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Proposed Rule2022-14554

Proposed Rule for the Florida Keys National Marine Sanctuary Management Review: Blueprint for Restoration

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Published

July 18, 2022

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

The National Oceanic and Atmospheric Administration (NOAA) is proposing several changes to the Florida Keys National Marine Sanctuary (FKNMS) to expand the boundary of the sanctuary, update sanctuary-wide regulations, update the individual marine zones and their associated regulations, and revise the sanctuary's terms of designation. In addition, a revised draft management plan is included in the supporting material for this proposed rule. FKNMS currently protects 3,800 square miles of waters surrounding the Florida Keys, from south of Miami westward to the Dry Tortugas. Within the boundaries of the sanctuary lie spectacular, unique, and nationally significant marine resources including North America's only coral barrier reef, extensive seagrass beds, mangrove-fringed islands, and more than 6,000 species of marine life. The sanctuary also protects pieces of our Nation's history such as shipwrecks and other archeological resources. This proposed rule follows NOAA's publication of a draft environmental impact statement (DEIS) in August 2019, also referred to as the Restoration Blueprint, which included a range of alternatives. The proposed rule is necessary to improve the condition of resources in the Florida Keys through a series of regulatory measures designed to reduce threats and, where appropriate, restore coral reefs, seagrasses, and other important habitats. The intended effect of this proposed rule is to protect and preserve the living and heritage resources of the Florida Keys for the benefit of the public. NOAA is soliciting public comment on this proposed rule.

Full Text

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<title>Federal Register, Volume 87 Issue 136 (Monday, July 18, 2022)</title>
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[Federal Register Volume 87, Number 136 (Monday, July 18, 2022)]
[Proposed Rules]
[Pages 42800-42914]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14554]

[[Page 42799]]

Vol. 87

Monday,

No. 136

July 18, 2022

Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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15 CFR Part 922

Proposed Rule for the Florida Keys National Marine Sanctuary Management
Review: Blueprint for Restoration; Proposed Rule

Federal Register / Vol. 87 , No. 136 / Monday, July 18, 2022 /
Proposed Rules

[[Page 42800]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 220516-0115]
RIN 0648-BJ14

Proposed Rule for the Florida Keys National Marine Sanctuary
Management Review: Blueprint for Restoration

AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).

ACTION: Proposed rule; request for public comments.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
proposing several changes to the Florida Keys National Marine Sanctuary
(FKNMS) to expand the boundary of the sanctuary, update sanctuary-wide
regulations, update the individual marine zones and their associated
regulations, and revise the sanctuary's terms of designation. In
addition, a revised draft management plan is included in the supporting
material for this proposed rule. FKNMS currently protects 3,800 square
miles of waters surrounding the Florida Keys, from south of Miami
westward to the Dry Tortugas. Within the boundaries of the sanctuary
lie spectacular, unique, and nationally significant marine resources
including North America's only coral barrier reef, extensive seagrass
beds, mangrove-fringed islands, and more than 6,000 species of marine
life. The sanctuary also protects pieces of our Nation's history such
as shipwrecks and other archeological resources. This proposed rule
follows NOAA's publication of a draft environmental impact statement
(DEIS) in August 2019, also referred to as the Restoration Blueprint,
which included a range of alternatives. The proposed rule is necessary
to improve the condition of resources in the Florida Keys through a
series of regulatory measures designed to reduce threats and, where
appropriate, restore coral reefs, seagrasses, and other important
habitats. The intended effect of this proposed rule is to protect and
preserve the living and heritage resources of the Florida Keys for the
benefit of the public. NOAA is soliciting public comment on this
proposed rule.

DATES:
Comments due: October 26, 2022.
Public Comment Meetings: NOAA will host four public comment
meetings during the public comment period, one virtual and three in-
person.
The virtual public comment meeting will occur at the following date
and time:
<bullet> Tuesday, August 30, 2022, Time: 6 p.m.-9 p.m.
The in-person public meetings will occur at the following dates and
times:
<bullet> Key Largo, FL; Date: September 20, 2022; Location: Key
Largo Coral Shores High School Auditorium; Address: 89901 Old Hwy.,
Tavernier, FL 33070; Time: 6 p.m.-9 p.m.
<bullet> Marathon, FL; Date: September 21, 2022; Location: Marathon
High School Auditorium; Address: 350 Sombrero Beach Rd., Marathon, FL
33050; Time: 6 p.m.-9 p.m.
<bullet> Key West, FL; Date: September 22, 2022; Location: Key West
High School Auditorium; Address: 2100 Flagler Ave., Key West, FL 33040;
Time: 6 p.m.-9 p.m.
Please check <a href="https://floridakeys.noaa.gov/blueprint">https://floridakeys.noaa.gov/blueprint</a> for meeting
links and the most up-to-date information, should plans for these
public meetings change. NOAA may end a virtual or in-person meeting
before the time noted above if all participants have concluded their
oral comments.

ADDRESSES: You may submit comments on this document, identified by
NOAA-NOS-2019-0094, by the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="http://www.regulations.gov">www.regulations.gov</a>
and search for docket NOAA-NOS-2019-0094, click the ``Comment Now!''
icon, complete the required fields, and enter or attach your comments.
<bullet> Written comments may also be mailed to: Sarah Fangman,
Superintendent, FKNMS, 33 East Quay Rd., Key West, FL 33040.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NOAA. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personally identifiable
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NOAA will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Copies of the proposed rule, the DEIS, maps of the proposed
management zones, and additional background materials can be found on
the FKNMS website at <a href="https://floridakeys.noaa.gov">https://floridakeys.noaa.gov</a>. The notice of
proposed rulemaking can also be downloaded or viewed on the internet at
<a href="http://www.regulations.gov">www.regulations.gov</a> (search for docket # NOAA-NOS-2019-0094).

FOR FURTHER INFORMATION CONTACT: Beth Dieveney, Policy Analyst, FKNMS,
33 East Quay Rd., Key West, FL, 33040, 305-797-6818 phone, or by email
at <a href="/cdn-cgi/l/email-protection#d9bbbcadb1f7bdb0bcafbcb7bca099b7b6b8b8f7beb6af"><span class="__cf_email__" data-cfemail="a0c2c5d4c88ec4c9c5d6c5cec5d9e0cecfc1c18ec7cfd6">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Introduction

1. Florida Keys National Marine Sanctuary

Designated in 1990, FKNMS was the ninth national marine sanctuary
to be established in a network that now comprises 15 sanctuaries and 2
marine national monuments. As one of the largest marine protected areas
in the United States, the sanctuary currently protects approximately
3,800 square miles of coastal and ocean waters from the estuarine
waters of South Florida along the Florida Keys archipelago to the Dry
Tortugas, encompassing more than 1,700 islands. The ecosystems of FKNMS
provide habitats for more than 6,000 species of fishes, invertebrates,
and plants, in addition to uniquely expansive and diverse seagrass and
coral reef communities.
The Florida Keys have more than 77,000 residents and up to 5.5
million annual visitors, and a local economy of nearly $5.0 billion. In
2018, tourism spending in Monroe County accounted for $2.4 billion,
supporting 44 percent of jobs/employment in the county. Tourism
activity and spending is heavily dependent on the maintenance of a
healthy marine environment. Approximately 60 percent of the economy is
tied directly to marine-related activities, including commercial and
recreational fishing, boating, diving, wildlife viewing, and other
various tourist-related activities. A declining marine environment puts
the Florida Keys' economy and jobs at risk.

2. Need for the Proposed Rule

The statutory bases for NOAA's management of FKNMS are primarily
the purposes and policies of the National Marine Sanctuaries Act (NMSA;
16 U.S.C. 1431 et seq.), and the Florida Keys National Marine Sanctuary
and Protection Act (FKNMSPA, Public Law 101-605). The NMSA authorizes
the Secretary of Commerce (Secretary) to, among other purposes and
policies:

[[Page 42801]]

<bullet> ``Provide authority for comprehensive and coordinated
conservation and management of these marine areas, and activities
affecting them, in a manner which complements existing regulatory
authorities'' (16 U.S.C. 1431(b)(2));
<bullet> ``Maintain the natural biological communities in the
national marine sanctuaries, and to protect, and, where appropriate,
restore and enhance natural habitats, populations, and ecological
processes'' (16 U.S.C. 1431(b)(3));
<bullet> ``Facilitate to the extent compatible with the primary
objective of resource protection, all public and private uses of the
resources of these marine areas not prohibited pursuant to other
authorities'' (16 U.S.C. 1431(b)(6));
<bullet> ``Develop and implement coordinated plans of the
protection and management of these areas with appropriate Federal
agencies, State and local governments . . . and other public and
private interests concerned with the continuing health and resilience
of these marine areas'' (16 U.S.C. 1431(b)(7));
<bullet> ``Create models of, and incentives for, ways to conserve
and manage these areas, including the application of innovative
management techniques'' (16 U.S.C. 1431(b)(8)); and
<bullet> ``Evaluate the substantive progress toward implementing
the management plan and goals for the sanctuary, especially the
effectiveness of site-specific management techniques and strategies,
and shall revise the management plan and regulations as necessary to
fulfill the purposes and policies of this chapter.'' (16 U.S.C.
1434(e)).
Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA,
Public Law 101-605), directs NOAA to protect and preserve living and
other resources of the Florida Keys marine environment, provide
education on and interpretation of sanctuary resources to the public,
and manage human uses of the sanctuary consistent with the FKNMSPA.
The need for this proposed rule is to respond to threats to marine
resources of the Florida Keys, consistent with the purposes and
policies of both the NMSA and the FKNMSPA. FKNMS is currently operating
under the original regulations, including marine zones, that became
effective in 1997, and a 2007 revised management plan, which directs
the sanctuary's non-regulatory management activities. In order to
ensure long-term resource viability and ecosystem function, this
management framework needs to be updated to address current and
foreseeable future threats. Generally, the marine resources within the
sanctuary face increased risk from local, regional, and global threats;
and changes in visitor numbers, use patterns, types, and shifting
recreational interests. Specifically, these threats include diminished
water quality originating from both within and outside the sanctuary,
significant decrease in coral cover, and habitat degradation from
vessel impacts including anchor damage, propeller-scarring, and
groundings. Each of these threats has major implications for FKNMS.
In addition, updates are needed to the management regime in order
to respond to the 2011 FKNMS Condition Report,\1\ which concluded that
resources in the Florida Keys appear to be in fair to fair/poor
condition, and are generally either stable or in decline. Since the
release of the 2011 condition report, sanctuary resources have been
further degraded by Hurricane Irma (2017), a serious and widespread
coral disease outbreak, and a seagrass die-off, among other threats.
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\1\ <a href="https://sanctuaries.noaa.gov/science/condition/fknms/welcome.html">https://sanctuaries.noaa.gov/science/condition/fknms/welcome.html</a>.
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Furthermore, during scoping for the 2019 DEIS, the public
emphasized the need for a more ecosystem-based management approach to
better protect the region's marine resources. To that end, there was
strong support for sanctuary expansion and updated marine zones--
actions that are consistent with the purposes and policies of the NMSA
and the FKNMSPA. More specifically, the need for this proposed rule is
to extend national marine sanctuary protections to areas that have
significant marine resources with demonstrated biological and
ecological connectivity to existing sanctuary resources and to adapt
management strategies to changing conditions, use patterns, and
emerging threats to resources. FKNMS' efforts to update the sanctuary's
regulations and management plan are informed by recent scientific
findings of degraded habitat in the sanctuary and how the condition of
resources can improve with application of long-term management and
conservation strategies, which include marine zoning.
At the same time, as articulated in the revised draft management
plan, continued research, restoration, and education is needed to
conserve and restore these nationally significant sanctuary resources.
This work is critical for assessing changes occurring in the
environment, fostering a stewardship ethic, and developing a better
understanding of the ecosystem services that sanctuary resources
provide for communities throughout the Florida Keys.
In a parallel process, ONMS has been working to update the
sanctuary regulations found at 15 CFR part 922. Part 922 includes
general regulations applicable to all sanctuaries (subparts A through
E) and site-specific regulations that relate to each individual
sanctuary (subparts F through T). An interim final rule that was
published at 87 FR 29606 \2\ on May 13, 2022 updates and reorganizes
the existing regulations, eliminates redundancies across the sanctuary
regulations, eliminates outmoded regulations, adopts standard boundary
descriptions, and consolidates general regulations and permitting
procedures. All regulatory references to 15 CFR part 922 in this
proposed rule are to be read as they will be amended by the interim
final rule.
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\2\ <a href="https://www.govinfo.gov/content/pkg/FR-2022-05-13/pdf/2022-09626.pdf">https://www.govinfo.gov/content/pkg/FR-2022-05-13/pdf/2022-09626.pdf</a>.
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3. Incorporation by Reference

The definitions in Sec. 922.162 for ``marine life species'' and
``tropical fish'' incorporate by reference the same definitions under
State of Florida regulations for Marine Life found at Florida
Administrative Code 68B-42.001 and 68B-42.002. Specifically, under
these Florida regulations, the definitions of ``marine life species''
and ``tropical fish'' incorporate lists of species designated as
``restricted species'' found at 68B-42.002. Under Florida regulations,
a fishing permit is required to target any species that fall under the
definition of ``marine life species'' and ``tropical fish.'' Similarly,
sanctuary regulations at Sec. 922.163(a)(12) require that marine life
species only be harvested from the sanctuary if authorized by a state
permit or exemption. Sanctuary regulations at Sec. 922.164(b)(2) also
prohibit the collection of tropical fish from within two areas of the
sanctuary that were formerly the Key Largo and Looe Key national marine
sanctuaries. Florida regulations are readily accessible at <a href="https://www.flrules.org/">https://www.flrules.org/</a>. These Florida regulations are currently referenced in
the existing sanctuary regulations; at this time NOAA is updating the
language in order to comply with Office of Federal Register regulations
for incorporation by reference found at 1 CFR part 51.
The definition of ``traditional fishing'' in Sec. 922.162
incorporates by reference pages 84 through 91 of the 1996 Florida Keys
National Marine Sanctuary Final Management Plan/Environment Impact
Statement (1996 FL Keys NMS FMP/EIS (Vol. II)). This document was
prepared

[[Page 42802]]

by NOAA to accompany the promulgation of the initial regulations for
the newly designated Florida Keys National Marine Sanctuary. The
document provides a detailed description of the commercial and
recreational fishing activities that historically and presently (as of
1996) were conducted in the Florida Keys region, including targeted
species, locations where and seasons when fishing occurred or occurs,
and types of gears used to harvest those species. Exemptions from
several sanctuary prohibitions for traditional fishing are found in
Sec. 922.163(a)(3) (prohibition on altering the seafloor), Sec.
922.163(a)(4) (prohibition on discharges), and Sec. 922.163(a)(14)
(prohibition on fish feeding). For more discussion on NOAA's proposed
update to the definition of ``traditional fishing'' to incorporate by
reference the 1996 FL Keys NMS FMP/EIS (Vol. II), please see part III,
section 2. Sanctuary-wide Regulations, paragraph e Fish Feeding. The
1996 FL Keys NMS FMP/EIS (Vol. II) is readily available at <a href="https://floridakeys.noaa.gov/mgmtplans/">https://floridakeys.noaa.gov/mgmtplans/</a>.

II. FKNMS 2019 DEIS--The Restoration Blueprint Process

1. Notice of Intent & Scoping

On April 19, 2012, NOAA and the U.S. Department of the Interior's
(DOI) U.S. Fish and Wildlife Service (USFWS) published a notice of
intent in the Federal Register. The notice informed the public of the
proposal to develop a Draft Environmental Impact Statement (DEIS),
announced five public scoping meetings, and solicited public comment.
ONMS and USFWS held public scoping meetings throughout the Florida
Keys, in Ft. Myers and Miami and accepted written comments from April
19, 2012, to June 29, 2012. The website provides a scoping comments
summary document \3\ and original comments can be found at the
<a href="http://regulations.gov">regulations.gov</a> docket for this notice of intent: NOAA-NOS-2012-0061.
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\3\ <a href="https://nmsfloridakeys.blob.core.windows.net/floridakeys-prod/media/archive/review/documents/scopingcommentssummary.pdf">https://nmsfloridakeys.blob.core.windows.net/floridakeys-prod/media/archive/review/documents/scopingcommentssummary.pdf</a>.
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In addition, as part of formal scoping, the FKNMS Sanctuary
Advisory Council played a significant role throughout this review and
the alternatives development process. Informed by their 2012 Regulatory
and Marine Zone Alternatives Development Work Plan \4\ and input from
four community working groups,\5\ the Sanctuary Advisory Council
provided over 200 recommendations for the sanctuary superintendent as
well as the USFWS Florida Keys National Wildlife Refuges Complex
manager to consider when developing alternatives related to regulations
and marine zones within the sanctuary. The website <a href="https://floridakeys.noaa.gov/review/workgroups.html">https://floridakeys.noaa.gov/review/workgroups.html</a> provides more information
and summary documents of the Sanctuary Advisory Council and working
groups.
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\4\ <a href="https://nmsfloridakeys.blob.core.windows.net/floridakeys-prod/media/archive/sac/othermaterials/121211draftworkplan.pdf">https://nmsfloridakeys.blob.core.windows.net/floridakeys-prod/media/archive/sac/othermaterials/121211draftworkplan.pdf</a>.
\5\ These working groups included 35 additional community member
participants, many of whom represented local, small Florida Keys
businesses. For details see: <a href="https://floridakeys.noaa.gov/review/workgroups.html">https://floridakeys.noaa.gov/review/workgroups.html</a>.
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2. Draft Environmental Impact Statement (DEIS)

Following the NOI and scoping, in accordance with the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.) and the NMSA
(16 U.S.C. 1434), NOAA prepared and released a DEIS and updated draft
management plan on August 20, 2019 (84 FR 45728, September 3, 2019).
The DEIS, also referred to as the Florida Keys National Marine
Sanctuary Restoration Blueprint, evaluated the environmental
consequences of four specific alternatives (see Table 1) and provided
an in-depth resource assessment. The alternatives in the DEIS
considered sanctuary boundary expansion to protect ecologically
connected habitats, proposed new or modified sanctuary-wide
regulations, proposed to establish new and modify existing marine zones
to protect additional sensitive and threatened coral reef, seagrass,
hardbottom habitats and species dependent on these habitats, and
included an updated draft management plan. The DEIS alternatives aim to
address threats and protect sanctuary resources by separating
conflicting uses and managing high intensity and concentrated use
activities while still allowing sustainable uses compatible with FKNMS
natural resource protection goals.
BILLING CODE 3510-NK-P

[[Page 42803]]

[GRAPHIC] [TIFF OMITTED] TP18JY22.000

BILLING CODE 3510-NK-C
All alternatives were consistent with NOAA's mission to conserve
and manage coastal and marine ecosystems and resources, would further
the

[[Page 42804]]

FKNMS mission to ``protect the marine resources of the Florida Keys
while facilitating human uses that are consistent with the primary
objective of sanctuary resource protection,'' would provide for more
comprehensive management and protection of important and vulnerable
ecological and cultural resources in the Florida Keys, and would
provide important opportunities for research and recovery of resources
from observed impacts. No significant adverse impacts to the human
environment were identified under any alternative considered in the
DEIS.
Due to broad public interest and the comprehensive nature of the
review of FKNMS regulations and management plan, NOAA separated the
DEIS and rulemaking processes to allow increased opportunity for public
and agency input to inform this proposed rule. This proposed rulemaking
combines individual aspects of each of the four alternatives presented
in the DEIS and is directly informed by the thousands of public and
agency comments received on the DEIS (see further discussion in part
II, section 3. Comments Received on the DEIS; Agency Consultations and
Other Coordination and part III. NOAA's Proposed Rule and How it was
Informed by Public and Agency Comment of this document).

3. Comments Received on the DEIS; Agency Consultations and Other
Coordination

This section provides a high-level summary of public and agency
coordination conducted and comments received on the 2019 DEIS. These
comments formed the foundation for many of the changes NOAA considered
and made between the 2019 DEIS Alternatives and this proposed rule.
a. Public Comments
NOAA accepted public comments on the DEIS from August 2019 to
January 2020 through <a href="http://regulations.gov">regulations.gov</a> for Docket NOAA-NOS-2019-0094 \6\
by mail, and in person during six public hearings and two Sanctuary
Advisory Council meetings in Key West, FL; Marathon FL; Key Largo/
Islamorada, FL; Coral Gables, FL; and Ft. Myers, FL. Public comments
are available for review at <a href="http://www.regulations.gov">www.regulations.gov</a> docket # NOAA-NOS-2019-
0094.
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\6\ <a href="https://www.regulations.gov/document/NOAA-NOS-2019-0094-0001/comment">https://www.regulations.gov/document/NOAA-NOS-2019-0094-0001/comment</a>.
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NOAA received 1,213 separate comments during the public comment
period, and several letter campaigns and petitions each with multiple
signatories for a total of well over 35,000 comments. The types of
organizations that commented include the following: state and federal
agencies, local municipalities, homeowners' associations, fishing
organizations, diving organizations, non-governmental organizations,
trade organizations, scientists, permit holders, and school groups.
The public comments are generally summarized below, and, where
relevant to this proposed rulemaking are included in the specific
sections below. A comprehensive summary of public comments along with
responses to comments will be included in the final environmental
impact statement (FEIS), which FKNMS anticipates will be published in
2022 following public review and comment on this proposed rule.
In general, public comments on the 2019 DEIS ranged from supporting
no action or the status quo (Alternative 1) to supporting more
protective actions than those proposed in Alternative 4. Many comments
supported elements of Alternatives 3 or 4 at a minimum to adequately
protect the Florida Keys ecosystem. Comments supportive of the
alternatives in the 2019 DEIS referred to increasing threats to
resources and a need to increase the size and associated regulations of
marine zones. Comments in opposition to the alternatives in the 2019
DEIS primarily spoke against additional marine zones and other
regulations that could potentially restrict user access. Many
commenters cited a need to address large regional threats, including
water quality, education, and enforcement.
b. FKNMS Advisory Council DEIS Review
The FKNMS Sanctuary Advisory Council hosted two meetings (October
and December 2019) to hear public comment on the DEIS alternatives.
From February through April 2020 the Sanctuary Advisory Council
deliberated to prioritize issues and provide NOAA with recommendations.
The range of Sanctuary Advisory Council input is well represented
in the range of general public comments received as outlined above and
in part III. NOAA's Proposed Rule and How it was Informed by Public and
Agency Comment, below, so is not further detailed here.
c. Agency Consultations and Other Coordination
i. U.S. Fish & Wildlife Service Consultation
NOAA and USFWS jointly published a Federal Register notice of
intent on April 19, 2012, to notify the public of the agencies' intent
to prepare a DEIS and to initiate the scoping process. USFWS
participated in the public scoping events and relevant community
working groups (Shallow Water Wildlife and Habitat Protection) and
provided subject matter expertise throughout development of the DEIS
and this proposed rule. In addition, NOAA initiated Endangered Species
Act consultation with USFWS Ecological Services in August 2019 and
received comment on June 22, 2020. USFWS Ecological Services concurred
with NOAA's determinations for potential effects to protected species
and noted that coordination with the Florida Keys National Wildlife
Refuges would be ongoing in the development of this proposed rule.
USFWS, through the Florida Keys National Wildlife Refuge Complex,
provided comments on all proposed Wildlife Management Areas that fall
within their National Wildlife Refuge boundaries. Highlights of USFWS
comments specific to regulatory and marine zone proposals, including
guiding principles that informed their comments, are included in the
relevant sections below.
ii. DOI Bureau of Ocean Energy Management (BOEM) Consultation
DOI's Bureau of Energy Management (BOEM) considered potential
impacts to offshore wind and determined there would be no effect from
NOAA's proposed sanctuary expansion in the Florida Keys. BOEM further
reviewed potential offshore oil and gas resources and due to
uncertainty provided a low, mid, and high potential impact
determination. BOEM determined effects to recoverable methane hydrates
would be zero. BOEM identified an expired Outer Continental Shelf
Marine Minerals lease less than 200 yards from the northern edge of the
proposed sanctuary boundary expansion area that overlaps with the
Atlantic Sand Aliquots, a potential sand resource site for beach
renourishment projects. FKNMS has since confirmed with the U.S. Army
Corps of Engineers and Florida Department of Environmental Protection
that the area has not been used as a sand borrow site since 2012.
iii. Regional Fishery Management Council Consultation: Gulf of Mexico
and South Atlantic
Pursuant to NMSA Section 304(a)(5), ONMS sent letters on August 22,
2019, to initiate consultation with the Gulf of Mexico Fishery
Management Council (GMFMC) and the South Atlantic Fishery Management
Council (SAFMC).

[[Page 42805]]

NOAA also provided multiple updates at the respective Council meetings
and various advisory and technical committees over the course of the
development of the DEIS and throughout the public comment period
following its release.
GMFMC submitted a comment letter dated February 21, 2020, and, in
general, noted the need for additional information to facilitate
stakeholder understanding of the proposals and engagement in the
process and acknowledged the importance of water quality and impacts to
coral and other important fish habitats.
SAFMC submitted a comment letter dated March 13, 2020 and, in
general, noted concern about water quality degradation and its effects
on the fisheries and coral reefs and the need for additional law
enforcement.
Where relevant, highlights of GMFMC and SAFMC comments specific to
regulatory and marine zone proposals are included in the sections
below.
iv. U.S. Department of Defense Coordination
The Department of the Navy provided a summary of their operational
environment and activities at Naval Air Station (NAS) Key West during
development of the 2019 DEIS (see Appendix F of the DEIS). The
Department of the Navy submitted a comment letter on March 2, 2020 and
has continued to provide additional information and clarification on
Navy activities in and adjacent to the sanctuary throughout the
development of this proposed rule. Navy comments included additional
information about existing operations in and adjacent to the sanctuary
and comments on specific zone proposals in the 2019 DEIS that may
impact naval operations are included in relevant sections below.
v. State of Florida Coordination
NOAA has worked closely with several Florida state agencies
throughout the public scoping process, and development of the DEIS and
this proposed rule. As 60 percent of the sanctuary is within Florida
State waters, the sanctuary is cooperatively managed with the State of
Florida, with the Department of Environmental Protection (DEP) and
Florida Fish and Wildlife Conservation Commission (FWC) as lead
agencies. The Florida Department of State through the State Historic
Preservation Office (SHPO) is also a key resource management partner
for sanctuary historical resources. NOAA coordinates with other state
agencies as needed on topic-specific issues. Several co-trustee
agreements outline a framework for this cooperative management
relationship. These agreements are currently under review and any
revised and/or new co-trustee agreements will be included in the FEIS.
Florida Department of Environmental Protection
Florida DEP staff has coordinated directly with sanctuary staff,
was represented by a Florida State Parks staff member at most Sanctuary
Advisory Council community working group meetings where they provided
management perspective and resource status and use data, and has an
official non-voting seat on the Sanctuary Advisory Council. DEP
submitted a comment letter to NOAA on the 2019 DEIS on May 1, 2020.
Generally, DEP comments acknowledged the valuable partnership with the
sanctuary and the role DEP's Division of State Lands plays with regards
to managing State sovereign submerged lands. DEP also commented that
they believed the areas of greatest public concern are water quality,
enforcement, habitat restoration, and education and outreach.
Highlights of DEP comments specific to regulatory and marine zone
proposals are included in the relevant sections below.
Florida Fish and Wildlife Conservation Commission
Florida FWC staff has coordinated directly with sanctuary staff,
notably with Florida Fish and Wildlife Research Institute (FWRI)
experts assigned to provide scientific and technical support for each
of the Sanctuary Advisory Council community working groups. Florida FWC
staff also served as a co-chair with FKNMS to facilitate one working
group, and has an official non-voting seat on the Sanctuary Advisory
Council. NOAA also provided multiple updates at FWC meetings over the
course of the development of the 2019 DEIS and throughout the public
comment period. In addition, FWRI research findings directly informed
various regulatory and zoning aspects of this proposed rule.
FWC submitted a comment letter to NOAA on the 2019 DEIS on April
29, 2020. FWC articulated a suite of guiding principles that informed
their comments. FWC further commented on several management plan issues
including law enforcement, education, water quality, coral reef
ecosystem and recovery, carrying capacity, and artificial reefs.
Highlights of FWC's comments specific to regulatory and marine zone
proposals are included in the relevant sections below.
Florida State Historic Preservation Office
The Florida State Historic Preservation Office (SHPO) and Florida
Division of Historical Resources staff have coordinated with FKNMS
staff to review and develop an updated draft Programmatic Agreement
under Section 106 of the National Historic Preservation Act regarding
Florida Keys National Marine Sanctuary Operations, Management, and
Permitting (Programmatic Agreement), which was included in the DEIS
(Appendix C) for public comment. In addition, the SHPO submitted a
comment letter to NOAA on the 2019 DEIS on January 31, 2020 that noted
the DEIS Preferred Alternative (Alternative 3) would sufficiently
address the sanctuary's National Historic Preservation Act Section 106
(54 U.S.C. 306108) responsibilities through implementation of the new
management plan and Section 106 Programmatic Agreement.

III. NOAA's Proposed Rule and How It Was Informed by Public and Agency
Comment

The following sections summarize the proposed rule including a
brief discussion of comments received on the 2019 DEIS and how they
informed the proposed rule. In addition to comments received the
proposed rule is also informed by additional agency input and
scientific and user data.
These sections are organized in the same way they were presented in
the 2019 DEIS/Restoration Blueprint:
1. sanctuary boundary;
2. sanctuary-wide regulations;
3. marine zone boundaries within the sanctuary; and
4. marine zone regulations.
A revised draft management plan is included as supporting material
and is available at the address and website listed in the ADDRESSES
section of this proposed rule.

1. Sanctuary Boundary

There are three principal areas where NOAA is proposing changes to
the FKNMS boundary. First, NOAA seeks to align the FKNMS seaward
boundary with the northernmost Area to Be Avoided (ATBA) seaward
boundary, which by doing so will also encompass two areas of the
existing ATBA that currently fall outside the sanctuary boundary (two
small areas of the ATBA along the Key West shipping channel); second,
to encompass the proposed modified Tortugas South Conservation Area
(which is currently referred to as the Tortugas South Ecological
Reserve); and third, to include a non-contiguous

[[Page 42806]]

area at Pulley Ridge. First, the boundary expansion to align with the
ATBA would result in a consistent regulatory boundary, which is
intended to provide clarity for mariners and additional ecosystem
protections. The ATBA areas within the sanctuary were established
through the FKNMSPA and prohibit operating any tank vessel or vessel
over 50 meters length within specified areas to protect coral reef
habitat from potential vessel impacts, including groundings. Second,
the proposal for boundary expansion in the Tortugas region takes into
account recently collected and compiled mapping coverage data and
remotely operated vehicle imagery in the southern portion of the
existing Tortugas South Ecological Reserve which show unique and
sensitive habitat features in this area (for more details on this
information see part III, section 3. Marine Zone Boundaries within the
Sanctuary, below). And third, NOAA intends to create a non-contiguous
sanctuary area that encompasses the southern portion of Pulley Ridge to
protect the deepest known photosynthetic coral reef system off the
coast of the continental United States. In addition to sanctuary-wide
regulations, NOAA is proposing a no anchor regulation in Pulley Ridge
that would apply to all vessels to reduce the risk of damage to this
fragile coral marine environment (for more details see part III,
section 3. Marine Zone Boundaries within the Sanctuary, below).
NOAA received many comments that supported the status quo (i.e., no
change to the overall sanctuary boundary). NOAA also received comments
specific to the sanctuary boundary proposals. Of those, the majority
were in support of providing additional protections in the Tortugas
region and Pulley Ridge, and supported aligning the sanctuary boundary
with the ATBA. One comment suggested that NOAA explore other ways to
protect Pulley Ridge from anchors. In response, NOAA is considering
pursuing International Maritime Organization adoption of a no anchoring
area designation for Pulley Ridge, which may affect NOAA's decision
about whether to include boundary expansion at Pulley Ridge in the
final rule. Comments also specifically opposed boundary expansion at
Pulley Ridge because this area is already protected as a GMFMC Habitat
Area of Particular Concern (HAPC), and questioned the need for
additional action and the ability to enforce regulations in this area.
NOAA's proposal considers the HAPC designation. The HAPC is limited to
fishing vessels and will not prevent anchoring and anchor damage by
non-fishing vessels like the ones documented in GMFMC's letter.
Specific to proposed sanctuary boundary expansion in Pulley Ridge, the
FMCs and NMFS emphasized a need to consider the interests of fishermen
who fish in Pulley Ridge but do not live in the Florida Keys and are
therefore potentially unaware of the sanctuary and associated
regulations and management goals. Throughout the scoping and 2019 DEIS
public comment process, FKNMS made a concerted effort to provide notice
and opportunity for engagement by these non-Florida Keys residents
through hosting scoping meetings, informational sessions, and public
comment meetings (e.g., Ft. Myers, FL).
Agency comments, specifically from FWC, requested that the proposed
boundary in the Tortugas region be shifted further north due to a lack
of knowledge about resources in the southern portion of the existing
Tortugas South Ecological Reserve (see part III, section 3. Marine Zone
Boundaries within the Sanctuary for details as to why NOAA is not
proposing this marine zone boundary change).

2. Sanctuary-Wide Regulations

This section describes regulations that would apply throughout the
sanctuary (i.e., sanctuary-wide). This section includes a discussion of
how the proposed rule was informed by comments received on the
sanctuary-wide regulatory alternatives proposed in the 2019 DEIS and
additional relevant information, including discussing why some
regulatory alternatives were not carried forward in these proposed
regulations.
a. Live Rock Aquaculture
NOAA's proposed rule maintains the current exception for live rock
aquaculture from sanctuary-wide regulatory prohibitions if authorized
by a submerged lands lease issued by the Florida Department of
Agricultural and Consumer Services or a National Marine Fisheries
Service (NMFS) Aquacultured Live Rock permit, which is issued under the
Magnuson-Stevens Fishery Conservation and Management Act (MSA)
authority in conjunction with the U.S. Army Corps of Engineers via the
Programmatic General Permit SAJ-71. Additionally, NOAA proposes to
develop a Memorandum of Agreement (MOA) with NMFS and Florida
Department of Agricultural and Consumer Services related to live rock
aquaculture in the sanctuary. This MOA would enhance inter-agency
collaboration, clarify the process by which such proposals are
reviewed, and ensure that requirements to protect sanctuary resources
are included in live rock aquaculture permits. The proposal to develop
the MOA is included in the revised draft management plan, which is
included with this proposed rule as a supporting document.
The DEIS included a regulatory alternative that would have required
live rock aquaculture operations to obtain a separate sanctuary permit,
in addition to state or NMFS permits. However, public comments
supported either (1) maintaining the status quo (i.e., no change from
current regulations), which provides an exception for permitted live
rock aquaculture operations from sanctuary prohibitions, or (2)
developing a MOA with NMFS and Florida Department of Agricultural and
Consumer Services, which was the preferred alternative (Alternative 3)
in the DEIS. After considering public comment, NOAA believes that a MOA
will allow NOAA to ensure protection of sanctuary resources through
inter-agency collaboration without requiring a separate sanctuary
permit.
b. Discharge Regulation Exception
NOAA proposes to update the existing discharge regulation to
explicitly prohibit discharge by cruise ships, and to simplify and
clarify terminology by removing the exception for ``exhaust gas'' and
``water generated by routine vessel operations.'' Each of these are
explained in more detail below.
NOAA has a long history of regulating various discharges under the
NMSA to ensure that the discharges do not degrade water quality within
the sanctuary. When the original FKNMS regulations were implemented in
1997, NOAA established prohibitions against discharging most items into
the sanctuary, with exceptions for bait or chum, biodegradable effluent
from approved marine sanitation devices, graywater and deck washdown
during routine vessel operations, and vessel cooling water and engine
exhaust. In sanctuary zones, such as Sanctuary Preservation Areas and
Ecological Reserves, NOAA established more stringent regulations to
only allow discharge of vessel cooling water and engine exhaust. The
1997 regulations also prohibited the discharge of material or other
matter from outside the sanctuary that enters and injures a sanctuary
resource. In 1999, the U.S. Environmental Protection Agency (EPA)
established a No Discharge Zone under

[[Page 42807]]

the Clean Water Act (CWA) for vessel sewage in Key West, Florida,
within State waters, in response to a petition from the State. The No
Discharge Zone prohibited the discharge of untreated or treated vessel
sewage, including from marine sanitation devices. Subsequently EPA
expanded the No Discharge Zone to all State waters of the sanctuary (67
FR 35735; \7\ May 21, 2002). In 2010, NOAA removed the exception for
discharges from marine sanitation devices in the entire sanctuary under
the NMSA, thereby making all sanctuary waters a no discharge zone under
the NMSA (75 FR 72655; \8\ Nov. 26, 2010). Comments on NOAA's
rulemaking at that time also supported banning harmful vessel graywater
discharges, especially from large cruise ships and cargo vessels. While
NOAA did not ban graywater discharges in 2010, NOAA responded by noting
that additional water quality regulations may be considered in future
FKNMS management plan reviews.
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\7\ <a href="https://www.govinfo.gov/app/details/FR-2002-05-21/02-12283">https://www.govinfo.gov/app/details/FR-2002-05-21/02-12283</a>.
\8\ <a href="https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/management/fr/75_fr_72655.pdf">https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/management/fr/75_fr_72655.pdf</a>.
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Under its NMSA authorities, NOAA now proposes to further restrict
discharges from cruise ships while in the sanctuary. Specifically, the
proposed rule would prohibit discharges of any material or other matter
from a cruise ship, except cooling water. This change would result in
prohibiting the discharges of graywater and deck washdown from cruise
ships, which are currently exempt from the prohibitions. Cruise ships
are among the largest vessels traversing the sanctuary and the source
of a considerable volume of discharges. Scientific literature discusses
the adverse effects of various cruise ship discharges on the marine
environment, including brine from desalination equipment, ballast
water, and spa/pool water, among others. NOAA believes that it is
feasible for cruise ships to successfully avoid discharging in
sanctuary waters because cruise ship operations in sanctuary waters are
extremely limited to entering and leaving the port of Key West. In
addition, certain routine maintenance activities may occur while a
cruise ship is in port within the sanctuary, including hull cleaning or
scraping and application of antifouling paint, which may alter water
quality. These activities may occur in other ports in less sensitive
ecosystems outside of the sanctuary.
This proposed rule is informed by information received through
coordination with the EPA, notably the agency's studies related to
cruise ship discharges and vessel operations in other sensitive marine
environments (classified as ``Waters Federally Protected wholly or in
part for Conservation Purposes'' under the EPA Vessel General Permit).
NOAA also considered information related to the successful management
of cruise ship operations in certain National Parks, including Glacier
Bay, Alaska where, through concession agreements, cruise ships operate
with higher environmental standards when in park waters.
NOAA determined that the 2019 DEIS alternatives, which proposed
instead to specify certain discharges that would be allowed by cruise
ships (e.g., ``clean wash water'') would be extremely difficult to
define based on changing industry standards. The use of such terms
could be interpreted differently among stakeholders, which could create
compliance and enforcement challenges. Further, NOAA reasonably
believes there may be new and emerging technologies and activities on
cruise ships that may result in discharges into ocean waters, such as
the increased use of exhaust gas scrubber systems, the impacts of which
are not fully defined in the scientific literature. As such, instead of
attempting to itemize every current and possible future discharge and
assess whether it would be prohibited or not, NOAA is proposing to
apply the precautionary principle by prohibiting all discharges from
cruise ships, except for cooling water.
NOAA would continue to provide an exception to the discharge
prohibition for cooling water from all vessels, including cruise ships,
because it is currently technologically infeasible for cruise ships to
operate without discharging cooling water. However, this exception does
not apply if cooling water is mixed with other substances. In
particular, cooling water that is mixed with any other substances, such
as exhaust gas cleaning systems (EGCS) scrubber wash water, would be
prohibited.
NOAA proposes to remove the exception for ``exhaust gas'' from its
discharge prohibitions for all vessels to reduce confusion. NOAA
believes the original intent of this exception was to allow the
discharge of boat engine wet exhaust, rather than exhaust emissions,
since NOAA does not regulate air emissions. The term ``cooling water''
encompasses ``boat engine wet exhaust,'' which is defined in the EPA
Vessel General Permit (Section 2.2.21) as the ambient water that is
injected into the exhaust for cooling and noise reduction purposes and
then discharged, typical of marine outboard engine operation. NOAA does
not believe ``boat engine wet exhaust'' or ``cooling water'' would
include any other discharges including EGCS scrubber wash water.
NOAA also proposes to simplify the exception for discharges of
``water generated by routine vessel operations.'' The current
regulatory exception for discharges of ``water generated by routine
vessel operations (e.g., deck wash down and graywater as defined in
section 312 of the CWA), excluding oily wastes from bilge pumping,''
does not clearly explain what types of discharges are allowed.
Specifically, the term ``water generated by routine vessel operations''
is not defined in FKNMS or other agency rules (compared with the
terminology used by the Clean Water Act for ``discharges incidental to
the normal operation of a vessel''), creating ambiguity as to what, if
any, additional discharges are meant to be excepted from the regulatory
prohibition besides deck washdown and graywater. Based on a review of
the original regulations and management plan for the sanctuary, NOAA
believes the intention of this exception was simply to allow discharges
of cooling water (including boat engine wet exhaust), deck washdown,
and graywater, and to explicitly prohibit the discharge of oily bilge
wastes. At this time, NOAA is proposing to make technical corrections
to the discharge exceptions to simplify this provision to clearly
explain that cooling water, deck washdown, and graywater are allowable
discharges from vessels other than cruise ships, but oily wastes from
bilge pumping are not. NOAA continues to intend that the terms
``cooling water,'' ``deck washdown,'' ``graywater,'' and ``oily wastes
from bilge pumping'' have the same meaning as these terms pursuant to
section 312 of the CWA, but believes that inclusion of the citation to
that statute in the regulatory text is unnecessary. Discharges of fish
and fish parts when part of a traditional fishing activity are allowed
under another exception to the discharge prohibitions and would not
change.
Of note, on December 4, 2018, Congress passed the Vessel Incidental
Discharge Act (VIDA) (Title IX of the Frank LoBiondo Coast Guard
Authorization Act of 2018). VIDA requires the EPA to develop new
national standards of performance for commercial vessel incidental
discharges and the United States Coast Guard to develop corresponding
implementing regulations. At the time of publication of this NMSA
proposed rule for the

[[Page 42808]]

FKNMS, implementing regulations for VIDA have not yet been published.
However, NOAA acknowledges that when those regulations are finalized,
there may be additional discharge prohibitions placed on vessels
operating in federally protected waters such as national marine
sanctuaries. NOAA would review any VIDA implementing regulations to
ensure they are consistent with the sanctuary's primary goal of
resource protection and to determine whether conforming changes to the
sanctuary regulations may be necessary and appropriate.
During the 2019 DEIS process, public comments strongly supported
the need to take additional action related to sanctuary water quality;
this included support for revising the existing discharge regulation
exceptions to prohibit graywater discharges from cruise ships. Comments
also requested clarification about specific discharges that may be
allowed and required technological standards (e.g., closed loop or
hybrid exhaust gas cleaning systems). NOAA has intended to address this
concern through simplifying the language and intent of the cruise ship
discharge prohibition from the 2019 DEIS proposal to this proposed
rule.
c. Temporary Regulation for Emergency and Adaptive Management
NOAA proposes updating the existing regulations to allow for rapid,
temporary rulemaking to facilitate time-sensitive, adaptive management
and respond to emergencies. First, the proposed rule would expand the
time frame during which any temporary regulation could remain in place
from 60 days to six months, with the option for one additional
extension of six months (rather than the currently authorized
additional 60 days). While NOAA's proposal is to extend the potential
time frame that a temporary regulation could be in effect, NOAA would
consider the specific circumstances and craft any temporary regulation
for the appropriate duration, which may be less than the maximum time
allowed under this proposed regulation. Second, this proposed rule
outlines three categories for which NOAA would issue temporary
regulations (as outlined below in this section). Third, this proposed
rule would set out the procedure by which a temporary regulation would
be promulgated. This includes the requirement that the agency provide a
justification for the time sensitivity of the action to comply with the
Administrative Procedure Act (5 U.S.C. 553(b)(B)). This procedure also
(1) addresses notice and comment requirements, and (2) requires State
approval for any temporary regulations proposed in State waters. NOAA
intends to work with its state partners to clarify the process for
actions in State waters in co-trustee management agreements.
NOAA proposes three categories for temporary regulation to protect
sanctuary resources when time is of the essence. The first category
would allow for temporary regulations to prevent or minimize
destruction of, loss of, or injury to sanctuary resources from any
human-made or natural circumstances, including a concentration of human
use, change in migratory or habitat use patterns, vessel impacts,
natural disaster or similar emergency, disease, or bleaching. Second,
temporary regulations may be used to initiate restoration, recovery, or
other activities where a delay would undermine the success of the
activity. Lastly, NOAA may use temporary regulations to initiate
research where an unforeseen event produces an opportunity for
scientific research that may be lost if it is not initiated
immediately.
Importantly, temporary regulations would only allow NOAA to shorten
or bypass minimum public comment periods if NOAA makes a finding of
``good cause'' that such procedures are ``impracticable, unnecessary,
or contrary to the public interest'' pursuant to Administrative
Procedure Act (5 U.S.C. 553(b)(B)). This finding must be made before
promulgating a temporary regulation without following the full
rulemaking procedures, including public notice and comment. While NOAA
must make this required finding before promulgating a temporary
regulation under this proposal, NOAA believes that all three of the
temporary regulation categories will satisfy this good cause
requirement because each of these categories requires NOAA to take
rapid, immediate actions in order to address an important and time-
sensitive environmental need. However, when any given issue arises,
NOAA will review it on a case by case basis to determine if application
of this proposed rule is consistent with the Administrative Procedure
Act. Where the agency determines that time is available without
jeopardizing the effectiveness of the action, NOAA will follow notice
and comment procedures, even for temporary actions.
Public comments included support for NOAA's authority to respond to
emergencies and to allow NOAA to be more responsive to emerging issues
that would benefit from immediate management action. NOAA believes this
proposal provides a framework for such immediate actions where one did
not previously exist. Comments also included concerns that the proposal
to expand the time that a temporary regulation could be in place (from
a maximum of 120 days to a maximum of one year) would subvert the
public comment process required for rulemaking. NOAA is addressing this
concern in this proposed rule by identifying categories for which
temporary regulations may be promulgated for the public to provide
comments, and has incorporated the existing requirements from the
Administrative Procedure Act to demonstrate good cause. Some commenters
recommended the sanctuary consider different time frames for sanctuary-
wide versus marine zone emergencies. NOAA believes different maximum
time frames would hamper NOAA's management flexibility. NOAA has
established a maximum time frame (six months with one six-month
extension), but NOAA would consider shorter time frames where
appropriate to meet management needs. Comments also voiced concerns
that ``emergency'' was not clearly defined. NOAA believes it would be
clearer and more efficient to establish well-defined categories,
criteria, and processes for temporary regulations to respond to time-
sensitive needs to manage sanctuary resources, rather than attempt to
define ``emergency.''
State agency, Gulf of Mexico Fishery Management Council, and South
Atlantic Fishery Management Council comments noted concern about
application of the emergency regulation to fishing and related
businesses; however, the comments also supported aligning the time
frame (up to one year) with regulations that provide for emergency
actions in section 305(c) of the MSA. NOAA has chosen to increase the
time frame to harmonize with the emergency time frames as outlined in
section 305(c) of the MSA, as well as other national marine sanctuary
regulations. State agency comments emphasized the need for Governor
approval for all proposed temporary regulations in State waters and
recommended that a process be developed and codified in co-trustee
management agreements for FWC and the Governor to engage on temporary
regulations in State waters prior to approval. NOAA proposes to
maintain the requirements for Governor approval for temporary
regulations in State waters and proposes to work with FWC to develop a
streamlined co-trustee process.
While NOAA is proposing these regulations to allow greater

[[Page 42809]]

responsiveness to emerging issues and in response to public comment, in
the history of the sanctuary FKNMS has only issued emergency
regulations on three separate occasions. In 1997, the emergency
regulation was used to prohibit anchoring of vessels 50 meters or
greater in an area of Tortugas Bank, which was subsequently established
through a full rulemaking process. In 2002, an area of approximately
0.58 acres was identified as an area to avoid for a period of 104 days
at the M/V Wellwood grounding site. Finally, in 2003, two areas
totaling 425 acres were closed for a period of 60 days to prevent
additional injury to living coral in an area impacted by a rapidly
spreading coral disease outbreak.
d. Historical Resources Permitting
NOAA proposes to update historical resource permitting by replacing
the current survey/inventory, research/recovery, and deaccession/
transfer permit categories with a new, single archaeological research
permit category. The proposed rule would define the term
``archaeological research,'' explain criteria that must be met in order
for NOAA to issue an archaeological research permit (including
applicant qualifications), and prescribe certain conditions that would
apply to these permits. This would align sanctuary historical resource
permitting with state permitting regulations for archaeological
research promulgated under Chapter 1A-32, Florida Administrative Code,
and optimize compliance with the Federal archeology program.\9\ The
Federal archaeology program is a general term used to encompass
archeological activities on public land, as well as archaeological
activities for federally financed, permitted, or licensed activities on
non-federal land. Its foundation is based upon historic preservation
laws like the National Historic Preservation Act and Archaeological
Resources Protection Act. Dozens of federal agencies, including NOAA,
undertake archeological activities and contribute to the Federal
archeology program. The Secretary of the Interior is charged with
providing general guidance and coordination for all of Federal
archeology.
---------------------------------------------------------------------------

\9\ <a href="https://www.nps.gov/archeology/sites/fedarch.htm">https://www.nps.gov/archeology/sites/fedarch.htm</a>.
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The proposed archaeological research permit category would simplify
permitting research focused on historical resources in the sanctuary,
including the State waters portion of the sanctuary. While the current
system requires separate NOAA and Florida Division of Historical
Resources permits for archaeological research activities in State
waters, the proposed archaeological research permit category combined
with the process set forth in the draft Programmatic Agreement under
Section 106 of the National Historic Preservation Act regarding Florida
Keys National Marine Sanctuary Operations, Management, and Permitting,
would create a single review process for most types of archaeological
research in State waters. Research that results in adverse effects to
historic properties would not qualify for this simplified permitting
process. For example, adverse effects to historical resources may
result from site excavation in which case the proposed activity would
need to be separately permitted by the State and sanctuary.
The current permitting system is unnecessarily complicated and
confusing to applicants as it artificially bisects the archaeological
research process. Division of permits into either survey/inventory or
research/recovery often resulted in insufficient research plans to meet
project goals. The proposed archaeological research permit category
would require that applicants commit to following an explicit statement
of objectives and that project methods be chosen to gather the
information required to meet the stated objectives.
The proposed archaeological research permit category would also
require that an applicant be the project's supervising archaeologist
whose qualifications meet the Secretary of the Interior's Professional
Qualification Standards for archaeology. This aligns with the required
credentials for investigators receiving a state archaeological research
permit under Chapter 1A-32, Florida Administrative Code. Additionally,
the proposed permit category would require that the supervising
archaeologist be on site for any excavation and/or artifact recovery.
As a result of these proposed changes, NOAA believes that the quality
of the research, both proposed and conducted, will be improved. NOAA
anticipates that the reporting of research results will also be of
higher quality when directed by a professional archaeologist with the
required field experience. For the above reasons, NOAA believes that
the proposed archaeological research permit category with associated
application and review criteria will increase the protection of
historical resources throughout the sanctuary.
In addition to the above changes, NOAA proposes to eliminate the
permit category allowing for the deaccession/transfer of historical
resources. Eliminating the deaccession/transfer of historical sanctuary
resources is consistent with Chapter 1A-31, Florida Administrative
Code, which states that the State of Florida will not issue permits for
exploration and recovery of historic shipwreck sites by commercial
salvors or for transferring objects recovered by commercial salvors for
areas of the Florida Keys National Marine Sanctuary. Eliminating the
deaccession/transfer permit category is also consistent with the
Secretary of the Interior's Standards and Guidelines for Federal Agency
Historic Preservation Programs and Standards for the Treatment of
Historic Properties, which focus on the preservation and long-term
curation of any recovered historical resources for the benefit of the
public (as opposed to private ownership). Likewise, this approach is
consistent with the Abandoned Shipwreck Act Guidelines, which recommend
that, at a minimum, state-owned shipwrecks located within a national
marine sanctuary or in other areas (like habitat areas or coralline
formations) protected under Federal or State statute, order or
regulation not be available for commercial salvage, treasure hunting or
personal collecting. These Federal guidelines, and the statutes that
underpin them, are part of the Federal archaeology program and align
with NOAA's long-standing classification and protection of historical
resources as sanctuary resources under the NMSA.
To date, no deaccession/transfer permit has ever been issued and,
as such, the impact of this change will be minimal. NOAA intends to
continue engaging directly with current sanctuary historical resource
permit holders and entities with pre-existing, valid rights of access
to clarify how updated historical resource permitting regulations would
or would not affect potential future activities.
The DEIS (Appendix C) also included the draft Programmatic
Agreement under Section 106 of the National Historic Preservation Act
regarding Florida Keys National Marine Sanctuary Operations,
Management, and Permitting (Programmatic Agreement), for public
comment. Once finalized, this Programmatic Agreement will be a formal
agreement between NOAA, the Florida SHPO, and the Advisory Council on
Historic Preservation, and will specify procedures NOAA will follow to
satisfy National Historic Preservation Act (NHPA) Section 106
obligations for sanctuary operations, management, and permitting. The
draft Programmatic Agreement would provide for streamlined review of
certain archaeological research permits,

[[Page 42810]]

as well as certain sanctuary undertakings that would not adversely
affect historic properties.
This proposal responds to public and agency comments that supported
updating sanctuary historical resources permitting to align with the
State of Florida regulations, creating a consistent approach to
permitting historical resource investigations in both state and federal
sanctuary waters of the sanctuary. NOAA determined that the benefit of
updating the FKNMS historical resource permitting program outweighed
public comment supporting the status quo.
NOAA received agency comments from the Florida SHPO that indicated
that the proposed permitting update presented as DEIS Preferred
Alternative (Alternative 3) would sufficiently address the sanctuary's
National Historic Preservation Act Section 106 responsibilities in
combination with the new management plan and draft Section 106
Programmatic Agreement. The SHPO also acknowledged that when finalized
and executed, the Programmatic Agreement would reinforce the
sanctuary's and state's shared stewardship responsibility for
historical resources and would also ensure NOAA's consistent and
streamlined adherence to National Historic Preservation Act Section 106
regulations. The SHPO noted that comments from other interested parties
and the public should be addressed when finalizing the Programmatic
Agreement language.
e. Fish Feeding
NOAA proposes to prohibit the feeding and attracting of fish,
including sharks, or other marine species, from any vessel or while
diving, and to define ``diving,'' and ``feeding.'' The term
``attracting'' is defined in National Marine Sanctuary System-wide
regulations at 15 CFR 922.11.\10\ The regulatory text in the proposed
rule has been developed with additional input and expertise from NMFS
staff related to impacts to sharks and shark depredation, human safety
concerns, and compliance and enforcement. NOAA has not provided an
express ``grandfather'' clause for current fish feeding operations
(i.e., an exemption for pre-existing operators), although NOAA received
some comments requesting such a provision. Instead, NOAA would consider
issuing general permits to pre-existing eco-tour operators who are able
to satisfy all general permit application requirements. Any permits
would contain specific terms and conditions to protect sanctuary
resources. In order to assist NOAA in identifying appropriate terms and
conditions for such permits, NOAA seeks comments on the numbers, scale,
and types of activities related to feeding and attracting fish,
including sharks, or other marine species that currently occur within
the sanctuary.
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\10\ As discussed above, this rule modifies the regulations in
15 CFR part 922 that will be amended by an interim final rule
published at 87 FR 29606 (May 13, 2022). All regulatory references
to 15 CFR part 922 in this proposed rule are to be read as they will
be amended by the interim final rule.
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NOAA carefully considered public comments regarding extending this
prohibition to shore-based operations (i.e., dock-side fish feeding);
however, NOAA is not proposing to regulate shore-based activity at this
time because additional information is needed about its scope, scale,
and economic impact to develop appropriate regulations.
The proposed new fish feeding regulation would not affect the
existing regulatory exception that allows discharge of fish, fish
parts, chumming materials, or bait that is used or generated while
conducting traditional fishing in the sanctuary.
NOAA proposes modifying the regulatory definition for traditional
fishing to clarify that the 1996 FEIS and management plan describe what
activities are considered ``traditional fishing.'' In addition, in
response to agency and FMC comments and in recognition of decades of
fishery management by state and federal partners that promotes gear
innovations to reduce bycatch and other unintended effects of fishing,
ONMS plans to work with NMFS, FWC, and the Gulf of Mexico and South
Atlantic FMCs on an updated Protocol for Cooperative Fisheries
Management. The updated Protocol would further clarify what traditional
fishing activities consist of and develop a transparent process by
which allowing new or modified fishing activities, such as those that
reduce impacts to sanctuary resources, and other relevant changes to
fisheries management, can be evaluated for potential future rulemaking.
Public comments generally supported additional prohibitions on fish
feeding in the sanctuary. Other comments opposed additional regulation
because of the potential loss of eco-tour and educational opportunities
and questioned the impacts of fish feeding on the environment, human
safety, and fish and shark behavior. In preparing this rule, NOAA has
carefully considered available literature on the effects of fish
feeding, which include potentially harmful impacts on fish behavior,
including shark behavior, and believes that the regulation is
necessary. But, as stated above, NOAA would consider issuing permits to
pre-existing eco-tour operators in order to minimize the economic
impacts of this provision. Agency comments indicated support for
regulating fish feeding and, specifically, FWC noted it would consider
modifying its existing fish feeding regulation in State waters to be
consistent with a sanctuary regulation.
f. Grounded and Deserted Vessels, and Harmful Matter
NOAA proposes including new regulations prohibiting anchoring,
mooring, or occupying a vessel at risk of becoming derelict, or
deserting a vessel aground, at anchor, or adrift in the sanctuary. The
proposed rule would also prohibit leaving harmful matter aboard a
grounded or deserted vessel, and would define ``at risk of becoming
derelict'' and ``deserting.'' The term ``harmful matter'' is defined in
National Marine Sanctuary System-wide regulations at 15 CFR 922.11.
These proposed regulations and associated definitions align with
existing state regulations that outline conditions for at-risk vessels,
and include specific timeframes for giving notice that a vessel has
gone aground and for submitting a salvage plan to FKNMS. In addition,
these notification requirements would apply anytime a vessel operator
strikes the seabed regardless of whether or not sanctuary resources are
injured.
NOAA and Florida DEP have an existing Co-Trustee Agreement for
Civil Claims that would be updated to reflect these new regulations and
processes, and to facilitate coordination and response to grounded and
deserted vessels in State waters.
Finally, the revised draft management plan includes additional
details for how NOAA would engage with towing and salvage operators to
develop best management practices and a permitting process for removing
grounded and deserted vessels.
Public comments were generally supportive of NOAA developing new
regulations to address grounded and deserted vessels; however, many
commenters noted that NOAA should ensure that definitions and
application of any proposed regulations are consistent with state
regulations and enforcement authorities, particularly related to the
term ``at risk vessel.'' NOAA agrees and the proposed regulations are
consistent with state regulations. Commenters also noted that
enforcement of a new regulation could prove challenging given the
number of deserted vessels in the sanctuary and broad geographic area
where they are

[[Page 42811]]

found. NOAA would collaborate with the State, county, and other
partners due to the challenging scope of this issue.
State agency comments were supportive of regulating grounded and
deserted vessels, in part, if it builds upon existing state regulations
including Florida's Coral Reef Protection Act and relevant FWC boating
regulations.
g. Large Vessels and Overnight Use of Mooring Buoys
NOAA proposes to include a new regulation that requires large
vessels to use designated large vessel mooring buoys and small vessels
to use regular mooring buoys. An associated new definition for ``large
vessel'' would also be added. Additional information about sanctuary
mooring buoy management, including plans to engage user groups to help
identify areas of use, numbers of users, and placement of mooring
buoys, is included in the revised draft management plan.
Public and agency comments generally supported delineating large
and small vessel mooring buoys and using the availability of such buoys
to limit access to sensitive areas that have been damaged by
overcrowding and intensive use. Commenters also recommended boater
education courses to increase boater knowledge regarding proper use of
and regulations associated with mooring buoys. The sanctuary currently
has a voluntary boater education course and participates in and
provides sanctuary specific content for boater training courses hosted
by the U.S. Coast Guard Auxiliary and others.
Public and agency comments were generally not supportive of
prohibiting overnight use of mooring buoys largely due to issues of
public safety, public access, and enforcement. Some public comments,
however, highlighted concern for new and increasing practice of
anchored and moored vessels being used for overnight accommodation
(e.g., vacation rental by owner) and possible impacts from such use,
including prohibited discharges. DEP comments also suggested limiting
visitors to a maximum 14-day stay to prevent long-term use of moorings,
which would be consistent with Florida State Parks rules. While the
proposed rule does not include a regulation prohibiting overnight use
of mooring buoys at this time, NOAA may reconsider this proposal in the
future if conditions warrant.
h. Military Exemption
NOAA proposes revising the existing military exemption regulation
in two ways. First, NOAA would update the list of exempted military
activities from the list found in the 1996 Final Environmental Impact
Statement and Management Plan (FEIS) for the sanctuary to the
forthcoming Final Environmental Impact Statement and Management Plan
for the sanctuary. Second, NOAA would clarify the process for new
military activities to be exempted from sanctuary prohibitions. Each
proposed change is described below.
Current FKNMS regulations reference military activities in the
sanctuary and, for certain activities, provide an exemption from
sanctuary prohibitions. The current exemptions for Department of
Defense (DOD) activities in the sanctuary reference existing classes of
military activities which were conducted prior to the effective date of
these regulations, as identified in the Environmental Impact Statement
and Management Plan for the Sanctuary. This language refers to the
description of military activities contained in the 1996 FKNMS FEIS
(Volume II, pages 93-96). NOAA proposes updating this exemption to
include military activities currently conducted within the sanctuary
that NOAA has determined are appropriate for exemption because the
activities are not likely to injure sanctuary resources or will be
carried out in a manner that avoids to the maximum extent practical any
adverse impact on sanctuary resources and qualities. An updated list
that reflects current DOD activities conducted in the sanctuary that
NOAA considers to be exempt is provided in the revised draft management
plan. The updated list includes activities that are already exempt, the
effects of which were analyzed in the 1996 FKNMS FEIS, and will be
included in the 2022 FEIS. In addition, the updated list includes one
new activity, the effects of which were analyzed in the Navy's 2018
Atlantic Fleet Testing and Training Environmental Impact Statement and
will be incorporated by reference in the forthcoming FEIS. The updated
list of exemptions does not include DOD activities that occur outside
of the sanctuary, or DOD activities that occur inside the sanctuary but
are not prohibited by FKNMS regulations. The updated exemptions would
apply to activities that occur within the current sanctuary boundary
and the proposed boundary expansion area.
Second, NOAA proposes revising the existing FKNMS military
exemption regulation to clarify how new or modified DOD activities may
be exempted from the prohibitions in the future. NOAA commits to
working with DOD to consider exempting new activities from the
prohibitions. NOAA would use the same standard to exempt new activities
as used to update the list of DOD exemptions in the forthcoming FEIS.
In other words, NOAA would exempt a new activity from the prohibitions
if NOAA determines such activity is not likely to injure sanctuary
resources or will be carried out in a manner that avoids to the maximum
extent practical any adverse impact on sanctuary resources and
qualities. Any changes to this list of exempted military activities
would only occur after compliance with all applicable laws, such as the
Administrative Procedure Act and NEPA, as necessary, and after public
notice and comment, as applicable.
NOAA has removed from the military exemption regulation reference
to NMSA 304(d) Interagency Cooperation. The regulation previously
referenced 304(d) as the mechanism for exempting new DOD activities
from the prohibitions. However, NOAA has removed the reference to the
304(d) Interagency Cooperation process because 304(d) applies to all
federal agency actions that are likely to destroy, cause the loss of,
or injure sanctuary resources, including those conducted by DOD,
regardless of whether the specific actions are prohibited by sanctuary
regulations. Additionally, certain activities that DOD may seek to
exempt from the prohibitions would not require 304(d) consultation if
the activities are not likely to injure sanctuary resources.
For those DOD activities that will be exempted and that are likely
to injure sanctuary resources, NOAA believes the information DOD
provided to NOAA, which was included in Appendix F of the FKNMS 2019
DEIS, satisfies the requirements of a sanctuary resource statement
under the NMSA 304(d) Interagency Cooperation provision. Therefore,
NOAA will document in the forthcoming FEIS DOD's compliance with the
NMSA 304(d) process for all activities that the DOD conducts inside or
outside of the sanctuary that are likely to injure sanctuary resources.
If a DOD activity described in the 2022 FEIS for this rule is modified,
or new information becomes available, such that the activity is likely
to destroy, cause the loss of, or injure a sanctuary resource or
quality in a manner greater than considered in the FEIS, DOD would
reinitiate 304(d) consultation.
Since FKNMS designation, DOD has coordinated closely and
successfully with ONMS informally as well as through the Interagency
Cooperation requirement under section 304(d) of the NMSA to ensure that
DOD operations in

[[Page 42812]]

the Florida Keys that are essential to national defense are allowed to
continue and are conducted to avoid and minimize impacts to sanctuary
resources to the greatest extent possible. NOAA is committed to
continued partnership with DOD to facilitate mission-critical defense
activities in the sanctuary, including reviewing and updating new or
changing DOD activities that may warrant exemption from FKNMS
regulations.
i. Technical Revisions to Sanctuary Regulations
NOAA proposes including technical revisions and updates to
regulatory definitions, terms, and provisions (see the general summary
included in Appendix B of the DEIS). As this is the first comprehensive
review of FKNMS regulations since they were implemented in 1997, NOAA
has undertaken a thorough review of all existing regulations. These
technical changes can be grouped in three broad categories described
below.
Definitions and Terms would be updated for greater consistency with
the State of Florida Administrative Code (F.A.C.), National Marine
Sanctuary System-wide regulations, other sanctuary-specific
regulations, proposed FKNMS regulations, and the revised management
plan. For example, due to proposed new regulations, several new terms
and definitions have been added including but not limited to
``anchoring,'' ``archaeological research,'' ``at risk of becoming
derelict,'' ``continuous transit,'' and ``deserting.'' These new terms
are explained in the relevant subsections describing the new
substantive regulatory changes in this proposed rule (i.e., ``at risk
of becoming derelict'' is described in subsection 2.f. of this
document). Several terms that are no longer needed or are being
replaced with new terms would be eliminated, such as ``Ecological
Reserve,'' ``no access buffer,'' and ``closed.'' Terms that are now
defined in National Marine Sanctuary System-wide regulations would be
removed, including ``seagrass'' and ``vessel.''
General Editorial changes would be made to clarify, remove
redundancy, and reorganize and simplify regulations where possible to
make them easier to understand. These changes are solely editorial,
grammatical, or stylistic, and no new requirements are established by
these changes.
Editorial changes to permitting regulations would be made to reduce
redundancy with National Marine Sanctuary System-wide permitting
regulations, which were recently published for consolidation and
updating to 15 CFR subpart D (87 FR 29606; \11\ May 13, 2022). These
changes are solely editorial, and no new requirements are established
by these changes.
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\11\ <a href="https://www.govinfo.gov/content/pkg/FR-2022-05-13/pdf/2022-09626.pdf">https://www.govinfo.gov/content/pkg/FR-2022-05-13/pdf/2022-09626.pdf</a>.
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First, since the 1997 FKNMS regulations, ONMS has published
application guidelines to aid potential applicants for ONMS permits.
The application guidelines \12\ explain the necessary parts of an
application and how to submit it. Updated National Marine Sanctuary
System-wide regulations (15 CFR subpart D) codify these requirements.
As such, in the proposed rule, NOAA would remove redundant application
instructions.
---------------------------------------------------------------------------

\12\ <a href="https://sanctuaries.noaa.gov/management/permits/welcome.html">https://sanctuaries.noaa.gov/management/permits/welcome.html</a>.
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Second, the proposed rule would also include two new general permit
categories that are unique to FKNMS--one for Archaeological Research
and one for Restoration--which are discussed in detail in other
sections of this document. A third general permit category specific to
FKNMS, activities that further FKNMS purposes, is found at 15 CFR
subpart D. The proposed rule would only specify where different or
additional information or procedures are needed for general permit
categories that are unique to FKNMS (such as Tortugas North
Conservation Area access permits).
Lastly, NOAA also proposes adding a provision for the certification
of any valid lease, permit, license, or right of subsistence use or of
access that is in existence when the revised sanctuary terms of
designation become effective. Under National Marine Sanctuary System-
wide regulations, FKNMS currently has authority to certify such pre-
existing rights of access or use (15 CFR 922.10). The proposed rule
would add procedures and criteria to clarify how ONMS would issue such
certification permits for FKNMS. A certification permit would be
available to persons holding such valid and pre-existing rights of
access or use in the proposed sanctuary expansion areas, which are
currently not under sanctuary jurisdiction but are proposed to be
regulated. Certification permits would also be available to persons
holding valid and pre-existing rights of access or use to conduct
activities in the sanctuary that were not previously regulated but are
now proposed to be regulated.

3. Marine Zone Boundaries and Associated Regulations Within the
Sanctuary

NOAA's proposed rule includes five marine zone types: Management
Areas, Conservation Areas, Sanctuary Preservation Areas, Restoration
Areas, and Wildlife Management Areas. This section includes a summary
of the marine zones and associated regulations proposed in this rule
with relevant highlights from the 2019 DEIS alternatives, and an
overview of public and agency comments and how they informed this
proposed rule. Global Positioning System (GPS) coordinates for all
marine zones included in NOAA's proposed rule can be found in
Appendices II through IX. An interactive map (available at the address
and website listed in the ADDRESSES section of this proposed rule)
showing the existing marine zones and the zoning scheme set forth in
this proposed rule, including the specific purpose and intent and
resources within each, has also been developed. A marine zone summary
table is also provided in the supporting information and is available
at the address and website listed in the ADDRESSES section of this
proposed rule. The summary table includes the marine zones included in
this proposed rule indicating the following: if the marine zone is
existing, modified, or proposed new; and if modified, a description of
how (spatial or regulation change); and the rationale for the proposed
change. In addition to marine zone-specific regulations, sanctuary-wide
regulations apply within all marine zones of the sanctuary.
a. Management Areas
NOAA proposes maintaining Key Largo and Looe Key Existing
Management Areas, with minor modifications, but would rename them the
``Key Largo Management Area'' and the ``Looe Key Management Area.''
These two areas were designated as national marine sanctuaries in 1975
and 1981, respectively, which preceded designation of FKNMS and were
therefore included within the FKNMS boundary and referred to as
Existing Management Areas. The Looe Key Management Area currently
encompasses the Looe Key Special Use Area (SUA) and Sanctuary
Preservation Area (SPA). NOAA proposes only slight modifications to the
Looe Key Management Area due to the proposed elimination of the Looe
Key SUA and the addition of two Restoration Areas within the Looe Key
Management Area boundary (see part III, section 3c. Sanctuary
Preservation Areas and part

[[Page 42813]]

III, section 3d. Restoration Areas, below). By eliminating the Looe Key
SUA, the Management Area regulations would now apply within the former
SUA, and as such, certain fishing activities would be allowed where
they are currently not (see the Management Area regulations for
details). The Looe Key SPA will remain unchanged. The outer boundary of
Looe Key Management Area would not change. With the exception of minor,
technical revisions to regulations as explained in part III, section 2i
Technical Revisions to Sanctuary Regulations, above, all other
Management Area regulations would be maintained in these areas. In
response to public comments, NOAA will not apply a no anchor regulation
in either Management Area as proposed in the 2019 DEIS.
The Key West and Great White Heron National Wildlife Refuges, which
are currently referred to as Existing Management Areas, would simply be
referred to by their full names. Existing regulations in the Key West
and Great White Heron national wildlife refuges would be maintained
with the exception of a minor changes to the area where personal
watercraft are allowed (see part III, section 4q. Personal Watercraft
below).
i. Public and Agency Comment Highlights Specific to the Proposed
Management Areas
NOAA received many comments opposing the no anchor regulation in
the Key Largo Management Area proposed in the 2019 DEIS. Comments noted
that this was a very large area with multi-use activities, including
fishing that would be highly impacted by a no anchor regulation.
Comments also noted that the area includes a variety of habitats
including sandy bottom, where a no anchor regulation is not needed.
Comments did however support the use of no anchor regulations in
smaller, targeted areas with sensitive habitats that would benefit from
protection from anchor damage. In response to these comments, NOAA will
not apply a no anchor regulation in the Key Largo Management Area.
However, NOAA does propose additional no anchor regulations in SPAs and
Restoration Areas as described in the below sections.
NOAA received public comments on changes proposed in the 2019 DEIS
to Looe Key Management Area and associated Sanctuary Preservation Area
(SPA) and Special Use Area (SUA). Commenters did not support the
proposed changes presented in the 2019 DEIS for a no anchor prohibition
for the entire Looe Key Management Area or the proposed expansion of
the SPA and SUA boundaries, which would have eliminated a large portion
of the Management Area where certain fishing activities are currently
allowed. Comments that did not support spatial changes to these zones
noted the potential loss of fishing opportunity and access (e.g., if
the Looe Key SPA and SUA were expanded). In response, NOAA is not
proposing to prohibit anchoring throughout the Looe Key Management Area
or to expand the SPA boundaries. NOAA is proposing to eliminate the
existing Looe Key SUA, as described in the Conservation Area section
below. Comments supported greater protections in this area due to the
presence of coral nursery and transplanting sites, for which NOAA is
proposing to create Restoration Areas, as described in the Restoration
Area section below.
FWC comments did not support the proposed spatial changes for Looe
Key SPA and SUA due to potential loss of fishing access. However, their
comments also noted the presence of coral nursery sites in the vicinity
of Looe Key SPA and recommended expanding the SPA to capture these
sites. Rather than change the SPA, NOAA instead proposes to establish
Restoration Areas to capture these sites (see respective sections below
for additional information about these zone types and proposed
changes).
b. Conservation Areas
NOAA proposes to combine the existing Ecological Reserves and
Special Use Areas into one Conservation Area zone type, and to maintain
and apply the existing Special Use Area (SUA) regulations prohibiting
fishing, requiring continuous transit without interruption, and
requiring stowage of gear in such areas. As defined in this proposed
rule, ``Conservation Area'' means an area of the sanctuary that
provides natural spawning, nursery, and residence areas for the
replenishment and genetic protection of marine life, and protects and
preserves groups of habitats and species, within which activities are
subject to conditions, restrictions and prohibitions to achieve these
objectives. These areas consist of contiguous, diverse habitats,
protect a variety of sanctuary resources and/or facilitate scientific
research that promotes sanctuary management or recovery of sanctuary
resources. In addition, these areas, with the exception of Western
Sambo, have similar regulations, which are intended to provide the
greatest level of protection to these contiguous habitats and areas set
aside to support scientific research.
NOAA's proposed rule includes six Conservation Areas, all of which
are existing sanctuary marine zones. Proposed changes include slightly
expanding the spatial area of three existing zones (Tennessee Reef,
Western Sambo, and Tortugas South), and eliminating one zone (the
existing Looe Key SUA). Western Sambo would also be included as a
Conservation Area with slightly different regulations as outlined
below. With the exception of the zone name change to Conservation Area,
NOAA proposes no changes to the existing Conch Reef SUA, Eastern Sambo
SUA, or Tortugas North Ecological Reserve.
A summary of proposed Conservation Areas and changes from current
FKNMS zoning and regulations follows. Note that for all of the proposed
zones below the zone name would be changed to Conservation Area.
<bullet> Conch Reef: No changes to the regulations or area.
<bullet> Tennessee Reef: No changes to regulations. This zone would
be extended to the 90-foot contour line to capture additional deep reef
habitats.
<bullet> Looe Key: This existing Special Use Area zone would not be
converted to a Conservation Area and would be eliminated. This area
would, instead, be managed as part of the larger Management Area, as
described above in section 3.a. Management Areas.
<bullet> Eastern Sambo: No changes to the regulations or area.
<bullet> Western Sambo: This existing zone would extend to the 90-
foot contour line to capture additional deep reef habitats. In
addition, no-anchor restrictions would be included for the southern
portion of the zone in the area of most prominent coral reef
development. All other existing regulations in Western Sambo would be
maintained, including prohibitions on discharging any matter, fishing
by any means, or harvesting any marine life. This is the only
Conservation Area that allows access for snorkeling and diving. The
2019 DEIS included proposals to establish a shoreline idle speed no
wake (Alternative 3) or no entry (Alternative 4) zone, which are not
included in this proposed rule.
<bullet> Tortugas North: No changes to the regulations or area. In
addition, see part III, section 4. Additional Marine Zone Regulations,
below, for information on administrative changes to Tortugas North
Access Permit requirements.
<bullet> Tortugas South: No changes to the regulations. This zone
would be extended to the west by one mile along its entire length. This
expansion would capture additional habitat west of Riley's Hump that is
known to support

[[Page 42814]]

fish spawning aggregations and important deep reef habitats. Recently
collected and compiled mapping coverage data and remotely operated
vehicle (ROV) imagery show unique habitat features in this area,
including rock escarpment formations and a well-defined ledge. These
data also showed the presence of a diversity of fish species.
Therefore, the southern boundary of the Tortugas South Conservation
Area would not change.
There are several Conservation Areas that NOAA proposed in the 2019
DEIS that are not included in this proposed rule. These are:
<bullet> Channel Key Bank and Moser Channel Bank: These proposed
new Conservation Areas were included in Alternatives 2, 3, and 4 to
protect shallow mixed hardbottom habitat that is not currently well
represented in sanctuary marine zones. NOAA's proposed rule does not
include these areas as Conservation Areas due to the level of reported
fishing use in the area (e.g., lobster); however, NOAA includes
proposed marine zones in the vicinity as idle speed no wake Wildlife
Management Areas to protect the bottom habitat from vessel prop
scarring (see part III, section 3e. Wildlife Management Areas, below).
<bullet> Long Key Tennessee Reef: This area was included as a
Sanctuary Preservation Area in Alternative 3 and a Conservation Area in
Alternative 4, designed to protect large, contiguous, diverse habitats
that support natural spawning, nursery, and residence areas for a
variety of marine species. As proposed in the 2019 DEIS, this zone
would have included important habitat that supports a range of species
life cycle needs (e.g., lobster settlement) and areas of mixed bottom
habitat. Informed by public and FWC comment, NOAA determined that the
zone and associated regulations, as designed, may not outweigh the
possible negative impact to users including loss of fishing access to
local residents, lobster trap fishing, and near-shore flats fishing.
<bullet> Tortugas Corridor: This area was included as a Sanctuary
Preservation Area in Alternative 3 and a Conservation Area in
Alternative 4. This region of the sanctuary serves as a corridor for
fish traveling between the Dry Tortugas National Park and known
spawning sites in Riley's Hump (within the Tortugas South Conservation
Area). NOAA evaluated the need to close this area to fishing, including
bottom tending gear. Through consultation with FWC, NOAA determined
that the impact to user groups, most notably fishermen, may outweigh
the resource protection goals of this proposed zone and associated
regulations. However, NOAA acknowledges the importance of conserving
fish and wildlife habitat and corridors, and will reconsider this
proposal in the future as needed.
i. Public and Agency Comment Highlights Specific to the Proposed
Conservation Areas
Public comments related to Conservation Areas both supported the
status quo and supported creating additional areas and/or expanding
existing or proposed areas. A selection of specific issues is noted
here.
Public and agency comments supported expanding the existing Western
Sambo Ecological Reserve and the Tennessee Reef Special Use Area to
include deep water coral reef habitats. In these proposed expanded
zones, FWC also specifically requested that in areas deeper than 60
feet, hook and line trolling or drift fishing be allowed. The proposed
rule does not allow fishing in these expanded areas. Conservation Areas
are designed to provide the greatest level of protection for the
habitats and species within these zones, as such NOAA is not including
exceptions for fishing in a portion of these zones. In addition, NOAA
determined that consistent regulations would better facilitate public
understanding and compliance.
Public and agency comments generally supported extending the
existing Tortugas South Ecological Reserve westward to capture
additional habitat and an area shown to support multi-fish aggregation
activity. Agency comments, specifically from FWC, also recommended that
NOAA remove 34 square miles from the southern portion of this zone to
allow for fishing opportunities in an area that has been closed to
fishing since 2001, noting that the vast majority of known coral reefs
in the Tortugas region and fish spawning aggregations would still be
included in marine zones in this area. As noted above, NOAA determined
that maintaining protection in the southern portion of Tortugas South
is warranted due to recently collected and compiled data showing unique
habitat features in this area, which support the presence of a
diversity of fish species.
Specific to the 2019 DEIS proposal to establish three large,
contiguous Conservation Areas in the sanctuary (Carysfort Reef, Long
Key Tennessee Reef, and Tortugas Corridor) to further protect
interconnected habitats and various stages of marine life, public and
agency comments noted the value of providing these additional
ecosystem-level management and protection, however also noted the need
to properly design a network of reserves. Public comments also included
general concern about loss of access and opportunity for use in all the
proposed areas. In response to these comments, NOAA is not proposing
these three specific areas.
While NOAA is not proposing to include these three new large,
contiguous marine zones in the proposed rule at this time, the specific
zones proposed in the 2019 DEIS alternatives and the overarching
concept of protecting diverse, connected habitats, are topics NOAA may
explore more robustly in the future. Specifically, FWC noted that
``[t]he knowledge gained from research and monitoring related to the
existing spatial management in FKNMS provides a body of knowledge
indicating that a properly designed network of reserves containing an
appropriate array of management approaches could have substantial
positive impacts to the Florida Keys ecosystem and fisheries.'' In
light of this, FWC recommended NOAA establish an interagency team to
evaluate the merits of a carefully designed network of marine reserves.
NOAA acknowledges the important research data FWRI scientists have
contributed over the years related to performance of the existing
network of sanctuary marine zones, and NOAA will continue to work with
state and academic partners to monitor the effects of any revised
sanctuary zone network, and to explore new contiguous zones in the
future.
Public and agency comments did not support creating new
Conservation Areas to protect shallow mixed bank and hardbottom habitat
in the middle keys, bayside at Channel Key Bank and Moser Channel Red
Bay Bank. Public comments noted these are important lobster and flats
fishing areas and did not support creating transit only areas; however,
public and agency comments did support additional idle speed no wake
regulations in these general areas (see the Wildlife Management Area
section below).
c. Sanctuary Preservation Areas (SPAs)
NOAA's proposed rule includes 17 SPAs. As defined in NOAA's
proposed rule, ``Sanctuary Preservation Area'' means an area of the
sanctuary that encompasses a discrete, biologically important area,
within which activities are subject to conditions, restrictions and
prohibitions, 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

[[Page 42815]]

marine species or habitats, or to provide opportunities for scientific
research.
The proposed rule expands two existing SPAs (Carysfort Reef and
Alligator Reef) to capture deep reef habitat, connects the existing Key
Largo Dry Rocks and Grecian Rocks SPAs, slightly expands Sombrero Key,
eliminates the existing French Reef and Rock Key SPAs, creates two new
SPAs at Turtle Rocks and Turtle Shoal, and makes no spatial changes to
the eleven existing SPAs: The Elbow, Molasses Reef, Conch Reef, Davis
Reef, Hen and Chickens, Cheeca Rocks, Coffins Patch, Newfound Harbor
Key, Looe Key, Eastern Dry Rocks, and Sand Key SPAs.
SPA regulations included in the proposed rule eliminate the current
exception for catch and release fishing in four existing SPAs where it
is currently applied (Conch Reef, Alligator Reef, Sombrero Key, and
Sand Key) and eliminate the practice of issuing bait fishing permits
(See part III, section 4. Additional Marine Zone Regulations for a full
discussion of NOAA's proposal related to bait fishing in the SPAs). In
addition, NOAA proposes to prohibit anchoring in all SPAs and to
include a new definition for ``anchoring,'' which would mean securing a
vessel to the seabed by any means. All other existing SPA regulations
would remain, including prohibitions on discharging any matter except
cooling water and fishing by any means or harvesting any marine life.
Consistent regulations throughout SPAs are intended to clarify for the
public what is allowed and what is restricted to promote understanding
and compliance and to facilitate enforcement and management.
A summary of proposed Sanctuary Preservation Areas and changes from
current FKNMS zoning and regulations and/or the 2019 DEIS alternatives
follows (listed northeast to southwest). For all of the zones listed
below, the SPA regulations as outlined above and at 15 CFR 922.164(e),
would apply.
<bullet> Turtle Rocks: This is a proposed new SPA. This marine zone
is expanded slightly from the area included in the 2019 DEIS
alternatives to align with the John Pennekamp Coral Reef State Park No
Lobster Trap zone and to capture additional historical resources.
<bullet> Carysfort Reef: This existing SPA would be expanded to the
90-foot contour to include additional deep reef habitat. This SPA would
not include any limited entry regulations as had been proposed in the
2019 DEIS preferred alternative (Alternative 3).
<bullet> The Elbow: Existing SPA; no proposed boundary change.
<bullet> Key Largo Dry Rocks-Grecian Rocks: This is a proposed
modified SPA that would connect two existing SPAs. The proposed rule
includes a smaller area than was included in the 2019 DEIS preferred
alternative (Alternative 3) due, in part, to public and agency comments
noting that the larger zone included sandy bottom area and that SPA
protections should be focused on the sensitive coral reef habitats.
<bullet> French Reef: This existing SPA would be eliminated.
General sanctuary-wide regulations would apply in this area and mooring
buoys would be maintained.
<bullet> Molasses Reef: Existing SPA; no proposed boundary change.
<bullet> Conch Reef: Existing SPA; no proposed boundary change. The
regulatory exception that allows catch and release fishing by trolling
in the SPA would be removed.
<bullet> Davis Reef: Existing SPA; no proposed boundary change.
<bullet> Hen and Chickens Reef: Existing SPA; no proposed boundary
change.
<bullet> Cheeca Rocks: Existing SPA; no proposed boundary change.
Agency comments from NMFS, FWC and from the SAFMC recommended that
additional areas be included for protection in the Cheeca Rocks SPA.
FKNMS reviewed these proposed areas and rather than making the existing
Cheeca Rocks SPA larger, proposes to include these areas as Restoration
Areas (see part III, section 3d. Restoration Areas, below).
<bullet> Alligator Reef: This existing SPA would be expanded to the
90-foot contour to include additional deep reef habitat. The regulatory
exception that allows catch and release fishing by trolling in the SPA
would be removed.
<bullet> Turtle Shoal: This is a proposed new SPA. This marine zone
would include the same area as proposed in the 2019 DEIS preferred
alternative (Alternative 3).
<bullet> Coffins Patch: Existing SPA; no proposed boundary change.
<bullet> Sombrero Key: This existing SPA would be expanded slightly
to include remnant elkhorn corals, a species listed under the
Endangered Species Act. In addition, this proposed expansion would
square off the existing triangular shape facilitating marking,
compliance, and enforcement. This SPA would not include any limited
entry regulations as had been proposed in the 2019 DEIS preferred
alternative (Alternative 3). The regulatory exception that allows catch
and release fishing by trolling in the SPA would be removed.
<bullet> Newfound Harbor Key: Existing SPA; no proposed boundary
change.
<bullet> Looe Key: Existing SPA; no proposed boundary change.
<bullet> Eastern Dry Rocks: Existing SPA; no proposed boundary
change.
<bullet> Rock Key: This existing SPA would be eliminated. General
sanctuary-wide regulations would apply in this area and mooring buoys
would be maintained.
<bullet> Sand Key: Existing SPA; no proposed boundary change. This
SPA would not include any limited entry regulations as had been
proposed in the 2019 DEIS preferred alternative (Alternative 3). The
regulatory exception that allows catch and release fishing by trolling
in the SPA would be removed.
i. Public and Agency Comment Highlights Specific to the Proposed SPAs
The 2019 DEIS included proposals to modify existing SPA boundaries,
add new SPAs, and modify regulations within SPAs. NOAA received public
comments specific to these proposals, too many to include for each
individual SPA; therefore, the summary below is by general theme.
The 2019 DEIS included a proposal to apply idle speed no wake and
no anchor regulations in all SPAs. Public and agency commenters did not
support an idle speed no wake regulation due to several factors,
including the size of many zones and the inclusion of portions of Hawk
Channel. In general, comments supported greater protections to coral
and other sensitive habitats from anchor damage. Comments also
addressed the need for additional, well placed and maintained mooring
buoys, particularly if additional no anchor restrictions would be
applied. Based on the extensive input received through public comment
and agency evaluation of the conservation need and value of idle speed
no wake regulations in all SPAs, NOAA's proposed rule does not include
an idle speed no wake regulation for SPAs. However, NOAA's proposed
rule does include no anchor regulations in all SPAs.
The 2019 DEIS included proposed spatial changes to several existing
SPAs. NOAA proposed expanding two SPAs (Carysfort Reef and Alligator
Reef) and the Tennessee Reef Conservation Area (discussed in part III,
section 3b. Conservation Areas, above) to the 90-foot depth contour, to
include additional deep coral reef habitat. Public comments both
supported and opposed this proposal for a variety of reasons.
Supporters noted such expansions would provide additional protections
to deep reef habitats that show potential resilience to the stony coral
tissue loss disease, could serve as a source for coral reef seed stock,
and would provide greater ecosystem level

[[Page 42816]]

protection. Public comments that opposed this proposal did so largely
due to general opposition to limiting any access for fishing activity.
For these proposed deep reef SPA expansions, FWC also specifically
requested that in areas deeper than 60 feet, hook and line trolling or
drift fishing be allowed, noting their desire to allow as much user
access as possible while still protecting coral reef habitat from
physical damage. NOAA determined that consistent regulations would
better facilitate public understanding and compliance and therefore,
NOAA is not including exceptions for fishing in a portion of these
zones.
Of the eight proposed new SPAs included in the 2019 DEIS
Alternative 3, NOAA proposes including two in this proposed rule:
Turtle Rocks and Turtle Shoal. Both would protect nearshore patch reef
habitats, which is a habitat type that is currently underrepresented in
the sanctuary zoning network and potentially consists of some of the
most resilient areas of the sanctuary. Protecting these resilient areas
from local stressors is intended to maintain the health of these sites,
associated sanctuary resources, and provide a refuge for important
frame-building and Endangered Species Act listed corals, which could
potentially serve to promote recovery of surrounding reef sites by
maintaining resilient reproductive populations of these species whose
offspring can reseed degraded areas. Public and agency comments
supported additional protections in these patch reef areas including no
fishing and no anchoring. Public comments also supported establishing
these areas as Conservation Areas to provide the greatest level of
protection for these sensitive habitats. However, at this time NOAA is
including these areas as SPAs to maintain some level of public access.
FWC comments supported making Turtle Rocks slightly larger to encompass
the existing John Pennekamp Coral Reef State Park No Lobster Trap zone,
and DEP recommended that the sanctuary coordinate management with the
State park. The proposed zone at Turtle Rocks is expanded slightly from
what was included in the 2019 DEIS. FKNMS will continue to coordinate
with the State Park for this marine zone and more generally.
The 2019 DEIS did not propose to eliminate any existing SPAs.
However, following public and agency comments, NOAA is now proposing to
eliminate two existing SPAs (French Reef SPA in the Upper Keys and Rock
Key SPA in the Lower Keys) to allow for multiple use in these areas.
Some public commenters expressed concern that NOAA establishes new
marine zones with access restrictions, particularly impacting fishing
access, and does not subsequently re-open areas for fishing once the
marine zone has either achieved its purpose or resource conditions have
shifted. FWC comments specifically supported the elimination of French
Reef and Rock Key SPAs.
NOAA proposes to eliminate French Reef SPA in the Upper Keys and
Rock Key SPA in the Lower Keys because the habitats no longer contain
reproductively viable populations of Endangered Species Act-listed
coral reef species or other important reef-building corals. These areas
also were selected due to their proximity to other SPAs; therefore,
they would promote continued habitat protections and separation of
conflicting uses in the general area. Mooring buoys in these areas
would be maintained. Sanctuary-wide regulations would continue to apply
in these areas.
d. Restoration Areas
Given the increase in important habitat restoration activities in
the sanctuary over the past two decades, NOAA's proposed rule includes
a new Restoration Area zone type. This new Restoration Area zone would
include two distinct designations:
<bullet> Restoration Area--Nursery zone type would encompass
existing nursery areas and would be regulated similar to Conservation
Areas to provide the highest level of protection to sensitive corals
and other organisms while they are being propagated. These regulations
would prohibit fishing, anchoring, and discharges and would require
that vessels remain in transit through the area.
<bullet> Restoration Area--Habitat zone type would protect sites
where active transplanting and restoration activities are ongoing.
These areas would be managed with the same regulations that apply to
SPAs to provide for access and educational opportunities while
prohibiting fishing, anchoring, and discharges.
In the proposed rule, ``Restoration Area'' would be defined as an
area of the sanctuary that supports species or habitat recovery,
including protection for short and long-term propagation nurseries
(referred to as Restoration Areas--Nursery) and active restoration
sites (Restoration Areas--Habitat), within which activities are subject
to conditions, restrictions, and prohibitions to achieve these
objectives.
i. Restoration Areas--Nursery
Specifically, the proposed rule includes nine Restoration Areas--
Nursery zones with regulations prohibiting fishing, anchoring, and
discharges and requiring that vessels remain in transit through the
area. All proposed Restoration Areas--Nursery zones are very small
(individual zones are approximately 70 acres (0.1 square miles)) and
are designed to protect the underwater nursery structures and
associated corals growing on them with a 200-yard buffer.
Three of the proposed Restoration Areas--Nursery zones (Pickles
Reef, Marathon, and Sand Key) were included in the 2019 DEIS as
individual SPA zones in Alternatives 2 and 3. These were included in
the 2019 DEIS as representative coral nursery sites in the Upper,
Middle and Lower Keys. NOAA proposes to establish all existing,
permitted coral nurseries as distinct Restoration Areas--Nursery zones.
The following existing, permitted coral nurseries are proposed as
distinct Restoration Areas--Nursery zones (listed northeast to
southwest):
<bullet> Carysfort Reef--Nursery: This zone is a discrete area
within the larger Carysfort Reef SPA.
<bullet> Pickles Reef West--Nursery: In the 2019 DEIS alternatives
2 and 3, this area was proposed as a SPA. In the proposed rule this
marine zone would instead become a Restoration Areas--Nursery and be
expanded to include multiple coral nursery sites at this location,
which has been shown to be resilient to high water temperatures,
storms, and coral disease.
<bullet> The Elbow Reef--Nursery: This area was not proposed in the
2019 DEIS; however, it is proposed here to provide additional
protections to an existing, permitted coral nursery site.
<bullet> Marathon--Nursery: In the 2019 DEIS alternatives 2, 3, and
4 this area was proposed as a SPA. In the proposed rule this marine
zone would instead become a Restoration Areas--Nursery. NOAA is not
proposing any spatial changes to this zone between the DEIS and
proposed rule.
<bullet> Middle Keys--Nursery: While not included in the 2019 DEIS,
NOAA proposes Middle Keys--Nursery to provide additional protections to
an existing, permitted coral nursery site.
<bullet> Looe Key East--Nursery: While not included in the 2019
DEIS, NOAA proposes Looe Key East--Nursery to provide additional
protections to an existing, permitted coral nursery site.
<bullet> Looe Key West--Nursery: While not included in the 2019
DEIS, NOAA proposes Looe Key West--Nursery to

[[Page 42817]]

provide additional protections to an existing, permitted coral nursery
site.
<bullet> Key West--Nursery: While not included in the 2019 DEIS,
NOAA proposes Key West--Nursery to provide additional protections to an
existing, permitted coral nursery site.
<bullet> Sand Key--Nursery: In the 2019 DEIS alternatives 2 and 3,
NOAA included the coral nursery at Sand Key as the Key West SPA;
however, it is proposed here as a Restoration Areas--Nursery. NOAA is
not proposing any spatial changes to this zone between the DEIS and
proposed rule.
ii. Restoration Areas--Habitat
NOAA also proposes establishing four new Restoration Areas--Habitat
to protect existing, permitted active coral reef restoration sites.
These were not included in the DEIS as distinct marine zones. All
proposed Restoration Areas--Habitat are small, ranging from 5 to 220
acres (<0.01 to 0.35 square miles), with an average size of 85 acres
(0.13 square miles), and are designed to protect sites supporting
active coral restoration with a 200-yard buffer. The proposed rule
would establish the following Restoration Areas--Habitat with
regulations prohibiting fishing, anchoring, and discharges:
<bullet> Horseshoe Reef--Habitat: This is the only Mission: Iconic
Reefs site that is not already included within an existing SPA. The new
proposed Restoration Areas--Habitat zone would specifically encompass
the portion of Horseshoe Reef targeted for active restoration and would
not affect the remainder of the reef.
<bullet> Pickles Reef East--Habitat: This is an active and long-
term restoration site that includes a large population of Endangered
Species Act listed elkhorn coral and staghorn coral that has been
particularly vulnerable to anchor damage.
<bullet> Cheeca Rocks East--Habitat: This is an active and long-
term restoration site with one of the largest remaining populations of
Endangered Species Act listed star coral (Orbicella spp.), still
contains intact populations of species susceptible to Stony Coral
Tissue Loss Disease and appears to be a site that is more resilient to
bleaching and disease.
<bullet> Cheeca Rocks South--Habitat: This is an active and long-
term restoration site with one of the largest remaining populations of
Endangered Species Act listed star coral (Orbicella spp.), still
contains intact populations of species susceptible to Stony Coral
Tissue Loss Disease and appears to be a site that is more resilient to
bleaching and disease. In addition, NMFS, FWC, and SAFMC comments
specifically recommended this site for additional habitat protections.
In this proposed rule all Restoration Areas--Habitat would protect
active coral reef restoration; however, NOAA does not intend to limit
application of this proposed new zone type to coral restoration
activities only. Conceivably, the Restoration Areas--Habitat zone type
could be applied in the future in any area to support and facilitate
restoration of other degraded habitats or species (e.g., seagrass,
hardbottom, etc.). In addition, a framework for establishing short-
term, time sensitive protections to support critical management
including habitat restoration is described in a proposed, updated
temporary regulation for emergency and adaptive management (see part
III, section 2. Sanctuary-wide Regulations above and the proposed full
regulatory text included in 15 CFR 922.165.) Additional information
about how this zone type may be used in the future can be found in the
revised draft management plan. Future nursery and habitat restoration
area site locations, sizes, and duration will be informed by site
specific habitat restoration plans, which could be prepared as part of
a vessel grounding incident, disease response, or Restoration permit
application.
Finally, to further facilitate habitat restoration and complement
this zone type, NOAA proposes including a new category of general
permit for Restoration.
iii. Public and Agency Comment Highlights Specific to the Proposed
Restoration Areas
Public and agency comments on the 2019 DEIS supported additional
protections for coral nursery sites. However, public and agency
comments, specifically FWC's, went beyond the 2019 DEIS to recommend
additional protections for coral reef transplanting sites and that a
specific zone type be created to further advance habitat restoration
efforts and for the purpose of facilitating and educating the public
about habitat restoration.
In addition, FWC comments recommended that NOAA develop, in
partnership with FWC and other stakeholders, a process to quickly open
and close areas for temporary, in-water nurseries. For example, ``pop-
up'' nurseries could be deployed, in which corals are reared directly
adjacent to restoration sites and then transplanted when ready. NOAA
believes that the Temporary Regulation for Emergency and Adaptive
Management, as described in part III, section 2c. Sanctuary-wide
Regulations, above, and at 15 CFR 922.165, serves this purpose.
e. Wildlife Management Areas (WMAs)
NOAA's proposed rule includes 47 WMAs. In this proposed rule,
``Wildlife Management Area'' means an area of the sanctuary in which
various access and use restrictions are applied to manage, protect,
preserve, and minimize disturbance to sanctuary wildlife resources,
including but not limited to endangered or threatened species, or the
habitats, special places, or conditions on which they rely. The access
and use restrictions applied in each area are specific to the
management goals of that area.
The proposed rule includes no change and/or only minor technical
modifications to existing regulations for nine existing WMAs, spatial
and/or regulatory modifications for 15 existing WMAs, and proposes 23
new WMAs. In addition, the proposed rule eliminates two existing WMAs
and does not include eight zones that were included as new WMAs in the
2019 DEIS. The average size of WMAs (excluding the proposed Pulley
Ridge and existing Tortugas Bank zones) is 0.62 square miles, ranging
from 0.01 to 6.37 square miles (the proposed new Pelican Shoal WMA and
Marquesas Turtle WMA, respectively).
WMAs are generally designed to protect shallow water habitats and
species dependent on those habitats. Access and use restrictions
applied in WMAs address the specific protections necessary to minimize
disturbances to sanctuary habitats and wildlife and are therefore
tailored for the specific location and resource need. In addition,
these access and use restrictions may be for a limited or seasonal time
period. The proposed WMAs aim to balance resource protection with
compatible uses. This action generally favors sanctuary resource
protection over access where biological and impact data demonstrate a
need; however, the least restrictive access regulations and zone size
needed to meet the resource protection goals are proposed.
Due to the number and range of proposed WMAs, they are discussed in
relevant sections below (e.g., existing zones with no change, proposed
new zones etc.); with general overarching public and agency comments
included in this introductory section and where public or agency
comments directly informed the proposed rule, they are included with
the individual WMA description. For a complete list of WMAs in this
proposed rule, see 15 CFR 922.164(d).

[[Page 42818]]

Public comments both supported and opposed the proposed WMA
modifications and new zones. Public comments received also indicated
that many in the community are not fully aware of the existing WMAs and
associated regulations. Many public comments also provided more
tailored input with specific information about the resource status at
certain WMAs, human use and other existing and/or potential impacts to
resources at the site, and in some cases, specific alternate proposals
for where and how to manage the site. These comments generally
supported taking some action to protect sanctuary resources while also
allowing the greatest level of access and use. Most public comments
included some mention of the importance and challenge of marking WMAs
and educating the public and users.
NOAA also received several public comments suggesting additional
areas to include as new WMAs. NOAA used this information to modify the
spatial configuration of one area (proposed in the 2019 DEIS as West
Barracouta Key Flats, but now in this proposed rule called Ballast and
Man Keys Flats). NOAA is not proposing any additional WMAs beyond those
included and analyzed in the 2019 DEIS because NOAA would need
additional human use and natural resource information to fully evaluate
the need and overall benefit of including these additional areas in the
sanctuary zoning scheme. NOAA removed several WMAs that were proposed
in the 2019 DEIS because NOAA does not have sufficient information
regarding use impacts to warrant proposing restrictions. More detail on
these zones is included below in section iv. Existing and DEIS Proposed
WMAs that would be Eliminated.
Agency comments also included input on individual WMA proposals.
FWC commented on all the WMAs, specifically providing additional human
use, ecological, and biological resource data, particularly for bird
species of state interest, and requested that NOAA consider each zone
on a case-by-case basis to more closely evaluate the balance between
resource protection goals and user access. DEP commented on WMAs
located within or adjacent to State Parks and/or Aquatic Preserves, and
USFWS commented on WMAs located within National Wildlife Refuge
boundaries. Agency comments from FWC, DEP, and USFWS also provided
additional use and resource data and considerations for cooperative
management. USFWS additionally provided guiding principles for their
recommendations that focused on the most impacted and their habitat
needs within the National Wildlife Refuges, including migratory birds
(e.g., great white heron, reddish egret, little blue heron, and
magnificent frigatebirds) and wading birds, seabirds and shorebirds.
USFWS recommended, where needed, a 100-yard buffer to minimize
disturbance to wading birds and other migratory bird species that are
documented to be the most impacted by human disturbance from boats. The
Naval Air Station Key West (NASKW) commented on WMAs located within
their testing and training operational area and/or adjacent to their
property, specifically if the proposals may impact their operations.
Notably, NASKW commented on the proposed new Demolition Key marine zone
(which is not included in this proposed rule), the proposals for
shoreline vessel speed restrictions (which is also not included in this
proposed rule), and the Marquesas Turtle zone (which has been modified
in this proposed rule).
Nine of the twenty-eight existing WMAs have no spatial or
regulatory changes, or only minor technical changes, in this proposed
rule. The minor technical changes include (1) spatial changes that
clarify exceptions to access regulations for certain channels and (2)
regulatory changes in zone access terminology such that the existing
``no access buffer'' and ``closed'' regulations would be changed to
``no entry'' to be consistent with the intent of the regulation and
with state regulations.
NOAA proposes to eliminate the existing ``no access buffer'' and
``closed'' zone regulation, replacing them with a ``no entry''
regulation that has the same effect. The existing ``no access buffer''
zone means a portion of the sanctuary where vessels are prohibited from
entering regardless of the method of propulsion. In general practice
the ``no access buffer,'' ``closed,'' and ``no entry'' regulations have
similar intent. In addition, this change in nomenclature creates
consistency in application of this regulation throughout the sanctuary
and aligns with state regulations. In addition to the zones discussed
in this section, the no-access buffer zones at Crocodile Lake and
Marquesas Keys WMAs would be eliminated, however both of these WMAs
would have additional minor spatial and/or regulatory changes, so are
more fully discussed in the section below.
ii. Existing WMAs With Proposed Spatial or Regulatory Changes
The WMAs in this proposed rule with no spatial or regulatory
changes, or only minor technical changes, follow:
<bullet> Horseshoe Key: This is an existing 300 foot no access
buffer zone with the island closed by the USFWS to decrease disturbance
to nesting and roosting birds. NOAA proposes a technical update to
change the existing no access buffer regulation to no entry.
<bullet> West Content Keys: This is an existing zone with idle
speed no wake in selected creeks and no access buffer in one cove to
decrease disturbance to shorebirds using the area for nesting and
foraging. NOAA proposes a technical update to change the existing no
access buffer regulation to no entry.
<bullet> Sawyer Key: This is an existing zone where the tidal
creeks on the south side are closed to decrease disturbance to nesting
birds. NOAA proposes a technical update to change the existing closed
regulation to no entry.
<bullet> East Harbor Key: This is an existing 300 foot no access
buffer zone to decrease disturbance to various resting and nesting
birds. NOAA proposes a technical update to change the existing no
access buffer regulation to no entry.
<bullet> Cayo Agua Keys: This is an existing zone with idle speed
no wake in all navigable creeks to decrease disturbance to nesting and
roosting birds, including great white heron, osprey, and the large
numbers of resting shorebirds. There would be no change from the status
quo.
<bullet> Big Mullet Key: This is an existing 300 foot no motor zone
around the island to decrease disturbance to nesting birds and resting
shorebirds. There would be no change from the status quo.
<bullet> Little Mullet Key: This is an existing 300 foot no access
buffer zone to decrease disturbance to nesting, roosting, and foraging
birds and shallow seagrass flats around the island, which exhibit prop
scarring. NOAA proposes a technical update to change the existing no
access buffer regulation to no entry.
<bullet> Pelican Shoal: This is an existing zone that was proposed
to be eliminated in the DEIS; however, in recent years this area has
been repopulated with nesting roseate terns and is an area that is
thought to be the last active ground-breeding location for this ESA-
listed species in Florida. Additionally, this is an FWC Critical
Wildlife Area that was established in 1990. For these reasons, NOAA
would retain Pelican Shoal WMA in the proposed rule.
<bullet> Tortugas Bank: This is an existing sanctuary zone
prohibiting anchoring by vessels over 50 meters in length, which
protects coral and hardbottom habitats

[[Page 42819]]

on Tortugas Bank from anchor damage. NOAA proposes no change in the
spatial area or regulations for this zone; however, it would be
included as a WMA since the purpose and intent of the zone align with
those of WMAs.
ii. Existing WMAs With Proposed Spatial or Regulatory Changes
As noted above, WMAs protect important habitats and species
dependent on those habitats with access and use restrictions tailored
for the specific location and resource need. Listed below
(approximately northeast to southwest) are existing WMAs with proposed
changes to spatial boundaries, regulations, or a combination of both.
These proposed changes were informed by public and agency comments, and
additional data on resources and human uses. With this additional
input, NOAA refined the spatial areas included in WMAs and the specific
regulations that apply to most efficiently protect sanctuary resources
while allowing the greatest level of use compatible with the resource
protection goals. A summary of proposed changes follows:
<bullet> Crocodile Lake: This existing March 1 to October 1 no
access buffer WMA would be modified to become a year-round no entry
zone but would allow transit through Steamboat Creek. The portion of
the existing Crocodile Lake WMA on the northwestern shoreline of
Eastern Lake Surprise would become part of the Eastern Lake Surprise
WMA as it is contiguous with that area. Crocodile Lake WMA is intended
to decrease disturbance to ESA-listed species, including American
crocodile and West Indian manatee, and various bird species that use
the area for foraging, nesting and roosting. This WMA is also intended
to protect the shallow seagrass flats near Card Sound Bridge that have
been impacted by vessel groundings and exhibit prop scarring. This is a
slight modification from the 2019 DEIS alternatives including shifting
a portion of the zone to Eastern Lake Surprise and allowing transit in
Steamboat Creek, which was requested through public and agency comment.
<bullet> Eastern Lake Surprise: This existing WMA would be modified
to include a no entry area along the western shoreline that is
currently part of the Crocodile Lake WMA. In the canal and basin on the
southeast side of Eastern Lake Surprise, the existing regulations would
be changed from idle speed no wake to no entry. All other regulations
would be maintained. Like Crocodile Lake WMA, this WMA is intended to
decrease disturbance to ESA-listed species including American crocodile
and West Indian manatee. This is a slight modification from the 2019
DEIS alternatives due to the addition of the western shoreline that is
now included in Crocodile Lake WMA.
<bullet> Dove and Rodriguez Keys: These two existing WMAs would be
combined to create one no motor zone WMA. The existing regulations that
close two small islands near Dove Key would be eliminated. This WMA is
intended to decrease disturbance to a variety of birds, fish, and the
benthic community, including seagrass and hardbottom habitat. The
shallow seagrass flats in this area have been impacted by vessel
groundings and exhibit prop scarring. This proposed rule modifies the
2019 DEIS preferred alternative (Alternative 3), which included a no
entry zone around Dove Key and a no anchor regulation throughout.
<bullet> Tavernier Key: This is an existing no motor zone. NOAA
proposes to maintain the existing no motor regulation, add no anchor,
and provide exceptions to these regulations in Tavernier Creek and the
unnamed channel to the northeast leading to it. This WMA is intended to
decrease disturbance to a variety of birds, fish, and the benthic
community, including seagrass and hardbottom habitat. The shallow
seagrass flats in this area have been impacted by vessel groundings and
exhibit prop scarring. The proposed rule would be the same as the 2019
DEIS preferred alternative (Alternative 3).
<bullet> Snake Creek: This existing no motor zone would be extended
to the west along the shoreline up to but not including the existing
Monroe County no motor zone as was included in the 2019 DEIS preferred
alternative (Alternative 3). An exception to the no motor regulations
would be made for Snake Creek itself and the three channels providing
access to Windley Key. This WMA is intended to decrease the disturbance
to a variety of birds using the area for nesting, roosting, and
foraging, and protect shallow water habitat used by various fish
species. The shallow seagrass flats have been impacted by vessel
groundings and exhibit prop scarring.
<bullet> Cotton Key: This existing no motor zone would be extended
to include an area west of Cotton Key that exhibits prop scarring. The
2019 DEIS preferred alternative (Alternative 3) included expanding the
WMA to include additional area to the south east of the existing zone;
however, this expansion is not included in this proposed rule due to
public and agency concerns related to proximity and the potential to
interfere with access to Whale Harbor Channel. In addition to
protecting shallow seagrass habitats, this WMA is intended to decrease
disturbance to nesting and roosting birds.
<bullet> East Content Keys and Upper Harbor Key Flats: East Content
Keys and Upper Harbor Key Flats are both existing marine zones that are
proposed to be modified in this proposed rule. East Content Keys WMA
consists of an existing small idle speed no wake zone in the largest
tidal creek. NOAA proposes applying additional idle speed no wake
regulations in the remaining tidal creeks at East Content Keys. In
addition, the seagrass flats to the east, north, and south of East
Content Key, extending beyond Upper Harbor Key, would be designated as
idle speed no wake as this area exhibits scarring. This large, idle
speed no wake zone was included in the 2019 DEIS Alternative 4 as the
Upper Harbor Key Flats WMA. Upper Harbor Keys WMA is an existing 300-
foot no access zone around the entire island. NOAA proposes changing
this no access buffer zone to a no entry zone that would be encompassed
within the larger proposed East Content Keys and Upper Harbor Key Flats
idle speed no wake WMA.
<bullet> Snipe Keys: This existing marine zone would have a no
entry area added, which is an important roosting area for magnificent
frigatebirds that are easily disturbed by motorized and non-motorized
boat traffic. This proposed expansion is just south of the existing no
motor and idle speed no wake areas, which would not change. The
proposed rule would be the same as the 2019 DEIS preferred alternative
(Alternative 3).
<bullet> Mud Keys: This existing marine zone includes idle speed no
wake and closed areas within the channels. NOAA proposes updating this
to idle speed no wake in all channels. Through discussion with USFWS,
NOAA determined that idle speed no wake would be sufficient to decrease
disturbance to nesting, roosting, and foraging birds while also
providing user access in this area.
<bullet> Lower Harbor Keys: This existing zone includes idle speed
no wake in selected tidal creeks. NOAA proposes expanding the idle
speed no wake area to further protect and decrease disturbance to
various nesting, roosting, and wading birds. The expanded area would
also capture surrounding seagrass flats that exhibit prop scarring.
NOAA also proposes including slightly more area than the 2019 DEIS
preferred alternative (Alternative 3) included to provide better
protection for wading bird species in this location.
<bullet> Bay Keys: This existing marine zone would expand the
current idle speed no

[[Page 42820]]

wake area in the channel leading to the northwest island, maintain that
island as no motor, and would include an additional adjacent island to
the southeast as no motor. Southwest Bay Key, the existing no motor
zone, is used as a roosting area for magnificent frigatebirds, a
species that is highly disturbed by boater use. These proposed
modifications, informed by USFWS data, would decrease disturbance to
nesting and roosting birds, including great white heron, tricolored
heron, little blue heron, cormorant, osprey, and various other small
birds. The WMA in this proposed rule would be the same as the 2019 DEIS
Alternative 2.
<bullet> Cottrell Key: This existing no motor zone would be updated
to a no entry zone to decrease disturbance to nesting and roosting
birds. Cottrell Key has one of the highest annual counts of nesting
great white herons in the Lower Keys, and serves as an important island
for other nesting, roosting and foraging birds. The WMA in this
proposed rule would be the same as the 2019 DEIS preferred alternative
(Alternative 3).
<bullet> Woman Key: This existing marine zone, which currently
includes one-half of the beach and sand spit as closed, would be
changed to no entry and expanded to include 300-feet offshore of the
beach to further decrease disturbance to nesting and roosting birds and
ESA-listed sea turtles, which may be impacted during nesting by high
concentrations of visitors. The WMA in this proposed rule would be the
same as the 2019 DEIS preferred alternative (Alternative 3).
<bullet> Boca Grande Key: This existing marine zone currently
includes a closed area on the south half of the beach and the island is
closed by the USFWS. In this proposed rule the WMA would be changed to
no entry and expanded to include 300-feet offshore of the beach to
decrease disturbance to nesting and roosting birds and ESA-listed sea
turtles, which may be impacted during nesting by high concentrations of
visitors. The WMA in this proposed rule would be slightly smaller than
the 2019 DEIS preferred alternative (Alternative 3), which extended
further along the shoreline at both ends of the marine zone (to the
north and east).
<bullet> Marquesas Keys: This is an existing zone with a 300-foot
no motor regulation around three keys, a 300-foot no access buffer zone
around one island (all on the western side of Mooney Harbor), and idle
speed no wake in a southwest tidal creek. NOAA proposes to maintain all
of these areas; however, the no motor and no access buffer zones would
be updated to no entry and would add one additional island on the south
end of Mooney Harbor as no entry. The idle speed no wake zone in the
southwest tidal creek would not change. Based on public comments and
discussions with USFWS related to the resource status and protection
needs for the main island of Long Beach, NOAA does not propose to
include a no entry area around the main island, which was included in
the 2019 DEIS preferred alternative (Alternative 3). USFWS noted the
potential value of a no motor zone; however, at this time no additional
marine zone would be proposed for this area. Therefore, the WMA in this
proposed rule is a combination of status quo and the 2019 DEIS
preferred alternative (Alternative 3) as outlined above.
iii. Proposed New WMAs
NOAA proposes including 23 new WMAs. All of these areas were
included in the 2019 DEIS with various spatial and regulatory options
across Alternatives 2, 3, and 4. However, nine of the newly proposed
WMAs have been modified in NOAA's proposed rule in either their spatial
boundary, access regulations, or both (Whitmore Bight, Channel Key
Banks, Red Bay Bank, Marathon Oceanside, Happy Jack Keys, Western Dry
Rocks, Marquesas Turtle, Barracuda Keys, and Ballast and Man Keys
Flats). These changes have stemmed directly from public and agency
comments, resource status, and existing or potential resource impact.
<bullet> Barnes-Card Sound: This is a proposed new WMA intended to
decrease disturbance to nesting and wading birds, shallow water
gamefish, and impacts to the benthic community including seagrass and
macroalgae where shallow seagrass flats exhibit prop scarring. The WMA
in this proposed rule would be the same as the 2019 DEIS preferred
alternative (Alternative 3).
<bullet> Whitmore Bight: This is a proposed new no motor WMA which
has been modified slightly from the 2019 DEIS Alternative 2. The
proposed rule would include an area along the shoreline in John
Pennekamp State Coral Reef Park up to but not including the State Park
managed no motor zone. This proposed zone is intended to decrease
disturbance to the benthic community, including hardbottom habitat that
supports juvenile lobster and various reef and game fish. Shallow
seagrass flats in this area exhibit prop scarring.
<bullet> Pelican Key: This is a proposed new no entry WMA, which is
the same as the 2019 DEIS Alternative 4. The proposed rule would
include the most protective measures for this area to decrease
disturbance of roosting and wading birds including magnificent
frigatebirds and pelicans. Shallow seagrass flats in this area exhibit
prop scarring.
<bullet> Pigeon Key: This is a proposed new no entry WMA intended
to decrease disturbance to nesting wading birds including roseate
spoonbills and roosting magnificent frigatebirds. The WMA in this
proposed rule is the same as the 2019 DEIS preferred alternative
(Alternative 3).
<bullet> Ashbey-Horseshoe Key: This is a proposed new no entry WMA
intended to decrease disturbance of brown pelicans and magnificent
frigatebirds roosting in Lignumvitae Key Aquatic Preserve and
Lignumvitae Key Botanical State Park. In addition, recent monitoring
documented many nesting cormorants and great egrets, including great
egret hatchlings. The WMA in this proposed rule is the same as the 2019
DEIS preferred alternative (Alternative 3).
<bullet> Channel Key Banks: This is a proposed new idle speed no
wake WMA, which has been modified from the 2019 DEIS alternatives. The
proposed rule would include a much smaller and targeted zone in the
area with the greatest amount of prop scarring. This WMA is intended to
protect seagrass and hardbottom habitat that supports a diverse
assemblage of corals, sponges, macroalgae, seagrass, and many juvenile
fish species prior to their movement to the coral reefs. This habitat
type is not currently well represented in the existing FKNMS marine
zones.
<bullet> Red Bay Bank: This is a proposed new idle speed no wake
WMA, which has been modified from the 2019 DEIS alternatives. The
proposed rule would include a much smaller and targeted zone in the
area with the greatest amount of prop scarring. This WMA is intended to
protect seagrass and hardbottom habitat that supports a diverse
assemblage of corals, sponges, macroalgae, seagrass, and many juvenile
fish species prior to their movement to the coral reefs. These habitat
types are not currently well represented in the existing FKNMS marine
zones.
<bullet> Marathon Oceanside Shoreline: This is a proposed new idle
speed no wake WMA to decrease disturbance to nearshore seagrass and
hardbottom habitats from vessel impacts in areas with prop scarring.
The 2019 DEIS preferred alternative (Alternative 3) included this zone
as a no motor area and based on public comment, the WMA in this
proposed rule would be idle speed no wake with exceptions for
established channels.
<bullet> East Bahia Honda Key: This is a proposed new no motor WMA
intended

[[Page 42821]]

to decrease disturbance to nesting and foraging birds. Shallow seagrass
flats in this area exhibit prop scarring. The WMA in this proposed rule
is the same as the 2019 DEIS Alternative 2.
<bullet> West Bahia Honda Key: This is a proposed new no motor WMA
intended to decrease disturbance to nesting and foraging birds. The WMA
in this proposed rule is the same as the 2019 DEIS Alternative 2.
<bullet> Little Pine Key Mangrove: This is a proposed new no entry
WMA intended to decrease disturbance to nesting and roosting birds
including magnificent frigatebirds, reddish egrets, and tricolored and
great white herons. The WMA in this proposed rule is the same as the
2019 DEIS preferred alternative (Alternative 3).
<bullet> Water Key Mangroves: This is a proposed new no entry WMA
intended to decrease disturbance to nesting, wading, and foraging birds
and to decrease impacts to habitats for shallow water foraging
shorebirds. The WMA in this proposed rule is the same as the 2019 DEIS
preferred alternative (Alternative 3).
<bullet> Howe Key Mangrove: This is a proposed new no entry WMA
intended to decrease disturbance to nesting birds including great white
heron, great blue heron and reddish egret. The WMA in this proposed
rule is the same as the 2019 DEIS preferred alternative (Alternative
3).
<bullet> Torch Key Mangroves: This is a proposed new no entry WMA
intended to decrease disturbance to nesting and roosting habitat for
various birds including white-crowned pigeon and reddish egret, and is
shallow water foraging habitat for wading and shorebirds. The WMA in
this proposed rule is the same as the 2019 DEIS preferred alternative
(Alternative 3).
<bullet> Crane Key: This is a proposed new no entry WMA intended to
decrease disturbance to nesting and roosting birds including
magnificent frigatebirds and great white heron. Crane Key has the
highest post-Hurricane Irma annual count of nesting great white herons
in the backcountry, and serves as an important island for other
nesting, roosting and foraging birds. Additional protections would
reduce flushing of these birds from their nests and roosting sites.
Shallow seagrass flats exhibit prop scarring. The WMA in this proposed
rule is the same as the 2019 DEIS preferred alternative (Alternative
3).
<bullet> Northeast Tarpon Belly Keys: This is a proposed new no
motor WMA intended to decrease disturbance to nesting and roosting
sites for reddish egrets and other wading birds. The WMA in this
proposed rule is the same as the 2019 DEIS Alternative 2.
<bullet> Happy Jack Key: This is a proposed new no entry WMA
intended to decrease disturbance to wading bird foraging habitat and
nesting reddish egret and great white heron. Happy Jack Key supports
high numbers of nesting and roosting reddish egrets, while the
surrounding shallows provide pristine foraging habitat. The WMA in this
proposed rule includes a smaller and different island to the southeast
of the island and area included in the 2019 DEIS preferred alternative
(Alternative 3).
<bullet> Western Dry Rocks: This is a proposed new WMA that would
mirror newly established FWC regulations \13\ (February 2021) with a
seasonal no fishing prohibition from April 1 to July 31, and include a
no anchor regulation during this same seasonal time period.
---------------------------------------------------------------------------

\13\ <a href="https://www.flrules.org/gateway/ruleNo.asp?id=68B-6.004">https://www.flrules.org/gateway/ruleNo.asp?id=68B-6.004</a>.
---------------------------------------------------------------------------

NOAA received hundreds of public comments related to including
Western Dry Rocks as a sanctuary marine zone. The 2019 DEIS included
options for a 796 acre (1.2 square mile) trolling only Wildlife
Management Area (Alternatives 2 and 3) and a transit only Conservation
Area (Alternative 4). Public comments both strongly supported and
opposed these proposals. Comments in support noted the need to protect
this site due to its importance as a multi-fish spawning aggregation
site; comments included support for both a year-round closure and
seasonal closure during the peak spawning time, particularly for permit
species, which are not managed through an existing fishery management
plan. Public comments in opposition noted the importance of this site
for charter fishing activity, questioned the definition of trolling,
and noted that any action at Western Dry Rocks should be taken through
fishery management plan action and referenced recent action taken to
modify bag and size limits for mutton snapper, one of several fish that
spawn at this site. Agency comments, specifically those from FWC, did
not support NOAA taking any action at Western Dry Rocks and recommended
it be removed from further consideration. FWC commented that fisheries
management in State waters at this location should remain under the
sole authority of FWC, and further noted that FWC would consider
rulemaking for this area. Since submitting their comments on the 2019
DEIS, FWC proposed various options for protecting fish spawning
aggregations at Western Dry Rocks, and at their February 2021 FWC
Commission meeting, adopted a seasonal closure that prohibits fishing
from April 1 through July 31 annually in an area that mostly
encompasses NOAA's 2019 DEIS proposal, but is slightly smaller (0.98
square miles). As a result, and because it is customary for federal and
state agencies to craft complementary regulations to ensure consistency
and transparency and improve enforcement, NOAA also proposes including
a seasonal no fishing WMA at Western Dry Rocks. Further, FWC has
requested that anchoring by vessels be prohibited during the seasonal
fishing closure, so NOAA is proposing to establish no anchoring
regulations at the same time of year as the no fishing regulations.
NOAA would work cooperatively with FWC to place marker buoys to
delineate the Western Dry Rocks WMA.
<bullet> Barracuda Keys: This is a proposed new idle speed no wake
WMA intended to decrease disturbance to important shallow water
habitats and the large numbers of resting shorebirds that use the
shallow seagrass flats. Shallow flats exhibit prop scarring. Informed
by public comment, the proposed rule modifies the 2019 DEIS preferred
alternative (Alternative 3), which included this area as a no motor
zone. In the 2019 DEIS this WMA was referred to as Marvin Barracuda Key
Flat.
<bullet> Archer Key: This is a proposed new no anchor WMA intended
to decrease disturbance to nesting and roosting birds and protect
seagrass habitat and associated species, which exhibit prop scarring.
The WMA in this proposed rule is the same as the 2019 DEIS Alternative
2.
<bullet> Ballast and Man Keys Flats: This is a proposed new idle
speed no wake WMA intended to protect important hardbottom and seagrass
habitat, which exhibit prop scarring. Additional regulation in this
area would also reduce user conflict between flats fishers and
recreational boaters. The WMA in this proposed rule is modified from
the 2019 DEIS preferred alternative (Alternative 3), which proposed no
anchor in an area slightly to the north. The shift in location and
regulation is based on public comment, user feedback and prioritizing
protection in the area of greatest prop scarring.
<bullet> Marquesas Turtle: This is a proposed new idle speed no
wake zone to decrease disturbance to ESA-listed green sea turtles on a
rare, internationally-important foraging ground. NOAA proposes
including a smaller area than was proposed in the 2019 DEIS preferred
alternative (Alternative 3). The WMA boundary included in this proposed
rule removes the southern portion of the area that was

[[Page 42822]]

included in the DEIS proposal due to public and agency comment
regarding needing this area for safe transit to the Marquesas Keys. The
WMA in this proposed rule also captures the area of greatest habitat
variability and highest numbers of turtle sightings.
<bullet> Pulley Ridge: This area is proposed for overall sanctuary
boundary expansion where sanctuary-wide regulations would apply.
Additional regulations would prohibit anchoring by all vessels. This
proposed new WMA would protect the deepest known photosynthetic coral
reef system off the coast of the continental United States with
demonstrated connectivity to the Florida Keys. These nationally-
significant mesophotic reef ecosystems are threatened by anchor damage.
This zone overlaps with an existing Gulf of Mexico Fishery Management
Council Habitat Area of Particular Concern (HAPC), which prohibits
anchoring by fishing vessels and bottom tending fishing gear, with an
exception for long-line gear in a portion of the HAPC. The proposed no
anchor regulations for all vessels would complement the existing HAPC
anchoring restrictions that only apply to fishing vessels. The WMA in
this proposed rule is the same as the 2019 DEIS Alternative 4 proposal.
In addition, as noted in part III. section 1. Sanctuary Boundary, NOAA
is also pursuing International Maritime Organization adoption of a no
anchoring area designation for Pulley Ridge.
iv. Existing DEIS Proposed WMAs That Would Be Eliminated
Several new WMAs were proposed in the 2019 DEIS alternatives,
which, for various reasons, including extensive public and agency
comments, are not included in NOAA's proposed rule. One existing WMA,
Little Crane Key, which was proposed to be eliminated in the DEIS, is
also proposed to be eliminated in NOAA's proposed rule. Another
existing WMA, Tidal Flat South of Marvin Key, was not proposed for
elimination in the DEIS alternatives but is proposed to be eliminated
in NOAA's proposed rule. Table 2 provides a summary of the eight WMAs
that were proposed in the DEIS and are not being included in NOAA's
proposed rule and the two existing WMAs that would also be eliminated.

Table 2--Summary of Existing or DEIS Proposed WMAs Not Included in the
Proposed Rule
------------------------------------------------------------------------
Reason for not
Zone name Purpose and intent carrying forward
------------------------------------------------------------------------
Alligator Reef.............. Protect a NOAA determined that
significant amount due to FWC and FMC
of ESA-listed coral interest in
by providing evaluating all
additional lobster trap
protections to an exclusion zones,
existing fishery NOAA will await
management plan this review prior
area closed to to including this
lobster trap gear. area as a sanctuary
marine zone.
Key Lois Loggerhead Key..... Decrease impacts to NOAA determined that
shallow water the burden to local
habitat adjacent to homeowners
Bow Channel. Many outweighed the
of the shallow resource protection
seagrass flats in goals and that the
this area exhibit original intent to
light-to-moderate separate
prop scarring. conflicting users
Decrease (boating and
disturbance to fishing) may not be
migrating tarpon needed.
that use this basin
from February
through June.
Decrease user
conflict between
flats fishermen and
transiting boaters.
Western Sambo Shoreline..... Decrease disturbance NOAA determined that
in the nearshore current zone
foraging and regulations of
nursery habitat for Western Sambo
various fish Conservation Area
species. Provide are sufficient for
stricter the resource
protections to meet protection goals.
the advisory
council goal to
protect large,
contiguous, diverse
and interconnected
habitats, including
for fish moving
inshore to offshore
through their life
cycle.
Demolition Key.............. Decrease disturbance NOAA determined that
to nesting and the impacts to uses
roosting birds, including general
including great transit, fishing,
white heron and and military
magnificent testing and
frigatebirds. training outweighed
the resource
protection goals of
this proposed zone.
Little Crane Key............ Decrease disturbance NOAA determined the
to nesting and existing zone is no
roosting birds. longer needed as
the area shifted
during Hurricane
Wilma and no longer
supports the bird
species it was
designed to
protect.
Tidal Flat South of Marvin Decrease disturbance NOAA determined the
Key. to nesting and existing zone is no
foraging shorebirds longer needed as
that use the the nearby proposed
shallow seagrass Marvin Barracuda
flats. Keys WMA would be
more effective for
decreasing bird
disturbance in this
general area.
Marvin Key.................. Decrease disturbance NOAA determined that
to nesting and the impacts to
foraging shorebirds access to popular
that use the recreation sites
shallow seagrass outweighed the
flats. resource protection
benefits of this
zone and the nearby
proposed Marvin
Barracuda Keys WMA
would be more
effective for
decreasing bird
disturbance in this
general area.
East Barracouta Key......... Decrease disturbance NOAA determined
to ESA-listed sea resource conditions
turtles and protect are not severe
important enough to warrant
hardbottom habitat. restricting access.
Shallow seagrass
flats in the area
exhibit light prop
scarring.
Boca Grande Woman Key Flat.. Decrease disturbance NOAA determined that
to nesting and the resource
roosting birds and protection needs of
shallow water this site, at this
habitats including time, are not
seagrass and sufficient to
hardbottom. Limit restrict access.
user conflict in a USFWS specifically
high traffic area. noted that if this
shallow flat were
used by nesting
birds in the
future, they would
work with NOAA on
options to use the
proposed Temporary
Regulation for
Emergency and
Adaptive
Management.

[[Page 42823]]

Wilma Key................... Decrease disturbance NOAA determined that
to nesting and the resource
roosting birds. protection needs of
Decrease this site, at this
disturbance to ESA- time, are not
listed sea turtle sufficient to
nesting beaches restrict access.
that may be USFWS noted
impacted by high interest in working
concentrations of with NOAA to
visitors. Shallow potentially use the
seagrass flats proposed Temporary
around the island Regulation for
exhibit light-to- Emergency and
moderate prop Adaptive Management
scarring. if bird nesting
occurs here in the
future.
------------------------------------------------------------------------

v. Shoreline Slow Speed
In addition, NOAA has decided not to include a shoreline slow speed
regulation in this proposed rule. The existing regulation requiring
idle speed no wake operation within 100 yards of residential shorelines
would remain in effect and not be modified. NOAA's deliberation on this
draft regulation considered the value that additional shoreline
protections could provide in light of potential impacts from climate
change and sea level rise and therefore NOAA does not rule out
potential future, additional shoreline vessel speed regulations.
Public comments were generally supportive of a proposed shoreline
slow speed regulation because it would potentially decrease the number
of individual Wildlife Management Areas (where speed is regulated),
reduce the need for marker buoys and signage, and provide additional
protections for nearshore habitats and species. However, several
comments noted concern regarding the feasibility of enforcing a
shoreline slow speed regulation and the number of exceptions that may
be required for channels, passes, and ability to access deeper areas
nearshore. Agency comments both supported this proposed regulation and
noted similar concerns to those included in public comments.

4. Additional Marine Zone Regulations

a. Motorized Personal Watercraft
NOAA proposes including regulatory changes to allow motorized
personal watercraft (PWC) operation in a small portion of the Key West
National Wildlife Refuge, west of the Key West main ship channel around
marker G13, where PWC operation is otherwise prohibited.
The 2019 DEIS included this proposal in Alternatives, 2, 3, and 4.
Public comments on the operation of PWCs in the sanctuary ranged from
banning PWCs throughout the sanctuary to opposing any restrictions for
where PWCs could operate. Public comments also included more specific
recommendations, such as allowing PWC use in areas parallel to the
entire length of the Key West ship channel to further public safety,
and that the State of Florida should take the lead for regulating PWCs
under Chapter 327.60 Florida Statutes, which states that personal
watercraft must be regulated as any other vessel on waters of the
State. USFWS comments supported allowing PWC operation in this small
section with no other changes to PWC operations within the National
Wildlife Refuges.
b. Tortugas North Access Permits
NOAA proposes streamlining the permit application process for
persons wishing to enter the Tortugas North Conservation Area. The
current regulation requires that access permits must be requested at
least 72 hours but no longer than one month before the date that access
is requested. NOAA proposes to remove the current requirement to
request access permits no longer than one month before the date of
entrance to the area, and remove the requirement to notify FKNMS before
entering and upon leaving the area. The requirement to request an
access permit at least 72 hours in advance will remain. This permit
would also refer to the zone as Tortugas North Conservation Area rather
than Ecological Reserve due to the zone type name change.
NOAA received minimal public and agency comments regarding this
specific proposal, but those comments received were supportive of it.
c. Catch and Release Fishing by Trolling in Four SPAs
NOAA proposes eliminating the exception allowing catch and release
fishing by trolling in four SPAs (Conch Reef, Alligator Reef, Sombrero
Key, and Sand Key). NOAA believes that user compliance is greatly
reduced and enforcement greatly hindered when exceptions to regulations
in specific zones are provided. Over two decades of management
experience with marine zones in the sanctuary points to providing zones
with consistent and clear regulations.
The 2019 DEIS included this proposal in Alternatives 2, 3, and 4.
Public comments included support for additional and consistent
protections and opposition for the loss of fishing access in these
SPAs. FWC comments noted that state rules at 68B-6, F.A.C. allow catch
and release by trolling in Sand Key SPA, which is in State waters.
Modification to fishing activities in this area would constitute a
fisheries management action under FWC authority, and the FWC was not
supportive of access limitations without information to justify that
such an action was in response to a specific problem. Considering these
comments, NOAA determined that the effects of removing the exception
for catch and release fishing at Sand Key SPA, in State waters, would
be insignificant given the small size of this zone (0.45 square miles)
and because fishermen are able to access multiple reef areas nearby but
outside this zone. As noted above, consistent no fishing and no harvest
regulations in fully protected SPAs facilitate compliance by all users.
d. Bait Fishing Permits
NOAA proposes eliminating over a three-year period the practice of
issuing bait fishing permits of any kind in SPAs in federal waters and
the practice of issuing permits to bait fish using cast nets in SPAs in
State waters. FKNMS regulations currently prohibit fishing within SPAs,
with exceptions for catch and release fishing in four SPAs (see 15 CFR
922.164(d)). However, NOAA has been issuing a very small number of
general permits for limited bait fishing in SPAs since the original
FKNMS regulations became effective in 1997. Permits issued to date
allow the harvest of bait fish from all 18 SPAs using either a hand-
thrown cast net (which is the gear used by recreational and charter
fishermen) or modified lampara net (which is the gear type used by
commercial fishermen in the State's limited endorsement lampara net
fishery). NOAA also issues general permits that authorize the use of
small hair hooks (i.e., sabiki rig) to remove baitfish from just three
of the SPAs in federal waters offshore of Islamorada. All permitted
fishermen are required to report their catch inside and outside of the
SPAs to FKNMS annually. NOAA's

[[Page 42824]]

proposal to eliminate the practice of issuing bait fish permits does
not require a change to the regulations and would be implemented via
changes to FKNMS's permitting policies. When final FKNMS regulations
become effective, existing bait fishing permit holders would have the
option to renew their permit annually for three years but NOAA would
not issue any bait fishing permits to any new persons. After the third
year, NOAA would no longer issue permits for this activity.
Public comments supporting this proposal noted that allowing this
activity in SPAs creates an incentive to fish in no-fishing zones more
generally and supported consistency of regulations in all SPAs. Public
comments opposing this proposal noted that allowing bait fishing in
SPAs was part of an original trade-off with fishermen to gain their
support for the establishment of SPAs, noting that this agreement
should continue to be upheld.
Agency comments from FWC and SAFMC supported phasing out the use of
cast nets for bait fishing in SPAs, stating that the use of this gear
may cause impacts to coral reef and hardbottom habitats. GMFMC noted
that NOAA may want to consider specific gear types that could be
allowed and recommended consulting with FWC. More specifically, FWC
supported continuing to allow the use of modified lampara nets to
commercially harvest baitfish in the SPAs. FWC also noted that even
though this proposal does not impact the ability of fishermen to fish
for bait outside of SPAs, SPA areas have been identified as important
areas for bait fishing in the Keys. FWC noted that a limited entry
lampara net endorsement exists in State waters and therefore
recommended that those endorsement holders be allowed to continue to
fish within designated SPAs. FWC explained that gear contact with the
reef is unlikely and conflict with other user groups is unlikely based
on the time of day they fish.
NOAA considered FWC's comments regarding continuing to allow
lampara net use in SPAs in federal waters, but believes that allowing
only certain gear types increases conflict with other users and
importantly, complicates compliance with the existing prohibition
against fishing in these areas. This proposed decision is based on over
25 years of management of the network of marine zones within the
sanctuary, including a review of catch log data submitted by permit
holders over the past five years. These reports indicate that there is
a limited number of recreational and commercial fishermen using the
permits to catch bait fish, with over half of the permitted fishermen
reporting annually they are not using the permit (i.e., not catching
baitfish within the SPAs). Those fishermen that do state they are
harvesting baitfish within the SPAs report very low catch numbers,
leading NOAA to believe that very few users will be adversely affected
by this change and that most fishermen are already catching baitfish
outside of the SPAs. NOAA has also received input from dozens of
recreational (cast net) fishermen over the last two decades through log
form reporting and other means (e.g., phone calls, emails) noting
conflicts with commercial lampara net fishermen when in the SPAs.
NOAA considered all of this input when proposing the change in bait
fishing permits in this proposed rule. Specifically, in support of the
comments from FWC summarized above, NOAA would work with state fishery
managers to develop a process for fishermen currently managed through
the State's limited entry endorsement program to use lampara nets in
existing SPAs in State waters.
e. Restricted Access in Select Sanctuary Preservation Areas
NOAA's proposed rule does not include a regulation to restrict
commercial operator access in three SPAs (Carysfort Reef, Sombrero Key,
and Sand Key), as proposed in Alternatives 3 and 4 in the DEIS. In
these regulatory alternatives, NOAA would have only allowed charter
operator access to these areas to dive/snorkel businesses that
participate in the Blue Star program. The Blue Star program is an
existing program that recognizes tour operators who are committed to
promoting responsible and sustainable diving and snorkeling practices
to reduce the impact of these activities on ecosystems in the Florida
Keys, participate in training for their staff, and conduct conservation
activities. NOAA received many public comments specific to these
alternatives to limit access, with the majority of comments opposing.
While not supporting this specific proposal, comments also noted
concern about increasing numbers and intensity of use and supported
considering ways to manage numbers of users in the sanctuary including
in coral reef and backcountry areas. In addition, many commenters
acknowledged that other resource protection entities (U.S. Forest
Service, National Park Service, international marine parks, among
others) manage use, access, and overall numbers of users through
various regulatory and non-regulatory mechanisms, and some commenters
provided ideas and recommendations for consideration, which NOAA will
evaluate as additional management plan activities are considered. In
response to these comments, the revised draft management plan includes
additional information about NOAA's intent to better assess sanctuary
carrying capacity, evaluate regulatory and non-regulatory tools to
manage use and use numbers in the sanctuary, and consider how existing
regulations and management activities can be more strategically applied
to better manage use and impacts from use (e.g., boater education,
mooring buoys, proposed no anchor regulation in SPAs, etc.). With this
additional evaluation and further public and agency engagement, NOAA
may consider regulatory action to manage numbers of users and impacts
of this use on sanctuary resources in the future.

5. Sanctuary Management Plan

NOAA has revised the draft management plan that was published along
with the 2019 DEIS. While NOAA received very few direct comments on the
specific content in that draft plan, public comments did highlight
several management issues of interest including: (1) water quality, (2)
enforcement, (3) education, (4) mooring and marker buoys and signage,
(5) better understanding of carrying capacity and managing high and
conflicting uses, (6) habitat restoration, (7) artificial habitats and
artificial reefs, and (8) management effectiveness monitoring and the
ability to be more flexible in responding to outcomes of such
monitoring.
The revised draft management plan, which includes the non-
regulatory actions, complements and further supports this notice of
proposed rulemaking. The revised draft management plan actions are
largely focused on understanding and improving the condition of
sanctuary resources through reducing threats and addressing emerging
issues. Actions also include the need to engage with and strengthen
partnerships to address issues and impacts that occur outside the
sanctuary boundary and fall within the jurisdiction or authority of
partner federal or state agencies. For example, a priority is
strengthening the NOAA partnership with the South Florida Ecosystem
Restoration Task Force to ensure Florida Keys water quality, habitat,
living marine resource conditions, and community interests are
considered and integrated into regional restoration and management
plans.

[[Page 42825]]

NOAA has revised the draft management plan to provide more detail
on these and other topics identified in this Notice. A copy of this
revised draft management plan is available at the address and website
listed in the ADDRESSES section of this proposed rule.

IV. Summary of Proposed Changes to the Sanctuary Terms of Designation

Section 304(a)(4) of the NMSA requires that the terms of
designation for national marine sanctuaries include: (1) the geographic
area of the sanctuary; (2) the characteristics of the area that give it
conservation, recreational, ecological, historical, research,
educational, or aesthetic value; and (3) the types of activities
subject to regulation by NOAA to protect those characteristics. This
section also specifies that the terms of designation may be modified
only by the same procedures by which the original designation was made,
including public notice and comment, and preparation of an EIS. Terms
of designation include the geographic area of the sanctuary,
characteristics of the area that give it value, and the types of
activities that will be subject to regulation. Therefore, through the
proposed rule, the revised FKNMS terms of designation would:
1. Modify Article I (``Designation and Effect'') to include the
expanded sanctuary boundary;
2. Modify Article II (``Description of the Area'') by changing the
geographic description and size of the sanctuary;
3. Modify Article III (``Characteristics of the Area That Give it
Particular Value'') by updating the size of the sanctuary and the
description of the special resources contained within it;
4. Modify Article IV (``Scope of Regulation'') by simplifying
descriptions of the categories of activities that may be subject to
regulation. As originally drafted, the Terms of Designation contain a
level of detail similar to, if not the same, as the regulations.
Instead, NOAA proposes to provide broad categories of activities to be
more consistent with the legislative intent of section 304(a)(4) of the
NMSA to merely identify the ``types of activities,'' and rely instead
on the regulations themselves to provide the specific regulatory
details. Otherwise, the ``Scope of Regulation'' section would be
duplicative of the regulations and serve no purpose. By simplifying the
activity descriptions, NOAA is not broadening in any way the scope of
the regulations and is not adding any new or different activities to be
subject to regulation. The regulations themselves contain the operative
language and only the regulations are enforceable;
5. Modify Article V (``Effect on Leases, Permits, Licenses, and
Rights'') by modifying language to be consistent with section 304(c) of
the NMSA related to any valid lease, permit, license, approval, or
other authorization or right in existence prior to the effective date
of the revised terms of designation, and to cite the correct section of
Office of National Marine Sanctuaries regulations for certifying such
valid rights;
6. Modify the ``Florida Keys National Marine Sanctuary Boundary
Coordinates'' to include the expanded sanctuary boundary.
For the proposed modified FKNMS Designation Document, please refer
to appendix J.

V. Classification

1. National Marine Sanctuaries Act

Section 301(b) of the NMSA (16 U.S.C. 1431) provides authority for
comprehensive and coordinated conservation and management of national
marine sanctuaries in coordination with other resource management
authorities. Section 304(a)(4) of the NMSA (16 U.S.C. 1434) requires
that the procedures specified in Section 304 for designating a national
marine sanctuary be followed for modifying any terms of designation.
This action is revising the terms of designation (e.g., expanding the
boundary) for FKNMS. Section 304(a)(5) of the NMSA also requires that
NOAA consult with the appropriate federal fishery management council on
any action proposing to regulate fishing in federal waters.
Consultation with the SAFMC and GMFMC is discussed above in part II,
FKNMS 2019 DEIS--The Restoration Blueprint Process, section 3c, Agency
Consultations and Other Coordination. Pursuant to Section 304(a)(1) of
the NMSA, Congress and the Governor of Florida will also have the
opportunity to review this proposed action.

2. National Environmental Policy Act

In accordance with Section 304(a)(2) of the NMSA (16 U.S.C.
1434(a)(2)), and the provisions of NEPA (42 U.S.C. 4321-4370), NOAA has
prepared a DEIS to evaluate the impacts of this action. For more
information on the DEIS and steps leading to the action, please refer
above to part II, FKNMS 2019 DEIS--The Restoration Blueprint Process,
section 2, Draft Environmental Impact Statement (DEIS). The DEIS
contains a statement of the purpose and need for the project,
description of proposed alternatives, including the no action
alternative, description of the affected environment, and evaluation
and comparison of environmental consequences including cumulative
impacts.
NOAA has determined that a supplemental NEPA analysis is not
required for this proposed rule because the DEIS presented the public
with a comprehensive analysis of the spectrum of environmental impacts
among several alternative scenarios from which this proposed rule was
derived. Any changes reflected in the proposed action are insubstantial
in that they do not differ from the impacts already analyzed in the
DEIS. The specific combination of elements from the alternatives
analyzed in the DEIS and reflected in the proposed rulemaking will not
have any synergistic or cumulative impacts not already analyzed in the
DEIS. Based on the evaluation of the alternatives, NOAA determined that
no significant adverse impacts to resources and the human environment
are expected if any of the alternatives are adopted, and this
conclusion applies to this proposed action. Copies of the DEIS are
available at the address and website listed in the ADDRESSES section of
this proposed rule. NOAA will analyze the comments that have been
previously received on the DEIS when the final rule and FEIS are
prepared and issued. NOAA also invites the public to provide additional
comments on the DEIS based on the proposed rule as presented herein.

3. Executive Order 12866: Regulatory Impact

OMB has determined this rule is significant as that term is defined
under Executive Order 12866. NOAA anticipates the associated costs with
this proposed rule will be de minimis, as explained more fully in the
Regulatory Flexibility Analysis, a copy of which is available at the
address and website listed in the ADDRESSES section of this proposed
rule.

4. Executive Order 13132: Federalism Assessment

NOAA has concluded this regulatory action does not have federalism
implications sufficient to warrant preparation of a federalism
assessment under Executive Order 13132. This proposed rule will not
have a substantial or direct effect on states or local governments.
NOAA has coordinated closely with state partners throughout the
development of this proposed rule and, where applicable and
practicable, aligns with and/or defers to existing state regulations
for proposals within State waters of the sanctuary. NOAA has aimed for
consistent regulations throughout

[[Page 42826]]

sanctuary waters including those within state and federal jurisdiction.

5. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

Executive Order 13175 reaffirms the Federal government's commitment
to tribal sovereignty, self-determination, and self-government. Its
purpose is to ensure that all Executive departments and agencies
consult with Indian tribes and respect tribal sovereignty as they
develop policies on issues that impact Indian communities. This
proposed action is not anticipated to have substantial direct effects
on one or more Indian tribes, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibility between the Federal government and Indian tribes. The
Seminole Tribe of Florida Tribal Historic Preservation Office provided
comments on the DEIS specific to the Programmatic Agreement under
Section 106 of the National Historic Preservation Act regarding Florida
Keys National Marine Sanctuary Operations, Management, and Permitting,
and consultation related to archaeological research permits.

6. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires Federal agencies to
prepare an analysis of a rule's impact on small entities whenever the
agency is required to publish a notice of proposed rulemaking, unless
the agency can certify, pursuant to 5 U.S.C. 605(b), that the action
will not have a significant economic impact on a substantial number of
small entities. NOAA has prepared a Socioeconomic Report, in which
Chapter 6 serves as the factual basis for certification. A copy of this
report is available as a supporting document to this rule (see
ADDRESSES). Chapter 6 of the report, Economic Effects on Small
Entities, is also included here.
This section evaluates the quantitative potential effects of marine
zone boundary changes on small entities. There are three primary
industries considered in this section; commercial fishing, recreational
for-hire fishing and dive/snorkeling for-hire operations. Based upon
quantitative and qualitative analysis, the quantitative assessment
provided here is an overestimate of the negative potential impacts of
the proposed rule. We conclude that the economic impacts are expected
to be much smaller because, based on other studies of marine protected
areas, fishers are anticipated to be able to relocate their effort to
other areas or other species.
The RFA requires agencies to consider the effects of rules on small
entities. The RFA does not require the agency to necessarily minimize a
rule's impact on small entities. There are no decision criteria in the
RFA. Instead, the goal of the RFA is to inform the agency and public of
expected economic effects of the proposed rule contained within the
regulatory action and to ensure the agency considers alternatives that
minimize the expected economic effects on small entities while meeting
the goals and objectives of the applicable statutes.
This analysis supports NOAA's decision to certify that the proposed
rule will not have a significant economic impact on a substantial
number of entities, and, therefore, no further analysis is needed under
the RFA (US EEOC, 2021). The analysis provided here supports NOAA's
decision to certify that there will not be a significant economic
impact on a substantial number of entities.
Small entities are defined by the Small Business Administration
(SBA). The definition of the relevant small businesses are presented
here and are from the most recent size standards published by the SBA
in 2019 (US SBA, 2019). Size standards are based upon the average
annual receipts (all revenue) or the average employment of a firm. The
commercial size standards for finfish fishing (NAICS code--114111) is
$22.0 million, shellfish fishing (NAICS code--114112) is $6.0 million
and other marine fishing (NAICS code--114119) is $8.0 million. Scenic
and sightseeing transportation, water-based businesses such as for-hire
recreational fishing operations, and dive/snorkeling for-hire
operations (NAICS code--487210) have size standards of $8.0 million.
a. Commercial Fishing
All data presented in this chapter uses the five-year average
(2015-2019). The data was provided by FWC. The data set requested by
ONMS only includes data for landings that occur within the statistical
areas and subareas described in Chapter 4 of the Socioeconomic Report.
It is possible that some of the vessels with landings in the evaluated
statistical areas have additional landings outside of the data
requested from the State. This means that some of the vessels evaluated
may not be classified as small businesses as defined by the SBA if
their landings within Monroe County-associated statistical areas in
addition to those outside Monroe County surpass the SBA size standards.
Additionally, complete ownership and cost data for businesses and
vessels that participate in commercial fishing and other industries is
not available.
Consequently, NOAA is not able to determine affiliations between
multiple vessels and businesses. As a result, NOAA assumes that each of
the vessels are independently owned by a single business. Either one of
these two factors alone could result in an overestimate of the actual
number of small businesses directly impacted by the proposed regulatory
action. Additionally, the spatial data provided is for the statistical
subareas and data are not available related to the specific catch or
number of businesses that operate within the proposed marine zones. In
this regard, there is a spatial mismatch between the data available and
the size of the marine zones, which are likely to affect commercial and
recreational activity. Chapter 4 of the Socioeconomic Report documents
the assumptions made with regards to how affects to these specific
industries are estimated.
i. Description and Estimate of the Number of Small Entities to Which
the Proposed Action Would Apply
NOAA has calculated the potential number of vessels that may be
impacted by this proposed rule. If a vessel operates in a statistical
subarea that has a proposed zone or zone change that would impact
commercial fishing, these vessels were considered. Unless otherwise
stated, the supporting Socioeconomic Report (see Table 4 in Chapter 2)
shows the statistical areas associated with the Gulf of Mexico or South
Atlantic regions and which statistical areas include proposed rule zone
changes that would restrict commercial fishing. In total, there are six
statistical areas that have zone changes within habitat that the
species analyzed are likely to be associated with. Impacts are
considered by fish groups below. It is possible, and likely, that
vessels may target multiple species and thus would be accounted for in
several of the individual fish groupings provided below.
Reef Fish
The reef fish analyzed here include red grouper, grunts, hogfish
(hog snapper), mutton snapper, grey (mangrove) snapper, lane snapper,
black grouper (carberita), gag grouper, and yellowtail snapper. Please
see Chapter 4 of the Socioeconomic Report for a more detailed
explanation of why the analysis of reef fish focused on these nine
specific reef associated species. The analysis for reef associated
species is provided for the Gulf of Mexico and South Atlantic
fisheries. The five-year

[[Page 42827]]

average (2015-2019) of the number of vessels that reported at least $1
or more of harvest revenue for reef associated species in statistical
areas affected by the proposed rule are presented here. In the Gulf of
Mexico region, there was an annual average of 39 vessels. For the South
Atlantic fishery there was an annual average of 231 vessels. (The
estimates of vessels should not be summed to get the total number of
vessels, as some vessels may fish in both regions and this would result
in double counting.) Further, the maximum annual average revenue (2011-
2015) of vessels operating within the Gulf of Mexico Reef Fish Fishery
is $4.9 million (GMFMC, 2017). Within the South Atlantic Snapper
Grouper Fishery, the maximum average annual revenue (2012-2016) is $1.7
million (SAFMC, 2019). The SBA commercial size standard for finfish is
$22.0 million, all vessels that have reported $1 or more of reef fish
harvest revenue do not surpass this threshold. Consequently, all the
vessels potentially affected by this regulation are considered small
entities.
Shrimp
Commercial vessels that fished pink, brown, white, royal red, rock,
and ``other'' shrimp species (as reported in FWC trip tickets) were
considered in this analysis. The number of vessels engaged in the
shrimp fishery was estimated for the Gulf of Mexico and South Atlantic
regions. Statistical subarea 2.8 (Federal Waters Gulf of Mexico) is the
only statistical subarea in which the shrimp fishery may be affected by
the proposed rule; thus, no South Atlantic region vessels engaged in
the shrimp fishery would be affected. From 2015-2019, an average of 108
vessels per year reported at least $1 or more of harvest revenue in
statistical subarea 2.8. The SBA commercial size standard for shell
fishing is $6.0 million. From 2011-2014, the maximum annual average
revenue for a single vessel harvesting shrimp in the Gulf of Mexico was
$2.0 million (GMFMC, 2017b). Consequently, all vessels potentially
affected by the proposed rule were considered small entities.
Lobster
The five-year average of the number of vessels that reported at
least $1 or more of harvest revenue fo

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