# Florida Keys National Marine Sanctuary Final Regulations

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-1870

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 30, 1997
- **Citation:** 62 FR 4578

## Text

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

[[Page 4579]]

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.

[[Page 4580]]

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

[[Page 4581]]

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

[[Page 4582]]

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-1870. Public record. Not legal advice.