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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 12, 2006 (Volume 71, Number 197)]
[Rules and Regulations]
[Page 60055-60064]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc06-1]
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Rules and Regulations
Federal Register
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 031001243-6227-02]
RIN 0648-AQ41
Gray's Reef National Marine Sanctuary Regulations
AGENCY: National Marine Sanctuary Program (NMSP), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Final rule; notice of public availability of final management
plan/final environmental impact statement and record of decision.
-----------------------------------------------------------------------
SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
issuing a final revised management plan and revised regulations for the
Gray's Reef National Marine Sanctuary (GRNMS or sanctuary). The revised
regulations prohibit anchoring in the sanctuary, restrict all fishing
except that conducted by rod and reel, handline, or spearfishing gear
without powerheads, and requires all other forms of fishing gear to be
stowed and not available for immediate use when a vessel with such gear
is in the sanctuary.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised
designation and regulations shall take effect and become final after
the close of a review period of forty-five days of continuous session
of Congress beginning on October 12, 2006. Announcement of the
effective date of the final regulations will be published in the
Federal Register.
ADDRESSES: Copies of the final management plan/final environmental
impact statement and the record of decision are available upon request
to the Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle,
Savannah, Georgia 31411; 912/598-2381.
FOR FURTHER INFORMATION CONTACT: Greg McFall, Acting Sanctuary
Superintendent, Gray's Reef National Marine Sanctuary, 10 Ocean Science
Circle, Savannah, Georgia 31411; 912/598-2345.
SUPPLEMENTARY INFORMATION:
Introduction
Pursuant to section 304(e) of the National Marine Sanctuaries Act
(16 U.S.C. 1434(e)) the National Marine Sanctuary Program (NMSP) issues
a revised management plan for GRNMS. The plan includes several
revisions to existing regulations and several new regulations for the
sanctuary. The new regulations restrict fishing at GRNMS to use of rod
and reel, handline, and spearfishing gear without powerheads, by
prohibiting the injuring, catching, harvesting, or collecting of any
marine organism or part thereof in the sanctuary except by these gear
types. All other forms of fishing gear must be stowed when a vessel is
in the sanctuary. The regulations also prohibit anchoring vessels in
the sanctuary. These measures will afford better protection to the
nationally significant marine resources and habitats at GRNMS.
In the Draft Management Plan/Draft Environmental Impact Statement
(68 FR 62033, October 31, 2003), Alternative ``a'' was identified as
the preferred alternative for fishing, which would have prohibited
spearfishing as well as all other types of fishing except with rod and
reel and handline gear. However, NOAA has decided to adopt fishing
alternative ``c'', which continues to allow use of spearfishing gear
without powerheads. While it has been effectively demonstrated in other
areas that selective removal of large individual fish by spearfishing
can adversely affect the reproductive viability of a given population,
the sanctuary has little data on the actual level of spearfishing at
GRNMS. In order to assess socioeconomic factors of spearfishing
activities at the sanctuary, a focused study will be initiated to
determine the level of spearfishing and other fishing activities. The
sanctuary will also use the ongoing, long-term biological data
collected through the Marine Resources Monitoring, Assessment, and
Prediction Program (MARMAP) and diver census methods to evaluate fish
populations at GRNMS.
NOAA therefore defers taking action on spearfishing as was proposed
in the DMP/DEIS for a period of two years while additional information
is collected on this activity in GRNMS. The issue will be reviewed
again with the benefit of additional socioeconomic and biological
analyses. NOAA will then determine what action to take, if any, given
the additional data.
NOAA has also determined that establishing hook limits on rod and
reel and handline gear, as described in the proposed rule and the DMP/
DEIS, would complicate compliance and law enforcement. Law enforcement
officials noted that the hook limitations would be extremely difficult
to enforce. The preferred alternative, therefore, does not impose hook
limits in the regulations.
Existing regulations are revised to address placing or abandoning
structures on the submerged lands; using underwater explosives or
devices generating electrical current; and moving or damaging
historical resources. The permit regulations for the sanctuary are
revised and clarified. Prior to permit issuance, the Director of the
NMSP is required to consider and make certain findings regarding, among
other things, the duration of the activity and its effects; the
cumulative effects; and whether it is necessary to conduct the proposed
activity in the sanctuary. Permit holders are required to display a
copy of the permit on board any vessel or aircraft used in the
permitted activity.
The final management plan details the goals and objectives and
management responsibilities for the Sanctuary, as well as a series of
action plans that outline marine resource protection, administration,
research and monitoring, exploration, outreach and education, and
performance evaluation activities that are planned for the next five
years. The activities are designed to address specific issues facing
the sanctuary and in doing so, help achieve the management objectives
of the GRNMS and the larger mandates of the NMSP.
This document provides the final regulations and the revised
Designation Document for the sanctuary; and announces the availability
of the final
[[Page 60056]]
management plan and the final environmental impact statement (FMP/FEIS).
Background
Gray's Reef National Marine Sanctuary, which was designated on
January 16, 1981 (46 FR 7942), consists of approximately 16.68 square
nautical miles of ocean waters and hard bottom located 17.5 nautical
miles off Sapelo Island, Georgia. It is one of the largest nearshore
rocky reefs off the southeastern United States and is in a transition
zone between temperate and tropical waters. Some reef fish populations
and plant communities change seasonally, while others are year-round
residents. Migratory fish move through the sanctuary, using the reef
for food and shelter. Loggerhead sea turtles, a threatened species, use
GRNMS for foraging and resting. The reef is also close to the only
known calving ground for the highly endangered Northern right whale.
The hard bottom habitat at the sanctuary is composed of marine
sediments (mud, sand, and shells) that were deposited between 2-
3,000,000 years ago. These marine sediments were consolidated into rock
during subsequent glacial periods by numerous changes in sea level that
repeatedly exposed and then submerged the areas of GRNMS as the
coastline advanced and retreated across the continental shelf.
Recent bottom mapping indicates that the area is a single rock
unit. It is made of calcareous sandstone that formed as a result of the
compacting marine sediments and aerial exposure. The irregularities of
the bathymetry can be attributed to the easily erodable sandstone that
has dissolved and pitted, creating the appearance of isolated ledges
and patches of hard bottom.
The exposed rock offers moderate relief (0.5 to 10 feet in height)
with sandy, flat-bottomed troughs between. The series of rock ledges
and sand expanses has produced a complex habitat of caves, burrows,
troughs, and overhangs that provide a solid base on which temperate and
tropical marine flora and fauna attach and grow. This rocky platform
with its rich carpet of remarkable attached organisms is known locally
as a ``live bottom'' habitat.
The sanctuary is a small but very important part of the broad
continental shelf off the southeastern coast sometimes known as the
South Atlantic Bight (SAB). The SAB extends from Cape Hatteras, North
Carolina to Cape Canaveral, Florida. The outer reaches are dominated by
the Gulf Stream flowing northeastward. The inner area is defined by the
curve of the coastline between the two capes and is dominated by tidal
currents, river runoff, local winds, seasonal storms, hurricanes, and
atmospheric changes. While GRNMS lies in the inner-shelf zone of the
SAB--which causes great seasonal variations in temperature, salinity,
and water clarity--it is also influenced by the Gulf Stream. The Gulf
Stream draws deep nutrient-rich water to the region, and carries and
supports many of the tropical fish species and other animals found in
the sanctuary. Ocean currents transport fish and invertebrate eggs and
larvae from other areas, linking the Sanctuary to reefs both north and
south. GRNMS is the only protected natural reef area in the SAB.
The sanctuary's area constitutes a tiny percentage of the ocean
space off the coast, yet the sanctuary's value as a natural marine
habitat is recognized nationally and internationally. The live bottom
is a flourishing ecosystem that attracts mackerel, grouper, black sea
bass, angelfish, and a variety of other fishes. GRNMS is one of the
most popular recreational fishing and sport diving destinations along
the Georgia coast. Sport fishing occurs year-round but intensifies in
warmer months and with the migration of pelagic game fish.
The sanctuary is located near an area of Georgia coastline that has
experienced a dramatic increase in population. Aerial and on-water
surveys indicate that visitation to GRNMS has increased significantly
since 1981. With continued technological innovations such as global
positioning systems (GPS), electronic fish finders, and improved
watercraft design, it is likely that there will be increasing pressure
on the resources of the sanctuary. With its new management plan and
regulations, NOAA hopes to continue to protect GRNMS for the continued
appreciation and use by the current and future generations.
Because this action includes changes to the sanctuary's Designation
Document, the FMP/FEIS is developed pursuant to section 304(a)(2) of
the NMSA (16 U.S.C. 1434(a)(2)) consistent with, and in fulfillment of,
the requirements of the National Environmental Policy Act of 1969.
Revised Designation Document
NOAA specifies in the Designation Document that the submerged lands
at GRNMS are legally part of the sanctuary and are included in the
boundary description. At the time the sanctuary was designated in 1981,
Title III of the Marine Protection, Research, and Sanctuaries Act (now
also known as the National Marine Sanctuaries Act) characterized
national marine sanctuaries as consisting of coastal and ocean waters
but did not expressly mention the submerged lands thereunder. NOAA has
consistently interpreted its authority under the NMSA as extending to
submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498)
clarified that submerged lands may be designated by the Secretary of
Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)).
Therefore, to be consistent with the NMSA, NOAA is updating the
Designation Document and the boundary description, and is replacing the
term ``seabed'' with ``submerged lands.'' Although certain fishing
activities have been regulated at GRNMS since 1981, terms are being
added to the Designation Document to authorize regulations for use of
allowable fishing gear and to prohibit the possession of non-allowed
gear. This allows sanctuary fishing regulations for GRNMS, recommended
by the South Atlantic Fishery Management Council (SAFMC), to be issued
for the sanctuary. The Designation Document is also updated to
authorize regulating drilling into the submerged lands of the
sanctuary; constructing, placing or abandoning material or matter;
discharging or depositing material or matter outside the sanctuary that
subsequently enters and injures a sanctuary resource or quality; using
explosives or devices that produce electric current underwater; and
moving, removing, injuring, or possessing historical resources.
Language in Article 4 Section 2 providing authority for temporary
emergency regulations has been revised to provide NOAA greater
discretion to act in emergency situations to protect sanctuary
resources on a temporary basis, and is now more consistent with the
NMSA's primary objective of resource protection. Rather than show that
ecosystem damage would be immediate, serious and irreversible before it
could promulgate emergency regulations, NOAA must now show an actual or
imminent risk of destruction, loss of, or injury to a sanctuary
resource or quality. In addition, while emergency regulations must
still be issued on a temporary basis, the 120-day limit has been removed.
Article 6 of the Designation Document is also updated regarding the
process to modify the Designation. The requirement that modifications
to the Designation must be approved by the President is deleted and
replaced with the requirement that modifications be approved by the
Secretary of Commerce
[[Page 60057]]
or his or her designee. This is consistent with amendments to the NMSA
that were enacted after the Sanctuary was designated in 1981 and which
removed Presidential approval as a requirement for designation.
Revised Designation Document for the Gray's Reef National Marine Sanctuary
Preamble
Under the Authority of Title III of the Marine Protection, Research
and Sanctuaries Act of 1972, as amended, (the Act), the waters and the
submerged lands thereunder at Gray's Reef in the South Atlantic Bight
off the coast of Georgia are hereby designated a National Marine
Sanctuary for the purposes of: (1) Protecting the quality of this
unique and fragile ecological community; (2) promoting scientific
understanding of this live bottom ecosystem; and (3) enhancing public
awareness and wise use of this significant regional resource.
Article 1. Designation and Effect
The Gray's Reef National Marine Sanctuary was designated on January
16, 1981 (46 FR 7942). The Act authorizes the Secretary of Commerce to
issue such regulations as are necessary to implement the designation,
including managing and protecting the conservation, recreational,
ecological, historical, cultural, archaeological, scientific,
educational or aesthetic resources and qualities of a national marine
sanctuary. Section 1 of Article 4 of this Designation Document lists
activities of the type that are presently being regulated or may need
to be regulated in the future, in order to protect sanctuary resources
and qualities. Listing in Section 1 does not mean a type of activity is
currently regulated or would be regulated in the future. If a type of
activity is not listed, however, it may not be regulated except on an
emergency basis, unless section 1 is amended to include the type of
activity following the same procedures by which the original
designation was made.
Nothing in this Designation Document is intended to restrict
activities that do not cause an adverse effect on the resources or
qualities of the sanctuary or on sanctuary property or that do not pose
a threat of harm to users of the sanctuary.
Article 2. Description of the Area
The sanctuary consists of an area of ocean waters and the submerged
lands thereunder located 17.5 nautical miles due east of Sapelo Island,
Georgia. The exact coordinates are defined by regulation (15 CFR 922.90).
Article 3. Characteristics of the Area
The sanctuary consists of submerged calcareous sandstone rock reefs
with contiguous shallow-buried hard layer and soft sedimentary regime
which supports rich and diverse marine plants, invertebrates, finfish,
turtles, and occasional marine mammals in an otherwise sparsely
populated expanse of ocean seabed. The area attracts multiple human
uses, including recreational fishing and diving, scientific research,
and educational activities.
Article 4. Scope of Regulation
Section 1. Activities Subject to Regulation
The following activities are subject to regulation under the NMSA.
Such regulation may include prohibitions to ensure the protection and
management of the conservation, recreational, ecological, historical,
scientific, educational, cultural, archaeological or aesthetic
resources and qualities of the area. Because an activity is listed here
does not mean that such activity is being or would be regulated. If an
activity is listed, however, the activity can be regulated, after
compliance with all applicable regulatory laws, without going through
the designation procedures required by paragraphs (a) and (b) of
section 304 of the NMSA (16 U.S.C. 1434(a) and (b)).
1. Dredging, drilling into, or otherwise altering the submerged
lands of the sanctuary;
2. Within the boundary of the sanctuary, discharging or depositing
any material or other matter or constructing, placing, or abandoning
any structure, material or other matter; or discharging or depositing
any material or other matter outside the boundary of the sanctuary that
subsequently enters the sanctuary and injures a sanctuary resource or
quality;
3. Vessel operations, including anchoring;
4. Injuring, catching, harvesting, or collecting any marine
organism or any part thereof, living or dead, or attempting any of
these activities, by any means except by use of rod and reel, and
handline gear;
5. Possessing fishing gear that is not allowed to be used in the
sanctuary;
6. Using explosives, or devices that produce electric charges
underwater; and
7. Moving, removing, injuring, or possessing a historical resource,
or attempting to move, remove, injure, or possess a historical resource.
Section 2. Emergency Regulation
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a sanctuary resource or quality; or to minimize the
imminent risk of such destruction, loss or injury, any activity,
including any not listed in Section 1 of this Article, is subject to
immediate temporary regulation, including prohibition.
Article 5. Relation to Other Regulatory Programs
Section 1. Defense Activities
The regulation of activities listed in Article 4 shall not prohibit
any Department of Defense activity that is essential for national
defense or because of emergency. Such activities shall be consistent
with the regulations to the maximum extent practical.
Section 2. Other Programs
All applicable regulatory programs will remain in effect, and all
permits, licenses and other authorizations issued pursuant thereto
shall be valid within the sanctuary unless authorizing any activity
prohibited by a regulation implementing Article 4.
Article 6. Alteration of This Designation
The terms of designation, as defined under section 304(a) of the
Act, may be modified only by the procedures outlined in paragraphs (a)
and (b) of section 304 of the Act including public hearings,
consultation with interested Federal, State, and local government
agencies, and the South Atlantic Fishery Management Council, review by
the appropriate congressional committees, and approval by the Secretary
of Commerce or designee.
[End of designation document]
Summary of the Regulatory Amendment
The regulatory changes clarify that ``submerged lands'' are within
the boundary and are part of the sanctuary. This updates the boundary
regulation to make it consistent with the NMSA and its definition of
areas of the ``marine environment'' that may be designated as a sanctuary.
The regulations also modify the sanctuary fishing regulations that
have been in effect since 1981. The original regulations prohibited the
use of specific fishing gear within the sanctuary, particularly wire
fish traps and bottom trawls. The new regulation prohibits the
injuring, catching, harvesting, or collecting of any marine organism by
any means except by rod and reel, handline, or spearfishing gear
without powerheads. This establishes a
[[Page 60058]]
clearer, more enforceable approach for the sanctuary fishing
regulations than those currently in effect. Rod and reel gear is the
predominant fishing gear now in use at GRNMS and continues to be
allowed under the regulations. To facilitate enforcement of the gear
restriction, a related regulation requires that all forms of fishing
gear other than rod and reel, handline, or spearfishing gear without
powerheads be stowed when vessels are in the sanctuary.
The final regulations also prohibit anchoring vessels within the
sanctuary. The unique bottom formations and habitats at GRNMS are
vulnerable to the effects of anchoring. The documented increases of
population in the region and of visitor use at GRNMS suggest that the
risk from vessel anchoring will also increase and that prohibiting
anchoring helps protect the live bottom habitat and the associated
living marine resources that GRNMS was designated to protect. This
regulation has little impact on current users of the sanctuary. Based
on findings of a socioeconomic study (Ehler and Leeworthy) conducted in
2002, virtually none of the activities that occur at GRNMS require
anchoring. Fishermen routinely allow their boats to drift during
bottomfishing or are trolling for migratory species, and divers
frequently use a ``live-boat'' for drift diving, due to the strong
currents. There is overall support for the ban on anchoring among users
surveyed during the socioeconomic study. In an emergency situation,
boaters are allowed to anchor in the sanctuary and existing boundary
marker buoys provide a place for a boat to moor in an emergency as well.
Finally, the regulations for the issuance of permits adds a new
permit category for assisting in managing the sanctuary. This
authorizes the NMSP to issue a permit to the sanctuary manager and
qualified individuals outside the NMSP for activities that otherwise
would be prohibited, if the activities assist in sanctuary management
and if they satisfy permit criteria. The permit criteria require the
NMSP or the Superintendent to consider, and make certain findings
regarding, factors including the duration of a proposed activity, its
cumulative effects, and whether it is necessary to conduct the proposed
activity in the sanctuary. A permit holder is required to display a
copy of the permit in any vessel or aircraft being used in the
permitted activity.
The following regulatory changes are also included in this
document: The term ``seabed'' is replaced with ``submerged lands of the
sanctuary'' to be consistent with usage in the NMSA. The prohibition
against dredging, drilling into or altering submerged lands of the
sanctuary specifically includes bottom formations to call attention to
one of the critical elements of the ecosystem at GRNMS. The original
prohibition against constructing any structure other than a navigation
aid is revised to include constructing, placing, or abandoning any
structure or material on the sanctuary submerged lands. This change,
among other things, prohibits activities that have been identified in
the Florida Keys National Marine Sanctuary, where materials are placed
on the submerged lands to create lobster habitat. The prohibition
against using poisons, electric charges, explosives, or similar methods
to take any marine animal not otherwise prohibited from being taken is
revised to prohibit the use underwater of explosives and devices
producing electric current, while the reference to poisons is removed
because it is already addressed by the prohibition against discharges.
Use of these items is prohibited regardless of whether marine animals
are being taken. The regulation prohibiting tampering with, damaging or
removing historic or cultural resources is revised to prohibit moving,
removing, damaging, or possessing any sanctuary historical resource, or
attempting any of these. This change better protects these resources
from being removed and facilitates enforcement by prohibiting their
possession.
Comments and Responses
During the public comment period, 144 written comments were
received. Seven (7) public hearings were also held with approximately
125 individuals in attendance. Comment during the public hearings was
derived out of round table discussions and recorded on flip charts at
each of the small group tables. Written and verbal comments were
compiled and grouped by general topics into a 10-page summary, which
was reviewed and considered by the GRNMS Advisory Council on January
28, 2004.
Substantive comments received are summarized below, followed by
NOAA's response. Multiple but similar comments have been treated as one
comment for purposes of response. Comments beyond the scope of the
proposed action are neither summarized nor responded to.
Comment 1: Many members of the public that have an interest in
spearfishing commented that spearfishing at Gray's Reef should not be
prohibited as proposed in the draft plan. The sanctuary does not have
specific data on the number of people who spearfish and the amount of
fish they take. If spearfishing is prohibited, then all bottom fishing
at the sanctuary should be prohibited too. Bottom fishing takes far
more fish and leaves far more debris on the reef than spearfishing does.
Response: Spearfishing was considered for regulation during the
original 1981 GRNMS designation. No regulations, however, were adopted
at that time, except the prohibition of powerheads (explosives) for
spearfishing. While the number of recreational divers spearfishing at
GRNMS appears to be small, spearfishing typically targets the larger
individual fish among the reef-dependent species. Large fish are
important to the reproductive health of species. Some fish populations
are overfished or approaching overfished status. Some researchers have
commented on the lack of large snapper-grouper individuals at GRNMS
(Bohnsack pers. comm.).
Research has shown significantly reduced populations of larger
predatory fishes where spearfishing occurs (SAFMC, 1990; Bohnsack,
1982; Chapman and Kramer, 1999; Jouvenel and Pollard, 2001). Larger
predators are favored targets of spearfishermen. Reduction in the
larger predatory fishes can have a ``top-down'' effect on fish
populations by allowing other fish populations to increase, altering
the composition of the overall natural communities including invertebrates.
Although the use of powerheads is prohibited at GRNMS, powerhead
cartridges found on site indicate that this gear is still in use. Law
enforcement officials have expressed concerns that some commercial
spearfishing operations may be harvesting large numbers of undersized
fish from the region.
NOAA recognizes that while it has been effectively demonstrated in
other areas that selective removal of large individual fish by
spearfishing can adversely affect the reproductive viability of a given
population, the sanctuary has little data on the actual level of
spearfishing at GRNMS. The sanctuary will, therefore, gather additional
socioeconomic information on this activity in GRNMS and review the
issue again in two years. The additional socioeconomic information
coupled with ongoing biological studies of fish populations will enable
management to better evaluate the impact of current and potentially
future levels of spearfishing at GRNMS.
NOAA therefore defers taking action on spearfishing as was proposed
in the draft management plan for a period of two years while additional
information
[[Page 60059]]
is collected on this activity in GRNMS. NOAA will then determine what
action to take, if any, given the additional information.
Comment 2: (U.S. Environmental Protection Agency, Region IV) The
language used in the Preferred Alternative could be strengthened to
expressly prohibit the use or possession of spearguns, nets, bandit
gear, buoy gear, traps, pots, etc., in the GRNMS. The distinction
between permitted activities and prohibited activities should be made
unambiguously clear.
Response: NOAA has determined that prohibiting specific gear types
could add more complication and confusion for fishermen by lengthening
the list of restricted fishing methods and gear, versus clearly
identifying what gear is allowed in GRNMS. The allowable gear
regulation approach was endorsed by the GRNMS Advisory Council and the
SAFMC as the best approach.
Comment 3: (South Atlantic Fishery Management Council) The SAFMC
voted to support the DMP/DEIS and proposed fishing regulatory language
contained in the November 2003 public hearing document. Prohibiting
anchoring and the other proposed actions are consistent with the
SAFMC's Essential Fish Habitat (EFH) and EFH-Habitat Area of Particular
Concern (HAPC) designations and with the SAFMC's habitat policies. The
SAFMC did, however, request that GRNMS reconsider the proposed 3-hook limit.
Response: NOAA has adopted Alternative ``c'' of the proposed
allowable gear regulation, to permit only rod and reel, handline, and
spearfishing gear without powerheads in the sanctuary. NOAA has
determined that the 3-hook limit on rod and reel and handline gear, as
defined in the draft proposed rule, complicates law enforcement and
compliance. Hooks vary significantly in size and identification since
hooks are made by different manufactures in different countries. Uses
are also varied, making compliance difficult for users and
interpretation of the regulations difficult for law enforcement.
Therefore, NOAA defines the gear allowance without a limit on the
number of hooks.
The process of developing fishing regulations for GRNMS has
complied with the NMSA, including Section 304(a)(5), and the Memorandum
of Understanding executed by the SAFMC, NOAA Fisheries Service, and the
NMSP.
Comment 4: (Georgia Department of Natural Resources, Coastal
Resources Division, Marine Fisheries Section) Prohibiting anchoring and
the other proposed actions are consistent with the SAFMC's EFH and EFH-
HAPC designations and with the Council's habitat policies. The
anchoring prohibition and similar marine resource action plan
strategies to protect the live bottom habitat are appropriate and
consistent not only with the SAFMC's EFH definitions/policies, but also
with the goals and objectives of the NMSP.
Response: See response to comment 3 above. The prohibition of
anchoring is consistent with the SAFMC's EFH and EFH-HAPC designations
of GRNMS, as well as the goals and objectives of the NMSP.
Comment 5: (U.S. Navy, Commander Navy Region Southeast) The Navy
requested that the document expand the statements regarding military
activities to specifically indicate that the sanctuary designation did
not limit or restrict ongoing or future military use for training and
operations.
Response: Existing regulations governing national defense
exemptions for current activities have not changed.
Current Department of Defense activities are essential for national
defense and are not subject to the regulatory prohibitions. The
exemption of additional activities having significant impacts will be
determined in consultation between the Director and the Department of
Defense.
Comment 6: (U.S. Navy, Commander Navy Region Southeast) The Navy
recommended modification of the next to last sentence in the section on
Military Activities on page 53 of the FEIS to read ``Military aircraft
do not routinely fly below 1500 feet or within a one nautical mile
radius of the Sanctuary.''
Response: NOAA acknowledges the Navy's comment and has determined
that the language as it exists in the FMP/FEIS (already published),
coupled with the regulations governing national defense activities,
will adequately address this concern.
Comment 7: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard
District) Section 922.92(5)(ii) of the regulations states that ``There
shall be a rebuttable presumption that any marine organism or part
thereof found in the possession of a person within the sanctuary has
been collected or removed from the Sanctuary.'' A ``rebuttable
presumption'' places the burden of proving that any organism in
possession of an alleged violator was actually caught in the sanctuary
on the enforcement entity, something that is very difficult to do
unless directly observed. Section 5 (ii) as written would be extremely
difficult to enforce. The Coast Guard recommended changing this text to
simply prohibit possession of any marine organism or part thereof when
within the sanctuary and when in possession of any fishing gear or
means except rod and reel and handline gear that is available for use.
The prohibition text should also ensure that it is illegal to possess
any species caught with a gear type prohibited in the sanctuary.
Response: The U.S. Coast Guard is a key enforcement partner to NOAA
in the protection of sanctuary resources and NOAA appreciates its
comment to improve the regulation. The rebuttable presumption does not
place any additional burden on the enforcement entity; rather it
operates such that any person located inside the sanctuary and found in
possession of a marine organism is presumed to have taken that organism
from the sanctuary. Thus, no actual observation of a violation is
required--it is presumed--and the burden is shifted to the alleged
violator to provide some evidence proving the organism was in fact not
taken from the sanctuary. Although the presumption can be overcome by
the introduction of contrary evidence, NOAA regards the rebuttable
presumption as generally useful to enforcement of the sanctuary
regulations and, therefore, believes it should be retained in the final
regulations. Language in the text of the allowable gear regulation
addresses possession of species caught in the sanctuary with prohibited
gear types.
Comment 8: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard
District) Section 922.92(6) of the DMP/DEIS prohibits gear other than
rod and reel and handline gear unless ``stowed and not available for
use.'' This term is later defined as ``stowed and not available for
immediate use.'' This disparity between prohibition and definition will
cause confusion and may make this prohibition unenforceable. The
definition and prohibition language should be aligned.
Response: NOAA has corrected this typographical error in the FMP/
FEIS by adding the word ``immediate'' in Section (6).
Comment 9: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard
District) Rod and reel gear is defined in the definitions section, and
the definition includes a limit on the number of hooks per line to
capture baitfish and a limit on the size and type of hooks that can be
used. This limitation should be removed, as it is extremely difficult
to enforce. However, if this limit is retained these prohibitions
should be moved from the definition section and be included under the
new regulation section. This will help simplify the regulations, a key
component of an enforceable regulation.
[[Page 60060]]
Response: NOAA has changed the regulation. See response to comment
3 above.
Comment 10: (U.S. Coast Guard, Commander (OLE), 7th Coast Guard
District) Prior to implementing a final rule, GRNMS should coordinate
with NOAA General Counsel for Enforcement and Litigation to update
GRNMS' penalty schedule. The current penalty schedule was last revised
in January 1997, and a proposed revision drafted in 2002 has not gone
into effect. Unfortunately, the proposed revision is not adequate and
does not address the proposed regulation changes in the DMP/DEIS. In
addition, the majority of potential violations within GRNMS are likely
to be small and perpetrated by recreational fishermen. Any penalty
schedule update should reflect this.
Response: NOAA has developed a national penalty schedule for the
NMSP. Penalty schedules, however, are not established by rulemaking;
they are for internal guidance and have no binding effect on the amount
of a penalty that may be assessed for a violation. Rather they are
intended for consistency across a national system. The NMSA remains the
authority for, and the source of, penalties that NOAA may assess.
Comment 11: The South Carolina Aquarium fully supports the
increased protection proposed in the DMP/DEIS. Limits placed on
spearfishing and anchoring would help to minimize damage due to human
activities on Gray's Reef.
Response: NOAA has chosen the prohibition on anchoring (alternative
``a''). Regarding spearfishing, see response to comment 1 above.
Comment 12: The Coastal Group, Georgia Chapter, Sierra Club
strongly supports the two major regulatory changes in the management
plan: the prohibition of dropping anchor except in an emergency and the
elimination of spearfishing from the sanctuary.
Response: NOAA has chosen the prohibition on anchoring (alternative
``a''). Regarding spearfishing, see response to comment 1 above.
Comment 13: The Center for a Sustainable Coast believes that to
truly serve as a sanctuary for marine life, GRNMS must ultimately be
managed as a reserve to protect all species within its bounds against
fishing and any other activities that disturb natural resources. To
strengthen the capacity of efforts to improve water resource
management, the GRNMS Management Plan should include analysis of the
relationship of watersheds, water use, and water quality with the
inter-tidal and marine areas. GRNMS must work to enhance and support
greater awareness about these issues, and work to build a lasting
intergovernmental management structure capable of resolving the complex
water issues that may impact Gray's Reef and other marine resources.
Response: During the scoping process for the revised management
plan, many comments received asked that GRNMS consider marine reserve
status (no-take) for the sanctuary. As noted in the FMP/FEIS (pages 29
and 69-70), GRNMS determined that marine reserves are best addressed
through our partnership with SAFMC as they continue deliberations on a
network of reserves in the region.
NOAA agrees that water quality is critical to the continued
sustainability of the protected resources at GRNMS. Therefore an
extensive water quality monitoring program has been implemented at
GRNMS. Education programs, such as the Rivers to Reef module, are also
bringing awareness to students and teachers.
Comment 14: Many commenters expressed general support for increased
protection of marine resources in the sanctuary and/or that NOAA adopt
the preferred fishing alternative ``a.''
Response: See responses to comments 11 through 13 above.
Comment 15: One member of the public commented that GRNMS should be
managed as a ``sanctuary;'' and/or allow only dive activities; and/or
allow only transit through the sanctuary with fishing gear stowed.
Response: GRNMS is managed as a ``national marine sanctuary,''
which is defined in the NMSA as ``an area of the marine environment of
special national significance due to its resource or human-use values,
which is designated as such to ensure its conservation and
management.'' As such, all uses are evaluated as to whether they are
compatible with the primary objective of resource protection. Ongoing
research and monitoring are conducted to support that objective.
Comment 16: One commenter suggested that GRNMS should consider
designating 25-50 percent of the sanctuary as a reserve for non-
extractive uses. Protect Gray's Reef NMS as representative hard-ground
live bottom habitat in the South Atlantic Bight.
Response: See response to comment 13 above.
Comment 17: Several members of the public commented that non-
extractive diving as a compatible use at GRNMS is growing; more divers
prefer recreational diving for wildlife observation and photography.
Conflicts are arising due to spearfishing at GRNMS because the fish,
particularly larger fish, are either killed or scared away. Most
spearfishermen do not use GRNMS, but prefer other offshore sites.
Response: See response to comment 1 above.
Comment 18: Several members of the public asked if the proposed
regulations restrict use of commonly used equipment such as downriggers
and marker buoys?
Response: The FMP/FEIS does not propose restrictions on commonly
used equipment such as downriggers and marker buoys. The document
specifically states on page 65: ``Items that are deployed and
subsequently retrieved the same day, such as fishing line and small
marker buoys, are not considered `deposited' in the Sanctuary.''
Comment 19: A member of the public commented that GRNMS should
reduce all commercial and recreational fish harvest to ``sustainable
levels.'' GRNMS should ban all commercial fishing and charter/head
boats in order to achieve sustainable levels of harvest.
Response: NOAA is responsible for the conservation and management
of fish stocks within the Federal 200-mile limit exclusive economic
zone of the Atlantic Ocean off the southeastern U.S. under the
Magnuson-Stevens Fishery Conservation and Management Act. Under this
mandate, sustainable levels of fish harvest are an objective for a wide
range of fish species. Achieving sustainable fishing levels can be done
better on a regional level well beyond the boundaries of GRNMS.
However, the allowable fishing gear approach to GRNMS regulation does
restrict certain types of fishing gear that have a negative impact on
sustainable levels of many fish species.
Comment 20: One member of the public commented that GRNMS should
regulate fishing gear by prohibiting specific gear instead of allowing
specific gear.
Response: NOAA believes that fishing alternative ``b'' would not be
in the best interest of the sanctuary or its users. The allowable gear
approach is simple, clear, and easily understood by the fishing
community and by the public generally. It means that gear identified as
allowable is the only gear that may be used in the sanctuary; use of
all other gear types is prohibited. This is a simpler, clearer approach
than attempting to list all possible gear types that are prohibited. It
also simplifies and facilitates monitoring and law enforcement, and
eliminates the costs to users who develop and utilize fishing gear in
the sanctuary that may have to be prohibited in the future due to
damage to the resources.
[[Page 60061]]
Comment 21: One commenter was concerned that all diving activities
will be eliminated at GRNMS.
Response: This plan does not propose eliminating diving at GRNMS.
Although impacts on bottom resources from diving activities are a
concern, GRNMS will establish a comprehensive outreach and education
program to address these concerns. The revised regulations for GRNMS
are very clear that only specific fishing gear is allowed and any other
form of collection, harvest, or injury to marine organisms is prohibited.
Comment 22: The National Marine Manufacturers Association has
strong reservations about NMSP's proposal to prohibit anchoring in the
sanctuary because there is no evidence that at any point NMSP
considered the effect this proposal would have on boater safety. NMSP
should formally consult with the U.S. Coast Guard (USCG) Office of
Boating Safety for recommendations on how to make NMSP's management
policies consistent with proper boater safety procedures. NMMA also
urges NMSP to adopt anchoring alternative ``b'' and establish and
maintain a mooring buoy system in the appropriate places to enhance
boater safety.
Response: NOAA involved the USCG, area boaters, fishermen, and
divers on many occasions in the development of the FMP/FEIS through
GRNMS Advisory Council meetings, scoping, and workshops. A
representative of the 7th USCG District sits on the Advisory Council,
along with a recreational angler and a recreational dive operator. The
USCG's comment in its formal consultation letter response on the DMP/
DEIS stated that: ``There are no objectionable vessel safety concerns
contained within this proposal.''
Regarding anchoring alternative ``b,'' NOAA has concluded that a
mooring buoy system is not needed, in part because the proposed
regulation allows for use of anchors in emergency situations. The GRNMS
Advisory Council, and other users surveyed in the socioeconomic studies
cited in the FMP/FEIS, also consistently advised that a mooring buoy
system was not needed in the sanctuary because boaters (fishermen and
divers) prefer to drift or troll. The potential negative impacts from
concentrated use around mooring buoys is also a concern for the
sanctuary. GRNMS will continue to monitor use in the sanctuary and may
reconsider mooring buoys in the next management plan review if the
sanctuary finds that they are needed.
Comment 23: A couple members of the public commented that NOAA
should install mooring buoys in the sanctuary to enhance fishing,
diving and research activities if anchoring is prohibited; consider 25-
30 moorings and moveable moorings to minimize the negative impacts of
concentrated activities.
Response: See response to comment 22 above.
Comment 24: Several commenters expressed that NOAA should choose
the preferred alternative ``a'' for anchoring.
Response: NOAA has chosen the preferred alternative ``a'' for anchoring.
Comment 25: One commenter stated that anchoring alternative ``c''
is not a good option because it assumes that sandy areas in GRNMS have
no biological value. It makes little sense to anchor in the sandy areas
away from fishing and diving locations.
Response: NOAA acknowledges the concern about the biological
importance of sandy areas in the sanctuary. Page 38 of the FMP/FEIS
points out the high infaunal diversity in sandy bottom areas of the
sanctuary. NOAA has chosen the preferred alternative ``a'' for anchoring.
Comment 26: One member of the public commented that the prohibition
on anchoring is inappropriate because there is no concrete or
photographic evidence of anchor damage.
Response: Numerous photos have documented damage from anchoring at
GRNMS. Page 61 of the FMP/FEIS shows anchoring gear photographed on a
live bottom area at GRNMS. Numerous studies in other locations have
also definitively documented the significant damage to delicate
invertebrates, corals and hard bottoms from anchoring practices. The
prohibition of anchoring is not a limiting factor for visitors to be
able to conduct recreational activities in GRNMS. Anchoring continues
to be allowed in emergency circumstances.
Comment 27: One member of the public commented that there is no
purpose to establishing a working group to explore the concept of a
marine research area because there is no such thing as a ``natural
process along a populated coast,'' and a marine research area would
have a negative impact on the fishing community. Designating a research
area would open the door to closing the entire sanctuary to fishing;
other live bottom areas in the region should be chosen for a research
reserve instead of GRNMS.
Response: After consideration of the public comments on the DMP/
DEIS, the Advisory Council recommended that the sanctuary establish a
working group to advise the Advisory Council on the development of the
concept of a marine research area. The Advisory Council, with the
concurrence of the sanctuary, established the Marine Research Area
Concept Working Group (RAWG), which met from May 2004 until March 2005.
The Working Group was comprised of representatives from education,
fishing, diving, research and conservation, law enforcement, and other
regional, private, State, and Federal organizations. The
recommendations from the Working Group to the Advisory Council can be
found in Section III under the Research and Monitoring Action Plan (RM-
2). The Advisory Council deliberated on the Working Group's
recommendations at its June 2005 meeting and made its recommendations
to the sanctuary (also found at RM-2).
NOAA has accepted the recommendations of the Advisory Council and
made a decision to more formally consider the concept of a research
area in the sanctuary through a public process guided by requirements
of NEPA and the NMSA.
Comment 28: Members of the public commented that GRNMS should
consider an area only for research in the sanctuary; the reserve could
serve as a ``constant'' for monitoring marine resources, and help
improve information specific to Gray's Reef.
Response: See response to Comment 27 above. The research area
concept should be considered and an investigation of its benefits will
move forward.
Comment 29: Members of the public commented that GRNMS should
consider a ``rotational'' marine research area (either geographically
or temporally).
Response: See response to comment 27 above.
Comment 30: One member of the public noted that if the document is
to follow the provisions of NEPA, it must have a List of Preparers
contained within.
Response: A full list of preparers is included in the FMP/FEIS in
an appendix entitled List of Preparers.
Comment 31: A member of the public urged GRNMS to formally
incorporate a study of birds which occupy the reef as part of Goal 2 as
research into the ecology of the reef.
Response: Surveys of birds in the sanctuary have become a regular
part of the monitoring program.
Miscellaneous Rulemaking Requirements
National Marine Sanctuaries Act
Section 301(b) of the National Marine Sanctuaries Act (16 U.S.C.
1434) provides authority for comprehensive and coordinated conservation
and management of national marine sanctuaries in coordination with other
[[Page 60062]]
resource management authorities. Section 304(a)(4) of the National
Marine Sanctuaries Act (16 U.S.C. 1434(a)(4)) requires that the
procedures specified in section 304 for designating a national marine
sanctuary be followed for modifying any term of designation. Because
this action revises the sanctuary designation document (i.e., the
sanctuary boundary is revised to specifically include the submerged
land), NOAA must comply with the requirements of section 304. All
necessary requirements have been completed.
National Environmental Policy Act
When changing a term of designation of a national marine sanctuary,
section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a
draft environmental impact statement (DEIS), as provided by the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
that the DEIS be made available to the public. The DEIS, along with a
draft management plan, was released on October 31, 2003 (68 FR 62033).
The public comment period ended on December 31, 2003. A final
environmental impact statement and final management plan were published
and made available to the public on July 28, 2006.
Executive Order 12866: Regulatory Impact
The final rule has been determined to be not significant within the
meaning of section 3(f) of Executive Order 12866 because it will not
result in: (1) An annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, productivity,
competition, jobs, the environment, or public health and safety; (2) A
serious inconsistency or otherwise interfere with an action taken or
planned by another agency; (3) A material alteration of the budgetary
impact of entitlements, grants, user fees, or loan programs or rights
and obligations of such recipients; or (4) Novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in the Executive Order.
Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action does not fall within
the definition of ``policies that have federalism implications'' within
the meaning of Executive Order 13132. The Sanctuary does not include
State waters. Furthermore, the proposed changes will not preempt State
law, but will simply complement existing State authorities. In keeping
with the intent of the Executive Order, however, the NMSP consulted
with the Georgia Department of Natural Resources during development of
the FMP/FEIS and these regulations.
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulations of
the Department of Commerce certified to the Chief Counsel for Advocacy
of the Small Business Administration that the FMP/FEIS for GRNMS does
not have a significant economic impact on a substantial number of small
entities. We received no comment on this certification or the economic
impact of the rule. While minor modifications have been made to the
rule proposed, the basis for the certification has not changed. Thus,
no regulatory flexibility analysis was required and none has been prepared.
The factual basis for this certification follows:
This final rule is associated with a FMP/FEIS that was developed
for the Gray's Reef National Marine Sanctuary (GRNMS), located off
Sapelo Island, Georgia. A FMP is a planning and management document
that describes the objectives, policies, and activities for a
sanctuary. The final rule includes: (1) A prohibition on anchoring
within the Sanctuary (except in emergencies); (2) a revision of
Sanctuary regulations to allow fishing only with rod and reel, handline
gear, and spearfishing gear without powerheads; and (3) a gear stowage
requirement to facilitate enforcement.
Current socioeconomic studies and on-site surveys indicate that the
majority of users in GRNMS are recreational fishermen who use personal
boats and rod and reel gear. There are approximately two dozen charter
fishing operations along the Georgia coast that occasionally target the
Sanctuary. Commercial fishing activity is negligible, as most
commercial fishing gear is prohibited by existing regulations.
Furthermore, nearly all users conduct their activities in a manner that
complies with the final rule.
Paperwork Reduction Act
This proposed rule involves an existing information collection
requirement currently approved by OMB (OMB approval number 0648-0141)
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The
proposed rule will not require any change to the currently approved OMB
approval and would not result in any change in the public burden in
applying for and complying with NMSP permitting requirements.
The public reporting burden for these permit application
requirements is estimated to average 1.00 hour per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate, or any other aspect of this data collection, including
suggestions for reducing the burden, to, David Bizot, National Permit
Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West
Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to
David.Bizot@noaa.gov, by fax to (301) 713-0404; or by e-mail to
David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
The proposed revised permit regulations would require the Director
of the NMSP to consider the proposed activity for which a permit
application has been received. The proposed modifications to the permit
procedures and criteria (15 CFR 922.113) would further refine current
requirements and procedures of the general National Marine Sanctuary
Program regulations (15 CFR 922.48(a) and (c)). The proposed
modifications would also clarify existing requirements for permit
applications found in the Office of Management and Budget approved
applicant guidelines (OMB Control Number 0648-0141). The revised permit
regulations would add language about: the qualifications, finances, and
proposed methods of the applicant; the compatibility of the proposed
method with the value of the Sanctuary and the primary objective of
protection of Sanctuary resources and qualities; the necessity of the
proposed activity; and the reasonably expected end value of the
proposed activity.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act, unless that collection of information
displays a currently valid OMB control number.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Natural resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
[[Page 60063]]
(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program)
Dated: October 4, 2006.
John H. Dunnigan,
Assistant Administrator for Ocean Services and Coastal Zone Management.
? Accordingly, for the reasons set forth above, 15 CFR part 922 is 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. The regulations for GRNMS (15 CFR part 922, subpart I) are revised
to read as follows:
Subpart I--Grey's Reef National Marine Sanctuary
Sec.
922.90 Boundary.
922.91 Definitions.
922.92 Prohibited or otherwise regulated activities.
922.93 Permit procedures and criteria.
Subpart I--Grey's Reef National Marine Sanctuary
Sec. 922.90 Boundary.
The Gray's Reef National Marine Sanctuary (Sanctuary) consists of
approximately 16.68 square nautical miles of ocean waters and the
submerged lands thereunder, off the coast of Georgia. The Sanctuary
boundary includes all waters and submerged lands within the geodetic
lines connecting the following coordinates:
Datum: NAD83
Geographic Coordinate System
(1) N 31.362732 degrees W 80.921200 degrees
(2) N 31.421064 degrees W 80.921201 degrees
(3) N 31.421064 degrees W 80.828145 degrees
(4) N 31.362732 degrees W 80.828145 degrees
(5) N 31.362732 degrees W 80.921200 degrees
Sec. 922.91 Definitions.
In addition to those definitions found at Sec. 922.3, the
following definitions apply to this subpart:
Handline means fishing gear that is set and pulled by hand and
consists of one vertical line to which may be attached leader lines
with hooks.
Rod and reel means a rod and reel unit that is not attached to a
vessel, or, if attached, is readily removable, from which a line and
attached hook(s) are deployed. The line is payed out from and retrieved
on the reel manually or electrically.
Stowed and not available for immediate use means not readily
accessible for immediate use, e.g., by being securely covered and
lashed to a deck or bulkhead, tied down, unbaited, unloaded, partially
disassembled, or stowed for transit.
Sec. 922.92 Prohibited or otherwise regulated activities.
(a) Except as may be necessary for national defense (subject to the
terms and conditions of Article 5, Section 2 of the Designation
Document) or to respond to an emergency threatening life, property, or
the environment, or except as may be permitted by the Director in
accordance with Sec. 922.48 and Sec. 922.93, the following activities
are unlawful for any person to conduct or to cause to be conducted
within the Sanctuary:
(1) Dredging, drilling into, or otherwise altering in any way the
submerged lands of the Sanctuary (including bottom formations).
(2) Constructing any structure other than a navigation aid, or
constructing, placing, or abandoning any structure, material, or other
matter on the submerged lands of the Sanctuary.
(3) Discharging or depositing any material or other matter except:
(i) Fish or fish parts, bait, or chumming materials;
(ii) Effluent from marine sanitation devices; and
(iii) Vessel cooling water.
(4) Operating a watercraft other than in accordance with the
Federal rules and regulations that would apply if there were no Sanctuary.
(5)(i) Injuring, catching, harvesting, or collecting, or attempting
to injure, catch, harvest, or collect, any marine organism, or any part
thereof, living or dead, within the Sanctuary by any means except by
use of rod and reel, handline, or spearfishing gear without powerheads.
(ii) There shall be a rebuttable presumption that any marine organism
or part thereof referenced in this paragraph found in the possession of
a person within the Sanctuary has been collected from the Sanctuary.
(6) Except for possessing fishing gear stowed and not available for
immediate use, possessing or using within the Sanctuary any fishing
gear or means except rod and reel, handline, or spearfishing gear
without powerheads.
(7) Using underwater any explosives, or devices that produce
electric charges underwater.
(8) Breaking, cutting, damaging, taking, or removing any bottom
formation.
(9) Moving, removing, damaging, or possessing, or attempting to
move, remove, damage, or possess, any Sanctuary historical resource.
(10) Anchoring any vessel in the Sanctuary, except as provided in
Sec. 922.92 when responding to an emergency threatening life,
property, or the environment.
(b) All activities currently carried out by the Department of
Defense within the Sanctuary are essential for the national defense
and, therefore, not subject to the prohibitions in this section. The
exemption of additional activities having significant impacts shall be
determined in consultation between the Director and the Department of
Defense.
Sec. 922.93 Permit procedures and criteria.
(a) A person may conduct an activity prohibited by Sec.
922.92(a)(1) through (10) if conducted in accordance within the scope,
purpose, manner, terms and conditions of a permit issued under this
section and Sec. 922.48.
(b) Applications for such permits should be addressed to the
Director, National Marine Sanctuary Program, ATTN: Manager, Gray's Reef
National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.
(c) The Director, at his or her discretion may issue a permit,
subject to such terms and conditions as he or she deems appropriate, to
conduct an activity prohibited by Sec. 922.92(a)(1) through (10). The
Director must also find that the activity will:
(1) Further research related to the resources and qualities of the
Sanctuary;
(2) Further the educational, natural, or historical resource value
of the Sanctuary;
(3) Further salvage or recovery operations in connection with a
recent air or marine casualty; or
(4) Assist in managing the Sanctuary.
(d) The Director shall not issue a permit unless the Director also
finds that:
(1) The applicant is professionally qualified to conduct and
complete the proposed activity;
(2) The applicant has adequate financial resources available to
conduct and complete the proposed activity;
(3) The duration of the proposed activity is no longer than
necessary to achieve its stated purpose;
(4) The methods and procedures proposed by the applicant are
appropriate to achieve the proposed activity's goals in relation to the
activity's impacts on Sanctuary resources and qualities;
(5) The proposed activity will be conducted in a manner compatible
with the primary objective of protection of
[[Page 60064]]
Sanctuary resources and qualities, considering the extent to which the
conduct of the activity may diminish or enhance Sanctuary resources and
qualities, any indirect, secondary or cumulative effects of the
activity, and the duration of such effects;
(6) The proposed activity will be conducted in a manner compatible
with the value of the Sanctuary as a source of recreation, or as a
source of educational or scientific information considering the extent
to which the conduct of the activity may result in conflicts between
different users of the Sanctuary, and the duration of such effects;
(7) It is necessary to conduct the proposed activity within the
Sanctuary to achieve its purposes;
(8) The reasonably expected end value of the activity to the
furtherance of Sanctuary goals and purposes outweighs any potential
adverse impacts on Sanctuary resources and qualities from the conduct
of the activity; and
(9) There are no other factors that make the issuance of a permit
for the activity inappropriate.
(e) It shall be a condition of any permit issued that the permit or
a copy thereof be displayed on board all vessels or aircraft used in
the conduct of the activity.
(f) The Director shall, inter alia, make it a condition of any
permit issued that any data or information obtained under the permit be
made available to the public.
(g) The Director may, inter alia, make it a condition of any permit
issued to require the submission of one or more reports of the status
and progress of such activity.
(h) The Director may, inter alia, make it a condition of any permit
issued that a NOAA official be allowed to observe any activity
conducted under the permit and/or that the permit holder submit one or
more reports on the status, progress or results of any activity
authorized by the permit.
[FR Doc. E6-16841 Filed 10-11-06; 8:45 am]
BILLING CODE 3510-NK-P