Gray's Reef National Marine Sanctuary Regulations, 60055-60064 [E6-16841]

Download as PDF 60055 Rules and Regulations Federal Register Vol. 71, No. 197 Thursday, October 12, 2006 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 031001243–6227–02] RIN 0648–AQ41 Gray’s Reef National Marine Sanctuary Regulations National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Final rule; notice of public availability of final management plan/ final environmental impact statement and record of decision. rwilkins on PROD1PC63 with RULES AGENCY: SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is issuing a final revised management plan and revised regulations for the Gray’s Reef National Marine Sanctuary (GRNMS or sanctuary). The revised regulations prohibit anchoring in the sanctuary, restrict all fishing except that conducted by rod and reel, handline, or spearfishing gear without powerheads, and requires all other forms of fishing gear to be stowed and not available for immediate use when a vessel with such gear is in the sanctuary. DATES: Effective Date: Pursuant to section 304(b) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised 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 October 12, 2006. Announcement of the effective date of the final regulations will be published in the Federal Register. ADDRESSES: Copies of the final management plan/final environmental impact statement and the record of VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 decision are available upon request to the Gray’s Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, Georgia 31411; 912/598– 2381. FOR FURTHER INFORMATION CONTACT: Greg McFall, Acting Sanctuary Superintendent, Gray’s Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, Georgia 31411; 912/ 598–2345. SUPPLEMENTARY INFORMATION: Introduction Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434(e)) the National Marine Sanctuary Program (NMSP) issues a revised management plan for GRNMS. The plan includes several revisions to existing regulations and several new regulations for the sanctuary. The new regulations restrict fishing at GRNMS to use of rod and reel, handline, and spearfishing gear without powerheads, by prohibiting the injuring, catching, harvesting, or collecting of any marine organism or part thereof in the sanctuary except by these gear types. All other forms of fishing gear must be stowed when a vessel is in the sanctuary. The regulations also prohibit anchoring vessels in the sanctuary. These measures will afford better protection to the nationally significant marine resources and habitats at GRNMS. In the Draft Management Plan/Draft Environmental Impact Statement (68 FR 62033, October 31, 2003), Alternative ‘‘a’’ was identified as the preferred alternative for fishing, which would have prohibited spearfishing as well as all other types of fishing except with rod and reel and handline gear. However, NOAA has decided to adopt fishing alternative ‘‘c’’, which continues to allow use of spearfishing gear without powerheads. While it has been effectively demonstrated in other areas that selective removal of large individual fish by spearfishing can adversely affect the reproductive viability of a given population, the sanctuary has little data on the actual level of spearfishing at GRNMS. In order to assess socioeconomic factors of spearfishing activities at the sanctuary, a focused study will be initiated to determine the level of spearfishing and other fishing activities. The sanctuary will also use the ongoing, long-term PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 biological data collected through the Marine Resources Monitoring, Assessment, and Prediction Program (MARMAP) and diver census methods to evaluate fish populations at GRNMS. NOAA therefore defers taking action on spearfishing as was proposed in the DMP/DEIS for a period of two years while additional information is collected on this activity in GRNMS. The issue will be reviewed again with the benefit of additional socioeconomic and biological analyses. NOAA will then determine what action to take, if any, given the additional data. NOAA has also determined that establishing hook limits on rod and reel and handline gear, as described in the proposed rule and the DMP/DEIS, would complicate compliance and law enforcement. Law enforcement officials noted that the hook limitations would be extremely difficult to enforce. The preferred alternative, therefore, does not impose hook limits in the regulations. Existing regulations are revised to address placing or abandoning structures on the submerged lands; using underwater explosives or devices generating electrical current; and moving or damaging historical resources. The permit regulations for the sanctuary are revised and clarified. Prior to permit issuance, the Director of the NMSP is required to consider and make certain findings regarding, among other things, the duration of the activity and its effects; the cumulative effects; and whether it is necessary to conduct the proposed activity in the sanctuary. Permit holders are required to display a copy of the permit on board any vessel or aircraft used in the permitted activity. The final management plan details the goals and objectives and management responsibilities for the Sanctuary, as well as a series of action plans that outline marine resource protection, administration, research and monitoring, exploration, outreach and education, and performance evaluation activities that are planned for the next five years. The activities are designed to address specific issues facing the sanctuary and in doing so, help achieve the management objectives of the GRNMS and the larger mandates of the NMSP. This document provides the final regulations and the revised Designation Document for the sanctuary; and announces the availability of the final E:\FR\FM\12OCR1.SGM 12OCR1 60056 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations rwilkins on PROD1PC63 with RULES management plan and the final environmental impact statement (FMP/ FEIS). Background Gray’s Reef National Marine Sanctuary, which was designated on January 16, 1981 (46 FR 7942), consists of approximately 16.68 square nautical miles of ocean waters and hard bottom located 17.5 nautical miles off Sapelo Island, Georgia. It is one of the largest nearshore rocky reefs off the southeastern United States and is in a transition zone between temperate and tropical waters. Some reef fish populations and plant communities change seasonally, while others are year-round residents. Migratory fish move through the sanctuary, using the reef for food and shelter. Loggerhead sea turtles, a threatened species, use GRNMS for foraging and resting. The reef is also close to the only known calving ground for the highly endangered Northern right whale. The hard bottom habitat at the sanctuary is composed of marine sediments (mud, sand, and shells) that were deposited between 2–3,000,000 years ago. These marine sediments were consolidated into rock during subsequent glacial periods by numerous changes in sea level that repeatedly exposed and then submerged the areas of GRNMS as the coastline advanced and retreated across the continental shelf. Recent bottom mapping indicates that the area is a single rock unit. It is made of calcareous sandstone that formed as a result of the compacting marine sediments and aerial exposure. The irregularities of the bathymetry can be attributed to the easily erodable sandstone that has dissolved and pitted, creating the appearance of isolated ledges and patches of hard bottom. The exposed rock offers moderate relief (0.5 to 10 feet in height) with sandy, flat-bottomed troughs between. The series of rock ledges and sand expanses has produced a complex habitat of caves, burrows, troughs, and overhangs that provide a solid base on which temperate and tropical marine flora and fauna attach and grow. This rocky platform with its rich carpet of remarkable attached organisms is known locally as a ‘‘live bottom’’ habitat. The sanctuary is a small but very important part of the broad continental shelf off the southeastern coast sometimes known as the South Atlantic Bight (SAB). The SAB extends from Cape Hatteras, North Carolina to Cape Canaveral, Florida. The outer reaches are dominated by the Gulf Stream VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 flowing northeastward. The inner area is defined by the curve of the coastline between the two capes and is dominated by tidal currents, river runoff, local winds, seasonal storms, hurricanes, and atmospheric changes. While GRNMS lies in the inner-shelf zone of the SAB— which causes great seasonal variations in temperature, salinity, and water clarity—it is also influenced by the Gulf Stream. The Gulf Stream draws deep nutrient-rich water to the region, and carries and supports many of the tropical fish species and other animals found in the sanctuary. Ocean currents transport fish and invertebrate eggs and larvae from other areas, linking the Sanctuary to reefs both north and south. GRNMS is the only protected natural reef area in the SAB. The sanctuary’s area constitutes a tiny percentage of the ocean space off the coast, yet the sanctuary’s value as a natural marine habitat is recognized nationally and internationally. The live bottom is a flourishing ecosystem that attracts mackerel, grouper, black sea bass, angelfish, and a variety of other fishes. GRNMS is one of the most popular recreational fishing and sport diving destinations along the Georgia coast. Sport fishing occurs year-round but intensifies in warmer months and with the migration of pelagic game fish. The sanctuary is located near an area of Georgia coastline that has experienced a dramatic increase in population. Aerial and on-water surveys indicate that visitation to GRNMS has increased significantly since 1981. With continued technological innovations such as global positioning systems (GPS), electronic fish finders, and improved watercraft design, it is likely that there will be increasing pressure on the resources of the sanctuary. With its new management plan and regulations, NOAA hopes to continue to protect GRNMS for the continued appreciation and use by the current and future generations. Because this action includes changes to the sanctuary’s Designation Document, the FMP/FEIS is developed pursuant to section 304(a)(2) of the NMSA (16 U.S.C. 1434(a)(2)) consistent with, and in fulfillment of, the requirements of the National Environmental Policy Act of 1969. Revised Designation Document NOAA specifies in the Designation Document that the submerged lands at GRNMS are legally part of the sanctuary and are included in the boundary description. At the time the sanctuary was designated in 1981, Title III of the Marine Protection, Research, and Sanctuaries Act (now also known as the PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 National Marine Sanctuaries Act) characterized national marine sanctuaries as consisting of coastal and ocean waters but did not expressly mention the submerged lands thereunder. NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98–498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, to be consistent with the NMSA, NOAA is updating the Designation Document and the boundary description, and is replacing the term ‘‘seabed’’ with ‘‘submerged lands.’’ Although certain fishing activities have been regulated at GRNMS since 1981, terms are being added to the Designation Document to authorize regulations for use of allowable fishing gear and to prohibit the possession of non-allowed gear. This allows sanctuary fishing regulations for GRNMS, recommended by the South Atlantic Fishery Management Council (SAFMC), to be issued for the sanctuary. The Designation Document is also updated to authorize regulating drilling into the submerged lands of the sanctuary; constructing, placing or abandoning material or matter; discharging or depositing material or matter outside the sanctuary that subsequently enters and injures a sanctuary resource or quality; using explosives or devices that produce electric current underwater; and moving, removing, injuring, or possessing historical resources. Language in Article 4 Section 2 providing authority for temporary emergency regulations has been revised to provide NOAA greater discretion to act in emergency situations to protect sanctuary resources on a temporary basis, and is now more consistent with the NMSA’s primary objective of resource protection. Rather than show that ecosystem damage would be immediate, serious and irreversible before it could promulgate emergency regulations, NOAA must now show an actual or imminent risk of destruction, loss of, or injury to a sanctuary resource or quality. In addition, while emergency regulations must still be issued on a temporary basis, the 120-day limit has been removed. Article 6 of the Designation Document is also updated regarding the process to modify the Designation. The requirement that modifications to the Designation must be approved by the President is deleted and replaced with the requirement that modifications be approved by the Secretary of Commerce E:\FR\FM\12OCR1.SGM 12OCR1 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations or his or her designee. This is consistent with amendments to the NMSA that were enacted after the Sanctuary was designated in 1981 and which removed Presidential approval as a requirement for designation. Revised Designation Document for the Gray’s Reef National Marine Sanctuary Preamble Under the Authority of Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, (the Act), the waters and the submerged lands thereunder at Gray’s Reef in the South Atlantic Bight off the coast of Georgia are hereby designated a National Marine Sanctuary for the purposes of: (1) Protecting the quality of this unique and fragile ecological community; (2) promoting scientific understanding of this live bottom ecosystem; and (3) enhancing public awareness and wise use of this significant regional resource. Article 1. Designation and Effect rwilkins on PROD1PC63 with RULES The Gray’s Reef National Marine Sanctuary was designated on January 16, 1981 (46 FR 7942). The Act authorizes the Secretary of Commerce to issue such regulations as are necessary to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, cultural, archaeological, scientific, educational or aesthetic resources and qualities of a national marine sanctuary. Section 1 of Article 4 of this Designation Document lists activities of the type that are presently being regulated or may need to be regulated in the future, in order to protect sanctuary resources and qualities. Listing in Section 1 does not mean a type of activity is currently regulated or would be regulated in the future. If a type of activity is not listed, however, it may not be regulated except on an emergency basis, unless section 1 is amended to include the type of activity following the same procedures by which the original designation was made. Nothing in this Designation Document is intended to restrict activities that do not cause an adverse effect on the resources or qualities of the sanctuary or on sanctuary property or that do not pose a threat of harm to users of the sanctuary. Article 2. Description of the Area The sanctuary consists of an area of ocean waters and the submerged lands thereunder located 17.5 nautical miles due east of Sapelo Island, Georgia. The VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 exact coordinates are defined by regulation (15 CFR 922.90). Article 3. Characteristics of the Area The sanctuary consists of submerged calcareous sandstone rock reefs with contiguous shallow-buried hard layer and soft sedimentary regime which supports rich and diverse marine plants, invertebrates, finfish, turtles, and occasional marine mammals in an otherwise sparsely populated expanse of ocean seabed. The area attracts multiple human uses, including recreational fishing and diving, scientific research, and educational activities. Article 4. Scope of Regulation Section 1. Activities Subject to Regulation The following activities are subject to regulation under the NMSA. Such regulation may 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. Because an activity is listed here does not mean that such activity is being or would be regulated. If an activity is listed, however, the activity can be regulated, after compliance with all applicable regulatory 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)). 1. Dredging, drilling into, or otherwise altering the submerged lands of the sanctuary; 2. Within the boundary of the sanctuary, discharging or depositing any material or other matter or constructing, placing, or abandoning any structure, material or other matter; or discharging or depositing any material or other matter outside the boundary of the sanctuary that subsequently enters the sanctuary and injures a sanctuary resource or quality; 3. Vessel operations, including anchoring; 4. Injuring, catching, harvesting, or collecting any marine organism or any part thereof, living or dead, or attempting any of these activities, by any means except by use of rod and reel, and handline gear; 5. Possessing fishing gear that is not allowed to be used in the sanctuary; 6. Using explosives, or devices that produce electric charges underwater; and 7. Moving, removing, injuring, or possessing a historical resource, or attempting to move, remove, injure, or possess a historical resource. PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 60057 Section 2. Emergency Regulation Where necessary to prevent or minimize the destruction of, loss of, or injury to a sanctuary resource or quality; or to minimize the imminent risk of such destruction, loss or injury, any activity, including any not listed in Section 1 of this Article, is subject to immediate temporary regulation, including prohibition. Article 5. Relation to Other Regulatory Programs Section 1. Defense Activities The regulation of activities listed in Article 4 shall not prohibit any Department of Defense activity that is essential for national defense or because of emergency. Such activities shall be consistent with the regulations to the maximum extent practical. Section 2. Other Programs All applicable regulatory programs will remain in effect, and all permits, licenses and other authorizations issued pursuant thereto shall be valid within the sanctuary unless authorizing any activity prohibited by a regulation implementing Article 4. Article 6. Alteration of This Designation The terms of designation, as defined under section 304(a) of the Act, may be modified only by the procedures outlined in paragraphs (a) and (b) of section 304 of the Act including public hearings, consultation with interested Federal, State, and local government agencies, and the South Atlantic Fishery Management Council, review by the appropriate congressional committees, and approval by the Secretary of Commerce or designee. [End of designation document] Summary of the Regulatory Amendment The regulatory changes clarify that ‘‘submerged lands’’ are within the boundary and are part of the sanctuary. This updates the boundary regulation to make it consistent with the NMSA and its definition of areas of the ‘‘marine environment’’ that may be designated as a sanctuary. The regulations also modify the sanctuary fishing regulations that have been in effect since 1981. The original regulations prohibited the use of specific fishing gear within the sanctuary, particularly wire fish traps and bottom trawls. The new regulation prohibits the injuring, catching, harvesting, or collecting of any marine organism by any means except by rod and reel, handline, or spearfishing gear without powerheads. This establishes a E:\FR\FM\12OCR1.SGM 12OCR1 rwilkins on PROD1PC63 with RULES 60058 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations clearer, more enforceable approach for the sanctuary fishing regulations than those currently in effect. Rod and reel gear is the predominant fishing gear now in use at GRNMS and continues to be allowed under the regulations. To facilitate enforcement of the gear restriction, a related regulation requires that all forms of fishing gear other than rod and reel, handline, or spearfishing gear without powerheads be stowed when vessels are in the sanctuary. The final regulations also prohibit anchoring vessels within the sanctuary. The unique bottom formations and habitats at GRNMS are vulnerable to the effects of anchoring. The documented increases of population in the region and of visitor use at GRNMS suggest that the risk from vessel anchoring will also increase and that prohibiting anchoring helps protect the live bottom habitat and the associated living marine resources that GRNMS was designated to protect. This regulation has little impact on current users of the sanctuary. Based on findings of a socioeconomic study (Ehler and Leeworthy) conducted in 2002, virtually none of the activities that occur at GRNMS require anchoring. Fishermen routinely allow their boats to drift during bottomfishing or are trolling for migratory species, and divers frequently use a ‘‘live-boat’’ for drift diving, due to the strong currents. There is overall support for the ban on anchoring among users surveyed during the socioeconomic study. In an emergency situation, boaters are allowed to anchor in the sanctuary and existing boundary marker buoys provide a place for a boat to moor in an emergency as well. Finally, the regulations for the issuance of permits adds a new permit category for assisting in managing the sanctuary. This authorizes the NMSP to issue a permit to the sanctuary manager and qualified individuals outside the NMSP for activities that otherwise would be prohibited, if the activities assist in sanctuary management and if they satisfy permit criteria. The permit criteria require the NMSP or the Superintendent to consider, and make certain findings regarding, factors including the duration of a proposed activity, its cumulative effects, and whether it is necessary to conduct the proposed activity in the sanctuary. A permit holder is required to display a copy of the permit in any vessel or aircraft being used in the permitted activity. The following regulatory changes are also included in this document: The term ‘‘seabed’’ is replaced with ‘‘submerged lands of the sanctuary’’ to be consistent with usage in the NMSA. VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 The prohibition against dredging, drilling into or altering submerged lands of the sanctuary specifically includes bottom formations to call attention to one of the critical elements of the ecosystem at GRNMS. The original prohibition against constructing any structure other than a navigation aid is revised to include constructing, placing, or abandoning any structure or material on the sanctuary submerged lands. This change, among other things, prohibits activities that have been identified in the Florida Keys National Marine Sanctuary, where materials are placed on the submerged lands to create lobster habitat. The prohibition against using poisons, electric charges, explosives, or similar methods to take any marine animal not otherwise prohibited from being taken is revised to prohibit the use underwater of explosives and devices producing electric current, while the reference to poisons is removed because it is already addressed by the prohibition against discharges. Use of these items is prohibited regardless of whether marine animals are being taken. The regulation prohibiting tampering with, damaging or removing historic or cultural resources is revised to prohibit moving, removing, damaging, or possessing any sanctuary historical resource, or attempting any of these. This change better protects these resources from being removed and facilitates enforcement by prohibiting their possession. Comments and Responses During the public comment period, 144 written comments were received. Seven (7) public hearings were also held with approximately 125 individuals in attendance. Comment during the public hearings was derived out of round table discussions and recorded on flip charts at each of the small group tables. Written and verbal comments were compiled and grouped by general topics into a 10-page summary, which was reviewed and considered by the GRNMS Advisory Council on January 28, 2004. Substantive comments received are summarized below, followed by NOAA’s response. Multiple but similar comments have been treated as one comment for purposes of response. Comments beyond the scope of the proposed action are neither summarized nor responded to. Comment 1: Many members of the public that have an interest in spearfishing commented that spearfishing at Gray’s Reef should not be prohibited as proposed in the draft plan. The sanctuary does not have specific data on the number of people who spearfish and the amount of fish PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 they take. If spearfishing is prohibited, then all bottom fishing at the sanctuary should be prohibited too. Bottom fishing takes far more fish and leaves far more debris on the reef than spearfishing does. Response: Spearfishing was considered for regulation during the original 1981 GRNMS designation. No regulations, however, were adopted at that time, except the prohibition of powerheads (explosives) for spearfishing. While the number of recreational divers spearfishing at GRNMS appears to be small, spearfishing typically targets the larger individual fish among the reefdependent species. Large fish are important to the reproductive health of species. Some fish populations are overfished or approaching overfished status. Some researchers have commented on the lack of large snappergrouper individuals at GRNMS (Bohnsack pers. comm.). Research has shown significantly reduced populations of larger predatory fishes where spearfishing occurs (SAFMC, 1990; Bohnsack, 1982; Chapman and Kramer, 1999; Jouvenel and Pollard, 2001). Larger predators are favored targets of spearfishermen. Reduction in the larger predatory fishes can have a ‘‘top-down’’ effect on fish populations by allowing other fish populations to increase, altering the composition of the overall natural communities including invertebrates. Although the use of powerheads is prohibited at GRNMS, powerhead cartridges found on site indicate that this gear is still in use. Law enforcement officials have expressed concerns that some commercial spearfishing operations may be harvesting large numbers of undersized fish from the region. NOAA recognizes that while it has been effectively demonstrated in other areas that selective removal of large individual fish by spearfishing can adversely affect the reproductive viability of a given population, the sanctuary has little data on the actual level of spearfishing at GRNMS. The sanctuary will, therefore, gather additional socioeconomic information on this activity in GRNMS and review the issue again in two years. The additional socioeconomic information coupled with ongoing biological studies of fish populations will enable management to better evaluate the impact of current and potentially future levels of spearfishing at GRNMS. NOAA therefore defers taking action on spearfishing as was proposed in the draft management plan for a period of two years while additional information E:\FR\FM\12OCR1.SGM 12OCR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations is collected on this activity in GRNMS. NOAA will then determine what action to take, if any, given the additional information. Comment 2: (U.S. Environmental Protection Agency, Region IV) The language used in the Preferred Alternative could be strengthened to expressly prohibit the use or possession of spearguns, nets, bandit gear, buoy gear, traps, pots, etc., in the GRNMS. The distinction between permitted activities and prohibited activities should be made unambiguously clear. Response: NOAA has determined that prohibiting specific gear types could add more complication and confusion for fishermen by lengthening the list of restricted fishing methods and gear, versus clearly identifying what gear is allowed in GRNMS. The allowable gear regulation approach was endorsed by the GRNMS Advisory Council and the SAFMC as the best approach. Comment 3: (South Atlantic Fishery Management Council) The SAFMC voted to support the DMP/DEIS and proposed fishing regulatory language contained in the November 2003 public hearing document. Prohibiting anchoring and the other proposed actions are consistent with the SAFMC’s Essential Fish Habitat (EFH) and EFHHabitat Area of Particular Concern (HAPC) designations and with the SAFMC’s habitat policies. The SAFMC did, however, request that GRNMS reconsider the proposed 3-hook limit. Response: NOAA has adopted Alternative ‘‘c’’ of the proposed allowable gear regulation, to permit only rod and reel, handline, and spearfishing gear without powerheads in the sanctuary. NOAA has determined that the 3-hook limit on rod and reel and handline gear, as defined in the draft proposed rule, complicates law enforcement and compliance. Hooks vary significantly in size and identification since hooks are made by different manufactures in different countries. Uses are also varied, making compliance difficult for users and interpretation of the regulations difficult for law enforcement. Therefore, NOAA defines the gear allowance without a limit on the number of hooks. The process of developing fishing regulations for GRNMS has complied with the NMSA, including Section 304(a)(5), and the Memorandum of Understanding executed by the SAFMC, NOAA Fisheries Service, and the NMSP. Comment 4: (Georgia Department of Natural Resources, Coastal Resources Division, Marine Fisheries Section) Prohibiting anchoring and the other proposed actions are consistent with the VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 SAFMC’s EFH and EFH–HAPC designations and with the Council’s habitat policies. The anchoring prohibition and similar marine resource action plan strategies to protect the live bottom habitat are appropriate and consistent not only with the SAFMC’s EFH definitions/policies, but also with the goals and objectives of the NMSP. Response: See response to comment 3 above. The prohibition of anchoring is consistent with the SAFMC’s EFH and EFH–HAPC designations of GRNMS, as well as the goals and objectives of the NMSP. Comment 5: (U.S. Navy, Commander Navy Region Southeast) The Navy requested that the document expand the statements regarding military activities to specifically indicate that the sanctuary designation did not limit or restrict ongoing or future military use for training and operations. Response: Existing regulations governing national defense exemptions for current activities have not changed. Current Department of Defense activities are essential for national defense and are not subject to the regulatory prohibitions. The exemption of additional activities having significant impacts will be determined in consultation between the Director and the Department of Defense. Comment 6: (U.S. Navy, Commander Navy Region Southeast) The Navy recommended modification of the next to last sentence in the section on Military Activities on page 53 of the FEIS to read ‘‘Military aircraft do not routinely fly below 1500 feet or within a one nautical mile radius of the Sanctuary.’’ Response: NOAA acknowledges the Navy’s comment and has determined that the language as it exists in the FMP/ FEIS (already published), coupled with the regulations governing national defense activities, will adequately address this concern. Comment 7: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Section 922.92(5)(ii) of the regulations states that ‘‘There shall be a rebuttable presumption that any marine organism or part thereof found in the possession of a person within the sanctuary has been collected or removed from the Sanctuary.’’ A ‘‘rebuttable presumption’’ places the burden of proving that any organism in possession of an alleged violator was actually caught in the sanctuary on the enforcement entity, something that is very difficult to do unless directly observed. Section 5 (ii) as written would be extremely difficult to enforce. The Coast Guard recommended changing this text to simply prohibit possession PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 60059 of any marine organism or part thereof when within the sanctuary and when in possession of any fishing gear or means except rod and reel and handline gear that is available for use. The prohibition text should also ensure that it is illegal to possess any species caught with a gear type prohibited in the sanctuary. Response: The U.S. Coast Guard is a key enforcement partner to NOAA in the protection of sanctuary resources and NOAA appreciates its comment to improve the regulation. The rebuttable presumption does not place any additional burden on the enforcement entity; rather it operates such that any person located inside the sanctuary and found in possession of a marine organism is presumed to have taken that organism from the sanctuary. Thus, no actual observation of a violation is required—it is presumed—and the burden is shifted to the alleged violator to provide some evidence proving the organism was in fact not taken from the sanctuary. Although the presumption can be overcome by the introduction of contrary evidence, NOAA regards the rebuttable presumption as generally useful to enforcement of the sanctuary regulations and, therefore, believes it should be retained in the final regulations. Language in the text of the allowable gear regulation addresses possession of species caught in the sanctuary with prohibited gear types. Comment 8: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Section 922.92(6) of the DMP/ DEIS prohibits gear other than rod and reel and handline gear unless ‘‘stowed and not available for use.’’ This term is later defined as ‘‘stowed and not available for immediate use.’’ This disparity between prohibition and definition will cause confusion and may make this prohibition unenforceable. The definition and prohibition language should be aligned. Response: NOAA has corrected this typographical error in the FMP/FEIS by adding the word ‘‘immediate’’ in Section (6). Comment 9: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Rod and reel gear is defined in the definitions section, and the definition includes a limit on the number of hooks per line to capture baitfish and a limit on the size and type of hooks that can be used. This limitation should be removed, as it is extremely difficult to enforce. However, if this limit is retained these prohibitions should be moved from the definition section and be included under the new regulation section. This will help simplify the regulations, a key component of an enforceable regulation. E:\FR\FM\12OCR1.SGM 12OCR1 rwilkins on PROD1PC63 with RULES 60060 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations Response: NOAA has changed the regulation. See response to comment 3 above. Comment 10: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Prior to implementing a final rule, GRNMS should coordinate with NOAA General Counsel for Enforcement and Litigation to update GRNMS’ penalty schedule. The current penalty schedule was last revised in January 1997, and a proposed revision drafted in 2002 has not gone into effect. Unfortunately, the proposed revision is not adequate and does not address the proposed regulation changes in the DMP/DEIS. In addition, the majority of potential violations within GRNMS are likely to be small and perpetrated by recreational fishermen. Any penalty schedule update should reflect this. Response: NOAA has developed a national penalty schedule for the NMSP. Penalty schedules, however, are not established by rulemaking; they are for internal guidance and have no binding effect on the amount of a penalty that may be assessed for a violation. Rather they are intended for consistency across a national system. The NMSA remains the authority for, and the source of, penalties that NOAA may assess. Comment 11: The South Carolina Aquarium fully supports the increased protection proposed in the DMP/DEIS. Limits placed on spearfishing and anchoring would help to minimize damage due to human activities on Gray’s Reef. Response: NOAA has chosen the prohibition on anchoring (alternative ‘‘a’’). Regarding spearfishing, see response to comment 1 above. Comment 12: The Coastal Group, Georgia Chapter, Sierra Club strongly supports the two major regulatory changes in the management plan: the prohibition of dropping anchor except in an emergency and the elimination of spearfishing from the sanctuary. Response: NOAA has chosen the prohibition on anchoring (alternative ‘‘a’’). Regarding spearfishing, see response to comment 1 above. Comment 13: The Center for a Sustainable Coast believes that to truly serve as a sanctuary for marine life, GRNMS must ultimately be managed as a reserve to protect all species within its bounds against fishing and any other activities that disturb natural resources. To strengthen the capacity of efforts to improve water resource management, the GRNMS Management Plan should include analysis of the relationship of watersheds, water use, and water quality with the inter-tidal and marine areas. GRNMS must work to enhance and support greater awareness about VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 these issues, and work to build a lasting intergovernmental management structure capable of resolving the complex water issues that may impact Gray’s Reef and other marine resources. Response: During the scoping process for the revised management plan, many comments received asked that GRNMS consider marine reserve status (no-take) for the sanctuary. As noted in the FMP/ FEIS (pages 29 and 69–70), GRNMS determined that marine reserves are best addressed through our partnership with SAFMC as they continue deliberations on a network of reserves in the region. NOAA agrees that water quality is critical to the continued sustainability of the protected resources at GRNMS. Therefore an extensive water quality monitoring program has been implemented at GRNMS. Education programs, such as the Rivers to Reef module, are also bringing awareness to students and teachers. Comment 14: Many commenters expressed general support for increased protection of marine resources in the sanctuary and/or that NOAA adopt the preferred fishing alternative ‘‘a.’’ Response: See responses to comments 11 through 13 above. Comment 15: One member of the public commented that GRNMS should be managed as a ‘‘sanctuary;’’ and/or allow only dive activities; and/or allow only transit through the sanctuary with fishing gear stowed. Response: GRNMS is managed as a ‘‘national marine sanctuary,’’ which is defined in the NMSA as ‘‘an area of the marine environment of special national significance due to its resource or human-use values, which is designated as such to ensure its conservation and management.’’ As such, all uses are evaluated as to whether they are compatible with the primary objective of resource protection. Ongoing research and monitoring are conducted to support that objective. Comment 16: One commenter suggested that GRNMS should consider designating 25–50 percent of the sanctuary as a reserve for non-extractive uses. Protect Gray’s Reef NMS as representative hard-ground live bottom habitat in the South Atlantic Bight. Response: See response to comment 13 above. Comment 17: Several members of the public commented that non-extractive diving as a compatible use at GRNMS is growing; more divers prefer recreational diving for wildlife observation and photography. Conflicts are arising due to spearfishing at GRNMS because the fish, particularly larger fish, are either killed or scared away. Most PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 spearfishermen do not use GRNMS, but prefer other offshore sites. Response: See response to comment 1 above. Comment 18: Several members of the public asked if the proposed regulations restrict use of commonly used equipment such as downriggers and marker buoys? Response: The FMP/FEIS does not propose restrictions on commonly used equipment such as downriggers and marker buoys. The document specifically states on page 65: ‘‘Items that are deployed and subsequently retrieved the same day, such as fishing line and small marker buoys, are not considered ‘deposited’ in the Sanctuary.’’ Comment 19: A member of the public commented that GRNMS should reduce all commercial and recreational fish harvest to ‘‘sustainable levels.’’ GRNMS should ban all commercial fishing and charter/head boats in order to achieve sustainable levels of harvest. Response: NOAA is responsible for the conservation and management of fish stocks within the Federal 200-mile limit exclusive economic zone of the Atlantic Ocean off the southeastern U.S. under the Magnuson-Stevens Fishery Conservation and Management Act. Under this mandate, sustainable levels of fish harvest are an objective for a wide range of fish species. Achieving sustainable fishing levels can be done better on a regional level well beyond the boundaries of GRNMS. However, the allowable fishing gear approach to GRNMS regulation does restrict certain types of fishing gear that have a negative impact on sustainable levels of many fish species. Comment 20: One member of the public commented that GRNMS should regulate fishing gear by prohibiting specific gear instead of allowing specific gear. Response: NOAA believes that fishing alternative ‘‘b’’ would not be in the best interest of the sanctuary or its users. The allowable gear approach is simple, clear, and easily understood by the fishing community and by the public generally. It means that gear identified as allowable is the only gear that may be used in the sanctuary; use of all other gear types is prohibited. This is a simpler, clearer approach than attempting to list all possible gear types that are prohibited. It also simplifies and facilitates monitoring and law enforcement, and eliminates the costs to users who develop and utilize fishing gear in the sanctuary that may have to be prohibited in the future due to damage to the resources. E:\FR\FM\12OCR1.SGM 12OCR1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations Comment 21: One commenter was concerned that all diving activities will be eliminated at GRNMS. Response: This plan does not propose eliminating diving at GRNMS. Although impacts on bottom resources from diving activities are a concern, GRNMS will establish a comprehensive outreach and education program to address these concerns. The revised regulations for GRNMS are very clear that only specific fishing gear is allowed and any other form of collection, harvest, or injury to marine organisms is prohibited. Comment 22: The National Marine Manufacturers Association has strong reservations about NMSP’s proposal to prohibit anchoring in the sanctuary because there is no evidence that at any point NMSP considered the effect this proposal would have on boater safety. NMSP should formally consult with the U.S. Coast Guard (USCG) Office of Boating Safety for recommendations on how to make NMSP’s management policies consistent with proper boater safety procedures. NMMA also urges NMSP to adopt anchoring alternative ‘‘b’’ and establish and maintain a mooring buoy system in the appropriate places to enhance boater safety. Response: NOAA involved the USCG, area boaters, fishermen, and divers on many occasions in the development of the FMP/FEIS through GRNMS Advisory Council meetings, scoping, and workshops. A representative of the 7th USCG District sits on the Advisory Council, along with a recreational angler and a recreational dive operator. The USCG’s comment in its formal consultation letter response on the DMP/DEIS stated that: ‘‘There are no objectionable vessel safety concerns contained within this proposal.’’ Regarding anchoring alternative ‘‘b,’’ NOAA has concluded that a mooring buoy system is not needed, in part because the proposed regulation allows for use of anchors in emergency situations. The GRNMS Advisory Council, and other users surveyed in the socioeconomic studies cited in the FMP/FEIS, also consistently advised that a mooring buoy system was not needed in the sanctuary because boaters (fishermen and divers) prefer to drift or troll. The potential negative impacts from concentrated use around mooring buoys is also a concern for the sanctuary. GRNMS will continue to monitor use in the sanctuary and may reconsider mooring buoys in the next management plan review if the sanctuary finds that they are needed. Comment 23: A couple members of the public commented that NOAA should install mooring buoys in the sanctuary to enhance fishing, diving and VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 research activities if anchoring is prohibited; consider 25–30 moorings and moveable moorings to minimize the negative impacts of concentrated activities. Response: See response to comment 22 above. Comment 24: Several commenters expressed that NOAA should choose the preferred alternative ‘‘a’’ for anchoring. Response: NOAA has chosen the preferred alternative ‘‘a’’ for anchoring. Comment 25: One commenter stated that anchoring alternative ‘‘c’’ is not a good option because it assumes that sandy areas in GRNMS have no biological value. It makes little sense to anchor in the sandy areas away from fishing and diving locations. Response: NOAA acknowledges the concern about the biological importance of sandy areas in the sanctuary. Page 38 of the FMP/FEIS points out the high infaunal diversity in sandy bottom areas of the sanctuary. NOAA has chosen the preferred alternative ‘‘a’’ for anchoring. Comment 26: One member of the public commented that the prohibition on anchoring is inappropriate because there is no concrete or photographic evidence of anchor damage. Response: Numerous photos have documented damage from anchoring at GRNMS. Page 61 of the FMP/FEIS shows anchoring gear photographed on a live bottom area at GRNMS. Numerous studies in other locations have also definitively documented the significant damage to delicate invertebrates, corals and hard bottoms from anchoring practices. The prohibition of anchoring is not a limiting factor for visitors to be able to conduct recreational activities in GRNMS. Anchoring continues to be allowed in emergency circumstances. Comment 27: One member of the public commented that there is no purpose to establishing a working group to explore the concept of a marine research area because there is no such thing as a ‘‘natural process along a populated coast,’’ and a marine research area would have a negative impact on the fishing community. Designating a research area would open the door to closing the entire sanctuary to fishing; other live bottom areas in the region should be chosen for a research reserve instead of GRNMS. Response: After consideration of the public comments on the DMP/DEIS, the Advisory Council recommended that the sanctuary establish a working group to advise the Advisory Council on the development of the concept of a marine research area. The Advisory Council, with the concurrence of the sanctuary, established the Marine Research Area Concept Working Group (RAWG), PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 60061 which met from May 2004 until March 2005. The Working Group was comprised of representatives from education, fishing, diving, research and conservation, law enforcement, and other regional, private, State, and Federal organizations. The recommendations from the Working Group to the Advisory Council can be found in Section III under the Research and Monitoring Action Plan (RM–2). The Advisory Council deliberated on the Working Group’s recommendations at its June 2005 meeting and made its recommendations to the sanctuary (also found at RM–2). NOAA has accepted the recommendations of the Advisory Council and made a decision to more formally consider the concept of a research area in the sanctuary through a public process guided by requirements of NEPA and the NMSA. Comment 28: Members of the public commented that GRNMS should consider an area only for research in the sanctuary; the reserve could serve as a ‘‘constant’’ for monitoring marine resources, and help improve information specific to Gray’s Reef. Response: See response to Comment 27 above. The research area concept should be considered and an investigation of its benefits will move forward. Comment 29: Members of the public commented that GRNMS should consider a ‘‘rotational’’ marine research area (either geographically or temporally). Response: See response to comment 27 above. Comment 30: One member of the public noted that if the document is to follow the provisions of NEPA, it must have a List of Preparers contained within. Response: A full list of preparers is included in the FMP/FEIS in an appendix entitled List of Preparers. Comment 31: A member of the public urged GRNMS to formally incorporate a study of birds which occupy the reef as part of Goal 2 as research into the ecology of the reef. Response: Surveys of birds in the sanctuary have become a regular part of the monitoring program. Miscellaneous Rulemaking Requirements National Marine Sanctuaries Act Section 301(b) of the National Marine Sanctuaries Act (16 U.S.C. 1434) provides authority for comprehensive and coordinated conservation and management of national marine sanctuaries in coordination with other E:\FR\FM\12OCR1.SGM 12OCR1 60062 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations resource management authorities. Section 304(a)(4) of the National Marine Sanctuaries Act (16 U.S.C. 1434(a)(4)) requires that the procedures specified in section 304 for designating a national marine sanctuary be followed for modifying any term of designation. Because this action revises the sanctuary designation document (i.e., the sanctuary boundary is revised to specifically include the submerged land), NOAA must comply with the requirements of section 304. All necessary requirements have been completed. National Environmental Policy Act When changing a term of designation of a national marine sanctuary, section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a draft environmental impact statement (DEIS), as provided by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and that the DEIS be made available to the public. The DEIS, along with a draft management plan, was released on October 31, 2003 (68 FR 62033). The public comment period ended on December 31, 2003. A final environmental impact statement and final management plan were published and made available to the public on July 28, 2006. rwilkins on PROD1PC63 with RULES Executive Order 12866: Regulatory Impact The final rule has been determined to be not significant within the meaning of section 3(f) of Executive Order 12866 because it will not result in: (1) An annual effect on the economy of $100 million or more or adversely affect in a material way the economy, productivity, competition, jobs, the environment, or public health and safety; (2) A serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) A material alteration of the budgetary impact of entitlements, grants, user fees, or loan programs or rights and obligations of such recipients; or (4) Novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. Executive Order 13132: Federalism Assessment NOAA has concluded that this regulatory action does not fall within the definition of ‘‘policies that have federalism implications’’ within the meaning of Executive Order 13132. The Sanctuary does not include State waters. Furthermore, the proposed changes will not preempt State law, but will simply complement existing State authorities. In keeping with the intent of the VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 Executive Order, however, the NMSP consulted with the Georgia Department of Natural Resources during development of the FMP/FEIS and these regulations. Regulatory Flexibility Act The Assistant General Counsel for Legislation and Regulations of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the FMP/FEIS for GRNMS does not have a significant economic impact on a substantial number of small entities. We received no comment on this certification or the economic impact of the rule. While minor modifications have been made to the rule proposed, the basis for the certification has not changed. Thus, no regulatory flexibility analysis was required and none has been prepared. The factual basis for this certification follows: This final rule is associated with a FMP/FEIS that was developed for the Gray’s Reef National Marine Sanctuary (GRNMS), located off Sapelo Island, Georgia. A FMP is a planning and management document that describes the objectives, policies, and activities for a sanctuary. The final rule includes: (1) A prohibition on anchoring within the Sanctuary (except in emergencies); (2) a revision of Sanctuary regulations to allow fishing only with rod and reel, handline gear, and spearfishing gear without powerheads; and (3) a gear stowage requirement to facilitate enforcement. Current socioeconomic studies and on-site surveys indicate that the majority of users in GRNMS are recreational fishermen who use personal boats and rod and reel gear. There are approximately two dozen charter fishing operations along the Georgia coast that occasionally target the Sanctuary. Commercial fishing activity is negligible, as most commercial fishing gear is prohibited by existing regulations. Furthermore, nearly all users conduct their activities in a manner that complies with the final rule. Paperwork Reduction Act This proposed rule involves an existing information collection requirement currently approved by OMB (OMB approval number 0648– 0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The proposed rule will not require any change to the currently approved OMB approval and would not result in any change in the public burden in applying PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 for and complying with NMSP permitting requirements. The public reporting burden for these permit application requirements is estimated to average 1.00 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to, David Bizot, National Permit Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West Highway, N/ORM–6, Silver Spring, MD 20910, by e-mail to David.Bizot@noaa.gov, by fax to (301) 713–0404; or by e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395–7285. The proposed revised permit regulations would require the Director of the NMSP to consider the proposed activity for which a permit application has been received. The proposed modifications to the permit procedures and criteria (15 CFR 922.113) would further refine current requirements and procedures of the general National Marine Sanctuary Program regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648–0141). The revised permit regulations would add language about: the qualifications, finances, and proposed methods of the applicant; the compatibility of the proposed method with the value of the Sanctuary and the primary objective of protection of Sanctuary resources and qualities; the necessity of the proposed activity; and the reasonably expected end value of the proposed activity. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number. List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Coastal zone, Education, Environmental protection, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Research. E:\FR\FM\12OCR1.SGM 12OCR1 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: October 4, 2006. John H. Dunnigan, Assistant Administrator for Ocean Services and Coastal Zone Management. Accordingly, for the reasons set forth above, 15 CFR part 922 is to be amended as follows: I § 922.92 Prohibited or otherwise regulated activities. PART 922—[AMENDED] 1. The authority citation for part 922 continues to read as follows: I Authority: 16 U.S.C. 1431 et seq. 2. The regulations for GRNMS (15 CFR part 922, subpart I) are revised to read as follows: I Subpart I—Grey’s Reef National Marine Sanctuary Sec. 922.90 Boundary. 922.91 Definitions. 922.92 Prohibited or otherwise regulated activities. 922.93 Permit procedures and criteria. Subpart I—Grey’s Reef National Marine Sanctuary § 922.90 Boundary. The Gray’s Reef National Marine Sanctuary (Sanctuary) consists of approximately 16.68 square nautical miles of ocean waters and the submerged lands thereunder, off the coast of Georgia. The Sanctuary boundary includes all waters and submerged lands within the geodetic lines connecting the following coordinates: Datum: NAD83 Geographic Coordinate System (1) N 31.362732 degrees W 80.921200 degrees (2) N 31.421064 degrees W 80.921201 degrees (3) N 31.421064 degrees W 80.828145 degrees (4) N 31.362732 degrees W 80.828145 degrees (5) N 31.362732 degrees W 80.921200 degrees rwilkins on PROD1PC63 with RULES § 922.91 Definitions. In addition to those definitions found at § 922.3, the following definitions apply to this subpart: Handline means fishing gear that is set and pulled by hand and consists of one vertical line to which may be attached leader lines with hooks. Rod and reel means a rod and reel unit that is not attached to a vessel, or, if attached, is readily removable, from which a line and attached hook(s) are deployed. The line is payed out from VerDate Aug<31>2005 16:14 Oct 11, 2006 and retrieved on the reel manually or electrically. Stowed and not available for immediate use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, partially disassembled, or stowed for transit. Jkt 211001 (a) Except as may be necessary for national defense (subject to the terms and conditions of Article 5, Section 2 of the Designation Document) or to respond to an emergency threatening life, property, or the environment, or except as may be permitted by the Director in accordance with § 922.48 and § 922.93, the following activities are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: (1) Dredging, drilling into, or otherwise altering in any way the submerged lands of the Sanctuary (including bottom formations). (2) Constructing any structure other than a navigation aid, or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands of the Sanctuary. (3) Discharging or depositing any material or other matter except: (i) Fish or fish parts, bait, or chumming materials; (ii) Effluent from marine sanitation devices; and (iii) Vessel cooling water. (4) Operating a watercraft other than in accordance with the Federal rules and regulations that would apply if there were no Sanctuary. (5)(i) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead, within the Sanctuary by any means except by use of rod and reel, handline, or spearfishing gear without powerheads. (ii) There shall be a rebuttable presumption that any marine organism or part thereof referenced in this paragraph found in the possession of a person within the Sanctuary has been collected from the Sanctuary. (6) Except for possessing fishing gear stowed and not available for immediate use, possessing or using within the Sanctuary any fishing gear or means except rod and reel, handline, or spearfishing gear without powerheads. (7) Using underwater any explosives, or devices that produce electric charges underwater. (8) Breaking, cutting, damaging, taking, or removing any bottom formation. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 60063 (9) Moving, removing, damaging, or possessing, or attempting to move, remove, damage, or possess, any Sanctuary historical resource. (10) Anchoring any vessel in the Sanctuary, except as provided in § 922.92 when responding to an emergency threatening life, property, or the environment. (b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this section. The exemption of additional activities having significant impacts shall be determined in consultation between the Director and the Department of Defense. § 922.93 Permit procedures and criteria. (a) A person may conduct an activity prohibited by § 922.92(a)(1) through (10) if conducted in accordance within the scope, purpose, manner, terms and conditions of a permit issued under this section and § 922.48. (b) Applications for such permits should be addressed to the Director, National Marine Sanctuary Program, ATTN: Manager, Gray’s Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411. (c) The Director, at his or her discretion may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.92(a)(1) through (10). The Director must also find that the activity will: (1) Further research related to the resources and qualities of the Sanctuary; (2) Further the educational, natural, or historical resource value of the Sanctuary; (3) Further salvage or recovery operations in connection with a recent air or marine casualty; or (4) Assist in managing the Sanctuary. (d) The Director shall not issue a permit unless the Director also finds that: (1) The applicant is professionally qualified to conduct and complete the proposed activity; (2) The applicant has adequate financial resources available to conduct and complete the proposed activity; (3) The duration of the proposed activity is no longer than necessary to achieve its stated purpose; (4) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity’s goals in relation to the activity’s impacts on Sanctuary resources and qualities; (5) The proposed activity will be conducted in a manner compatible with the primary objective of protection of E:\FR\FM\12OCR1.SGM 12OCR1 60064 Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / Rules and Regulations Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any indirect, secondary or cumulative effects of the activity, and the duration of such effects; (6) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary as a source of recreation, or as a source of educational or scientific information considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects; (7) It is necessary to conduct the proposed activity within the Sanctuary to achieve its purposes; (8) The reasonably expected end value of the activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse impacts on Sanctuary resources and qualities from the conduct of the activity; and (9) There are no other factors that make the issuance of a permit for the activity inappropriate. (e) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity. (f) The Director shall, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public. (g) The Director may, inter alia, make it a condition of any permit issued to require the submission of one or more reports of the status and progress of such activity. (h) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress or results of any activity authorized by the permit. [FR Doc. E6–16841 Filed 10–11–06; 8:45 am] rwilkins on PROD1PC63 with RULES BILLING CODE 3510–NK–P VerDate Aug<31>2005 16:14 Oct 11, 2006 Jkt 211001 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD05–06–078] RIN 1625–AA08 Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: SUMMARY: The Coast Guard is establishing special local regulations during the ‘‘Red Bull Flugtag Baltimore’’, a marine event to be held October 21, 2006 on the waters of the Patapsco River, Inner Harbor, Baltimore, MD. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Baltimore Inner Harbor during the event. This rule is effective from 10:30 a.m. to 5:30 p.m. on October 21, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of docket (CGD05–06– 078) and are available for inspection or copying at Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704– 5004, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Project Manager, Fifth Coast Guard District, Inspections and Investigations Branch, at (757) 398– 6204. DATES: SUPPLEMENTARY INFORMATION: Regulatory Information On August 16, 2006, we published a Notice of proposed rulemaking (NPRM) entitled Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD in the Federal Register (71 FR 47159). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the event participants, support craft and other PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 vessels transiting the event area. However, advance notifications will be made to affected waterway users via marine information broadcasts, area newspapers and local radio stations. Background and Purpose On October 21, 2006, Red Bull North America will sponsor ‘‘Red Bull Flugtag Baltimore’’ at the Inner Harbor in Baltimore, MD. The event will consist of 30 teams who attempt to fly a human powered craft from an 80-foot long flight deck that extends over the water immediately adjacent to the southwest corner of the promenade surrounding the Baltimore Inner Harbor. The regulated area originates at the southwest corner of the Inner Harbor adjacent to the Maryland Science Center and extends outward over the water within an approximately 150 yard arc. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels. Discussion of Comments and Changes The Coast Guard did not receive comments in response to the Notice of proposed rulemaking (NPRM) published in the Federal Register. Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of the Patapsco River, Inner Harbor, Baltimore, Maryland. Regulatory Evaluation This rule is not a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not ‘‘significant’’ under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Baltimore Inner Harbor during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, E:\FR\FM\12OCR1.SGM 12OCR1

Agencies

[Federal Register Volume 71, Number 197 (Thursday, October 12, 2006)]
[Rules and Regulations]
[Pages 60055-60064]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16841]



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Rules and Regulations
                                                Federal Register
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having general applicability and legal effect, most of which are keyed 
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Federal Register / Vol. 71, No. 197 / Thursday, October 12, 2006 / 
Rules and Regulations

[[Page 60055]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 031001243-6227-02]
RIN 0648-AQ41


Gray's Reef National Marine Sanctuary Regulations

AGENCY: National Marine Sanctuary Program (NMSP), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Final rule; notice of public availability of final management 
plan/final environmental impact statement and record of decision.

-----------------------------------------------------------------------

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
issuing a final revised management plan and revised regulations for the 
Gray's Reef National Marine Sanctuary (GRNMS or sanctuary). The revised 
regulations prohibit anchoring in the sanctuary, restrict all fishing 
except that conducted by rod and reel, handline, or spearfishing gear 
without powerheads, and requires all other forms of fishing gear to be 
stowed and not available for immediate use when a vessel with such gear 
is in the sanctuary.

DATES: Effective Date: Pursuant to section 304(b) of the National 
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised 
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 October 12, 2006. Announcement of the 
effective date of the final regulations will be published in the 
Federal Register.

ADDRESSES: Copies of the final management plan/final environmental 
impact statement and the record of decision are available upon request 
to the Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle, 
Savannah, Georgia 31411; 912/598-2381.

FOR FURTHER INFORMATION CONTACT: Greg McFall, Acting Sanctuary 
Superintendent, Gray's Reef National Marine Sanctuary, 10 Ocean Science 
Circle, Savannah, Georgia 31411; 912/598-2345.

SUPPLEMENTARY INFORMATION:

Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(16 U.S.C. 1434(e)) the National Marine Sanctuary Program (NMSP) issues 
a revised management plan for GRNMS. The plan includes several 
revisions to existing regulations and several new regulations for the 
sanctuary. The new regulations restrict fishing at GRNMS to use of rod 
and reel, handline, and spearfishing gear without powerheads, by 
prohibiting the injuring, catching, harvesting, or collecting of any 
marine organism or part thereof in the sanctuary except by these gear 
types. All other forms of fishing gear must be stowed when a vessel is 
in the sanctuary. The regulations also prohibit anchoring vessels in 
the sanctuary. These measures will afford better protection to the 
nationally significant marine resources and habitats at GRNMS.
    In the Draft Management Plan/Draft Environmental Impact Statement 
(68 FR 62033, October 31, 2003), Alternative ``a'' was identified as 
the preferred alternative for fishing, which would have prohibited 
spearfishing as well as all other types of fishing except with rod and 
reel and handline gear. However, NOAA has decided to adopt fishing 
alternative ``c'', which continues to allow use of spearfishing gear 
without powerheads. While it has been effectively demonstrated in other 
areas that selective removal of large individual fish by spearfishing 
can adversely affect the reproductive viability of a given population, 
the sanctuary has little data on the actual level of spearfishing at 
GRNMS. In order to assess socioeconomic factors of spearfishing 
activities at the sanctuary, a focused study will be initiated to 
determine the level of spearfishing and other fishing activities. The 
sanctuary will also use the ongoing, long-term biological data 
collected through the Marine Resources Monitoring, Assessment, and 
Prediction Program (MARMAP) and diver census methods to evaluate fish 
populations at GRNMS.
    NOAA therefore defers taking action on spearfishing as was proposed 
in the DMP/DEIS for a period of two years while additional information 
is collected on this activity in GRNMS. The issue will be reviewed 
again with the benefit of additional socioeconomic and biological 
analyses. NOAA will then determine what action to take, if any, given 
the additional data.
    NOAA has also determined that establishing hook limits on rod and 
reel and handline gear, as described in the proposed rule and the DMP/
DEIS, would complicate compliance and law enforcement. Law enforcement 
officials noted that the hook limitations would be extremely difficult 
to enforce. The preferred alternative, therefore, does not impose hook 
limits in the regulations.
    Existing regulations are revised to address placing or abandoning 
structures on the submerged lands; using underwater explosives or 
devices generating electrical current; and moving or damaging 
historical resources. The permit regulations for the sanctuary are 
revised and clarified. Prior to permit issuance, the Director of the 
NMSP is required to consider and make certain findings regarding, among 
other things, the duration of the activity and its effects; the 
cumulative effects; and whether it is necessary to conduct the proposed 
activity in the sanctuary. Permit holders are required to display a 
copy of the permit on board any vessel or aircraft used in the 
permitted activity.
    The final management plan details the goals and objectives and 
management responsibilities for the Sanctuary, as well as a series of 
action plans that outline marine resource protection, administration, 
research and monitoring, exploration, outreach and education, and 
performance evaluation activities that are planned for the next five 
years. The activities are designed to address specific issues facing 
the sanctuary and in doing so, help achieve the management objectives 
of the GRNMS and the larger mandates of the NMSP.
    This document provides the final regulations and the revised 
Designation Document for the sanctuary; and announces the availability 
of the final

[[Page 60056]]

management plan and the final environmental impact statement (FMP/
FEIS).

Background

    Gray's Reef National Marine Sanctuary, which was designated on 
January 16, 1981 (46 FR 7942), consists of approximately 16.68 square 
nautical miles of ocean waters and hard bottom located 17.5 nautical 
miles off Sapelo Island, Georgia. It is one of the largest nearshore 
rocky reefs off the southeastern United States and is in a transition 
zone between temperate and tropical waters. Some reef fish populations 
and plant communities change seasonally, while others are year-round 
residents. Migratory fish move through the sanctuary, using the reef 
for food and shelter. Loggerhead sea turtles, a threatened species, use 
GRNMS for foraging and resting. The reef is also close to the only 
known calving ground for the highly endangered Northern right whale.
    The hard bottom habitat at the sanctuary is composed of marine 
sediments (mud, sand, and shells) that were deposited between 2-
3,000,000 years ago. These marine sediments were consolidated into rock 
during subsequent glacial periods by numerous changes in sea level that 
repeatedly exposed and then submerged the areas of GRNMS as the 
coastline advanced and retreated across the continental shelf.
    Recent bottom mapping indicates that the area is a single rock 
unit. It is made of calcareous sandstone that formed as a result of the 
compacting marine sediments and aerial exposure. The irregularities of 
the bathymetry can be attributed to the easily erodable sandstone that 
has dissolved and pitted, creating the appearance of isolated ledges 
and patches of hard bottom.
    The exposed rock offers moderate relief (0.5 to 10 feet in height) 
with sandy, flat-bottomed troughs between. The series of rock ledges 
and sand expanses has produced a complex habitat of caves, burrows, 
troughs, and overhangs that provide a solid base on which temperate and 
tropical marine flora and fauna attach and grow. This rocky platform 
with its rich carpet of remarkable attached organisms is known locally 
as a ``live bottom'' habitat.
    The sanctuary is a small but very important part of the broad 
continental shelf off the southeastern coast sometimes known as the 
South Atlantic Bight (SAB). The SAB extends from Cape Hatteras, North 
Carolina to Cape Canaveral, Florida. The outer reaches are dominated by 
the Gulf Stream flowing northeastward. The inner area is defined by the 
curve of the coastline between the two capes and is dominated by tidal 
currents, river runoff, local winds, seasonal storms, hurricanes, and 
atmospheric changes. While GRNMS lies in the inner-shelf zone of the 
SAB--which causes great seasonal variations in temperature, salinity, 
and water clarity--it is also influenced by the Gulf Stream. The Gulf 
Stream draws deep nutrient-rich water to the region, and carries and 
supports many of the tropical fish species and other animals found in 
the sanctuary. Ocean currents transport fish and invertebrate eggs and 
larvae from other areas, linking the Sanctuary to reefs both north and 
south. GRNMS is the only protected natural reef area in the SAB.
    The sanctuary's area constitutes a tiny percentage of the ocean 
space off the coast, yet the sanctuary's value as a natural marine 
habitat is recognized nationally and internationally. The live bottom 
is a flourishing ecosystem that attracts mackerel, grouper, black sea 
bass, angelfish, and a variety of other fishes. GRNMS is one of the 
most popular recreational fishing and sport diving destinations along 
the Georgia coast. Sport fishing occurs year-round but intensifies in 
warmer months and with the migration of pelagic game fish.
    The sanctuary is located near an area of Georgia coastline that has 
experienced a dramatic increase in population. Aerial and on-water 
surveys indicate that visitation to GRNMS has increased significantly 
since 1981. With continued technological innovations such as global 
positioning systems (GPS), electronic fish finders, and improved 
watercraft design, it is likely that there will be increasing pressure 
on the resources of the sanctuary. With its new management plan and 
regulations, NOAA hopes to continue to protect GRNMS for the continued 
appreciation and use by the current and future generations.
    Because this action includes changes to the sanctuary's Designation 
Document, the FMP/FEIS is developed pursuant to section 304(a)(2) of 
the NMSA (16 U.S.C. 1434(a)(2)) consistent with, and in fulfillment of, 
the requirements of the National Environmental Policy Act of 1969.

Revised Designation Document

    NOAA specifies in the Designation Document that the submerged lands 
at GRNMS are legally part of the sanctuary and are included in the 
boundary description. At the time the sanctuary was designated in 1981, 
Title III of the Marine Protection, Research, and Sanctuaries Act (now 
also known as the National Marine Sanctuaries Act) characterized 
national marine sanctuaries as consisting of coastal and ocean waters 
but did not expressly mention the submerged lands thereunder. NOAA has 
consistently interpreted its authority under the NMSA as extending to 
submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) 
clarified that submerged lands may be designated by the Secretary of 
Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). 
Therefore, to be consistent with the NMSA, NOAA is updating the 
Designation Document and the boundary description, and is replacing the 
term ``seabed'' with ``submerged lands.'' Although certain fishing 
activities have been regulated at GRNMS since 1981, terms are being 
added to the Designation Document to authorize regulations for use of 
allowable fishing gear and to prohibit the possession of non-allowed 
gear. This allows sanctuary fishing regulations for GRNMS, recommended 
by the South Atlantic Fishery Management Council (SAFMC), to be issued 
for the sanctuary. The Designation Document is also updated to 
authorize regulating drilling into the submerged lands of the 
sanctuary; constructing, placing or abandoning material or matter; 
discharging or depositing material or matter outside the sanctuary that 
subsequently enters and injures a sanctuary resource or quality; using 
explosives or devices that produce electric current underwater; and 
moving, removing, injuring, or possessing historical resources.
    Language in Article 4 Section 2 providing authority for temporary 
emergency regulations has been revised to provide NOAA greater 
discretion to act in emergency situations to protect sanctuary 
resources on a temporary basis, and is now more consistent with the 
NMSA's primary objective of resource protection. Rather than show that 
ecosystem damage would be immediate, serious and irreversible before it 
could promulgate emergency regulations, NOAA must now show an actual or 
imminent risk of destruction, loss of, or injury to a sanctuary 
resource or quality. In addition, while emergency regulations must 
still be issued on a temporary basis, the 120-day limit has been 
removed.
    Article 6 of the Designation Document is also updated regarding the 
process to modify the Designation. The requirement that modifications 
to the Designation must be approved by the President is deleted and 
replaced with the requirement that modifications be approved by the 
Secretary of Commerce

[[Page 60057]]

or his or her designee. This is consistent with amendments to the NMSA 
that were enacted after the Sanctuary was designated in 1981 and which 
removed Presidential approval as a requirement for designation.

Revised Designation Document for the Gray's Reef National Marine 
Sanctuary

Preamble
    Under the Authority of Title III of the Marine Protection, Research 
and Sanctuaries Act of 1972, as amended, (the Act), the waters and the 
submerged lands thereunder at Gray's Reef in the South Atlantic Bight 
off the coast of Georgia are hereby designated a National Marine 
Sanctuary for the purposes of: (1) Protecting the quality of this 
unique and fragile ecological community; (2) promoting scientific 
understanding of this live bottom ecosystem; and (3) enhancing public 
awareness and wise use of this significant regional resource.
Article 1. Designation and Effect
    The Gray's Reef National Marine Sanctuary was designated on January 
16, 1981 (46 FR 7942). The Act authorizes the Secretary of Commerce to 
issue such regulations as are necessary to implement the designation, 
including managing and protecting the conservation, recreational, 
ecological, historical, cultural, archaeological, scientific, 
educational or aesthetic resources and qualities of a national marine 
sanctuary. Section 1 of Article 4 of this Designation Document lists 
activities of the type that are presently being regulated or may need 
to be regulated in the future, in order to protect sanctuary resources 
and qualities. Listing in Section 1 does not mean a type of activity is 
currently regulated or would be regulated in the future. If a type of 
activity is not listed, however, it may not be regulated except on an 
emergency basis, unless section 1 is amended to include the type of 
activity following the same procedures by which the original 
designation was made.
    Nothing in this Designation Document is intended to restrict 
activities that do not cause an adverse effect on the resources or 
qualities of the sanctuary or on sanctuary property or that do not pose 
a threat of harm to users of the sanctuary.
Article 2. Description of the Area
    The sanctuary consists of an area of ocean waters and the submerged 
lands thereunder located 17.5 nautical miles due east of Sapelo Island, 
Georgia. The exact coordinates are defined by regulation (15 CFR 
922.90).
Article 3. Characteristics of the Area
    The sanctuary consists of submerged calcareous sandstone rock reefs 
with contiguous shallow-buried hard layer and soft sedimentary regime 
which supports rich and diverse marine plants, invertebrates, finfish, 
turtles, and occasional marine mammals in an otherwise sparsely 
populated expanse of ocean seabed. The area attracts multiple human 
uses, including recreational fishing and diving, scientific research, 
and educational activities.
Article 4. Scope of Regulation
Section 1. Activities Subject to Regulation
    The following activities are subject to regulation under the NMSA. 
Such regulation may 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. Because an activity is listed here 
does not mean that such activity is being or would be regulated. If an 
activity is listed, however, the activity can be regulated, after 
compliance with all applicable regulatory 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)).
    1. Dredging, drilling into, or otherwise altering the submerged 
lands of the sanctuary;
    2. Within the boundary of the sanctuary, discharging or depositing 
any material or other matter or constructing, placing, or abandoning 
any structure, material or other matter; or discharging or depositing 
any material or other matter outside the boundary of the sanctuary that 
subsequently enters the sanctuary and injures a sanctuary resource or 
quality;
    3. Vessel operations, including anchoring;
    4. Injuring, catching, harvesting, or collecting any marine 
organism or any part thereof, living or dead, or attempting any of 
these activities, by any means except by use of rod and reel, and 
handline gear;
    5. Possessing fishing gear that is not allowed to be used in the 
sanctuary;
    6. Using explosives, or devices that produce electric charges 
underwater; and
    7. Moving, removing, injuring, or possessing a historical resource, 
or attempting to move, remove, injure, or possess a historical 
resource.
Section 2. Emergency Regulation
    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a sanctuary resource or quality; or to minimize the 
imminent risk of such destruction, loss or injury, any activity, 
including any not listed in Section 1 of this Article, is subject to 
immediate temporary regulation, including prohibition.
Article 5. Relation to Other Regulatory Programs
Section 1. Defense Activities
    The regulation of activities listed in Article 4 shall not prohibit 
any Department of Defense activity that is essential for national 
defense or because of emergency. Such activities shall be consistent 
with the regulations to the maximum extent practical.
Section 2. Other Programs
    All applicable regulatory programs will remain in effect, and all 
permits, licenses and other authorizations issued pursuant thereto 
shall be valid within the sanctuary unless authorizing any activity 
prohibited by a regulation implementing Article 4.
Article 6. Alteration of This Designation
    The terms of designation, as defined under section 304(a) of the 
Act, may be modified only by the procedures outlined in paragraphs (a) 
and (b) of section 304 of the Act including public hearings, 
consultation with interested Federal, State, and local government 
agencies, and the South Atlantic Fishery Management Council, review by 
the appropriate congressional committees, and approval by the Secretary 
of Commerce or designee.
    [End of designation document]

Summary of the Regulatory Amendment

    The regulatory changes clarify that ``submerged lands'' are within 
the boundary and are part of the sanctuary. This updates the boundary 
regulation to make it consistent with the NMSA and its definition of 
areas of the ``marine environment'' that may be designated as a 
sanctuary.
    The regulations also modify the sanctuary fishing regulations that 
have been in effect since 1981. The original regulations prohibited the 
use of specific fishing gear within the sanctuary, particularly wire 
fish traps and bottom trawls. The new regulation prohibits the 
injuring, catching, harvesting, or collecting of any marine organism by 
any means except by rod and reel, handline, or spearfishing gear 
without powerheads. This establishes a

[[Page 60058]]

clearer, more enforceable approach for the sanctuary fishing 
regulations than those currently in effect. Rod and reel gear is the 
predominant fishing gear now in use at GRNMS and continues to be 
allowed under the regulations. To facilitate enforcement of the gear 
restriction, a related regulation requires that all forms of fishing 
gear other than rod and reel, handline, or spearfishing gear without 
powerheads be stowed when vessels are in the sanctuary.
    The final regulations also prohibit anchoring vessels within the 
sanctuary. The unique bottom formations and habitats at GRNMS are 
vulnerable to the effects of anchoring. The documented increases of 
population in the region and of visitor use at GRNMS suggest that the 
risk from vessel anchoring will also increase and that prohibiting 
anchoring helps protect the live bottom habitat and the associated 
living marine resources that GRNMS was designated to protect. This 
regulation has little impact on current users of the sanctuary. Based 
on findings of a socioeconomic study (Ehler and Leeworthy) conducted in 
2002, virtually none of the activities that occur at GRNMS require 
anchoring. Fishermen routinely allow their boats to drift during 
bottomfishing or are trolling for migratory species, and divers 
frequently use a ``live-boat'' for drift diving, due to the strong 
currents. There is overall support for the ban on anchoring among users 
surveyed during the socioeconomic study. In an emergency situation, 
boaters are allowed to anchor in the sanctuary and existing boundary 
marker buoys provide a place for a boat to moor in an emergency as 
well.
    Finally, the regulations for the issuance of permits adds a new 
permit category for assisting in managing the sanctuary. This 
authorizes the NMSP to issue a permit to the sanctuary manager and 
qualified individuals outside the NMSP for activities that otherwise 
would be prohibited, if the activities assist in sanctuary management 
and if they satisfy permit criteria. The permit criteria require the 
NMSP or the Superintendent to consider, and make certain findings 
regarding, factors including the duration of a proposed activity, its 
cumulative effects, and whether it is necessary to conduct the proposed 
activity in the sanctuary. A permit holder is required to display a 
copy of the permit in any vessel or aircraft being used in the 
permitted activity.
    The following regulatory changes are also included in this 
document: The term ``seabed'' is replaced with ``submerged lands of the 
sanctuary'' to be consistent with usage in the NMSA. The prohibition 
against dredging, drilling into or altering submerged lands of the 
sanctuary specifically includes bottom formations to call attention to 
one of the critical elements of the ecosystem at GRNMS. The original 
prohibition against constructing any structure other than a navigation 
aid is revised to include constructing, placing, or abandoning any 
structure or material on the sanctuary submerged lands. This change, 
among other things, prohibits activities that have been identified in 
the Florida Keys National Marine Sanctuary, where materials are placed 
on the submerged lands to create lobster habitat. The prohibition 
against using poisons, electric charges, explosives, or similar methods 
to take any marine animal not otherwise prohibited from being taken is 
revised to prohibit the use underwater of explosives and devices 
producing electric current, while the reference to poisons is removed 
because it is already addressed by the prohibition against discharges. 
Use of these items is prohibited regardless of whether marine animals 
are being taken. The regulation prohibiting tampering with, damaging or 
removing historic or cultural resources is revised to prohibit moving, 
removing, damaging, or possessing any sanctuary historical resource, or 
attempting any of these. This change better protects these resources 
from being removed and facilitates enforcement by prohibiting their 
possession.

Comments and Responses

    During the public comment period, 144 written comments were 
received. Seven (7) public hearings were also held with approximately 
125 individuals in attendance. Comment during the public hearings was 
derived out of round table discussions and recorded on flip charts at 
each of the small group tables. Written and verbal comments were 
compiled and grouped by general topics into a 10-page summary, which 
was reviewed and considered by the GRNMS Advisory Council on January 
28, 2004.
    Substantive comments received are summarized below, followed by 
NOAA's response. Multiple but similar comments have been treated as one 
comment for purposes of response. Comments beyond the scope of the 
proposed action are neither summarized nor responded to.
    Comment 1: Many members of the public that have an interest in 
spearfishing commented that spearfishing at Gray's Reef should not be 
prohibited as proposed in the draft plan. The sanctuary does not have 
specific data on the number of people who spearfish and the amount of 
fish they take. If spearfishing is prohibited, then all bottom fishing 
at the sanctuary should be prohibited too. Bottom fishing takes far 
more fish and leaves far more debris on the reef than spearfishing 
does.
    Response: Spearfishing was considered for regulation during the 
original 1981 GRNMS designation. No regulations, however, were adopted 
at that time, except the prohibition of powerheads (explosives) for 
spearfishing. While the number of recreational divers spearfishing at 
GRNMS appears to be small, spearfishing typically targets the larger 
individual fish among the reef-dependent species. Large fish are 
important to the reproductive health of species. Some fish populations 
are overfished or approaching overfished status. Some researchers have 
commented on the lack of large snapper-grouper individuals at GRNMS 
(Bohnsack pers. comm.).
    Research has shown significantly reduced populations of larger 
predatory fishes where spearfishing occurs (SAFMC, 1990; Bohnsack, 
1982; Chapman and Kramer, 1999; Jouvenel and Pollard, 2001). Larger 
predators are favored targets of spearfishermen. Reduction in the 
larger predatory fishes can have a ``top-down'' effect on fish 
populations by allowing other fish populations to increase, altering 
the composition of the overall natural communities including 
invertebrates.
    Although the use of powerheads is prohibited at GRNMS, powerhead 
cartridges found on site indicate that this gear is still in use. Law 
enforcement officials have expressed concerns that some commercial 
spearfishing operations may be harvesting large numbers of undersized 
fish from the region.
    NOAA recognizes that while it has been effectively demonstrated in 
other areas that selective removal of large individual fish by 
spearfishing can adversely affect the reproductive viability of a given 
population, the sanctuary has little data on the actual level of 
spearfishing at GRNMS. The sanctuary will, therefore, gather additional 
socioeconomic information on this activity in GRNMS and review the 
issue again in two years. The additional socioeconomic information 
coupled with ongoing biological studies of fish populations will enable 
management to better evaluate the impact of current and potentially 
future levels of spearfishing at GRNMS.
    NOAA therefore defers taking action on spearfishing as was proposed 
in the draft management plan for a period of two years while additional 
information

[[Page 60059]]

is collected on this activity in GRNMS. NOAA will then determine what 
action to take, if any, given the additional information.
    Comment 2: (U.S. Environmental Protection Agency, Region IV) The 
language used in the Preferred Alternative could be strengthened to 
expressly prohibit the use or possession of spearguns, nets, bandit 
gear, buoy gear, traps, pots, etc., in the GRNMS. The distinction 
between permitted activities and prohibited activities should be made 
unambiguously clear.
    Response: NOAA has determined that prohibiting specific gear types 
could add more complication and confusion for fishermen by lengthening 
the list of restricted fishing methods and gear, versus clearly 
identifying what gear is allowed in GRNMS. The allowable gear 
regulation approach was endorsed by the GRNMS Advisory Council and the 
SAFMC as the best approach.
    Comment 3: (South Atlantic Fishery Management Council) The SAFMC 
voted to support the DMP/DEIS and proposed fishing regulatory language 
contained in the November 2003 public hearing document. Prohibiting 
anchoring and the other proposed actions are consistent with the 
SAFMC's Essential Fish Habitat (EFH) and EFH-Habitat Area of Particular 
Concern (HAPC) designations and with the SAFMC's habitat policies. The 
SAFMC did, however, request that GRNMS reconsider the proposed 3-hook 
limit.
    Response: NOAA has adopted Alternative ``c'' of the proposed 
allowable gear regulation, to permit only rod and reel, handline, and 
spearfishing gear without powerheads in the sanctuary. NOAA has 
determined that the 3-hook limit on rod and reel and handline gear, as 
defined in the draft proposed rule, complicates law enforcement and 
compliance. Hooks vary significantly in size and identification since 
hooks are made by different manufactures in different countries. Uses 
are also varied, making compliance difficult for users and 
interpretation of the regulations difficult for law enforcement. 
Therefore, NOAA defines the gear allowance without a limit on the 
number of hooks.
    The process of developing fishing regulations for GRNMS has 
complied with the NMSA, including Section 304(a)(5), and the Memorandum 
of Understanding executed by the SAFMC, NOAA Fisheries Service, and the 
NMSP.
    Comment 4: (Georgia Department of Natural Resources, Coastal 
Resources Division, Marine Fisheries Section) Prohibiting anchoring and 
the other proposed actions are consistent with the SAFMC's EFH and EFH-
HAPC designations and with the Council's habitat policies. The 
anchoring prohibition and similar marine resource action plan 
strategies to protect the live bottom habitat are appropriate and 
consistent not only with the SAFMC's EFH definitions/policies, but also 
with the goals and objectives of the NMSP.
    Response: See response to comment 3 above. The prohibition of 
anchoring is consistent with the SAFMC's EFH and EFH-HAPC designations 
of GRNMS, as well as the goals and objectives of the NMSP.
    Comment 5: (U.S. Navy, Commander Navy Region Southeast) The Navy 
requested that the document expand the statements regarding military 
activities to specifically indicate that the sanctuary designation did 
not limit or restrict ongoing or future military use for training and 
operations.
    Response: Existing regulations governing national defense 
exemptions for current activities have not changed.
    Current Department of Defense activities are essential for national 
defense and are not subject to the regulatory prohibitions. The 
exemption of additional activities having significant impacts will be 
determined in consultation between the Director and the Department of 
Defense.
    Comment 6: (U.S. Navy, Commander Navy Region Southeast) The Navy 
recommended modification of the next to last sentence in the section on 
Military Activities on page 53 of the FEIS to read ``Military aircraft 
do not routinely fly below 1500 feet or within a one nautical mile 
radius of the Sanctuary.''
    Response: NOAA acknowledges the Navy's comment and has determined 
that the language as it exists in the FMP/FEIS (already published), 
coupled with the regulations governing national defense activities, 
will adequately address this concern.
    Comment 7: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard 
District) Section 922.92(5)(ii) of the regulations states that ``There 
shall be a rebuttable presumption that any marine organism or part 
thereof found in the possession of a person within the sanctuary has 
been collected or removed from the Sanctuary.'' A ``rebuttable 
presumption'' places the burden of proving that any organism in 
possession of an alleged violator was actually caught in the sanctuary 
on the enforcement entity, something that is very difficult to do 
unless directly observed. Section 5 (ii) as written would be extremely 
difficult to enforce. The Coast Guard recommended changing this text to 
simply prohibit possession of any marine organism or part thereof when 
within the sanctuary and when in possession of any fishing gear or 
means except rod and reel and handline gear that is available for use. 
The prohibition text should also ensure that it is illegal to possess 
any species caught with a gear type prohibited in the sanctuary.
    Response: The U.S. Coast Guard is a key enforcement partner to NOAA 
in the protection of sanctuary resources and NOAA appreciates its 
comment to improve the regulation. The rebuttable presumption does not 
place any additional burden on the enforcement entity; rather it 
operates such that any person located inside the sanctuary and found in 
possession of a marine organism is presumed to have taken that organism 
from the sanctuary. Thus, no actual observation of a violation is 
required--it is presumed--and the burden is shifted to the alleged 
violator to provide some evidence proving the organism was in fact not 
taken from the sanctuary. Although the presumption can be overcome by 
the introduction of contrary evidence, NOAA regards the rebuttable 
presumption as generally useful to enforcement of the sanctuary 
regulations and, therefore, believes it should be retained in the final 
regulations. Language in the text of the allowable gear regulation 
addresses possession of species caught in the sanctuary with prohibited 
gear types.
    Comment 8: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard 
District) Section 922.92(6) of the DMP/DEIS prohibits gear other than 
rod and reel and handline gear unless ``stowed and not available for 
use.'' This term is later defined as ``stowed and not available for 
immediate use.'' This disparity between prohibition and definition will 
cause confusion and may make this prohibition unenforceable. The 
definition and prohibition language should be aligned.
    Response: NOAA has corrected this typographical error in the FMP/
FEIS by adding the word ``immediate'' in Section (6).
    Comment 9: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard 
District) Rod and reel gear is defined in the definitions section, and 
the definition includes a limit on the number of hooks per line to 
capture baitfish and a limit on the size and type of hooks that can be 
used. This limitation should be removed, as it is extremely difficult 
to enforce. However, if this limit is retained these prohibitions 
should be moved from the definition section and be included under the 
new regulation section. This will help simplify the regulations, a key 
component of an enforceable regulation.

[[Page 60060]]

    Response: NOAA has changed the regulation. See response to comment 
3 above.
    Comment 10: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard 
District) Prior to implementing a final rule, GRNMS should coordinate 
with NOAA General Counsel for Enforcement and Litigation to update 
GRNMS' penalty schedule. The current penalty schedule was last revised 
in January 1997, and a proposed revision drafted in 2002 has not gone 
into effect. Unfortunately, the proposed revision is not adequate and 
does not address the proposed regulation changes in the DMP/DEIS. In 
addition, the majority of potential violations within GRNMS are likely 
to be small and perpetrated by recreational fishermen. Any penalty 
schedule update should reflect this.
    Response: NOAA has developed a national penalty schedule for the 
NMSP. Penalty schedules, however, are not established by rulemaking; 
they are for internal guidance and have no binding effect on the amount 
of a penalty that may be assessed for a violation. Rather they are 
intended for consistency across a national system. The NMSA remains the 
authority for, and the source of, penalties that NOAA may assess.
    Comment 11: The South Carolina Aquarium fully supports the 
increased protection proposed in the DMP/DEIS. Limits placed on 
spearfishing and anchoring would help to minimize damage due to human 
activities on Gray's Reef.
    Response: NOAA has chosen the prohibition on anchoring (alternative 
``a''). Regarding spearfishing, see response to comment 1 above.
    Comment 12: The Coastal Group, Georgia Chapter, Sierra Club 
strongly supports the two major regulatory changes in the management 
plan: the prohibition of dropping anchor except in an emergency and the 
elimination of spearfishing from the sanctuary.
    Response: NOAA has chosen the prohibition on anchoring (alternative 
``a''). Regarding spearfishing, see response to comment 1 above.
    Comment 13: The Center for a Sustainable Coast believes that to 
truly serve as a sanctuary for marine life, GRNMS must ultimately be 
managed as a reserve to protect all species within its bounds against 
fishing and any other activities that disturb natural resources. To 
strengthen the capacity of efforts to improve water resource 
management, the GRNMS Management Plan should include analysis of the 
relationship of watersheds, water use, and water quality with the 
inter-tidal and marine areas. GRNMS must work to enhance and support 
greater awareness about these issues, and work to build a lasting 
intergovernmental management structure capable of resolving the complex 
water issues that may impact Gray's Reef and other marine resources.
    Response: During the scoping process for the revised management 
plan, many comments received asked that GRNMS consider marine reserve 
status (no-take) for the sanctuary. As noted in the FMP/FEIS (pages 29 
and 69-70), GRNMS determined that marine reserves are best addressed 
through our partnership with SAFMC as they continue deliberations on a 
network of reserves in the region.
    NOAA agrees that water quality is critical to the continued 
sustainability of the protected resources at GRNMS. Therefore an 
extensive water quality monitoring program has been implemented at 
GRNMS. Education programs, such as the Rivers to Reef module, are also 
bringing awareness to students and teachers.
    Comment 14: Many commenters expressed general support for increased 
protection of marine resources in the sanctuary and/or that NOAA adopt 
the preferred fishing alternative ``a.''
    Response: See responses to comments 11 through 13 above.
    Comment 15: One member of the public commented that GRNMS should be 
managed as a ``sanctuary;'' and/or allow only dive activities; and/or 
allow only transit through the sanctuary with fishing gear stowed.
    Response: GRNMS is managed as a ``national marine sanctuary,'' 
which is defined in the NMSA as ``an area of the marine environment of 
special national significance due to its resource or human-use values, 
which is designated as such to ensure its conservation and 
management.'' As such, all uses are evaluated as to whether they are 
compatible with the primary objective of resource protection. Ongoing 
research and monitoring are conducted to support that objective.
    Comment 16: One commenter suggested that GRNMS should consider 
designating 25-50 percent of the sanctuary as a reserve for non-
extractive uses. Protect Gray's Reef NMS as representative hard-ground 
live bottom habitat in the South Atlantic Bight.
    Response: See response to comment 13 above.
    Comment 17: Several members of the public commented that non-
extractive diving as a compatible use at GRNMS is growing; more divers 
prefer recreational diving for wildlife observation and photography. 
Conflicts are arising due to spearfishing at GRNMS because the fish, 
particularly larger fish, are either killed or scared away. Most 
spearfishermen do not use GRNMS, but prefer other offshore sites.
    Response: See response to comment 1 above.
    Comment 18: Several members of the public asked if the proposed 
regulations restrict use of commonly used equipment such as downriggers 
and marker buoys?
    Response: The FMP/FEIS does not propose restrictions on commonly 
used equipment such as downriggers and marker buoys. The document 
specifically states on page 65: ``Items that are deployed and 
subsequently retrieved the same day, such as fishing line and small 
marker buoys, are not considered `deposited' in the Sanctuary.''
    Comment 19: A member of the public commented that GRNMS should 
reduce all commercial and recreational fish harvest to ``sustainable 
levels.'' GRNMS should ban all commercial fishing and charter/head 
boats in order to achieve sustainable levels of harvest.
    Response: NOAA is responsible for the conservation and management 
of fish stocks within the Federal 200-mile limit exclusive economic 
zone of the Atlantic Ocean off the southeastern U.S. under the 
Magnuson-Stevens Fishery Conservation and Management Act. Under this 
mandate, sustainable levels of fish harvest are an objective for a wide 
range of fish species. Achieving sustainable fishing levels can be done 
better on a regional level well beyond the boundaries of GRNMS. 
However, the allowable fishing gear approach to GRNMS regulation does 
restrict certain types of fishing gear that have a negative impact on 
sustainable levels of many fish species.
    Comment 20: One member of the public commented that GRNMS should 
regulate fishing gear by prohibiting specific gear instead of allowing 
specific gear.
    Response: NOAA believes that fishing alternative ``b'' would not be 
in the best interest of the sanctuary or its users. The allowable gear 
approach is simple, clear, and easily understood by the fishing 
community and by the public generally. It means that gear identified as 
allowable is the only gear that may be used in the sanctuary; use of 
all other gear types is prohibited. This is a simpler, clearer approach 
than attempting to list all possible gear types that are prohibited. It 
also simplifies and facilitates monitoring and law enforcement, and 
eliminates the costs to users who develop and utilize fishing gear in 
the sanctuary that may have to be prohibited in the future due to 
damage to the resources.

[[Page 60061]]

    Comment 21: One commenter was concerned that all diving activities 
will be eliminated at GRNMS.
    Response: This plan does not propose eliminating diving at GRNMS. 
Although impacts on bottom resources from diving activities are a 
concern, GRNMS will establish a comprehensive outreach and education 
program to address these concerns. The revised regulations for GRNMS 
are very clear that only specific fishing gear is allowed and any other 
form of collection, harvest, or injury to marine organisms is 
prohibited.
    Comment 22: The National Marine Manufacturers Association has 
strong reservations about NMSP's proposal to prohibit anchoring in the 
sanctuary because there is no evidence that at any point NMSP 
considered the effect this proposal would have on boater safety. NMSP 
should formally consult with the U.S. Coast Guard (USCG) Office of 
Boating Safety for recommendations on how to make NMSP's management 
policies consistent with proper boater safety procedures. NMMA also 
urges NMSP to adopt anchoring alternative ``b'' and establish and 
maintain a mooring buoy system in the appropriate places to enhance 
boater safety.
    Response: NOAA involved the USCG, area boaters, fishermen, and 
divers on many occasions in the development of the FMP/FEIS through 
GRNMS Advisory Council meetings, scoping, and workshops. A 
representative of the 7th USCG District sits on the Advisory Council, 
along with a recreational angler and a recreational dive operator. The 
USCG's comment in its formal consultation letter response on the DMP/
DEIS stated that: ``There are no objectionable vessel safety concerns 
contained within this proposal.''
    Regarding anchoring alternative ``b,'' NOAA has concluded that a 
mooring buoy system is not needed, in part because the proposed 
regulation allows for use of anchors in emergency situations. The GRNMS 
Advisory Council, and other users surveyed in the socioeconomic studies 
cited in the FMP/FEIS, also consistently advised that a mooring buoy 
system was not needed in the sanctuary because boaters (fishermen and 
divers) prefer to drift or troll. The potential negative impacts from 
concentrated use around mooring buoys is also a concern for the 
sanctuary. GRNMS will continue to monitor use in the sanctuary and may 
reconsider mooring buoys in the next management plan review if the 
sanctuary finds that they are needed.
    Comment 23: A couple members of the public commented that NOAA 
should install mooring buoys in the sanctuary to enhance fishing, 
diving and research activities if anchoring is prohibited; consider 25-
30 moorings and moveable moorings to minimize the negative impacts of 
concentrated activities.
    Response: See response to comment 22 above.
    Comment 24: Several commenters expressed that NOAA should choose 
the preferred alternative ``a'' for anchoring.
    Response: NOAA has chosen the preferred alternative ``a'' for 
anchoring.
    Comment 25: One commenter stated that anchoring alternative ``c'' 
is not a good option because it assumes that sandy areas in GRNMS have 
no biological value. It makes little sense to anchor in the sandy areas 
away from fishing and diving locations.
    Response: NOAA acknowledges the concern about the biological 
importance of sandy areas in the sanctuary. Page 38 of the FMP/FEIS 
points out the high infaunal diversity in sandy bottom areas of the 
sanctuary. NOAA has chosen the preferred alternative ``a'' for 
anchoring.
    Comment 26: One member of the public commented that the prohibition 
on anchoring is inappropriate because there is no concrete or 
photographic evidence of anchor damage.
    Response: Numerous photos have documented damage from anchoring at 
GRNMS. Page 61 of the FMP/FEIS shows anchoring gear photographed on a 
live bottom area at GRNMS. Numerous studies in other locations have 
also definitively documented the significant damage to delicate 
invertebrates, corals and hard bottoms from anchoring practices. The 
prohibition of anchoring is not a limiting factor for visitors to be 
able to conduct recreational activities in GRNMS. Anchoring continues 
to be allowed in emergency circumstances.
    Comment 27: One member of the public commented that there is no 
purpose to establishing a working group to explore the concept of a 
marine research area because there is no such thing as a ``natural 
process along a populated coast,'' and a marine research area would 
have a negative impact on the fishing community. Designating a research 
area would open the door to closing the entire sanctuary to fishing; 
other live bottom areas in the region should be chosen for a research 
reserve instead of GRNMS.
    Response: After consideration of the public comments on the DMP/
DEIS, the Advisory Council recommended that the sanctuary establish a 
working group to advise the Advisory Council on the development of the 
concept of a marine research area. The Advisory Council, with the 
concurrence of the sanctuary, established the Marine Research Area 
Concept Working Group (RAWG), which met from May 2004 until March 2005. 
The Working Group was comprised of representatives from education, 
fishing, diving, research and conservation, law enforcement, and other 
regional, private, State, and Federal organizations. The 
recommendations from the Working Group to the Advisory Council can be 
found in Section III under the Research and Monitoring Action Plan (RM-
2). The Advisory Council deliberated on the Working Group's 
recommendations at its June 2005 meeting and made its recommendations 
to the sanctuary (also found at RM-2).
    NOAA has accepted the recommendations of the Advisory Council and 
made a decision to more formally consider the concept of a research 
area in the sanctuary through a public process guided by requirements 
of NEPA and the NMSA.
    Comment 28: Members of the public commented that GRNMS should 
consider an area only for research in the sanctuary; the reserve could 
serve as a ``constant'' for monitoring marine resources, and help 
improve information specific to Gray's Reef.
    Response: See response to Comment 27 above. The research area 
concept should be considered and an investigation of its benefits will 
move forward.
    Comment 29: Members of the public commented that GRNMS should 
consider a ``rotational'' marine research area (either geographically 
or temporally).
    Response: See response to comment 27 above.
    Comment 30: One member of the public noted that if the document is 
to follow the provisions of NEPA, it must have a List of Preparers 
contained within.
    Response: A full list of preparers is included in the FMP/FEIS in 
an appendix entitled List of Preparers.
    Comment 31: A member of the public urged GRNMS to formally 
incorporate a study of birds which occupy the reef as part of Goal 2 as 
research into the ecology of the reef.
    Response: Surveys of birds in the sanctuary have become a regular 
part of the monitoring program.

Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 301(b) of the National Marine Sanctuaries Act (16 U.S.C. 
1434) provides authority for comprehensive and coordinated conservation 
and management of national marine sanctuaries in coordination with 
other

[[Page 60062]]

resource management authorities. Section 304(a)(4) of the National 
Marine Sanctuaries Act (16 U.S.C. 1434(a)(4)) requires that the 
procedures specified in section 304 for designating a national marine 
sanctuary be followed for modifying any term of designation. Because 
this action revises the sanctuary designation document (i.e., the 
sanctuary boundary is revised to specifically include the submerged 
land), NOAA must comply with the requirements of section 304. All 
necessary requirements have been completed.

National Environmental Policy Act

    When changing a term of designation of a national marine sanctuary, 
section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a 
draft environmental impact statement (DEIS), as provided by the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
that the DEIS be made available to the public. The DEIS, along with a 
draft management plan, was released on October 31, 2003 (68 FR 62033). 
The public comment period ended on December 31, 2003. A final 
environmental impact statement and final management plan were published 
and made available to the public on July 28, 2006.

Executive Order 12866: Regulatory Impact

    The final rule has been determined to be not significant within the 
meaning of section 3(f) of Executive Order 12866 because it will not 
result in: (1) An annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, or public health and safety; (2) A 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; (3) A material alteration of the budgetary 
impact of entitlements, grants, user fees, or loan programs or rights 
and obligations of such recipients; or (4) Novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order.

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action does not fall within 
the definition of ``policies that have federalism implications'' within 
the meaning of Executive Order 13132. The Sanctuary does not include 
State waters. Furthermore, the proposed changes will not preempt State 
law, but will simply complement existing State authorities. In keeping 
with the intent of the Executive Order, however, the NMSP consulted 
with the Georgia Department of Natural Resources during development of 
the FMP/FEIS and these regulations.

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulations of 
the Department of Commerce certified to the Chief Counsel for Advocacy 
of the Small Business Administration that the FMP/FEIS for GRNMS does 
not have a significant economic impact on a substantial number of small 
entities. We received no comment on this certification or the economic 
impact of the rule. While minor modifications have been made to the 
rule proposed, the basis for the certification has not changed. Thus, 
no regulatory flexibility analysis was required and none has been 
prepared.
    The factual basis for this certification follows:
    This final rule is associated with a FMP/FEIS that was developed 
for the Gray's Reef National Marine Sanctuary (GRNMS), located off 
Sapelo Island, Georgia. A FMP is a planning and management document 
that describes the objectives, policies, and activities for a 
sanctuary. The final rule includes: (1) A prohibition on anchoring 
within the Sanctuary (except in emergencies); (2) a revision of 
Sanctuary regulations to allow fishing only with rod and reel, handline 
gear, and spearfishing gear without powerheads; and (3) a gear stowage 
requirement to facilitate enforcement.
    Current socioeconomic studies and on-site surveys indicate that the 
majority of users in GRNMS are recreational fishermen who use personal 
boats and rod and reel gear. There are approximately two dozen charter 
fishing operations along the Georgia coast that occasionally target the 
Sanctuary. Commercial fishing activity is negligible, as most 
commercial fishing gear is prohibited by existing regulations. 
Furthermore, nearly all users conduct their activities in a manner that 
complies with the final rule.

Paperwork Reduction Act

    This proposed rule involves an existing information collection 
requirement currently approved by OMB (OMB approval number 0648-0141) 
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The 
proposed rule will not require any change to the currently approved OMB 
approval and would not result in any change in the public burden in 
applying for and complying with NMSP permitting requirements.
    The public reporting burden for these permit application 
requirements is estimated to average 1.00 hour per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to, David Bizot, National Permit 
Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West 
Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to 
David.Bizot@noaa.gov, by fax to (301) 713-0404; or by e-mail to David--
Rostker@omb.eop.gov, or fax to (202) 395-7285.
    The proposed revised permit regulations would require the Director 
of the NMSP to consider the proposed activity for which a permit 
application has been received. The proposed modifications to the permit 
procedures and criteria (15 CFR 922.113) would further refine current 
requirements and procedures of the general National Marine Sanctuary 
Program regulations (15 CFR 922.48(a) and (c)). The proposed 
modifications would also clarify existing requirements for permit 
applications found in the Office of Management and Budget approved 
applicant guidelines (OMB Control Number 0648-0141). The revised permit 
regulations would add language about: the qualifications, finances, and 
proposed methods of the applicant; the compatibility of the proposed 
method with the value of the Sanctuary and the primary objective of 
protection of Sanctuary resources and qualities; the necessity of the 
proposed activity; and the reasonably expected end value of the 
proposed activity.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act, unless that collection of information 
displays a currently valid OMB control number.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Education, 
Environmental protection, Marine resources, Natural resources, 
Penalties, Recreation and recreation areas, Reporting and recordkeeping 
requirements, Research.


[[Page 60063]]


(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: October 4, 2006.
John H. Dunnigan,
Assistant Administrator for Ocean Services and Coastal Zone Management.

0
Accordingly, for the reasons set forth above, 15 CFR part 922 is to be 
amended as follows:

PART 922--[AMENDED]

0
1. The authority citation for part 922 continues to read as follows:

    Authority: 16 U.S.C. 1431 et seq.


0
2. The regulations for GRNMS (15 CFR part 922, subpart I) are revised 
to read as follows:
Subpart I--Grey's Reef National Marine Sanctuary
Sec.
922.90 Boundary.
922.91 Definitions.
922.92 Prohibited or otherwise regulated activities.
922.93 Permit procedures and criteria.

Subpart I--Grey's Reef National Marine Sanctuary


Sec.  922.90  Boundary.

    The Gray's Reef National Marine Sanctuary (Sanctuary) consists of 
approximately 16.68 square nautical miles of ocean waters and the 
submerged lands thereunder, off the coast of Georgia. The Sanctuary 
boundary includes all waters and submerged lands within the geodetic 
lines connecting the following coordinates:


Datum: NAD83

Geographic Coordinate System

(1) N 31.362732 degrees W 80.921200 degrees
(2) N 31.421064 degrees W 80.921201 degrees
(3) N 31.421064 degrees W 80.828145 degrees
(4) N 31.362732 degrees W 80.828145 degrees
(5) N 31.362732 degrees W 80.921200 degrees


Sec.  922.91  Definitions.

    In addition to those definitions found at Sec.  922.3, the 
following definitions apply to this subpart:
    Handline means fishing gear that is set and pulled by hand and 
consists of one vertical line to which may be attached leader lines 
with hooks.
    Rod and reel means a rod and reel unit that is not attached to a 
vessel, or, if attached, is readily removable, from which a line and 
attached hook(s) are deployed. The line is payed out from and retrieved 
on the reel manually or electrically.
    Stowed and not available for immediate use means not readily 
accessible for immediate use, e.g., by being securely covered and 
lashed to a deck or bulkhead, tied down, unbaited, unloaded, partially 
disassembled, or stowed for transit.


Sec.  922.92  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for national defense (subject to the 
terms and conditions of Article 5, Section 2 of the Designation 
Document) or to respond to an emergency threatening life, property, or 
the environment, or except as may be permitted by the Director in 
accordance with Sec.  922.48 and Sec.  922.93, the following activities 
are unlawful for any person to conduct or to cause to be conducted 
within the Sanctuary:
    (1) Dredging, drilling into, or otherwise altering in any way the 
submerged lands of the Sanctuary (including bottom formations).
    (2) Constructing any structure other than a navigation aid, or 
constructing, placing, or abandoning any structure, material, or other 
matter on the submerged lands of the Sanctuary.
    (3) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts, bait, or chumming materials;
    (ii) Effluent from marine sanitation devices; and
    (iii) Vessel cooling water.
    (4) Operating a watercraft other than in accordance with the 
Federal rules and regulations that would apply if there were no 
Sanctuary.
    (5)(i) Injuring, catching, harvesting, or collecting, or attempting 
to injure, catch, harvest, or collect, any marine organism, or any part 
thereof, living or dead, within the Sanctuary by any means except by 
use of rod and reel, handline, or spearfishing gear without powerheads. 
(ii) There shall be a rebuttable presumption that any marine organism 
or part thereof referenced in this paragraph found in the possession of 
a person within the Sanctuary has been collected from the Sanctuary.
    (6) Except for possessing fishing gear stowed and not available for 
immediate use, possessing or using within the Sanctuary any fishing 
gear or means except rod and reel, handline, or spearfishing gear 
without powerheads.
    (7) Using underwater any explosives, or devices that produce 
electric charges underwater.
    (8) Breaking, cutting, damaging, taking, or removing any bottom 
formation.
    (9) Moving, removing, damaging, or possessing, or attempting to 
move, remove, damage, or possess, any Sanctuary historical resource.
    (10) Anchoring any vessel in the Sanctuary, except as provided in 
Sec.  922.92 when responding to an emergency threatening life, 
property, or the environment.
    (b) All activities currently carried out by the Department of 
Defense within the Sanctuary are essential for the national defense 
and, therefore, not subject to the prohibitions in this section. The 
exemption of additional activities having significant impacts shall be 
determined in consultation between the Director and the Department of 
Defense.


Sec.  922.93  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec.  
922.92(a)(1) through (10) if conducted in accordance within the scope, 
purpose, manner, terms and conditions of a permit issued under this 
section and Sec.  922.48.
    (b) Applications for such permits should be addressed to the 
Director, National Marine Sanctuary Program, ATTN: Manager, Gray's Reef 
National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.
    (c) The Director, at his or her discretion may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by Sec.  922.92(a)(1) through (10). The 
Director must also find that the activity will:
    (1) Further research related to the resources and qualities of the 
Sanctuary;
    (2) Further the educational, natural, or historical resource value 
of the Sanctuary;
    (3) Further salvage or recovery operations in connection with a 
recent air or marine casualty; or
    (4) Assist in managing the Sanctuary.
    (d) The Director shall not issue a permit unless the Director also 
finds that:
    (1) The applicant is professionally qualified to conduct and 
complete the proposed activity;
    (2) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (3) The duration of the proposed activity is no longer than 
necessary to achieve its stated purpose;
    (4) The methods and procedures proposed by the applicant are 
appropriate to achieve the proposed activity's goals in relation to the 
activity's impacts on Sanctuary resources and qualities;
    (5) The proposed activity will be conducted in a manner compatible 
with the primary obje