Dry Tortugas National Park-Special Regulations, 76154-76166 [E6-21646]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[Federal Register Volume 71, Number 244 (Wednesday, December 20, 2006)]
[Rules and Regulations]
[Pages 76154-76166]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21646]



[[Page 76154]]

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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AD45


Dry Tortugas National Park--Special Regulations

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule will delete obsolete regulations; limit the area, 
extent and methods of recreational fishing within portions of the 
park's boundaries; implement a Research Natural Area (RNA); clarify the 
Superintendent's authority to regulate fishing, boating, and permitted 
activities; regulate vessel operation, anchoring and human activity; 
provide enhanced protection for shipwrecks consistent with State and 
Federal law; and restrict discharges into park waters. Definitions have 
also been added to clarify terminology.

DATES: Effective Dates: This rule is effective January 19, 2007.

FOR FURTHER INFORMATION CONTACT: Superintendent, Everglades and Dry 
Tortugas National Parks, 40001 SR 9336, Homestead, FL 33034. E-mail: 
ever_superintendent@nps.gov (305) 242-7710.

SUPPLEMENTARY INFORMATION: 

Background

    On April 7, 2006, the NPS published in the Federal Register 
proposed special regulations for Dry Tortugas National Park. (71 FR 
17785). Previous regulations pertained to Fort Jefferson National 
Monument. The Monument was established by a presidential proclamation 
in 1935 for the purpose of preserving the Dry Tortugas group of islands 
within the original 1845 federal military reservation of islands, keys, 
and banks. In 1980, Congress legislatively affirmed the Fort Jefferson 
National Monument.
    In 1992, Congress enacted Public Law 102-525 (16 U.S.C. 410xx et 
seq.) abolishing the Fort Jefferson National Monument and establishing 
Dry Tortugas National Park in its place. Congress established the park 
``to preserve and protect for the education, inspiration and enjoyment 
of present and future generations nationally significant natural, 
historic, scenic, marine, and scientific values in South Florida.'' In 
addition, Congress directed the Secretary of the Interior to manage the 
park for the following specific purposes, including:
    (1) To protect and interpret a pristine subtropical marine 
ecosystem, including an intact coral reef community.
    (2) To protect populations of fish and wildlife, including (but not 
limited to) loggerhead and green sea turtles, sooty terns, frigate 
birds, and numerous migratory bird species.
    (3) To protect the pristine natural environment of the Dry Tortugas 
group of islands.
    (4) To protect, stabilize, restore and interpret Fort Jefferson, an 
outstanding example of nineteenth century masonry fortification.
    (5) To preserve and protect submerged cultural resources.
    (6) In a manner consistent with paragraphs (1) through (5) above to 
provide opportunities for scientific research. (16 U.S.C. 410xx-1(b)).
    The NPS developed the Final General Management Plan Amendment/
Environmental Impact Statement (FGMPA/EIS), approved through a Record 
of Decision (ROD) in July 2001, to comply with its statutory mandate to 
manage and protect Dry Tortugas National Park, and to respond to 
pressures from increased visitation and over-utilization of park 
resources.
    As described in the FGMPA/EIS, there were indications that, despite 
the park's remote location approximately 70 miles west of Key West, 
Florida, rapidly increasing visitor use was negatively impacting the 
resources and values that make Dry Tortugas National Park unique. 
Visitation to Dry Tortugas National Park increased 400 percent from 
1994 through 2000, going from 23,000 to 95,000 annual visitors. The 
resources and infrastructure at the park could not sustain a growth 
rate of this magnitude while ensuring protection of park resources 
consistent with the park's legislative mandate.
    Scientific studies documented significant declines in the size and 
abundance of commercially and recreationally important fish species, 
particularly snapper, grouper, and grunts in Dry Tortugas National 
Park. These declines threaten the sustainability of reef fish 
communities both within the park and throughout the Florida Keys. 
Studies demonstrate that both fish size and abundance in the Tortugas 
area, including Dry Tortugas National Park, are essential to spawning 
and recruitment for regional fish stocks and the multi-billion dollar 
fishing and tourism industry in the Florida Keys.
    The population of South Florida is projected to increase from its 
current level of 6.3 million people to more than 12 million by 2050. 
With continued technological innovations such as global positioning 
systems and larger, faster vessels, the increase in population and 
recreational tourism will result in more pressure on the resources in 
the Tortugas area. In recent years, interest has grown in the 
commercial sector to provide increased transportation to the park and 
to conduct additional activities in the park, which would bring many 
more visitors and greater impacts to park resources.
    A plan was started in 1998 to address pressures and update the 1983 
Fort Jefferson National Monument General Management Plan. At that time, 
park managers placed a moratorium on the authorization of any new 
commercial activity in the park until an FGMPA/EIS could be completed 
and implemented that would adequately protect park resources.
    The FGMPA/EIS addressed specific issues including: (1) Protection 
of near-pristine resources such as coral reefs and sea grasses; (2) 
protection of fisheries and submerged cultural resources; (3) 
management of commercial services; and (4) determination of appropriate 
levels and types of visitor use.
    After extensive public involvement and collaboration with state and 
federal agencies, the NPS selected a management alternative that 
affords a high level of protection to park resources as well as 
providing for appropriate types and levels of high quality visitor 
experiences. This will be accomplished by establishing management zones 
and visitor carrying capacity limits for specific locations in the 
park, using commercial services to direct and structure visitor use, 
and instituting a permit system for private as well as commercial 
boats. A research natural area (RNA) will encompass a 46 square-mile 
area protecting a representative range of terrestrial and marine 
resources that will ensure protection of spawning fish and fish 
diversity and protect near-pristine habitats and processes to ensure 
high quality research opportunities. This rule prohibits extractive 
activities in the RNA, including fishing. A range of recreational and 
educational opportunities will be available for visitors as long as 
appropriate resource conditions are maintained. The quality of visitor 
experiences will be enhanced by maintaining the quality of resources 
while expanding visitor access throughout the park.

Summary of Public and Agency Involvement for the Final General 
Management Plan Amendment and the Proposed Rule

    This rule is the culmination of an extensive general management 
planning

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process for Dry Tortugas National Park that began in 1998. NPS planning 
was undertaken concurrently and collaboratively with planning by the 
National Oceanic and Atmospheric Administration (NOAA), the Florida 
Fish and Wildlife Conservation Commission (FWC), and the Gulf of Mexico 
Fisheries Management Council (GMFMC), leading to establishment of the 
Tortugas Ecological Reserve (TER) in the Florida Keys National Marine 
Sanctuary (FKNMS) adjoining the park.
    To assist in developing alternatives for the TER, NOAA established 
a 25-member Working Group composed of commercial and recreational 
fishermen, divers, scientists, non-governmental organizations and other 
concerned citizens, stakeholder representatives, FKNMS Advisory Council 
members, and federal and state government representatives charged with 
resource management authority in the Tortugas area. The Working Group 
used an ``ecosystem approach,'' recommending alternatives based on 
natural resources rather than jurisdictional boundaries. The NPS and 
FWC participated in the Working Group that gathered ecological and 
socio-economic information through two public meetings, a site 
characterization document, and the firsthand experiences of commercial 
and recreational fishermen and others.
    To maximize public participation in the park and the sanctuary 
planning, the NPS and FKNMS held 5 joint scoping meetings in the fall 
of 1998. To gain additional information, in 1999, the NPS and NOAA 
asked the National Research Council of the National Academy of Sciences 
to examine the utility of marine reserves and protected areas for 
conserving fisheries, habitats, and biological diversity. The Council's 
report, Marine Protected Areas: Tools for Sustaining Ocean Ecosystems, 
endorsed the increased use of ``no-take'' reserves, in concert with 
conventional management approaches, as a tool for managing ocean 
resources. In May 1999, the Working Group reached consensus on proposed 
boundaries for the TER and a proposed no-fishing zone inside Dry 
Tortugas National Park. All public and agency comments were considered 
by the NPS and incorporated into the issues and alternatives evaluated 
in the draft GMPA and EIS.
    In June 2000, the NPS and FKNMS released their draft management 
plans for public review and held 6 joint public hearings with the FWC 
and the GMFMC. Comments on the draft GMPA were overwhelmingly 
supportive of establishing the RNA. Out of 6,104 comments received, 97% 
supported the prohibition of extractive activities in this area. All 
public and agency comments were carefully considered by the NPS and the 
proposed action was modified in several areas in response to the 
comments.
    In January 2001, the Dry Tortugas National Park FGMPA was made 
available to the public. The NPS received several hundred letters from 
citizens and organizations reflecting a variety of viewpoints about the 
FGMPA. The NPS carefully considered all comments including those for 
and against prohibiting recreational fishing in the proposed RNA. On 
July 27, 2001, the Secretary of the Interior approved the FGMPA, and 
the Record of Decision was signed. In announcing approval of the plan, 
the Secretary stated, ``This plan has been developed with broad public 
outreach and a great deal of participation with the State of Florida, 
fishing organizations and interest groups. * * * My goal for this plan 
in the future is that recreational and commercial fishermen will see 
more and bigger fish, more conch and lobster in Florida Bay and the 
Straits of Florida, as a result of the critical spawning and marine 
nurseries we are protecting in the park.'' Additional details on public 
involvement for the FGMPA are included in the ROD which may be viewed 
or downloaded from the park's Web site at https://www.nps.gov/drto/
parkmgmt/index.htm.
    During the preparation of the FGMPA, the State of Florida indicated 
to the NPS and DOI that it claimed title to submerged lands located 
within Dry Tortugas National Park. These lands are also claimed by the 
United States. Rulemaking to implement the FGMPA was delayed pending 
resolution of this issue. Rather than addressing this issue through 
potentially protracted litigation, the State and DOI entered into a 
``Management Agreement for Certain Submerged Lands in Monroe County, 
Florida, Located within Dry Tortugas National Park'' that was approved 
by the Florida Governor and Cabinet on August 9, 2005 and by the 
Secretary of the Interior on December 20, 2005. This rule is consistent 
with the requirements of that agreement which stipulates that the NPS 
shall submit proposed regulations to the FWC for review and obtain the 
concurrence of the Board of Trustees of the Internal Improvement Trust 
Fund of the State of Florida (Governor and Cabinet) regarding that 
portion of the regulations pertaining to the management of submerged 
lands within the park. The Governor and Cabinet received comments from 
a variety of recreational fishing organizations, conservation groups, 
elected officials, state and federal agencies, and interested parties 
prior to approving the agreement. The August 9th meeting was publicly 
noticed and received statewide media coverage. The management agreement 
may be viewed or downloaded from the park's Web site at https://
www.nps.gov/drto/parkmgmt/index.htm. A Florida Department of 
Environmental Protection (FDEP) statement on the approval of the 
management agreement is available on its Web site at https://
www.dep.state.fl.us/secretary/news/2005/08/0809_01.htm.
    The FWC reviewed the proposed regulations at public meetings in Key 
Largo, Florida on December 1, 2005 and in Gainesville, Florida on 
February 2, 2006. The FWC received comments from a variety of 
recreational fishing organizations, conservation groups, elected 
officials, State and Federal agencies, and interested parties at these 
meetings. The FWC approved the proposed regulations at its February 2, 
2006 meeting and described the rationale for this action on its Web 
site at https://myfwc.com/whatsnew/06/statewide/tortugas.html.
    The FWC meetings were announced in advance and received statewide 
media coverage.
    On April 5, 2006, the DOI announced publication of the NPS draft 
special regulations in the Federal Register and the initiation of a 60-
day public comment period. The press release and the April 7, 2006 
Federal Register notice invited public comments by mail, e-mail, fax, 
or in person at a May 17, 2006, public meeting in Key Largo, Florida. 
On May 11, 2006, the NPS issued a press release seeking comments at the 
May 17, 2006, meeting. The release was also distributed by electronic 
mail to more than 500 individuals and organizations on the park's 
mailing list. Articles announcing the meeting date, location, and how 
to submit comments were published in the Miami Herald and Florida Keys 
Keynoter. Forty-three (43) people attended the meeting. The NPS 
received 5,238 responses, including letters, e-mails, and verbal 
comments during the comment period that closed on June 6, 2006. Ninety-
nine percent of the respondents supported NPS implementation of the 
proposed RNA.
    The FWC reviewed and approved this final rule, and the NPS obtained 
the concurrence of the Governor and Cabinet at their November 14, 2006 
meeting. This concurrence is for an initial five year period at which 
time their approval of the rule is again required. The Governor and 
Cabinet received public comments prior to taking their action. The 
management

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agreement also provides that the NPS and the State will work together 
to implement a research and monitoring program for the park's marine 
ecosystem, to coordinate this work with similar efforts by the FKNMS, 
and to provide a status report on the fisheries and activities at least 
every five years to the Board of Trustees. To further this effort, NPS 
and the FWC will shortly enter into a joint agreement for cooperative 
research within the Park and the RNA and to establish measures for 
evaluating the effectiveness and performance of the RNA.
    The regulations will be reviewed at least every five years, and as 
appropriate, revised and reissued based upon the results of the 
research program and information contained in the status report. 
Information and data collected regarding the effectiveness and 
performance of the RNA will also be reviewed and evaluated, and 
adjustments to the RNA will be undertaken, as appropriate. Any future 
revisions to these regulations will include opportunities for public 
review and comment during the rulemaking process.

Summary of Comments--Introduction

    The proposed rule was published for public comment on April 7, 
2006, with the comment period lasting until June 6, 2006. The NPS 
received 5,238 comments regarding the proposed rule, including letters, 
e-mails, and verbal comments given at a May 17, 2006 public meeting in 
Key Largo, Florida. Of the total, 63 are original comments and 5175 
were form letters supporting implementation of the regulations and the 
RNA. These comments have been analyzed using a process called ``content 
analysis.'' Content analysis is a systematic process of compiling and 
categorizing public viewpoints and concerns. A goal of the process is 
to identify all relevant issues, not just those represented by the 
majority of respondents.
    The NPS has carefully considered all comments received and in some 
cases adopted suggestions made. The comments and reasons for accepting 
or rejecting them are included below.

General Overview of Public Comments

Research Natural Area (RNA)

     Ninety-nine percent of all commenters supported NPS 
implementation of a RNA zone. Reasons cited were:

--To protect nationally significant corals and benthic habitats
--To protect habitats for endangered sea turtles, birds and other 
species
--To replenish depleted fish stocks and protect biological diversity
--To achieve park purpose to protect a pristine, intact marine 
ecosystem
--To allow comparative studies in a non-manipulated marine ecosystem
--Population pressure and threats to the ecosystem are increasing
--The science used in RNA decision making was sound
--The RNA will help support fishing/tourism economy of the Florida Keys
--Public involvement for the FGMPA and proposed regulations was 
inclusive, collaborative and adequate

     One percent of respondents opposed NPS implementation of 
the RNA. Reasons cited were:

--The science used in RNA decision-making was inadequate
--The resources in the Tortugas area (corals and fish stocks) are in 
good condition
--Commercial fishing in the Tortugas area causes far more damage to 
fish stocks than recreational fishing
--Commercial fishing in the Tortugas area should be banned if NPS wants 
to improve fish stocks
--Existing regulations, size and bag limits will adequately protect 
fish stocks
--The RNA will increase fishing pressure on areas remaining open to 
fishing
--The RNA will unnecessarily restrict public access and fishing 
opportunities in the park
--Public involvement for the proposed regulations was inadequate

Response to Specific Comments

    Comment #1: The NPS does not have the authority and jurisdiction to 
issue regulations for Dry Tortugas National Park marine resources 
because the United States does not have jurisdiction of the submerged 
lands and waters beyond Duck Key.
    NPS Response: The NPS disagrees. Congress established the present 
boundary of Dry Tortugas National Park in 1992 (Pub. L. 102-525). The 
NPS Organic Act (16 U.S.C. 1) authorizes the ``NPS to promote and 
regulate the use of the Federal area know as national parks * * * which 
purpose is to preserve the scenery and the natural and historic objects 
and the wildlife therein * * * and to leave unimpaired for the 
enjoyment of future generations.'' Further, 16 U.S.C. 3 authorizes the 
Secretary of the Interior to make and publish rules and regulations 
deemed necessary or proper for the use and management of the parks; and 
16 U.S.C. 1a-2(h) specifically authorizes the Secretary to promulgate 
and enforce regulations concerning boating and other activities on or 
relating to waters within park boundaries. With respect to submerged 
lands, in August 2005, the U.S. Department of the Interior and the 
State of Florida entered into a management agreement acknowledging each 
other's claim to ownership of certain submerged lands within the park. 
The State and the DOI mutually agreed that the submerged lands will be 
managed by the NPS consistent with the authorized purpose of the park 
in the 2001 GMPA. Finally, NPS regulations expressly apply to waters 
within park boundaries subject to the jurisdiction of the United States 
without regard to the ownership of submerged lands.
    Comment #2: The NPS should eliminate the rule that states that all 
fishing gear must be stowed and unavailable when traveling within the 
RNA zone. This is an impractical rule for most open fishing boats.
    NPS Response: The regulation assures consistency with the 
immediately adjacent FKNMS Tortugas Ecological Reserve and maintains 
the integrity of the purpose of the RNA. The NPS agrees that for 
smaller boats with limited space that the removal of hooks and lures is 
impractical. The NPS therefore adopts verbatim the FKNMS's definition 
of ``not available for immediate use.'' The definition allows for the 
stowage of unbaited fishing rods in rod holders.
    Comment #3: The science used in the RNA decision-making is 
inadequate because the methodology, assumptions, and data are flawed 
and the scientists who did the studies are biased and inexperienced in 
fishing and fish habits.
    NPS Response: The NPS disagrees with these views. The original 
scientific studies that support the habitat protection and fisheries 
management recommendations for the Tortugas region are described in a 
detailed 1999 report entitled Site Characterization for the Dry 
Tortugas Region that was jointly commissioned by the NPS and the FKNMS. 
This report included extensive information on oceanography/water 
currents, coral reefs/benthic communities, as well as the fisheries 
essential habitats of the Tortugas region (Schmidt et al. 1999). (An 
extensive discussion was also included in the NPS 2001 ROD.) The 
specific studies of Tortugas reef fish communities and their associated 
benthic habitats were initially compiled in 1999 and 2000 by an inter-
disciplinary team of scientists from the National Undersea Research 
Center (UNC), the University of Miami's Rosenstiel School of Marine and 
Atmospheric Sciences, the National Marine Fisheries Service (NMFS), and 
the Florida Wildlife Research Institute

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(FWRI). This team of Federal, State, and university scientists have 
extensive experience in marine ecology/oceanography, fisheries 
management, and coral reef ecosystems based on their work throughout 
Florida and the Caribbean, and their site-specific studies over the 
last 2-3 decades in the Florida Keys and Tortugas region. The 
methodology and results of these scientific studies have been published 
in numerous scientific journals and have undergone independent 
scientific peer review.
    The fish survey methodology (underwater direct visual fish counts) 
that has been used is designed specifically for assessing coral reef 
fish stocks (Bohnsack and Bannerot 1986). The Dry Tortugas National 
Park field sampling plan was devised specifically for the park (Ault et 
al. 2003). This methodology has undergone extensive design analysis and 
has been shown to be highly effective and is used around the world. The 
data analyses and fish stock assessments use standard statistical 
methods and well-accepted scientific methodologies. All of these 
methodologies have undergone multiple independent expert scientific 
reviews through publications in scientific journals. The NPS intends to 
continue its collaboration with NOAA, FWC, and the other federal and 
state agencies working in the FKNMS, and to specifically have the Dry 
Tortugas science program included in the planned independent scientific 
peer review efforts of the FKNMS Science Program.
    The lead scientists who designed and conducted the Dry Tortugas 
National Park coral reef fishery assessment studies are PhD-level 
senior marine scientists from the University of Miami and the NMFS. 
They worked with a broad team of scientists from the FWC, the FKNMS, 
and many other agencies and universities. This team of scientists has 
many years of experience in coral reef ecology and fishery biology and 
have worked on fisheries projects throughout the Florida Keys and 
Tortugas region. The methodology and results have been presented in 
numerous peer reviewed scientific publications on south Florida coral 
reef ecology and fishery biology. Most of these scientists also live in 
the south Florida area and have been engaged in recreational fishing in 
the Florida Keys for decades. The two lead NPS marine scientists 
working on the Dry Tortugas National Park science programs also have 
advanced degrees in marine science and extensive work experience (i.e., 
M.S. in fishery biology, and PhD in coral reef fish ecology along with 
25-30 years experience working in Florida and Caribbean marine 
ecosystems).
    Comment #4: The science used in RNA decision-making is inadequate 
because the NPS does not conduct fish counts at Dry Tortugas National 
Park.
    NPS Response: The NPS does conduct fish counts at Dry Tortugas 
National Park, using a combination of fishery dependent surveys (angler 
interviews) and fishery independent surveys (direct visual fish 
counts). The NPS periodically interviews anglers at the dock on Garden 
Key, recording catch information (called creel or fishery [angler] 
dependent surveys). As part of these creel surveys, the NPS asks where 
anglers caught their fish, the number of people involved, and the 
duration of their fishing activities. This information allows NPS to 
estimate the fishing catch per unit effort (CPUE) for a series of 
spatially distributed fishing zones across the park. The Dry Tortugas 
creel survey data collected between 1980-1984 and 2000-2004 were 
analyzed and compared by Ault et al. (2006) to determine any trends 
over time. This analysis found that gray snapper and grunt catch per 
unit effort (CPUE) declined between the two periods, suggesting that 
these species may have experienced long term decline in abundance in 
the park. The NPS acknowledges that the Dry Tortugas National Park 
creel survey is not as extensive as that in Everglades National Park 
because of the logistical problems of collecting such data in the 
Tortugas region. The NPS is addressing these limitations by designing a 
more effective Dry Tortugas National Park creel survey and recreational 
fishing guide reporting system. The NPS also has had extensive park-
wide underwater visual direct counts of the important game fish species 
and other coral reef fishes done regularly since 1999 (including the 
years 1999, 2000, 2002, 2004, and 2006). This method has been analyzed 
by marine fisheries experts and was determined to be a more effective 
method of defining reef fish abundance than a creel survey. The results 
of these counts and other fish data are used by fisheries managers to 
calculate indicies to gauge the health of a fishery. One index is a 
spawning potential ratio (SPR) for each harvested species. The SPR is a 
fishery index, developed by NMFS, and is used to estimate the overall 
reproductive health of fish species and to estimate the impacts of 
overfishing. A historical study of the SPR of 35 commercially and 
recreationally important fish species found in the Tortugas region 
indicates that 13 of 16 grouper species, 7 of 13 snapper species, one 
wrasse, and 2 of 5 grunt species were found to be below the 30 percent 
SPR threshold, and are considered overfished by federal standards (Ault 
et al. 1998). The overall health of the Tortugas fishery as well as the 
health of its associated coral reefs and other benthic communities 
formed the primary basis of the scientific recommendation to implement 
the RNA within Dry Tortugas National Park.
    Comment #5: The Research Natural Area is not needed because 
resources in the Dry Tortugas area (coral reefs, fisheries) are in good 
shape. Fish stocks are not overfished.
    NPS Response: The NPS believes that the marine ecological resources 
(i.e., coral reefs and fisheries) within Dry Tortugas National Park are 
not ``in good shape.'' The coral reef fish stocks are well documented 
and are considered to be overfished based on U.S. Government standards 
(Ault et al. 2002, Ault et al. 2006). The most recent reef game fish 
stock assessment, using data collected from the park in 1999-2004, 
concluded that 17 of 18 grouper and snapper species are overfished, 
based on their spawning potential ratio (Ault et al. 2006).
    The park's coral reefs, which are an essential habitat for reef 
game fish, have similarly experienced substantial declines in the last 
30 years. The substantial decline in stony corals, highlighted by the 
recent listing of the major reef forming Acropora spp. as a threatened 
species, is one of the most ecologically significant resource 
stewardship challenges in the park. For example, there were 1180 acres 
of staghorn coral dominating reefs in the park in 1976 (Davis 1982); 
however, it is estimated that there are currently, at most, only a few 
acres of live staghorn thickets left at Dry Tortugas National Park, a 
greater than 99% loss. The largest acreage of staghorn loss has 
occurred inside the proposed RNA. The stony coral cover on Bird Key 
Reef has decreased by over 75% from 1975 to 2005 (W. Jaap, FWC pers. 
comm.; Beaver et al. 2006). From 1999 to 2004, there was a greater loss 
in stony coral cover in the Tortugas region than in the rest of the 
Florida Keys (W. Jaap, FWC pers. comm.).
    When implemented, the Dry Tortugas RNA will allow NPS to better 
understand the linkages between recreational fishing and stock 
depletion, as well as fishery productivity and the coral reef 
environment. The combination of deep-water habitats in the TER and the 
shallow water habitats in the RNA should provide for long-term 
sustainability and productivity of the important game fish species as 
well as their associated coral reef

[[Page 76158]]

environments. This was the major justification that the FWC and the 
Florida Department of Environmental Protection identified when they 
stated their support for implementing the Dry Tortugas RNA.
    Comment #6: Commercial fishing in the Tortugas area causes far more 
damage to fish stocks than recreational fishing and should be 
prohibited around DRTO, if the NPS wants to improve fish stocks.
    NPS Response: Commercial fishing within Dry Tortugas National Park 
has been prohibited since the original Fort Jefferson National Monument 
was created in 1935. Since the NPS does not have jurisdiction in the 
rest of the Tortugas region, this is an issue that NOAA, NMFS, and FWC 
would need to evaluate. There have been a number of Federal and State 
actions to limit the impact of commercial fishing in the Tortugas 
region. In 2001, NOAA prohibited commercial fishing in the TER. 
However, the TER does not include the important shallow reef habitats 
critical to many reef game fishes, which would be protected by the 
proposed RNA. The State of Florida has also outlawed fish traps, and 
NOAA does not allow fish traps in the Tortugas region. NOAA began a 10-
year phase out of fish traps in the Gulf of Mexico in 1997 which will 
prohibit the use of fish traps throughout the Gulf in 2007. Shrimp 
trawls are also prohibited in coral reef areas. There are several lines 
of evidence indicating that recreational fishing does impact fishery 
stocks in the Tortugas and Florida Keys. A Tortugas coral reef fish 
stock assessment (Ault et al. 2002) concluded that ``The Dry Tortugas 
National Park fishery for many reef fish stocks is in worse shape than 
the surrounding broader Tortugas region.'' This suggests that 
recreational fishing is a factor because there has been no commercial 
fishing in the park since 1935. NMFS has conducted stock assessments 
for several reef game fishes distinguishing between commercial and 
recreational effects of landings and bycatch mortality based on 
landings statistics (SEDAR 2001-2005). These assessments found that for 
many reef species in the Florida Keys, recreational anglers extract 
more fish that commercial fishers. Recreational fishing in the park for 
spiny lobster in the 1960's and early 1970's caused a documented 
depletion in lobster abundance and a 58% decline in catch rates in the 
park (Davis 1977, Davis and Dodrill 1980). In response, the NPS closed 
the park to lobster harvesting in 1974.
    Finally, the NPS believes that additional protection from increased 
recreational fishing activities in the Tortugas region is needed 
because the fishery pressure is expected to greatly increase, because 
the south Florida population is projected to nearly double by 2050. 
Studies have shown that the number of registered boat owners in south 
Florida has grown at a very high rate over the last two decades, while 
commercial fishing pressures have remained relatively flat during this 
same period. This again suggests that increased pressure from 
recreational fishing is a significant factor in the sustainability of 
the Tortugas fishery.
    Comment #7: Existing regulations and size and bag limits will 
adequately protect fish stocks.
    NPS Response: Although current recreational fishing regulations are 
beneficial, they have not been sufficient to sustain this important 
fishery or to achieve the high standards of ecosystem protection 
required by the NPS Organic Act and the Dry Tortugas National Park 
enabling legislation. The well-documented condition of the Tortugas 
fishery and associated coral reef habitats indicates that additional 
protective actions are required. No-take marine reserves are commonly 
implemented for fishery and ecosystem protection and recovery, in 
addition to ongoing measures including bag limits, size limits, quotas, 
and gear restrictions. The U.S. Coral Reef Task Force (USCRTF) states 
that marine reserves are the most powerful tool for conservation of 
coral reef ecosystems (USCRTF 2002). Similarly, the National Research 
Council's 2000 review of marine protected areas endorsed the increased 
use of no-take marine reserves in concert with conventional management 
approaches (Marine Protected Areas, Tools For Sustaining Ocean 
Ecosystems. National Academy Press).
    Comment #8: The no-take RNA will increase fishing pressure on areas 
remaining open to fishing.
    NPS Response: The NPS disagrees with this assumption and believes 
that the focus should be more on the overall condition of reef game 
fish stocks and the health of the fishery in areas remaining open to 
recreational or commercial fishing. A growing number of scientific 
studies suggest that the ecological effect of implementing no-take 
marine reserves results in an increase in the abundance and size of 
target fishery species within areas adjacent to reserves, and thus 
helps sustain adjacent fisheries, due to a net export of these species 
from the reserve (also known as ``spillover effects''). A 2001 
``Scientific Consensus Statement On Marine Reserves And Marine 
Protected Areas'' signed by 161 marine scientists states, ``In the few 
studies that have examined spillover effects, the size and abundance of 
exploited species increase in areas adjacent to reserves.'' (National 
Center for Ecological Analysis and Synthesis 2001).
    More recent scientific studies on coral reef fisheries have shown 
that marine reserves have enhanced adjacent fisheries, including 
greater fish biomass (i.e., more and/or larger fish), higher catch, 
increased catch rate, and reduced fishing effort (McClanahan and Mangi 
2000, Roberts et al. 2001, Galal et al. 2002, Russ et al. 2003, Russ et 
al. 2004). DRTO plans to conduct similar scientific studies to assess 
the spillover effects of the RNA.
    Even with RNA implementation, the vast majority of the Tortugas 
area, and 54% of the park will remain open to recreational fishing.
    Comment #9: The RNA will unnecessarily restrict public access and 
fishing opportunities in the park.
    NPS Response: The NPS disagrees. A variety of recreational and 
educational opportunities will be available to visitors in the RNA 
including boating, swimming, snorkeling, scuba diving, wildlife 
viewing, and scientific research. Fishing will not be allowed in the 
RNA in order to protect important nursery areas that will help produce 
greater abundance and diversity of fish. Mooring buoys will be 
installed to provide private and tour boat access to snorkel and dive 
sites while protecting corals, shipwrecks, and other sensitive 
resources from anchor damage. Allowing non-consumptive uses in the RNA, 
with careful monitoring of impacts of these activities, will provide 
exceptional resource appreciation and public education benefits. It 
will also enable the NPS to meet its statutory obligation to ``protect 
and interpret a pristine subtropical marine ecosystem, including an 
intact coral reef community.''
    Fifty-four percent of park waters will remain open for recreational 
fishing including the natural/cultural zone (50 square miles), five of 
the park's seven islands, and the historic/adaptive use zone 
surrounding Garden Key and Fort Jefferson (4 square miles). This 
includes the overnight anchorage and shallows around Garden, Bush, and 
Long Keys where angling for permit and tarpon is popular. Visitor 
studies conducted by the NPS in 1995 and 2002 found that while the 
majority of visitors (78%) did not fish on their visit to the park, it 
is an important activity for those who do. The areas most heavily 
fished were a circular area extending 1 mile in radius outwards from 
Garden Key (64% of all trips) and the southwestern quarter of

[[Page 76159]]

the park (57%), and these areas will remain open to recreational 
fishing. Private boaters often fish the anchorage adjacent to Fort 
Jefferson and the flats surrounding the nearby keys. Fishing from the 
dock and shoreline of Garden Key is popular with visitors arriving by 
ferry or seaplane. The areas open for fishing includes 56% of the 
park's seagrass meadows and 28% of park waters less than 6 feet deep.
    Significant large areas adjacent to the park also remain open for 
recreational fishing. They include the southern half of the Tortugas 
Banks (west of the park), the waters south and east of the park, and 
the popular king-fishing area northeast of the park. These areas were 
excluded from the FKNMS TER in order to protect fishing interests in 
the region.
    NPS recognizes that some of the private and charter recreational 
fishing that formerly occurred in the RNA will relocate to other areas 
within and outside the park. The scientific literature and FKNMS 
experience with no-take zones strongly suggests that the fishing 
experience outside the RNA will be enhanced in the future as fish 
populations increase in size and number as a result of establishing 
zones dedicated to improving the spawning and juvenile populations. The 
presence of substantially larger fish should benefit trophy fishing in 
park waters adjacent to the RNA. These larger fish could also leave the 
RNA and be caught by recreational or commercial fishermen outside the 
park.
    Comment #10: Public involvement for the proposed regulations was 
inadequate.
    NPS Response: Public involvement in the Dry Tortugas National Park 
GMPA and the proposed regulations has been both extensive and inclusive 
as described in the background section above.
    Comment #11: To better protect elkhorn coral (Acropora palmate) and 
staghorn coral (Acropora prolifera) patches special protection zones, 
the NPS should:
    A: Close the 5 Foot Channel and install closure/marker buoys a 
sufficient distance inshore (toward the Fort) in 5 Foot Channel and on 
Long Key-Bird Key forereef near the entrance of 5 Foot Channel.
    NPS Response: NPS agrees, and this closure will be implemented.
    B: Delineate the zones with marker buoys rather than rely on 
boaters to determine if they are 100 yards away from the patches.
    NPS Response: NPS agrees, and the zones will be appropriately 
marked.
    C: Prohibit aircraft from taxiing, landing, or taking off within 
the special protection zones.
    NPS Response: NPS agrees. This rule has been revised to read ``a 
landing or takeoff may not be made * * * within five hundred (500) feet 
of any closed area.'' This includes all special protection zones.
    D: Include information on threatened status of elkhorn and staghorn 
corals in the Section by Section analysis paragraph (c).
    NPS Response: NPS agrees and has modified the Section-by-Section 
Analysis to include this information.
    Comment #12: NPS should prohibit anchoring in rubble bottom 
anywhere in the park because of potential negative impacts to corals, 
especially elkhorn and staghorn corals recently listed as threatened 
species under the Endangered Species Act, and to other ecological 
resources. Only anchoring in sand bottom should be permitted. Mooring 
buoys should be installed to facilitate access to coral areas without 
damage.
    NPS Response: This rule has been revised deleting any reference to 
anchoring on rubble bottom. More specifically, the definition of the 
``designated anchorage'' has been revised to read: ``Designated 
anchorage means any area of sand within one nautical mile of the Fort 
Jefferson Harbor Light.'' The rule is now consistent with the anchoring 
provisions applicable in the FKNMS.
    NPS will make installation of mooring buoys on the Long Key-Bird 
Key Reef a priority. However, boats will still be able to anchor on 
sand bottom on the portion of this reef that is in the designated 
anchorage around Garden Key. NPS will provide educational material to 
inform boaters of anchoring locations on the reef so as to minimize the 
ecological effects of anchoring damage and identify reef areas to 
avoid. NPS will monitor and assess the ecological effects of anchoring 
on the Long Key-Bird Key Reef and adaptively manage visitor use to 
minimize ecological impacts.
    Comment #13: The nurse shark mating area between Long Key and the 
elkhorn coral (Acropora palmata) patch should be a seasonally closed 
special protection zone.
    NPS Response: Since this closure is based on a seasonal need that 
can vary from year-to-year, the NPS will address this closure using 
authority delegated to the Superintendent by NPS regulations.
    Comment #14: The National Oceanic and Atmospheric Administration 
noted that the draft regulation and section-by-section discussion 
regarding discharges into park waters (paragraph (g), while similar to 
FKNMS regulations at 15 CFR 922.163, are inconsistent with FKNMS 
regulations for discharges within the Tortugas Ecological Reserve at 15 
CFR 922.164(d)(1)(i). NOAA's discharge regulations for the TER only 
allow for the discharge of cooling water and engine exhaust. As a 
result, the draft NPS regulations would allow for certain types of 
discharges in the Research Natural Area zone that are not allowed in 
the adjacent TER (i.e., fish parts, bilge water, and gray water).
    NPS Response: NPS appreciates the identification of this 
discrepancy and has revised the rule and section-by-section discussion 
to make discharge regulations within the Research Natural Area 
identical to those for the TER. The NPS intends for the RNA regulations 
to be consistent or ``seamless'' with FKNMS regulations for the TER as 
both agencies share identical resource protection goals and wish to 
maximize public understanding and minimize confusion regarding 
allowable activities in these zones.
    Complete citations to publications referenced in the Response to 
Specific Comments section may be viewed on the park's Web site at: 
https://www.nps.gov/drto/parkmgmt/index.htm.

Changes to the Final Rule

    Based on the preceding comments and responses, the NPS has made 
four substantive changes to the proposed rule language.
    1. The definition of ``designated anchorage'' (a)(3) was modified 
by removing the reference to ``rubble bottom.'' The definition now 
reads, ``any area of sand within one nautical mile of the Fort 
Jefferson Harbor Light.''
    2. The definition of ``not available for immediate use'' (a)(11) 
was modified to delete the reference to requiring the removal of hooks 
and lures from fishing rods. The definition now reads, `` not readily 
accessible for immediate use, e.g., by being stowed unbaited in a 
cabin, locker, rod holder, or similar storage area, or being securely 
covered and lashed to a deck or bulkhead.''
    3. (k)(2)(a). The landing and takeoff of aircraft was modified to 
include all closed areas within the designated landing zone (within a 
radius of one mile of Garden Key). The proposed regulations restricted 
aircraft landings and takeoffs to within 500 feet of Bush Key when that 
island was closed for wildlife nesting. Other sensitive areas within 
the vicinity have been identified as needing the 500 foot buffer from 
aircraft landings and takeoffs. These include the staghorn coral 
(Acropora

[[Page 76160]]

prolifera) and elkhorn coral (Acropora palmata) patches and the nurse 
shark mating area. The regulation has been modified to read, ``Aircraft 
may be landed on the waters within a radius of one (1) mile of Garden 
Key, but a landing or takeoff may not be made within five hundred (500) 
feet of any closed area.''
    4. Paragraph (g), regulations for discharges into park waters, was 
modified to prohibit vessel discharges in the Research Natural Area, 
with the exception of engine cooling water and exhaust. The draft 
regulation would have allowed for other discharges in the RNA (i.e., 
fish parts, bilge water, and gray water) that are inconsistent with the 
goal of maintaining the highest possible water quality in this zone. 
The revised regulation will enhance resource protection in the RNA and 
is consistent with NOAA discharge regulations for the adjacent Tortugas 
Ecological Reserve.

Section-by-Section Analysis

(a) What terms do I need to know?

    In order to provide clarity and reduce possible confusion, 15 
definitions have been included in this paragraph. They include: 
baitfish, cast net, designated anchorage, dip net, finfish, flat wake, 
guide fishing, live rock, lobster, marine life, not available for 
immediate use, ornamental tropical fish, permits, research natural 
area, and shrimp. Common fish names referred to in the regulations are 
further clarified by including scientific names.

(b) Are there recreational fishing restrictions that I need to know?

    Section 2.3(a) of this chapter adopts non-conflicting state fishing 
laws as part of the general NPS regulations applicable to all units of 
the National Park System unless regulations for particular park areas 
specify otherwise. For Dry Tortugas National Park, additional 
requirements relating to fishing are included to achieve the park's 
purposes and implement planning decisions. Recreational fishing 
activities must comply with the state regulations unless those 
activities are otherwise restricted or prohibited in this section. Any 
reference to fishing in Sec.  7.27 refers to recreational fishing, 
which is the taking, attempting to take, or possessing of fish for 
personal use. This is the same definition used by the State of Florida. 
All references to commercial fishing have been removed since this 
activity is already prohibited by 36 CFR 2.3(d)(4).
    The intent of paragraph (b)(1) allows the Superintendent to impose 
restrictions or closures to protect fish species within the park. After 
consulting with and obtaining the concurrence of the FWC, the 
Superintendent may impose closures and establish conditions or 
restrictions necessary pertaining to fishing, including but not limited 
to species of fish that may be taken, seasons and hours during which 
fishing may take place, methods of taking, and size, bag and possession 
limits. In emergency situations, after consulting with the FWC, the 
Superintendent may impose temporary closures and establish conditions 
or restrictions for up to two thirty-day periods. In emergency 
situations where consultation in advance is not possible, the 
Superintendent will consult with the FWC within 24-hours of the 
initiation of closures or restrictions. This provision of such closures 
and restrictions is in furtherance of the park's enabling legislation, 
which identifies protection of fish and wildlife as a purpose of its 
establishment. The public will receive notice of such closures or 
restrictions by one or more of the methods listed in Sec.  1.7 of this 
chapter.
    Paragraph (b)(2) identifies which fish can be taken and the legal 
methods for taking these fish. Fishing is limited to fin fish caught by 
a closely attended hook-and-line, bait fish caught by hook-and-line, 
cast nets or dip nets, and shrimp caught by dip nets or cast nets. For 
the last 10 years, these restrictions have been enforced through the 
Superintendent's Compendium, which serves as a local management guide 
authorized by 36 CFR 1.5. The previous restriction in 36 CFR 
7.27(a)(5)(i), that limits cast nets to 12 feet in diameter, has been 
deleted. There appears to be no compelling ecological or environmental 
reason to restrict the size of the cast nets. This change would make 
the park's regulations consistent with state regulations.
    Paragraph (b)(3) identifies areas that are closed to fishing, 
including the RNA. Note, however, that paragraph (b)(3)(i) includes 
provisions that allow vessels to transit the RNA with legally harvested 
fish and fishing gear onboard. The provisions of paragraph (b)(3) are 
consistent with the regulations applicable to the adjacent TER within 
the FKNMS (15 CFR 922.164; Florida Administrative Code 68B-6.003). The 
other closed areas are the waters inside the Garden Key moat that 
surrounds Fort Jefferson and those within the designated swimming and 
snorkeling area. Fishing in these areas has been found to be 
incompatible with the identified visitor activities of boating, 
swimming and snorkeling, and for safety reasons in the helicopter-
landing zone.
    Paragraph (b)(4) identifies specific prohibitions on fishing within 
the park. This paragraph lists certain fishing practices that differ 
from those allowed under State of Florida regulations because these 
practices are incompatible with the goals and management direction of 
the park.
    Paragraph (b)(4)(i) provides for complete protection of lobster 
within the park. All existing regulations found in 36 CFR 7.27(a)(2) 
related to recreational fishing catch limits for lobster, have been 
deleted. Prohibiting individuals from being in the water when they have 
lobster onboard their vessel will further enhance the protection of 
park resources. This ``prima facie'' (at first view) evidence of 
violation is similar to the state of Florida regulations for the 
Biscayne Bay/Card Sound Spiny Lobster Sanctuary (FAC 68B-11.004), and 
for John Pennecamp Coral Reef State Park (FAC 68B-24.005). In Dry 
Tortugas National Park, the harvesting of lobster has been previously 
prohibited through the use of the Superintendent's authority to 
regulate public use under 36 CFR 1.5. This prohibition was based on 
data collected by NPS biologists in a 1975 study, which indicated that 
legal harvesting was removing almost 90% of the lobster within the 
park. The Gulf of Mexico Fisheries Management Council concurred with 
this finding and recommended that the park be established as a 
sanctuary for lobster to assist in maintaining a population for 
dispersal to areas outside the park.
    The proposed regulations in paragraph (b)(4)(ii), concerning 
possession and use of spearguns and other weapons are similar to 
regulations for the ecological reserves and sanctuary preservation 
areas found within the FKNMS (15 CFR 922.164). The State of Florida has 
similar regulations restricting spearfishing activities found in FS 
370.172. This proposed regulation expands on the current regulation, 36 
CFR 7.27(a)(7), to include guns, bows and other similarly powered 
weapons. Paragraph (b)(4)(iii) recognizes that a gaff is a common 
fishing device used to retrieve legally taken fish from the water, 
while identifying other prohibited fishing devices.
    Although all natural resources within a national park area are 
protected from removal, disturbance, injury, or destruction by the 
general regulations found at 36 CFR 2.1, the provision at paragraph 
(b)(4)(iv) clarifies that ornamental tropical fish as well as all other 
forms of marine life within Dry Tortugas National Park are specifically

[[Page 76161]]

protected. This additional level of protection will help achieve the 
congressional direction to protect a pristine subtropical marine 
ecosystem, including an intact coral reef community.
    The intent of (b)(4)(v) is to protect coral and other submerged 
resources from damage or injury by prohibiting the dragging or trawling 
of nets that are otherwise allowed to be used in the park.
    Paragraph (b)(4)(vi) prohibits the use of nets, other than dip or 
cast nets. The State of Florida general recreational fishing 
regulations allow other nets (bully nets, frame and push nets, beach or 
haul seines) which are inappropriate and harmful to various submerged 
resources in the park.
    Current regulations pertaining to sea turtles and conch found in 36 
CFR 7.27(a)(1) and (3) have been deleted as unnecessary. The State of 
Florida has prohibited the taking of conch since 1985 and the general 
NPS regulations already adopt all non-conflicting state laws. Because 
all sea turtles are currently listed as endangered or threatened 
species under the Endangered Species Act (16 U.S.C. 1538), it is 
unnecessary to duplicate prohibitions on their taking in these 
regulations.
    Consistent with 36 CFR 5.3, paragraph (b)(4)(vii) requires that all 
fee-for-service guides (including guides for fishing and diving) obtain 
a permit or other NPS approved commercial use authorization. This 
permit system allows the park to better manage the fisheries and other 
park resources. The Superintendent may limit the number of permitted 
guides within the park in order to conserve park resources and enhance 
the visitor experience.

(c) Are there any areas of the park closed to the public?

    Yes. Paragraph (c) identifies areas that will be closed to public 
access. The Long/Bush Keys coral patch has been identified by 
biologists as ``fused'' staghorn (Acropora prolifera), a very rare 
hybrid of staghorn and elkhorn corals. This coral patch is threatened 
by a disease that is devastating staghorn and elkhorn coral in Biscayne 
National Park and the FKNMS. The elkhorn coral (Acropora palmata) patch 
also located in this area is the only remaining community of elkhorn 
coral found in the park. Elkhorn coral assemblages were once very 
abundant in the park, occupying about 440,000 square meters in 1881. 
Today this only known remaining elkhorn stand covers only a few hundred 
square meters. The NMFS has recently designated elkhorn and staghorn 
coral as ``threatened species'' under the Endangered Species Act. (May 
9, 2006, 71 FR 26852).
    Hospital and Long Keys have been closed for the last 10 years 
pursuant to the Superintendent's compendium authority under 36 CFR 1.5. 
The largest remaining breeding colony of Magnificent Frigate birds in 
the United States lives on Long Key. The threatened Masked Booby and 
other sea birds live and breed on Hospital Key. Seasonal closures of 
Bush Key, East Key and portions of Loggerhead Key for turtle and bird 
nesting may continue to be designated through the Superintendent's 
compendium pursuant to 36 CFR 1.5, 1.7.

(d) Is Loggerhead Key open to the public?

    Loggerhead Key will be open to the public subject to closures in 
certain areas and restrictions on certain activities. Loggerhead Key is 
the largest key in the park and contains an operating 150-foot 
lighthouse and other structures. Most of the island falls within the 
RNA; however, the center portion, containing the lighthouse and the 
other structures, falls within a historic preservation/adaptive use 
zone. Paragraph (d) is consistent with the FGMPA ROD provision to 
manage access and recreational activities on Loggerhead Key. To protect 
the natural and cultural resources of the island, as well as providing 
appropriate visitor experiences, the Superintendent may impose terms 
and conditions on activities as necessary. The public will be notified 
of any such requirements through one or more of the methods listed in 
Sec.  1.7 of this chapter. Such terms and conditions include, but are 
not limited to: docking, hiking restrictions, beach and swimming 
access, and other restrictions or closures necessary to conserve the 
natural and cultural resources of the island.

(e) Are there restrictions that apply to anchoring a vessel in the 
park?

    Paragraph (e) addresses anchoring locations in general and 
anchoring prohibitions in the RNA. In the past, boaters have commonly 
anchored in sea grass beds and rubble bottom, which has resulted in 
unacceptable impacts to park resources. By restricting anchoring to 
authorized locations and prohibiting anchoring in all other areas, 
except in emergencies, degradation to coral reefs and seagrass meadows 
will be significantly reduced. Paragraph (e)(2) requires vessels to use 
mooring buoys in the RNA. The RNA requires a higher level of protection 
for the marine ecosystem; thus the use of anchors in this area is 
prohibited.
    Paragraph (e)(3) specifies where vessels can anchor. The 
``designated anchorage'' identified in the existing 36 CFR 7.27(b) is 
also revised to reflect the GMPA's management zone which calls for 
limiting anchorage of vessels from sunset to sunrise to the historic 
preservation/adaptive use zone around Garden Key. This ``designated 
anchorage'' is any sand bottom within one nautical mile of the Fort 
Jefferson Harbor Light.
    Paragraph (e)(4) imposes restrictions on anchoring by commercial 
fishing and shrimping vessels consistent with U.S. Coast Guard 
regulations found in 33 CFR 110.190.

(f) What vessel operations are prohibited?

    This paragraph addresses several issues of unsafe or otherwise 
prohibited vessel operations. The Fort Jefferson moat is closed to 
vessels to preserve and protect the historic scene and prevent damage 
to the structures. Vessel use in the moat could damage the walls of the 
fort and the integrity of the moat wall. Because of the large volume of 
vessel traffic in and around the Garden Key and Bird Key harbors, 
vessels are required to operate at a flat wake speed to prevent injury 
and damage resulting from boat wakes.

(g) What are the regulations regarding the discharge of materials in 
park waters?

    Paragraph (g) provides additional protection for water quality 
within the park by generally prohibiting the discharge or deposit of 
any material or substance in park waters. The NPS wishes to maintain 
the highest possible water quality, free of bacterial and chemical 
contamination, for health and safety reasons as well as to maintain the 
park's environment. Paragraph (g)(1)(i) prohibits the discharge of any 
materials or other matter within the Research Natural Area with the 
only exception being for cooling water or engine exhaust. This 
regulation is identical to NOAA discharge regulations for the adjacent 
Tortugas Ecological Reserve at 15 CFR 922.164(d)(1)(i).
    Paragraph (g)(1)(ii) allows for limited discharges from vessels, 
(gray water, deck wash water, cooling water, engine exhaust and oil-
free bilge water), and some natural substances (fish parts) in park 
waters outside the Research Natural Area. The NPS recognizes that these 
discharges would have minimal impact on water quality and are 
consistent with the recreational fishing and anchoring activities 
authorized in

[[Page 76162]]

these zones. These regulations are similar to NOAA discharge 
regulations for the FKNMS at 15 CFR 922.163.
    To address future issues regarding the discharge of materials or 
substances in park waters, paragraph (g)(2) authorizes the 
Superintendent to impose further restrictions as necessary to protect 
park resources, visitors, or employees. The public will be notified of 
any changes through one or more methods listed in Sec.  1.7 of this 
chapter.

(h) What are the permit requirements in the park?

    Paragraph (h) requires that individuals obtain a permit to take 
part in any recreational activity occurring from a vessel within park 
boundaries. Permits may be issued in writing or be provided by oral 
(radio or telephone) authorization. Permitted activities may include 
snorkeling, diving, wildlife viewing, photography, and the use of 
mooring buoys. In the RNA, no permits will be issued for anchoring or 
fishing, both of which are expressly prohibited in this zone. However, 
a permit is not required for vessels merely transiting the park without 
stopping to engage in research or recreational activities. All research 
conducted in the park requires a permit. In the RNA, permits will only 
be issued for non-manipulative research (i.e., that which does not 
alter the existing condition).

(i) How are coral and other underwater features protected in the park?

    The coral formations within the park are internationally recognized 
as unique and significant. Public Law 102-525 requires protection of 
the ``pristine subtropical marine ecosystems, including an intact coral 
reef community.'' Accordingly, this rule provides new provisions for 
the protection of corals. Significant damage to coral can be caused by 
divers or snorkelers handling or standing on coral, especially in areas 
of heavy use. In this rule, the NPS hopes to better protect the 
resources by specifically prohibiting these actions, thereby resulting 
in persons being responsible for any damage that occurs to coral 
through contact with their body or their equipment, such as fins, SCUBA 
tanks, gauges, or cameras. Language is also included to prohibit taking 
or removing corals and live rock. Coral damage caused by vessels is 
often attributed to carelessness of vessel operators but can be avoided 
through more careful vessel operation. This rule makes vessel operators 
responsible for preventing damage to corals by their vessels. These 
last two provisions are similar to regulations in the adjacent FKNMS 
(15 CFR 922.163).
    Paragraph (i)(3) makes vessel operators responsible for any damage 
to coral, seagrass or any other underwater feature caused by their 
anchors or anchor parts. This is to prevent damage to fragile resources 
and assure the highest level of resource protection.

(j) What restrictions do I need to know when on or near shipwrecks 
found in the park?

    Paragraph (j) provides specific protection for wrecked or abandoned 
craft and their cargo. Dry Tortugas National Park possesses one of the 
greatest concentrations of historically significant shipwrecks in North 
America, with some dating back to the 1600's. Within the park boundary, 
there have been more than 275 documented maritime casualties 
(shipwrecks, groundings, strandings), and human activity has left a 
significant historical record. Protection of submerged cultural 
resources is a park priority, as well as a management purpose 
identified in Public Law 102-525. Consistent with the park's statutory 
mandate, this rule will provide specific protection for these cultural 
resources in addition to protections provided by applicable law.

(k) Can aircraft land in the park?

    Paragraph (k) requires the Superintendent to manage aircraft 
operations by requiring users to obtain a permit to land seaplanes in 
the park. Seaplanes provide transportation for a significant number of 
park visitors. The NPS's general regulation at 36 CFR 2.17 authorizes 
the Superintendent to designate, through a special regulation, 
operating/landing locations within the park. It also prohibits aircraft 
from operating under power within 500 feet of swimming beaches, boat 
docks, or piers unless designated through a special regulation. In 
order to reach the designated ramp for discharging passengers, 
seaplanes must taxi within 500 feet of dock areas. This paragraph 
specifies that a landing or takeoff may not be made within 500 feet of 
Garden Key or 500 feet of any area designated as closed (e.g., Bush Key 
when it is closed for wildlife nesting), but taxiing is allowed when 
seaplane use is permitted. The existing regulations use a 300 yard 
limit for approaches, landings and takeoffs. The new limit of 500 feet 
will also bring these regulations in line with the general aircraft 
regulations provision of 500 feet.

Compliance With Other Laws

Regulatory Planning