Rule2025-00496
Regulations for the Florida Keys National Marine Sanctuary Management Review: Blueprint for Restoration
Primary source
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Published
January 17, 2025
Effective
January 17, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
As part of its Restoration Blueprint initiative, the National Oceanic and Atmospheric Administration (NOAA) is issuing final regulations for the Florida Keys National Marine Sanctuary (FKNMS or sanctuary) that will 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. NOAA is also finalizing a revised management plan and final environmental impact statement (EIS) as part of this action. The final rule describes how NOAA will work to improve the condition of resources in FKNMS 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 final rule is to manage and protect the living and heritage resources of FKNMS for the benefit of the public.
Full Text
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[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 6104-6215]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00496]
[[Page 6103]]
Vol. 90
Friday,
No. 11
January 17, 2025
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 922
Regulations for the Florida Keys National Marine Sanctuary Management
Review: Blueprint for Restoration; Final Rule
Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules
and Regulations
[[Page 6104]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 241204-0311]
RIN 0648-BJ14
Regulations 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: Final rule.
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SUMMARY: As part of its Restoration Blueprint initiative, the National
Oceanic and Atmospheric Administration (NOAA) is issuing final
regulations for the Florida Keys National Marine Sanctuary (FKNMS or
sanctuary) that will 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. NOAA is also finalizing a revised management plan and
final environmental impact statement (EIS) as part of this action. The
final rule describes how NOAA will work to improve the condition of
resources in FKNMS 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 final rule is
to manage and protect the living and heritage resources of FKNMS for
the benefit of the public.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and
regulations shall take effect and become final after the close of a
review period of forty-five days of continuous session of Congress,
beginning on the date on which this Federal rulemaking is published,
which is January 17, 2025; however, if the Governor of the State of
Florida certifies to the Secretary of Commerce during that same review
period that any such regulation is unacceptable, the regulation(s) will
not take effect in State waters of the sanctuary. The public can track
days of the congressional session at the following website: <a href="https://www.congress.gov/days-in-session">https://www.congress.gov/days-in-session</a>. NOAA will publish an announcement of
the effective date of the final regulations in the Federal Register.
Incorporation by reference: The incorporation by reference of
certain material listed in the rule is approved by the Director of the
Federal Register as of after the close of a review period of forty-five
days of continuous session of Congress, beginning on the date on which
this Federal rulemaking is published, which is January 17, 2025. NOAA
will publish an announcement of the IBR approval date in the Federal
Register.
Delay of effective date: NOAA is delaying the effective date of
Sec. Sec. 922.163(a)(5)(x) and 922.164(e)(3), (f)(2), (g)(1), and
(h)(1) until January 19, 2027.
ADDRESSES: Copies of the final EIS and management plan described in
this rule, the Record of Decision (ROD), and additional background
materials are available at <a href="https://floridakeys.noaa.gov/blueprint/">https://floridakeys.noaa.gov/blueprint/</a>.
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#4d2f283925632924283b282328340d23222c2c632a223b"><span class="__cf_email__" data-cfemail="4e2c2b3a26602a272b382b202b370e20212f2f60292138">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
1. Florida Keys National Marine Sanctuary
Designated in 1990, FKNMS was the ninth national marine sanctuary
in the National Marine Sanctuary System. As one of the largest marine
protected areas in the United States, FKNMS encompasses 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. FKNMS provides habitats
for more than 6,000 species of fishes, invertebrates, and plants, in
addition to uniquely expansive and diverse seagrass and coral reef
communities. 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 final rule follows
NOAA's publication of a 2022 proposed rule and a 2019 draft EIS, which
included a range of alternatives.
The health of the marine environment around the Florida Keys and
the health of the Florida Keys community in Monroe County, Florida, are
inextricably linked. A declining marine environment puts the economy
and jobs at risk. Relying on the existence and maintenance of a healthy
marine environment, the Florida Keys support more than 82,874 residents
and approximately 5.13 million visitors annually (Rockport Analytics,
2019). Tourism value to the Florida Keys economy was estimated at $2.4
billion (in 2018, the most recent year data were available), supporting
43% of jobs and employment in Monroe County and sales tax paid by
visitors to Monroe County made up roughly 59% of state and local tax
receipts attributed to tourism (Rockport Analytics, 2019).
2. Need for the Rulemaking
NOAA's management of FKNMS is directed by the purposes and policies
of the NMSA and the Florida Keys National Marine Sanctuary and
Protection Act (FKNMSPA, Public Law 101-605). The NMSA requires the
Secretary of Commerce (Secretary) to 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 . . . revise the management plan and regulations as
necessary to fulfill the purposes and policies of this chapter. (16
U.S.C. 1434(e)). Those purposes and policies include:
<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 (id. 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 (id. (b)(6));
<bullet> Develop and implement coordinated plans for 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 (id. 1431(b)(7)); and
<bullet> Create models of, and incentives for, ways to conserve and
manage these areas, including the application of innovative management
techniques (id. 1431(b)(8)).
[[Page 6105]]
The FKNMSPA 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 (Sec. 3, Pub.
L. 101-605, 104 Stat. 3090).
In order to ensure long-term resource viability and ecosystem
function, NOAA is updating the FKNMS management framework to address
current and future threats to sanctuary resources, such as 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, NOAA is updating FKNMS management efforts to respond
to the 2011 FKNMS Condition Report,\1\ which concluded that resources
in the Florida Keys were in fair to fair/poor condition and 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, a
seagrass die-off, and warming ocean temperatures as evident during the
summer 2023 marine heat wave, 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 the comment phase on the draft documents for
this action, 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 public support for sanctuary expansion and
updated marine zones--actions that are consistent with the purposes and
policies of the NMSA and the FKNMSPA. As a result, this final rule
extends national marine sanctuary management actions to areas that have
demonstrated biological and ecological connectivity with existing
sanctuary resources and includes adaptive management strategies to
better respond to changing conditions, use patterns, and emerging
threats to resources.
In addition to these regulatory updates, NOAA is enhancing
research, restoration, and education efforts to conserve and restore
these nationally significant sanctuary resources. These efforts, which
are described in the final management plan, are 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, which involved a separate regulatory review
aimed at creating consistency and streamlining national marine
sanctuary regulations, on January 6, 2023, NOAA updated some of the
regulations found at 15 CFR part 922 (88 FR 953 \2\). Part 922 includes
general regulations applicable to all national marine sanctuaries
(subparts A through E) and site-specific regulations that relate to
each individual sanctuary (subparts F through T). All regulatory
references to 15 CFR part 922 in this final rule conform with the 88 FR
953 final rule.
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\2\ <a href="https://www.federalregister.gov/documents/2023/01/06/2022-28225/national-marine-sanctuary-regulations">https://www.federalregister.gov/documents/2023/01/06/2022-28225/national-marine-sanctuary-regulations</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 (F.A.C.) 68B-42.001 and 68B-42.002. Specifically,
under these Florida regulations, the definitions of ``marine life
species'' and ``tropical fish'' in 68B-42.002 incorporate lists of
species designated as ``restricted species'' found at 68B-42.001. Under
Florida regulations, a fishing permit is required to target any species
that falls under the definition of ``marine life species'' and
``tropical fish.'' Similarly, sanctuary regulations at Sec.
922.163(a)(12) require, among other things, 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 management 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.
II. 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 (draft EIS),
announced five public scoping meetings, and solicited public comment.
NOAA 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. Environmental Impact Statement (EIS)
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 draft EIS and updated
draft management plan on (84 FR 45728, August 30, 2019). NOAA accepted
public comments on the draft EIS from August 2019 to January 2020 and
hosted six public hearings and two Sanctuary Advisory Council meetings
to hear public comment. NOAA received comment from 1,213 distinct
commenters during the public comment period and several letters and
petitions with multiple signatories for a total of well over 35,000
comments.
[[Page 6106]]
The draft EIS, also referred to as the Florida Keys National Marine
Sanctuary Restoration Blueprint, evaluated the environmental
consequences of four specific alternatives and provided an in-depth
resource assessment. The alternatives in the draft EIS 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 draft EIS alternatives aimed 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.
A final EIS was prepared following the release of the 2022 Notice
of Proposed Rulemaking (NOPR) described below. The final EIS includes
the four alternatives evaluated in the draft EIS, the 2022 NOPR
proposal, and a preferred alternative. The preferred alternative in the
final EIS matches the regulations in this rule. The final EIS was
released on December 13, 2024 and is available at <a href="https://floridakeys.noaa.gov/blueprint/">https://floridakeys.noaa.gov/blueprint/</a>.
All alternatives analyzed in the final EIS are consistent with
NOAA's mission to conserve and manage coastal and marine ecosystems and
resources, would further the 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 final EIS.
3. The Notice of Proposed Rulemaking
The proposed rule combined individual aspects of each of the four
alternatives presented in the draft EIS, was directly informed by the
thousands of public and agency comments received on the draft EIS, and
considered updated environmental and socioeconomic information.
On July 18, 2022, NOAA published a NOPR modifying the FKNMS
boundary, sanctuary-wide regulations, and marine zones and associated
regulations (87 FR 42800). NOAA hosted five public comment meetings,
throughout the Florida Keys and virtually, and accepted written
comments from July 18, 2022, to October 26, 2022. NOAA accepted
comments in the form of letters and written comments through electronic
submissions to <a href="http://regulations.gov">http://regulations.gov</a>, letters submitted by mail, and
both in-person and virtual public hearings. NOAA received 426 unique
comments during the public comment period on the NOPR. All public
comments on the proposed rule are available at <a href="https://www.regulations.gov/docket/NOAA-NOS-2019-0094">https://www.regulations.gov/docket/NOAA-NOS-2019-0094</a>. NOAA's response to the
public comments is set forth in Section V of this document.
In addition to public comment, NOAA consulted with and received
technical assistance and comment from several Federal agencies, fishery
management councils (FMCs), and State agencies. A brief summary of
engagement follows.
a. U.S. Fish & Wildlife Service Consultation
USFWS has been engaged in the Restoration Blueprint process since
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 draft EIS and to initiate the scoping process. 77 FR 23425 (April 19,
2012). USFWS participated in the public scoping events and relevant
community working groups and provided subject matter expertise
throughout development of the draft EIS, the proposed rule and this
final rule. In addition, NOAA initiated informal Endangered Species Act
(ESA) consultation with USFWS Ecological Services in August 2019 and
received comment on June 22, 2020. In that comment letter, USFWS
Ecological Services concurred with NOAA's determination that the
proposed action is unlikely to adversely affect listed species or
adversely modify critical habitat and noted that coordination with the
Florida Keys National Wildlife Refuges would be ongoing in the
development of the proposed and final rule. NOAA provided USFWS the
proposed rule on July 18, 2022 and on February 21, 2024, a description
of the minor changes anticipated to that rule following public comment.
NOAA concluded that these updates to the regulations since publication
of the draft EIS do not change NOAA's determination, and USFWS
concurred on February 23, 2024.
b. Regional Fishery Management Council Consultation
Pursuant to NMSA Section 304(a)(5), NOAA 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) on potential regulatory changes that affect Federal
fisheries. NOAA also provided multiple updates at the respective
Council meetings and various advisory and technical committees over the
course of the development of the draft EIS and throughout the public
comment period following its release. Both the GMFMC and SAFMC
submitted comment letters on the draft EIS on February 21, 2020 and
March 13, 2020 respectively.
NOAA continued to engage with and provide briefings for both FMCs
and their individual advisory panels during the proposed rule public
comment period. Both the GMFMC and SAFMC submitted comment letters on
the proposed rule on February 15 and February 22, 2023, respectively,
which are responded to below.
c. 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 draft EIS, in a comment letter on March 2,
2020, and during development of the proposed and final rule. This
information was used to inform the updated list of military activities
that are exempted from NOAA regulations under 922.163(d) (see Appendix
F of the final EIS).
d. State of Florida Coordination
NOAA has worked closely with several Florida State agencies
throughout the public scoping process, and development of the draft and
final EISs and the proposed and final rule. Approximately 60 percent of
the sanctuary is within Florida State waters, and 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
[[Page 6107]]
management relationship. Finally, NOAA has evaluated this final rule to
ensure compliance with the requirements of Section 307 of the Coastal
Zone Management Act specifically in relation to the enforceable
policies of Florida's Coastal Zone Management Program. NOAA submitted
its consistency determination to the State on May 21, 2024.
Florida Department of Environmental Protection
NOAA coordinated extensively with Florida DEP throughout the
process. DEP was represented at most Sanctuary Advisory Council
community working group meetings where they provided management
perspective and resource status and use data and has an official seat
on the Sanctuary Advisory Council. DEP submitted comment letters to
NOAA on the 2019 draft EIS on May 1, 2020, and on the proposed rule on
March 31, 2023.
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 to facilitate one of the working
groups, and has an official seat on the Sanctuary Advisory Council.
NOAA also provided multiple updates at FWC meetings over the course of
the development of the 2019 draft EIS and throughout the public comment
period. In addition, FWRI research findings directly informed various
regulatory and zoning aspects of this final rule. FWC submitted a
comment letter to NOAA on the 2019 draft EIS on April 29, 2020, and for
the proposed rule on March 30, 2023.
Florida State Historic Preservation Office
The Florida 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 draft EIS (Appendix C) for public comment. In
addition, the SHPO submitted a comment letter to NOAA on the 2019 draft
EIS on January 31, 2020, that noted the draft EIS Preferred Alternative
(Alternative 3) would sufficiently address NOAA'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. On October 13, 2022, NOAA sent a follow-up
letter to the SHPO notifying the SHPO of the publication of the NOPR
and an updated management plan and providing a finding of no adverse
effects to historic properties. The SHPO did not offer further comment.
III. Changes From Proposed to Final Rule
1. Sanctuary Boundary
In this rule, NOAA is modifying the sanctuary boundary to expand
the sanctuary's area from the existing 3,800 square miles to 4,539
square miles but is not including the proposed expansion area in Pulley
Ridge. The final sanctuary boundary is expanded to include the Area To
Be Avoided (ATBA) regulatory zone and the Tortugas Region, as was
proposed in the 2022 NOPR. Concurrent with considering boundary
expansion to include Pulley Ridge, as noted in the proposed rule, the
United States proposed that the International Maritime Organization
(IMO) designate a No Anchoring Area in the southern portion of Pulley
Ridge, which was approved and implemented starting June 1, 2023 (IMO
SN.1/Circ.342 \6\). Therefore, given the IMO action to protect these
habitats from anchor damage from all vessels and the additional
protections in place through GMFMC Habitat Area of Particular Concern
(HAPC) regulations for fishing vessels, NOAA has determined that
sanctuary expansion to include Pulley Ridge is not necessary at this
time, and it is not included in this final rule.
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\6\ See also <a href="https://www.imo.org/en/MediaCentre/MeetingSummaries/Pages/NCSR-9th-session.aspx">https://www.imo.org/en/MediaCentre/MeetingSummaries/Pages/NCSR-9th-session.aspx</a>.
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2. Sanctuary-Wide Regulations
a. Definitions
NOAA amends the definitions for ``anchoring'' and ``no anchoring''
from the definition in the proposed rule to include an exception for
allowing the use of a mooring buoy. Commenters raised concerns that the
proposed definitions would prohibit use of a mooring buoy since a
mooring buoy is technically anchored to the seabed. NOAA amends the
definition for ``at risk of becoming derelict'' and ``deserting'' to
align with the State of Florida definition, which was updated since
release of the 2022 NOPR.
NOAA amends the definition for ``traditional fishing'' to set the
baseline of activities considered traditional to those fishing
activities customarily conducted in the sanctuary as of the effective
date of this rule. The NOPR had set the baseline of traditional fishing
activities as those described in the 1996 Florida Keys National Marine
Sanctuary FMP/EIS (Vol. II), consistent with the existing regulation.
This change is made based on comments received from the FWC, SAFMC, and
GMFMC. This change is intended to define ``traditional fishing'' as
those fishing activities customarily conducted in the sanctuary, as
managed by the FWC in State waters and by NMFS in the EEZ, as of the
effective date of this rule. Fishing regulations change, and by
defining traditional fishing as those activities customarily conducted
as of the effective date of this rule, NOAA does not intend to exclude
fishing activities subject to routine changes to state and federal
fishery management regulations. Routine changes include changes to size
limits, bag limits, vessel limits, trip limits, possession limits,
retention limits, quotas, harvest, catch limits, or catch targets and
routine season modifications including in-season adjustments or
closures. On the other hand, substantial changes to state and federal
fishery management regulations for a fishing activity would make that
activity no longer considered traditional fishing and the changes to
that fishing activity would not be exempted from the corresponding
sanctuary prohibition. Substantial changes include new or modified
regulations that allow use of new gear types or methods or that modify
allowable or authorized gear types or methods. Any future update to the
traditional fishing definition would require a separate rulemaking in
order to consider public comment and to conduct an environmental
analysis under NEPA of the potential impacts of new or innovative gear
types or fishing activities on sanctuary resources. NOAA would
collaborate closely with, and rely on the expertise of, fishery
managers for the FWC, FMCs, and NMFS when considering any updates to
the definition of traditional fishing. Appendix G of the 2024 final EIS
provides additional description of the fishing activities managed by
the FWC in State waters and by NMFS in the EEZ that are intended to be
considered traditional fishing.
Between the draft and final rule, NOAA has added a definition for
``derelict vessels'' and amends definitions of ``at-risk of becoming
[[Page 6108]]
derelict'' and ``deserting'' to align more clearly with the State of
Florida's program for addressing derelict vessels and vessels at-risk
of becoming derelict. The timelines for 24-hour notification and
removal of such vessels within 72 hours of notification have been moved
from the definition of ``deserting'' to the prohibition at
922.163(a)(5)(viii) to reduce confusion and redundancy and to make it
clearer that these timelines also apply to derelict vessels and vessels
at risk of becoming derelict, regardless of whether the vessel is
occupied.
b. Discharge and Deposit Regulation Exception
Consistent with the proposed rule, NOAA updates the existing
discharge and deposit regulation to explicitly prohibit the discharge
or deposit of any material or other matter from a cruise ship, except
cooling water, and to simplify and clarify terminology by removing the
exception for ``exhaust gas'' and ``water generated by routine vessel
operations.'' In response to public comment on the proposed rule, the
final rule further clarifies the exception for the discharge or deposit
of deck washdown by adding the term ``runoff'' to the list of
exceptions, thereby allowing weather/rain runoff to be discharged or
deposited into the sanctuary from a vessel other than a cruise ship.
c. Large Vessel Mooring Buoys
As explained above in the DATES section of this document, NOAA is
delaying the effective date for the large vessel mooring buoy
requirement (Sec. 922.163(a)(5)(x)) for two years beyond the effective
date of this final rule. The purpose of this delay is to provide NOAA
with adequate time to finalize a mooring buoy plan, including numbers
and locations of mooring buoys; to secure materials; and to install new
mooring buoys. Until this provision is effective, large vessels may
continue to use regular mooring buoys.
d. Temporary Regulation for Emergency and Adaptive Management
With regard to the issuance of temporary emergency regulations,
NOAA's final rule is the same as the proposed rule with one minor
technical correction to 922.165(c)(2) which provides an opportunity for
public comment after publication of a temporary emergency rule. As
required under section 553 of the APA, NOAA will collect public comment
before issuing an emergency rule and will delay the effective date by
30 days, unless NOAA finds good cause that doing so is impracticable,
unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B),
(d)(3). The proposed rule provided that the Director shall receive
public comments on the necessity for, and extent of, the temporary
regulation for a period of 15 days after the effective date of
notification. This final rule changes the word ``shall'' to ``may.''
NOAA may choose to collect public comment for 15 days after issuing an
emergency temporary rule when, in NOAA's discretion, it determines that
post-decision comment would be necessary and in the public interest,
such as to inform potential modifications to the emergency or temporary
response action and/or its duration. While NOAA has every intention of
accepting public comment after publication of a temporary emergency
rule whenever NOAA is unable to collect pre-publication notice and
comment, there may be cases where public comment would not inform a
further agency action and post-publication public comment would serve
no agency or public interest.
e. Authorizations of Sunken Military Craft Act Permits
Sunken military craft in FKNMS are administered by the respective
Secretary concerned pursuant to the Sunken Military Craft Act. NOAA
will develop an MOA with the appropriate agencies regarding
collaboration on implementing the Sunken Military Craft Act. The ONMS
Director will request approval from the respective Secretary concerned
for any terms and conditions of ONMS authorizations that may involve
sunken military craft in FKNMS.
3. Marine Zone Boundaries and Associated Marine Zone Regulations
a. Conservation Areas
This final rule adopts the same boundaries and associated
regulations for Conservation Areas as the proposed rule. In addition,
as explained above in the DATES section of this document, NOAA is
delaying the effective date for the prohibition on anchoring in CAs for
two years beyond the effective date of this final rule. The purpose of
this delay is to provide NOAA with adequate time to finalize a mooring
buoy plan including numbers and locations of mooring buoys, secure
materials, and install new mooring buoys. All other CA regulations will
become effective as described in the DATES section above (i.e., after
the close of a review period of forty-five days of continuous session
of Congress).
b. Sanctuary Preservation Areas (SPAs)
In this final rule, NOAA modifies the size of two SPAs presented in
the proposed rule. Turtle Rocks is modified slightly from 2.3 square
miles in the proposed rule to 2.5 square miles in this final rule in
order to align this SPA with the existing John Pennekamp Coral Reef
State Park marine zone. Sombrero Key is modified from 0.52 square miles
in the proposed rule to 0.33 square miles in this final rule. This
change is made to focus SPA protection on the area with the greatest
amount of coral and to exclude areas of primarily sandy bottom.
In addition, as explained above in the DATES section of this
document, NOAA is delaying the effective date for the prohibition on
anchoring on SPAs for two years beyond the effective date of this final
rule. The purpose of this delay is to provide NOAA with adequate time
to finalize a mooring buoy plan, including numbers and locations of
mooring buoys, to secure materials, and to install new mooring buoys.
All other SPA regulations will become effective as of the effectiveness
date of this final rule (i.e., after the close of a review period of
forty-five days of continuous session of Congress), including
eliminating the exception for catch and release fishing by trolling in
Conch Reef, Alligator Reef, Sombrero Reef, and Sand Key SPAs, and
stopping the practice of issuing permits for baitfishing in SPAs.
c. Restoration Areas
The final rule includes two Nursery Restoration Areas in addition
to the nine other restoration areas that were included in the proposed
rule. These two areas were established and permitted as coral nursery
sites after the proposed rule was released for comment. NOAA received
comments requesting that these two nursery sites be included as Nursery
Restoration Areas in this final rule. Both sites are in the Upper Keys
region and are in Federal waters of the sanctuary. Key Largo Nursery
Restoration Area is approximately 0.07 square miles (46.8 acres) and
Islamorada Nursery Restoration Area is approximately 0.07 square miles
(47.2 acres).
In addition, as explained above in the DATES section of this
document, NOAA is delaying the effective date for the prohibition on
anchoring in SPAs for two years beyond the effective date of this final
rule. Habitat and Nursery Restoration Areas apply the same prohibitions
as SPAs, so the prohibition on anchoring in Restoration Areas will also
be delayed two years.
[[Page 6109]]
d. Wildlife Management Areas
NOAA's final rule amends 9 WMAs from what was included in the
proposed rule and eliminates two proposed new WMAs that were included
in the proposed rule. Details follow.
<bullet> Crocodile Lake: In response to a request from USFWS, this
zone is expanded slightly to include a rookery island.
<bullet> Barnes-Card Sound: In response to a request from FWC, the
regulations applied in this zone are modified to be idle speed no wake
instead of no motor.
<bullet> Eastern Lake Surprise: In response to a request from
USFWS, the no entry area in the proposed rule is expanded to include
the entire shoreline.
<bullet> Whitmore Bight: In response to a request from the Florida
DEP and public comment, the no motor zone is expanded to include a John
Pennekamp Coral Reef State Park no motor zone.
<bullet> Dove and Rodriguez Key: In response to public comment, the
northern boundary is adjusted slightly, opening more area for general
use.
<bullet> Tavernier Key: In response to public comment, the boundary
is adjusted slightly, opening more area for general use, and this final
rule does not include a no anchor regulation specific to this zone.
<bullet> Ashbey-Horseshoe Key: This area is within an existing
Lignumvitae Key Aquatic Preserve and Lignumvitae Key Botanical State
Park no motor zone; therefore this rule does not include a new
sanctuary marine zone at this site at this time.
<bullet> Channel Key Banks: In response to public comment and input
from the FWC, this zone is modified slightly to better align with the
bank habitat areas, to add a no entry area around Channel Key, and to
open additional channels for normal operation.
<bullet> Red Bay Banks: In response to public comment and input
from the FWC, this zone's boundary is modified slightly to better align
with existing channels.
<bullet> East Content Keys and Upper Harbor Key Flats: In response
to a request from the Florida DEP and FWC, this zone's southern
boundary is expanded slightly to include additional islands.
<bullet> Howe Key: In response to input from the USFWS, Florida
DEP, FWC and public comment, the regulation applied in this zone is
changed from no entry (NOPR) to no motor (this final rule).
<bullet> Archer Key: Informed by public comment and requests from
Florida DEP and FWC, this rule does not include a new marine zone at
this site.
IV. Summary of all Final Regulations
Based on public comments received between July and October 2023,
internal deliberations, interagency consultations, meetings with
constituent groups, and evaluation of this input with the USFWS and the
State of Florida, with this final rule, NOAA is implementing the
following measures.
These sections are organized in the same way they were presented in
the 2019 draft EIS and 2024 final EIS for the FKNMS Restoration
Blueprint:
1. sanctuary boundary;
2. sanctuary-wide regulations;
3. marine zone boundaries within the sanctuary; and
4. marine zone regulations.
A final management plan is included in the final EIS and is
available at the address and website listed in the ADDRESSES section of
this rule.
1. Sanctuary Boundary
As noted above, pursuant to the procedures in FKNMSPA, Sec. 5(a)
Pub. L. 101-605 and section 304(a) of the NMSA, 16 U.S.C. 1434(a),\7\
NOAA is modifying the sanctuary boundary to expand the sanctuary's area
from 3,800 square miles to 4,539 square miles. The final sanctuary
boundary is expanded to include the ATBA regulatory zone and the
Tortugas Region.
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\7\ Section 5(d) of the FKNMSPA authorized NOAA to make minor
modifications to the sanctuary boundary no later than the issuance
of the draft EIS, which under section 7(a) was one of the documents
required to be completed within 30 months of the passage of the Act.
Section 5(a) of the FKNMSPA provides that FKNMS shall be managed and
regulations enforced under all applicable provisions of such title
III as if the Sanctuary had been designated under such title. NOAA
published the draft EIS in 1995, and, in 1997 finalized the
designation process by publishing the final EIS/management plan,
regulations, and terms of designation. Accordingly, 5(d) no longer
applies and, pursuant to NMSA section 304(a), NOAA follows the
process required in section 304 of the NMSA to modify the terms of
designation and sanctuary boundaries.
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First, the boundary expansion to align with the ATBA will 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 expansion in the Tortugas
Region aligns with the existing particularly sensitive sea area (PSSA),
established by the IMO in 2002. PSSAs are used to protect areas for
special ecological, socioeconomic, or scientific reasons and areas that
are vulnerable to damage by international maritime activities. This
expansion provides additional protections for important ecological
resources and the ecological connectivity in the region, particularly
between Tortugas North and South Conservation Areas and Tortugas Bank.
In addition, 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.
2. Sanctuary-Wide Regulations
a. Live Rock Aquaculture
The final rule is the same as the proposed rule, which maintains
the current exception for live rock aquaculture from sanctuary-wide
regulatory prohibitions if authorized by a Florida Sovereignty
Submerged Land Live Rock Aquaculture Lease issued by the Florida
Department of Agricultural and Consumer Services in conjunction with
U.S. Army Corps of Engineers via the Programmatic General Permit SAJ-
99, or a NMFS Aquacultured Live Rock permit, which is issued under the
Magnuson-Stevens Fishery Conservation and Management Act (MSA) in
conjunction with the U.S. Army Corps of Engineers via the Programmatic
General Permit SAJ-71.
b. Discharge and Deposit Regulation Exception
The final rule updates the existing discharge and deposit
regulation to explicitly prohibit the discharge or deposit of any
material or other matter from a cruise ship, except cooling water, and
to simplify and clarify terminology by removing the exception for
``exhaust gas'' and ``water generated by routine vessel operations.''
In response to public comment, the final rule provides an exception
from the prohibition for the discharge or deposit of deck runoff for
discharges from all vessels except cruise ships, thereby allowing
weather/rain runoff to be discharged or deposited into the sanctuary.
Each of these provisions 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. These regulations are often more stringent than
regulations promulgated under other State or Federal authorities, such
as the Clean Water Act (CWA), to recognize that the unique resources of
the sanctuary
[[Page 6110]]
deserve additional protections. When the original FKNMS regulations
were promulgated in 1997, NOAA established prohibitions against
discharging most material into the sanctuary, with limited and
specified 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 the CWA for vessel sewage in Key
West, Florida, within State waters, in response to a petition from the
State of Florida. 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 \8\; 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 \9\; 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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\8\ <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>.
\9\ <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 further restricts discharges
from cruise ships while in the sanctuary. Specifically, the rule
prohibits discharges or deposits of any material or other matter from a
cruise ship except cooling water. This change results in prohibiting
the discharges or deposits 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 graywater discharges generated by carrying
passengers (e.g., showers, laundry, sinks, kitchens). In addition,
certain routine maintenance activities may occur while a cruise ship is
in port within the sanctuary, including deck washdown, which may affect
water quality. These routine maintenance activities could occur outside
of the sanctuary in other less environmentally sensitive ports.
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 or depositing in sanctuary waters
because cruise ship operations in sanctuary waters are limited to
entering and leaving the port of Key West. In short, NOAA is
prohibiting all discharges from cruise ships except for cooling water
to avoid impacts to sanctuary resources and because it is feasible for
cruise ships to avoid these discharges for the short period they are in
the sanctuary waters. This final rule is informed by information
received through coordination with the EPA, notably that 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 is also banning discharges besides cooling water from cruise
ships to prevent pollution from new and emerging technologies and
activities that may result in discharges into ocean waters, such as the
increased use of exhaust gas cleaning systems (EGCS). While recent
technology such as engine exhaust gas scrubbers may help reduce air
emissions from large vessel engines that use high sulfur fuels,
including cruise ships, this results in the pollution being discharged
in waste water from the EGCS open loop system. While the wash water may
be treated before discharge, the discharge still contains metals,
polycyclic aromatic hydrocarbons, and higher pH. The long-term
accumulation of metals and hydrocarbons in estuaries or harbors is
greater, and of more concern to scientists, than the long-term
discharge of these contaminants in the open ocean (Teuchies et al.,
2020). Vessels with EGCS currently switch to low sulfur fuels in other
areas where EGCS discharges are prohibited.
NOAA will continue to provide an exception to the discharge and
deposit prohibition for cooling water from all vessels, including
cruise ships, because it is currently technologically infeasible for
ships to operate without discharging or depositing 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 EGCS wash water, brine, and ballast water is
prohibited.
NOAA is removing the exception for exhaust gas from its discharge
and deposit prohibitions for all vessels to reduce confusion that the
exemption for exhaust gas was intended to exempt EGCS washwater, which
it does not. NOAA does not exempt discharges of EGCS washwaters from
the discharge and deposit prohibition. The original intent of this
exception was to allow the discharge or deposit of boat engine wet
exhaust, rather than exempting exhaust emissions or EGCS washwater.
NOAA interprets the term ``cooling water'' to encompass 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 is also simplifying the exception for discharges and deposits
of water generated by routine vessel operations. The current regulatory
exception for discharges or deposits 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 define what types of discharges or deposits 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 or deposits 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 or deposits of cooling water (including
boat engine wet exhaust), deck washdown and runoff, and graywater, and
to explicitly prohibit the discharge or deposit of oily
[[Page 6111]]
bilge wastes. At this time, NOAA is making technical corrections to the
discharge and deposit exceptions to simplify this provision to clearly
explain that cooling water, deck washdown and runoff, and graywater are
allowable discharges and deposits from vessels other than cruise ships,
but oily wastes from bilge pumping are not. Under this rule, the terms
``cooling water,'' ``deck washdown and runoff,'' ``graywater,'' and
``oily wastes from bilge pumping'' continue to have the same meaning as
these terms hold under section 312 of the CWA and any implementing
regulations, but NOAA believes that citing the CWA in the regulatory
text is unnecessary. Discharges or deposits of fish and fish parts when
part of a traditional fishing activity are allowed under another
exception to the discharge and deposit prohibitions and will 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), CWA 312(p). 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. EPA published a final rule on
October 9, 2024 (89 FR 82074), but at the time of publication of this
final rule, implementing regulations for VIDA have not yet been
promulgated by the United States Coast Guard. However, when those
regulations are finalized, there will be additional discharge
prohibitions placed on vessels operating in federally protected waters
such as national marine sanctuaries. NOAA will review any VIDA
implementing regulations to ensure they are consistent with the
sanctuary's primary goal of resource protection (16 U.S.C. 1431(b)(6))
and to determine whether conforming changes to the sanctuary
regulations may be necessary and appropriate.
c. Temporary Regulation for Emergency and Adaptive Management
The final rule updates the existing regulations to allow for rapid,
temporary rulemaking to facilitate time-sensitive, adaptive management
and to respond to emergencies. First, this rule expands 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). This
increased time frame is consistent with the emergency time frames
outlined in section 305(c) of the MSA, as well as NOAA's regulations
for other national marine sanctuaries. While NOAA is extending 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 regulation. Second, this rule outlines
three categories for which NOAA will issue temporary regulations (as
outlined below in this section). Third, this rule sets out the
procedure by which a temporary regulation would be promulgated,
including 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 identified three categories for temporary regulation to
protect sanctuary resources when time is of the essence. The first
category will 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 will 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 the APA, 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 a temporary rule is consistent with the
APA. Where the agency determines that time is available without
jeopardizing the effectiveness of the action, NOAA will follow notice
and comment procedures before taking action. Additionally, NOAA may
choose to collect public comment for 15 days after issuing an emergency
temporary rule when, in the agency's discretion, it determines that
post-decision comment would be worthwhile, such as to inform potential
modifications to the emergency or temporary response action.
While NOAA is updating these regulations to allow greater
responsiveness to emerging issues and in response to public comment,
since FKNMS was designated in 1990, NOAA has only issued emergency
regulations four times. 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. 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. Most recently, in 2023 in response to extreme ocean
temperatures, a 0.07 square mile temporary special use area was
established to protect endangered corals relocated to a nursery in
deeper water locations with conditions more conducive to coral
survival. This emergency regulation was effective September 6 through
November 6, 2023, and was extended for an additional 60-days until
January 5, 2024.
d. Historical Resources Permitting
The rule updates historical resource permitting by replacing the
current survey/inventory, research/recovery, and deaccession/transfer
permit categories with a new, single archaeological research permit
category. This rule also defines the term ``archaeological research,''
explains criteria that must be met in order for NOAA to issue an
archaeological research permit (including applicant qualifications),
and prescribes certain conditions that will apply to these permits.
This aligns sanctuary historical resource permitting with State
permitting regulations for archaeological research promulgated under
Chapter 1A-32, Florida Administrative Code, and optimizes compliance
with the
[[Page 6112]]
Federal archaeology program.\10\ 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.
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\10\ <a href="https://www.nps.gov/archeology/sites/fedarch.htm">https://www.nps.gov/archeology/sites/fedarch.htm</a>.
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The single archaeological research permit category simplifies
permitting research focused on historical resources in the sanctuary,
including the State waters portion of the sanctuary. Research that
results in adverse effects to historic properties would not qualify for
a permit under 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 archaeological research permit category will 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.
This new archaeological research permit category also requires 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,
this permit category requires that the supervising archaeologist be on
site for any excavation and/or artifact recovery. As a result of these
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 this new 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, this rule eliminates 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
FKNMS. 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.
e. Sunken Military Craft Act Permitting
The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title
XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects
from unauthorized disturbance all sunken military craft that are owned
by the United States government, as well as foreign sunken military
craft that lie within United States waters, as defined in the SMCA.
Thousands of U.S. sunken military craft lie in waters around the world,
many accessible to looters, treasure hunters, and others who may cause
damage to them. These craft, and their associated contents, represent a
collection of non-renewable and significant historical resources that
often also serve as maritime graves, carry unexploded ordnance, or
contain oil and other hazardous materials. By protecting sunken
military craft, the SMCA helps reduce the potential for irreversible
harm to these nationally important historical and cultural resources.
Sunken military craft are administered under the SMCA by the
respective secretaries of the various military departments and, in the
case of a Coast Guard vessel, the Secretary of the Department in which
the Coast Guard is operating.
Sunken military craft are administered by the respective Secretary
concerned pursuant to the SMCA. The Secretary concerned is solely
responsible for authorizing disturbance of sunken military craft under
the SMCA, specifically for archaeological, historical, or educational
purposes, and will consult with NOAA when considering permitting such
activities. The Secretary concerned is also responsible for
determinations of sunken military craft status and ownership, publicly
disclosing the location of sunken military craft, and determining
eligibility and nominating sunken military craft as historic properties
to the National Register of Historic Places. Any agreements with
foreign sovereigns regarding sunken military craft in U.S waters are
negotiated by the Secretary of Defense, the Secretary of State, and the
Secretary of the Navy, according to authorities vested in each by the
SMCA. The final rule provides that the Secretary concerned or his or
her designee and NOAA will ensure coordination and foster collaboration
on any research, monitoring, and educational activities pertaining to
sunken military craft located within the sanctuary system. The Director
will request approval from the Secretary concerned for any terms and
conditions of FKNMS authorizations that may involve sunken military
craft.
f. Fish Feeding
The final rule includes a new sanctuary-wide regulation prohibiting
the feeding or attracting of fish, including sharks, or other marine
[[Page 6113]]
species from any vessel and/or while diving and new definitions for
``diving,'' and ``feeding.'' The terms ``attract'' and ``attracting''
are already defined in the National Marine Sanctuary System-wide
regulations at 15 CFR 922.11. The regulatory text has been developed
with additional input from agency staff with expertise in impacts to
sharks and shark depredation, human safety concerns, and compliance and
enforcement. NOAA does not provide a ``grandfather'' clause for current
eco-tour/fish feeding operations (i.e., an exemption for pre-existing
operators), although NOAA received some comments requesting such a
provision. Instead, NOAA will consider issuing general permits to pre-
existing eco-tour/fish feeding operators who are able to satisfy all
general permit application requirements. Any permits would contain
specific terms and conditions to protect sanctuary resources.
This new fish feeding regulation does not affect the existing
regulatory exception that allows the discharge or deposit of fish, fish
parts, chumming materials, or bait that is used or generated incidental
to and while conducting traditional fishing in the sanctuary.
As noted in the Changes from Proposed Rule to Final Rule section
above, NOAA is modifying the regulatory definition for traditional
fishing to set the baseline of activities considered traditional to the
effective date of this rule. Any future update to the definition of
``traditional fishing'' would be done through a separate rulemaking in
order to consider public comment and to conduct an environmental
analysis under NEPA of the potential impacts of new or innovative gear
types or fisheries activities on sanctuary resources. NOAA would
collaborate closely with, and rely on the expertise of, the FWC, FMCs,
and NMFS when considering any updates to the list of traditional
fishing activities.
g. Grounded, Deserted, and Derelict Vessels and Harmful Matter
NOAA's final rule prohibits anchoring, mooring, operating,
deserting, or occupying a derelict vessel or a vessel at risk of
becoming derelict or deserting a vessel aground or adrift in the
sanctuary. Deserted, aground, derelict, or at risk of becoming derelict
vessels are subject to the same 24-hour notification requirements and
must be removed from the sanctuary within 72 hours of such
notification, unless the Director approves of an exception. This
provision has been updated to align with the State of Florida's
regulatory procedures for derelict vessels.
Operators or owners of a vessel that strikes the seabed or runs
aground must notify the Director within 24 hours of such incident
regardless of whether or not sanctuary resources are injured. Vessels
will be considered unlawfully deserted unless operators or owners of a
vessel notify the Director within 24 hours of leaving a vessel
unoccupied that is adrift or run aground or 24 hours after the Director
has taken reasonable steps to notify the operator or owner of a vessel
found adrift or aground. This definition of ``deserting'' will apply in
FKNMS instead of the system-wide definition of ``deserting'' found in
section 922.11.
Vessels that are aground, deserted, derelict, or at risk of
becoming derelict must be removed within 72 hours of the Director's
notification absent extenuating circumstances like weather or safety or
unless otherwise consistent with a removal plan approved by the
Director. NOAA has chosen one deadline of 72 hours to be consistent
with the State of Florida's requirements to remove grounded vessels
under Florida's Coral Reef Protection Act, Florida Statute 403.93345.
While the State of Florida has several different deadlines for removal
of derelict vessels or vessels at risk of becoming derelict, NOAA
adopts a 72-hour deadline for removing all such vessels for simplicity
and consistency. NOAA intends to use its discretion to grant exceptions
to the 72-hour deadline for safety, weather, and approved removal
plans, to align with State removal deadlines, where appropriate.
The final rule also prohibits leaving harmful matter aboard a
grounded, deserted, derelict, or at risk of becoming derelict vessel.
The term ``harmful matter'' is already defined in the National Marine
Sanctuary System-wide regulations at 15 CFR 922.11.
h. Large Vessels Use of Mooring Buoys
NOAA's final rule requires large vessels to use designated large
vessel mooring buoys and all other vessels to use regular mooring
buoys. An associated new definition for ``large vessel'' is also added.
Mooring buoys serve as an important management tool in FKNMS, providing
boaters the ability to moor their vessel safely and avoid damaging
coral reefs and other important ecosystems. However, mooring buoy use
by large vessels has been shown to damage the mooring buoy anchoring
hardware and in some cases the substrate to which the hardware is
secured. As explained above in the DATES section of this document, NOAA
is delaying the effective date for the large vessel mooring buoy
requirement for two years beyond the effective date of this final rule
to provide NOAA with adequate time to finalize a mooring buoy plan,
including numbers and locations of mooring buoys, to secure materials,
and to install new mooring buoys. Until this provision is effective,
large vessels may continue to use regular mooring buoys. 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 final management plan.
i. Technical Revisions to Sanctuary Regulations
NOAA's final rule includes technical revisions and updates to
regulatory definitions, terms, and provisions (see the general summary
included in Appendix D of the final EIS). 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 four broad
categories described below.
Definitions and Terms are updated for greater consistency with the
F.A.C., National Marine Sanctuary System-wide regulations, other
sanctuary-specific regulations, FKNMS regulations, and the revised
management plan. For example, due to new regulations, several new terms
and definitions are added including, but not limited to, ``anchoring,''
``derelict,'' ``at risk of becoming derelict,'' ``continuous transit,''
and ``deserting.'' Several terms that are no longer needed or are being
replaced with new terms are eliminated, such as ``Ecological Reserve,''
``no access buffer,'' and ``closed.'' Terms that are now defined in
National Marine Sanctuary System-wide regulations at 922.11 are
removed, including ``seagrass'' and ``vessel.'' While the new National
Marine Sanctuary System-wide definitions at 922.11 include a definition
for ``deserting,'' this rule provides a modified version for the
sanctuary to align with the State of Florida timelines and procedures
for derelict vessels.
Changes Required for Consistency With the NMSA
NOAA updates one and eliminates another regulatory provision to
eliminate redundancy or confusion pertaining to the authority granted
to State Governors under the NMSA. Under section 304(b)(1) of the NMSA,
at the time of sanctuary designation, the Governor of any State in
which a national marine sanctuary is located
[[Page 6114]]
partially or entirely within the state's seaward boundary may certify
that the designation or any of its terms is unacceptable and the
designation or unacceptable term will not take effect in State waters.
Under 304(a)(4), the terms of designation may be modified only by the
same procedures by which the original designation is made, which
includes the procedures at 304(b)(1). In this rule, NOAA is eliminating
the provisions at 922.163(g) and 922.164(f) because these provisions
provide that new sanctuary regulations will not take effect in Florida
State waters unless approved by the Board of Trustees of the Internal
Improvement Trust Fund, and, regarding fishing regulations in the
sanctuary, until established by the Florida Marine Fisheries
Commission. These provisions inappropriately provided additional
authorities to State entities, other than the Governor, that were not
delegated to the states by Congress under the NMSA.
Military Exemption
NOAA's final rule revises the existing military exemption
regulation in two ways. First, NOAA updates the list of exempted
military activities from the list found in the 1996 Final Environmental
Impact Statement and Management Plan for the sanctuary to the 2024
final EIS for the sanctuary. Second, NOAA clarifies the process for new
military activities to be exempted from sanctuary prohibitions. Each
change is described below.
Current FKNMS regulations reference military activities conducted
by the Department of Defense (DOD) in the sanctuary and, for certain
military activities, provide an exemption from sanctuary prohibitions.
The current exemptions for DOD military activities in the sanctuary
reference existing classes of military activities that were conducted
prior to the effective date of these regulations as identified in the
Environmental Impact Statement and Management Plan for the Sanctuary.
NOAA has long interpreted this exemption to refer to the description of
military activities contained in the 1996 FKNMS FEIS (Volume II, pages
93-96), which was prepared prior to the effective date of the 1997
regulations. Through this rule, NOAA is 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 is
provided in Appendix F of the final EIS that reflects current DOD
activities conducted in the sanctuary that NOAA considers to be exempt.
The updated list includes activities that are already exempt, the
effects of which were analyzed in the 1996 FKNMS FEIS, and are
considered in the 2024 final EIS. 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 is considered in the 2024 final EIS. 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 apply to
activities that occur within the current sanctuary boundary and
boundary expansion area.
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 2024 final EIS. 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 APA 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 (see also
final EIS Appendix F).
General Editorial changes are 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 are made to reduce
redundancy with National Marine Sanctuary System-wide permitting
regulations (15 CFR part 922 subpart D), which were recently updated
and consolidated (88 FR 953; January 6, 2023). These changes are solely
editorial, and no new requirements are established by these changes.
First, since the 1997 FKNMS regulations, NOAA has published
application guidelines to aid potential applicants for permits in
national marine sanctuaries. The application guidelines \11\ explain
the necessary parts of an application and how to submit it. Updated
National Marine Sanctuary System-wide regulations (15 CFR part 922
subpart D) codify these requirements. As such, in this final rule, NOAA
removes redundant application instructions from the FKNMS-specific
regulations.
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\11\ <a href="https://sanctuaries.noaa.gov/management/permits/welcome.html">https://sanctuaries.noaa.gov/management/permits/welcome.html</a>.
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Second, this rule also includes 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 part 922 subpart D.
This final rule specifies only 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, this rule adds a provision for the certification of any
valid lease, permit, license, or right of subsistence use or access
that is in existence when the revised sanctuary terms of designation
(see Section VI of this rule) become effective. Under National Marine
Sanctuary System-wide regulations, NOAA currently has authority to
certify such pre-existing rights of access or use (15 CFR 922.10). This
rule adds procedures and criteria to clarify how NOAA 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 sanctuary expansion areas. 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
[[Page 6115]]
previously regulated but now will be regulated.
3. Marine Zone Boundaries and Associated Regulations Within the
Sanctuary
The final rule includes five marine zone types: Management Areas,
Conservation Areas, Sanctuary Preservation Areas, Restoration Areas,
and Wildlife Management Areas (WMAs). This section includes a summary
of the marine zones and associated regulations in this rule. In
addition to marine zone-specific regulations, sanctuary-wide
regulations apply within all marine zones of the sanctuary. Global
Positioning System (GPS) coordinates for all marine zones included in
NOAA's final rule can be found in Appendices C through I. An
interactive map and updated individual marine zone maps are available
at the website listed in the ADDRESSES section above in this rule.
a. Management Areas
The final rule maintains the existing Key Largo and Looe Key marine
zones as Management Areas. 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.'' With this
rule, all marine zones established with the 1997 regulations could be
considered existing; therefore this qualifier is removed from the Key
Largo and Looe Key marine zones.
In the final rule, the Key West and Great White Heron National
Wildlife Refuges, which are currently referred to as Existing
Management Areas, are referred to by their full names. Existing
sanctuary regulations in the Key West and Great White Heron National
Wildlife Refuges are maintained with the exception of a minor change to
the area where personal watercraft are allowed (see part III, section
4q. Personal Watercraft below).
b. Conservation Areas
The final rule combines the existing Ecological Reserves and
Special Use Areas (SUA) into one Conservation Area zone type and
maintains and applies the existing SUA regulations prohibiting fishing,
requiring continuous transit without interruption, and requiring
stowage of gear in such areas. ``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.
The final rule includes six Conservation Areas, all of which are
existing sanctuary marine zones. The final rule slightly expands the
spatial area of three existing zones (Tennessee Reef, Western Sambo,
and Tortugas South) and eliminates one zone (the existing Looe Key
SUA). Western Sambo is also included as a Conservation Area with
slightly different regulations as outlined below. With the exception of
the zone name change to Conservation Area, NOAA makes no changes to the
existing Conch Reef SUA, Eastern Sambo SUA, or Tortugas North
Ecological Reserve. The Conservation Areas range in size from the
smallest, Conch Reef, at 0.15 square miles to the largest, Tortugas
North, at 109.05 square miles. The total area included in the six
Conservation Areas is 213.11 square miles.
A summary of the Conservation Areas included in this final rule and
changes from current FKNMS zoning and regulations follows. Note that
for all of the zones below, the zone name will be changed to
Conservation Area.
<bullet> Conch Reef: No changes to the regulations or area.
<bullet> Tennessee Reef: No changes to regulations. This zone is
extended to the 90-foot contour line to capture additional deep reef
habitats.
<bullet> Looe Key: This existing SUA zone is eliminated. This area
will, instead, be managed as part of the larger Looe Key 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 is extended to the 90-
foot contour line to capture additional deep reef habitats. In
addition, no-anchor restrictions apply for the southern portion of the
zone in the area of most prominent coral reef development. All other
existing regulations in Western Sambo are maintained, including, but
not limited to, prohibitions on discharging or depositing any matter or
other material, fishing by any means, and harvesting any marine life.
This is the only Conservation Area that allows access for snorkeling
and diving.
<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
is extended to the west by one mile along its entire length. This
expansion captures additional habitat west of Riley's Hump that is
known to support 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 final rule maintains the southern boundary of
the Tortugas South Conservation Area as proposed despite some comments
on the draft EIS.
c. Sanctuary Preservation Areas (SPAs)
The final rule includes 17 SPAs, defined as a discrete,
biologically important area of the sanctuary 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 marine species
or habitats, or to provide opportunities for scientific research. The
SPAs range in size from the smallest, Cheeca Rocks SPA, at 0.07 square
miles to the largest, Carysfort Reef SPA, at 3.78 square miles. The
total area included in the 17 SPAs is 12.14 square miles.
SPA regulations included in this rule eliminate the current
exception allowing catch and release fishing in four existing SPAs
(Conch Reef, Alligator Reef, Sombrero Key, and Sand Key). In addition,
anchoring is prohibited in all SPAs. This final rule includes a new
definition for ``anchoring,'' which means securing a vessel to the
seabed by any means except when using a mooring buoy. All other
existing SPA regulations remain, including, but not limited to,
prohibitions on discharging or depositing any matter except cooling
water, fishing by any means, and 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
[[Page 6116]]
and to facilitate enforcement and management. Finally, the management
practice of issuing permits allowing baitfishing in all SPAs will be
phased out over a 3-year period.
As explained above in the DATES section of this document, NOAA is
delaying the effective date for the no anchoring regulation in all SPAs
(Sec. 922.164(e)(3)) for two years beyond the effective date of this
final rule. The purpose of this delay is to provide NOAA with adequate
time to finalize a mooring buoy plan, including numbers and locations
of mooring buoys, to secure materials, and to install new mooring
buoys. The no anchoring prohibition will likewise be delayed for
Habitat and Nursery Restoration Areas under sections 922.164(g)(1),
(h)(1), which apply the SPA prohibitions. All other SPA regulations
will become effective as of the effectiveness date of this final rule
(i.e., after the close of a review period of forty-five days of
continuous session of Congress), including eliminating the exception
for catch and release fishing by trolling in Conch Reef, Alligator
Reef, Sombrero Reef, and Sand Key SPAs and stopping the practice of
issuing permits for baitfishing in SPAs. A summary of Sanctuary
Preservation Areas included in the final rule 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) will apply.
<bullet> Turtle Rocks: This rule establishes a new SPA.
<bullet> Carysfort Reef: This existing SPA is expanded to the 90-
foot contour to include additional deep reef habitat.
<bullet> The Elbow: Existing SPA; no boundary change.
<bullet> Key Largo Dry Rocks-Grecian Rocks: The final rule connects
two existing SPAs into a single SPA.
<bullet> Molasses Reef: Existing SPA; no boundary change.
<bullet> Conch Reef: Existing SPA; no boundary change. The
regulatory exception that allows catch and release fishing by trolling
in the SPA is removed.
<bullet> Davis Reef: Existing SPA; no boundary change.
<bullet> Hen and Chickens Reef: Existing SPA; no boundary change.
<bullet> Cheeca Rocks: Existing SPA; no boundary change.
<bullet> Alligator Reef: This existing SPA is 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
is removed.
<bullet> Turtle Shoal: This rule establishes a new SPA.
<bullet> Coffins Patch: Existing SPA; no boundary change.
<bullet> Sombrero Key: This existing SPA is expanded slightly to
include remnant elkhorn corals, a species listed under the Endangered
Species Act. The regulatory exception that allows catch and release
fishing by trolling in the SPA is removed.
<bullet> Newfound Harbor Key: Existing SPA; no boundary change.
<bullet> Looe Key: Existing SPA; no boundary change.
<bullet> Eastern Dry Rocks: Existing SPA; no boundary change.
<bullet> Sand Key: Existing SPA; no boundary change. The regulatory
exception that allows catch and release fishing by trolling in the SPA
is removed.
d. Restoration Areas
Given the increase in important habitat restoration activities in
the sanctuary over the past two decades, NOAA's final rule includes a
new Restoration Area zone type to support species or habitat recovery.
The zone includes two distinct designations:
<bullet> Nursery Restoration Area zone type encompasses existing
nursery areas and are 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 prohibit,
among other things, fishing, anchoring, and discharges or deposits and
require that vessels remain in transit through the area.
<bullet> Habitat Restoration Area zone type protects sites where
active transplanting and restoration activities are ongoing. These
areas are managed with the same regulations that apply to SPAs to
provide for access and educational opportunities while prohibiting,
among other things, fishing, anchoring, and discharges or deposits.
As explained above in the DATES section of this document, NOAA is
delaying the effective date for the no anchoring regulation for all
SPAs (Sec. 922.164(e)(3)) for two years beyond the effective date of
this final rule. This delay will apply to the no anchoring prohibition
for Habitat Restoration Zones, which apply the SPA regulations.
i. Nursery Restoration Areas
Specifically, this final rule includes eleven Nursery Restoration
Areas with regulations prohibiting, among other things, fishing,
anchoring, and discharges or deposits, and requiring that vessels
remain in transit through the area. All Nursery Restoration Areas 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. The total
area of Nursery Restoration Areas is 748.8 acres (1.17 square miles).
NOAA establishes all existing, permitted coral nurseries as
distinct Nursery Restoration Areas. The following existing, permitted
coral nurseries are included in the final rule as distinct Nursery
Restoration Areas (listed northeast to southwest):
<bullet> Carysfort Reef
<bullet> Key Largo: This area was established and permitted as a
coral nursery site after the proposed rule was released for comment.
NOAA received comments requesting that this site be included as a
Nursery Restoration Area in this final rule. Key Largo Nursery
Restoration Area, approximately 0.07 square miles (46.8 acres), is in
Federal waters of the Upper Keys region of the sanctuary.
<bullet> Pickles Reef West
<bullet> Islamorada: This area was established and permitted as a
coral nursery site after the proposed rule was released for comment.
NOAA received comments requesting that this site be included as a
Nursery Restoration Area in this final rule. Islamorada Nursery
Restoration Area, approximately 0.07 square miles (47.2 acres), is in
Federal waters of the Upper Keys region of the sanctuary.
<bullet> The Elbow Reef
<bullet> Marathon
<bullet> Middle Keys
<bullet> Looe Key East
<bullet> Looe Key West
<bullet> Key West
<bullet> Sand Key
ii. Habitat Restoration Areas
NOAA is also establishing four new Habitat Restoration Areas to
protect existing, permitted active coral reef restoration sites. All
Habitat Restoration Areas 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 total area of Habitat
Restoration Areas is 339 acres (0.53 square miles). The final rule
establishes the following Habitat Restoration Areas with regulations
prohibiting, among other things, fishing, anchoring, and discharges or
deposits:
<bullet> Horseshoe Reef
<bullet> Pickles Reef East
<bullet> Cheeca Rocks East
<bullet> Cheeca Rocks South
In this rule all Habitat Restoration Areas protect active coral
reef
[[Page 6117]]
restoration; however, NOAA does not intend to limit application of this
new zone type to coral restoration activities only. The Habitat
Restoration Area 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 the
updated temporary regulation for emergency and adaptive management (see
part IV, section 2. Sanctuary-wide Regulations above and the 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
final 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 disease
response or Restoration permit application.
Finally, to further facilitate habitat restoration and to
complement this zone type, this rule includes a new category of general
permit for Restoration.
e. Wildlife Management Areas (WMAs)
The final rule includes 44 WMAs, defined as 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. 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. These WMAs
aim to balance resource protection with compatible uses. This final
rule 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 applied.
The final 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 20 new WMAs.
In addition, the final rule eliminates three existing WMAs. The average
size of WMAs (excluding the existing Tortugas Bank zone) is 0.62 square
miles, ranging from 0.01 to 6.37 square miles (the newly established
Pelican Shoal WMA and Marquesas Turtle WMA, respectively). The total
area included in WMAs is 64.87 square miles of which 32.23 square miles
is the existing Tortugas Bank no anchor zone.
Nine of the twenty-eight existing WMAs have no spatial or
regulatory changes, or only minor technical changes, in this 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 are changed to ``no
entry'' to be consistent with the intent of the regulation and with
State regulations.
NOAA is eliminating the existing no access buffer and closed zone
regulations and is replacing them with a no entry regulation that has
the same effect. The existing no access buffer zones are portions 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 are eliminated;
however, both of these WMAs have additional minor spatial and/or
regulatory changes and are more fully discussed in the section below.
The WMAs in this 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 is making 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 is making 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 is making 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 is making 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 is 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 is 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 is making a technical update to change the existing no
access buffer regulation to no entry.
<bullet> Pelican Shoal: This is an existing no access buffer zone
to decrease disturbance to 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. NOAA is making a technical
update to change the existing no access buffer regulation to no entry.
<bullet> Tortugas Bank: This is an existing sanctuary zone
prohibiting anchoring by vessels over 50 meters in length, which
protects coral and hardbottom habitats on Tortugas Bank from anchor
damage. NOAA is making no change in the spatial area or regulations for
this zone.
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 changes
to spatial boundaries, regulations, or a combination of both. Informed
by public and agency comments, and additional data on resources and
human uses, the final rule refines 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.
<bullet> Crocodile Lake: This existing March 1 to October 1 no
access buffer WMA is modified to become a year-round no entry zone
except for Steamboat Creek. The final rule expands the WMA slightly to
encompass an important bird
[[Page 6118]]
nesting site. The portion of the existing Crocodile Lake WMA on the
northwestern shoreline of Eastern Lake Surprise becomes part of the
Eastern Lake Surprise WMA as it is contiguous with that area.
<bullet> Eastern Lake Surprise: This existing WMA is 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 are changed
from idle speed no wake to no entry; in addition, the no entry
regulation is extended along the entire shoreline.
<bullet> Dove and Rodriguez Keys: These two existing WMAs are
combined to create one no motor zone WMA. The existing regulation that
closes two small islands near Dove Key is eliminated.
<bullet> Tavernier Key: This is an existing no motor zone. The
final rule maintains the no motor regulation with exceptions for
Tavernier Creek and the unnamed channel to the northeast leading to it.
<bullet> Snake Creek: This existing no motor zone is extended to
the west along the shoreline up to but not including the existing
Monroe County no motor zone. An exception to the no motor regulations
is made for Snake Creek itself and the three channels providing access
to Windley Key.
<bullet> Cotton Key: This existing no motor zone is extended to
include an area west of Cotton Key that exhibits prop scarring.
<bullet> East Content Keys and Upper Harbor Key Flats: East Content
Keys and Upper Harbor Key Flats are both existing marine zones. East
Content Keys WMA consists of an existing small idle speed no wake zone
in the largest tidal creek. This final rule applies 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, are designated as
idle speed no wake as this area exhibits scarring. Upper Harbor Keys
WMA is an existing 300-foot no access zone around the entire island.
NOAA is making a technical update to change the existing no access
buffer regulation to no entry. This zone will be encompassed within the
larger East Content Keys and Upper Harbor Key Flats idle speed no wake
WMA.
<bullet> Snipe Keys: This existing marine zone is modified with the
addition of a no entry area, which is an important roosting area for
magnificent frigatebirds that are easily disturbed by motorized and
non-motorized boat traffic. The existing no motor and idle speed no
wake areas will not change.
<bullet> Mud Keys: This existing marine zone includes idle speed no
wake and closed areas within the channels. This final rule updates this
to idle speed no wake in all channels.
<bullet> Lower Harbor Keys: This existing zone includes idle speed
no wake in selected tidal creeks. This final rule expands the idle
speed no wake area to further protect and decrease disturbance to
various nesting, roosting, and wading birds.
<bullet> Bay Keys: This existing marine zone is modified by
expanding the current idle speed no wake area in the channel leading to
the northwest island, maintaining that island as no motor, and includes
an additional adjacent island to the southeast as no motor.
<bullet> Cottrell Key: This existing no motor zone is changed 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.
<bullet> Woman Key: This existing zone, which currently includes
one-half of the beach and sand spit as closed, is 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.
<bullet> Boca Grande Key: This existing zone currently includes a
closed area on the south half of the beach and the island is closed by
the USFWS. In this final rule, the WMA is 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.
<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's final rule maintains
all of these areas; however, the no motor and no access buffer zones
are changed to no entry, and one additional island on the south end of
Mooney Harbor is added as no entry.
NOAA's final rule includes 20 new WMAs, eleven of these fall within
USFWS National Wildlife Refuge boundaries, nine of which specifically
serve to protect USFWS trust species (e.g., species for which the
Refuge was established to protect and/or Migratory Bird Treaty Act
species).
<bullet> Barnes-Card Sound: This final rule establishes a new idle
speed no wake WMA.
<bullet> Whitmore Bight: This final rule establishes a new no motor
WMA that includes an area along the shoreline in John Pennekamp State
Coral Reef Park that includes the State Park managed no motor zone.
<bullet> Pelican Key: This final rule establishes a new no entry
WMA.
<bullet> Pigeon Key: This final rule establishes a new no entry
WMA.
<bullet> Channel Key Banks: This final rule establishes a new idle
speed no wake WMA. This final rule allows exceptions for normal
operation in established channels and includes Channel Key as a no
entry area.
<bullet> Red Bay Bank: This final rule establishes a new idle speed
no wake WMA.
<bullet> Marathon Oceanside Shoreline: This final rule establishes
a new idle speed no wake WMA with exceptions for established channels.
<bullet> East Bahia Honda Key: This final rule establishes a new no
motor WMA.
<bullet> West Bahia Honda Key: This final rule establishes a new no
motor WMA.
<bullet> Little Pine Key Mangrove: This final rule establishes a
new no entry WMA.
<bullet> Water Key Mangroves: This final rule establishes a new no
entry WMA.
<bullet> Howe Key Mangrove: This final rule establishes a new no
motor WMA.
<bullet> Torch Key Mangroves: This final rule establishes a new no
entry WMA.
<bullet> Crane Key: This final rule establishes a new no entry WMA.
<bullet> Northeast Tarpon Belly Keys: This final rule establishes a
new no motor WMA.
<bullet> Happy Jack Key: This final rule establishes a new no entry
WMA.
<bullet> Western Dry Rocks: This final rule establishes a new WMA
that will mirror newly established FWC regulations \12\ (February 2021)
with a seasonal no fishing prohibition from April 1 to July 31 and a no
anchor regulation during this same seasonal time period.
---------------------------------------------------------------------------
\12\ <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>.
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<bullet> Barracuda Keys: This final rule establishes a new idle
speed no wake WMA.
<bullet> Ballast and Man Keys Flats: This final rule establishes a
new idle speed no wake WMA.
<bullet> Marquesas Turtle: This final rule establishes a new idle
speed no wake WMA.
This final rule does not include two WMAs that were included in the
2022 NOPR:
<bullet> Archer Key: This final rule does not include a new
sanctuary marine zone at
[[Page 6119]]
this site due to comments received from the public and requests from
Florida DEP and FWC.
<bullet> Ashbey-Horseshoe Key: This final rule does not include a
new sanctuary marine zone at this site. This area is an existing no
motor zone within Lignumvitae Key Aquatic Preserve and Lignumvitae Key
Botanical State Park therefore this rule does not include a new
sanctuary marine zone at this site at this time.
4. Additional Marine Zone Regulations
a. Motorized Personal Watercraft
NOAA's final rule includes 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.
b. Tortugas North Access Permits
The final rule streamlines 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 earlier than one month, before the date that
access is requested. This final rule removes the current requirement to
request access permits no earlier than one month before the date of
entrance to the area and removes 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.
c. Catch and Release Fishing by Trolling in Four SPAs
The final rule eliminates the exception allowing catch and release
fishing by trolling in four SPAs (Conch Reef, Alligator Reef, Sombrero
Key, and Sand Key). Over two decades of management experience with
marine zones in the sanctuary points to providing zones with consistent
and clear regulations and indicates that user compliance is greatly
reduced and enforcement greatly hindered when exceptions to regulations
in specific zones are provided.
d. Bait Fishing Permits
NOAA is eliminating over a three-year period the practice of
issuing bait fishing permits of any kind in all SPAs. As noted above,
over two decades of management experience with marine zones in the
sanctuary points to providing zones with consistent and clear
regulations and indicates that user compliance is greatly reduced and
enforcement greatly hindered when exceptions to regulations in specific
zones are provided.
5. Sanctuary Management Plan
The final EIS includes a final revised management plan. The
management plan, which includes non-regulatory actions, complements and
further supports this rulemaking. The management plan actions are
largely focused on understanding and improving the condition of
sanctuary resources by reducing threats and addressing emerging issues.
Actions also include engaging with and strengthening 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. A copy of the final management plan is available at the
address and website listed in the ADDRESSES section of this rule.
V. Changes to the Sanctuary Terms of Designation
1. Summary of Changes to the 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. Section
304(a)(4) also specifies that the terms of designation may be modified
only by the same procedures by which the original designation was made,
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, the revised
FKNMS terms of designation set forth below:
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 on the
regulations themselves to provide the specific regulatory details (see
e.g., 15 CFR 922.163). 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; and
6. Modify the ``Florida Keys National Marine Sanctuary Boundary
Coordinates'' to include the expanded sanctuary boundary.
Terms of Designation for the Florida Keys National Marine Sanctuary
Article I. Designation and Effect
On November 16, 1990, the Florida Keys National Marine Sanctuary
and Protection Act (FKNMSPA), Pub. L. 101-605 (16 U.S.C. 1433 note),
became law. That Act designated an area of waters and submerged lands,
including the living and nonliving resources within those waters, as
described therein, as the Florida Keys National Marine Sanctuary
(sanctuary). The FKNMSPA specifies that the sanctuary, is designated .
. . under title III of the Marine Protection, Research, and Sanctuaries
Act of 1972 (16 U.S.C. 1431 et seq.). The Sanctuary shall be managed
and regulations enforced under all applicable provisions of such title
III as if the Sanctuary had been designated under such title. FKNMSA
Sec. 5(a). In 2001, pursuant to the procedures outlined in section 304
of the NMSA, 16 U.S.C. 1434, the boundary of the sanctuary was expanded
to include important coral reefs and other resources in two areas west
of the Dry Tortugas National Park, including Sherwood Forest and
Riley's Hump. In 2024, the boundary of the sanctuary was further
expanded to include areas: (a)
[[Page 6120]]
north of the existing northern extent of the sanctuary, offshore of
Miami-Dade County, to align with the Area To Be Avoided, (b) seaward of
the existing southern boundary of the sanctuary to align with the ATBA,
(c) at the far western end of the existing sanctuary boundary, to
extend by approximately one mile westward and encompass the outer
boundaries of the Tortugas South Conservation Area (formerly the
Tortugas South Ecological Reserve) and square off the sanctuary
boundary in its northwestern corner.
Section 304 of the NMSA, 16 U.S.C. 1434, authorizes the Secretary
of Commerce to issue such regulations as are necessary and reasonable
to implement the designation, including managing and protecting the
conservation, recreational, ecological, historical, scientific,
educational, cultural, archaeological or aesthetic resources and
qualities of a national marine sanctuary. Section 1 of Article IV of
the Terms of Designation lists activities of the type that are
presently being regulated or may have to be regulated in the future in
order to protect sanctuary resources and qualities. Listing in section
1 does not mean that a type of activity will be regulated in the
future; however, if a type of activity is not listed, it may not be
regulated, except on an emergency basis, unless section 1 is amended,
following the procedures for designation of a sanctuary set forth in
paragraphs (a) and (b) of section 304 of the NMSA, to include the type
of activity.
Article II. Description of the Area
The Florida Keys National Marine Sanctuary boundary encompasses a
total of approximately 3,427 square nautical miles (4,539 square
statute miles) of coastal, ocean, and Gulf of Mexico waters, and the
submerged lands thereunder, surrounding the Florida Keys in south
Florida. The northernmost point of the sanctuary lies just east of
Miami and Key Biscayne. The contiguous area boundary on the Atlantic
Ocean side of the Florida Keys runs south from just north of Biscayne
National Park generally curving in a southwesterly direction along the
Florida Keys archipelago until southwest of the Dry Tortugas and
Loggerhead Key. The contiguous area boundary on the Gulf of Mexico side
of the Florida Keys continues from this southwestern point to the north
approximately 32 miles until it reaches a point northwest of Loggerhead
Key and the Dry Tortugas. The boundary then continues east to
approximately 8 miles north of Cottrell Key, and then from there it
continues generally to the northeast to just north of Sprigger Bank.
The boundary then generally approximates the southeastern Everglades
National Park boundary until it continues along the western shore of
Manatee Bay, Barnes Sound, and Card Sound. The boundary then generally
approximates the southern boundary of Biscayne National Park and
continues to do so north along the park's eastern boundary until it
reaches the sanctuary's northeastern most point.
The landward boundary of the contiguous sanctuary area is the
shoreline as defined by the mean high-water line. The Dry Tortugas
National Park is not included within the sanctuary and the inner
sanctuary boundary in this location is coterminous with this national
park boundary. The sanctuary boundary encompasses the entire Florida
coral reef tract, all of the mangrove islands of the Florida Keys, and
some of the seagrass meadows of the Florida Keys. The precise boundary
of the sanctuary is set forth at the end of this Designation Document.
Article III. Characteristics of the Area That Give it Particular Value
The Florida Keys extend approximately 223 miles southwest from the
southern tip of the Florida peninsula. Adjacent to the Florida Keys
land mass are located spectacular unique, nationally significant marine
environments, including seagrass meadows, mangrove islands, and
extensive living coral reefs. These marine environments support rich
biological communities possessing extensive conservation, recreational,
commercial, ecological, historical, research, educational, and
aesthetic values which give this area special national significance.
These environments are the marine equivalent of tropical rain forests
in that they support high levels of biodiversity, are fragile and
easily susceptible to damage from human activities, and possess high
value to humans if properly conserved. These marine environments are
subject to damage and loss of their ecological integrity from a variety
of sources of disturbance.
The Florida Keys are a limestone island archipelago. The Keys are
located at the southern edge of the Florida Plateau, a large carbonate
platform made of a depth of up to 7000 meters of marine sediments,
which have been accumulating for 150 million years and which have been
structurally modified by subsidence and sea level fluctuation. The Keys
region is generally divided into five distinct areas: the Florida reef
tract, one of the world's largest coral reef tracts and the only
barrier reef in the United States; Florida Bay, a large, shallow
seagrass-dominated estuary and world-famous game fishing region that
sits at the interface between the Florida Everglades and the Florida
Reef Tract; the Southwest Continental Shelf; the Straits of Florida;
and the Keys themselves.
The sanctuary contains one of North America's most diverse
assemblages of terrestrial, estuarine, and marine fauna and flora. In
addition to the Florida reef tract, the sanctuary includes thousands of
patch reefs, various hardbottom habitats, mangrove fringed shorelines
and mangrove islands, and a substantial portion of one of the world's
largest seagrass communities that covers 3.6 million acres of the
nearshore marine environment in south Florida. These diverse habitats
provide shelter and food for thousands of species of marine plants and
animals, including more than 50 species of animals identified under
Federal or State law as endangered or threatened. The Keys were at one
time a major seafaring center for European and American trade routes to
the Caribbean, and submerged cultural and historic resources (i.e.,
shipwrecks) abound in the surrounding waters. In addition, the
sanctuary contains substantial archaeological resources of pre-European
cultures.
The uniqueness of the marine environment draws multitudes of
visitors to the Keys. The major industry in the Florida Keys is
tourism, including activities related to the Keys' marine resources,
such as dive shops, charter fishing and dive boats and marinas, as well
as hotels and restaurants. The abundance of the resources also supports
a large commercial fishing employment sector.
The number of visitors to the Keys grows each year, with a
concomitant increase in the number of residents, homes, jobs, and
businesses. As population grows and the Keys accommodate ever-
increasing resource use pressures, the quality and quantity of
sanctuary resources are increasingly threatened. These pressures
require coordinated and comprehensive monitoring and researching of the
Florida Keys' region.
Article IV. Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation under the NMSA,
either throughout the entire sanctuary or within identified portions of
it or, as indicated, in areas beyond the boundary of the sanctuary, to
the extent necessary and reasonable. Such regulation may
[[Page 6121]]
include prohibitions to ensure the protection and management of the
conservation, recreational, ecological, historical, scientific,
educational, cultural, archaeological or aesthetic resources and
qualities of the area (e.g., 15 CFR 922.163). Because an activity is
listed here does not mean that such activity is being or will be
regulated. Listing an activity here means that the Secretary of
Commerce can regulate the activity in accordance with all applicable
laws without going through the designation procedures required by
paragraphs (a) and (b) of section 304 of the NMSA, 16 U.S.C. 1434(a)
and (b). Further, no regulation issued under the authority of the NMSA
may take effect in Florida State waters within the sanctuary if the
Governor of the State of Florida certifies to the Secretary of Commerce
that such regulation is unacceptable within the forty-five day review
period specified in NMSA.
Activities Subject to Regulation:
1. Mineral or hydrocarbon exploration, development, or production;
2. Destroying, causing the loss of, or injuring coral or live rock
or attempting to do so;
3. Altering or placing any structure, object, or other material on
the seabed, except as authorized by appropriate permits or as part of
lawful fishing;
4. Discharging or depositing any material or discharging or
depositing any material beyond the sanctuary that then enters the
sanctuary and injures a sanctuary resource or quality;
5. Operating a vessel, including anchoring, in a manner that may
destroy, cause the loss of, or injure sanctuary resources or property
or in a manner that may injure or endanger the life of sanctuary users;
6. Diving in a manner that could harm sanctuary resources,
sanctuary property, or other users of the sanctuary;
7. Stocking within the sanctuary or releasing within or from beyond
the boundary of the sanctuary any non-native or exotic species;
8. Defacing, marking, or damaging in any way or displacing,
removing, or tampering with any markers, signs, notices, placards,
navigational aids, monuments, stakes, posts, mooring buoys, boundary
buoys, trap buoys, or scientific equipment;
9. Moving, removing, injuring, preserving, curating, and managing
historic resources;
10. Taking, removing, moving, catching, collecting, harvesting,
feeding, attracting, injuring, destroying, or causing the loss of or
attempting to take, remove, move, catch, collect, harvest, feed,
attract, injure, destroy, or cause the loss of any sanctuary resource;
11. Conducting or attempting to conduct any manner of activities
within specially designated marine areas, including removing, injuring,
or disturbing any living or dead organism or bottom formation;
possessing or using certain fishing gear; operating or anchoring
vessels; entering areas; and diving;
12. Harvesting marine life species;
13. Possessing or using explosives, electrical charges, or toxic
substances within the sanctuary, or using explosives, electrical
charges, or toxic substances beyond the sanctuary that then enter the
sanctuary and injure a sanctuary resource or quality;
14. Abandoning fishing gear or vessels and removing (including
salvaging) fishing gear and grounded, derelict, or abandoned vessels;
15. Maintaining or deserting a derelict vessel or vessel at risk of
becoming derelict and leaving harmful matter aboard a grounded or
deserted vessel; and,
16. Interfering with any enforcement action.
Section 2. Emergency and/or temporary regulation.
Any and all activities are subject to immediate emergency and/or
temporary regulation, including any not listed in Section 1 of this
article.
Article V. Effect on Leases, Permits, Licenses, and Rights
Pursuant to paragraph (c)(1) of section 304 of the NMSA, 16 U.S.C.
1434(c)(1), a person may conduct an activity prohibited by sanctuary
regulations if such activity is specifically authorized by a valid
Federal, State, or local lease, permit, license, approval, or other
authorization or right in existence prior to the effective date of
these revised terms of designation, provided that the holder of the
lease, permit, license, approval, or other authorization complies with
the procedures outlined in this subpart and subpart E.
However, in no event may the Secretary of Commerce or his or her
designee issue any form of approval for the: (1) exploration, leasing,
development, or production of minerals or hydrocarbons; (2) disposal of
dredged material within the sanctuary other than in connection with
beach renourishment or sanctuary restoration projects; or (3) discharge
of untreated or primary treated sewage. Any purported authorizations
issued by other authorities for any of these activities within the
sanctuary shall be invalid.
Article VI. Alteration of this Designation
The terms of designation, as defined in paragraph (a) of section
304 of the NMSA, 16 U.S.C. 1434(a), may be modified only by the
procedures outlined in paragraphs (a) and (b) of section 304 of the
NMSA, 16 U.S.C. 1434(a) and (b), including public hearings,
consultation with interested Federal, State, and local government
agencies, review by the appropriate congressional committees, review by
the Governor of the State of Florida, and approval by the Secretary of
Commerce, or his or her designee. No designation, term of designation,
or implementing regulation may take effect in Florida State waters
within the sanctuary if the Governor of the State of Florida certifies
to the Secretary of Commerce that such designation, term of
designation, or regulation is unacceptable within the forty-five day
review period specified in NMSA.
Florida Keys National Marine Sanctuary Boundary Coordinates
The Florida Keys National Marine Sanctuary (sanctuary) encompasses
an area of 3,427 square nautical miles (4,539 square miles) of coastal,
ocean, and Gulf of Mexico waters and the submerged lands thereunder
from the boundary to the shoreline as defined by the mean high water
tidal datum surrounding the Florida Keys in southern Florida. The
precise boundary coordinates are listed in Appendix I to this Subpart.
The sanctuary boundary begins approximately 4 miles east of the
northern extent of Key Biscayne at Point 1 and continues roughly south
and then southwest and west in numerical order to Point 15
approximately 27 miles SW of Loggerhead Key. From Point 15 the
sanctuary boundary continues north to Point 17 which is approximately
18 miles NW of Loggerhead Key and then continues roughly east in
numerical order to Point 23 just north of Sprigger Bank. From Point 23
the boundary continues in numerical order roughly SE to Point 26 just
north of Old Dan Bank. From Point 26 the boundary continues NE in
numerical order through Bowlegs Cut and Steamboat Channel to Point 42
near the southern entrance to Cowpens Cut west of Plantation Key.
From Point 42 the boundary continues towards Point 43 until it
intersects the shoreline. From this intersection the boundary follows
the shoreline roughly NNE until it intersects the line segment formed
between Point 44 and Point 45.
[[Page 6122]]
From this intersection the boundary continues NNE to Point 45 and
then roughly NE in numerical order to Point 61 just west of Hammer
Point in Tavernier, FL. From Point 61 the boundary continues in
numerical order roughly north and then NW to Point 64 just west of
Pigeon Key. From Point 64 the boundary continues in numerical order
roughly NE then NNE through Baker Cut to Point 69. From Point 69 the
boundary continues in numerical order roughly NE through Buttonwood
Sound to Point 73.
From Point 73 the boundary continues towards Point 74 until it
intersects the shoreline near the southern entrance to Grouper Creek
west of Key Largo, FL. From this intersection the boundary follows the
shoreline NE along Grouper Creek until it intersects the line segment
formed between Point 75 and Point 76. From this intersection the
boundary continues towards Point 76 until it intersects the shoreline.
From this intersection the boundary follows the shoreline roughly east
until it intersects the line segment formed between Point 77 and Point
78.
From this intersection the boundary continues to Point 78 and then
roughly ESE in numerical order through Tarpon Basin to Point 85. From
Point 85 the boundary continues NE and then NW to Point 92.
From Point 92 the boundary continues towards Point 93 until it
intersects the shoreline. From this intersection the boundary follows
the shoreline roughly north along Dusenberry Creek until it intersects
the line segment formed between Point 94 and Point 95.
From this intersection the boundary continues to Point 95 and then
NE in numerical order through Blackwater Sound to Point 102 south of
the entrance to Jewfish Creek.
From Point 102 the boundary continues towards Point 103 until it
intersects the shoreline. From this intersection the boundary follows
the shoreline roughly NNE and then NW until it intersects the line
segment formed between Point 104 and Point 105. From this intersection
the boundary continues towards Point 105 until it intersects the
shoreline. From this intersection the boundary follows the shoreline
roughly NNE and then roughly west along southwestern Barnes Sound and
around Division Point until it intersects the line segment formed
between Point 106 and Point 107 near Manatee Creek east of Long Sound.
From this intersection the boundary continues towards Point 107 until
it intersects the shoreline. From this intersection the boundary
follows the shoreline roughly NNW until it intersects the line segment
formed between Point 108 and Point 109. From this intersection the
boundary continues towards Point 109 until it intersects the shoreline.
From this intersection the boundary follows the shoreline roughly east
until it intersects the line segment formed between Point 109 and 110.
From this intersection the boundary continues towards Point 110 until
it intersects the shoreline. From this intersection the boundary
follows the shoreline roughly north and then NE until it intersects the
line segment formed between Point 111 and Point 112. From this
intersection the boundary continues towards Point 112 until it
intersects the shoreline. From this intersection the boundary follows
the shoreline roughly east and then north around Bay Point and then
west until it intersects the line segment formed between Point 113 and
Point 114. From this intersection the boundary continues towards Point
114 until it intersects the shoreline. From this intersection the
boundary follows the shoreline north along the western side of Manatee
Bay until it intersects the line segment formed between Point 115 and
Point 116. From this intersection the boundary continues towards Point
116 until it intersects the shoreline.
From this intersection the boundary follows the shoreline around
northern Manatee Bay and Barnes Sound until it intersects the line
segment formed between Point 117 and Point 118. From this intersection
the boundary continues towards Point 118 until it intersects the
shoreline. From this intersection the boundary follows the shoreline
roughly to the SE south of FL State Route 905A--Card Sound Road then NW
and roughly north along western Little Card Sound and then Card Sound
cutting off the mouths of canals and drainage ditches until it
intersects the line segment formed between Point 119 and Point 120
south of Midnight Pass. From this intersection the boundary continues
to Point 120 and then roughly SE to each successive point in numerical
order approximating the southern boundary of Biscayne National Park to
Point 142 approximately 3 miles ENE of Turtle Rocks. From Point 142 the
boundary continues roughly N to each successive point in numerical
order ending at Point 158.
The inner landward sanctuary boundary is defined by and follows the
shoreline where not already specified in the description above.
Dry Tortugas National Park is not included within the FKNMS and the
inner sanctuary boundary in this area is coterminous with this national
park boundary and begins at Point DT1 and continues in numerical order
counterclockwise around the national park ending at Point DT10.
VI. Response to Comments
NOAA collected comments on the 2019 draft EIS as well as the 2022
proposed rule. For the purposes of full transparency and
responsiveness, the following section addresses all of these comments.
The subject matter of each comment category is first summarized,
followed by NOAA's response. Responses may refer to portions of the
regulations, management plan, or EIS that NOAA modified as a result of
comments it received. Comments and responses are organized primarily by
applicable regulation or to a few cross-cutting categories of comments.
General
Comment 1: NOAA received comments that opposed any additional
regulatory action and called for no change to the current regulations
and management plan.
Response: As described in Section I.2 above, NOAA determined it was
necessary to update the FKNMS management framework, including modifying
regulations, in order to ensure long-term resource viability and
ecosystem function and to address current and future threats to
sanctuary resources such as 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, the 2011 FKNMS Condition
Report \13\ 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, a seagrass die-off, and
warming ocean temperatures as evident during the summer 2023 marine
heat wave, among other threats. New regulations are necessary to
address these conditions.
---------------------------------------------------------------------------
\13\ <a href="https://sanctuaries.noaa.gov/science/condition/fknms/welcome.html">https://sanctuaries.noaa.gov/science/condition/fknms/welcome.html</a>.
Sanctuary Boundary
Comment 2: NOAA received comments supporting the sanctuary boundary
expansion alternative to include the ATBA, the Tortugas region,
[[Page 6123]]
and Pulley Ridge. Comments noted support for sanctuary-wide boundary
expansion to reduce confusion and create consistency, particularly
through the ATBA boundary expansion. Comments acknowledged the need for
greater ecological protection in the Florida Keys that could be
achieved through boundary expansion, particularly by including the
entire Tortugas region and Pulley Ridge. NOAA received comments
opposing the sanctuary boundary expansion alternatives, largely due to
concern about loss of access for traditional fishing activities.
Response: NOAA's action to include the final preferred alternative
aligns the sanctuary boundary with the ATBA boundary to create a
consistent geographic and regulatory boundary. In addition, including
the ATBA and the Tortugas region provides additional protections for
the resources that are present in the expanded area, including those
that are ecologically connected. In response to concerns about
sanctuary boundary expansion resulting in loss of fishing access, the
boundary expansion does not affect activities that are considered
traditional fishing as defined at 15 CFR 922.162.
Comment 3: NOAA received comments supporting and opposing expanding
the sanctuary boundary to include a distinct unit at Pulley Ridge.
Comments in support noted its value as the deepest known
photosynthesizing coral reef off the continental U.S. with physical and
biological connections to the Florida Keys. Comments in opposition
noted this area is already regulated as a HAPC with associated GMFMC
regulations and requested that NOAA pursue other avenues to protect the
area from all vessel anchoring.
Response: The final rule does not include Pulley Ridge in the
sanctuary boundary. The existing HAPC with associated GMFMC regulations
prohibits, among other things, anchoring by fishing vessels. NOAA's
purpose for proposing a designation of a new unit in Pulley Ridge was
to protect important mesophotic reef habitat from anchoring by all
vessels. Concurrent with considering boundary expansion to include
Pulley Ridge, as noted in the proposed rule, the United States proposed
that the IMO designate a No Anchoring Area in the southern portion of
Pulley Ridge, which was approved and implemented starting June 1, 2023
(IMO SN.1/Circ.342). The IMO designation has prohibited all anchoring
on Pulley Ridge and, therefore, the need for additional regulation by
NOAA is greatly reduced. Finally, given that this area of Pulley Ridge
is managed as a HAPC with associated fishing regulations under the MSA,
the final rule does not restrict fishing in this area.
Comment 4: NOAA received comments that opposed any change to the
sanctuary boundary citing reasons including (1) the lack of sufficient
enforcement; (2) concern of restricting use/access for the public,
particularly for commercial fishing and most notably shrimp fishing;
(3) budget and management limitations; and (4) socioeconomic
consequences to certain industries.
Response: NOAA considered all of these concerns throughout the
Restoration Blueprint process, including at the draft EIS and draft
management plan phase, the notice of proposed rulemaking, the final EIS
and final management plan, and in this final rule. Specifically, (1)
enforcement is identified as one of six management priorities in the
final management plan (see the priorities section and activities 3.3.1
and 5.3.2). NOAA/ONMS will work with partners to enhance enforcement
capacity to achieve visible resource protection benefits. ONMS is also
committed to enhancing public knowledge, understanding, and compliance
through establishing consistent regulations, where feasible, and
targeted education and interpretation of those regulations. These
efforts will strengthen enforcement of the final regulations. (2)
Public access, including fishing access, is not affected by expanding
the sanctuary boundary. Sanctuary-wide regulations will apply, which
may affect how someone operates (e.g., prohibition on impact to the
seabed) but do not affect access. Specific to fishing activity,
exemptions from specific sanctuary-wide regulations exist for
traditional fishing activities, the definition for which is updated in
the final rule. (3) NOAA will address resource limitations by
identifying priorities towards which resources will be directed. NOAA's
final management plan includes a suite of six management priorities and
Appendix I outlines a prioritization framework that initially evaluates
cost and level of effort needed followed by consideration of the
following five factors: importance, impact, feasibility, requirements,
and connection to one of the six priority themes. In addition, NOAA
will continue to work with partners that play an essential role in how
the sanctuary conducts its operations and programs. Appendix II
includes a list of representative partners. (4) As summarized in the
2022 Socioeconomic Report (Schwarzmann et.al., 2022), the estimated
economic effects of the 2022 NOPR alternative are not considered
significant under section 3(f)(1) of Executive Order 12866. Estimated
losses to small businesses in the commercial fishing and recreational
for-hire fishing sectors resulting from proposed boundary changes are
expected to be less than 1% of average revenue with the exception of
the lobster fishery, which may experience a loss of roughly 2%. In this
final rule, NOAA is selecting a smaller sanctuary boundary expansion
than the 2022 NOPR Alternative; therefore, socioeconomic impacts are
expected to be less than what was estimated in the 2022 Socioeconomic
Report.
Sanctuary-Wide Regulations
Comment 5: Commenters requested NOAA consider adding an exception
to the proposed anchoring definition to include an exemption for push
poles and power poles.
Response: NOAA's final rule prohibits anchoring in all SPAs,
Habitat Restoration Areas, and Conservation Areas, except in the
Western Sambo Conservation Area. Given that these areas prohibit take
(i.e., fishing) and the use of push poles and power poles is not
commonplace, the final rule does not modify the anchoring definition to
allow exceptions. The final rule does not regulate anchoring for
nearshore WMAs, where push poles and power poles are more commonplace.
See the response to comments in the WMA section.
Comment 6: NOAA received comments requesting a definition for
trolling given the existing exception for catch and release fishing by
trolling in 4 SPAs and the proposal to include a ``trolling only'' zone
at the proposed Western Dry Rocks (Alternatives 2 and 3).
Response: The final rule does not include any provisions related to
trolling, so a definition is not needed.
Comment 7: NOAA received comments opposing the proposed update to
the traditional fishing definition. Commenters requested that the
definition more fully capture existing fishing regulations promulgated
by State and Federal authorities and allow for the future development
and use of innovative gear types intended to reduce impacts on FKNMS
resources. Commenters also recommended that the final rule include the
complete definition of traditional fishing, instead of being included
as a reference to another section or document.
Response: After further consideration and close coordination with
the Florida Fish and Wildlife Conservation Commission, the GMFMC, and
the
[[Page 6124]]
SAFMC, NOAA agrees with the recommendation to capture existing fishing
practices in the definition of traditional fishing rather than limiting
the definition to activities that were in existence as of 1997. NOAA
has included an updated definition for ``traditional fishing'' in the
final rule that includes fishing activities taking place as of the
effective date of this final rule.
NOAA provides further guidance in final EIS Appendix G that
includes an updated description of the current fisheries managed by the
FWC in State waters and by NMFS in the EEZ. The traditional fishing
activities described in Appendix G are currently occurring in this
sanctuary subject to FWC/NMFS regulation and will remain subject to the
sanctuary's marine zone regulations where additional protections are
needed to address impacts of traditional fishing activities on
sanctuary resources.
NOAA agrees that it may be appropriate to update the traditional
fishing definition in the future, particularly to recognize new or
innovative gear types that become widely used and are demonstrated to
reduce impacts to sanctuary resources. Any update to the definition and
the fishing activities that are considered traditional fishing would be
done through a separate rulemaking in order to consider public comment
and to conduct an environmental analysis under NEPA of the potential
impacts of new or innovative gear types or fisheries activities on
sanctuary resources. New or innovative gear types, along with other new
or modified fishing activities, would continue to require sanctuary
permits or authorization while they are being tested. NOAA would
collaborate closely with, and rely on the expertise of, FWC and the
FMCs when considering any updates to the definition of traditional
fishing activities.
Discharge and Deposit Regulation Exception
Comment 8: NOAA received comments strongly supporting a specific
regulation to limit discharges from cruise ships and asserting that
cruise ship discharges are a significant cause of water quality
problems in the FKNMS. Specific comments requested clarification about
exceptions from the discharge prohibitions for certain discharges
(e.g., rainwater, ballast water) from cruise ships. Commenters also
requested that NOAA continually review this provision to see if
technology advances warrant additional or modified discharge
regulations. Commenters also stated that discharges from cruise ships
are sufficiently regulated by the U.S. EPA, including through the CWA
and VIDA. Finally, commenters claimed there is no scientific support
for prohibiting exhaust gas cleaning system discharges and no need to
rely on the precautionary principle.
Response: NOAA has updated and clarified the cruise ship discharge
and deposit prohibition in this final rule to more clearly prohibit
discharging or depositing of any material or other matter from a cruise
ship except cooling water. NOAA determined that other 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. EPA has
recently issued a final rule setting national standards of performance
for commercial vessel incidental discharges, but these standards will
not be effective until the United States Coast Guard has promulgated
implementing regulations. Additionally, the sanctuary was designated by
Congress, in part, for the purpose of protecting water quality, and
sanctuary regulations have long imposed more stringent vessel discharge
standards than the CWA. For instance, the sanctuary's current discharge
and deposit prohibition, which provides a limited exception for certain
routine vessel discharges, was promulgated almost ten years before EPA
began regulating incidental vessel discharges in 2007.
Discharges of EGCS wash water contain PAH's, higher pH water, and
heavy metals. EPA's national standards for discharge of EGCS wash water
is based largely on the IMO 2015 Guidelines for Exhaust Gas Cleaning
Systems (Resolution MEPC.259(68)), but these standards may not be
sufficiently protective for FKNMS. Although the degree of harm of these
releases depends on the local environmental conditions, scientific
studies indicate a cause for concern of impacts to sensitive ecosystems
such as FKNMS (Teuchies et al., 2020). NOAA does not require scientific
certainty to prohibit EGCS wash water discharges. While EPA's
regulations do not ban EGCS wash water, a ban narrowly tailored to
cruise ships in FKNMS is feasible. Cruise ships spend a short time
traveling in the Sanctuary to visit Key West, and cruise ships
currently switch to low sulfur fuels when entering harbors and ports
where EGCS discharges are prohibited. Though low-sulfur fuel is more
costly, cruise ships spend a very short time traveling through the
sanctuary to visit Key West. This regulatory change meets the express
purpose of the Act to facilitate uses in the sanctuary to the extent
compatible with the primary objective of resource protection by, in
this case, considering the low economic impact on cruise ships and the
risk of harm to sanctuary resources. 16 U.S.C. 1431(b)(6).
Comment 9: NOAA received comments raising concerns about compliance
with the prohibition of discharges from cruise ships and enforcement of
violations. Specifically, commenters noted that this regulation lacks
the appropriate enforcement mechanism and mandatory penalty
consequences.
Response: Cruise ships are subject to a comprehensive system of
regulation and oversight. State and Federal agencies may conduct
announced and unannounced inspections and enforce compliance with State
and Federal laws and regulations. A cruise ship found to be in
violation of the sanctuary's discharge and deposit prohibition could be
subject to civil penalties under the NMSA, 16 U.S.C. 1437(d), or, in
some cases, criminal prosecution. If a discharge and deposit results in
destruction, loss of, or injury to sanctuary resources, a cruise ship
may also be liable for resulting response costs and damages under 16
U.S.C. 1443.
Comment 10: NOAA received public comments requesting that proposed
discharge prohibition for cruise ships be extended to all commercial
vessels over 79 feet.
Response: NOAA appreciates these comments and considered them
carefully. Cruise ships are a unique source of a considerable volume of
greywater discharges generated by carrying passengers (i.e., showers,
laundry, sinks, kitchens, etc.) and have the ability to refrain from
discharging during their short time in the sanctuary. NOAA may consider
extending this discharge prohibition to other large vessels in a future
rulemaking after evaluating water quality monitoring data and assessing
the types, numbers, and sizes of vessels present in FKNMS.
Comment 11: NOAA received comments recommending that a regulation
be added to specifically address turbidity (e.g., suspended sediments
in the water column) generated from cruise ships and other large
vessels.
Response: NOAA's final rule was designed to limit discharges of
greywater and runoff from cruise ships
[[Page 6125]]
because these discharges are well studied as having potential adverse
effects on water quality, and cruise ships are capable of reducing
these discharges while in the sanctuary. More study is needed to weigh
the costs and benefits of any regulation aimed at reducing turbidity
from cruise ship transit. Ship-caused turbidity could have localized
impacts to sanctuary resources in the vicinity of the transit channel.
It is unclear if measures to address those impacts could be taken other
than reducing the size or frequency of cruise ships entering Key West,
which could have measurable economic impacts.
Additionally, the Florida DEP is responsible for reviewing,
establishing and revising water quality standards, including turbidity.
Pursuant to the Federal Clean Water Act, DEP conducts a comprehensive
review of water quality standards every three years. The Water Quality
Protection Program (WQPP) may invite additional review, discussion and
recommendations about proposed or adopted revisions to water quality
standards that impact waters of the Florida Keys.
Comment 12: NOAA received comments acknowledging that in some cases
vessels provide affordable housing options. These commenters were
concerned about the use of these vessels as homes, the use of vessels
as overnight rentals, and the potential environmental impact of
discharge from such vessels if they aren't regulated specifically.
Response: NOAA acknowledges the reality of vessels serving as
affordable housing and that the use of vessels as short-term rentals
could potentially cause harm to the environment from discharges from
residential uses. However, NOAA already regulates vessel discharges,
regardless of the duration of a visit. State waters of the Florida Keys
have been designated as a No Discharge Zone since 2002. This
designation was extended into Federal waters in 2010, and current
sanctuary regulations prohibit the discharge or deposit of any material
or other matter into the sanctuary, with limited exceptions. NOAA
continues to work with the FKNMS Water Quality Protection Program
(WQPP) (established through the FKNMSPA and administered by the U.S.
EPA and the State of Florida's DEP in cooperation with NOAA), its
partners, and the community to support outreach to vessel owners about
sanctuary discharge regulations and options for marine sanitation
device pump out. NOAA also continues to support NOAA OLE, FWC, and USCG
enforcement efforts related to discharge. See also the comments and
responses to Overnight Mooring Buoys.
Temporary Regulation for Emergency and Adaptive Management
Comment 13: NOAA received comments supporting an expanded time
frame for the existing emergency regulation to allow increased
responsiveness to emergencies and emerging issues that would benefit
from immediate management action. NOAA also received comments
expressing concerns that an increased time frame could subvert the
public comment process required for rulemaking. Commenters also
suggested that the sanctuary consider different time frames for
sanctuary-wide versus marine zone-specific emergencies. Finally, NOAA
received comments that ``emergency'' was not clearly defined which
raised uncertainty about the drivers that would potentially allow for
greater flexibility in modifying zones to address changing resource
management needs.
Response: The final rule includes a new regulatory framework for
temporary emergency rules that was developed in response to public
comments. The final rule includes an increased time frame for the
Temporary Regulation for Emergency and Adaptive Management in order to
provide the greatest level of flexibility to NOAA for responding to
emergency management needs in the sanctuary. While NOAA's final rule
has a maximum time frame (six months with one six-month extension),
NOAA will consider shorter time frames where appropriate to meet
management needs. In addition, this extended time frame provides
sufficient time for NOAA to go through a full rulemaking process if the
situation warranted. An increased time frame also aligns with the
emergency time frames outlined in section 305(c) of the MSA. This
increased time frame is also consistent with other national marine
sanctuaries that have emergency regulations.
In addition, the final rule addresses the comments in a number of
ways. Specifically:
<bullet> To address concerns about subverting the public notice and
comment process, NOAA is making clear that the existing APA
requirements--to provide for prior notice and opportunity for public
comment, unless NOAA can demonstrate good cause apply to these
emergency rulemakings;
<bullet> To respond to questions regarding what NOAA would consider
an emergency, the agency has identified categories for which temporary
regulations may be promulgated. NOAA believes it is 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;'' and
<bullet> With respect to concerns raised about application of
emergency action in State waters, the final rule explicitly
acknowledges that temporary regulations shall be subject to the
Governor's review pursuant to section 304(b)(1) of the NMSA.
Historical Resources Permitting
Comment 14: NOAA received comments supporting updating historical
resource permits to align with the State process, noting that historic
resources are nonrenewable resources and NOAA has an obligation to
manage them as such. Comments specifically acknowledged that aligning
NOAA's historical resource permits with Florida's archaeological
research permit standards should make the permitting process more
efficient for researchers working in the State waters of the sanctuary.
Some commenters noted that this alignment would in turn serve to
increase protection of FKNMS historical resources.
Response: NOAA agrees and is updating the historical resource
permits for these reasons. The current permitting system is
unnecessarily complicated and confusing to applicants as it
artificially bisects the archaeological research process into either
survey/inventory or research/recovery, often resulting in insufficient
research plans to meet project goals. The archaeological research
permit category requires 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
quality of the research, both proposed and conducted, will be improved
by these changes, and the reporting of research results will also be of
higher quality when directed by a professional archaeologist with the
required education and experience. Finally, the archaeological research
permit category with associated application and review criteria will
increase the protection of historical resources throughout the
sanctuary. These changes support the agency's efforts to meet National
Historic Preservation Act (NHPA) responsibilities in combination with
the new management plan and the proposed NHPA Programmatic Agreement
for FKNMS Operations, Management, and Permitting. NOAA concludes only
minor socio-economic impacts will
[[Page 6126]]
result from increasing regulation of historic resource permitting.
Comment 15: NOAA received comments opposing changes to the
historical resource permit categories due to the potential impact to
private property rights for those involved in salvage of historic
shipwrecks. NOAA also received comments that organizations holding
Federal Admiralty Court rights of access should not be exempt from
updated historical resource permitting regulations. More generally,
NOAA received comments both supporting and opposing historic shipwreck
salvage and the resulting removal of historical resources from the
sanctuary for private gain. Commenters in support of the status quo
indicated a belief that private sector salvage was a better way to
preserve historical resources. Comments opposing historic shipwreck
salvage were supportive of NOAA's proposal to remove current permitting
provisions allowing for the deaccession/transfer of sanctuary
artifacts.
Response: Holders of pre-existing, valid admiralty rights are not
required to obtain a deaccession/transfer permit under the current
sanctuary policies, and, as such, will not be affected by the
elimination of this permit category in the final rule. In the 1996
FKNMS final management plan and final environmental impact statement
(Vol. 2, pg. 99), NOAA recognized that admiralty rights of access to
specific historic shipwrecks had been granted by Federal courts to
certain organizations and individuals prior to congressional
designation of the sanctuary. NOAA continues to recognize such rights
of access for those organizations and individuals that have continued
to maintain the underlying admiralty rights and will recognize any
right to seek adjudication of title to articles of salvage in
accordance with the entities' admiralty rights.
The removal of a deaccession/transfer permit category for those
without Federal Admiralty rights is consistent with Federal
archaeological preservation laws, collectively referred to as the
Federal Archaeology Program, which promote the ``in place''
conservation of archaeological sites on public lands, rather than
private salvage/recovery. Furthermore, archaeological excavation and
artifact recovery from public lands should be undertaken for public
benefit to answer specific research questions. The resulting artifact
collections should be maintained intact for future study. NOAA's
changes to FKNMS historical resource permitting categories in the final
rule aligns FKNMS regulations with these national historic preservation
standards.
Those holding pre-existing, valid admiralty rights are not exempt
from regulation or other historic resource permitting requirements. In
accordance with section 304(c) of the NMSA and ONMS regulations at 15
CFR 922.10 and 922.167, these rights of access are subject to
regulation and restriction by NOAA and must be carried out in a manner
consistent with other applicable laws such as the Abandoned Shipwreck
Act (ASA), ASA guidelines, NHPA, NMSA, and FKNMSPA.
Comment 16: NOAA received comments specifically related to the
Draft NHPA Programmatic Agreement for FKNMS Operations, Management, and
Permitting, which was included in Appendix C of the 2019 draft EIS.
Commenters expressed frustration that the previous NHPA Programmatic
Agreement had expired prior to the development and implementation of an
updated version. Commenters expressed concern that this updated draft
was not fairly publicly vetted and approved with full consultation of
the relevant Florida State offices. Some commenters indicated a desire
to have the draft agreement made available through a separate public
review process.
Response: NOAA has been working with the State of Florida and the
Advisory Council on Historic Preservation (ACHP) since 2015 to develop
a NHPA Programmatic Agreement for FKNMS Operations, Management, and
Permitting. NHPA implementing regulations under 36 CFR 800.14(b)(2)(ii)
require the agency official to arrange for public participation
appropriate to the subject matter and scope of the proposed agreement.
NOAA determined that the 2019 draft EIS process would be a suitable way
to notify the public of the draft programmatic agreement and receive
public comment. In addition to public meetings during which NOAA
presented information about its management update, including the draft
programmatic agreement, NOAA also held a meeting with FKNMS historical
resource permittees and former permittees to make them aware of the
2019 draft EIS/draft programmatic agreement and associated public
comment period. NOAA believes that the 5-month public comment period
offered for the 2019 draft EIS/draft programmatic agreement was
sufficient. NOAA, with FKNMS Sanctuary Advisory Council Submerged
Cultural Resources members, hosted a special meeting just following
release of the draft EIS in 2019 to further engage the interested
public on issues related to the Programmatic Agreement. Since that
time, NOAA, the State of Florida and the ACHP have been finalizing the
agreement.
Fish Feeding
Comment 17: NOAA received comments that generally supported the
proposal to prohibit feeding and attracting of fish, including sharks,
or other marine species, from any vessel or while diving in the
sanctuary, consistently in State and Federal waters. Specifically,
comments opposed shark feeding for entertainment purposes, citing
safety concerns of mixing feeding sharks with fishing, swimming, and
snorkeling activities. Commenters also noted concern about habituating
sharks to feeding and how that affects their behavior. NOAA also
received comments that opposed this proposed regulation because of the
potential loss of eco-tourism and educational opportunities and
questioned the impacts of fish and shark feeding on the environment,
human safety, and fish and shark behavior.
Response: NOAA determined the benefits of prohibiting fish feeding
outweigh the potential costs to eco-tourism or educational
opportunities. NOAA considered impacts to sharks and shark depredation,
human safety concerns, and compliance and enforcement. In order to
minimize the impacts to current eco-tourism and educational businesses
that utilize fish feeding, NOAA will consider issuing general permits
to pre-existing eco-tour operators. However, in order to minimize the
negative impacts of fish feeding, this exception will only apply to
pre-existing companies with the goal of phasing out the practice, and
permit applicants must satisfy all general permit application
requirements. Any permits would contain specific terms and conditions
to protect sanctuary resources.
Comment 18: NOAA received comments questioning the difference
between the prohibition of feeding fish for attracting and viewing
purposes but allowing the use of bait in traditional fishing activities
and the impact these activities have on the environment and fish
behavior.
Response: This regulation was developed due to concerns about the
safety of divers, swimmers, and the effects of concentrating and
training predatory fish to associate humans with food. Moray eels,
sharks, barracuda, groupers and a host of other species can pose an
increased danger to divers as a result of hand-feeding. In addition,
hand feeding generally occurs in the same locations, days, and time
schedules and
[[Page 6127]]
creates a habitual feeding station for marine life. This is in contrast
to fishing activity that is generally less regular and consistent in
locations, times, and schedule. Marine species conditioned to being fed
begin anticipating meals, which interrupts natural feeding cycles and
can result in negative behavior and health impacts including that hand-
fed fish are especially vulnerable to predators. The existing exemption
for the discharge or deposit of fish, fish parts, chumming materials or
bait used or generated incidental to and while conducting traditional
fishing activities will be maintained. A description of activities
considered traditional fishing is included in Appendix G of the final
EIS.
Comment 19: NOAA received comments requesting that shore-based fish
feeding be regulated, including that all business-scale feeding of
tarpon and other species should be fully prohibited noting the
habituation of a wild animal.
Response: NOAA has decided not to regulate shore-based activity at
this time due to the large number of shore-based fish feeding venues.
These venues are mostly small-scale, coin operated operations with a
handful of larger-scale operations at points throughout the sanctuary,
which would be difficult to control and manage to ensure compliance.
Grounded and Deserted Vessels, and Harmful Matter
Comment 20: NOAA received comments supporting the proposal
providing the sanctuary greater authority to address grounded and
deserted vessels. Commenters noted that NOAA should ensure that
definitions and application of any proposed regulations are consistent
with the State of Florida regulations and enforcement authorities. NOAA
also received comments acknowledging 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 found. NOAA
received comments supporting additional coordination with the towing
and salvage operators to develop best practices for vessel removal
recognizing that sometimes additional damage can occur during the
removal process.
Response: NOAA agrees with the need for the sanctuary to have its
own specific regulations to respond to the threat of deserted vessels
and harmful matter. The final rule is consistent with State
regulations. NOAA will continue to work in partnership with the State
of Florida, Monroe County, the U.S. Coast Guard and others due to the
challenging scope of this issue. Finally, the management plan includes
additional details for how NOAA will engage with towing and salvage
operators to develop best management practices and a permitting process
for removing grounded and deserted vessels (See Appendix A, Activity
3.3.4).
Large Vessels Mooring Buoys
Comment 21: NOAA received comments that support delineating large
and small vessel mooring buoys. Commenters requested clarification
about the size delineation including length, combined length of rafted
vessels, and vessel tonnage. Some comments supported this regulation
and the potential application 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.
Commenters raised concern about the number of large vessel mooring
buoys and if that would be sufficient to meet demand.
Response: NOAA agrees with comments about delineating mooring buoys
based on vessel sizes and provides further clarification in the
definition for ``large vessel'' in the rule. In addition, large vessel
mooring buoys include a sticker indicating the vessel length that can
use such buoys. The management plan includes activities related to
review and update of the sanctuary mooring buoy program including plans
to engage user groups to help identify areas of use, numbers of users,
and placement of mooring buoys. Finally, the sanctuary website includes
information and tutorials about the proper use of mooring buoys,
information is included in the Bluestar Program education materials,
and the sanctuary 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.
Live Rock Aquaculture
Comment 22: NOAA received comments that supported the development
of a Memorandum of Agreement with the Florida Department of Agriculture
and Consumer Services (FDACS) and NMFS for better coordination of this
activity. Commenters opposed the requirement of an additional sanctuary
permit for live rock aquaculture operations.
Response: NOAA agrees and the final rule does not include an
additional sanctuary permit for live rock aquaculture. The final
management plan includes activity 3.2.3 calling for the development of
a Memorandum of Agreement with the Florida FDACS and NMFS for better
coordination of this activity.
Comment 23: NOAA received specific comments requesting that
existing live rock aquaculture sites be considered when evaluating the
final marine zone locations, regulations, and continued access for
existing permitted live rock aquaculture operators.
Response: NOAA has evaluated the existing live rock aquaculture
site locations in relation to the proposed new or modified marine
zones. Currently, there is only one marine zone where live rock
aquaculture occurs (in the vicinity of the proposed new Tavernier
Nursery Restoration Area). Due to the fact that the Tavernier Nursery
Restoration Area is proposed transit only, the live rock aquaculturist
will need to obtain a sanctuary permit to enter and operate in this
zone. In addition, for this site, and more generally, live rock
aquaculture practitioners must have a valid State license or Federal
permit to operate. As long as they have a copy of this documentation
and a sanctuary permit on their vessel if and when operating in the
sanctuary marine zone, enforcement action will not be taken with
respect to lawful and authorized live rock aquaculture operations
within this marine zone. NOAA and FWC will ensure that their
enforcement officers are aware that valid State license or Federal
permit holders may continue to conduct this activity as licensed or
permitted.
Overnight Use of Mooring Buoys
Comment 24: NOAA received comments that were generally not
supportive of prohibiting overnight use of mooring buoys, largely due
to issues of public safety (e.g., safe harbor during storms), public
access, and enforcement. Some public comments, however, highlighted
concern about 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. Comments also include alternative proposals including
limiting visitors to a maximum 14-day stay to prevent long-term use of
moorings.
Response: Mooring buoys are intended to increase boating
accessibility while reducing impact to critical and sensitive sanctuary
resources caused by anchoring. In the EIS, NOAA considered an
alternative that would prohibit use of mooring buoys overnight in
response to concerns
[[Page 6128]]
about impacts of longer term uses such as increased discharges and
increased impacts on sanctuary resources, like harvesting of fish. In
response to safety concerns, in this alternative NOAA also considered
an exception to this regulation for vessels seeking safe harbor. The
benefits of this alternative would be to facilitate equitable access to
the mooring buoys and to ensure compliance with sanctuary rules while
at mooring buoys while continuing to allow overnight use for safety.
However, NOAA does not restrict overnight use in the final rule in
response to public and agency comments that were generally not
supportive of prohibiting overnight use of mooring buoys, largely due
to issues of public safety, limiting public access, and enforcement.
Shoreline Slow Speed
Comment 25: NOAA received comments that were generally supportive
of modifying the existing idle speed, no wake regulation along all
residential shoreline (922.163(a)(5)(iii)(D)) to a more general
shoreline slow speed regulation and applying it to all shorelines
within the sanctuary. Commenters noted the benefits of such a
regulation including (1) potentially decreasing the number of
individual WMAs (where speed is regulated); (2) reducing the need for,
or at least the number of, marker buoys and signage; and (3) providing
additional protections for nearshore habitats and species. Commenters
also 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.
Response: The sanctuary's existing regulations prohibit operating a
vessel at a speed greater than 4 knots or in a manner which creates a
wake within 100 yards of residential shorelines. In Alternative 4, NOAA
considered modifying this regulation so that it applies to 100 yards of
all shorelines (not just residential) and simplifying the speed
restriction by prohibiting ``creating an extensive wake.'' NOAA
acknowledges the value of expanding slow speed regulations for the
reasons identified by the commenters, as well as the value that
additional shoreline protections could provide in light of potential
impacts from climate change and sea level rise. However, in the final
rule, NOAA retains the existing regulatory language due to the number
of exceptions that may be required for channels and passes and the
potential loss of access to deeper areas nearshore. In the preferred
final alternative, NOAA carefully considered all of the proposed
existing, modified, and new WMAs to ensure that the WMAs will provide
additional protections for nearshore habitats and species in the areas
of greatest need without a slow speed restriction.
Marine Zones and Associated Regulations
Comment 26: NOAA received numerous suggestions for new or different
areas to be designated marine zones.
Response: NOAA carefully assessed all suggestions for new or
modified marine zones throughout the Restoration Blueprint process.
NOAA's assessment was based on reviewing the resources present in the
areas, the condition of those resources, risks to the resources, and
the nature and extent of the public's use of those areas. NOAA carried
forward new or modified marine zones for additional analysis in the
final rule if NOAA identified a potential need for protection that
outweighs potential negative effects on the public's use. The new
marine zones include: South Islamorada Coral Gardens, Cannon Patch,
Sister Creek, Hurricane Key, Don Quixote Key, Howell Key, South Picnic
Island, Pine Channel Island, Upper Sugarloaf Sound, Little Saddlebunch,
Coconut Key, Bill Finds Key, Veterans Key, Upper Matacumbe Key, Cheeca
Rocks Flat, Lower Matacumbe Key, Ocean Reef, and Plantation Key Colony.
Comment 27: NOAA received comments expressing concern that NOAA is
establishing new marine zones with access restrictions, particularly
impacting fishing access, but NOAA does not subsequently re-open areas
for fishing once the marine zone has either achieved its purpose or
resource conditions have shifted.
Response: NOAA's final rule eliminates five existing marine zones
including one Conservation Area (Looe Key SUA), two SPAs (Rock Key and
French Reef) and two WMAs (Little Crane Key and Tidal Flat South of
Marvin Key). These existing marine zones are eliminated due to resource
condition changes and an opportunity to evaluate different management
regimes. The elimination of these zones removes restrictions on fishing
in these areas.
In addition, NOAA proposed 13 new marine zones in the 2019 draft
EIS that are not included in the proposed or final rule. These proposed
marine zones are not being finalized for a range of reasons including
the need for additional scientific and user data and concerns about
fishing access and other recreational uses within these areas.
Management Areas
Comment 28: NOAA received comments supporting the proposal to
change the Existing Management Area zone type to Management Area.
Response: NOAA agrees and is changing the zone type from Existing
Management Areas to simply Management Areas. This change is common
sense given that all marine zones within FKNMS will now be considered
existing. Key Largo and Looe Key areas (which predated and were
encompassed in the designation of the FKNMS) are now be referred to as
Management Areas with all existing regulations maintained. Great White
Heron NWR and Key West NWR, which are referred to as Existing
Management Areas, will now simply be referred to as national wildlife
refuges. Existing sanctuary regulations in the Key West and Great White
Heron NWRs will be maintained with the exception of a minor change to a
particular area where personal watercraft will be allowed to operate in
Key West NWR where they are otherwise prohibited.
Comment 29: NOAA received comments opposing the proposed no anchor
regulations in the Key Largo Management Area and Looe Key Management
Area. Specific to the Key Largo Management Area, comments noted that a
no anchor regulation would impact the multi-use activities there,
including fishing, and the area includes sandy bottom habitats 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.
Response: NOAA agrees the area includes sandy bottom habitat and a
no anchor regulation is not needed, and the proposed and final rule do
not include a no anchor regulation in Key Largo or Looe Key Management
Areas. The final rule does, however, include a no anchor regulation in
all SPAs and Restoration Areas, which is described below in those
respective sections.
Comment 30: NOAA received comments opposing the proposal in the
2019 draft EIS to change the Looe Key Management Area boundary by
expanding the Looe Key SPA and Looe Key SUA boundaries because this
change would have reduced the extent of the areas where certain fishing
activities are currently allowed.
Response: NOAA's final rule maintains the greatest amount of area
in the Looe Key Management Area available for fishing. The areas of the
Looe Key Management Area, Looe Key
[[Page 6129]]
SPA, and Looe Key SUA were modified in different configurations in each
of the draft EIS alternatives for a few reasons, including to provide
additional protections for habitats and species in those areas and in
an attempt to simplify the zoning scheme in this area. As in the
proposed rule, the final rule does not change the current Looe Key SPA
boundary, and the Looe Key SUA is eliminated, thereby opening the area
up for fishing that has been closed since 1997. The final rule includes
two small Nursery Restoration Areas within the Looe Key Management Area
where fishing is prohibited.
Exception for Motorized Personal Watercraft
Comment 31: NOAA received comments related to the operation of
motorized PWC in the sanctuary that ranged from banning PWC throughout
the sanctuary to opposing any restrictions on where PWC could operate,
with the majority of comments supporting some level of continued use of
PWCs within the sanctuary. Specific to the proposal to provide a small
area open for PWC operation in the Key West NWR, comments included (1)
support, (2) recommendations to allow PWC use in areas parallel to the
entire length of the Key West ship channel to further public safety,
(3) additional licensing requirements for PWC tour operators, and (4)
the State of Florida should take the lead for regulating PWC under
Chapter 327.60 Florida Statutes.
Response: The current sanctuary regulatory prohibition on the
operation of PWC and airboats within the Great White Heron and Key West
NWRs prevents the disruption of roosting, foraging, and nesting birds
over a widespread area. At this time, NOAA has concluded that the risk
of disturbance to sanctuary resources such as birds does not warrant
banning PWCs throughout the sanctuary. NOAA finds that it is
appropriate to maintain and refine the existing regulation for PWC
operations in the areas where the resources of greatest sensitivity are
found including the NWRs and the network of islands. The final rule
provides a small area for PWC operation in the Key West NWR that is
adjacent to the shipping channel to allow for the separation of users
engaged in different and conflicting activities while continuing to
meet the resource protection goals over the broader area. The Lower
Keys Guides Association and the PWC Cooperative requested NOAA allow
PWCs in this small area in a presentation to the FKNMS Advisory Council
to address concerns about conflict between the operation of PWC and
fishing activities in this area including on the eastern side of the
shipping channel. NOAA and the Florida Keys NWR support this change to
avoid this conflicting use in this very congested shipping channel. All
vessel operators have a responsibility to observe the navigation rules
and practice good seamanship while transiting this area.
Regarding additional licensing requirements for PWC tour operators,
business and livery licensing for PWC tour operators falls under the
purview of state, county, and municipal entities, which provide
adequate training and screening. Finally, regarding comments asserting
that the State of Florida should take the lead for regulating PWC, the
State has not enacted regulations to protect sanctuary resources from
PWC. Comments also asserted that the current prohibition on PWC does
not comply with Florida Statute 327.60, but that provision applies to a
county or municipality, not the Federal government. Therefore, the
final rule establishes additional regulations on PWC in order to
prevent the disturbance of sanctuary wildlife.
Comment 32: NOAA received comments that additional regulation and
enforcement of existing regulations of the use of thrill craft (e.g.,
PWC, airboats, parasails) in the national wildlife refuges is needed.
Response: Existing NOAA regulations prohibit the operation of PWC
and airboats within the Great White Heron and Key West NWRs. The
Federal Aviation Administration regulates parasail activities and the
USCG regulates small passenger vessels that conduct parasail
operations. Therefore, at this time, additional regulation and
enforcement of existing regulations of the use of thrill craft (e.g.,
PWC, airboats, parasails) in the national wildlife refuges is not
included in the final rule.
Conservation Areas
Comment 33: NOAA received comments supportive of combining the
existing Ecological Reserve zone type and existing Special Use zone
type into one new Conservation Area zone type and maintaining the
existing regulations (e.g., continuous transit only).
Response: NOAA agrees and in an attempt to simplify zone
terminology created one Conservation Area zone type that includes the
zones with the most restrictive regulations.
Tortugas North Conservation Area Access Permits
Comment 34: NOAA received comments that were supportive of the
proposed administrative changes to these permits.
Response: NOAA thanks the commenters for their comments.
Comment 35: NOAA received comments both supporting and opposing
establishing three large, contiguous Conservation Areas in each region
of the sanctuary (Carysfort Reef, Long Key Tennessee Reef, and Tortugas
Corridor). Comments in support were numerous and generally noted the
value of providing additional ecosystem-level management and
protection. Opposing comments were also numerous and provided specific
impacts related to loss of access and opportunity for recreational use
in all the proposed areas, particularly related to fishing access.
Response: NOAA considered including large contiguous marine zones
in the draft EIS Alternatives 2, 3, and 4 with more area and
restrictive regulations in each subsequent alternative to better meet a
Sanctuary Advisory Council goal for this review: Protect large,
contiguous, diverse, and interconnected habitats that provide natural
spawning, nursery, and permanent residence areas for the replenishment
and genetic protection of marine life, and protect and preserve all
habitats and species. While NOAA believes there is great value in a
system of marine zones that includes large contiguous marine zones in
each region of the Florida Keys, public sentiment from local Florida
Keys residents, location-specific impacts to users (e.g., in some cases
a large portion of recreational access would be lost for specific
communities), and in some cases (Tortugas Region) additional data is
needed. NOAA is committed to working with the community and user
groups, agency partners, and researchers to evaluate further refinement
of the existing marine zones and to advance a network of marine
reserves in the future.
Comment 36: NOAA received comments both supporting and opposing
expanding existing marine zones to include deep reef habitat (Tennessee
Reef and Western Sambo). Supporting comments noted that 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 protection. Opposing comments expressed general
opposition to limiting any access for fishing activity. Some commenters
specifically requested that in the deep reef expansion areas, hook and
line trolling or drift fishing be
[[Page 6130]]
allowed, noting their desire to allow as much user access as possible
while still protecting coral reef habitat from physical damage.
Response: The final rule includes the expansion of these two
existing zones to include deep reef habitat. Expanding these zones will
support ecological resilience in this area and potentially serve as
seed stock for shallow coral reefs. Conservation areas are designed to
protect interconnected habitat types to facilitate research and protect
the full range of habitats and species life cycle needs. Due to the
overarching purpose and intent of this zone, NOAA determined that
allowing an exception for fishing in these expansion areas would not be
compatible with Conservation Areas as the most protective marine zones.
The expansion area is 0.97 square miles for Western Sambo and 0.53
square miles for Tennessee Reef. Additionally, NOAA determined that
consistent regulations across all Conservation Areas and within
specific zones would better facilitate public understanding of what is
allowed versus prohibited (e.g., no take) and therefore compliance with
zone-specific regulations.
Comment 36: NOAA received comments both supporting and opposing
expanding Tortugas South westward to include additional habitat and an
area shown to support multi-fish aggregation activity. Comments also
requested that, if NOAA extends this zone to the west, that NOAA also
consider removing 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. Opposing comments expressed general opposition
to limiting any access for fishing activity. Specific concerns were
raised about the loss of access for the commercial shrimp fishery.
Response: NOAA's final rule includes expansion of Tortugas South to
provide additional protection for habitats shown to support multi-
species fish spawning aggregation activity. NOAA evaluated recently
collected and compiled mapping coverage data and remotely operated
vehicle (ROV) imagery showing 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. NOAA
determined that maintaining protection in the southern portion of
Tortugas South is warranted.
Comment 37: NOAA received comments both supporting and opposing the
proposal to establish two new Conservation Areas (Channel Key Banks and
Red Bay Bank) to protect shallow mixed hardbottom habitat that is not
currently well represented in sanctuary marine zones. Comments
generally supported additional protections for these areas due to the
impacts from vessel prop scarring; however, most commenters did not
support applying Conservation Area regulations (e.g., transit only) due
to the level of reported fishing use in the area (e.g., lobster). In
addition, NOAA received comments requesting that Channel Key within the
Channel Key Banks proposed marine zone have no-entry regulations
applied given the presence of a high number of nesting and roosting
birds.
Response: Alternatives in the d
[…truncated; see source link]Indexed from Federal Register on January 17, 2025.
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