Flower Garden Banks National Marine Sanctuary Regulations, 25060-25070 [2012-10093]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 82 (Friday, April 27, 2012)]
[Rules and Regulations]
[Pages 25060-25070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10093]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 100222109-2171-02]
RIN 0648-AY35


Flower Garden Banks National Marine Sanctuary Regulations

AGENCIES:  Office of National Marine Sanctuaries (ONMS), National 
Oceanic and Atmospheric Administration (NOAA), Department of Commerce 
(DOC).

ACTION: Final rule; Public availability of final management plan and 
environmental assessment.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
amending the regulations for Flower Garden Banks National Marine 
Sanctuary to improve vessel and user safety, protect sanctuary 
resources from user impacts, clarify discharge language, and make other 
technical changes and corrections.

DATES: Effective Date: May 29, 2012.

ADDRESSES: Copies of the final management plan (FMP) and environmental 
assessment (EA) described in this rule and the Finding of No 
Significant Impact (FONSI) are available upon request to Flower Garden 
Banks National Marine Sanctuary, 4700 Avenue U, Building 216, 
Galveston, TX 77551. The FMP and EA can also be viewed on the Web and 
downloaded at https://flowergarden.noaa.gov.

FOR FURTHER INFORMATION CONTACT: George Schmahl, Superintendent, Flower 
Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, 
Galveston, TX 77551. Email: fgbmanagementplan@noaa.gov. Phone: (409) 
621-5151.

SUPPLEMENTARY INFORMATION:

I. Background

    The National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce (Secretary) to designate and 
protect as a national marine sanctuary areas of the marine environment 
that are of special national significance due to their conservation, 
recreational, ecological, historical, scientific, cultural, 
archeological, educational, or esthetic qualities. Day-to-day 
management of national marine sanctuaries has been delegated by the 
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The 
primary objective of the NMSA is to protect sanctuary resources, such 
as coral reefs, and cultural resources, such as historical shipwrecks, 
historic structures, and archaeological sites.
    NOAA designated Flower Garden Banks National Marine Sanctuary 
(FGBNMS or sanctuary) on December 5, 1991 (56 FR 63634). Congress 
subsequently passed a law recognizing the designation in January 1992 
(Pub. L. 102-251, Title I, Sec. 101). At the time, the Sanctuary 
consisted of two areas known as East and West Flower Garden Banks (56 
FR 63634). Congress later added Stetson Bank in 1996 (Pub. L. 104-283).
    These three areas are located in the northwestern Gulf of Mexico 
and are described as underwater hills formed by rising domes of ancient 
salt. The sanctuary ranges in depth from 55 feet to nearly 500 feet, 
providing conditions that support several distinct habitats, including 
the northern-most coral reefs in the continental United States. These 
and similar formations throughout the northern Gulf of Mexico provide 
the foundation for essential habitat for a variety of species. The 
combination of location and geology makes the sanctuary an extremely 
productive and diverse ecosystem, but it also presents a unique set of 
challenges for managing and protecting its natural wonders.
    The FGBNMS regulations implementing the sanctuary were first 
published on December 5, 1991 (56 FR 63634). Those regulations became 
effective on January 18, 1994 (58 FR 65664). Among other things, the 
regulations set forth the sanctuary boundaries, prohibit a relatively 
narrow range of activities, and establish permit and certification 
procedures. The regulations were revised in December 2000 to add 
Stetson Bank to the boundary pursuant to Public Law 104-283 (65 FR 
81176). NOAA amended the FGBNMS regulations again in 2001 (66 FR 58370) 
to conform to the regulations adopted by the International Maritime 
Organization and prohibit all anchoring in the sanctuary and restrict 
mooring to vessels 100 feet (30.48 meters) or shorter.
    The ONMS is required by NMSA Section 304(e) to periodically review 
sanctuary management plans to ensure that sanctuary management 
continues to best conserve, protect, and enhance the sanctuaries' 
nationally significant living and cultural resources. Management plans 
generally outline regulatory goals, describe boundaries, identify 
staffing and budget needs, and set priorities and performance measures 
for resource protection, research, and education programs. The plans 
also guide the development of future management activities.
    The FGBNMS management plan review process began in the fall of 2006 
with the release of the Flower Garden Banks National Marine Sanctuary 
State of the Sanctuary Report. At the outset, NOAA held a series of 
public meetings to obtain information about the public's interests and 
priorities for FGBNMS management (71 FR 52757; September 7, 2006). NOAA 
then worked with the FGBNMS Advisory Council to prioritize issues and 
develop appropriate management strategies and activities for the 
preparation of a draft revised management plan. Based on this input, 
NOAA prepared a revised management plan consisting of six action plans: 
Sanctuary expansion, education and outreach, research and monitoring, 
resource protection, visitor use, and operations and administration. 
Because the resource protection and visitor use action plans include 
several strategies that require changes to the FGBNMS regulations, NOAA 
sought to amend the regulations for the sanctuary. Pursuant to the 
National Environmental Policy Act, 42 U.S.C. 4331-4345 (NEPA), NOAA 
also prepared a programmatic environmental assessment to analyze the 
environmental impacts associated with the proposed management plan 
revision and proposed rule. On October 22, 2010, the proposed rule, 
draft management plan, and programmatic environmental assessment were 
released for 90-day public review and comment (75 FR 65256).
    NOAA is now amending the FGBNMS regulations to reflect these new 
strategies. The changes address: Potential conflicts between vessels 
and divers; protection of rays and whale sharks; and discharges and 
deposits. The changes also eliminate outdated references to paragraphs 
that no longer exist, update cross references to other paragraphs, and 
establish definitions for various new terms adopted in this rulemaking.

II. Summary of the Revisions

    This rulemaking:
    1. Requires any vessel moored in the sanctuary to exhibit the blue 
and white International Code flag ``A'' (``alpha'' dive flag) or red 
and white ``sports diver'' flag whenever a SCUBA diver from that vessel 
is in the water and

[[Page 25061]]

remove the ``alpha'' dive flag or ``sports diver'' flag after all 
divers exit the water and return on board the vessel, consistent with 
U.S. Coast Guard guidelines relating to sports diving as contained 
within ``Special Notice to Mariners'' (00-208) for the Gulf of Mexico;
    2. Clarifies and updates the prohibition on discharges or deposits 
of any material or other matter;
    3. Prohibits killing, injuring, attracting, touching, or disturbing 
a ray or whale shark; and
    4. Makes technical corrections.

A. Dive Flag Requirements

    NOAA is requiring any vessel engaged in diving activity within the 
FGBNMS to clearly exhibit the blue and white International Code flag 
``A'' (``alpha'' dive flag) or the red and white ``sports diver'' flag 
whenever a SCUBA diver from that vessel is in the water and remove the 
``alpha'' dive flag or ``sports diver'' flag after all SCUBA divers 
exit the water and return on board the vessel. This is consistent with 
U.S. Coast Guard guidelines relating to sports diving as contained 
within ``Special Notice to Mariners'' (00-208) for the Gulf of Mexico. 
Specifically, the U.S. Coast Guard (USCG) requires any vessel in 
federal waters engaged in diving operations to use an ``alpha'' dive 
flag, when that vessel is of a size that makes it impracticable to 
exhibit all lights and shapes prescribed in USCG regulations (33 CFR 
83.27). However, the U.S. Coast Guard makes the distinction between 
diving operations where divers are attached to the vessel (i.e. surface 
supplied diving) vs. ``free swimming'' divers (i.e. SCUBA).
    In a ``Special Notice to Mariners'' (00-2008) for the Gulf of 
Mexico (``Special Notice to Mariners''), issued in 2009 (available 
online at: https://www.uscg.mil/d8/waterways/marinfo.asp), the U.S. 
Coast Guard encourages the use of the red and white ``sports diver'' 
flag for ``free swimming'' divers. The Special Notice to Mariners 
states, ``The Alpha flag is to be flown on small vessels engaged in 
diving operations whenever these vessels are restricted in their 
ability to maneuver if divers are attached to the vessel. But in sports 
diving, where divers are usually free swimming, the Alpha flag does not 
have to be shown and the Coast Guard encourages the continued use of 
the traditional sports diver flag. The distinction the Coast Guard 
wants to make clear is: The Alpha flag is a navigational signal 
intended to protect the vessel from collision. The sports diver flag is 
an unofficial signal that, through custom, has come to be used to 
protect the diver in the water. It is the responsibility of the 
operator of a diving vessel to determine if his craft's movements are 
restricted.''
    NOAA acknowledges that Federal law and policy strongly favor 
uniform rules wherever it is deemed practical and appropriate. Because 
the entire sanctuary is within federal waters, NOAA proposes to make 
the regulations consistent with USCG dive flag requirements.

B. General Discharge/Deposit Prohibition

    NOAA is updating and amending the prohibition on discharges or 
deposits (hereafter referred collectively as ``discharges'') in the 
FGBNMS regulations by: (1) Clarifying that the prohibition applies to 
discharges into the sanctuary as well as from within the sanctuary 
boundaries; (2) modifying the exception for the discharge of fish 
parts; (3) revising the exception for effluent from marine sanitation 
devices (MSDs); (4) requiring that MSDs be locked; (5) eliminating the 
word ``biodegradable'' and replacing that term with a more clear 
standard; and (6) clarifying the scope of the exception for discharges 
associated with ``routine vessel operation.''
    1. Clarification of a ``direct discharge.'' Since the sanctuary was 
designated in 1992, NOAA has prohibited discharges or deposits of 
material or other matter. In doing so, NOAA's regulations have 
differentiated between discharges that originate from within the 
boundaries of the sanctuary (hereafter referred to as ``direct 
discharges'') and those that originate from beyond the sanctuary 
boundaries, enter the sanctuary, and injure sanctuary resources. The 
primary difference between these two classes is that proof of injury is 
required with respect to the latter class for there to be a violation 
whereas no such proof is required for a violation arising from a direct 
discharge.
    To clarify the intended application of the direct discharge 
prohibition and to ensure consistency among the regulations for other 
sanctuaries, this rule clarifies that the prohibition on discharging or 
depositing any material or other matter applies to discharges or 
deposits from within ``or into'' the sanctuary.
    By adding the words ``or into'', NOAA is clarifying that the 
prohibition does not only apply to discharges originating in the waters 
of the sanctuary, the prohibition also applies, for example, to 
immediate discharges and deposits into the sanctuary from aircraft, 
when waste is thrown into the sanctuary from a vessel, or from other 
similar activities.
    This regulatory change will not have an effect on the existing oil 
and gas activities in the vicinity of the sanctuary. For example, the 
two existing platforms closest to the sanctuary are: (a) High Island 
384, located 0.26 miles (1373 feet) from the boundary of West Flower 
Bank; and (b) High Island 376, located 0.22 miles (1162 feet) from East 
Flower Garden Bank. Because of the distance between those platforms and 
the sanctuary boundaries, NOAA does not foresee that either platform 
would be impacted by the new rule because NOAA does not envision 
conditions that would enable a discharge from these platforms to be 
considered a direct discharge under sanctuary regulations and 
consequently violate 15 CFR 922.122(a)(3)(i).
    The purpose of the regulation is not to create new restrictions on 
otherwise lawful activities occurring beyond, but adjacent to, the 
sanctuary boundaries. Rather, NOAA's goal is to ensure consistency 
among the regulations of other sanctuaries and clarify the discharge 
and deposit regulations. Discharges or deposits originating from beyond 
the sanctuary would still remain subject to the regulations at Sec.  
922.122(a)(3)(ii), which requires proof of entry into the sanctuary and 
injury to sanctuary resources to constitute a violation.
    In the event NOAA decides to pursue sanctuary expansion (as 
described in the final management plan for the sanctuary, published 
concurrently with this rulemaking), NOAA will consider the need to 
revise this regulation and consult with stakeholders, including the oil 
and gas industry, to ensure adjacent activities are not unnecessarily 
affected.
    2. Exception for discharges of fish parts. The rule also clarifies 
that the exception to the prohibition on discharges or deposits 
(hereafter referred collectively as ``discharges'') for fish, fish 
parts, or chumming materials (bait) applies only to discharges made 
during the conduct of fishing with conventional hook and line gear 
within the sanctuary. This rule prevents the dumping of fish, fish 
parts, or chumming materials at all other times except for during 
fishing with conventional hook and line gear within the sanctuary.
    3. Exception for MSD effluent. This rule clarifies that the 
exception for discharge or deposit of vessel waste generated by a 
federally approved marine sanitation device was not intended to allow 
the discharge of untreated sewage (e.g., discharges from Type III MSDs) 
into the sanctuary. Type

[[Page 25062]]

I and Type II MSDs treat sewage, whereas Type III MSDs store sewage 
until it is removed at designated pump-out stations on shore or 
discharged at sea. Therefore, NOAA is modifying the FGBNMS regulations 
to clarify that only discharges of effluent from properly functioning 
Type I or II MSDs are allowed in the sanctuary.
    4. Locking MSDs. In addition, NOAA is requiring all MSDs be locked 
in a manner that prevents discharge or deposit of untreated sewage. The 
requirement that MSDs be locked (e.g., locking closed an overboard 
discharge valve) helps prevent both intentional and unintentional 
overboard discharges of untreated sewage within the sanctuary.
    5. Standard for excepted discharges or deposits. The revised 
regulations would only allow a vessel to discharge clean effluent from 
a Type I or Type II MSD. The use of the word ``clean'' would replace 
the use of the word ``biodegradable'' in the regulations. Under the 
revised regulations, ``clean'' means not containing detectable levels 
of harmful matter; and ``harmful matter'' means any substance, or 
combination of substances, that because of quantity, concentration, or 
physical, chemical, or infectious characteristics may pose a present or 
potential threat to sanctuary resources or qualities, including but not 
limited to: Fishing nets, fishing line, hooks, fuel, oil, and those 
contaminants (regardless of quantity) listed at 40 CFR 302.4 (Sec.  
922.131) pursuant to the Comprehensive Environmental Response, 
Compensation, and Liability Act, as amended (42 U.S.C 9601(14)).
    NOAA decided to remove the term ``biodegradable'' from the 
regulations because NOAA has determined that the term has no recognized 
legal definition, and products are labeled ``biodegradable'' without 
reference to a fixed set of standards. NOAA could define the term; 
however, it would not be reasonable to expect a vessel operator to know 
which of the wide spectrum of products labeled as ``biodegradable'' 
meet NOAA's definition. Defining the terms ``clean'' and ``harmful 
matter'' provide vessel operators with a definition of what is 
prohibited, and focuses on the types of contaminants that pose the 
greatest threat to water quality within the sanctuary.
    6. Scope of discharges or deposits from routine vessel operations. 
NOAA is replacing the exception for ``water generated from routine 
vessel operations'' with an exception for clean deck wash down, clean 
cooling water, and clean bilge water provided they are free of 
detectable levels of ``harmful matter'' as defined by the regulations. 
This facilitates compliance by clearly identifying what types of 
discharges from routine vessel operations are allowed, and focusing on 
those contaminants that pose the greatest threat to water quality. The 
requirement also makes the regulations consistent with recent 
requirements governing other national marine sanctuaries.

C. Killing, Injuring, Attracting, Touching or Disturbing a Ray or Whale 
Shark

    Approximately 20 species of sharks and rays have been documented at 
the Flower Garden and Stetson Banks; some are seasonal, and others 
frequent the sanctuary year-round. During the winter months, spotted 
eagle rays (Aetobatus narinari) visit all three banks. The reason for 
the seasonal visits is unclear, but the occurrence is quite 
predictable. Summer months usually bring whale sharks (Rhincodon 
typus). These filter-feeding creatures can reach over 30 feet (9 
meters) in length. Manta rays (Manta birostris) and the very similar-
looking mobula rays (Mobula spp.) are regular visitors to the sanctuary 
throughout the year. At least 58 different individual manta rays have 
been documented and identified by distinctive markings on their 
undersides. Recent acoustic tracking of the manta rays has revealed 
that the mantas are moving between the three banks of the sanctuary.
    Whale sharks and rays are transient creatures and migrate between 
areas for feeding and mating. The sanctuary is a place where rays and 
whale sharks should be protected from human-induced death, injury, or 
other harm. Humans can physically harm rays and whale sharks by 
attracting, touching, riding, or pursuing these animals. Their external 
sensory systems are affected by unnatural activation, which has unknown 
consequences on their ability to sense their environment. These animals 
may actively avoid diver interaction by changing direction or diving, 
and may exhibit violent shuddering. When these responses occur, rays 
and whale sharks expend energy in ways other than feeding and other 
natural activities, which can adversely affect their overall health. In 
addition, people can injure the skin of these animals through touching, 
and can expose the animals to other potential injuries. Finally, 
attracting rays and whale sharks changes their behavior and may 
negatively impact their health. As an example of how rays have been 
affected by divers, stingrays in the Cayman Islands have developed 
shoaling behavior and altered feeding habits, as well as exhibit skin 
abrasions from handling. Scientific citations regarding the concerns 
and examples here can be found in the references section of the 
environmental assessment (see ADDRESSES for instructions on obtaining a 
copy).
    Rays and whale sharks are not listed under the Endangered Species 
Act (ESA). These species are also not designated as depleted under the 
Marine Mammal Protection Act (MMPA) because they are not mammals. 
Therefore, they are not protected in the same manner as threatened or 
endangered species protected under the ESA or depleted marine mammals 
protected under the MMPA. With this final rule, NOAA is strengthening 
the protection of rays and whale sharks from harm (or likelihood 
thereof) in the sanctuary by prohibiting killing, injuring, attracting, 
touching, or disturbing these animals. The intent is to prevent 
intentional human interaction with rays and whale sharks in such a 
manner that the animals change direction, dive away from human 
interaction, shudder, or have any other adverse behavioral or physical 
reaction. An exception to this new prohibition is made for incidental 
by-catch of a ray or whale shark when using conventional hook-and-line 
fishing gear. In order to make this new prohibition as clear as 
possible, NOAA is adding definitions for the terms ``attract or 
attracting'' and ``disturb or disturbing a ray or whale shark'' in 
Sec.  922.121.

D. Technical Corrections

    NOAA is making a technical correction to eliminate the references 
in the regulations to Sec.  922.122(a)(4), because that clause no 
longer exists. This subparagraph references a specific prohibition on 
vessel anchoring activities that was eliminated from the FGBNMS 
regulations in 2001 (66 FR 58370).
    NOAA also is updating cross references in Sec.  922.122(c) through 
(g) and updating cross references in Sec.  922.123(a) and (c) that may 
change as a result of the re-designation of paragraphs associated with 
this rule.
    Last, NOAA is amending the regulations to update the sanctuary 
office address in Sec.  922.123(b). The sanctuary office moved from 
Bryan, TX to Galveston, TX in 2006, and the regulations were not 
amended immediately following the move.

III. Differences Between the Proposed Rule and the Final Rule

    The Administrative Procedure Act (APA) notice-and-comment process 
(5 U.S.C. 553) contemplates that changes may be made to the proposed 
rule without triggering an additional round

[[Page 25063]]

of public notice and comment so long as the changes are ``in character 
with the original scheme'' and are of a type that could have been 
reasonably anticipated by the public (i.e., a logical outgrowth of the 
proposal or comments received) (Foss v. National Marine Fisheries 
Service, 161 F.3d 584, 591 (9th Cir. 1998); Chemical Mfrs Ass'n v. 
United States Environmental Protection Agency, 870 F.2d 177 (5th Cir. 
1989). In addition, the APA provides exceptions to notice and comment 
rulemaking for ``(A) interpretive rules, general statements of policy, 
or rules of agency organization, procedure, or practice; or (B) when 
the agency for good cause finds * * * that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest'' (5 U.S.C. 553(b)). The proposed rule text published in 
October 2010 (75 FR 65256) and this final rule, including the bases for 
changes, are summarized as follows:
    A. NOAA is amending the ``alpha'' dive flag requirement (proposed 
as Sec.  922.122(a)(2)(iii)). The proposed rule published in October 
2010 only required the use of the ``alpha'' flag (75 FR 65256). In this 
final rule, NOAA is requiring any vessel engaged in diving activity 
within the FGBNMS to clearly exhibit the blue and white International 
Code flag ``A'' (``alpha'' dive flag) or the red and white ``sports 
diver'' flag whenever a SCUBA diver from that vessel is in the water 
and remove the ``alpha'' dive flag or ``sports diver'' flag once all 
SCUBA divers exit the water and return on board the vessel. This is 
consistent with U.S. Coast Guard guidelines relating to sports diving 
as contained within ``Special Notice to Mariners'' (00-208) for the 
Gulf of Mexico. NOAA is making this change in the final rule to ensure 
consistency with the U.S. Coast Guard regulations and the Special 
Notice to Mariners (available online at: https://www.uscg.mil/d8/waterways/marinfo.asp). NOAA views the change in the final rule as a 
logical outgrowth of the originally proposed rule.
    B. NOAA is amending the definition for ``disturb or disturbing a 
ray or whale shark''. NOAA received many public comments requesting a 
change to the definition proposed in the Notice of Proposed Rulemaking 
published in 75 FR 65256. The public was mainly concerned that under 
the definition (as originally proposed) a violation could arise if the 
animal initiated interaction or if the animal exhibited some natural 
behavioral traits (like shuddering) without provocation. That was not 
NOAA's intent. Therefore, in response to these comments, the final rule 
clarifies that behavioral responses by the animal produced by passive 
interaction with a human does not constitute a violation of the 
regulations. NOAA is only concerned with active human conduct that 
disturbs a ray or whale shark, through (but not limited to) touching, 
handling, riding, pursuing, chasing, hunting, or restraining the 
animal.
    C. NOAA is creating a new exception for the prohibition on killing, 
injuring, attracting, touching or disturbing a ray or whale shark. 
Public comments received by NOAA indicate that some small rays such as 
sting rays can sometimes be caught as by-catch by lawful hook-and-line 
fishing. NOAA's intention with this new regulation was not to impose 
restrictions on users of conventional hook and line gear, as the 
species of rays and whale sharks NOAA is concerned about protecting 
would not be likely by-catch of hook and line recreational fishing. By 
adding an exception for the use of conventional hook and line gear, 
NOAA clarifies that the prohibition on killing, injuring, attracting, 
touching or disturbing rays and whale sharks does not apply to 
incidental by-catch during lawful fishing in the sanctuary.
    D. NOAA is amending the regulations to update the sanctuary office 
address in Sec.  922.123(b). The sanctuary office moved from Bryan, TX 
to Galveston, TX in 2006, and the regulations were not amended 
immediately following the move. NOAA finds good cause to change the 
address because the public must be able to contact the office for 
permit applications and other reasons, and the modification is exempt 
from normal notice and comment procedures since it is a minor technical 
change affecting current agency organization or practice.
    E. NOAA is amending Sec.  922.122(a)(4) to clarify that the only 
exception to the prohibition on drilling into, dredging or otherwise 
altering the seabed is for activities conducted in areas of the 
sanctuary outside the no-activity zones and incidental to exploration 
for, development of, or production of oil or gas in those areas (Sec.  
922.122(c)). The original regulatory language provided a broad 
exception for anchoring; however, this was rendered obsolete with the 
promulgation of the anchoring prohibition in 2001 (66 FR 58370). Since 
the only anchoring currently allowed in FGBNMS pertains to Sec.  
922.122(c), NOAA finds good cause to clarify the regulations. NOAA 
views this as a technical change and logical outgrowth of the 2001 
rulemaking. This change does not alter the intent of the regulations, 
nor is it expected to substantially impact any users of the sanctuary 
since the existing anchoring prohibition in FGBNMS has been in effect 
for more than a decade; therefore, no changes were made to the 
environmental assessment associated with this rulemaking and additional 
notice and comment is not required under the APA.
    For ease of reference and understanding, NOAA is reprinting section 
922.122 as it would read in its entirety as amended, and section 
922.123(a) through (c), rather than printing individual, editorial 
instructions to the Federal Register. Except as noted above, there are 
no additional changes to the sections from the proposed rule.

IV. Responses to Public Comments

    The National Oceanic and Atmospheric Administration (NOAA) 
conducted two public hearings to gather input on the FGBNMS draft 
management plan (DMP)/programmatic environmental assessment (PEA) and 
proposed rule during the public comment period from October 22, 2010 to 
January 20, 2011. All written and verbal comments received during the 
public comment period were compiled and grouped into eight categories. 
Similar comments from multiple submissions have been treated as one 
comment for purposes of response. NOAA considered all comments 
(including editorial comments on the DMP/PEA) and, where appropriate, 
made changes that are reflected in this final rule, the final 
management plan (FMP), and the programmatic environmental assessment 
(EA). Substantive comments received are summarized below, followed by 
NOAA's response.

Sanctuary Expansion

    Comment 1. Sanctuary expansion is not necessary because the 
proposed reefs and banks have relatively low visitation by scuba divers 
and fishers compared to other sanctuaries. Are there other ways to 
protect additional reefs and banks in the Gulf of Mexico without 
sanctuary expansion?
    The National Marine Sanctuaries Act (NMSA) authorizes the Secretary 
of Commerce to designate and protect areas of the marine environment 
with special national significance due to their conservation, 
recreational, ecological, historical, scientific, cultural, 
archeological, educational, or esthetic qualities as national marine 
sanctuaries. It is this concept of special places that persuades us to 
protect and enhance certain marine areas, even before impacts occur or 
without immediate

[[Page 25064]]

pressures on the resource. Sanctuary expansion would allow other reefs 
and banks in the northwestern Gulf of Mexico to benefit from 
comprehensive management, something currently not available by other 
means.
    The sanctuary expansion action plan does not make any determination 
regarding the various options for expanding the sanctuary or 
regulations within expansion areas. The action plan only lays out the 
framework for conducting a thorough environmental review required by 
NEPA and NMSA. Alteration to the boundaries of FGBNMS (or expanding the 
sanctuary) would necessitate a change to the FGBNMS terms of 
designation, regulations, and coordinates. Should NOAA decide to pursue 
boundary expansion, NOAA would prepare a draft environmental impact 
statement (DEIS) and conduct extensive public review.
    Other means of protecting additional reefs and banks in the Gulf of 
Mexico include, for example, No Activity Zones managed by the Bureau of 
Ocean Energy Management (BOEM) or Habitat Areas of Particular Concern 
managed by NOAA's National Marine Fisheries Service. These kinds of 
conservation measures have specific purposes and are not designed to 
address the need to protect an ecosystem from a holistic perspective.
    Comment 2. The public should not have limited access to and use of 
potential new sanctuary areas. Regulations in any new sanctuary areas 
should not prohibit fishing and diving.
    This final rule does not expand any area of the Sanctuary. NOAA has 
yet to determine potential areas to be added to the sanctuary or what 
regulations are needed in possible new expansion areas. The management 
plan states that new areas would be subject to the regulations of the 
current sanctuary, which generally allow fishing and diving; however, 
site specific regulations may be appropriate. The current FGBNMS 
management plan would apply or a new management plan would be written 
and applied to any new areas. Should NOAA decide to pursue boundary 
expansion, NOAA would prepare a DEIS and conduct extensive public 
review.
    Comment 3. NOAA has not conducted socioeconomic studies to support 
sanctuary expansion or research only areas.
    Activity 1.1 of the sanctuary expansion action plan in the final 
management plan states that NOAA will develop a DEIS to evaluate 
alternatives for incorporating additional reefs and banks in the 
northwestern Gulf of Mexico into FGBNMS. The DEIS will discuss the 
consequences of sanctuary expansion on the human environment or the 
socioeconomic resources of the region. The socioeconomic impact 
analysis will focus on the industries/user groups that depend on the 
resources of the current FGBNMS and the banks currently being evaluated 
for inclusion in FGBNMS through sanctuary expansion.
    Comment 4. If sanctuary expansion occurs, NOAA should install 
mooring buoys at all new sites to enhance fishing and diving activities 
as anchoring would be prohibited.
    NOAA agrees that mooring buoys are a useful tool to promote 
sanctuary use that is compatible with resource protection. Activity 3.1 
of the visitor use action plan in the final management plan proposes to 
create a mooring buoy plan that will evaluate the need for additional 
buoys, both in the existing sanctuary and in the event any new areas 
are considered in a sanctuary expansion process. The sanctuary 
expansion action plan does not make any determination regarding the 
various options for expanding the sanctuary or regulations within 
expansion areas. The action plan only lays out the framework for 
conducting a thorough environmental review required by NEPA and NMSA. 
Alteration to the boundaries of FGBNMS (or expanding the sanctuary) 
would necessitate a change to the FGBNMS terms of designation, 
regulations, and coordinates. Should NOAA decide to pursue boundary 
expansion, NOAA will prepare a draft environmental impact statement 
(DEIS) and conduct extensive public review. NOAA has yet to determine 
the areas to be potentially added to the sanctuary or what regulations 
are needed in possible new expansion areas. The management plan states 
that as an extension of the current sanctuary, it is assumed that if 
any areas are considered for future addition those new areas will be 
subject to the regulations of the current sanctuary; however, site 
specific regulations may be appropriate. The current FGBNMS management 
plan would apply or a new management plan would be written and applied 
to any new areas. Should NOAA decide to pursue boundary expansion, NOAA 
would prepare a DEIS and conduct extensive public review.
    Comment 5. Designating new reefs and banks in the northwestern Gulf 
of Mexico as sanctuaries will increase visibility and activity by 
fishers and divers leading to increased impacts to the resources. 
Similarly, too much information about the habitats of the sanctuary and 
surrounding areas, and fishing sites, is provided on the FGBNMS Web 
site.
    The criteria for evaluation of potential new sites were based on 
the primary NMSA mandate of resource protection. The benefits of a 
comprehensive management approach offered by sanctuary designation 
could outweigh any risk that might exist from increased visibility and 
activity by fishers and divers. Should NOAA decide to pursue boundary 
expansion, NOAA will prepare a DEIS that would include an analysis of 
the potential impacts of increased visibility and visitation.
    Research results and information provided on both the FGBNMS Web 
site and the National Coastal Data Development Center (NCDDC) Web site 
are in the public domain and intended for use by sanctuary users and 
constituents. One of the purposes and policies of the NMSA is to 
enhance public awareness, understanding, appreciation, and wise and 
sustainable use of the marine environment, and the natural, historical, 
cultural, and archeological resources of the National Marine Sanctuary 
System. NOAA's goal is to make people aware of their impacts and give 
them the knowledge and skills to become good stewards of the sanctuary 
and the regional marine environment.

Fishing

    Comment 6. NOAA's gear prohibition for fish harvesting in FGBNMS 
should be reconsidered. The impact of spearfishing on the sanctuary 
environment is minimal. What research has been done to support the 
current prohibition and why is spearfishing not allowed in the 
sanctuary?
    NOAA is not proposing to change regulations associated with 
spearfishing, or any other type of fishing, at this time. If the 
boundary of FGBNMS is expanded, however, any regulations related to 
fishing, including spearfishing, would be evaluated through a public 
process for each new area under consideration.
    Spearfishing has been prohibited in FGBNMS since its designation in 
1992. The prohibition was due primarily to concerns raised by studies 
that demonstrated that spearfishing could be detrimental to fisheries 
resources through the selective removal of large predator species. 
Research conducted since sanctuary designation supports this concern 
and reinforces the rationale for a spearfishing prohibition. A summary 
of this research is available on the sanctuary Web site (https://flowergarden.noaa.gov).
    Comment 7. NOAA should allow boaters to carry stowed spearguns on

[[Page 25065]]

board vessels in FGBNMS to facilitate spearfishing in areas outside of 
the sanctuary before or after a sanctuary visit.
    Sanctuary regulations prohibit the possession of any type of 
fishing equipment (including spearguns), except for conventional hook 
and line gear, unless passing through without interruption. The reason 
for this restriction is related to the ability to reasonably enforce 
the regulation. It is difficult to enforce a spearfishing prohibition 
if the possession of spearfishing equipment is allowed in the 
sanctuary. If only the use of such equipment is prohibited, it would 
require that direct observation of spearfishing activity be made by a 
law enforcement entity. In a remote location such as FGBNMS, where the 
activity would occur 70-100 feet below the surface, enforcement by 
observation only would be nearly impossible. The existing regulation 
has been in effect since designation 20 years ago, and it has not 
resulted in undue restriction on visitor use and activity. Therefore, 
the regulation will remain as written. If expansion is considered in 
future analysis, when regulations are considered for any potential new 
areas to be added to the sanctuary, the use and possession of spearguns 
would be evaluated on an individual area basis.
    Comment 8. NOAA should limit the use of inappropriate fishing gear 
to protect sanctuary resources or prohibit fishing altogether in the 
existing sanctuary.
    National marine sanctuaries are managed by NOAA to protect and 
conserve their resources, and to allow uses that are compatible with 
resource protection. Current FGBNMS regulations limit fishing within 
the sanctuary to conventional hook and line gear. Fishing by use of any 
other gear, including spear guns, is prohibited.
    During the scoping process for the revised management plan and in 
response to the DMP, many commenters asked NOAA to consider closing all 
or portions of the FGBNMS to fishing. Although fishing pressure is 
perceived to be moderate, the impact on local fish populations is not 
well known at this time. The spatial resolution of fishing data is 
currently not precise enough to quantitatively assess fishing pressure 
within the sanctuary. The research and monitoring action plan and the 
visitor use action plan in the final management plan lay out strategies 
to obtain information that would allow NOAA to evaluate compatible uses 
of the sanctuary. In addition, Activity 2.3 of the resource protection 
action plan addresses the need for additional measures to protect 
resources from impacts associated with inappropriate fishing gear.
    Comment 9. NOAA has not presented evidence that further fishing 
restrictions are needed or that fish populations are declining. Why are 
fishing and diving impact studies necessary?
    At this time, NOAA is not proposing any regulations that would 
further restrict fishing activity.
    It is well documented that most fishery stocks for which there are 
stock assessments in the northern Gulf of Mexico have undergone or are 
still undergoing overfishing. Many species, such as snapper, some 
species of grouper, amberjack and others have declined significantly in 
the Gulf of Mexico since records have been kept. Although there are 
recent data to suggest that some species (such as red snapper) have 
shown limited recovery in population size, they are still much lower 
than historical levels. It is logical to assume that fish populations 
within FGBNMS have also been similarly affected by the general decline 
of fish stocks throughout the Gulf of Mexico. However, the data that do 
exist, such as fish landing survey information, have not been collected 
at a scale to adequately evaluate impacts on an area the size of the 
sanctuary. Therefore, NOAA believes that the fishing and diving impact 
studies would provide valuable information for the management of the 
sanctuary.

Diving

    Comment 10. Through multiple DMP proposals, NOAA is pursuing 
policies that seem to discourage recreational diving. The recreational 
dive community should be embraced and encouraged to assist with 
resource protection.
    ONMS embraces and welcomes diving at FGBNMS. The management 
strategies are not intended to discourage recreational diving within 
the sanctuary. Rather, NOAA is protecting the resource while enhancing 
visitor safety. Traditionally, recreational divers have been among the 
strongest supporters of the sanctuary--from leading the effort for 
sanctuary designation, to serving as naturalists onboard charter boats, 
to reporting observations when visiting the sanctuary. NOAA intends 
that the changes in sanctuary management will not diminish the 
recreational diver's experience. By working together with sanctuary 
users, especially recreational divers, NOAA can more effectively meet 
its goals and protect sanctuary resources.
    Comment 11. NOAA should adopt the ``Blue Star'' program for FGBNMS.
    The Blue Star program was established by Florida Keys National 
Marine Sanctuary management to recognize charter boat operators who 
promote responsible, sustainable, and educational diving and snorkeling 
practices. An activity to examine the implementation of the Blue Star 
program for FGBNMS was added to the Education and Outreach Action Plan 
(activity 3.3).

Ray/Whale Shark Regulations

    Comment 12. The proposed regulation prohibiting the disturbance of 
whale sharks and all species of rays is too broad. The prohibition 
should only apply to manta rays and whale sharks.
    There are a variety of ray species that utilize the habitats within 
FGBNMS. In addition to the giant manta, there are other pelagic (free 
swimming) ray species commonly observed, including at least two species 
of mobula (devil) rays, the spotted eagle ray, and the cownose ray. 
Several species of bottom-dwelling rays also live within the sanctuary, 
including the southern stingray and roughtail stingray. NOAA believes 
that all species of rays should be included in the regulation that 
prohibits disturbance. It has been demonstrated in other areas of the 
world that stingrays and other rays can be subject to negative 
disturbance from visitor activities. See the programmatic environmental 
assessment for additional detail and references regarding impacts on 
ray species in the FGBNMS.
    Comment 13. The proposed regulation to protect rays and whale 
sharks relies on a definition of ``disturb or disturbing a ray or whale 
shark'' that includes any activity that ``has the potential to 
disrupt.'' NOAA should revise this catch-all phrase in the definition 
which would potentially place every sanctuary visitor in violation of 
the proposed rule.
    NOAA agrees. The definition has been revised to address this 
concern and additional information has been added to the preamble.
    Comment 14. Using scientific studies from other locations (e.g. the 
Cayman Islands) to support regulations at FGBNMS is inappropriate 
because the interactions between sanctuary visitors and wildlife are 
different at the sanctuary than elsewhere. FGBNMS does not have heavy 
visitor use like other areas.
    The purpose of the reference to the Cayman Island study on 
stingrays was to provide an example of an area that is experiencing 
visitor use that may be having potentially detrimental impacts on a 
species of ray. It is not anticipated

[[Page 25066]]

or suggested that this particular issue is or will ever be a problem at 
FGBNMS. It is relevant, however, because stingrays are included in the 
proposed regulation for FGBNMS, and it clearly demonstrates that 
intense visitor activity can affect the behavior and health of a ray 
species, requiring management action to control potential impacts.
    Comment 15. NOAA has not demonstrated that divers are causing 
physical harm to rays and whale sharks. The proposed regulation is 
excessive.
    NOAA has supplemented the programmatic environmental assessment 
with additional information and references on the impacts of divers on 
rays and whale sharks.

Visitor Use

    Comment 16. The proposed dive flag regulation should include the 
use of the red and white diver down or ``sports diver'' flag, because 
it is more widely recognized by divers. The proposed regulation also 
appears to be inconsistent with the existing requirement for use of the 
alpha flag in the USCG navigation rules.
    NOAA agrees. The regulation has been revised to address this 
concern and make it consistent with USCG navigation rules.
    Comment 17. NOAA should implement a vessel registration system for 
FGBNMS. Access to the sanctuary could be controlled by issuing 
visitation permits.
    Although NOAA agrees that a vessel registration system would 
provide information on visitor use dynamics, establishing a visitation 
permitting system would be difficult. NOAA plans to evaluate the 
effectiveness of the voluntary registration system before considering a 
mandatory visitation permitting system. NOAA is gathering more 
information about sanctuary use and has asked visitors to use the 
voluntary trip report form available on the FGBNMS Web site. Activities 
1.1 and 1.2 of the visitor use action plan describe the need for and 
benefits of voluntary vessel registration and a visitor use monitoring 
program.
    Comment 18. NOAA should collaborate with other agencies and 
industry to increase enforcement efforts at FGBNMS. More enforcement is 
needed. Add surveillance equipment to platforms.
    NOAA agrees. Currently, enforcement of sanctuary regulations is 
done with support from the U.S. Coast Guard and NOAA's Office of Law 
Enforcement. NOAA plans to increase collaboration with those entities 
as well as the Texas and Louisiana state law enforcement agencies. 
Enforcement at the sanctuary is logistically difficult due to the 
distance from shore. NOAA recognizes that partnering with industry to 
place monitoring or surveillance equipment on the production platform 
that lies within current sanctuary boundaries could greatly enhance 
enforcement capabilities. Therefore, NOAA has added an activity to the 
resource protection action plan in the final management plan to 
consider this more thoroughly.

Discharge

    Comment 19. NOAA should prohibit all discharges within the 
sanctuary, including treated sewage.
    NOAA is not prepared to prohibit all discharges within the 
sanctuary at this time. Given the distance from shore, water depth, 
number and type of vessels currently operating in the area, and current 
scientific knowledge, NOAA feels that allowing clean discharges will 
provide adequate protection for sanctuary resources while still 
allowing compatible uses.
    Comment 20. The new language in the proposed rule that prohibits 
``discharging or depositing from within or into the sanctuary'' is too 
broad and open-ended and is cause for concern by the oil and gas 
industry, especially where entities are already permitted under a 
National Pollutant Discharge Elimination System (NPDES) general permit 
for the Gulf of Mexico.
    By adding the words ``or into'', NOAA is clarifying that the 
prohibition does not only apply to discharges originating in the 
sanctuary, the prohibition also applies, for example, to immediate 
discharges and deposits into the sanctuary from aircraft, when waste is 
thrown into the sanctuary from a vessel, or from other similar 
activities.
    This regulatory change will not have an effect on the existing oil 
and gas activities in the vicinity of the sanctuary. For example, the 
two existing platforms closest to the sanctuary are: (a) High Island 
384, located 0.26 miles (1373 feet) from the boundary of West Flower 
Bank; and (b) High Island 376, located 0.22 miles (1162 feet) from East 
Flower Garden Bank. Because of the distance between those platforms and 
the sanctuary boundaries, NOAA does not foresee that either platform 
would be impacted by the new rule because NOAA does not envision 
conditions that would enable a discharge from these platforms to be 
considered a direct discharge under sanctuary regulations and 
consequently violate 15 CFR 922.122(a)(3)(i).
    The purpose of the regulation is not to create new restrictions on 
otherwise lawful activities occurring beyond, but adjacent to, the 
sanctuary boundaries. Rather, NOAA's goal is to ensure consistency 
among the regulations of other sanctuaries. Discharges or deposits 
originating from beyond the sanctuary would still remain subject to the 
regulations at Sec.  922.122(a)(3)(ii), which requires proof of entry 
into the sanctuary and injury to sanctuary resources to constitute a 
violation.

Education and Outreach

    Comment 21. NOAA should build constituency and numbers of sanctuary 
advocates by increasing volunteer recruitment.
    NOAA agrees and recognizes the need for increased volunteer 
involvement. The strategy to increase public support and stewardship of 
the sanctuary in the final management plan (EO.3, activity 3.2) 
includes an activity to enhance the FGBNMS volunteer program. The 
planned addition of a volunteer coordinator (OA.1, activity 1.1), 
subject to budget allocations, would enable NOAA to fully develop the 
FGBNMS volunteer program.
    Comment 22. NOAA should establish outreach programs in coastal area 
communities other than Galveston. It should establish a presence in 
Louisiana near recommended sanctuary expansion areas.
    Due to limited budget for outreach, NOAA is currently focusing the 
majority of its sanctuary outreach efforts in the Galveston area in 
order to develop a strong local constituency in the region closest to 
the sanctuary. Nonetheless, NOAA agrees that outreach efforts should 
not be limited only to the Galveston area, and welcomes opportunities 
to work with partners throughout the region. For example, NOAA already 
has sanctuary outreach programs in the form of exhibits in the Audubon 
Aquarium of the Americas in New Orleans, LA, the Texas State Aquarium 
in Corpus Christi, TX and the Tennessee Aquarium in Chattanooga, TN. 
NOAA has also begun to develop avenues for communicating with fishermen 
and divers in Louisiana. In the event that the sanctuary is expanded to 
include banks off of Louisiana, education and outreach programs to 
reach that region would be developed at that time. The sanctuary 
expansion action plan does not make any determination regarding the 
various options for expanding the sanctuary or regulations within 
expansion areas. The action plan only lays out the framework for 
conducting a thorough environmental review required by NEPA and NMSA.

[[Page 25067]]

    Comment 23. Education and outreach programs should emphasize how 
human activities impact marine habitats and the benefits of marine 
reserves.
    NOAA education and outreach presentations, programs, and products 
routinely include information about human impacts on marine habitats. 
NOAA also recognizes the value and importance of educating people about 
a variety of marine management techniques, including marine reserves. 
For example, NOAA produces lesson plans and activities on topics such 
as watersheds and marine debris. In addition, information about human 
impacts is incorporated throughout the FGBNMS Web site.

Other

    Comment 24. The FGBNMS management plan should thoroughly address 
the potential risks to FGBNMS associated with oil and gas industry 
operations in the Gulf of Mexico. NOAA should consider additional 
regulations due to the potential impact of oil spills.
    The FGBNMS is located within one of the most heavily developed 
offshore oil and gas exploration areas in the world. The potential for 
impact to the marine environment of the Flower Garden Banks from an 
oil-related incident has been considered since before the area became a 
national marine sanctuary. Beginning in the 1970s, the Minerals 
Management Service (now reorganized into the Bureau of Ocean Energy 
Management (BOEM) and the Bureau of Safety and Environmental 
Enforcement (BSEE)), identified the Flower Garden Banks and many other 
reefs and banks of the northwestern Gulf of Mexico as areas that 
warranted special protection. They developed a set of requirements, 
called stipulations, to help minimize the threat of impact from 
offshore oil and gas activities (Reference: Notice to Lessees, NTL No. 
2009-G39, ``Biologically-Sensitive Underwater Features and Areas'', 
Effective Date: January 27, 2010). The earliest such stipulations were 
published in the Final Environmental Impact Statement for the Gulf of 
Mexico Outer Continental Shelf (OCS) lease sale 34 in May 1974. Since 
the time that these, and other stipulations, have been in place, they 
have shown to be very effective in protecting the sanctuary from 
routine operations associated with offshore oil and gas exploration and 
development.
    Planning for an appropriate response to an oil spill or other 
hazardous material release in the vicinity of the Flower Garden Banks 
is of the highest priority for the sanctuary. The Oil Pollution Act of 
1990 requires the U.S. Coast Guard to develop an Area Contingency Plan 
(ACP) for each region of coastal waters. NOAA continues to coordinate 
with the USCG on updating and refining the ACP for Texas and Louisiana 
offshore waters. In addition, NOAA will assist the USCG in the 
development of a specific sub-area contingency plan for oil spill 
response for the Flower Garden Banks National Marine Sanctuary area, as 
described in Activity 2.4 of the Resource Protection Action Plan.
    Prior to the Deepwater Horizon event in April 2010, which occurred 
slightly east of the northwestern Gulf of Mexico, there had not been a 
significant hydrocarbon spill or other incident in the region since the 
designation of FGBNMS. However, a similar incident could potentially 
occur in an area that would threaten the health of sanctuary resources. 
For that reason, NOAA is working closely with BOEM and EPA in 
reviewing, and revising, if necessary, environmental policies related 
to offshore oil and gas leasing and development to ensure the highest 
level of protection of sensitive biological communities.
    Given these existing various mechanisms geared toward protecting 
the FGBNMS from the disastrous effects of a potential oil spill, NOAA 
did not include a specific action plan on this topic in the revised 
management plan. Rather, staff effort will focus on continuing to 
coordinate with other agencies. Similarly, NOAA did not revise the 
sanctuary regulations. NOAA believes the current regulations in place 
addressing disturbance of the seafloor and discharges in the sanctuary 
are adequate at this time.
    Comment 25. Climate change is the biggest threat to sanctuary 
resources.
    NOAA recognizes that climate change is a potential threat to 
sanctuary resources. In 2010, NOAA finalized a Climate Strategy for 
national marine sanctuaries and implemented a ``Climate-Smart 
Sanctuaries'' Initiative. Language has been added to the operation and 
administration and education and outreach action plans to incorporate 
various aspects of this initiative. In addition, NOAA will develop a 
climate change site scenario and climate change action plan for FGBNMS 
and plans to pursue Climate-Smart Sanctuary Certification as detailed 
in activity 2.6 of the resource protection action plan in the final 
management plan.
    Comment 26. Artificial reefs should be protected.
    There are no artificial reefs in FGBNMS. If presented with 
opportunities to make recommendations during decommissioning processes 
for platforms within sanctuary boundaries, NOAA would examine the 
options on a case-by-case basis.
    Comment 27. NOAA must take aggressive action to prevent the 
establishment of the invasive lionfish in FGBNMS.
    Lionfish have been observed in sanctuary waters since July 2011. As 
stated in Activity 5.2 of the research and monitoring action plan in 
the final management plan, NOAA is currently developing research 
priorities and a response plan to study and manage the impacts of 
invasive species, including lionfish, on sanctuary resources.
    At this time, NOAA's policy is to remove any lionfish encountered 
in sanctuary boundaries using prescribed protocols. Permits for the 
removal of lionfish have been issued to some dive masters of 
recreational dive charters that frequent the sanctuary to assist in 
this effort. The diving public is also encouraged to help monitor the 
situation by reporting any lionfish sightings, including date, time, 
location, size of the lionfish, and any other information about the 
habitat or the behavior of the fish to sanctuary staff.
    Comment 28. The cost to implement the management plan is 
unreasonably high. NOAA should carefully consider availability of funds 
during the proposed sanctuary expansion and prioritize activities, 
which should include R/V Manta operations.
    The budget estimates given in the draft management plan are those 
necessary to support all of the activities identified within the 
various action plans. While the plan was developed with realistic 
expectations, NOAA recognizes that not all of the activities can or 
will be carried out due to budgetary restrictions or other factors. 
Therefore, NOAA agrees with the suggestion that activities should be 
prioritized in the plan, and this has been added to the document. 
However, over the years, NOAA has taken a number of steps to increase 
resources available for sanctuaries. These have included pursuing 
outside funding sources for critical operations such as grants, partner 
cost-sharing, donations, and special use permit fees. NOAA has also 
been successful in leveraging partner capabilities and in-kind support. 
For example, the U.S. Coast Guard has provided aerial overflights for 
surveillance and enforcement at FGBNMS.
    During the preliminary evaluation of possible sanctuary expansion 
alternatives by the Sanctuary Advisory Council, budgetary factors were 
taken into consideration. For example, the areas presented for 
potential expansion

[[Page 25068]]

by the Sanctuary Advisory Council were limited by the distance that 
could be serviced within the operational capabilities of the existing 
sanctuary vessel (approximately 200 miles from Galveston TX), reducing 
the need for additional vessels or infrastructure. Priority 
consideration was also given to the anticipated amount of funds 
available in the sanctuary budget to operate the R/V Manta in other 
areas of the Gulf of Mexico.
    The effective operation of the R/V Manta is necessary in the 
implementation of almost all aspects of sanctuary management. As such, 
the continued maintenance of this asset is a high priority for NOAA, 
and will be given due consideration in the allocation of available 
resources.

V. Classification

A. National Environmental Policy Act

    NOAA has prepared a final programmatic environmental assessment to 
analyze the potential environmental impacts of this rulemaking. The 
programmatic environmental assessment analyzes the administrative and 
programmatic activities associated with the No Action Alternative and 
the Preferred Alternative to revise the FGBNMS management plan and take 
regulatory actions. Administrative activities conducted within existing 
facilities, such as consultations, outreach, administrative frameworks, 
development of plans, and data analysis will have little to no 
potential to significantly affect the quality of the human environment 
according to NEPA standards. Activities to manage the sanctuary as 
outlined in the final management plan, considered together with the 
many natural and human-induced stressors to sanctuary resources, 
generally result in a cumulative beneficial impact to these resources. 
However, as with the administrative activities, the positive impacts do 
not meet the NEPA threshold for significance. This is because at a 
programmatic level, no single activity, when taken in consideration 
with others, will have significant beneficial or negative impacts on 
any individual or combined resource.
    To the extent that future activities considered under any of the 
action plans (which range from infrastructure construction, management 
measures to implement sanctuary expansion, or establishment of an 
experimental closure to evaluate the impacts of diving and fishing) are 
conducted in the human environment, a NEPA review to analyze the 
impacts of alternatives would be conducted.
    The programmatic environmental assessment on the final management 
plan and revised regulations for FGBNMS results in a Finding of No 
Significant Impact (FONSI). Accordingly, no environmental impact 
statement was prepared. Copies of the environmental assessment and 
FONSI are available at the address and Web site listed in the ADDRESSES 
section of this final rule.

B. Executive Order 12866: Regulatory Impact

    Under Executive Order 12866, if the proposed regulations are 
``significant'' as defined in section 3(f) of the Order, an assessment 
of the potential costs and benefits of the regulatory action must be 
prepared and submitted to the Office of Management and Budget. This 
rule has been determined to be not significant within the meaning of 
Executive Order 12866.

C. Executive Order 13132: Federalism Assessment

    All of the actions occur in the Exclusive Economic Zone beyond 
state jurisdiction. NOAA has concluded this regulatory action does not 
have federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 13132.

D. Paperwork Reduction Act

    This rule does not contain any new information or revisions to the 
existing information collection requirement that was previously 
approved for this rule by OMB (OMB Control Number 0648-0141) under the 
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
    Notwithstanding any other provision of the 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 PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the Chief Counsel for Regulation at the Department of Commerce 
certified to the Chief Counsel for Advocacy, Small Business 
Administration that this action will not have a significant economic 
impact on a substantial number of small entities. The factual basis for 
this certification was published with the proposed rule and is not 
repeated here. No comments were received regarding the economic impact 
of this rule. As a result, a final regulatory flexibility analysis was 
not prepared.

VI. References for Citations

    All references that NOAA used as a basis for this rule can be made 
available to the public upon request as specified in the ADDRESSES 
section.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fish, 
Fisheries, Historic preservation, Intergovernmental relations, Marine 
resources, Monuments and memorials, Natural resources, Wildlife, 
Wildlife refuges, Wildlife management areas.

    Dated: April 18, 2012.
David M. Kennedy,
Assistant Administrator for Ocean Services and Coastal Zone Management.

    For the reasons discussed in the preamble, part 922, title 15 of 
the Code of Federal Regulations is amended as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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


0
2. Revise Sec.  922.121 to read as follows:


Sec.  922.121  Definitions.

    As used in this subpart:
    Attract or attracting means the conduct of any activity that lures 
or may lure any animal in the Sanctuary by using food, bait, chum, 
dyes, decoys (e.g., surfboards or body boards used as decoys), 
acoustics or any other means, except the mere presence of human beings 
(e.g., swimmers, divers, boaters, kayakers, surfers).
    Clean means not containing detectable levels of harmful matter.
    Disturb or disturbing a ray or whale shark means to, or attempt to 
touch, handle, ride, pursue, chase away, hunt, restrain, detain (no 
matter how temporarily), capture, collect, or conduct any other 
activity that disrupts or has the potential to disrupt any ray or whale 
shark in the Sanctuary by any means. Notwithstanding the above, the 
mere presence of human beings (e.g., swimmers, divers, boaters, 
kayakers) is exempted from this definition.
    Harmful matter means any substance, or combination of substances, 
that because of its quantity, concentration, or physical, chemical, or 
infectious characteristics may pose a present or potential threat to 
Sanctuary resources or qualities, including but not limited to: Fishing 
nets, fishing line, hooks,

[[Page 25069]]

fuel, oil, and those contaminants (regardless of quantity) listed at 40 
CFR 302.4 pursuant to 42 U.S.C. 9601(14) of the Comprehensive 
Environmental Response, Compensation, and Liability Act, as amended.
    No-activity zone means the two geographic areas delineated by the 
Department of the Interior in stipulations for OCS lease sale 112 over 
and surrounding the East and West Flower Garden Banks, and the 
geographic area delineated by the Department of the Interior in 
stipulations for OCS lease sale 171 over and surrounding Stetson Bank, 
as areas in which activities associated with exploration for, 
development of, or production of hydrocarbons are prohibited. The 
precise aliquot part description of these areas around the East and 
West Flower Garden Banks are provided in appendix B of this subpart; 
the no-activity zone around Stetson Bank is defined as the 52 meter 
isobath. These particular aliquot part descriptions for the East and 
West Flower Garden Banks, and the 52 meter isobath around Stetson Bank, 
define the geographic scope of the ``no-activity zones'' for purposes 
of the regulations in this subpart. The descriptions for the East and 
West Flower Garden Banks no-activity zones are based on the ``1/41/41/
4'' system formerly used by the Department of the Interior, a method 
that delineates a specific portion of a block rather than the actual 
underlying isobath.

0
3. Revise Sec.  922.122 to read as follows:


Sec.  922.122  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (c) through (h) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Exploring for, developing, or producing oil, gas, or minerals 
except outside of all no-activity zones and provided all drilling 
cuttings and drilling fluids are shunted to the seabed through a 
downpipe that terminates an appropriate distance, but no more than ten 
meters, from the seabed.
    (2) (i) Anchoring any vessel within the Sanctuary.
    (ii) Mooring any vessel within the Sanctuary, except that vessels 
100 feet (30.48 meters) or less in registered length may moor to a 
Sanctuary mooring buoy.
    (iii) Mooring a vessel in the Sanctuary without clearly displaying 
the blue and white International Code flag ``A'' (``alpha'' dive flag) 
or the red and white ``sports diver'' flag whenever a SCUBA diver from 
that vessel is in the water and removing the ``alpha'' dive flag or 
``sports diver'' flag after all SCUBA divers exit the water and return 
back on board the vessel, consistent with U.S. Coast Guard guidelines 
relating to sports diving as contained within ``Special Notice to 
Mariners'' (00-208) for the Gulf of Mexico.
    (3)(i) Discharging or depositing from within or into the Sanctuary 
any material or other matter except:
    (A) Fish, fish parts, chumming materials, or bait used in or 
resulting from fishing with conventional hook and line gear in the 
Sanctuary, provided that such discharge or deposit occurs during the 
conduct of such fishing within the Sanctuary;
    (B) Clean effluent generated incidental to vessel use by an 
operable Type I or Type II marine sanitation device (U.S. Coast Guard 
classification) approved in accordance with section 312 of the Federal 
Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel 
operators must lock marine sanitation devices in a manner that prevents 
discharge or deposit of untreated sewage;
    (C) Clean vessel deck wash down, clean vessel engine cooling water, 
clean vessel generator cooling water, clean bilge water, or anchor 
wash;
    (D) Engine exhaust;
    (E) In areas of the Sanctuary outside the no-activity zones, 
drilling cuttings and drilling fluids necessarily discharged incidental 
to the exploration for, development of, or production of oil or gas in 
those areas and in accordance with the shunting requirements of 
paragraph (a)(1) of this section unless such discharge injures a 
Sanctuary resource or quality.
    (ii) Discharging or depositing, from beyond the boundaries of the 
Sanctuary, any material or other matter, except those listed in 
paragraphs (a)(3)(i)(A) through (D) of this section, that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality.
    (4) Drilling into, dredging, or otherwise altering the seabed of 
the Sanctuary (except as allowed under paragraph (c) of this section); 
or constructing, placing, or abandoning any structure, material, or 
other matter on the seabed of the Sanctuary.
    (5) Injuring or removing, or attempting to injure or remove, any 
coral or other bottom formation, coralline algae or other plant, marine 
invertebrate, brine-seep biota, or carbonate rock within the Sanctuary.
    (6) Taking any marine mammal or turtle within the Sanctuary, except 
as permitted by regulations, as amended, promulgated under the Marine 
Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq., and the 
Endangered Species Act, as amended, 16 U.S.C. 1531 et seq.
    (7) Killing, injuring, attracting, touching, or disturbing a ray or 
whale shark in the Sanctuary. Notwithstanding the above, the incidental 
and unintentional injury to a ray or whale shark as a result of fishing 
with conventional hook and line gear is exempted from this prohibition.
    (8) Injuring, catching, harvesting, collecting, or feeding, or 
attempting to injure, catch, harvest, collect, or feed, any fish within 
the Sanctuary by use of bottom longlines, traps, nets, bottom trawls, 
or any other gear, device, equipment, or means except by use of 
conventional hook and line gear.
    (9) Possessing within the Sanctuary (regardless of where collected, 
caught, harvested or removed), except for valid law enforcement 
purposes, any carbonate rock, coral or other bottom formation, 
coralline algae or other plant, marine invertebrate, brine-seep biota, 
or fish (except for fish caught by use of conventional hook and line 
gear).
    (10) Possessing or using within the Sanctuary, except possessing 
while passing without interruption through it or for valid law 
enforcement purposes, any fishing gear, device, equipment or means 
except conventional hook and line gear.
    (11) Possessing, except for valid law enforcement purposes, or 
using explosives or releasing electrical charges within the Sanctuary.
    (b) If any valid regulation issued by any Federal authority of 
competent jurisdiction, regardless of when issued, conflicts with a 
Sanctuary regulation, the regulation deemed by the Director as more 
protective of Sanctuary resources and qualities shall govern.
    (c) The prohibitions in paragraphs (a)(2)(i), (a)(4), and (a)(11) 
of this section do not apply to necessary activities conducted in areas 
of the Sanctuary outside the no-activity zones and incidental to 
exploration for, development of, or production of oil or gas in those 
areas.
    (d) The prohibitions in paragraphs (a)(2) through (11) of this 
section do not apply to activities necessary to respond to emergencies 
threatening life, property, or the environment.
    (e)(1) The prohibitions in paragraphs (a)(2) through (11) of this 
section do not apply to activities being carried out by the Department 
of Defense as of the effective date of Sanctuary designation (January 
18, 1994). Such activities shall be carried out in a manner that 
minimizes any adverse impact on Sanctuary resources and qualities. The 
prohibitions in paragraphs (a)(2)

[[Page 25070]]

through (11) of this section do not apply to any new activities carried 
out by the Department of Defense that do not have the potential for any 
significant adverse impacts on Sanctuary resources or qualities. Such 
activities shall be carried out in a manner that minimizes any adverse 
impact on Sanctuary resources and qualities. New activities with the 
potential for significant adverse impacts on Sanctuary resources or 
qualities may be exempted from the prohibitions in paragraphs (a)(2) 
through (11) of this section by the Director after consultation between 
the Director and the Department of Defense. If it is determined that an 
activity may be carried out, such activity shall be carried out in a 
manner that minimizes any adverse impact on Sanctuary resources and 
qualities.
    (2) In the event of threatened or actual destruction of, loss of, 
or injury to a Sanctuary resource or quality resulting from an untoward 
incident, including but not limited to spills and groundings, caused by 
a component of the Department of Defense, the cognizant component shall 
promptly coordinate with the Director for the purpose of taking 
appropriate actions to respond to and mitigate the harm and, if 
possible, restore or replace the Sanctuary resource or quality.
    (f) The prohibitions in paragraphs (a)(2) through (11) of this 
section do not apply to any activity executed in accordance with the 
scope, purpose, terms, and conditions of a National Marine Sanctuary 
permit issued pursuant to Sec.  922.48 and Sec.  922.123 or a Special 
Use permit issued pursuant to section 310 of the Act.
    (g) The prohibitions in paragraphs (a)(2) through (11) of this 
section do not apply to any activity authorized by any lease, permit, 
license, approval or other authorization issued after January 18, 1994, 
provided that the applicant complies with Sec.  922.49, the Director 
notifies the applicant and authorizing agency that he or she does not 
object to issuance of the authorization, and the applicant complies 
with any terms and conditions the Director deems necessary to protect 
Sanctuary resources and qualities.
    (h) Notwithstanding paragraphs (f) and (g) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 
Sec.  922.48 and Sec.  922.123 or a Special Use permit under section 10 
of the Act authorizing, or otherwise approve, the exploration for, 
development of, or production of oil, gas, or minerals in a no-activity 
zone. Any leases, permits, approvals, or other authorizations 
authorizing the exploration for, development of, or production of oil, 
gas, or minerals in a no-activity zone and issued after the January 18, 
1994 shall be invalid.

0
4. Amend Sec.  922.123 by revising paragraphs (a) through (c) as 
follows:


Sec.  922.123  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec.  
922.122(a)(2) through (11) if conducted in accordance with the scope, 
purpose, 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, Office of National Marine Sanctuaries; Attn: Superintendent, 
Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 
216, Galveston, TX 77551.
    (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.  922.122(a)(2) through (11), if 
the Director finds that the activity will: Further research related to 
Sanctuary resources; further the educational, natural or historical 
resource value of the Sanctuary; further salvage or recovery operations 
in or near the Sanctuary in connection with a recent air or marine 
casualty; or assist in managing the Sanctuary. In deciding whether to 
issue a permit, the Director shall consider such factors as: The 
professional qualifications and financial ability of the applicant as 
related to the proposed activity; the duration of the activity and the 
duration of its effects; the appropriateness of the methods and 
procedures proposed by the applicant for the conduct of the activity; 
the extent to which the conduct of the activity may diminish or enhance 
Sanctuary resources and qualities; the cumulative effects of the 
activity; and the end value of the activity. In addition, the Director 
may consider such other factors as he or she deems appropriate.
* * * * *
[FR Doc. 2012-10093 Filed 4-26-12; 8:45 am]
BILLING CODE 3510-NK-P