Gray's Reef National Marine Sanctuary Regulations

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 [Federal Register: October 31, 2003 (Volume 68, Number 211)]
[Proposed Rules]
[Page 62033-62040]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc03-19]

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 031001243-3243-01]
RIN 0648-AQ41
 
Gray's Reef National Marine Sanctuary Regulations

AGENCY: National Marine Sanctuary Program (NMSP), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).
ACTION: Proposed rule; notice of public availability of draft 
management plan/draft environmental impact statement.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing a draft revised management plan and revised regulations for 
the Gray's Reef National Marine Sanctuary (GRNMS or Sanctuary). The 
revised regulations would prohibit anchoring in the Sanctuary and would 
restrict all fishing except that conducted by rod and reel and handline 
gear. NOAA is issuing this proposed rule to provide notice to the 
public and invite advice, recommendations, information, and other 
comments from interested parties on the proposed rule and Draft 
Management Plan/Draft Environmental Impact Statement (DMP/DEIS). Public 
hearings will be held as detailed below:
    (1) Monday, November 17, 2003, 6:30 p.m. in Charleston, SC.
    (2) Tuesday, November 18, 2003, 6:30 p.m. in Savannah, GA.
    (3) Wednesday, November 19, 2003, 6:30 p.m. in Savannah, GA.
    (4) Thursday, November 20, 2003, 6:30 p.m. in Statesboro, GA.
    (5) Monday, December 1, 2003, 6:30 p.m. in Kingsland, GA.
    (6) Tuesday, December 2, 2003, 6:30 p.m. in Brunswick, GA.
    (7) Wednesday, December 3, 2003, 6:30 p.m. in Midway, GA.

DATES: Comments will be considered if received by December 31, 2003.

ADDRESSES: Written comments should be sent by mail to Reed Bohne, 
Manager, Gray's Reef National Marine Sanctuary, 10 Ocean Science 
Circle, Savannah, Georgia, 31411, by e-mail to 
graysreefcomments@noaa.gov, or by fax to (912) 598-2367. Copies of the 
DMP/DEIS are available from the same address. Public hearings will be 
held at:
    (1) Town and Country Inn and Conference Center, 2008 Savannah 
Highway, Charleston, SC 29407.
    (2) Coastal Georgia Center, 305 Fahm Street, Savannah, GA 31401.
    (3) Quality Inn Savannah South, I-95 and Highway 204, Savannah, GA 
31419.
    (4) Outreach Center, 515 Denmark Street, Statesboro, GA 30458.
    (5) Holiday Inn Express, 1375 Hospitality Ave., Kingsland, GA 
31548.
    (6) Coastal Georgia Community College, 3700 Altama Avenue, 
Brunswick, GA 31520.
    (7) Coastal Electric Cooperative, 1265 South Coastal Highway, 
Midway, GA 31320.

FOR FURTHER INFORMATION CONTACT: Becky Shortland at (912) 598-2381 or 
becky.shortland@noaa.gov.

SUPPLEMENTARY INFORMATION:

Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(16 U.S.C. 1434(e)) the National Marine Sanctuary Program (NMSP) has 
completed its review of the management plan for the Gray's Reef 
National Marine Sanctuary (GRNMS or Sanctuary), located 17.5 nautical 
miles off the coast of Georgia. The review has resulted in a proposed 
new management plan for the Sanctuary, several proposed revisions to 
existing regulations and several proposed new regulations. The new 
regulations would restrict fishing at GRNMS to use of rod and reel and 
handline gear by prohibiting the injuring, catching, harvesting, or 
collecting of any marine organism or part thereof in the Sanctuary 
except by these gear types. All other forms of fishing gear would have 
to be stowed when a vessel is in the Sanctuary. The regulations would 
also prohibit anchoring vessels in the Sanctuary. These measures would 
afford better protection to the nationally significant marine resources 
and habitats at GRNMS.
    Existing regulations would also be revised to address placing or 
abandoning structures on the submerged lands; using underwater 
explosives or devices generating electrical current; and moving or 
damaging historical resources. The permit regulations for the Sanctuary 
are also being revised and clarified. The following requirements are 
proposed for issuance of permits: Prior to permit issuance, the 
Director of the NMSP would be required to consider the duration of the 
activity and its effects; the cumulative effects; and whether it is 
necessary to conduct the proposed activity in the Sanctuary. Permit 
holders would also be required to display a copy of the permit on board 
any vessel or aircraft used in the permitted activity.
    The new management plan for the Sanctuary contains a series of 
action plans that outline management, research, and education 
activities that are planned for the next five years. The activities are 
designed to address specific issues facing the Sanctuary and in doing 
so, help achieve the management objectives of the GRNMS and the larger 
mandates of the NMSP.
    This document publishes the proposed regulations and the proposed 
revisions to existing regulations, publishes the text of the proposed 
Revised Designation Document for the Sanctuary, and announces the 
availability of the draft management plan and the draft environmental 
impact statement (DMP/DEIS). The draft management plan details the 
proposed goals and objectives, management responsibilities, research 
and monitoring activities, outreach and educational programs, and 
enforcement activities.
    Grays' Reef National Marine Sanctuary, which was designated on 
January 16, 1981 (46 FR 7942), consists of approximately 16.68 square 
nautical miles of ocean waters and hard bottom located 17.5 nautical 
miles off Sapelo Island, Georgia. It is one of the largest nearshore 
rocky reefs off the southeastern United States and is in a transition 
zone between temperate and tropical waters. Some reef fish populations 
and plant communities change seasonally, while others are year-round 
residents. Migratory fish move through the Sanctuary, using the reef 
for food and shelter. Loggerhead sea turtles, a threatened species, use 
GRNMS for foraging and resting. The reef is also close to the only 
known calving ground for the highly endangered Northern right whale.
    The hard bottom habitat at the Sanctuary is composed of marine 
sediments (mud, sand, and shells) that were deposited between 2-
3,000,000 years ago. These marine sediments were consolidated into rock 
during subsequent glacial periods by numerous changes in sea level that 
repeatedly exposed and then submerged the areas of GRNMS as the 
coastline advanced and retreated across the continental shelf.
    Recent bottom mapping indicates that the area is a single rock 
unit. It is made of calcareous sandstone that formed as a result of the 
compacting marine sediments and aerial exposure. The

[[Page 62034]]

irregularities of the bathymetry can be attributed to the easily 
erodable sandstone that has dissolved and pitted, creating the 
appearance of isolated ledges and patches of hard bottom.
    The exposed rock offers moderate relief (0.5 to 10 feet in height) 
with sandy, flat-bottomed troughs between. The series of rock ledges 
and sand expanses has produced a complex habitat of caves, burrows, 
troughs, and overhangs that provide a solid base on which temperate and 
tropical marine flora and fauna attach and grow. This rocky platform 
with its rich carpet of remarkable attached organisms is known locally 
as a ``live bottom'' habitat.
    The Sanctuary is a small but very important part of the broad 
continental shelf off the southeastern coast sometimes known as the 
South Atlantic Bight (SAB). The SAB extends from Cape Hatteras, North 
Carolina to Cape Canaveral, Florida. The outer reaches are dominated by 
the Gulf Stream flowing northeastward. The inner area is defined by the 
curve of the coastline between the two capes and is dominated by tidal 
currents, river runoff, local winds, seasonal storms, hurricanes, and 
atmospheric changes. While GRNMS lies in the inner-shelf zone of the 
SAB--which causes great seasonal variations in temperature, salinity, 
and water clarity--it is also influenced by the Gulf Stream. The Gulf 
Stream draws deep nutrient-rich water to the region, and carries and 
supports many of the tropical fish species and other animals found in 
the Sanctuary. Ocean currents transport fish and invertebrate eggs and 
larvae from other areas, linking this special place to reefs both north 
and south. GRNMS is the only protected natural reef area in the SAB.
    The 16.68-square nautical miles of the Sanctuary constitute a tiny 
percentage of the ocean space off the coast, yet the Sanctuary's value 
as a natural marine habitat is recognized nationally and 
internationally. The live bottom is a flourishing ecosystem that 
attracts mackerel, grouper, black sea bass, angelfish, and a variety of 
other fishes. GRNMS is one of the most popular recreational fishing and 
sport diving destinations along the Georgia coast. Sport fishing occurs 
year-round but intensifies in warmer months and with the migration of 
pelagic game fish.
    The Sanctuary is located near an area of Georgia coastline that has 
experienced a dramatic increase in population. Aerial and on-water 
surveys indicate that visitation to GRNMS has increased significantly 
since 1981. With continued technological innovations such as global 
positioning systems (GPS), electronic fish finders, and improved 
watercraft design, it is likely that there will be increasing pressure 
on the resources of the Sanctuary. With its proposed new management 
plan and proposed regulations, NOAA hopes to continue to protect GRNMS 
for the continued appreciation and use by the current and future 
generations.
    Because this proposed action includes changes to the Sanctuary's 
Designation Document, the DMP/DEIS is developed pursuant to section 
304(a)(2) of the NMSA, 16 U.S.C. Sec.  1434(a)(2), consistent with, and 
in fulfillment of, the requirements of the National Environmental 
Policy Act of 1969.

Proposed Revised Designation Document

    NOAA is proposing to specify in the Designation Document that the 
submerged lands at GRNMS are legally part of the Sanctuary and are 
included in the boundary description. At the time the Sanctuary was 
designated in 1981, Title III of the Marine Protection, Research, and 
Sanctuaries Act (now also known as the National Marine Sanctuaries Act) 
characterized national marine sanctuaries as consisting of coastal and 
ocean waters but did not expressly mention submerged lands thereunder. 
NOAA has consistently interpreted its authority under the NMSA as 
extending to submerged lands, and amendments to the NMSA in 1984 (Pub. 
L. 98-498) clarified that submerged lands may be designated by the 
Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 
Sec.  1432(3)). Therefore, to be consistent with the NMSA, NOAA is 
updating the Designation Document and the boundary description, and is 
replacing the term ``seabed'' with ``submerged lands of the 
Sanctuary''. Boundary coordinates in the revised Designation Document 
and in the Sanctuary regulations will be expressed by coordinates based 
on the North American Datum of 1983 (NAD 83). Although certain fishing 
activities have been regulated at GRNMS since 1981, terms are being 
added to the Designation Document to authorize regulations for use of 
allowable fishing gear and to prohibit the possession of non-allowed 
gear. This will allow fishing regulations specifically for GRNMS and 
approved by the South Atlantic Fishery Management Council to be 
proposed for the Sanctuary. The Designation Document is also being 
updated to authorize regulating drilling into the submerged lands of 
the Sanctuary; constructing, placing or abandoning material or matter; 
discharging or depositing material or matter outside the Sanctuary that 
subsequently enters and injures a Sanctuary resource or quality; using 
explosives or devices that produce electric current underwater; and 
injuring historical resources.

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

Article 1. Designation and Effect

    The Gray's Reef National Marine Sanctuary was designated on January 
16, 1981 (46 FR 7942). Section 304 of the National Marine Sanctuaries 
Act (NMSA, 16 U.S.C. 1431 et seq.) authorizes the Secretary of Commerce 
to issue such regulations as are necessary and reasonable to implement 
the designation, including managing and protecting the conservation, 
recreational, ecological, historical, scientific, educational, 
cultural, archaeological or aesthetic resources and qualities of a 
national marine sanctuary. Section 1 of Article 4 of this Designation 
Document lists activities of the type that are presently being 
regulated or may need to be regulated in the future, in order to 
protect Sanctuary resources and qualities. Listing in section 1 does 
not mean a type of activity will be regulated in the future, however, 
if a type of activity is not listed, it may not be regulated, except on 
an emergency basis, unless section 1 is amended, following the 
procedures for designation of a sanctuary set forth in paragraphs (a) 
and (b) of section 304 of the NMSA, to include the type of activity.
    Nothing in this Designation Document is intended to restrict 
activities that do not cause an adverse effect on the resources or 
qualities of the Sanctuary or on Sanctuary property or that do not pose 
a threat of harm to users of the Sanctuary.

Article 2. Description of the Area

    The Sanctuary consists of an area of ocean waters and the submerged 
lands thereunder located 17.5 nautical miles due east of Sapelo Island, 
Georgia. The exact coordinates are defined by regulation (15 CFR Sec.  
922.90).

Article 3. Characteristics of the Area

    The Sanctuary consists of submerged calcareous sandstone rock reefs 
with contiguous shallow-buried hardlayer and soft sedimentary regime 
which supports rich and diverse marine plants, invertebrates, finfish, 
turtles, and occasional marine mammals in an otherwise sparsely 
populated expanse of ocean seabed. The area attracts multiple human 
uses, including recreational

[[Page 62035]]

fishing and diving, scientific research, and educational activities.

Article 4. Scope of Regulation

Section 1. Activities Subject to Regulation
    The following activities are subject to regulations under the NMSA, 
either throughout the entire Sanctuary or within identified portions of 
it or, as indicated, in areas beyond the boundary of the Sanctuary, to 
the extent necessary and reasonable. Such regulation may include 
prohibitions to ensure the protection and management of the 
conservation, recreational, ecological, historical, scientific, 
educational, cultural, archaeological or aesthetic resources and 
qualities of the area. Because an activity is listed here does not mean 
that such activity is being or will be regulated. All listing means is 
that the activity can be regulated, after compliance with all 
applicable regulatory laws, without going through the designation 
procedures required by paragraphs (a) and (b) of section 304 of the 
NMSA, 16 U.S.C. 1434(a) and (b).
    1. Dredging, drilling into, or otherwise altering the submerged 
lands of the Sanctuary;
    2. Within the boundary of the Sanctuary, discharging or depositing 
any material or other matter or constructing, placing, or abandoning 
any structure, material or other matter; or discharging or depositing 
any material or other matter outside the boundary of the Sanctuary that 
enters and injures a Sanctuary resource or quality;
    3. Vessel operations, including anchoring;
    4. Injuring, catching, harvesting, or collecting any marine 
organism or any part thereof, living or dead, or attempting any of 
these activities, by any means except by use of rod and reel and 
handline gear;
    5. Possessing fishing gear that is not allowed to be used in the 
Sanctuary;
    6. Using explosives, or devices that produce electric charges 
underwater; and
    7. Removing, injuring, or possessing historical resources.
Section 2. Emergency Regulation
    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality; or to minimize the 
imminent risk of such destruction, loss or injury, any activity, 
including any not listed in Section 1 of this article, is subject to 
immediate temporary regulation, including prohibition.

Article 5. Relation to Other Regulatory Programs

Section 1. Defense Activities
    The regulation of activities listed in Article 4 shall not prohibit 
any Department of Defense activity that is essential for national 
defense or because of emergency. Such activities shall be consistent 
with the regulations to the maximum extent practical.
Section 2. Other Programs
    All applicable regulatory programs will remain in effect, and all 
permits, licenses and other authorizations issued pursuant thereto 
shall be valid within the Sanctuary unless authorizing any activity 
prohibited by a regulation implementing Article 4.

Article 6. Alteration of This Designation

    The terms of designation, as defined in paragraph (a) of section 
304 of the NMSA, 16 U.S.C. 1434(a), may be modified only by the 
procedures outlined in paragraphs (a) and (b) of section 304 of the 
NMSA, 16 U.S.C. 1434(a) and (b), including public hearings, 
consultation with interested federal, state, and local government 
agencies, the South Atlantic Fishery Management Council, review by the 
appropriate Congressional committees, and approval by the Secretary of 
Commerce, or his or her designee.
    Gray's Reef National Marine Sanctuary Boundary Coordinates based on 
the North American Datum of 1983 (NAD 83).
    The boundary of the Gray's Reef National Marine Sanctuary includes 
all waters and the submerged lands thereunder within a rectangle 
starting at coordinate north 31.362732 degrees, west 80.921200 degrees; 
then runs northward to coordinate north 31.421064 degrees, west 
80.921201 degrees; then eastward to coordinate north 31.421064 degrees, 
west 80.828145 degrees; then southward to coordinate north 31.362732 
degrees, west 80.828145 degrees; and then back to the point of origin.

Summary of the Proposed Regulatory Amendment

    The proposed regulatory changes would clarify that ``submerged 
lands'' are within the boundary and are part of the Sanctuary. This 
would update the boundary regulation to make it consistent with the 
NMSA and its definition of areas of the ``marine environment'' that may 
be designated as a sanctuary.
    The proposed regulations would also modify the Sanctuary fishing 
regulations that have been in effect since 1981. The current 
regulations prohibit the use of specific fishing gear within the 
Sanctuary, particularly wire fish traps and bottom trawls. Pursuant to 
section 304(a)(5) of the NMSA (16 U.S.C. 1434(a)(5)), the South 
Atlantic Fishery Management Council (SAFMC) was provided the 
opportunity to draft fishing regulations for the Sanctuary. During its 
meeting on March 6, 2003, the Council endorsed Sanctuary fishing 
regulations that would prohibit the use of all fishing gear in the 
Sanctuary except rod and reel and handline gear. Unlike the current 
sanctuary fishing regulations that allow all gear types except those 
specifically prohibited, this approach specifies the gear types that 
would be allowed and would prohibit all others. The regulation would 
prohibit the injuring, catching, harvesting, or collecting of any 
marine organism by any means except by rod and reel and handline. This 
would establish a clearer, more enforceable approach for the Sanctuary 
fishing regulations than those currently in effect. Rod and reel gear 
is the predominant fishing gear now in use at GRNMS and would continue 
to be allowed under the regulations recommended by the SAFMC. To 
facilitate enforcement of the gear restriction, a related regulation 
would require that all forms of fishing gear other than rod and reel 
and handline be stowed when vessels are in the Sanctuary.
    The SAFMC's recommendation is consistent with public input received 
by the NMSP during the management plan review, and is supported by the 
Georgia Department of Natural Resources and NOAA Fisheries (National 
Marine Fisheries Service) Southeast Region. The SAFMC also recommended 
that the Sanctuary regulations require that fishing gear other than 
rods and reels and handlines be stowed when vessels are in the 
Sanctuary. Therefore, this regulation is also being proposed, as are 
definitions of ``rod and reel and handline''. The definitions would be 
based largely on existing definitions adopted by NOAA Fisheries in its 
regulations for the Fisheries of the Caribbean, Gulf, and South 
Atlantic, at 50 CFR 622.2. However, the proposed definitions for the 
Sanctuary regulations would allow only 3 hooks per line. The proposed 
regulation would apply to ``any marine organism, or any part thereof, 
living or dead,'' and would encompass the taking of any marine 
organisms or parts by divers.
    The proposed regulations would also prohibit anchoring vessels 
within the Sanctuary. The unique bottom formations and habitats at 
GRNMS are

[[Page 62036]]

vulnerable to the effects of anchoring. The documented increases of 
population in the region and of visitor use at GRNMS suggest that the 
risk from vessel anchoring will also increase and that prohibiting 
anchoring would help protect the live bottom habitat and the associated 
living marine resources that GRNMS was designated to protect. This 
regulation would have little impact on current users of the Sanctuary. 
Based on findings of a socioeconomic study (Ehler and Leeworthy) 
conducted in 2002, virtually none of the activities that occur at GRNMS 
require anchoring. Fishermen routinely allow their boats to drift 
during bottomfishing or are trolling for migratory species, and divers 
frequently use a ``live-boat'' for drift diving, due to the strong 
currents. There is overall support for the ban on anchoring among users 
surveyed during the socioeconomic study. In an emergency situation, 
boaters would be allowed to anchor in the Sanctuary and existing 
boundary marker buoys provide a place for a boat to moor in an 
emergency as well.
    Finally, the regulations for the issuance of permits are being 
revised to add a new permit category for assisting in managing the 
Sanctuary. This would authorize NMSP to issue a permit to the Sanctuary 
manager for activities that otherwise would be prohibited if the 
activities assist in sanctuary management and if they satisfy permit 
criteria. The permit criteria are also being revised to allow NMSP or 
the manager to consider the duration of a proposed activity, its 
cumulative effects, and whether it is necessary to conduct the proposed 
activity in the Sanctuary. A permit holder would be required to display 
a copy of the permit in any vessel or aircraft being used in the 
permitted activity.
    The following regulatory changes are also being proposed by this 
document: The term ``seabed'' is being replaced with ``submerged lands 
of the Sanctuary'' to be consistent with usage in the NMSA. The 
prohibition against dredging, drilling into or altering submerged lands 
of the Sanctuary specifically includes bottom formations to call 
attention to one of the critical elements of the ecosystem at GRNMS. 
The current prohibition against constructing any structure other than a 
navigation aid would be revised to include constructing, placing, 
abandoning any structure, or material on the Sanctuary submerged lands. 
This change would, among other things, prohibit activities that have 
been identified in the Florida Keys National Marine Sanctuary, where 
materials are placed on the submerged lands to create lobster habitat. 
The prohibition against using poisons, electric charges, explosives, or 
similar methods to take any marine animal not otherwise prohibited from 
being taken would be revised to prohibit the use underwater of 
explosives and devices producing electric current while the reference 
to poisons is being removed because it is already addressed by the 
prohibition against discharges. Use of these items would be prohibited 
regardless of whether marine animals are being taken. NOAA is not aware 
of any non-scientific use of these materials underwater at GRNMS and 
proposes that their use be completely prohibited. The regulation 
prohibiting tampering with, damaging or removing historic or cultural 
resources is being revised to prohibit moving, removing, damaging, or 
possessing any Sanctuary historical resource, or attempting any of 
these. This change will better protect these resources from being 
removed and will facilitate enforcement by prohibiting their 
possession.

Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304(a)(4) of the National Marine Sanctuaries Act,16 U.S.C. 
1434(a)(4), requires that the procedures specified in section 304 for 
designating a National Marine Sanctuary be followed for modifying any 
term of designation. Because this action would revise the Sanctuary 
boundary specifically to include the submerged land, it would revise 
the boundary terms of designation thus triggering the requirements of 
section 304. In particular, section 304 requires that the Secretary of 
Commerce submit to the Committee on Resources of the United States 
House of Representatives and the Committee on Commerce, Science, and 
Transportation of the United States Senate, no later than the same day 
as this notice is published, documents including a copy of this notice, 
the terms of the proposed designation (or in this case, the proposed 
changes thereto), the proposed regulations, a draft management plan 
detailing the proposed goals and objectives, management 
responsibilities, research activities for the area, and a draft 
environmental impact statement. In accordance with section 304, the 
required documents are being submitted to the specified Congressional 
Committees.

National Environmental Policy Act

    When changing a term of designation of a National Marine Sanctuary, 
section 304 of the NMSA, 16 U.S.C. 1434, requires the preparation of a 
draft environmental impact statement (DEIS), as provided by the 
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and 
that the DEIS be made available to the public. NOAA has prepared a DMP/
DEIS on the proposal and copies are available at the address listed in 
the Addresses section of this proposed rule. Responses to comments 
received on the DMP/DEIS will be published in the FEIS and final rule.

Executive Order 12866: Regulatory Impact

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

Executive Order 12612: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 12612.

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that the DMP/DEIS for the GRNMS would 
not have a significant economic impact on a substantial number of small 
entities, based on the regulatory flexibility analysis as follows:

Initial Regulatory Flexibility Analysis for the Proposed Management 
Plan and Proposed Rule for the Gray's Reef National Marine Sanctuary

    Description of the action being taken: This action involves changes 
to clarify existing regulations and promulgation of new regulations for 
the Gray's Reef

[[Page 62037]]

National Marine Sanctuary (GRNMS or Sanctuary). This action is being 
proposed by the National Marine Sanctuary Program (NMSP) of the 
National Oceanic and Atmospheric Administration (NOAA). A review and 
revision of the management plan for the GRNMS, located off the coast of 
Georgia in the federal exclusive economic zone (EEZ), was undertaken 
starting in 1999. Because the existing management plan for the 
Sanctuary dates back to 1983, the decision was made to prepare an 
entirely new management plan for the site. No boundary expansion is 
being proposed, but several regulatory clarifications and new 
regulations are included as part of the new management plan. The 
changes to clarify existing regulations are:
    ? Including submerged lands in the boundary of the Sanctuary, 
which is consistent with the National Marine Sanctuaries Act; and
    ? Revising existing regulations to address placing or 
abandoning structures on the submerged lands; using explosives or 
devices generating electrical current underwater; and moving, removing, 
damaging, or possessing historical resources. The permit regulations 
for the Sanctuary are also being revised and clarified. Prior to permit 
issuance, the Director of the NMSP would be required to consider the 
duration of the activity and its effects; the cumulative effects; and 
whether it is necessary to conduct the proposed activity in the 
Sanctuary. Permit holders would also be required to display a copy of 
the permit on board any vessel or aircraft used in the permitted 
activity.
    The proposed new regulations are:
    ? Anchoring any vessel in the Sanctuary, except as provided 
in Sec.  922.92 when responding to an emergency threatening life, 
property, or the environment, or except as may be permitted by the 
Director.
    ? (i) Injuring, catching, harvesting, or collecting, or 
attempting to injure, catch, harvest, or collect, any marine organism, 
or any part thereof, living or dead, within the Sanctuary by any means 
except by use of rod and reel and handline gear. (ii) There shall be a 
rebuttable presumption that any marine organism or part thereof found 
in the possession of a person within the Sanctuary has been collected 
or removed from the Sanctuary.
    ? Except for possessing fishing gear stowed and not available 
for use, possessing or using within the Sanctuary any fishing gear or 
means except rod and reel and handline gear.
    The new regulations will help address the increase in fishing 
activities and gear types that have a strong potential to damage the 
nationally significant bottom formations and the associated living 
marine resources at GRNMS that were the basis for the designation of 
the Sanctuary.
    Summary of reasons why the action is being taken: The National 
Marine Sanctuaries Act (NMSA) requires that management plans for 
sanctuaries be reviewed every five years and that the management plans 
and regulations are revised, as necessary. This review provides the 
opportunity to ensure that management plans and regulations address 
current issues facing each site. The review undertaken at GRNMS 
indicates that the regulatory changes should be made.
    Statement of the objectives and legal basis for such a rule: The 
legal basis for this action is the NMSA. The objective of preparing a 
new management plan, and its accompanying regulatory changes, is to 
meet the mandates of the NMSA, primarily the protection of the 
resources of the GRNMS.
    Description/Estimate of the number of small entities to which the 
rule would apply:

Overview of Sanctuary Users

    Based on current socioeconomic studies and on-site surveys of 
visitor use, NOAA has determined that the majority of users in GRNMS 
are fishing recreationally with rod and reel gear. These recreational 
fishermen primarily use personal boats originating from various 
locations along the Georgia coast. There are less than ten fishing 
charter operations along the Georgia coast that occasionally target 
GRNMS.
    Commercial fishing activity is negligible in GRNMS. Most commercial 
gear, such as bottom trawls, specimen dredges, explosives, and wire 
fish traps, are already prohibited in GRNMS by existing Sanctuary and 
Magnuson-Stevens Act regulations due to the potential for damage to 
live bottom habitat. Surveys indicate that one charter boat captain may 
fish commercially on occasion using handline gear. Commercial hook-and-
line fishermen targeting reef fish usually bypass the Sanctuary to fish 
well offshore along or just inside the shelf ``break,'' which is 80 
nautical miles off Georgia but much closer to shore off Cape Hatteras, 
North Carolina, and Cape Canaveral, Florida. Commercial boats typically 
work north and south along the ``break'' well offshore of GRNMS and 
normally land most of their catches in Florida and South Carolina since 
it is a shorter trip to and from the ``break'' to these ports.
    While GRNMS is an important recreational fishing destination for 
Georgia, it has only limited use by SCUBA divers due to the depth, 
strong currents and frequent turbidity. Only one diving operation has 
been identified as offering trips to GRNMS (approximately 10 trips per 
year). This business was found to be the only one that offers diving 
trips on its own boat; the others simply provide retail services, 
instruction, and tank fills. Employees of other diving businesses do 
offer their services as guides on privately owned boats. Spearfishing 
activities also appear to be very limited at GRNMS for many of the same 
reasons that limit divers. The one dive operator, who offers trips to 
GRNMS, reported that spearfishing in the Sanctuary is rare. The new 
regulations would prohibit spearfishing and the removal of marine 
organisms or parts (e.g., seashells); all other non-extractive diving 
related activities such as underwater photography and nature would be 
unaffected.

Application and Impact of Regulations on Sanctuary Users

    The regulations would apply to all users of the Sanctuary, 
including small entities. However, as described above, nearly all users 
already conduct their activities in such a manner as to already be in 
compliance with the proposed regulations (i.e., most fishermen and 
divers do not anchor within the area, and the large majority of 
recreational fishermen use rod and reel gear to fish in the area). 
There is only one known captain who occasionally fishes commercially in 
GRNMS using handline gear. Handline gear would continue to be 
authorized for use in the Sanctuary. Spearfishing, an occasional 
practice at the Sanctuary, is available throughout the EEZ off Georgia, 
particularly at the artificial reefs and other natural live bottom 
habitat areas. The protection of Sanctuary waters as the only 
restricted area for spearfishing in the South Atlantic Bight EEZ may 
have positive effects in attracting non spearfishing divers to GRNMS. 
The NMSP therefore expects that this rule would have no significant 
socioeconomic impacts.
    Description of proposed reporting, record keeping and other 
compliance requirements: There are no new reporting, record keeping, or 
other compliance requirements proposed.
    Identification of relevant federal rules that it may duplicate: The 
NMSP is not aware of any other duplicative laws. The Sanctuary lies 
within the South Atlantic Fishery Management Council's (SAFMC) region. 
The SAFMC develops, and NOAA Fisheries approves and

[[Page 62038]]

implements, various fishery management plans addressing specific fish 
species, groups of species, habitat restrictions, gear types, harvest 
limits, and closures. The result is a variety of restrictions on size 
and number of fish caught, type of gear used, category of permits, and 
time and area closures. The new proposed regulations would simplify the 
public's understanding of allowable activities in GRNMS, while 
maintaining SAFMC/NOAA Fisheries restrictions.
    Description and analysis of significant alternatives that would 
accomplish the stated objectives of applicable statutes:
    1. Alternatives to the anchoring prohibition:
    ? Prohibit anchoring and establish a mooring buoy system. 
This alternative is not preferred primarily because (1) user surveys 
and discussion with the GRNMS Advisory Council indicate that it is 
unnecessary for users to anchor or moor in order to fish or dive in the 
area. In fact, the Advisory Council strongly recommended against 
deploying a mooring buoy system, because it was not needed, could be a 
navigational obstacle, and would be an inefficient use of the 
Sanctuary's limited resources. (2) There are concerns that a mooring 
buoy system would concentrate activities, leading to overfishing, 
localized diver impacts, and concentrated marine debris. A secondary 
consideration was the cost of installing and maintaining a mooring buoy 
system. Anchoring and mooring to existing boundary markers would be 
allowed in GRNMS in emergencies.
    ? Establish and mark an anchoring zone over sandy bottom and 
prohibit anchoring elsewhere in the Sanctuary.
    This alternative is not preferred for the same reasons given for 
the mooring buoy alternative. Additionally, recent on-water and aerial 
survey analysis indicates that the majority of anchoring occurs in live 
bottom areas of GRNMS where users are fishing and sometimes diving. 
Thus, a designated anchoring zone over sand would provide no real 
benefit to users because it would distance users from the features that 
attract both fishermen and divers.
    ? Take no regulatory action but conduct an extensive research 
and monitoring program on the impacts of anchoring within GRNMS.
    The short-term negative socioeconomic impacts are expected to be 
negligible. Long-term biological consequences of continued anchoring 
could be severe and the effects on the economic viability of the 
natural community for recreational and research purposes could be 
negative. In addition, design and implementation of the research and 
monitoring program would incur substantial costs. This alternative 
would represent a significant commitment of funding and personnel to 
activities for which the results are already clear. This alternative is 
not an efficient or productive use of limited Sanctuary resources and 
is not preferred.
    ? No Action.
    This alternative is not preferred because allowing continued use of 
anchors at GRNMS would increase the potential for continued damage to 
the live bottom habitat in the Sanctuary. Given the recent observations 
by scientific divers of damage to the live bottom, and analysis of 
anchoring locations in hard bottom areas, continuation of anchoring 
assures that live bottom resources will be damaged and degraded. Also, 
as human population increases in the nearby coastal region and the 
visitor use grows at GRNMS, the damages are likely to increase. The 
long-term result would be diminished socioeconomic value as the 
biological communities degrade.
    2. Alternatives to the fishing ``allowable gear'' regulation:
    ? Prohibit use or possession of spearguns, nets, bandit gear, 
buoy gear, longlines, traps, or pots in GRNMS.
    Some gear types not currently prohibited would have negative 
impacts on habitat and biodiversity. The types of gear include various 
nets, commercial hook and line, longlines, sea bass pots, and buoy 
gear. Eliminating use of these gear types would reduce fishing pressure 
on reef fish stocks and protect vulnerable marine resources, such as 
invertebrates, marine mammals, sea turtles and sea birds. Also, the 
South Atlantic Fishery Management Council and NOAA Fisheries have 
instituted numerous regulations addressing specific fish species, 
groups of species, habitat restrictions, gear types, harvest limits, 
and closures. The result is a mosaic of restrictions on size and number 
of fish caught, type of gear used, category of permits, and time and 
area closures.
    Regulating specific gear types could add more complication and 
confusion for fishermen by lengthening the list of restricted fishing 
methods and gear, versus clearly identifying what gear is allowed in 
GRNMS.
    In addition, periodic analysis of new fishing gear, or gear types 
newly applied in the EEZ off the southeastern United States, would be 
necessary to keep the regulations current. This would add more cost to 
GRNMS and could increase the number of regulatory changes for Sanctuary 
users to adjust to over time. Addressing additional gear prohibitions 
would incur more costs over time, both to GRNMS and users who may have 
already invested in fishing gear that is damaging to GRNMS resources, 
and possibly create more confusion than clarity for users of GRNMS. 
Thus, this alternative is not preferred.
    ? Allow fishing in GRNMS only with rod and reel, handline, 
and spearfishing gear without powerheads.
    This alternative is identical to the preferred alternative, except 
that it would also allow the use of spearfishing gear without 
powerheads. When GRNMS was designated, spearfishing was identified as 
an activity that may be regulated at a later time to ``ensure the 
protection and preservation of the Sanctuary's marine features and the 
ecological, recreational, and aesthetic value of the area.'' Although 
spearfishing was listed because of the potential for damage to marine 
resources, only the prohibition on powerheads (explosives) was 
promulgated at that time. Given the increasing use by recreational 
visitors and the lack of individual large fish observed by researchers, 
GRNMS staff and the GRNMS Advisory Council conclude that spearfishing 
should be prohibited. A restriction on spearfishing at GRNMS was also 
supported by the dive charter operators surveyed by NOAA. This 
alternative is therefore not preferred.
    ? No Action.
    Fishing, specifically recreational fishing with rod and reel gear 
represents the primary use of GRNMS. With increasing numbers of 
fishermen accessing the Sanctuary, maintaining the health of the living 
and non-living resources is a complex challenge. NOAA expects that the 
continuing and increasing levels of certain activities in GRNMS will 
result in a degradation of the habitat and living marine resources. 
This is particularly true given the increase in use, improvements in 
technology and the variety of new fishing gear not contemplated when 
the current regulations were adopted 22 years ago. Taking no action 
would ignore these significant changes over the last 22 years. The 
conservation standards established for the Sanctuary in 1981 were based 
on levels of use far lower than today. Recalibration of the 
conservation measures based on current use is therefore appropriate. 
Consequently taking the ``no action'' alternative is not preferred.

Paperwork Reduction Act

    This proposed rule would not impose an information collection 
requirement subject to review and approval by OMB

[[Page 62039]]

under the Paperwork Reduction Act of 1980, 44 U.S.C. 3500 et seq.

List of Subjects in 15 CFR Part 922

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

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: October 15, 2003.
Richard W. Spinrad,
Assistant Administrator for Ocean Services and Coastal Zone Management.

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

PART 922--[AMENDED]

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

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

    2. 15 CFR Part 922, Subpart I (the regulations for GRNMS) is 
revised to read as follows:

Sec.  922.90  Boundary.

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

    Datum: NAD83
    Geographic Coordinate System
    (a) N 31.362732 degrees W 80.921200 degrees
    (b) N 31.421064 degrees W 80.921201 degrees
    (c) N 31.421064 degrees W 80.828145 degrees
    (d) N 31.362732 degrees W 80.828145 degrees
    (e) N 31.362732 degrees W 80.921200 degrees

Sec.  922.91  Definitions.

    In addition to those definitions found at Sec.  922.3, the 
following definitions apply to this subpart:
    Handline means a single line with no more than three attached 
hook(s) that is tended directly by hand.
    Rod and reel means a rod and reel unit that is not attached to a 
vessel, or, if attached, is readily removable, and from which a single 
line having no more than three hooks attached is deployed. The line is 
payed out from and retrieved on the reel manually, electrically, or 
hydraulically. Not more than eight hooks per line may be used to 
capture bait fish and the hooks must not exceed #8 size category of the 
``sabiki'' style bait hooks.
    Stowed and not available for immediate use means not readily 
accessible for immediate use, e.g., by being securely covered and 
lashed to a deck or bulkhead, tied down, unbaited, unloaded, partially 
disassembled (such as spear shafts being kept separate from spear 
guns), or stowed for transit.

Sec.  922.92  Prohibited or otherwise regulated activities.

    (a) Except as may be necessary for national defense (subject to the 
terms and conditions of Article 5, Section 2 of the Designation 
Document) or to respond to an emergency threatening life, property, or 
the environment, or except as may be permitted by the Director in 
accordance with Sec.  922.48 and Sec.  922.93, the following activities 
are unlawful for any person to conduct or to cause to be conducted 
within the Sanctuary:
    (1) Dredging, drilling into, or otherwise altering in any way the 
submerged lands of the Sanctuary (including bottom formations).
    (2) Constructing any structure other than a navigation aid, or 
constructing, placing, or abandoning any structure, material, or other 
matter on the submerged lands of the Sanctuary.
    (3) Discharging or depositing any material or other matter except:
    (i) Fish or fish parts or bait and chumming materials;
    (ii) Effluent from marine sanitation devices; and
    (iii) Vessel cooling water.
    (4) Operating a watercraft other than in accordance with the 
Federal rules and regulations that would apply if there were no 
Sanctuary.
    (5) (i) Injuring, catching, harvesting, or collecting, or 
attempting to injure, catch, harvest, or collect, any marine organism, 
or any part thereof, living or dead, within the Sanctuary by any means 
except by use of rod and reel and handline gear.
    (ii) There shall be a rebuttable presumption that any marine 
organism or part thereof found in the possession of a person within the 
Sanctuary has been collected or removed from the Sanctuary.
    (6) Except for fishing gear stowed and not available for immediate 
use, possessing or using within the Sanctuary any fishing gear or means 
except rod and reel and handline gear.
    (7) Using underwater any explosives, or devices that produce 
electric charges underwater.
    (8) Moving, removing, damaging, or possessing, or attempting to 
move, remove, damage, or possess, any Sanctuary historical resource.
    (9) Anchoring any vessel in the Sanctuary, except as provided in 
this section, when responding to an emergency threatening life, 
property, or the environment, or except as may be permitted by the 
Director.
    (b) All activities currently carried out by the Department of 
Defense within the Sanctuary are essential for the national defense 
and, therefore, not subject to the prohibitions in this section. The 
exemption of additional activities having significant impacts shall be 
determined in consultation between the Director and the Department of 
Defense.

Sec.  922.93  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec.  
922.92(a)(1) through (9) if conducted in accordance with scope, 
purpose, manner, terms and conditions of a permit issued under this 
section and Sec.  922.48.
    (b) Applications for such permits should be addressed to the 
Director, National Marine Sanctuary Program, ATTN: Manager, Gray's Reef 
National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.
    (c) The Director, at his or her discretion may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by Sec.  922.92(a)(1) through (9). The 
Director must also find that the activity will:
    (1) Further research related to the resources and qualities of the 
Sanctuary;
    (2) Further the educational, natural, or historical resource value 
of the Sanctuary;
    (3) Further salvage or recovery operations in connection with a 
recent air or marine casualty; or
    (4) Assist in managing the Sanctuary.
    (d) The Director shall not issue a permit unless the Director also 
finds that:
    (1) The applicant is professionally qualified to conduct and 
complete the proposed activity;
    (2) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (3) The duration of the proposed activity is no longer than 
necessary to achieve its stated purpose;
    (4) The methods and procedures proposed by the applicant are 
appropriate to achieve the proposed activity's goals in relation to the 
activity's impacts on Sanctuary resources and qualities;
    (5) The proposed activity will be conducted in a manner compatible 
with the primary objective of protection of Sanctuary resources and 
qualities,

[[Page 62040]]

considering the extent to which the conduct of the activity may 
diminish or enhance Sanctuary resources and qualities, any indirect, 
secondary or cumulative effects of the activity, and the duration of 
such effects;
    (6) The proposed activity will be conducted in a manner compatible 
with the value of the Sanctuary as a source of recreation, or as a 
source of educational or scientific information considering the extent 
to which the conduct of the activity may result in conflicts between 
different users of the Sanctuary, and the duration of such effects;
    (7) It is necessary to conduct the proposed activity within the 
Sanctuary to achieve its purposes;
    (8) The reasonably expected end value of the activity to the 
furtherance of Sanctuary goals and purposes outweighs any potential 
adverse impacts on Sanctuary resources and qualities from the conduct 
of the activity; and
    (9) Other matters deemed appropriate do not make the issuance of a 
permit for the activity inappropriate.
    (e) It shall be a condition of any permit issued that the permit or 
a copy thereof be displayed on board all vessels or aircraft used in 
the conduct of the activity.
    (f) The Director shall, inter alia, make it a condition of any 
permit issued that any data or information obtained under the permit be 
made available to the public.
    (g) The Director may, inter alia, make it a condition of any permit 
issued to require the submission of one or more reports of the status 
and progress of such activity.
    (h) The Director may, inter alia, make it a condition of any permit 
issued that a NOAA official be allowed to observe any activity 
conducted under the permit and/or that the permit holder submit one or 
more reports on the status, progress or results of any activity 
authorized by the permit.

[FR Doc. 03-27237 Filed 10-30-03; 8:45 am]
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