Florida Keys National Marine Sanctuary Proposed Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Parts 929 and 937

[Docket No. 941085-4285]

RIN 0648-AD85

Florida Keys National Marine Sanctuary Proposed Regulations

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

National Ocean Service (NOS), National Oceanic and Atmospheric

Administration (NOAA), Commerce.

ACTION: Proposed rule; removal and revision of regulations; Summary of

Draft Management Plan; Proposed Designation Document; Public

Availability of Draft Management Plan and Draft Environmental Impact

Statement.

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SUMMARY: NOAA, as required by section 7(a) of the Florida Keys National

Marine Sanctuary and Protection Act, is proposing a comprehensive

management plan and implementing regulations to manage an approximately

2,800 square nautical mile area of coastal and ocean waters and the

submerged lands thereunder, surrounding the Florida Keys in and

adjacent to the State of Florida, designated by the Florida Keys

National Marine Sanctuary and Protection Act as the Florida Keys

National Marine Sanctuary (the ``Sanctuary''). This document publishes

the Designation Document, and summarizes the draft comprehensive

management plan, for the Sanctuary. The draft management plan details

the proposed goals and objectives, management responsibilities,

research activities, interpretive and educational programs, and

enforcement, including surveillance, activities for the Sanctuary. The

proposed regulations would implement the comprehensive management plan

and govern the conduct of activities consistent with the provisions of

the Designation Document. The intended effect of the Designation

Document, proposed regulations, and DEIS/MP is to protect the

conservation, recreational, ecological, historical, research,

educational, and aesthetic qualities of the Florida Keys

coastal and ocean waters and the submerged lands thereunder.

management plan

and govern the conduct of activities consistent with the provisions of

the Designation Document. The intended effect of the Designation

Document, proposed regulations, and DEIS/MP is to protect the

conservation, recreational, ecological, historical, research,

educational, and aesthetic qualities of the Florida Keys

coastal and ocean waters and the submerged lands thereunder.

DATES: Comments are invited and will be considered if submitted in

writing to the address below by December 31, 1995.

ADDRESSES: Requests for the above described documents and comments

should be submitted to the 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, Atlantic, Great Lakes

and Gulf Branch Chief, 301/713-3137 X 131.

SUPPLEMENTARY INFORMATION:

I. Introduction

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

of 1972, as amended, 16 U.S.C. 1431 et seq. (the ``MPRSA''), authorizes

the Secretary of Commerce to designate discrete areas of the marine

environment as national marine sanctuaries to protect their

conservation, recreational, ecological, historical, research,

educational, or aesthetic qualities.

The Florida Keys National Marine Sanctuary was designated by an act

of Congress entitled the Florida Keys National Marine Sanctuary and

Protection Act (FKNMSPA, Pub. L. 101-605) signed into law on November

16, 1990.

NOAA held six public scoping meetings during the months of April

and May, 1991, to solicit public comments on the proposed management of

the Sanctuary: Key Largo on April 10th, Miami on April 11th, Marathon

on April 15th, and Key West on April 16th, Key Largo on April 17, and

Washington, D.C. on May 6. Notice of the scoping meetings was published

in local newspapers

aw on November

16, 1990.

NOAA held six public scoping meetings during the months of April

and May, 1991, to solicit public comments on the proposed management of

the Sanctuary: Key Largo on April 10th, Miami on April 11th, Marathon

on April 15th, and Key West on April 16th, Key Largo on April 17, and

Washington, D.C. on May 6. Notice of the scoping meetings was published

in local newspapers. NOAA invited all interested persons to attend, and

asked those attending the meeting to comment on readily identifiable

issues, suggest additional issues for examination, and provide

information useful in managing the Sanctuary.

The authority of the Secretary to designate national marine

sanctuaries was delegated to the Under Secretary of Commerce for Oceans

and Atmosphere by the Department of Commerce, Organization Order 10-15,

section 3.01(z) (Jan. 11, 1988). The authority to administer the other

provisions of the Act 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).

Holders of, owners of, or future applicants for leases, permits,

licenses, approvals, other authorizations, or rights of subsistence use

of, or access to, Sanctuary resources, are specifically invited to

comment on how they may be affected by the designation of the Sanctuary

and particularly sections 929.14-929.16 of the proposed regulations.

Comments are also specifically sought on the adequacy of the

regulatory regime to protect Sanctuary resources and qualities.

After the comments received during the comment period have been

considered, a final environmental impact statement and management plan

will be prepared, and final regulations implementing the comprehensive

management plan will be published in the Federal Register

ions.

Comments are also specifically sought on the adequacy of the

regulatory regime to protect Sanctuary resources and qualities.

After the comments received during the comment period have been

considered, a final environmental impact statement and management plan

will be prepared, and final regulations implementing the comprehensive

management plan will be published in the Federal Register. The

designation document, management plan, and regulations will become

final and take effect at the close of a 45-day Congressional review

period unless a joint resolution disapproving any of the terms of

designation is enacted, in which case only the terms not disapproved

will take effect, or the Governor of the State of Florida certifies to

the Secretary of Commerce that the designation or any of its terms is

unacceptable, in which case the designation or the unacceptable terms

will not take effect in the area of the Sanctuary lying within the

seaward boundary of the State. A document will be published in the

Federal Register announcing the effective date.

II. Summary of Draft Environmental Impact Statement/Management Plan

The DEIS/MP for the Florida Keys National Marine Sanctuary sets

forth the Sanctuary's location and provides details on the most

important resources and uses of the Sanctuary. The DEIS/MP describes

the resource protection, research, education and interpretive programs,

and details the specific activities to be conducted in each program.

The DEIS/MP includes a detailed discussion, by program area, of agency

roles and responsibilities

iority 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 the development of procedures to address specific

management concerns (e.g., monitoring and emergency-response programs);

(3) develop an effective and coordinated program for the 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

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 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

nd to resolve specific

management problems. Some of 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

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

The goal for the Sanctuary education 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

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 would be managed from a headquarters facility located

in the Florida Keys region.

III. Designation Document

Section 304(a)(4) of the MPRSA requires that the Terms of

Designation include the geographic area included within the Sanctuary;

the characteristics of the area that give it conservation,

recreational, ecological, historical, research, educational, or

aesthetic value; and the types of activities that will be subject to

regulation by the Secretary to protect these characteristics. Section

304(a)(4) also specifies that the terms of designation may be modified

only by the same procedures by which the original designation was made.

Thus the terms of designation serve as a constitution for the

Sanctuary.

Designation Document for the Florida Keys National Marine Sanctuary

On November 16, 1990, the Florida Keys National Marine Sanctuary

and Protection Act (FKNMSPA), Public Law 101-605, set out as a note to

16 U.S.C. 1433, was signed into law. The Florida Keys National Marine

Sanctuary and Protection Act designated an area of waters and submerged

lands, including the living and nonliving resources within those

waters, as described in section 5 of the FKNMSPA, as the Florida Keys

National Marine Sanctuary.

Article I. Effect of Designation

n Act (FKNMSPA), Public Law 101-605, set out as a note to

16 U.S.C. 1433, was signed into law. The Florida Keys National Marine

Sanctuary and Protection Act designated an area of waters and submerged

lands, including the living and nonliving resources within those

waters, as described in section 5 of the FKNMSPA, as the Florida Keys

National Marine Sanctuary.

Article I. Effect of Designation

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

of 1972 as amended (the ``MPRSA''), 16 U.S.C. 1431 et seq., authorizes

the issuance of such regulations as are necessary and reasonable to

implement the designation, including managing and protecting the

conservation, recreational, ecological, historical, research,

educational and esthetic resources and qualities of the Florida Keys

National Marine Sanctuary. Section 1 of Article IV of this Designation

Document lists activities of the type that will be regulated initially,

or may be subject to regulated subsequent regulation in order to

protect Sanctuary resources and qualities. Such listing does not

necessarily mean that a type of activity will be regulated; however, if

a type of activity is not listed it may not be regulated, except on an

emergency basis, unless Section 1 of Article IV is amended to include

the type of activity by the procedures outlined in section 304(a) of

the MPRSA.

Article II. Description of the Area

The Florida Keys National Marine Sanctuary boundary encompasses

approximately 2,800 square nautical miles (9,500 square kilometers) of

coastal and oceanic waters, and the submerged lands thereunder,

surrounding the Florida Keys in and adjacent to the State of Florida.

The Sanctuary boundary extends from the northeasternmost point of

Biscayne National Park out to the Dry Tortugas, a linear distance of

approximately 320 kilometers

uary boundary encompasses

approximately 2,800 square nautical miles (9,500 square kilometers) of

coastal and oceanic waters, and the submerged lands thereunder,

surrounding the Florida Keys in and adjacent to the State of Florida.

The Sanctuary boundary extends from the northeasternmost point of

Biscayne National Park out to the Dry Tortugas, a linear distance of

approximately 320 kilometers. The boundary on the Atlantic Ocean side

of the Florida Keys runs south from Biscayne National Park following

approximately the 300-foot isobath, which curves in a southwesterly

direction along the Florida Keys archipelago ending at the Dry

Tortugas. The boundary on the Gulf of Mexico-side of the Florida Keys

runs in an easterly direction from the Dry Tortugas paralleling the

Florida Keys, approximately five miles to the north, and then follows

the Everglades National Park boundary until Division Point at which

time the boundary follows the western shore of Manatee Bay, Barnes

Sound, and Card Sound. The boundary then follows the southern boundary

of Biscayne National Park and up its eastern boundary until its

northeasternmost point.

The shoreward boundary of the Sanctuary is the mean high-water

mark. The Sanctuary boundary encompasses all of the Florida coral reef

tract, all of the mangrove islands of the Florida Keys, and some of the

seagrass meadows of Florida Bay. The precise boundary of the Sanctuary

is set forth at the end of this Designation Document.

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

oreward boundary of the Sanctuary is the mean high-water

mark. The Sanctuary boundary encompasses all of the Florida coral reef

tract, all of the mangrove islands of the Florida Keys, and some of the

seagrass meadows of Florida Bay. The precise boundary of the Sanctuary

is set forth at the end of this Designation Document.

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

The Florida Keys are a limestone island archipelago extending

southwest over 320 kilometers from the southern tip of the Florida

mainland. The Keys are located at the southern edge of the Floridian

Plateau, a large carbonate platform made of a depth of up to 7,000

meters of marine sediments, which have been accumulating for 150

million years and have been structurally modified by subsidence and sea

level fluctuation. The Keys region is generally divided into five

distinct areas: the Florida reef tract, one of the world's largest

coral reef tracts and the only barrier reef in the United States;

Florida Bay, described as an active lime-mud factory because of the

high carbonate content of the silts and muds; the Southwest

Continental Shelf; the Straits of Florida; and the Keys

themselves.

The 2.4 million-acre Sanctuary contains one of North America's most

diverse assemblages of estuarine and marine fauna and flora, including,

in addition to the Florida reef tract, thousands of patch reefs, one of

the world's largest seagrass communities covering 1.4 million acres,

mangrove-fringed shorelines, mangrove islands, and various hardbottom

habitats. These diverse habitats provide shelter and food for thousands

of species of marine plants and animals, including over 50 species of

animals identified by either Federal or State law as endangered or

threatened. Federal, State, local, and private organizations currently

protect, preserve and set regulations at 121 sites throughout the Keys,

covering approximately 2.0 million acres

m

habitats. These diverse habitats provide shelter and food for thousands

of species of marine plants and animals, including over 50 species of

animals identified by either Federal or State law as endangered or

threatened. Federal, State, local, and private organizations currently

protect, preserve and set regulations at 121 sites throughout the Keys,

covering approximately 2.0 million acres.

The Keys were at one time a major seafaring center for European and

American trade routes in the Caribbean, and submerged cultural and

historic resources (i.e., shipwrecks) abound in the surrounding waters.

In addition, the Sanctuary may contain substantial archaeological

resources of pre-European cultures.

The uniqueness of the marine environment draws multitudes of

visitors to the Keys. The major industry in the Florida Keys is

tourism, including activities related to the Keys' marine resources,

such as dive shops, charter fishing and dive boats and marinas, as well

as hotels and restaurants. The abundance of the resources also supports

a large commercial fishing employment sector.

The number of visitors to the Keys grows each year, with a

concomitant increase in the number of residents, homes, jobs, and

businesses. As population grows and the Keys accommodate ever-

increasing resource-use pressures, the quality and quantity of

Sanctuary resources are increasingly threatened. These pressures

require coordinated and comprehensive management, monitoring and

research of the Florida Keys' region.

Article IV. Scope of Regulations

a

concomitant increase in the number of residents, homes, jobs, and

businesses. As population grows and the Keys accommodate ever-

increasing resource-use pressures, the quality and quantity of

Sanctuary resources are increasingly threatened. These pressures

require coordinated and comprehensive management, monitoring and

research of the Florida Keys' region.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation

In order to protect the characteristics and values of the Sanctuary

described above, all activities adversely affecting the resources or

property of the Sanctuary, whether individually or cumulatively, or

that pose harm to users of the Sanctuary are subject to regulation,

including regulation of method, location and times of conducting the

activity, assessment of fees for conducting the activity, and

prohibition of the activity, either throughout the entire Sanctuary

(including both land and water areas), after public notice and an

opportunity for comment, or within identified portions of the Sanctuary

or in areas adjacent to the Sanctuary to the extent necessary and

reasonable to ensure the protection and management of the conservation,

recreational, ecological, historical, research, educational or esthetic

resources and qualities of the area. Such activities include, but are

not limited to:

a. Discharging or depositing, from within or from beyond the

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

aerially-sprayed pesticides, that enters or could enter the Sanctuary;

and reporting of discharges or deposits, from within or from beyond the

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

aerially-sprayed pesticides, that enters or could enter the Sanctuary;

b. Exploring for, developing, or producing oil, gas or minerals

(e.g., clay, stone, sand, gravel, metalliferous ores and

nonmetalliferous ores or any other solid material or other matter of

commercial value) in the Sanctuary;

c

m within or from beyond the

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

aerially-sprayed pesticides, that enters or could enter the Sanctuary;

b. Exploring for, developing, or producing oil, gas or minerals

(e.g., clay, stone, sand, gravel, metalliferous ores and

nonmetalliferous ores or any other solid material or other matter of

commercial value) in the Sanctuary;

c. Drilling into, dredging or otherwise altering the seabed of the

Sanctuary; or constructing, placing or abandoning any structure,

material or other matter on the seabed of the Sanctuary;

d. Taking, removing, moving, catching, collecting, harvesting,

feeding, injuring, destroying or causing the loss of, or attempting to

take, remove, move, catch, collect, harvest, feed, injure, destroy or

cause the loss of a marine mammal, marine reptile, seabird, historical

resource or other Sanctuary resource;

e. Touching with any part of the body, climbing on, taking,

removing, moving, catching, collecting, harvesting, injuring,

destroying or causing the loss of, or attempting to take, remove, move,

catch, collect, harvest, feed, injure, destroy or cause the loss of

living or dead coral;

f. Possessing within the Sanctuary a Sanctuary resource or any

other resource, regardless of where taken, removed, moved, caught,

collected or harvested, that, if it had been found within the

Sanctuary, would be a Sanctuary resource;

g. Operation of a vessel (i.e., watercraft of any description),

including but not limited to anchoring or otherwise mooring a vessel;

and all activities necessary for vessel operation or maintenance, such

as pump-out of sanitary wastes and refueling, in the Sanctuary or any

part thereof or in marinas or at docks within or adjacent to the

Sanctuary;

h

anctuary, would be a Sanctuary resource;

g. Operation of a vessel (i.e., watercraft of any description),

including but not limited to anchoring or otherwise mooring a vessel;

and all activities necessary for vessel operation or maintenance, such

as pump-out of sanitary wastes and refueling, in the Sanctuary or any

part thereof or in marinas or at docks within or adjacent to the

Sanctuary;

h. Removal of vessels grounded, lodged, stuck or otherwise perched

on coral reefs or other Sanctuary resources; and removal from any

location within the Sanctuary and disposal of derelict or abandoned

vessels or other vessels for which ownership cannot be determined or

for which owner takes no action for removal or disposal; and salvaging

and towing of abandoned or disabled vessels or of vessels otherwise

needing salvaging and towing;

i. Possessing or using within the Sanctuary or any part thereof,

any fishing gear, trap, device, equipment or means, whether regulated

based on method or based on quantity of fish present or quantity of

fish caught in identified fisheries; and providing information to

Federal, State, and local officials within the Sanctuary and adjacent

to the Sanctuary about the quantity and type of fish and other living

Sanctuary resources caught during any vessel travel;

j. Possessing or using explosives or air guns or releasing

electrical charges or substances poisonous or toxic to fish and other

living resources within the Sanctuary boundary or adjacent to the

Sanctuary boundary;

k. Stocking or release of native or exotic species;

l. Harvesting or otherwise taking sponges;

m. Removal and disposal of lost or out-of-season gear discovered

within the Sanctuary boundary;

n. Development or conduct in the Sanctuary of mariculture

activities;

o. Flying a motorized aircraft above the Sanctuary;

p. Construction, alteration, repair or other work on docks and

marinas;

q. Activities or situations on land that may result in water

quality degradation, including but not limited to:

1

nd disposal of lost or out-of-season gear discovered

within the Sanctuary boundary;

n. Development or conduct in the Sanctuary of mariculture

activities;

o. Flying a motorized aircraft above the Sanctuary;

p. Construction, alteration, repair or other work on docks and

marinas;

q. Activities or situations on land that may result in water

quality degradation, including but not limited to:

1. Dredging and filling, particularly of wetlands;

2. Construction activities;

3. Use and management of hazardous chemicals, including, but not

limited to, pesticides, fertilizers, and motor oil;

4. Waste disposal and discharge on land; and

5. Water quality in basins and canals; and

r. Interfering with, obstructing, delaying or preventing an

investigation, search, seizure or disposition of seized property in

connection with enforcement of the Act or any regulation or permit

issued under the Act.

Section 2. Emergencies

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

or injury to a Sanctuary resource or quality; or

minimize the imminent risk of such destruction, loss or injury, any

activity, including any not listed in section 1 of this article, is

subject to immediate temporary regulation, including prohibition.

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

If any valid law or regulation issued by any Federal, State or

local authority of competent jurisdiction, regardless of when issued,

conflicts with a Sanctuary regulation, the regulation deemed by the

Director, Office of Ocean and Coastal Resource Management, National

Oceanic and Atmospheric Administration, or his or her designee to be

more protective of Sanctuary resources and qualities shall govern.

Pursuant to section 304(c)(1) of the Act, 16 U.S.C

r

local authority of competent jurisdiction, regardless of when issued,

conflicts with a Sanctuary regulation, the regulation deemed by the

Director, Office of Ocean and Coastal Resource Management, National

Oceanic and Atmospheric Administration, or his or her designee to be

more protective of Sanctuary resources and qualities shall govern.

Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no

valid lease, permit, license, approval or other authorization issued by

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

any right of subsistence use or access, may be terminated by the

Secretary of Commerce, or his or her designee, as a result of this

designation, or as a result of any Sanctuary regulation, if such

authorization or right was in existence on the effective date of

Sanctuary designation (November 16, 1990). However, the Secretary of

Commerce or designee may regulate the exercise (including, but not

limited to, the imposition of terms and conditions) of such

authorization or right consistent with the purposes for which the

Sanctuary is designated.

In no event may the Secretary or designee issue a permit

authorizing, or otherwise approving: (1) The exploration for, leasing

of, development of, or production of minerals or hydrocarbons within

the Sanctuary; or (2) the disposal of dredged material within the

Sanctuary, or the discharge of untreated or primary treated sewage

(except by a certification, pursuant to Section 940.10, of valid

authorizations in existence on the effective date of Sanctuary

designation). Any purported authorizations issued by other authorities

after the effective date of Sanctuary designation for any of these

activities within the Sanctuary shall be invalid.

Article VI. Alteration of this Designation

untreated or primary treated sewage

(except by a certification, pursuant to Section 940.10, of valid

authorizations in existence on the effective date of Sanctuary

designation). Any purported authorizations issued by other authorities

after the effective date of Sanctuary designation for any of these

activities within the Sanctuary shall be invalid.

Article VI. Alteration of this Designation

The terms of designation, as defined under Section 304(a) of the

MPRSA, may be modified only by the procedures outlined in such section,

including public hearings, consultation with interested Federal, State,

and local agencies, review by the appropriate Congressional committees,

and the Governor of the State of Florida, and approval by the Secretary

of Commerce or designee.

Florida Keys National Marine Sanctuary Boundary Coordinates (based on

North American datum of 1983.)

The boundary of the Florida Keys National Marine Sanctuary

(a) Begins at the northeasternmost point of Biscayne National Park

located at approximately 25 degrees 39 minutes north latitude, 80

degrees 5 minutes west longitude, then runs eastward to the 300-foot

isobath located at approximately 25 degrees 39 minutes north latitude,

80 degrees 4 minutes west longitude;

(b) Then runs southward and connects in succession the points at

the following coordinates:

(i) 25 degrees 34 minutes north latitude, 80 degrees 4 minutes west

longitude,

(ii) 25 degrees 28 minutes north latitude, 80 degrees 5 minutes

west longitude, and

(iii) 25 degrees 21 minutes north latitude, 80 degrees 7 minutes

west longitude;

(iv) 25 degrees 16 minutes north latitude, 80 degrees 8 minutes

west longitude;

(c) Then runs southwesterly approximating the 300-foot isobath and

connects in succession the points at the following coordinates:

west

longitude,

(ii) 25 degrees 28 minutes north latitude, 80 degrees 5 minutes

west longitude, and

(iii) 25 degrees 21 minutes north latitude, 80 degrees 7 minutes

west longitude;

(iv) 25 degrees 16 minutes north latitude, 80 degrees 8 minutes

west longitude;

(c) Then runs southwesterly approximating the 300-foot isobath and

connects in succession the points at the following coordinates:

(i) 25 degrees 7 minutes north latitude, 80 degrees 13 minutes west

longitude,

(ii) 24 degrees 57 minutes north latitude, 80 degrees 21 minutes

west longitude,

(iii) 24 degrees 39 minutes north latitude, 80 degrees 52 minutes

west longitude,

(iv) 24 degrees 30 minutes north latitude, 81 degrees 23 minutes

west longitude,

(v) 24 degrees 25 minutes north latitude, 81 degrees 50 minutes

west longitude,

(vi) 24 degrees 22 minutes north latitude, 82 degrees 48 minutes

west longitude,

(vii) 24 degrees 37 minutes north latitude, 83 degrees 6 minutes

west longitude,

(viii) 24 degrees 40 minutes north latitude, 83 degrees 6 minutes

west longitude,

(ix) 24 degrees 46 minutes north latitude, 82 degrees 54 minutes

west longitude,

(x) 24 degrees 44 minutes north latitude, 81 degrees 55 minutes

west longitude,

(xi) 24 degrees 51 minutes north latitude, 81 degrees 26 minutes

west longitude, and

(xii) 24 degrees 55 minutes north latitude, 80 degrees 56 minutes

west longitude;

(d) Then follows the boundary of Everglades National Park in a

southerly then northeasterly direction through Florida Bay, Buttonwood

Sound, Tarpon Basin, and Blackwater Sound;

(e) After Division Point, then departs from the boundary of

Everglades National Park and follows the western shoreline of Manatee

Bay, Barnes Sound, and Card Sound;

(f) Then follows the southern boundary of Biscayne National Park to

the southeasternmost point of Biscayne National Park; and

then northeasterly direction through Florida Bay, Buttonwood

Sound, Tarpon Basin, and Blackwater Sound;

(e) After Division Point, then departs from the boundary of

Everglades National Park and follows the western shoreline of Manatee

Bay, Barnes Sound, and Card Sound;

(f) Then follows the southern boundary of Biscayne National Park to

the southeasternmost point of Biscayne National Park; and

(g) Then follows the eastern boundary of Biscayne National Park to

the beginning point specified in paragraph (a).

IV. Summary of Proposed Regulations

Two sets of existing regulations will be eliminated and replaced by

the proposed rule. Specifically, parts 929 and 937 to title 15, Code of

Federal Regulations, implementing the Key Largo and Looe Key

sanctuaries, respectively, will be removed and replaced by the proposed

revision to part 929. Pursuant to section 5 of the Florida Keys

National Marine Sanctuary and Protection Act, the existing Key Largo

and Looe Key National Marine Sanctuaries will be incorporated into the

Florida Keys National Marine Sanctuary.

The proposed regulations set forth the boundary of the Sanctuary;

prohibit a range of activities generally and within specific Sanctuary

zones; establish procedures for applying for National Marine Sanctuary

permits to conduct otherwise prohibited activities, establish

procedures for applying for Special Use permits; establish

certification procedures for existing leases, licenses, permits,

approvals, other authorizations, or rights authorizing the conduct of a

prohibited activity; establish notification procedures for applications

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

conduct a prohibited activity; set forth the maximum per-day penalties

for violating Sanctuary regulations; and establish procedures for

administrative appeals

s, licenses, permits,

approvals, other authorizations, or rights authorizing the conduct of a

prohibited activity; establish notification procedures for applications

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

conduct a prohibited activity; set forth the maximum per-day penalties

for violating Sanctuary regulations; and establish procedures for

administrative appeals.

Section 929.1 sets forth as the purpose of the regulations to

implement the designation and comprehensive management plan for the

Florida Keys National Marine 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 929.2 and appendix I following Sec. 929.16 describe the

boundary of the Sanctuary as established by Section 5 of the Florida

Keys National Marine Sanctuary and Protection Act.

Section 929.3 defines various terms used in the regulations. Other

terms appearing in the regulations are defined at 15 CFR 922.2 and/or

in the NMSA.

Section 929.4 allows all activities except those prohibited by

Sec. 929.5 or by Sec. 929.6 to be conducted subject to all applicable

access and use restrictions imposed within Sanctuary zones pursuant to

Sec. 929.6, subject to all prohibitions, restrictions and conditions

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

competent jurisdiction, subject to any emergency regulations

promulgated pursuant to Sec. 929.7, and subject to the liability

established by Section 312 of the NMSA. This section is intended to

assure that activities other than those prohibited or otherwise

restricted or conditioned pursuant to this part, or pursuant to any

other Federal, State, or local authority of competent jurisdiction, are

allowed within the Sanctuary

to any emergency regulations

promulgated pursuant to Sec. 929.7, and subject to the liability

established by Section 312 of the NMSA. This section is intended to

assure that activities other than those prohibited or otherwise

restricted or conditioned pursuant to this part, or pursuant to any

other Federal, State, or local authority of competent jurisdiction, are

allowed within the Sanctuary. Accordingly, such provision for allowed

activities is not intended to preempt other, more protective,

regulatory provisions imposed by any other Federal, State or local

authority of competent jurisdiction.

Section 929.5 prohibits a variety of activities and thus makes it

unlawful for any person to conduct them or cause them to be conducted.

However, any of the prohibited activities except for: (1) The

exploration for, leasing, development or production of minerals or

hydrocarbons within the Sanctuary, or (2) the disposal of dredged

material or primary (or untreated) sewage within the Sanctuary (except

by a certification, pursuant to Sec. 929.14, of valid authorizations in

existence on the effective date of Sanctuary designation) could be

conducted lawfully if one of the following three (3) situations

applies:

(1) The activity is necessary to respond to an emergency

threatening life or the environment.

(2) The activity is specifically authorized by, and conducted in

accordance with the scope, purpose, terms and conditions of: a National

Marine Sanctuary permit issued under Sec. 929.10; or a National Marine

Sanctuary Historical Resources permit issued under Sec. 929.11.

ree (3) situations

applies:

(1) The activity is necessary to respond to an emergency

threatening life or the environment.

(2) The activity is specifically authorized by, and conducted in

accordance with the scope, purpose, terms and conditions of: a National

Marine Sanctuary permit issued under Sec. 929.10; or a National Marine

Sanctuary Historical Resources permit issued under Sec. 929.11.

(3) The activity is specifically authorized by a valid lease,

permit, license, approval or other authorization issued by any Federal,

State or local authority of competent jurisdiction in existence on (or

conducted pursuant to any valid right of subsistent use or access in

existence on) the effective date of the Sanctuary designation, provided

that the Director of the Office of Ocean and Coastal Resource

Management (hereinafter the Director) was notified of the existence of

such authorization or right and the holder requests certification by

the Director or designee pursuant to Sec. 929.14, the holder complies

with the requirements of Sec. 929.14, and the holder complies with any

terms and conditions on the exercise of such authorization the Director

or designee imposes as a condition of certification to achieve the

purposes for which the Sanctuary was designated.

(4) The activity is specifically authorized by a valid lease,

permit, license or approval or other authorization issued after the

effective date of the Sanctuary designation by any Federal, State or

local authority of competent jurisdiction, provided that the Director

or designee was notified of the application in accordance with the

requirements of Sec. 929.15, the applicant complies with the

requirements of Sec. 919.15, the Director or designee notifies the

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

issuance of the authorization, and the applicant complies with any

terms and conditions the Director or designee deems reasonably

necessary to protect Sanctuary resources and qualities

rdance with the

requirements of Sec. 929.15, the applicant complies with the

requirements of Sec. 919.15, the Director or designee notifies the

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

issuance of the authorization, and the applicant complies with any

terms and conditions the Director or designee deems reasonably

necessary to protect Sanctuary resources and qualities.

The first activity prohibited is exploring for, developing, or

producing minerals or hydrocarbons within the Sanctuary. This

prohibition is based on best available scientific information which

establishes that 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 high water quality are especially

vulnerable to oil and gas activities in the area. A prohibition on oil

and gas activities within the Sanctuary boundary would help protect the

Sanctuary's resources and qualities. A prohibition on mineral

activities within the Sanctuary is necessary to protect Sanctuary

resources and qualities, consistent with the prohibition on drilling

into, dredging or otherwise altering the seabed discussed below.

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

possession of coral or live rock. 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

ecosystem.

The third activity prohibited is the alteration of, or construction

on the seabed. This prohibition includes the use of propeller wash

deflectors

e 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

ecosystem.

The third activity prohibited is the alteration of, or construction

on the seabed. This prohibition includes the use of propeller wash

deflectors. The intent of this prohibition is to protect the resources

of the Sanctuary, such as seagrasses, from the harmful effects of

activities such as, but not limited to, treasure hunting, drilling into

the seabed, mining, ocean mineral extraction, and dumping of dredge

spoils.

The fourth activity prohibited is the discharging or depositing of

materials or other matter. The intent of this prohibition is to protect

the Sanctuary resources and qualities against the harmful effects of

land based and vessel source pollution, to reduce and prevent

contamination by marine debris and related impacts associated with

pollution of the marine environment of the Sanctuary.

The fifth activity prohibited is the operation of: (1) A tank

vessel or a vessel greater than 50 meters in registered length in an

area to be avoided (ATBA); or (2) any vessel in a manner that is either

dangerous to people or harms Sanctuary resources. The boundary

coordinates for the ATBAs are listed in Appendix VII to part 929. The

prohibition is designed to prevent vessel groundings on the coral reef,

and thus to 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 and tank vessel. This

prohibition further is intended to prevent injury to Sanctuary

resources, prevent injury to humans (e.g., divers and swimmers), and to

reduce shoreline erosion.

The sixth activity prohibited is diving without a red and white

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

waters

Sanctuary resources likely

to result from a grounding of a large vessel and tank vessel. This

prohibition further is intended to prevent injury to Sanctuary

resources, prevent injury to humans (e.g., divers and swimmers), and to

reduce shoreline erosion.

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 is to prevent injury to humans

and thereby facilitate safe, multiple use of the Sanctuary.

The seventh activity prohibited is the release of exotic species.

Exotic species can permanently alter an ecosystem by out competing

indigenous species, preying on indigenous species, etc. 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.

The eighth activity prohibited is the tampering with official signs

or markers or navigational aids. The intent of this

prohibition is to prevent injury to Sanctuary resources, primarily

corals and seagrasses, and to prevent injury to humans.

The ninth activity prohibited is the removing or injuring Sanctuary

historical resources. Submerged historical resources constitute

important, irreplaceable, public resources of the Sanctuary because

they contain important information about human history and culture.

This prohibition is designed to protect these resources so that they

may be researched, and information about their contents and type made

available for the benefit of the public. This prohibition does not

apply to accidental moving, possession, or injury during normal fishing

operations.

The tenth activity prohibited is taking or possessing 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

type made

available for the benefit of the public. This prohibition does not

apply to accidental moving, possession, or injury during normal fishing

operations.

The tenth activity prohibited is taking or possessing 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 discharges. The intent of this prohibition is

to prevent injury to Sanctuary resources or to humans.

The twelfth activity prohibited is interfering with law enforcement

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

of justice.

Section 929.5(b) regulates the taking or landing of marine life

species, in accordance with the Marine Life rule of the Florida

Administrative Code reproduced in Appendix VIII to this part. 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.

Section 929.6 establishes five types of water use zones within the

Sanctuary, the prohibitions applicable to uses within such zones, and

the regulations governing access to, and use of, the resources of such

zones. The five zone types are: Existing Management Areas; Wildlife

Management Areas; Sanctuary Preservation Areas; Replenishment Reserves

and Special Use Areas. The proposed location of these zones is

specified in Appendices II, III, IV, V and VI to this part,

respectively, corresponding to the five zone types stated above

he regulations governing access to, and use of, the resources of such

zones. The five zone types are: Existing Management Areas; Wildlife

Management Areas; Sanctuary Preservation Areas; Replenishment Reserves

and Special Use Areas. The proposed location of these zones is

specified in Appendices II, III, IV, V and VI to this part,

respectively, corresponding to the five zone types stated above. The

intent of the zoning regulations is to protect Sanctuary resources and

biodiversity, and provide for effective management and facilitation of

multiple, compatible uses, consistent with the purposes of the

Sanctuary designation.

Section 929.6(a) provides that the regulations applicable to the

conduct of activities within any of the five types of Sanctuary zones

are in addition to the general prohibitions set forth in paragraphs (a)

and (b) of Sec. 929.5. Activities conducted in those areas of the

Sanctuary that are located in two or more overlapping zones shall be

concurrently subject to the regulations applicable to each such

overlapping zone.

Section 929.6 identifies certain Existing Management Areas which

are listed in Appendix II to part 929. Existing Management Areas are

existing Federal, State or local resource management areas subject to

the continuing management and control of another agency,

notwithstanding the exercise of concurrent authority by the Assistant

Administrator in accordance with this part. To the extent possible,

consistent with the purposes for which the Sanctuary was designated,

the regulations applicable to Existing Management Areas shall be

applied in a manner that is compatible with such existing management

authorities

management and control of another agency,

notwithstanding the exercise of concurrent authority by the Assistant

Administrator in accordance with this part. To the extent possible,

consistent with the purposes for which the Sanctuary was designated,

the regulations applicable to Existing Management Areas shall be

applied in a manner that is compatible with such existing management

authorities. Identification of the Key Largo and Looe Key Existing

Management Areas constitutes recognition of these areas as pre-existing

National Marine Sanctuaries that were subject to the management and

control of the Assistant Administrator prior to Sanctuary designation,

and for which continuing regulation as Existing Management Areas will

serve to maintain, to the extent possible, a level of management and

control of uses in such areas that is at least as protective of

Sanctuary resources and qualities as that provided by their former

status as discrete National Marine Sanctuaries.

Section 929.6(b)(2) further prohibits the operation of personal

watercraft, airboats or water skiing within the Great White Heron or

Key West National Wildlife Existing Management Areas. The intent of

this prohibition is to protect Sanctuary resources and qualities

through coordination with the U.S. Fish and Wildlife Service in a

manner that recognizes and complements the existing management of these

areas as components of the National Wildlife Refuge System.

Section 929.6(c) sets forth the rules governing access to, and use

of, the Wildlife Management Areas described in Appendix III to part

929. Specifically, access and use restrictions may include the

designation of any such zones as an ``idle/no-wake speed'', a ``no

motor'' or a ``no access buffer'' areas

existing management of these

areas as components of the National Wildlife Refuge System.

Section 929.6(c) sets forth the rules governing access to, and use

of, the Wildlife Management Areas described in Appendix III to part

929. Specifically, access and use restrictions may include the

designation of any such zones as an ``idle/no-wake speed'', a ``no

motor'' or a ``no access buffer'' areas. The Director or designee, in

cooperation with other Federal, State, or local resource management

authorities, as appropriate, shall effect such designation by posting

official signs conspicuously, using mounting posts, buoys, or other

means according to location and purpose, at appropriate intervals and

locations. The intent of these rules is to protect Sanctuary wildlife

resources from injury or harmful disturbance within sensitive areas and

habitats of the Sanctuary.

Section 929.6(d) sets forth prohibitions applicable to activities

conducted within Sanctuary Preservation Areas and Replenishment

Reserves. Specific prohibitions include possessing, harvesting or

otherwise injuring any coral, marine invertebrate, fish, bottom

formation, algae, seagrass or other living or dead organism in such

areas; fishing by any means; touching living or dead coral, including

but not limited to standing on a living or dead coral formation;

placing anchors so as to touch living or dead coral or any sessile

organism. Vessels shall use mooring buoys or anchoring areas when such

facilities or areas have been designated and are available.

Section 929.6(d) further provides that the Director or designee may

impose a limited access designation, or temporary area closure, within

any Sanctuary Preservation Area if the Director determines that such

action is reasonably necessary to allow for recovery of the living

resources of such area from the adverse, cumulative effects of

concentrated use

have been designated and are available.

Section 929.6(d) further provides that the Director or designee may

impose a limited access designation, or temporary area closure, within

any Sanctuary Preservation Area if the Director determines that such

action is reasonably necessary to allow for recovery of the living

resources of such area from the adverse, cumulative effects of

concentrated use.

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 iregulation of uses within, the Replenishment

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 929.6(e) establishes procedures and criteria pursuant to

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

Sanctuary as Special Use Areas, and designate such areas as ``recovery

areas'', ``restoration areas'', ``research only areas'' or

``facilitated use areas'', as appropriate, to protect

the Sanctuary resources and qualities and allow for multiple,

compatible uses within the Sanctuary

blishes procedures and criteria pursuant to

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

Sanctuary as Special Use Areas, and designate such areas as ``recovery

areas'', ``restoration areas'', ``research only areas'' or

``facilitated use areas'', as appropriate, to protect

the Sanctuary resources and qualities and allow for multiple,

compatible uses within the Sanctuary. Section 929.6(e) further provides

criteria pursuant to which the Director or designee may issue an

emergency notice modifying the number, location or designation

applicable to Special Use Areas if the Director of designee determines

that such immediate action is reasonably necessary to prevent

significant injury to Sanctuary resources or to initiate restoration or

research activities where, due to emergency or unforseen circumstances,

delay would impair the ability of such activities to succeed.

Section 929.7 authorizes the regulation, including prohibition, on

an immediate, temporary basis of any activity where necessary to

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

Sanctuary resource or quality, or minimize the imminent risk of such

destruction, loss or injury.

Section 929.8 sets forth the maximum statutory civil penalty for

violating the NMSA, the regulations or any permit issued pursuant

thereto--$100,000. Each such violation shall be subject to forfeiture

of property or Sanctuary resources seized in accordance with section

307 of the NMSA. Each day of a continuing violation constitutes a

separate violation

k of such

destruction, loss or injury.

Section 929.8 sets forth the maximum statutory civil penalty for

violating the NMSA, the regulations or any permit issued pursuant

thereto--$100,000. Each such violation shall be subject to forfeiture

of property or Sanctuary resources seized in accordance with section

307 of the NMSA. Each day of a continuing violation constitutes a

separate violation.

Section 929.9 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 these sections is to notify the public of the liability for

violating a Sanctuary regulation, a permit issued pursuant thereto or

the NMSA.

Regulations setting forth the procedures governing administrative

proceedings for assessment of civil penalties, permit sanctions and

denials for enforcement reasons, issuance and use of written warnings,

and release or forfeiture of seized property appear at 15 CFR part 904.

Section 929.10 sets forth the procedures for applying for a

National Marine Sanctuary permit to conduct a prohibited activity and

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

revocation of such permits

s, permit sanctions and

denials for enforcement reasons, issuance and use of written warnings,

and release or forfeiture of seized property appear at 15 CFR part 904.

Section 929.10 sets forth the procedures for applying for a

National Marine Sanctuary permit to conduct a prohibited activity and

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

revocation of such permits. A permit may be issued by the Director or

designee if he or she finds that the activity will have only negligible

short-term adverse effects on Sanctuary resources and qualities and

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;

or assist in managing the Sanctuary. For activities proposed to be

conducted within Replenisment Reserves or Sanctuary Preservation Areas,

the Director or designee shall further find that such activities will

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

established. In deciding whether to issue a permit, the Director or

designee is required to consider such factors as the professional

qualifications and financial ability of the applicant as related to the

proposed activity; the duration of the activity and the duration of its

effects; the appropriateness of the methods and procedures proposed by

the applicant for the conduct of the activity; the extent to which the

conduct of the activity may diminish or enhance Sanctuary resources and

qualities; the indirect, secondary or cumulative effects of the

activity; and the end value of the activity. In addition, the Director

or designee is authorized to consider any other factors she or he deems

appropriate

thods and procedures proposed by

the applicant for the conduct of the activity; the extent to which the

conduct of the activity may diminish or enhance Sanctuary resources and

qualities; the indirect, secondary or cumulative effects of the

activity; and the end value of the activity. In addition, the Director

or designee is authorized to consider any other factors she or he deems

appropriate.

Section 929.11 sets forth the application procedures and issuance

criteria for National Marine Sanctuary Historical Resources permits to

conduct specific research activities involving the exploration for,

recovery of, or transfer of historical Sanctuary resources specified

under Sec. 929.11 and otherwise prohibited by the regulations. A permit

may be issued by the Director or designee at his or her discretion in

accordance with the requirements of Sec. 929.11 and 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). Recovery of historical resources will only

be permitted when developed in conjunction with research to preserve

the historic information for public use. Intrusive research and/or

recovery 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.

Section 929.12 sets forth criteria governing the issuance of

Special Use permits to conduct concession-type, commercial activities

within the Sanctuary. In accordance with the provisions of Section 310

of the NMSA, the Director or designee may require a Special Use permit

for any such activity if he or she determines such authorization is

necessary to establish conditions of access to and use of any Sanctuary

resource, or to promote public use and understanding of any Sanctuary

resource

ssion-type, commercial activities

within the Sanctuary. In accordance with the provisions of Section 310

of the NMSA, the Director or designee may require a Special Use permit

for any such activity if he or she determines such authorization is

necessary to establish conditions of access to and use of any Sanctuary

resource, or to promote public use and understanding of any Sanctuary

resource. No special use permit may be issued unless the activity is

compatible with the purposes for which the Sanctuary was designated and

can be conducted in a manner that does not destroy, cause the loss of,

or injure any Sanctuary resource.

Applicants for Special Use permits are required to follow the same

procedures specified for National Marine Sanctuary permits in

Sec. 929.10 (d) through (g).

All National Marine Sanctuary, National Marine Sanctuary Historical

Resources, or Special Use permits are subject to the general permit

conditions specified in Sec. 929.10(h). With respect to any such

permit, the Director or designee, at his or her discretion, also may

impose special permit conditions in accordance with Sec. 929.10(i).

Section 929.13 provides that any person conducting research in the

Sanctuary, including such research not involving prohibited activities,

may voluntarily register with the appropriate Sanctuary field office.

Upon registration, the Sanctuary office will issue a research flag to

be used while conducting research within the Sanctuary. Copies of

research results, abstracts, and reports may be submitted to the

Sanctuary field office to be retained for Sanctuary management

purposes, public observation, and peer review.

Section 929.14 sets forth procedures for requesting certification

of leases, permits, licenses, approvals, other authorizations or rights

in existence on the date of Sanctuary designation authorizing the

conduct of an otherwise prohibited activity. Notwithstanding the

prohibitions under paragraph (a) of Sec. 929.5 or Sec

for Sanctuary management

purposes, public observation, and peer review.

Section 929.14 sets forth procedures for requesting certification

of leases, permits, licenses, approvals, other authorizations or rights

in existence on the date of Sanctuary designation authorizing the

conduct of an otherwise prohibited activity. Notwithstanding the

prohibitions under paragraph (a) of Sec. 929.5 or Sec. 929.6, a person

may conduct any activity specifically authorized by a valid lease,

permit, license, approval or other authorization in existence on the

effective date of Sanctuary designation and issued by any Federal,

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

right of subsistence use or access in existence on the effective date

of Sanctuary designation, provided that the holder of such

authorization or right complies with the requirements of Sec. 929.14

(e.g., notifies the Director or designee of the

existence of, requests certification of, and provides

requested information regarding such authorization or right) and

complies with any terms and conditions on the exercise of such

authorization or right imposed by the Director or designee as she or he

deems reasonably necessary to achieve the purposes for which the

Sanctuary was designated.

Section 929.14 allows the holder 90 days from the effective date of

the proposed Sanctuary regulations in part 929 to request

certification. The holder is allowed to conduct the activity without

being in violation of paragraph (a) of Sec. 929.5 or 929.6 pending

final agency action on his or her certification request, provided the

holder has complied with all requirements of Sec. 929.14.

Section 929.14 also allows the Director or designee to request

additional information from the holder and to seek the views of other

persons

ion. The holder is allowed to conduct the activity without

being in violation of paragraph (a) of Sec. 929.5 or 929.6 pending

final agency action on his or her certification request, provided the

holder has complied with all requirements of Sec. 929.14.

Section 929.14 also allows the Director or designee to request

additional information from the holder and to seek the views of other

persons.

As a condition of certification, the Director or designee will

impose such terms and conditions on the exercise of such lease, permit,

license, approval or other authorization or right as she or he deems

reasonably necessary to achieve the purposes for which the Sanctuary

was designated. This is consistent with the Secretary's authority under

Section 304(c)(2) of the NMSA. (Section 929.14 has no application to

mineral or hydrocarbon activities as there is no existing lease,

permit, license, approval, other authorization or right for any of

these activities within the Sanctuary).

The holder may appeal any action conditioning, amending, suspending

or revoking any certification in accordance with the procedures set

forth in Sec. 929.16.

Any amendment, renewal or extension not in existence as of the date

of Sanctuary designation of a lease, permit, license, approval, other

authorization or right is subject to the provisions of Sec. 929.15.

Section 929.15 provides, consistent with paragraph (f) of

Sec. 929.5, that notwithstanding the prohibitions under paragraph (a)

of Sec. 929.5 or Sec

e procedures set

forth in Sec. 929.16.

Any amendment, renewal or extension not in existence as of the date

of Sanctuary designation of a lease, permit, license, approval, other

authorization or right is subject to the provisions of Sec. 929.15.

Section 929.15 provides, consistent with paragraph (f) of

Sec. 929.5, that notwithstanding the prohibitions under paragraph (a)

of Sec. 929.5 or Sec. 929.6, a person may conduct any activity

specifically authorized by any valid lease, permit, license, approval,

or other authorization issued after the effective date of Sanctuary

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

jurisdiction, provided that the applicant notifies the Director or

designee of the application for such authorization within 15 days of

the date of filing of the application or of the efffective date of the

proposed Sanctuary regulations, whichever is later, that the applicant

is in compliance with the other provisions in Sec. 929.15, that the

Director or designee notifies the applicant and authorizing agency that

he or she does not object to issuance of the authorization, and that

the applicant complies with any terms and conditions the Director or

designee deems reasonably necessary to protect Sanctuary resources and

qualities.

Section 929.15 allows the Director or designee to request

additional information from the applicant and to seek the views of

other persons.

An application or an amendment to, an extension of, or a renewal of

an authorization is also subject to the provisions of Sec. 929.15.

The applicant may appeal any objection by, or terms or conditions

imposed by, the Director or designee to the Assistant Administrator or

designee in accordance with the procedures set forth in Sec. 929.16

the applicant and to seek the views of

other persons.

An application or an amendment to, an extension of, or a renewal of

an authorization is also subject to the provisions of Sec. 929.15.

The applicant may appeal any objection by, or terms or conditions

imposed by, the Director or designee to the Assistant Administrator or

designee in accordance with the procedures set forth in Sec. 929.16.

Section 929.16 sets forth the procedures for appealing to the

Assistant Administrator or designee actions of the Director or designee

with respect to: (1) the granting, denial, conditioning, amendment,

suspension or revocation of a National Marine Sanctuary permit under

Sec. 929.10, a National Marine Sanctuary Historical Resources permit

under Sec. 929.11, or a Special Use permit under Sec. 929.12 or Section

310 of the NMSA; (2) the conditioning, amendment, suspension, or

revocation of a certification under Sec. 929.14; or (3) the objection

to issuance or the imposition of terms and conditions under

Sec. 929.15.

Prior to conditioning the exercise of existing leases, permits,

licenses, approvals, other authorizations or rights or conditioning or

objecting to proposed authorizations NOAA intends to consult with

relevant issuing agencies as well as owners, holders or applicants.

V. Miscellaneous Rulemaking Requirements

Marine Protection, Research, and Sanctuaries Act

Section 304 of the MPRSA requires the Secretary to submit to the

Committee on Merchant Marine and Fisheries of the House of

Representatives and the Committee on Commerce, Science, and

Transportation of the Senate, on the same day as this notice is

published, the proposed terms of the designation, the proposed

regulations, a draft environmental impact statement, and a draft

management plan detailing the proposed goals and objectives, management

responsibilities, research activities, interpretive and educational

programs, and enforcement and surveillance activities, for the area

sportation of the Senate, on the same day as this notice is

published, the proposed terms of the designation, the proposed

regulations, a draft environmental impact statement, and a draft

management plan detailing the proposed goals and objectives, management

responsibilities, research activities, interpretive and educational

programs, and enforcement and surveillance activities, for the area. In

accordance with Section 304, the required documents are being submitted

to the specified Congressional Committees.

Executive Order 12866

Under Executive Order 12866, if the proposed regulations are

``significant'' as defined in section 3(f) (1), (2), (3) or (4) of the

Order, an assessment of the potential costs and benefits of the

regulatory action must be prepared and submitted to the Office of

Information and Regulatory Affairs (OIRA) of OMB. The Administration of

NOAA has determined that the proposed regulations are significant. The

required assessment has been prepared and submitted to OIRA.

Regulatory Flexibility Act

The regulations proposed in this notice would allow all activities

to be conducted in the Sanctuary other than those activities that are

specifically prohibited. The procedures proposed in these regulations

for applying for National Marine Sanctuary permits to conduct otherwise

prohibited activities, for requesting certifications for pre-existing

leases, licenses, permits, approvals, other authorizations or rights

authorizing the conduct of a prohibited activity, and for notifying

NOAA of applications for leases, licenses, permits, approvals, or other

authorizations to conduct a prohibited activity would all act to lessen

any adverse economic effect on small entities

rohibited activities, for requesting certifications for pre-existing

leases, licenses, permits, approvals, other authorizations or rights

authorizing the conduct of a prohibited activity, and for notifying

NOAA of applications for leases, licenses, permits, approvals, or other

authorizations to conduct a prohibited activity would all act to lessen

any adverse economic effect on small entities. The proposed

regulations, in total, if adopted in final form as proposed, are not

expected to have a significant economic impact on a substantial number

of small entities, and the General Counsel of the Department of

Commerce has so certified to the Chief Counsel for Advocacy of the

Small Business Administration. As a result, an initial Regulatory

Flexibility Analysis was not prepared.

Paperwork Reduction Act

This proposed rule contains a collection of information requirement

subject to the requirements of the Paperwork Reduction Act (Pub. L. 96-

511). The collection of information requirement applies to persons

seeking permits to conduct otherwise prohibited activities and is

necessary to determine whether the proposed activities are consistent

with the management goals for the Sanctuary. The collection of

information requirement contained in the proposed rule has been

submitted to the Office of Management and Budget for review under

section 3504(h) of the Paperwork Reduction Act. The

public reporting burden per respondent for the collection of

information contained in this rule is estimated to average 1.65 hours

annually. This estimate includes the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information

under

section 3504(h) of the Paperwork Reduction Act. The

public reporting burden per respondent for the collection of

information contained in this rule is estimated to average 1.65 hours

annually. This estimate includes the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information.

Comments from the public on the collection of information requirement

are specifically invited and should be addressed to the Office of

Information and Regulatory Affairs, Office of Management and Budget,

Washington, DC 20503 (Attn: Desk Officer for NOAA); and to Richard

Roberts, Room 724, 6010 Executive Boulevard, Rockville, MD 20852.

Executive Order 12612

A Federalism Assessment (FA) was prepared for the proposed

designation document, draft management plan, and proposed implementing

regulations. The FA concluded that all would be fully consistent with

the principles, criteria, and requirements set forth in sections 2

through 5 of Executive Order 12612, Federalism Considerations in Policy

Formulation and Implementation (52 FR 41685). Copies of the FA are

available upon request to the Office of Ocean and Coastal Resource

Management at the address listed in the address section above.

National Environmental Policy Act

In accordance with Section 304(a)(2) of the Act (16 U.S.C.

1434(a)(2)), and the provisions of the National Environmental Policy

Act of 1969 (42 U.S.C. 4321-4370(a)), a Draft Environmental Impact

Statement (DEIS) has been prepared for the designation and the proposed

regulations. As required by Section 304(a)(2), the DEIS includes the

resource assessment report required by section 303(b)(3) of the Act (16

U.S.C. 1433(b)(3)), maps depicting the boundaries of the designated

area, and the existing and potential uses and resources of the area

C. 4321-4370(a)), a Draft Environmental Impact

Statement (DEIS) has been prepared for the designation and the proposed

regulations. As required by Section 304(a)(2), the DEIS includes the

resource assessment report required by section 303(b)(3) of the Act (16

U.S.C. 1433(b)(3)), maps depicting the boundaries of the designated

area, and the existing and potential uses and resources of the area.

Copies of the DEIS are available upon request to the Office of Ocean

and Coastal Resource Management at the address listed in the address

section above.

Executive Order 12630

This proposed rule, if issued in final form as proposed, would not

have takings implications within the meaning of Executive Order 12630

because it would not appear to have an effect on private property

sufficiently severe as effectively to deny economically viable use of

any distinct legally potential property interest to its owner or to

have the effect of, or result in, a permanent or temporary physical

occupation, invasion, or deprivation. While the prohibition on the

exploration for, development, production of minerals and hydrocarbons

from the Sanctuary might have a takings implication if it abrogated an

existing lease for Outer Continental Shelf (OCS) tracts within the

Sanctuary or an approval of an exploration or development and

production plan, no OCS leases have been sold for tracts within the

Sanctuary and no exploration or production and development plans have

been filed or approved.

List of Subjects in 15 CFR Parts 929 and 937

Administrative practice and procedure, Coastal zone, Marine

resources, Penalties, Recreation and recreation areas, Reporting and

recordkeeping requirements, Research.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary

Program)

Dated: March 13, 1995.

Frank W. Maloney,

Deputy Assistant Administrator for Ocean Services and Coastal Zone

Management.

Accordingly, for the reasons set forth above, 15 CFR Chapter IX is

proposed to be amended as follows:

alties, Recreation and recreation areas, Reporting and

recordkeeping requirements, Research.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary

Program)

Dated: March 13, 1995.

Frank W. Maloney,

Deputy Assistant Administrator for Ocean Services and Coastal Zone

Management.

Accordingly, for the reasons set forth above, 15 CFR Chapter IX is

proposed to be amended as follows:

SUBCHAPTER B--OCEAN AND COASTAL RESOURCE MANAGEMENT

1. Part 929 is revised to read as follows:

PART 929---FLORIDA KEYS NATIONAL MARINE SANCTUARY

Sec.

929.1 Purpose.

929.2 Boundary.

929.3 Definitions.

929.4 Allowed activities.

929.5 Prohibited activities; Sanctuary wide.

929.6 Additional activity regulations by Sanctuary zone.

929.7 Emergency regulations.

929.8 Penalties.

929.9 Response costs and damages.

929.10 National Marine Sanctuary Permits; application procedures

and issuance criteria.

929.11 National Marine Sanctuary Historical Resources Permits;

exploration, research/recovery, research/recovery/transfer;

application procedures and issuance criteria.

929.12 Special Use Permits.

929.13 Sanctuary registry; research notice.

929.14 Certification of pre-existing leases, licenses, permits,

approvals, other authorizations, or rights to conduct a prohibited

activity.

929.15 Notification and review of applications for leases,

licenses, permits, approvals, or other authorizations to conduct a

prohibited activity.

929.16 Appeals of administrative action.

Appendix I to Part 929--Florida Keys National Marine Sanctuary

boundary coordinates

Appendix II to Part 929--Existing Management Areas

Appendix III to Part 929--Wildlife Management Areas

Appendix IV to Part 929--Replenishment Reserves

Appendix V to Part 929--Sanctuary Preservation Areas

Appendix VI to Part 929--Special Use Areas

Appendix VII to Part 929--Coordinates for the Area to be Avoided

Appendix VIII to Part 929--Marine Life Rule

Authority: 16 U.S.C. 1431 et seq.; Pub. L. 101-605, 104 Stat.

3090-3093.

Sec. 929.1 Purpose.

Appendix III to Part 929--Wildlife Management Areas

Appendix IV to Part 929--Replenishment Reserves

Appendix V to Part 929--Sanctuary Preservation Areas

Appendix VI to Part 929--Special Use Areas

Appendix VII to Part 929--Coordinates for the Area to be Avoided

Appendix VIII to Part 929--Marine Life Rule

Authority: 16 U.S.C. 1431 et seq.; Pub. L. 101-605, 104 Stat.

3090-3093.

Sec. 929.1 Purpose.

The purpose of the regulations in this part is to implement the

comprehensive management plan for the Florida Keys National Marine

Sanctuary by regulating activities affecting the resources of the

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

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

conservation, ecological, recreational, research, educational,

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

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

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

contribute to the maintenance of natural assemblages of living

resources for future generations, to provide places for species

dependent on such living resources to survive and propagate, to

facilitate to the extent compatible with the primary objective of

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

Sanctuary not prohibited pursuant to other authorities, to reduce

conflicts between such compatible uses, and to achieve the other

policies and purposes of the Florida Keys National Marine Sanctuary and

Protection Act and the National Marine Sanctuaries Act.

Sec. 929.2 Boundary.

The Sanctuary consists of all submerged lands and waters from the

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

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

Park. Appendix I to this part sets forth the precise Sanctuary boundary

established by the Florida Keys National Marine Sanctuary and

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

Sec. 929.3 Definitions.

consists of all submerged lands and waters from the

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

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

Park. Appendix I to this part sets forth the precise Sanctuary boundary

established by the Florida Keys National Marine Sanctuary and

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

Sec. 929.3 Definitions.

(a) The following definitions apply to this part:

Acts means the Florida Keys National Marine Sanctuary and

Protection Act, as amended, (FKNMSPA) (Pub. L. 101-605, 104 Stat. 3090-

3093), and the National Marine Sanctuaries Act (NMSA),

also known as Title III of the Marine Protection, Research, and

Sanctuaries Act, as amended, (MPRSA) (16 U.S.C. 1431 et seq.).

Adverse effect means any factor, force, or action that would

independently or cumulatively damage, diminish, degrade, impair,

destroy, or otherwise harm any Sanctuary resource, as defined in

section 302(8) of the NMSA (16 U.S.C. 1432(8)) and in this Sec. 929.3,

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

designated.

Airboat means a vessel operated by means of a motor driven

propeller that pushes air for momentum.

Area to be avoided means the area decribed in which vessel

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

(see Sec. 929.5(a)(1)). Appendix VII to this part sets forth the

geographic coordinates of the area to be avoided, including any

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

FKNMSPA.

Assistant Administrator means the Assistant Administrator for Ocean

Services and Coastal Zone Management, National Ocean Service.

Director means the Director of the Office of Ocean and Coastal

Resource Management, National Ocean Service

sets forth the

geographic coordinates of the area to be avoided, including any

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

FKNMSPA.

Assistant Administrator means the Assistant Administrator for Ocean

Services and Coastal Zone Management, National Ocean Service.

Director means the Director of the Office of Ocean and Coastal

Resource Management, National Ocean Service.

Existing Management Area means a portion of the Sanctuary that is

within an existing resource management area established by NOAA or by

another Federal, State, or local authority of competent jurisdiction

within the Sanctuary and that is identified in Appendix II to this

Part.

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

amphibian, reptile or mammal whose natural zoogeographic range would

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

of Mexico without passive or active introduction to such area through

anthropogenic means.

Federal Project means any water resources development project

conducted by the U.S. Army Corps of Engineers or operating under a

permit or other authorization issued by the Corps of Engineers and

authorized by Federal law.

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

marine animal and plant life other than marine mammals, and birds.

Fishing means:

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

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

(iii) Any other activity which can reasonably be expected to result

in the catching, taking, or harvesting of fish; or

(iv) Any operations at sea in support of, or in preparation for,

any activity described in paragraphs (1)(i) through (iii) of this

definition.

ds.

Fishing means:

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

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

(iii) Any other activity which can reasonably be expected to result

in the catching, taking, or harvesting of fish; or

(iv) Any operations at sea in support of, or in preparation for,

any activity described in paragraphs (1)(i) through (iii) of this

definition.

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

which is conducted by a scientific research vessel.

Historical resource means any resource possessing historical,

cultural, archaeological or paleontological significance, including

sites, contextual information, structures, districts, and objects

significantly associated with or representative of earlier people,

cultures, and human activities and events. Historical resources include

``submerged cultural resources'', and also include ``historical

properties'', as defined in the National Historic Preservation Act, as

amended, and implementing regulations, as amended.

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

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

Injure means to change adversely, either in the long or short term,

a chemical, biological, or physical attribute of, or the viability of.

To ``injure'' therefore includes, but is not limited to, to cause the

loss of and to destroy.

Live rock means any living marine organism or an assemblage thereof

attached to a hard substrate (including dead coral or rock)

nots and does not produce a wake.

Injure means to change adversely, either in the long or short term,

a chemical, biological, or physical attribute of, or the viability of.

To ``injure'' therefore includes, but is not limited to, to cause the

loss of and to destroy.

Live rock means any living marine organism or an assemblage thereof

attached to a hard substrate (including dead coral or rock). For

example, such living marine organisms associated with hard bottoms,

banks, reefs, and live rock may include, but are not limited to: sea

anemones (Phylum CNIDARIA: Class Anthozoa: Order Actinaria); sponges

(Phylum PORIFERA); tube worms (Phylum ANNELIDA), including fan worms,

feather duster worms, and christmas tree worms; bryozoans (Phylum

BRYOZOA); sea squirts (Phylum CHORDATA); and marine algae, including

Mermaid's fan and cups (Udotea spp.), corraline algae, green feather,

green grape algae (Caulerpa spp.) and watercress (Halimeda spp.).

Individual mollusk shells (scallops, clams, oysters, etc.) are not

intended to be included in the definition as hard substrate.

Marine Life Species means any species of fish, invertebrate, or

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

Administrative Code, set forth in Appendix VIII to this part.

Mineral means clay, stone, sand, gravel, metalliferous ore,

nonmetalliferous ore, or any other non-living solid material or other

non-living solid matter of commercial value.

Person means any private individual, partnership, corporation, or

other entity; or any officer, employee, agent, department, agency, or

instrumentality of the Federal Government or of any State, regional, or

local unit of government, or of any foreign government

talliferous ore,

nonmetalliferous ore, or any other non-living solid material or other

non-living solid matter of commercial value.

Person means any private individual, partnership, corporation, or

other entity; or any officer, employee, agent, department, agency, or

instrumentality of the Federal Government or of any State, regional, or

local unit of government, or of any foreign government.

Personal watercraft means any jet and air-powered watercraft

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

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

inside the vessel, and that uses a two-cycle inboard engine to power a

water jet pump for propulsion, instead of a propeller as in a

conventional boat.

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

or otherwise alter the seabed of the Sanctuary, excluding disturbance

to bottom sediments resulting from normal vessel propulsion. Prop-

dredging includes, but is not limited to, the use of propulsion wash

deflectors or similar means of dredging or otherwise altering the

seabed of the Sanctuary.

Prop-scarring means the injury to seagrasses or other immobile

organisms attached to the seabed of the Sanctuary caused by operation

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

gear, or any part thereof, to cause such injury, excluding minor

disturbances to bottom sediments or seagrass blades resulting from

normal vessel propulsion

ltering the

seabed of the Sanctuary.

Prop-scarring means the injury to seagrasses or other immobile

organisms attached to the seabed of the Sanctuary caused by operation

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

gear, or any part thereof, to cause such injury, excluding minor

disturbances to bottom sediments or seagrass blades resulting from

normal vessel propulsion.

Replenishment Reserve means a Sanctuary zone encompassing an area

of contiguous, diverse habitats, within which uses are subject to

conditions, restrictions and prohibitions, including public 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.

Sanctuary means the Florida Keys National Marine Sanctuary.

Sanctuary Preservation Area means a Sanctuary zone encompassing a

discrete, biologically important area, within which uses are subject to

conditions, restrictions and prohibitions, including public 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.

Sanctuary quality means any of those ambient conditions, physical-

chemical characteristics and natural processes, the

maintenance of which is essential to the ecological health of the

Sanctuary, including, but not limited to, water quality, sediment

quality and air quality

are critical for

sustaining important marine species or habitats, or to provide

opportunities for scientific research.

Sanctuary quality means any of those ambient conditions, physical-

chemical characteristics and natural processes, the

maintenance of which is essential to the ecological health of the

Sanctuary, including, but not limited to, water quality, sediment

quality and air quality.

Sanctuary resource means any living or non-living resource that

contributes to the conservation, recreational, ecological, historical,

research, educational, or aesthetic value of the Sanctuary, including,

but not limited to, the seabed and substratum, bottom formations, hard

and soft corals and coralline structures, algae, phytoplankton,

seagrasses, mangroves and other marine plants, zooplankton, marine

invertebrates, fish, marine amphibians and reptiles, marine mammals,

sea birds, and other marine wildlife and their habitats, and historical

resources.

Sanctuary wildlife means any species of fauna, including avifauna,

that occupy or utilize the submerged resources of the Sanctuary as

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

habitat during any portion of their life cycles.

Seagrass means any species of marine angiosperms (flowering plants)

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

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

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

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

Taking means:

(1)(i) For any marine mammal, sea turtle or seabird listed as

either endangered or threatened pursuant to the Endangered Species Act,

to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,

collect or injure, or to attempt to engage in any such conduct;

(ii) For any other marine mammal, sea turtle or seabird, to harass,

hunt, capture, kill, collect or injure, or to attempt to engage in any

such conduct.

mammal, sea turtle or seabird listed as

either endangered or threatened pursuant to the Endangered Species Act,

to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,

collect or injure, or to attempt to engage in any such conduct;

(ii) For any other marine mammal, sea turtle or seabird, to harass,

hunt, capture, kill, collect or injure, or to attempt to engage in any

such conduct.

(2) For the purpose of both paragraphs (1)(i) and (ii) of this

definition, the term includes, but is not limited to, collecting any

dead or injured marine mammal, sea turtle or seabird, or any part

thereof, no matter how temporarily; tagging any sea turtle, marine

mammal or seabird; operating a vessel or aircraft or doing any other

act that results in the disturbing or molesting of any marine mammal,

sea turtle or seabird.

Tank vessel means any vessel that is constructed or adapted to

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

cargo residue, and that--

(1) Is a United States flag vessel;

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

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

to the jurisdiction of the United States (46 U.S.C. 2101).

Traditional fishing means those commercial or recreational fishing

activities that were customarily conducted within the Sanctuary prior

to its designation.

Tropical fish means any species, or part thereof, included in

section (2) of Rule 46-42.001, Florida Administrative Code, (as set

forth in Appendix VIII to this part).

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

limited to, motorized and non-motorized watercraft, personal

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

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

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

``watercraft,'' and ``boat'' are deemed to have the same meaning

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

limited to, motorized and non-motorized watercraft, personal

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

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

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

``watercraft,'' and ``boat'' are deemed to have the same meaning.

Wildlife Management Area means a Sanctuary zone established for the

management, protection, and preservation of Sanctuary wildlife

resources, including such a zone established for the protection and

preservation of endangered or threatened species or their habitats,

within which access is restricted or otherwise regulated to minimize

disturbances to Sanctuary wildlife; to ensure protection and

preservation consistent with the Sanctuary designation and other

applicable law governing the protection and preservation of wildlife

resources in the Sanctuary.

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

defined at 15 CFR 922.2, and/or in the Marine Protection, Research, and

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

U.S.C. 1431 et seq.

Sec. 929.4 Allowed activities.

(a) All activities, except those prohibited pursuant to Sec. 929.5

or Sec. 929.6, may be conducted subject to all applicable access and

use restrictions imposed within sanctuary zones pursuant to Sec. 929.6,

subject to the provisions of Sec. 929.12, subject to all prohibitions,

restrictions, and conditions validly imposed by any other Federal,

State or local authority of competent jurisdiction, subject to any

emergency regulations promulgated pursuant to Sec. 929.7, and subject

to the liability established by Section 312 of the NMSA (see

Sec. 929.9).

ithin sanctuary zones pursuant to Sec. 929.6,

subject to the provisions of Sec. 929.12, subject to all prohibitions,

restrictions, and conditions validly imposed by any other Federal,

State or local authority of competent jurisdiction, subject to any

emergency regulations promulgated pursuant to Sec. 929.7, and subject

to the liability established by Section 312 of the NMSA (see

Sec. 929.9).

(b) Fishing activities may be conducted subject to all applicable

regulations imposed by Federal and State fishery management authorities

of competent jurisdiction within the Sanctuary, provided that the

Assistant Administrator may regulate fishing activities within the

Sanctuary, pursuant to the procedure set forth in Section 304(a)(5) of

the NMSA, to the extent such Sanctuary fishing regulations are

reasonably necessary to fulfill the purposes and policies of the NMSA

and the goals and objectives of the Sanctuary designation.

Sec. 929.5 Prohibited activities; Sanctuary-wide.

(a) Except as specified in paragraph (c) of this section, the

following activities are prohibited and thus are unlawful for any

person to conduct or cause to be conducted:

(1) Mineral and hydrocarbon exploration, development and

production. Exploring for, developing, or producing minerals or

hydrocarbons within the Sanctuary.

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

(i) Moving, removing, taking, harvesting, damaging, disturbing,

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

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

attempting any of these activities, except as permitted under 50 CFR

Part 638.

ng minerals or

hydrocarbons within the Sanctuary.

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

(i) Moving, removing, taking, harvesting, damaging, disturbing,

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

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

attempting any of these activities, except as permitted under 50 CFR

Part 638.

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

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

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

possession or harvest from aquaculture operations in the Exclusive

Economic Zone, issued by the National Marine Fisheries Service pursuant

to applicable regulations under the appropriate Fishery Management

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

jurisdiction within the Sanctuary for live rock cultured on state

submerged lands leased from the State of Florida, pursuant to

applicable state law. See section 370.027, Florida Statutes and

implementing regulations.

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

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

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

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

except as an incidental result of:

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

part (see paragraph (a)(3)(iii) of this section and

Sec. 929.6(d)(1)(iv));

(ii) Traditional fishing activities outside Replenishment Reserves

or Sanctuary Preservation Areas;

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

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

authority of competent jurisdiction;

vessels in a manner not otherwise prohibited by this

part (see paragraph (a)(3)(iii) of this section and

Sec. 929.6(d)(1)(iv));

(ii) Traditional fishing activities outside Replenishment Reserves

or Sanctuary Preservation Areas;

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

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

authority of competent jurisdiction;

(iv) Harbor maintenance in areas necessarily associated with

Federal Projects in existence on the effective date of Sanctuary

designation, including maintenance dredging of entrance channels and

repair, replacement, or rehabilitation of breakwaters or jetties;

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

seawalls, breakwaters, or piers authorized by any valid lease, permit,

license, approval, or other authorization issued by any Federal, State,

or local authority of competent jurisdiction.

(4) Discharging or depositing materials or other matter. (i)

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

any material or other matter, except:

(A) Fish, fish parts, fish chum or bait that is produced, or used,

and discarded while conducting a traditional fishing activity in the

Sanctuary;

(B) Biodegradable effluent incidental to vessel use and generated

by a marine sanitation device approved in accordance with Section 312

of the Federal Water Pollution Control Act, as amended, (FWPCA), 33

U.S.C. 1322 et seq.;

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

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

oily wastes from bilge pumping; or

(D) Cooling water from vessels or engine exhaust.

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

Sanctuary, any material or other matter that subsequently enters the

Sanctuary and injures a Sanctuary resource or quality, except those

listed in paragraphs (a)(4)(i)(A) through (D) of this section.

(iii) Notwithstanding the exceptions contained in paragraphs

bilge pumping; or

(D) Cooling water from vessels or engine exhaust.

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

Sanctuary, any material or other matter that subsequently enters the

Sanctuary and injures a Sanctuary resource or quality, except those

listed in paragraphs (a)(4)(i)(A) through (D) of this section.

(iii) Notwithstanding the exceptions contained in paragraphs

(a)(4)(i)(A) through (D) of this section, discharging or depositing any

material or other matter, except cooling water or engine exhaust into

the waters of any Wildlife Management Area, Replenishment Reserve,

Sanctuary Preservation Area, or Special Use Area.

(5) Operation of vessels. (i) Operating a tank vessel or a vessel

greater than 50 meters in registered length in an area to be avoided.

The prohibition in this subparagraph shall not apply to necessary

operations of public vessels, defined as operations essential for

national defense, law enforcement, or responses to emergencies that

threaten life, property, or the environment.

(ii) Operating a vessel in such a manner as to strike or otherwise

injure coral, seagrass, or any other immobile organism attached to the

seabed, including, but not limited to, operating a vessel in such a

manner as to cause prop-scarring.

(iii) Anchoring a vessel on coral, in depths less than 50 feet.

(iv) Operating a vessel at a speed greater than idle/no-wake speed

within a residential canal, within 100 yards of the red and white

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

waters), or within 200 yards of:

(A) Residential shorelines;

(B) Mangrove fringed islands;

(C) Stationary vessels; or

(D) Signs indicating emergent or shallow reefs.

pths less than 50 feet.

(iv) Operating a vessel at a speed greater than idle/no-wake speed

within a residential canal, within 100 yards of the red and white

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

waters), or within 200 yards of:

(A) Residential shorelines;

(B) Mangrove fringed islands;

(C) Stationary vessels; or

(D) Signs indicating emergent or shallow reefs.

(v) Operating a vessel in such a manner as to injure or cause

disturbance to wading or nesting birds or marine mammals.

(vi) The prohibitions contained in this paragraph shall not apply

to law enforcement officials while in the performance of enforcement

duties.

(6) Diving without flag. Diving or snorkeling without flying in a

conspicious manner the red and white ``divers down'' flag (or the blue

and white ``alpha'' flag in Federal waters).

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

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

Sanctuary.

(8) Tampering with markers. Marking, defacing, or damaging in any

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

placards, whether temporary or permanent, or with any navigational

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

buoys, or scientific equipment.

(9) Removing or injuring Sanctuary historical resources. Moving,

removing, injuring, or possessing, or attempting to move, remove,

injure, or possess, a Sanctuary historical resource.

(10) Taking or possessing protected wildlife. Taking any marine

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

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

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

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

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

y historical resource.

(10) Taking or possessing protected wildlife. Taking any marine

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

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

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

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

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

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

Possessing, or using explosives, except powerheads, or releasing

electrical charges within the Sanctuary.

(12) Interfering with law enforcement. Interfering with,

obstructing, delaying or preventing an investigation, search, seizure

or disposition of seized property in connection with enforcement of the

Acts or any regulation or permit issued under the Acts.

(b) Marine Life rule. No person shall harvest, possess, or land any

marine life species, or part thereof, within the Sanctuary, except in

accordance with rules 46-42.001 through 46-42.003, 46-42.0035, and 46-

42.005 through 46-42.007 of the Florida Administrative Code, (set forth

in Appendix VIII to this part), and such rules shall apply mutatis

mutandis (with necessary editorial changes) to all federal and state

waters within the Sanctuary.

(c) Notwithstanding the prohibitions in this Sec. 929.5 and

Sec. 929.6, and any access and use restrictions imposed pursuant

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

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

conditions of, a National Marine Sanctuary permit issued pursuant to

Sec. 929.10, or a National Marine Sanctuary Historical Resources permit

issued pursuant to Sec. 929.11.

in this Sec. 929.5 and

Sec. 929.6, and any access and use restrictions imposed pursuant

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

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

conditions of, a National Marine Sanctuary permit issued pursuant to

Sec. 929.10, or a National Marine Sanctuary Historical Resources permit

issued pursuant to Sec. 929.11.

(d) Notwithstanding the prohibitions in this Sec. 929.5 and

Sec. 929.6, and any access and use restrictions imposed pursuant

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

valid lease, permit, license, approval, or other authorization in

existence on the effective date of Sanctuary designation and issued by

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

any valid right of subsistence use or access in existence on the

effective date of Sanctuary designation, provided that the holder of

such authorization or right complies with Sec. 929.14 and with any

terms and conditions on the exercise of such authorization or right

imposed by the Director or designee as a condition of certification as

he or she deems reasonably necessary to achieve the purposes for which

the Sanctuary was designated.

(e) Notwithstanding the prohibitions in this Sec. 929.5 and

Sec. 929.6, and any access and use restrictions imposed pursuant

thereto, a person may conduct an activity specifically authorized by

any valid lease, permit, license, approval, or other authorization

issued after the effective date of Sanctuary designation and issued by

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

provided that the applicant complies with Sec. 929.15, the Director or

designee notifies the applicant and authorizing agency that he or she

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

complies with any terms and conditions the Director or designee deems

reasonably necessary to protect Sanctuary resources and

qualities

e, or local authority of competent jurisdiction,

provided that the applicant complies with Sec. 929.15, the Director or

designee notifies the applicant and authorizing agency that he or she

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

complies with any terms and conditions the Director or designee deems

reasonably necessary to protect Sanctuary resources and

qualities. Amendments, renewals and extensions of authorizations in

existence on the effective date of designation constitute

authorizations issued after the effective date.

(f) Notwithstanding paragraph (c) of this section and

Sec. 929.15(a), in no event may the Director or designee issue a permit

under Secs. 929.10, 929.11 or 929.12, or under Section 310 of the NMSA,

authorizing, or otherwise approving, the exploration for, leasing,

development, or production of minerals or hydrocarbons within the

Sanctuary, the disposal of dredged material within the Sanctuary, or

the discharge of untreated or primary treated sewage (except by a

certification, pursuant to Sec. 929.14, of a valid authorization in

existence on the effective date of Sanctuary designation), and any

purported authorizations issued by other authorities after the

effective date of Sanctuary designation for any of these activities

within the Sanctuary shall be invalid.

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

that avoids to the maximum extent practical any adverse impacts on

Sanctuary resources and qualities. Military activities are activities

conducted by the Department of Defense with or without participation by

foreign forces. The prohibitions in paragraphs (a) and (b) of this

section and Sec. 929.6 do not apply to existing classes of military

activities, which were conducted prior to the effective date of the

regulations in this part, as identified in the Environmental Impact

Statement and Management Plan for the Florida Keys National Marine

Sanctuary

nt of Defense with or without participation by

foreign forces. The prohibitions in paragraphs (a) and (b) of this

section and Sec. 929.6 do not apply to existing classes of military

activities, which were conducted prior to the effective date of the

regulations in this part, as identified in the Environmental Impact

Statement and Management Plan for the Florida Keys National Marine

Sanctuary. New military activities in the Sanctuary are allowed and may

be exempted from the prohibitions in paragraphs (a) and (b) of this

section and Sec. 929.6 by the Director or designee after consultation

between the Director or designee and the Department of Defense pursuant

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

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

Sanctuary resource in a manner significantly greater than was

considered in a previous consultation under section 304(d) of the NMSA,

or any Sanctuary resource or quality not previously considered in a

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

will be treated as a new activity under this paragraph. If it is

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

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

adverse impact on Sanctuary resources and qualities. Civil engineering

and other civil works projects conducted by the U.S. Army Corps of

Engineers are excluded from the scope of this paragraph (g)(1).

d as a new activity under this paragraph. If it is

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

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

adverse impact on Sanctuary resources and qualities. Civil engineering

and other civil works projects conducted by the U.S. Army Corps of

Engineers are excluded from the scope of this paragraph (g)(1).

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

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

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

the Department of Defense, the cognizant component shall promptly

coordinate with the Director or designee for the purpose of taking

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

possible, restore or replace the Sanctuary resource or quality.

Sec. 929.6 Additional activity regulations by Sanctuary zone.

(a) In addition to the prohibitions set forth in Sec. 929.5, which

apply throughout the Sanctuary, the following requirements in this

Sec. 929.6 apply with respect to activities conducted within the

Sanctuary zones described in this Sec. 929.6 and in Appendices II

through V to this part. Activities conducted in those areas of the

Sanctuary that are located within two or more overlapping Sanctuary

zones shall be concurrently subject to the regulations applicable to

each such overlapping zone.

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

Management Areas. The following activities are prohibited within the

Key Largo and Looe Key Management Areas (the former Key Largo and Looe

Key National Marine Sanctuaries as described in Appendix II to this

part):

overlapping Sanctuary

zones shall be concurrently subject to the regulations applicable to

each such overlapping zone.

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

Management Areas. The following activities are prohibited within the

Key Largo and Looe Key Management Areas (the former Key Largo and Looe

Key National Marine Sanctuaries as described in Appendix II to this

part):

(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 which is consistent with

both the applicable regulations under the appropriate Fishery

Management Plan and the regulations in this part is allowed.

(ii) Taking or collecting any tropical fish.

(iii) Using wire fish traps, bottom trawls, dredges, fish sleds, or

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

(iv) Using, carrying or possessing, except while passing without

interruption through the zones or for law enforcement purposes, the

following: Pole spears, air rifles, bows and arrows, slings, Hawaiian

slings, rubber powered arbaletes, pneumatic and spring loaded guns or

similar devices known as spearguns.

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

Management Areas. Within the Great White Heron and Key West National

Wildlife Refuge Management Areas (The Great White Heron and Key West

National Wildlife Refuges as described in Appendix II to this part),

operating a personal watercraft (PWC), operating an airboat, or water

skiing, except within the following areas:

Township 66 South, Range 29 East, Sections 5, 11, 12 and 14;

Township 66 South, Range 28 East, Section 2;

Township 67 South, Range 26 East, Sections 16 and 20 all Tallahassee

Meridian, is prohibited.

and Key West

National Wildlife Refuges as described in Appendix II to this part),

operating a personal watercraft (PWC), operating an airboat, or water

skiing, except within the following areas:

Township 66 South, Range 29 East, Sections 5, 11, 12 and 14;

Township 66 South, Range 28 East, Section 2;

Township 67 South, Range 26 East, Sections 16 and 20 all Tallahassee

Meridian, is prohibited.

(c) Wildlife Management Areas. (1) Persons conducting activities

within the Wildlife Management Areas described in Appendix III to this

part shall comply with the regulations governing access to, and use of,

such areas, also set forth in Appendix III to this part. The following

activities are prohibited:

(i) Operating a vessel in a wildlife management area designated as

an ``idle/no-wake speed'' zone, in accordance with paragraph (c)(2) of

this section, at a speed greater than idle/no-wake speed as defined in

Sec. 929.3.

(ii) Operating a vessel in a Wildlife Management Area designated as

a ``no motor'' zone, in accordance with paragraph (c)(2) of this

section, using a boat motor powered by combustible fuel, except that

vessels with such motors are permitted access to ``no motor'' zones

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

means of operation not involving the use of a gasoline or diesel

powered boat motor.

(iii) Operating a vessel, by any means whatsoever, in a wildlife

management area designated as a ``no access buffer zone'', in

accordance with paragraph (c)(2) of this section.

s with such motors are permitted access to ``no motor'' zones

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

means of operation not involving the use of a gasoline or diesel

powered boat motor.

(iii) Operating a vessel, by any means whatsoever, in a wildlife

management area designated as a ``no access buffer zone'', in

accordance with paragraph (c)(2) of this section.

(2) Access and use restrictions applicable to the Wildlife

Management Areas listed in Appendix III to this part may include the

designation of any such zone as an ``idle/no-wake speed'', a ``no

motor'' or a ``no access buffer'' area. The Director or designee, in

cooperation with other Federal, State, or local resource management

authorities, as appropriate, shall effect such designation by posting

official signs conspicuously, using mounting posts, buoys, or other

means according to location and purpose, at appropriate intervals and

locations. Official signs posted pursuant to this paragraph shall

display the official logo of the Sanctuary. Each such sign shall

clearly delineate such zone as an ``idle/no-wake speed'', a ``no

motor'' or a ``no access buffer'' zone, and shall allow

instant, long-range recognition by boaters.

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

State, or local resource management authorities, as appropriate, in the

establishment, management, and enforcement of Wildlife Management

Areas.

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

access and use restrictions applicable to Wildlife Management Areas if

the Director or designee finds that such action is reasonably necessary

to minimize disturbances to Sanctuary wildlife, or to ensure protection

and preservation of Sanctuary wildlife consistent with the purposes of

the Sanctuary designation and other applicable law governing the

protection and preservation of wildlife resources in the Sanctuary. The

Director or designee will effect such modification by:

r or designee finds that such action is reasonably necessary

to minimize disturbances to Sanctuary wildlife, or to ensure protection

and preservation of Sanctuary wildlife consistent with the purposes of

the Sanctuary designation and other applicable law governing the

protection and preservation of wildlife resources in the Sanctuary. The

Director or designee will effect such modification by:

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

for public comments in accordance with the Administrative Procedure

Act, an amendment to the list of such areas set forth in Appendix III

to this part, and a notice regarding the time and place where maps

depicting the precise locations of such areas will be made available

for public inspection; and

(ii) Posting official signs designating such areas in accordance

with paragraph (c)(2) of this section.

(d) Sanctuary Preservation Areas and Replenishment Reserves. (1) In

addition to the prohibitions set forth in Sec. 929.5, and the

regulations applicable to any overlapping zones set forth in this

section, the following activities are prohibited within the

Replenishment Reserves described in Appendix IV to this part, and

within the Sanctuary Preservation Areas, described in Appendix V to

this part:

(i) Possessing (regardless of where taken from), 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.

(ii) Fishing by any means. However, possession of gear capable of

harvesting fish aboard a vessel, provided such gear is stowed away

prior to entering and during transit through the zone, shall not be

deemed a violation of this prohibition, and no presumption of fishing

activity shall be drawn therefrom.

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

standing on a living or dead coral formation.

s. However, possession of gear capable of

harvesting fish aboard a vessel, provided such gear is stowed away

prior to entering and during transit through the zone, shall not be

deemed a violation of this prohibition, and no presumption of fishing

activity shall be drawn therefrom.

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

standing on a living or dead coral formation.

(iv) 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 sessile organism. When anchoring

dive boats, the first diver down shall 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 sessile organisms. No

further diving is permitted until the anchor is placed in accordance

with these requirements.

(2) Vessels shall use mooring buoys or anchoring areas when such

facilities or areas have been designated and are available.

(3) Notwithstanding paragraph (d)(1) of this section, the following

activities are allowed within the Key Largo Replenishment Reserve

described in Appendix IV to this part:

(i) catch and release fishing from the shore to a depth of 12 feet;

and

(ii) harvest of spiny lobster by trap from sand or seagrass bottom

habitats.

(4) The Director or designee may impose a limited access

designation, or temporary area closure, within any Sanctuary

Preservation Area if the Director determines that such action is

reasonably necessary to allow for recovery of the living resources of

such area from the adverse, cumulative effects of concentrated use:

) harvest of spiny lobster by trap from sand or seagrass bottom

habitats.

(4) The Director or designee may impose a limited access

designation, or temporary area closure, within any Sanctuary

Preservation Area if the Director determines that such action is

reasonably necessary to allow for recovery of the living resources of

such area from the adverse, cumulative effects of concentrated use:

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

law enforcement or for monitoring pursuant to paragraph (d)(4)(iii) of

this section, no person shall:

(A) Enter a Sanctuary Preservation Area subject to a limited access

designation, except by the use of such mooring buoys or anchoring areas

as are designated and available for use within such area at the time of

the entry; or

(B) Enter a Sanctuary Preservation Area subject to a temporary area

closure, during the pendancy of the area closure.

(ii) In adopting any limited access designation or temporary area

closure pursuant to this paragraph (d)(4), the Director or designee

will determine, on the basis of the best available data, information

and studies, that:

(A) A concentration of use appears to be causing or contributing to

significant degradation of the living resources of the area;

(B) The access restriction or temporary area closure to be imposed

is reasonably necessary to allow recovery of the living resources of

the area.

(iii) The Director or designee will provide for continuous

monitoring of the area during the pendancy of the limited access

designation or temporary area closure.

(iv) The Director or designee will provide public notice of the

limited access designation or temporary area closure through publishing

notice in the Federal Register, and such other means as the Director or

designee may deem appropriate. With respect to a temporary area

closure, the Director or designee will specify the period of such

closure.

access

designation or temporary area closure.

(iv) The Director or designee will provide public notice of the

limited access designation or temporary area closure through publishing

notice in the Federal Register, and such other means as the Director or

designee may deem appropriate. With respect to a temporary area

closure, the Director or designee will specify the period of such

closure.

(e) Special Use Areas. (1) The Director or designee may set aside

discrete areas of the Sanctuary as Special Use Areas, and, by

designation pursuant to this paragraph (e), impose the use restrictions

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

described in Appendix VI to this part, in accordance with the following

designations and corresponding objectives:

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

resources from degradation or other injury attributable to human uses;

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

or otherwise injured Sanctuary resources;

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

education relating to protection and management; and

(iv) ``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 pursuant to Sec. 929.12.

(2) The total restricted area shall not exceed a size the Director

or designee deems reasonably necessary to accomplish these objectives.

) ``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 pursuant to Sec. 929.12.

(2) The total restricted area shall not exceed a size the Director

or designee deems reasonably necessary to accomplish these objectives.

(3) Persons conducting activities within any Special Use Area shall

comply with the access and use restriction specified in this paragraph

and made applicable to such an 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 and for law enforcement, no person may enter into a

Special Use Area except to conduct or cause to be conducted the

following uses and activities:

(i) 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 within such an area designated as either a

``recovery area'' or a ``restoration area'';

(ii) Scientific research or educational use specifically authorized

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

conditions of a valid Sanctuary permit issued pursuant

to Sec. 929.10 or Sec. 929.11 within such an area designated as a

``research only area''; or

(iii) Uses and activities specified by the Director or designee or

specifically authorized by and conducted in accordance with the scope,

purpose, terms, and conditions of a valid special use permit issued

pursuant to Sec. 929.12 within such an area designated as a

``facilitated use area.''

pursuant

to Sec. 929.10 or Sec. 929.11 within such an area designated as a

``research only area''; or

(iii) Uses and activities specified by the Director or designee or

specifically authorized by and conducted in accordance with the scope,

purpose, terms, and conditions of a valid special use permit issued

pursuant to Sec. 929.12 within such an area designated as a

``facilitated use area.''

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

designation applicable to Special Use Zones by publishing in the

Federal Register, after notice and a request for public comments in

accordance with the Administrative Procedure Act, an amendment to

Appendix VI to this part, except that, with respect to such zones

designated as ``recovery areas'', ``restoration areas,'' or ``research

only areas,'' the Director or designee may modify the number, location

or designation of such zones by publishing a notice of such action in

the Federal Register if the Director determines that immediate action

is reasonably necessary to:

(A) Prevent significant injury to Sanctuary resources where

circumstances create an imminent risk to such resources;

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

significantly impair the ability of such restoration activity to

succeed;

(C) Initiate research activity where an unforseen natural event

produces an opportunity for scientific research that may be lost if

research is not initiated immediately.

to Sanctuary resources where

circumstances create an imminent risk to such resources;

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

significantly impair the ability of such restoration activity to

succeed;

(C) Initiate research activity where an unforseen natural event

produces an opportunity for scientific research that may be lost if

research is not initiated immediately.

(ii) If the Director or designee determines that a notice of

modification must be promulgated immediately in accordance with

paragraph (e)(4)(i) of this section, the Director or designee will, as

part of the same notice, invite public comment and specify that

comments will be received for 15 days after the effective date of the

notice. As soon as practicable after the end of the comment period, the

Director will either rescind, modify or allow the modification to

remain unchanged through notice in the Federal Register.

Sec. 929.7 Emergency regulations.

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

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

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

subject to immediate temporary regulation, including prohibition.

Sec. 929.8 Penalties.

(a) Each violation of the NMSA or FKNMSPA, any regulation in this

part, or any permit issued pursuant thereto, is subject to a civil

penalty of not more than $100,000. Each such violation shall be subject

to forfeiture of property or Sanctuary resources seized in accordance

with section 307 of the NMSA. Each day of a continuing violation

constitutes a separate violation.

c. 929.8 Penalties.

(a) Each violation of the NMSA or FKNMSPA, any regulation in this

part, or any permit issued pursuant thereto, is subject to a civil

penalty of not more than $100,000. Each such violation shall be subject

to forfeiture of property or Sanctuary resources seized in accordance

with section 307 of the NMSA. Each day of a continuing violation

constitutes a separate violation.

(b) Regulations setting forth the procedures governing

administrative proceedings for assessment of civil penalties, permit

sanctions and denials for enforcement reasons, issuance and use of

written warnings, and release or forfeiture of seized property appear

at 15 CFR Part 904.

Sec. 929.9 Response costs and damages.

Under Section 312 of the NMSA, 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

such destruction, loss, or injury.

Sec. 929.10 National Marine Sanctuary Permits; application procedures

and issuance criteria.

(a) A person may conduct an activity prohibited by Sec. 929.5 or

Sec. 929.6 if such activity is specifically authorized by, and provided

such activity is conducted in accordance with the scope, purpose, terms

and conditions of, a permit issued under this Sec. 929.10 or an

Historical Resources permit issued under Sec. 929.11.

(b)(1) The Director or designee, at his or her discretion, may

issue a permit, in accordance with this section, and subject to such

terms and conditions as he or she deems appropriate, to conduct an

activity prohibited by Sec. 929.5 or Sec. 929.6 if the Director or

designee finds that the activity will have only negligible short-term

adverse effects on Sanctuary resources and qualities and will:

(1) The Director or designee, at his or her discretion, may

issue a permit, in accordance with this section, and subject to such

terms and conditions as he or she deems appropriate, to conduct an

activity prohibited by Sec. 929.5 or Sec. 929.6 if the Director or

designee finds that the activity will have only negligible short-term

adverse effects on Sanctuary resources and qualities and will:

(i) Further research or monitoring related to Sanctuary resources

and qualities;

(ii) Further the educational, natural or historical resource value

of the Sanctuary;

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

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

(iv) Assist in managing the Sanctuary.

(2) For activities proposed to be conducted within Replenishment

Reserves or Sanctuary Preservation Areas, the Director or designee

shall further find that such activities will further and are consistent

with the purposes for which such zone was established.

(c) In deciding whether to issue a permit, the Director or designee

may consider:

(1) The professional qualifications and financial ability of the

applicant as related to the proposed activity;

(2) The duration of the activity and the duration of its effects;

(3) The appropriateness of the methods and procedures proposed by

the applicant for the conduct of the activity;

(4) The extent to which the conduct of the activity may diminish or

enhance Sanctuary resources and qualities;

(5) Any indirect, secondary or cumulative effects of the activity;

(6) The end value of the activity; and

(7) Such other factors as he or she deems appropriate depending on

the type of activity proposed in the application.

proposed by

the applicant for the conduct of the activity;

(4) The extent to which the conduct of the activity may diminish or

enhance Sanctuary resources and qualities;

(5) Any indirect, secondary or cumulative effects of the activity;

(6) The end value of the activity; and

(7) Such other factors as he or she deems appropriate depending on

the type of activity proposed in the application.

(d) Applications for permits should be addressed to the Director,

Office of Ocean and Coastal Resource Management; ATTN: Sanctuary

Superintendent, Florida Keys National Marine Sanctuary, P.O. Box

500368, Marathon, FL 33050. All applications must include:

(1) A detailed description of the proposed activity including a

timetable for completion of the activity and the equipment, personnel

and methodology to be employed;

(2) The qualifications and experience of all personnel;

(3) The potential effects of the activity, if any, on Sanctuary

resources and qualities; and

(4) The benefit to be derived from the activity. Copies of all

other required licenses, permits, approvals, or other authorizations

must be attached to the application.

(e) Upon receipt of an application, the Director or designee may

request such additional information from the applicant as he or she

deems reasonably necessary to act on the application and may seek the

views of any persons. The Director or designee may require a site visit

as part of the permit evaluation. Unless otherwise specified, the

information requested must be received by the Director or designee

within 30 days of the postmark date of the request. Failure to provide

such additional information on a timely basis may be deemed by the

Director or designee to constitute abandonment or withdrawal of the

permit application.

(f) A permit issued pursuant to this Sec. 929.10 or Sec. 929.11 is

nontransferable.

specified, the

information requested must be received by the Director or designee

within 30 days of the postmark date of the request. Failure to provide

such additional information on a timely basis may be deemed by the

Director or designee to constitute abandonment or withdrawal of the

permit application.

(f) A permit issued pursuant to this Sec. 929.10 or Sec. 929.11 is

nontransferable.

(g) The Director or designee may amend, suspend, or revoke a permit

for good cause. The Director or designee may deny a permit application,

in whole or in part, if it is determined that the permittee or

applicant has acted in violation of the terms or conditions of a

previous permit, of the regulations in this part, of the NMSA or

FKNMSA, or for other good cause. Any such action shall be communicated

in writing to the permittee or applicant by certified mail and shall

set forth the reason(s) for the action taken. Procedures governing

permit sanctions and denials for enforcement reasons are set forth in

15 CFR Part 904, subpart D.

(h) Any permit issued pursuant to this Sec. 929.10, Sec. 929.11,

Sec. 929.12, or Section 310 of the NMSA shall be subject to the

following general conditions:

(1) All permitted activities shall be conducted in a manner that

does not destroy, cause the loss of, or injure Sanctuary resources,

except that a permit issued under this Sec. 929.10 or Sec. 929.11 may

authorize negligible short-term adverse effects on Sanctuary resources

and qualities.

(2) The permittee shall agree to hold the United States harmless

against any and all claims arising out of the conduct of the permitted

activities.

cted in a manner that

does not destroy, cause the loss of, or injure Sanctuary resources,

except that a permit issued under this Sec. 929.10 or Sec. 929.11 may

authorize negligible short-term adverse effects on Sanctuary resources

and qualities.

(2) The permittee shall agree to hold the United States harmless

against any and all claims arising out of the conduct of the permitted

activities.

(3) The permit shall be issued for a period not exceeding five

years. However, the permittee may request permit renewal or a different

permit pursuant to the same procedure as provided by this Sec. 929.10.

Upon the permittee's request for renewal, the Director or designee

shall: review all annual reports submitted by the permittee pursuant to

paragraph (h)(4) of this section. In order to renew the permit, the

Director or designee must find that the activity will continue to

further the purposes for which the Sanctuary was designated in

accordance with the criteria applicable to the initial issuance of the

permit; ascertain the permittee has at no time violated the permit, or

these regulations; and ascertain the permittee has not destroyed,

caused the loss of, or injured Sanctuary resources while conducting the

permitted activities, except for any negligible short-term adverse

effects on Sanctuary resources and qualities authorized by the permit

pursuant to paragraph (h)(1) of this section.

(4) The permit or a copy thereof shall be displayed on board all

vessels or aircraft used in the conduct of the permitted activity.

(i) In addition to the general conditions listed in paragraphs

conducting the

permitted activities, except for any negligible short-term adverse

effects on Sanctuary resources and qualities authorized by the permit

pursuant to paragraph (h)(1) of this section.

(4) The permit or a copy thereof shall be displayed on board all

vessels or aircraft used in the conduct of the permitted activity.

(i) In addition to the general conditions listed in paragraphs

(h)(1) through (4) of this section, any permit issued pursuant to this

Sec. 929.10, Sec. 929.11, Sec. 929.12, or Section 310 of the NMSA may

be subject to such specific terms and conditions, including conditions

governing access to, or use of, Sanctuary resources, as the Director or

designee deems reasonably necessary or appropriate and in furtherance

of the purposes for which the Sanctuary is designated. Such conditions

may include, without limitation, a condition that:

(1) Any data or information obtained under the permit shall be made

available to the public;

(2) A NOAA official shall be allowed to observe any activity

conducted under the permit;

(3) The permittee shall submit one or more reports on the status,

progress, or results of any activity authorized by the permit;

(4) The permittee shall submit an annual report to the Director or

designee not later than December 31 of each year on activities

conducted pursuant to the permit. The report shall describe all

activities conducted under the permit and all revenues derived from

such activities during the term of the permit; and/or

(5) The permittee shall purchase and maintain general liability

insurance against any and all claims arising out of the permitted

activities. A copy of the insurance policy shall be submitted to the

Director or designee.

rsuant to the permit. The report shall describe all

activities conducted under the permit and all revenues derived from

such activities during the term of the permit; and/or

(5) The permittee shall purchase and maintain general liability

insurance against any and all claims arising out of the permitted

activities. A copy of the insurance policy shall be submitted to the

Director or designee.

(j) The applicant for or holder of a National Marine Sanctuary or a

National Marine Sanctuary Historical Resources permit may appeal the

denial, conditioning, amendment, suspension or revocation of the permit

in accordance with the procedures set forth in Sec. 929.16.

Sec. 929.11 National Marine Sanctuary Historical Resources Permits;

exploration, research/recovery, research/recovery/transfer; application

procedures and issuance criteria.

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

research/exploration, research/recovery, or research/recovery/transfer

permit, in accordance with this Sec. 929.11, and subject to such terms

and conditions as he or she deems appropriate, to conduct an activity

specified under this Sec. 929.11 and prohibited by Secs. 929.5 or

929.6. Activities conducted pursuant to a permit issued under this

Sec. 929.11 shall be consistent and conform with the [proposed]

Procedures for Submerged Cultural Resources Agreement Among NOAA, The

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

Submerged Cultural Resources (hereinafter SCR Agreement). This

incorporation by reference was approved by the Director of the Federal

Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The SCR

Agreement is reproduced as an appendix to the ``Regulatory Action

Plan'' set forth in Volume 1 of the [draft] Florida Keys National

Marine Sanctuary Management Plan, dated March 1995

ida on

Submerged Cultural Resources (hereinafter SCR Agreement). This

incorporation by reference was approved by the Director of the Federal

Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The SCR

Agreement is reproduced as an appendix to the ``Regulatory Action

Plan'' set forth in Volume 1 of the [draft] Florida Keys National

Marine Sanctuary Management Plan, dated March 1995. Copies of the SCR

Agreement may be inspected at, and obtained from, the Sanctuaries and

Reserves Division, Office of Ocean and Coastal Resource Management,

National Ocean Service, National Oceanic and Atmospheric

Administration, 1305 East-West Highway, 12th floor, Silver Spring, MD

20910 or from the Florida Keys National Marine Sanctuary Office, P.O.

Box 500368, Marathon, FL 33050. The SCR Agreement is also available for

inspection at the Office of the Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC.1

\1\The incorporation by reference will be submitted to the

Office of the Federal Register for approval.

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(b) Applications for research/recovery and research/recovery/

transfer permits shall follow the procedures listed in Sec. 929.10 (d)

through (g).

(c) Any permit issued pursuant to this Sec. 929.11 shall be subject

to the general conditions listed in Sec. 929.10(h) (1) through (4), and

any special conditions that may be imposed by the Director or designee

in accordance with Sec. 929.10(i). In addition, the following general

conditions shall apply to all research/recovery and research/recovery/

transfer permits:

(1) The permittee shall post a performance bond commensurate with

the scope of work to cover costs associated with the recovery. The bond

shall be released only after the project is completed according to the

agreed-upon terms, the artifacts are conserved, and a final report is

delivered and approved by Director or designee in accordance with the

SCR Agreement; and

ecovery/

transfer permits:

(1) The permittee shall post a performance bond commensurate with

the scope of work to cover costs associated with the recovery. The bond

shall be released only after the project is completed according to the

agreed-upon terms, the artifacts are conserved, and a final report is

delivered and approved by Director or designee in accordance with the

SCR Agreement; and

(2) The permittee, at his or her own expense, shall provide secure

storage of the artifacts recovered pursuant to research/recovery or

research/recovery/transfer permit, and the permittee shall obtain

insurance for the artifacts equivalent to the fair market value as

determined by a qualified objective assessor. Such assessor shall be

identified or approved by the Director or designee.

(d) Survey and Inventory Permits. (1) The Director or designee may

issue a survey and inventory permit to conduct non-intrusive survey

activities that will not include excavation, removal, or

recovery of historical resources, nor result in

destruction of, loss of, or injury to Sanctuary resources.

(2) Survey and inventory reports and daily logs must be prepared

describing the activities conducted pursuant and results obtained from

the activities authorized in the exploration permit. Copies of the

report and daily logs and any other data derived from the survey shall

be delivered in a timely manner pursuant to a deadline proscribed in

the permit and will be stored in a repository to be named in the

permit.

ory reports and daily logs must be prepared

describing the activities conducted pursuant and results obtained from

the activities authorized in the exploration permit. Copies of the

report and daily logs and any other data derived from the survey shall

be delivered in a timely manner pursuant to a deadline proscribed in

the permit and will be stored in a repository to be named in the

permit.

(e) Research/Recovery Permits. (1) Recovery of historical resources

will only be permitted when developed in conjunction with research to

preserve the historic information for public use. Intrusive research

and/or recovery will be permitted 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 resource in place.

(2) For sites where no prior federally adjudicated claim exists,

and for federally adjudicated admiralty claim sites within the

Sanctuary, the following minimum requirements apply as general permit

conditions and may be subject to separate approval, as specified by the

Director or designee:

(i) The applicant must have secured Federal, State, and local

permits from all agencies with jurisdiction over the proposed

activities;

(ii) A professional archaeologist must be in charge of planning,

conducting, and supervising field operations, analysis;

(iii) A conservation laboratory must be in place before field

operations are begun, and a professional nautical conservator must be

in charge of planning, conducting, and supervising the conservation of

any artifacts and other materials recovered;

(iv) A curation agreement with a museum or facility for curation,

display, and maintenance of the recovered historical resources must be

in place before field operations have begun;

t be in place before field

operations are begun, and a professional nautical conservator must be

in charge of planning, conducting, and supervising the conservation of

any artifacts and other materials recovered;

(iv) A curation agreement with a museum or facility for curation,

display, and maintenance of the recovered historical resources must be

in place before field operations have begun;

(v) The site's archaeological information must be fully documented,

including measured drawings, site maps drawn to professional standards,

and a photographic record;

(vi) Final reports must be prepared describing research design,

methodology, laboratory analyses, findings, and other items. These

reports shall be delivered in a timely manner pursuant to a deadline

proscribed in the permit;

(vii) Copies of all reports, site maps, field notes, and other data

and records derived from the project will be stored in a repository to

be named in the permit.

(f) Research/Recovery/Transfer Permits. (1) Agreements for the

curation and display of recovered historical resources may provide for

the release of public artifacts for private sale transfer if such sale

transfer is consistent with preservation, research, education, or other

purposes of the designation and management of the Sanctuary. Sale

distribution of historical resources shall be executed pursuant to the

SCR Agreement.

(2) All research/recovery/transfer permits shall be subject to the

requirements in paragraph (e) of this section.

(3) All research/recovery/transfer permits shall be subject to the

requirements for special use permits listed in Sec. 929.12 (c) through

(f).

Sec. 929.12 Special Use Permits.

(a)(1) The Director or designee may require a special use permit in

order to conduct a concession-type, commercial activity within the

Sanctuary if the Director or designee determines such authorization is

reasonably necessary:

earch/recovery/transfer permits shall be subject to the

requirements for special use permits listed in Sec. 929.12 (c) through

(f).

Sec. 929.12 Special Use Permits.

(a)(1) The Director or designee may require a special use permit in

order to conduct a concession-type, commercial activity within the

Sanctuary if the Director or designee determines such authorization is

reasonably necessary:

(i) To establish conditions of access to and use of any Sanctuary

resource; or

(ii) To promote public use and understanding of any Sanctuary

resource.

(2) No permit may be issued unless the activity is compatible with

the purposes for which the Sanctuary was designated and can be

conducted in a manner that does not destroy, cause the loss of, or

injure any Sanctuary resource.

(b) Applications for such permits shall follow the procedures

listed in Sec. 929.10(d) through (g).

(c) Any special use permit issued pursuant to this Sec. 929.12

shall be subject to the general conditions listed in Sec. 929.10(h)(1)

through (4), and any special conditions that may be imposed by the

Director or designee in accordance with Sec. 929.10(i).

(d) The Director or designee may assess and collect fees for the

conduct of any activity authorized by a special use permit issued

pursuant to this Sec. 929.12. No special use permit shall be effective

until all assessed fees are paid, unless otherwise provided by the

Director or designee by a fee schedule set forth as a permit condition.

(e) In assessing a fee under paragraph (f) of this section, the

Director or designee shall include:

(1) All costs incurred, or expected to be incurred, in reviewing

and processing the permit application, including costs for:

(i) Number of personnel;

(ii) Personnel hours;

(iii) Equipment;

(iv) Biological assessments;

e

Director or designee by a fee schedule set forth as a permit condition.

(e) In assessing a fee under paragraph (f) of this section, the

Director or designee shall include:

(1) All costs incurred, or expected to be incurred, in reviewing

and processing the permit application, including costs for:

(i) Number of personnel;

(ii) Personnel hours;

(iii) Equipment;

(iv) Biological assessments;

(v) Copying; and

(vi) Overhead directly related to reviewing and processing the

permit application;

(2) All costs incurred, or expected to be incurred, by the Director

or designee as a direct result of the conduct of the activity for which

the special use permit was issued, including, but not limited to:

(i) The cost of monitoring the conduct both during and after the

activity is completed in order to assess the impacts to Sanctuary

resources;

(ii) The use of an official NOAA observer, including travel and

expenses and personnel hours; and

(iii) Overhead costs directly related to the permitted activity;

and

(3) An amount which represents the fair market value of the use of

the Sanctuary resource and a reasonable return to the United States

Government.

(f) Special-use permits may not be transferred, sold, or assigned

except with the written approval of the Director or designee. The

permittee shall provide the Director or designee with written notice of

any such transfer, sale, or assignment no less than 30 days prior to

its proposed consummation. Transfers, sales, or assignments consummated

in violation of this requirement shall be considered a material breach

of the special-use permit, and the permit shall be considered void as

of the consummation of any such transfer, sale, or assignment.

de the Director or designee with written notice of

any such transfer, sale, or assignment no less than 30 days prior to

its proposed consummation. Transfers, sales, or assignments consummated

in violation of this requirement shall be considered a material breach

of the special-use permit, and the permit shall be considered void as

of the consummation of any such transfer, sale, or assignment.

(g) Nothing in this Sec. 929.12 shall be

This text is long and has been trimmed here. Open the source document for the complete record.