,

including ``mail-boxing'' (propeller dredging device).

Response: The Florida contract system and the division ratio (80

percent salvor to 20 percent State) was considered as an alternative,

but was not preferred because it is inconsistent with the Federal

Archaeological Program and with the ASA Guidelines. Prohibiting

commercial salvage throughout the Sanctuary was also considered and

rejected for reasons indicated in the response to the comments above.

The SCR Action Plan is the result of a careful balancing of resource

protection and reasonable accommodation for commercial salvage in

certain areas for certain SCRs. If the cargo from a wreck is of little

or no historical or archaeological significance and duplicative, then

nearly all of the recovered objects will likely be transferred to the

permittee. On the other hand, if the artifacts are of high historical

significance, then the permittee will have possession of the artifacts

and may seek return on the investment through other means. However, in

this instance there would be no transfer of ownership of a public

resource to a private party unless and until it is determined that the

resource is of little or no historical or archaeological value. In

developing the SCR Action Plan, NOAA considered the threats to natural

and historical resources and sought to develop strict regulations to

ensure that recovery will be environmentally and archaeologically

sound, while at the same time, taking into account the socio-economic

considerations of the commercial salvors and others. In response to

comments, changes were made to the proposed regulations and draft

management plan in an effort to make the permit management system more

pragmatic from the perspective of the commercial salvors without

compromising the primary objectives of protecting significant natural

and historic Sanctuary resources. Between the draft and the final, NOAA

issued

[[Page 4599]]

several permits to commercial salvors with pre-existing admiralty

rights. While the permit conditions may be more rigorous than the

requirements of the Admiralty Court or the State contract system, and

thus may involve additional costs, those permittees continue to work

their sites.

Comment: The Historic Shipwreck Salvage Policy Council (HSSPC)

(treasure salvors group) and other treasure salvors also raised

specific concerns about the economic burden to permittees in the SCR

Action Plan such as requiring performance bonds, general liability

insurance, permanent public display of certain SCRs, professional

nautical conservators and supervision by professional archaeologists.

Response: Pursuant to consultation with the State of Florida, NOAA

has deleted the requirement for a performance bond for all applicants.

As the treasure salvors noted, the regulations elsewhere require all

permittees to demonstrate their financial ability to carry out proposed

projects and activities requiring permits. NOAA agrees that the

underlying purpose of requiring a performance bond (to ensure that

there are ample funds to finish research-recovery work once initiated)

appears to be covered by the other regulations and that by removing the

regulatory requirement for a performance bond, there will be more

flexibility in the permit system. While the removal of the regulatory

requirement should reduce the costs for meeting the permit criteria for

most applicants, requiring such a performance bond may still be

reasonable and appropriate in certain cases where applicants

historically have not finished projects or have difficulty

demonstrating their financial ability to complete a proposed project.

General liability insurance is required by Section 310 of the NMSA.

However, NOAA has modified the regulatory provision implementing that

requirement to clarify that other security instruments may be utilized

in lieu of an insurance policy. In addition, NOAA has modified the

regulatory language to clarify that the scope of coverage required is

for potential claims for destruction, loss of or injury to Sanctuary

resources arising out of permitted activities and to clarify that the

amount of insurance or security should be equivalent to the estimated

value of the Sanctuary resources in the vicinity of the permitted area

and activities.

With regard to the requirement that SCRs be publicly displayed,

NOAA did not intend to require that all SCRs be publicly displayed for

all time. Instead, it was expected that this would be addressed in the

curation agreements and that standard museum practices would be

followed, consistent with the FAP. The regulations have therefore been

modified to indicate that public access and ``periodic'' public display

must be provided.

With regard to the requirement that a professional archaeologist be

in charge of the archaeological research and recovery, that requirement

has not been changed or modified. Recovery of historical resources

inherently involves the destruction of contextual and other important

archaeological information. The only way that such information is

preserved is through scientific recording of the recovery efforts

consistent with standard archaeological principles. It is therefore

imperative that a professional archaeologist supervise the recovery

operations. That is not to say that, as supervisor, the archaeologist

needs to be on site all the time. However, the archaeologist needs to

oversee the operations. The public's interest in the preservation of

this archaeological information justifies the additional costs to the

permittee. In addition, the administrative record indicates that many

commercial salvors already employ an archaeologist.

With regard to the requirement of a professional nautical

conservator, the regulations have been modified to delete

``professional'' and insert ``authorized'' as suggested in comments in

order to provide more flexibility in the permit system and allow for

the consideration of field experience. As the professional

archaeologist is responsible for supervising the operations, NOAA will

give due deference to the supervising archaeologist's selection for

nautical conservator in considering its authorization.

Special Use Permits; Fees/Waiver in SCR Context

Comment: The HSSPC suggested adding a third criteria for Special-

use Permits, i.e., ``to promote private sector participation when

advantageous to the taxpayers'' and shifting the costs for Special-use

Permits from the permittee to NOAA and the State. The HSSPC also

suggested that the costs for Special-use Permits should be limited to

the costs of issuing the permit. Other administrative costs such as

monitoring activities should not be included. The fair market value for

use of Sanctuary resources also should not be included.

Response: Section 310 of the NMSA provides the authority, and sets

forth the two criteria, for issuing Special-use Permits. Section 310

also provides for the assessment of associated fees which are to cover

the administrative costs as well as a fair market value return to the

public for use of public resources. This portion of the management plan

merely describes these statutory provisions and remains consistent with

section 310.

With regard to adding the third criterion, promotion of private

participation, it is not a section 310 criterion or even a general

statutory purpose or policy. However, facilitation of compatible

multiple use is a statutory policy and the SCR Action Plan has been

modified accordingly.

With regard to the assessment of costs and waiver of fees in

implementing Special-use Permit authority, NOAA has the discretionary

authority to consider waiver of costs and/or fees on a case by case

basis when permitted activities result in a public benefit, whose value

can be determined. For example, in the SCR context, the preferred

policy is that the SCR be preserved on site. Waiver of fees for the

removal of SCRs which are not under threat is unlikely. However, if it

is determined that the SCR is being threatened by remaining in the

Sanctuary, the research and recovery would appear to be in the public

interest and reduction and/or waiver may therefore be considered in the

cost and/or fee determination. The extent that private use is

furthering resource protection, research, education and similar FKNMS

management strategies is given due consideration in determining the

amount of costs and fees.

Public Access to SCRs (Land v. Sea)

Comment: The HSSPC suggested that the plan should require SCRs to

be managed in a manner that brings SCRs to the largest segment of the

populations noting that scuba divers amount to less than 1% of the

population. Several others, including the National Park Service,

commented that SCRs should be preserved in the Sanctuary but that non-

intrusive public access for research, education and recreation should

be allowed, and that intrusive public access should be strictly

regulated.

Response: The policy preference under the FKNMS SCR Action Plan,

consistent with the preservation policy in the Federal Archaeological

Program, and the resource protection mandate in the NMSA, is that SCRs

be preserved on site in the Sanctuary, unless the SCRs are under threat

and removal is required to preserve them. As indicated in the comments

above, there has been some accommodation for commercial salvage in

certain areas of the Sanctuary and for certain SCRs to facilitate

multiple use of the SCRs. However, besides being inconsistent with

resource protection,

[[Page 4600]]

the suggestion that all or most of the SCRs be removed from the

Sanctuary is not consistent with the multiple use mandates of the NMSA

and the ASA and has therefore not been incorporated. The ASA and the

NMSA are both concerned about public access to SCRs for boaters, divers

and others within the Sanctuary. The suggested change in policy appears

to primarily benefit one special interest group, the commercial

salvors. Access to Sanctuary resources for members of the public unable

to enter the Sanctuary itself is accomplished through a variety of

education and outreach and resear

This text is long and has been trimmed here. Open the source document for the complete record.