Proposed Rule for the Florida Keys National Marine Sanctuary Management Review: Blueprint for Restoration

AGENCY:

Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION:

Proposed rule; request for public comments.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) is proposing several changes to the Florida Keys National Marine Sanctuary (FKNMS) to expand the boundary of the sanctuary, update sanctuary-wide regulations, update the individual marine zones and their associated regulations, and revise the sanctuary's terms of designation. In addition, a revised draft management plan is included in the supporting material for this proposed rule. FKNMS currently protects 3,800 square miles of waters surrounding the Florida Keys, from south of Miami westward to the Dry Tortugas. Within the boundaries of the sanctuary lie spectacular, unique, and nationally significant marine resources including North America's only coral barrier reef, extensive seagrass beds, mangrove-fringed islands, and more than 6,000 species of marine life. The sanctuary also protects pieces of our Nation's history such as shipwrecks and other archeological resources. This proposed rule follows NOAA's publication of a draft environmental impact statement (DEIS) in August 2019, also referred to as the Restoration Blueprint, which included a range of alternatives. The proposed rule is necessary to improve the condition of resources in the Florida Keys through a series of regulatory measures designed to reduce threats and, where appropriate, restore coral reefs, seagrasses, and other important habitats. The intended effect of this proposed rule is to protect and preserve the living and heritage resources of the Florida Keys for the benefit of the public. NOAA is soliciting public comment on this proposed rule.

DATES:

Comments due: October 26, 2022.

Public Comment Meetings: NOAA will host four public comment meetings during the public comment period, one virtual and three in-person.

The virtual public comment meeting will occur at the following date and time:

• Tuesday, August 30, 2022, Time: 6 p.m.-9 p.m.

The in-person public meetings will occur at the following dates and times:

• Key Largo, FL; Date: September 20, 2022; Location: Key Largo Coral Shores High School Auditorium; Address: 89901 Old Hwy., Tavernier, FL 33070; Time: 6 p.m.-9 p.m.

• Marathon, FL; Date: September 21, 2022; Location: Marathon High School Auditorium; Address: 350 Sombrero Beach Rd., Marathon, FL 33050; Time: 6 p.m.-9 p.m.

• Key West, FL; Date: September 22, 2022; Location: Key West High School Auditorium; Address: 2100 Flagler Ave., Key West, FL 33040; Time: 6 p.m.-9 p.m.

Please check https://floridakeys.noaa.gov/blueprint for meeting links and the most up-to-date information, should plans for these public meetings change. NOAA may end a virtual or in-person meeting before the time noted above if all participants have concluded their oral comments.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NOS-2019-0094, by the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov and search for docket NOAA-NOS-2019-0094, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

• Written comments may also be mailed to: Sarah Fangman, Superintendent, FKNMS, 33 East Quay Rd., Key West, FL 33040.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NOAA. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personally identifiable information ( e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NOAA will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

Copies of the proposed rule, the DEIS, maps of the proposed management zones, and additional background materials can be found on the FKNMS website at https://floridakeys.noaa.gov. The notice of proposed rulemaking can also be downloaded or viewed on the internet at www.regulations.gov (search for docket # NOAA-NOS-2019-0094).

FOR FURTHER INFORMATION CONTACT:

Beth Dieveney, Policy Analyst, FKNMS, 33 East Quay Rd., Key West, FL, 33040, 305-797-6818 phone, or by email at beth.dieveney@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

1. Florida Keys National Marine Sanctuary

Designated in 1990, FKNMS was the ninth national marine sanctuary to be established in a network that now comprises 15 sanctuaries and 2 marine national monuments. As one of the largest marine protected areas in the United States, the sanctuary currently protects approximately 3,800 square miles of coastal and ocean waters from the estuarine waters of South Florida along the Florida Keys archipelago to the Dry Tortugas, encompassing more than 1,700 islands. The ecosystems of FKNMS provide habitats for more than 6,000 species of fishes, invertebrates, and plants, in addition to uniquely expansive and diverse seagrass and coral reef communities.

The Florida Keys have more than 77,000 residents and up to 5.5 million annual visitors, and a local economy of nearly $5.0 billion. In 2018, tourism spending in Monroe County accounted for $2.4 billion, supporting 44 percent of jobs/employment in the county. Tourism activity and spending is heavily dependent on the maintenance of a healthy marine environment. Approximately 60 percent of the economy is tied directly to marine-related activities, including commercial and recreational fishing, boating, diving, wildlife viewing, and other various tourist-related activities. A declining marine environment puts the Florida Keys' economy and jobs at risk.

2. Need for the Proposed Rule

The statutory bases for NOAA's management of FKNMS are primarily the purposes and policies of the National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq. ), and the Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA, Public Law 101-605). The NMSA authorizes the Secretary of Commerce (Secretary) to, among other purposes and policies:

• “Provide authority for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities” (16 U.S.C. 1431(b)(2));
• “Maintain the natural biological communities in the national marine sanctuaries, and to protect, and, where appropriate, restore and enhance natural habitats, populations, and ecological processes” (16 U.S.C. 1431(b)(3));
• “Facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities” (16 U.S.C. 1431(b)(6));
• “Develop and implement coordinated plans of the protection and management of these areas with appropriate Federal agencies, State and local governments . . . and other public and private interests concerned with the continuing health and resilience of these marine areas” (16 U.S.C. 1431(b)(7));
• “Create models of, and incentives for, ways to conserve and manage these areas, including the application of innovative management techniques” (16 U.S.C. 1431(b)(8)); and
• “Evaluate the substantive progress toward implementing the management plan and goals for the sanctuary, especially the effectiveness of site-specific management techniques and strategies, and shall revise the management plan and regulations as necessary to fulfill the purposes and policies of this chapter.” (16 U.S.C. 1434(e)).

Florida Keys National Marine Sanctuary and Protection Act (FKNMSPA, Public Law 101-605), directs NOAA to protect and preserve living and other resources of the Florida Keys marine environment, provide education on and interpretation of sanctuary resources to the public, and manage human uses of the sanctuary consistent with the FKNMSPA.

The need for this proposed rule is to respond to threats to marine resources of the Florida Keys, consistent with the purposes and policies of both the NMSA and the FKNMSPA. FKNMS is currently operating under the original regulations, including marine zones, that became effective in 1997, and a 2007 revised management plan, which directs the sanctuary's non-regulatory management activities. In order to ensure long-term resource viability and ecosystem function, this management framework needs to be updated to address current and foreseeable future threats. Generally, the marine resources within the sanctuary face increased risk from local, regional, and global threats; and changes in visitor numbers, use patterns, types, and shifting recreational interests. Specifically, these threats include diminished water quality originating from both within and outside the sanctuary, significant decrease in coral cover, and habitat degradation from vessel impacts including anchor damage, propeller-scarring, and groundings. Each of these threats has major implications for FKNMS.

In addition, updates are needed to the management regime in order to respond to the 2011 FKNMS Condition Report, which concluded that resources in the Florida Keys appear to be in fair to fair/poor condition, and are generally either stable or in decline. Since the release of the 2011 condition report, sanctuary resources have been further degraded by Hurricane Irma (2017), a serious and widespread coral disease outbreak, and a seagrass die-off, among other threats.

Furthermore, during scoping for the 2019 DEIS, the public emphasized the need for a more ecosystem-based management approach to better protect the region's marine resources. To that end, there was strong support for sanctuary expansion and updated marine zones—actions that are consistent with the purposes and policies of the NMSA and the FKNMSPA. More specifically, the need for this proposed rule is to extend national marine sanctuary protections to areas that have significant marine resources with demonstrated biological and ecological connectivity to existing sanctuary resources and to adapt management strategies to changing conditions, use patterns, and emerging threats to resources. FKNMS' efforts to update the sanctuary's regulations and management plan are informed by recent scientific findings of degraded habitat in the sanctuary and how the condition of resources can improve with application of long-term management and conservation strategies, which include marine zoning.

At the same time, as articulated in the revised draft management plan, continued research, restoration, and education is needed to conserve and restore these nationally significant sanctuary resources. This work is critical for assessing changes occurring in the environment, fostering a stewardship ethic, and developing a better understanding of the ecosystem services that sanctuary resources provide for communities throughout the Florida Keys.

In a parallel process, ONMS has been working to update the sanctuary regulations found at 15 CFR part 922. Part 922 includes general regulations applicable to all sanctuaries (subparts A through E) and site-specific regulations that relate to each individual sanctuary (subparts F through T). An interim final rule that was published at 87 FR 29606 on May 13, 2022 updates and reorganizes the existing regulations, eliminates redundancies across the sanctuary regulations, eliminates outmoded regulations, adopts standard boundary descriptions, and consolidates general regulations and permitting procedures. All regulatory references to 15 CFR part 922 in this proposed rule are to be read as they will be amended by the interim final rule.

3. Incorporation by Reference

The definitions in § 922.162 for “marine life species” and “tropical fish” incorporate by reference the same definitions under State of Florida regulations for Marine Life found at Florida Administrative Code 68B-42.001 and 68B-42.002. Specifically, under these Florida regulations, the definitions of “marine life species” and “tropical fish” incorporate lists of species designated as “restricted species” found at 68B-42.002. Under Florida regulations, a fishing permit is required to target any species that fall under the definition of “marine life species” and “tropical fish.” Similarly, sanctuary regulations at § 922.163(a)(12) require that marine life species only be harvested from the sanctuary if authorized by a state permit or exemption. Sanctuary regulations at § 922.164(b)(2) also prohibit the collection of tropical fish from within two areas of the sanctuary that were formerly the Key Largo and Looe Key national marine sanctuaries. Florida regulations are readily accessible at https://www.flrules.org/. These Florida regulations are currently referenced in the existing sanctuary regulations; at this time NOAA is updating the language in order to comply with Office of Federal Register regulations for incorporation by reference found at 1 CFR part 51.

The definition of “traditional fishing” in § 922.162 incorporates by reference pages 84 through 91 of the 1996 Florida Keys National Marine Sanctuary Final Management Plan/Environment Impact Statement (1996 FL Keys NMS FMP/EIS (Vol. II)). This document was prepared by NOAA to accompany the promulgation of the initial regulations for the newly designated Florida Keys National Marine Sanctuary. The document provides a detailed description of the commercial and recreational fishing activities that historically and presently (as of 1996) were conducted in the Florida Keys region, including targeted species, locations where and seasons when fishing occurred or occurs, and types of gears used to harvest those species. Exemptions from several sanctuary prohibitions for traditional fishing are found in § 922.163(a)(3) (prohibition on altering the seafloor), § 922.163(a)(4) (prohibition on discharges), and § 922.163(a)(14) (prohibition on fish feeding). For more discussion on NOAA's proposed update to the definition of “traditional fishing” to incorporate by reference the 1996 FL Keys NMS FMP/EIS (Vol. II), please see part III, section 2. Sanctuary-wide Regulations, paragraph e Fish Feeding. The 1996 FL Keys NMS FMP/EIS (Vol. II) is readily available at https://floridakeys.noaa.gov/mgmtplans/.

II. FKNMS 2019 DEIS—The Restoration Blueprint Process

1. Notice of Intent & Scoping

On April 19, 2012, NOAA and the U.S. Department of the Interior's (DOI) U.S. Fish and Wildlife Service (USFWS) published a notice of intent in the Federal Register . The notice informed the public of the proposal to develop a Draft Environmental Impact Statement (DEIS), announced five public scoping meetings, and solicited public comment. ONMS and USFWS held public scoping meetings throughout the Florida Keys, in Ft. Myers and Miami and accepted written comments from April 19, 2012, to June 29, 2012. The website provides a scoping comments summary document and original comments can be found at the regulations.gov docket for this notice of intent: NOAA-NOS-2012-0061.

In addition, as part of formal scoping, the FKNMS Sanctuary Advisory Council played a significant role throughout this review and the alternatives development process. Informed by their 2012 Regulatory and Marine Zone Alternatives Development Work Plan and input from four community working groups, the Sanctuary Advisory Council provided over 200 recommendations for the sanctuary superintendent as well as the USFWS Florida Keys National Wildlife Refuges Complex manager to consider when developing alternatives related to regulations and marine zones within the sanctuary. The website https://floridakeys.noaa.gov/review/workgroups.html provides more information and summary documents of the Sanctuary Advisory Council and working groups.

2. Draft Environmental Impact Statement (DEIS)

Following the NOI and scoping, in accordance with the National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq. ) and the NMSA (16 U.S.C. 1434), NOAA prepared and released a DEIS and updated draft management plan on August 20, 2019 (84 FR 45728, September 3, 2019). The DEIS, also referred to as the Florida Keys National Marine Sanctuary Restoration Blueprint, evaluated the environmental consequences of four specific alternatives (see Table 1) and provided an in-depth resource assessment. The alternatives in the DEIS considered sanctuary boundary expansion to protect ecologically connected habitats, proposed new or modified sanctuary-wide regulations, proposed to establish new and modify existing marine zones to protect additional sensitive and threatened coral reef, seagrass, hardbottom habitats and species dependent on these habitats, and included an updated draft management plan. The DEIS alternatives aim to address threats and protect sanctuary resources by separating conflicting uses and managing high intensity and concentrated use activities while still allowing sustainable uses compatible with FKNMS natural resource protection goals.

All alternatives were consistent with NOAA's mission to conserve and manage coastal and marine ecosystems and resources, would further the FKNMS mission to “protect the marine resources of the Florida Keys while facilitating human uses that are consistent with the primary objective of sanctuary resource protection,” would provide for more comprehensive management and protection of important and vulnerable ecological and cultural resources in the Florida Keys, and would provide important opportunities for research and recovery of resources from observed impacts. No significant adverse impacts to the human environment were identified under any alternative considered in the DEIS.

Due to broad public interest and the comprehensive nature of the review of FKNMS regulations and management plan, NOAA separated the DEIS and rulemaking processes to allow increased opportunity for public and agency input to inform this proposed rule. This proposed rulemaking combines individual aspects of each of the four alternatives presented in the DEIS and is directly informed by the thousands of public and agency comments received on the DEIS (see further discussion in part II, section 3. Comments Received on the DEIS; Agency Consultations and Other Coordination and part III. NOAA's Proposed Rule and How it was Informed by Public and Agency Comment of this document).

3. Comments Received on the DEIS; Agency Consultations and Other Coordination

This section provides a high-level summary of public and agency coordination conducted and comments received on the 2019 DEIS. These comments formed the foundation for many of the changes NOAA considered and made between the 2019 DEIS Alternatives and this proposed rule.

a. Public Comments

NOAA accepted public comments on the DEIS from August 2019 to January 2020 through regulations.gov for Docket NOAA-NOS-2019-0094 by mail, and in person during six public hearings and two Sanctuary Advisory Council meetings in Key West, FL; Marathon FL; Key Largo/Islamorada, FL; Coral Gables, FL; and Ft. Myers, FL. Public comments are available for review at www.regulations.gov docket # NOAA-NOS-2019-0094.

NOAA received 1,213 separate comments during the public comment period, and several letter campaigns and petitions each with multiple signatories for a total of well over 35,000 comments. The types of organizations that commented include the following: state and federal agencies, local municipalities, homeowners' associations, fishing organizations, diving organizations, non-governmental organizations, trade organizations, scientists, permit holders, and school groups.

The public comments are generally summarized below, and, where relevant to this proposed rulemaking are included in the specific sections below. A comprehensive summary of public comments along with responses to comments will be included in the final environmental impact statement (FEIS), which FKNMS anticipates will be published in 2022 following public review and comment on this proposed rule.

In general, public comments on the 2019 DEIS ranged from supporting no action or the status quo (Alternative 1) to supporting more protective actions than those proposed in Alternative 4. Many comments supported elements of Alternatives 3 or 4 at a minimum to adequately protect the Florida Keys ecosystem. Comments supportive of the alternatives in the 2019 DEIS referred to increasing threats to resources and a need to increase the size and associated regulations of marine zones. Comments in opposition to the alternatives in the 2019 DEIS primarily spoke against additional marine zones and other regulations that could potentially restrict user access. Many commenters cited a need to address large regional threats, including water quality, education, and enforcement.

b. FKNMS Advisory Council DEIS Review

The FKNMS Sanctuary Advisory Council hosted two meetings (October and December 2019) to hear public comment on the DEIS alternatives. From February through April 2020 the Sanctuary Advisory Council deliberated to prioritize issues and provide NOAA with recommendations.

The range of Sanctuary Advisory Council input is well represented in the range of general public comments received as outlined above and in part III. NOAA's Proposed Rule and How it was Informed by Public and Agency Comment, below, so is not further detailed here.

c. Agency Consultations and Other Coordination

i. U.S. Fish & Wildlife Service Consultation

NOAA and USFWS jointly published a Federal Register notice of intent on April 19, 2012, to notify the public of the agencies' intent to prepare a DEIS and to initiate the scoping process. USFWS participated in the public scoping events and relevant community working groups (Shallow Water Wildlife and Habitat Protection) and provided subject matter expertise throughout development of the DEIS and this proposed rule. In addition, NOAA initiated Endangered Species Act consultation with USFWS Ecological Services in August 2019 and received comment on June 22, 2020. USFWS Ecological Services concurred with NOAA's determinations for potential effects to protected species and noted that coordination with the Florida Keys National Wildlife Refuges would be ongoing in the development of this proposed rule.

USFWS, through the Florida Keys National Wildlife Refuge Complex, provided comments on all proposed Wildlife Management Areas that fall within their National Wildlife Refuge boundaries. Highlights of USFWS comments specific to regulatory and marine zone proposals, including guiding principles that informed their comments, are included in the relevant sections below.

ii. DOI Bureau of Ocean Energy Management (BOEM) Consultation

DOI's Bureau of Energy Management (BOEM) considered potential impacts to offshore wind and determined there would be no effect from NOAA's proposed sanctuary expansion in the Florida Keys. BOEM further reviewed potential offshore oil and gas resources and due to uncertainty provided a low, mid, and high potential impact determination. BOEM determined effects to recoverable methane hydrates would be zero. BOEM identified an expired Outer Continental Shelf Marine Minerals lease less than 200 yards from the northern edge of the proposed sanctuary boundary expansion area that overlaps with the Atlantic Sand Aliquots, a potential sand resource site for beach renourishment projects. FKNMS has since confirmed with the U.S. Army Corps of Engineers and Florida Department of Environmental Protection that the area has not been used as a sand borrow site since 2012.

iii. Regional Fishery Management Council Consultation: Gulf of Mexico and South Atlantic

Pursuant to NMSA Section 304(a)(5), ONMS sent letters on August 22, 2019, to initiate consultation with the Gulf of Mexico Fishery Management Council (GMFMC) and the South Atlantic Fishery Management Council (SAFMC). NOAA also provided multiple updates at the respective Council meetings and various advisory and technical committees over the course of the development of the DEIS and throughout the public comment period following its release.

GMFMC submitted a comment letter dated February 21, 2020, and, in general, noted the need for additional information to facilitate stakeholder understanding of the proposals and engagement in the process and acknowledged the importance of water quality and impacts to coral and other important fish habitats.

SAFMC submitted a comment letter dated March 13, 2020 and, in general, noted concern about water quality degradation and its effects on the fisheries and coral reefs and the need for additional law enforcement.

Where relevant, highlights of GMFMC and SAFMC comments specific to regulatory and marine zone proposals are included in the sections below.

iv. U.S. Department of Defense Coordination

The Department of the Navy provided a summary of their operational environment and activities at Naval Air Station (NAS) Key West during development of the 2019 DEIS (see Appendix F of the DEIS). The Department of the Navy submitted a comment letter on March 2, 2020 and has continued to provide additional information and clarification on Navy activities in and adjacent to the sanctuary throughout the development of this proposed rule. Navy comments included additional information about existing operations in and adjacent to the sanctuary and comments on specific zone proposals in the 2019 DEIS that may impact naval operations are included in relevant sections below.

v. State of Florida Coordination

NOAA has worked closely with several Florida state agencies throughout the public scoping process, and development of the DEIS and this proposed rule. As 60 percent of the sanctuary is within Florida State waters, the sanctuary is cooperatively managed with the State of Florida, with the Department of Environmental Protection (DEP) and Florida Fish and Wildlife Conservation Commission (FWC) as lead agencies. The Florida Department of State through the State Historic Preservation Office (SHPO) is also a key resource management partner for sanctuary historical resources. NOAA coordinates with other state agencies as needed on topic-specific issues. Several co-trustee agreements outline a framework for this cooperative management relationship. These agreements are currently under review and any revised and/or new co-trustee agreements will be included in the FEIS.

Florida Department of Environmental Protection

Florida DEP staff has coordinated directly with sanctuary staff, was represented by a Florida State Parks staff member at most Sanctuary Advisory Council community working group meetings where they provided management perspective and resource status and use data, and has an official non-voting seat on the Sanctuary Advisory Council. DEP submitted a comment letter to NOAA on the 2019 DEIS on May 1, 2020. Generally, DEP comments acknowledged the valuable partnership with the sanctuary and the role DEP's Division of State Lands plays with regards to managing State sovereign submerged lands. DEP also commented that they believed the areas of greatest public concern are water quality, enforcement, habitat restoration, and education and outreach. Highlights of DEP comments specific to regulatory and marine zone proposals are included in the relevant sections below.

Florida Fish and Wildlife Conservation Commission

Florida FWC staff has coordinated directly with sanctuary staff, notably with Florida Fish and Wildlife Research Institute (FWRI) experts assigned to provide scientific and technical support for each of the Sanctuary Advisory Council community working groups. Florida FWC staff also served as a co-chair with FKNMS to facilitate one working group, and has an official non-voting seat on the Sanctuary Advisory Council. NOAA also provided multiple updates at FWC meetings over the course of the development of the 2019 DEIS and throughout the public comment period. In addition, FWRI research findings directly informed various regulatory and zoning aspects of this proposed rule.

FWC submitted a comment letter to NOAA on the 2019 DEIS on April 29, 2020. FWC articulated a suite of guiding principles that informed their comments. FWC further commented on several management plan issues including law enforcement, education, water quality, coral reef ecosystem and recovery, carrying capacity, and artificial reefs. Highlights of FWC's comments specific to regulatory and marine zone proposals are included in the relevant sections below.

Florida State Historic Preservation Office

The Florida State Historic Preservation Office (SHPO) and Florida Division of Historical Resources staff have coordinated with FKNMS staff to review and develop an updated draft Programmatic Agreement under Section 106 of the National Historic Preservation Act regarding Florida Keys National Marine Sanctuary Operations, Management, and Permitting (Programmatic Agreement), which was included in the DEIS (Appendix C) for public comment. In addition, the SHPO submitted a comment letter to NOAA on the 2019 DEIS on January 31, 2020 that noted the DEIS Preferred Alternative (Alternative 3) would sufficiently address the sanctuary's National Historic Preservation Act Section 106 (54 U.S.C. 306108) responsibilities through implementation of the new management plan and Section 106 Programmatic Agreement.

III. NOAA's Proposed Rule and How It Was Informed by Public and Agency Comment

The following sections summarize the proposed rule including a brief discussion of comments received on the 2019 DEIS and how they informed the proposed rule. In addition to comments received the proposed rule is also informed by additional agency input and scientific and user data.

These sections are organized in the same way they were presented in the 2019 DEIS/Restoration Blueprint:

1. sanctuary boundary;

2. sanctuary-wide regulations;

3. marine zone boundaries within the sanctuary; and

4. marine zone regulations.

A revised draft management plan is included as supporting material and is available at the address and website listed in the ADDRESSES section of this proposed rule.

1. Sanctuary Boundary

There are three principal areas where NOAA is proposing changes to the FKNMS boundary. First, NOAA seeks to align the FKNMS seaward boundary with the northernmost Area to Be Avoided (ATBA) seaward boundary, which by doing so will also encompass two areas of the existing ATBA that currently fall outside the sanctuary boundary (two small areas of the ATBA along the Key West shipping channel); second, to encompass the proposed modified Tortugas South Conservation Area (which is currently referred to as the Tortugas South Ecological Reserve); and third, to include a non-contiguous area at Pulley Ridge. First, the boundary expansion to align with the ATBA would result in a consistent regulatory boundary, which is intended to provide clarity for mariners and additional ecosystem protections. The ATBA areas within the sanctuary were established through the FKNMSPA and prohibit operating any tank vessel or vessel over 50 meters length within specified areas to protect coral reef habitat from potential vessel impacts, including groundings. Second, the proposal for boundary expansion in the Tortugas region takes into account recently collected and compiled mapping coverage data and remotely operated vehicle imagery in the southern portion of the existing Tortugas South Ecological Reserve which show unique and sensitive habitat features in this area (for more details on this information see part III, section 3. Marine Zone Boundaries within the Sanctuary, below). And third, NOAA intends to create a non-contiguous sanctuary area that encompasses the southern portion of Pulley Ridge to protect the deepest known photosynthetic coral reef system off the coast of the continental United States. In addition to sanctuary-wide regulations, NOAA is proposing a no anchor regulation in Pulley Ridge that would apply to all vessels to reduce the risk of damage to this fragile coral marine environment (for more details see part III, section 3. Marine Zone Boundaries within the Sanctuary, below).

NOAA received many comments that supported the status quo ( i.e., no change to the overall sanctuary boundary). NOAA also received comments specific to the sanctuary boundary proposals. Of those, the majority were in support of providing additional protections in the Tortugas region and Pulley Ridge, and supported aligning the sanctuary boundary with the ATBA. One comment suggested that NOAA explore other ways to protect Pulley Ridge from anchors. In response, NOAA is considering pursuing International Maritime Organization adoption of a no anchoring area designation for Pulley Ridge, which may affect NOAA's decision about whether to include boundary expansion at Pulley Ridge in the final rule. Comments also specifically opposed boundary expansion at Pulley Ridge because this area is already protected as a GMFMC Habitat Area of Particular Concern (HAPC), and questioned the need for additional action and the ability to enforce regulations in this area. NOAA's proposal considers the HAPC designation. The HAPC is limited to fishing vessels and will not prevent anchoring and anchor damage by non-fishing vessels like the ones documented in GMFMC's letter. Specific to proposed sanctuary boundary expansion in Pulley Ridge, the FMCs and NMFS emphasized a need to consider the interests of fishermen who fish in Pulley Ridge but do not live in the Florida Keys and are therefore potentially unaware of the sanctuary and associated regulations and management goals. Throughout the scoping and 2019 DEIS public comment process, FKNMS made a concerted effort to provide notice and opportunity for engagement by these non-Florida Keys residents through hosting scoping meetings, informational sessions, and public comment meetings ( e.g., Ft. Myers, FL).

Agency comments, specifically from FWC, requested that the proposed boundary in the Tortugas region be shifted further north due to a lack of knowledge about resources in the southern portion of the existing Tortugas South Ecological Reserve (see part III, section 3. Marine Zone Boundaries within the Sanctuary for details as to why NOAA is not proposing this marine zone boundary change).

2. Sanctuary-Wide Regulations

This section describes regulations that would apply throughout the sanctuary ( i.e., sanctuary-wide). This section includes a discussion of how the proposed rule was informed by comments received on the sanctuary-wide regulatory alternatives proposed in the 2019 DEIS and additional relevant information, including discussing why some regulatory alternatives were not carried forward in these proposed regulations.

a. Live Rock Aquaculture

NOAA's proposed rule maintains the current exception for live rock aquaculture from sanctuary-wide regulatory prohibitions if authorized by a submerged lands lease issued by the Florida Department of Agricultural and Consumer Services or a National Marine Fisheries Service (NMFS) Aquacultured Live Rock permit, which is issued under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) authority in conjunction with the U.S. Army Corps of Engineers via the Programmatic General Permit SAJ-71. Additionally, NOAA proposes to develop a Memorandum of Agreement (MOA) with NMFS and Florida Department of Agricultural and Consumer Services related to live rock aquaculture in the sanctuary. This MOA would enhance inter-agency collaboration, clarify the process by which such proposals are reviewed, and ensure that requirements to protect sanctuary resources are included in live rock aquaculture permits. The proposal to develop the MOA is included in the revised draft management plan, which is included with this proposed rule as a supporting document.

The DEIS included a regulatory alternative that would have required live rock aquaculture operations to obtain a separate sanctuary permit, in addition to state or NMFS permits. However, public comments supported either (1) maintaining the status quo ( i.e., no change from current regulations), which provides an exception for permitted live rock aquaculture operations from sanctuary prohibitions, or (2) developing a MOA with NMFS and Florida Department of Agricultural and Consumer Services, which was the preferred alternative (Alternative 3) in the DEIS. After considering public comment, NOAA believes that a MOA will allow NOAA to ensure protection of sanctuary resources through inter-agency collaboration without requiring a separate sanctuary permit.

b. Discharge Regulation Exception

NOAA proposes to update the existing discharge regulation to explicitly prohibit discharge by cruise ships, and to simplify and clarify terminology by removing the exception for “exhaust gas” and “water generated by routine vessel operations.” Each of these are explained in more detail below.

NOAA has a long history of regulating various discharges under the NMSA to ensure that the discharges do not degrade water quality within the sanctuary. When the original FKNMS regulations were implemented in 1997, NOAA established prohibitions against discharging most items into the sanctuary, with exceptions for bait or chum, biodegradable effluent from approved marine sanitation devices, graywater and deck washdown during routine vessel operations, and vessel cooling water and engine exhaust. In sanctuary zones, such as Sanctuary Preservation Areas and Ecological Reserves, NOAA established more stringent regulations to only allow discharge of vessel cooling water and engine exhaust. The 1997 regulations also prohibited the discharge of material or other matter from outside the sanctuary that enters and injures a sanctuary resource. In 1999, the U.S. Environmental Protection Agency (EPA) established a No Discharge Zone under the Clean Water Act (CWA) for vessel sewage in Key West, Florida, within State waters, in response to a petition from the State. The No Discharge Zone prohibited the discharge of untreated or treated vessel sewage, including from marine sanitation devices. Subsequently EPA expanded the No Discharge Zone to all State waters of the sanctuary ( 67 FR 35735; May 21, 2002). In 2010, NOAA removed the exception for discharges from marine sanitation devices in the entire sanctuary under the NMSA, thereby making all sanctuary waters a no discharge zone under the NMSA ( 75 FR 72655; Nov. 26, 2010). Comments on NOAA's rulemaking at that time also supported banning harmful vessel graywater discharges, especially from large cruise ships and cargo vessels. While NOAA did not ban graywater discharges in 2010, NOAA responded by noting that additional water quality regulations may be considered in future FKNMS management plan reviews.

Under its NMSA authorities, NOAA now proposes to further restrict discharges from cruise ships while in the sanctuary. Specifically, the proposed rule would prohibit discharges of any material or other matter from a cruise ship, except cooling water. This change would result in prohibiting the discharges of graywater and deck washdown from cruise ships, which are currently exempt from the prohibitions. Cruise ships are among the largest vessels traversing the sanctuary and the source of a considerable volume of discharges. Scientific literature discusses the adverse effects of various cruise ship discharges on the marine environment, including brine from desalination equipment, ballast water, and spa/pool water, among others. NOAA believes that it is feasible for cruise ships to successfully avoid discharging in sanctuary waters because cruise ship operations in sanctuary waters are extremely limited to entering and leaving the port of Key West. In addition, certain routine maintenance activities may occur while a cruise ship is in port within the sanctuary, including hull cleaning or scraping and application of antifouling paint, which may alter water quality. These activities may occur in other ports in less sensitive ecosystems outside of the sanctuary.

This proposed rule is informed by information received through coordination with the EPA, notably the agency's studies related to cruise ship discharges and vessel operations in other sensitive marine environments (classified as “Waters Federally Protected wholly or in part for Conservation Purposes” under the EPA Vessel General Permit). NOAA also considered information related to the successful management of cruise ship operations in certain National Parks, including Glacier Bay, Alaska where, through concession agreements, cruise ships operate with higher environmental standards when in park waters.

NOAA determined that the 2019 DEIS alternatives, which proposed instead to specify certain discharges that would be allowed by cruise ships ( e.g., “clean wash water”) would be extremely difficult to define based on changing industry standards. The use of such terms could be interpreted differently among stakeholders, which could create compliance and enforcement challenges. Further, NOAA reasonably believes there may be new and emerging technologies and activities on cruise ships that may result in discharges into ocean waters, such as the increased use of exhaust gas scrubber systems, the impacts of which are not fully defined in the scientific literature. As such, instead of attempting to itemize every current and possible future discharge and assess whether it would be prohibited or not, NOAA is proposing to apply the precautionary principle by prohibiting all discharges from cruise ships, except for cooling water.

NOAA would continue to provide an exception to the discharge prohibition for cooling water from all vessels, including cruise ships, because it is currently technologically infeasible for cruise ships to operate without discharging cooling water. However, this exception does not apply if cooling water is mixed with other substances. In particular, cooling water that is mixed with any other substances, such as exhaust gas cleaning systems (EGCS) scrubber wash water, would be prohibited.

NOAA proposes to remove the exception for “exhaust gas” from its discharge prohibitions for all vessels to reduce confusion. NOAA believes the original intent of this exception was to allow the discharge of boat engine wet exhaust, rather than exhaust emissions, since NOAA does not regulate air emissions. The term “cooling water” encompasses “boat engine wet exhaust,” which is defined in the EPA Vessel General Permit (Section 2.2.21) as the ambient water that is injected into the exhaust for cooling and noise reduction purposes and then discharged, typical of marine outboard engine operation. NOAA does not believe “boat engine wet exhaust” or “cooling water” would include any other discharges including EGCS scrubber wash water.

NOAA also proposes to simplify the exception for discharges of “water generated by routine vessel operations.” The current regulatory exception for discharges of “water generated by routine vessel operations ( e.g., deck wash down and graywater as defined in section 312 of the CWA), excluding oily wastes from bilge pumping,” does not clearly explain what types of discharges are allowed. Specifically, the term “water generated by routine vessel operations” is not defined in FKNMS or other agency rules (compared with the terminology used by the Clean Water Act for “discharges incidental to the normal operation of a vessel”), creating ambiguity as to what, if any, additional discharges are meant to be excepted from the regulatory prohibition besides deck washdown and graywater. Based on a review of the original regulations and management plan for the sanctuary, NOAA believes the intention of this exception was simply to allow discharges of cooling water (including boat engine wet exhaust), deck washdown, and graywater, and to explicitly prohibit the discharge of oily bilge wastes. At this time, NOAA is proposing to make technical corrections to the discharge exceptions to simplify this provision to clearly explain that cooling water, deck washdown, and graywater are allowable discharges from vessels other than cruise ships, but oily wastes from bilge pumping are not. NOAA continues to intend that the terms “cooling water,” “deck washdown,” “graywater,” and “oily wastes from bilge pumping” have the same meaning as these terms pursuant to section 312 of the CWA, but believes that inclusion of the citation to that statute in the regulatory text is unnecessary. Discharges of fish and fish parts when part of a traditional fishing activity are allowed under another exception to the discharge prohibitions and would not change.

Of note, on December 4, 2018, Congress passed the Vessel Incidental Discharge Act (VIDA) (Title IX of the Frank LoBiondo Coast Guard Authorization Act of 2018). VIDA requires the EPA to develop new national standards of performance for commercial vessel incidental discharges and the United States Coast Guard to develop corresponding implementing regulations. At the time of publication of this NMSA proposed rule for the FKNMS, implementing regulations for VIDA have not yet been published. However, NOAA acknowledges that when those regulations are finalized, there may be additional discharge prohibitions placed on vessels operating in federally protected waters such as national marine sanctuaries. NOAA would review any VIDA implementing regulations to ensure they are consistent with the sanctuary's primary goal of resource protection and to determine whether conforming changes to the sanctuary regulations may be necessary and appropriate.

During the 2019 DEIS process, public comments strongly supported the need to take additional action related to sanctuary water quality; this included support for revising the existing discharge regulation exceptions to prohibit graywater discharges from cruise ships. Comments also requested clarification about specific discharges that may be allowed and required technological standards ( e.g., closed loop or hybrid exhaust gas cleaning systems). NOAA has intended to address this concern through simplifying the language and intent of the cruise ship discharge prohibition from the 2019 DEIS proposal to this proposed rule.

c. Temporary Regulation for Emergency and Adaptive Management

NOAA proposes updating the existing regulations to allow for rapid, temporary rulemaking to facilitate time-sensitive, adaptive management and respond to emergencies. First, the proposed rule would expand the time frame during which any temporary regulation could remain in place from 60 days to six months, with the option for one additional extension of six months (rather than the currently authorized additional 60 days). While NOAA's proposal is to extend the potential time frame that a temporary regulation could be in effect, NOAA would consider the specific circumstances and craft any temporary regulation for the appropriate duration, which may be less than the maximum time allowed under this proposed regulation. Second, this proposed rule outlines three categories for which NOAA would issue temporary regulations (as outlined below in this section). Third, this proposed rule would set out the procedure by which a temporary regulation would be promulgated. This includes the requirement that the agency provide a justification for the time sensitivity of the action to comply with the Administrative Procedure Act (5 U.S.C. 553(b)(B)). This procedure also (1) addresses notice and comment requirements, and (2) requires State approval for any temporary regulations proposed in State waters. NOAA intends to work with its state partners to clarify the process for actions in State waters in co-trustee management agreements.

NOAA proposes three categories for temporary regulation to protect sanctuary resources when time is of the essence. The first category would allow for temporary regulations to prevent or minimize destruction of, loss of, or injury to sanctuary resources from any human-made or natural circumstances, including a concentration of human use, change in migratory or habitat use patterns, vessel impacts, natural disaster or similar emergency, disease, or bleaching. Second, temporary regulations may be used to initiate restoration, recovery, or other activities where a delay would undermine the success of the activity. Lastly, NOAA may use temporary regulations to initiate research where an unforeseen event produces an opportunity for scientific research that may be lost if it is not initiated immediately.

Importantly, temporary regulations would only allow NOAA to shorten or bypass minimum public comment periods if NOAA makes a finding of “good cause” that such procedures are “impracticable, unnecessary, or contrary to the public interest” pursuant to Administrative Procedure Act (5 U.S.C. 553(b)(B)). This finding must be made before promulgating a temporary regulation without following the full rulemaking procedures, including public notice and comment. While NOAA must make this required finding before promulgating a temporary regulation under this proposal, NOAA believes that all three of the temporary regulation categories will satisfy this good cause requirement because each of these categories requires NOAA to take rapid, immediate actions in order to address an important and time-sensitive environmental need. However, when any given issue arises, NOAA will review it on a case by case basis to determine if application of this proposed rule is consistent with the Administrative Procedure Act. Where the agency determines that time is available without jeopardizing the effectiveness of the action, NOAA will follow notice and comment procedures, even for temporary actions.

Public comments included support for NOAA's authority to respond to emergencies and to allow NOAA to be more responsive to emerging issues that would benefit from immediate management action. NOAA believes this proposal provides a framework for such immediate actions where one did not previously exist. Comments also included concerns that the proposal to expand the time that a temporary regulation could be in place (from a maximum of 120 days to a maximum of one year) would subvert the public comment process required for rulemaking. NOAA is addressing this concern in this proposed rule by identifying categories for which temporary regulations may be promulgated for the public to provide comments, and has incorporated the existing requirements from the Administrative Procedure Act to demonstrate good cause. Some commenters recommended the sanctuary consider different time frames for sanctuary-wide versus marine zone emergencies. NOAA believes different maximum time frames would hamper NOAA's management flexibility. NOAA has established a maximum time frame (six months with one six-month extension), but NOAA would consider shorter time frames where appropriate to meet management needs. Comments also voiced concerns that “emergency” was not clearly defined. NOAA believes it would be clearer and more efficient to establish well-defined categories, criteria, and processes for temporary regulations to respond to time-sensitive needs to manage sanctuary resources, rather than attempt to define “emergency.”

State agency, Gulf of Mexico Fishery Management Council, and South Atlantic Fishery Management Council comments noted concern about application of the emergency regulation to fishing and related businesses; however, the comments also supported aligning the time frame (up to one year) with regulations that provide for emergency actions in section 305(c) of the MSA. NOAA has chosen to increase the time frame to harmonize with the emergency time frames as outlined in section 305(c) of the MSA, as well as other national marine sanctuary regulations. State agency comments emphasized the need for Governor approval for all proposed temporary regulations in State waters and recommended that a process be developed and codified in co-trustee management agreements for FWC and the Governor to engage on temporary regulations in State waters prior to approval. NOAA proposes to maintain the requirements for Governor approval for temporary regulations in State waters and proposes to work with FWC to develop a streamlined co-trustee process.

While NOAA is proposing these regulations to allow greater responsiveness to emerging issues and in response to public comment, in the history of the sanctuary FKNMS has only issued emergency regulations on three separate occasions. In 1997, the emergency regulation was used to prohibit anchoring of vessels 50 meters or greater in an area of Tortugas Bank, which was subsequently established through a full rulemaking process. In 2002, an area of approximately 0.58 acres was identified as an area to avoid for a period of 104 days at the M/V Wellwood grounding site. Finally, in 2003, two areas totaling 425 acres were closed for a period of 60 days to prevent additional injury to living coral in an area impacted by a rapidly spreading coral disease outbreak.

d. Historical Resources Permitting

NOAA proposes to update historical resource permitting by replacing the current survey/inventory, research/recovery, and deaccession/transfer permit categories with a new, single archaeological research permit category. The proposed rule would define the term “archaeological research,” explain criteria that must be met in order for NOAA to issue an archaeological research permit (including applicant qualifications), and prescribe certain conditions that would apply to these permits. This would align sanctuary historical resource permitting with state permitting regulations for archaeological research promulgated under Chapter 1A-32, Florida Administrative Code, and optimize compliance with the Federal archeology program. The Federal archaeology program is a general term used to encompass archeological activities on public land, as well as archaeological activities for federally financed, permitted, or licensed activities on non-federal land. Its foundation is based upon historic preservation laws like the National Historic Preservation Act and Archaeological Resources Protection Act. Dozens of federal agencies, including NOAA, undertake archeological activities and contribute to the Federal archeology program. The Secretary of the Interior is charged with providing general guidance and coordination for all of Federal archeology.

The proposed archaeological research permit category would simplify permitting research focused on historical resources in the sanctuary, including the State waters portion of the sanctuary. While the current system requires separate NOAA and Florida Division of Historical Resources permits for archaeological research activities in State waters, the proposed archaeological research permit category combined with the process set forth in the draft Programmatic Agreement under Section 106 of the National Historic Preservation Act regarding Florida Keys National Marine Sanctuary Operations, Management, and Permitting, would create a single review process for most types of archaeological research in State waters. Research that results in adverse effects to historic properties would not qualify for this simplified permitting process. For example, adverse effects to historical resources may result from site excavation in which case the proposed activity would need to be separately permitted by the State and sanctuary.

The current permitting system is unnecessarily complicated and confusing to applicants as it artificially bisects the archaeological research process. Division of permits into either survey/inventory or research/recovery often resulted in insufficient research plans to meet project goals. The proposed archaeological research permit category would require that applicants commit to following an explicit statement of objectives and that project methods be chosen to gather the information required to meet the stated objectives.

The proposed archaeological research permit category would also require that an applicant be the project's supervising archaeologist whose qualifications meet the Secretary of the Interior's Professional Qualification Standards for archaeology. This aligns with the required credentials for investigators receiving a state archaeological research permit under Chapter 1A-32, Florida Administrative Code. Additionally, the proposed permit category would require that the supervising archaeologist be on site for any excavation and/or artifact recovery. As a result of these proposed changes, NOAA believes that the quality of the research, both proposed and conducted, will be improved. NOAA anticipates that the reporting of research results will also be of higher quality when directed by a professional archaeologist with the required field experience. For the above reasons, NOAA believes that the proposed archaeological research permit category with associated application and review criteria will increase the protection of historical resources throughout the sanctuary.

In addition to the above changes, NOAA proposes to eliminate the permit category allowing for the deaccession/transfer of historical resources. Eliminating the deaccession/transfer of historical sanctuary resources is consistent with Chapter 1A-31, Florida Administrative Code, which states that the State of Florida will not issue permits for exploration and recovery of historic shipwreck sites by commercial salvors or for transferring objects recovered by commercial salvors for areas of the Florida Keys National Marine Sanctuary. Eliminating the deaccession/transfer permit category is also consistent with the Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Programs and Standards for the Treatment of Historic Properties, which focus on the preservation and long-term curation of any recovered historical resources for the benefit of the public (as opposed to private ownership). Likewise, this approach is consistent with the Abandoned Shipwreck Act Guidelines, which recommend that, at a minimum, state-owned shipwrecks located within a national marine sanctuary or in other areas (like habitat areas or coralline formations) protected under Federal or State statute, order or regulation not be available for commercial salvage, treasure hunting or personal collecting. These Federal guidelines, and the statutes that underpin them, are part of the Federal archaeology program and align with NOAA's long-standing classification and protection of historical resources as sanctuary resources under the NMSA.

To date, no deaccession/transfer permit has ever been issued and, as such, the impact of this change will be minimal. NOAA intends to continue engaging directly with current sanctuary historical resource permit holders and entities with pre-existing, valid rights of access to clarify how updated historical resource permitting regulations would or would not affect potential future activities.

The DEIS (Appendix C) also included the draft Programmatic Agreement under Section 106 of the National Historic Preservation Act regarding Florida Keys National Marine Sanctuary Operations, Management, and Permitting (Programmatic Agreement), for public comment. Once finalized, this Programmatic Agreement will be a formal agreement between NOAA, the Florida SHPO, and the Advisory Council on Historic Preservation, and will specify procedures NOAA will follow to satisfy National Historic Preservation Act (NHPA) Section 106 obligations for sanctuary operations, management, and permitting. The draft Programmatic Agreement would provide for streamlined review of certain archaeological research permits, as well as certain sanctuary undertakings that would not adversely affect historic properties.

This proposal responds to public and agency comments that supported updating sanctuary historical resources permitting to align with the State of Florida regulations, creating a consistent approach to permitting historical resource investigations in both state and federal sanctuary waters of the sanctuary. NOAA determined that the benefit of updating the FKNMS historical resource permitting program outweighed public comment supporting the status quo.

NOAA received agency comments from the Florida SHPO that indicated that the proposed permitting update presented as DEIS Preferred Alternative (Alternative 3) would sufficiently address the sanctuary's National Historic Preservation Act Section 106 responsibilities in combination with the new management plan and draft Section 106 Programmatic Agreement. The SHPO also acknowledged that when finalized and executed, the Programmatic Agreement would reinforce the sanctuary's and state's shared stewardship responsibility for historical resources and would also ensure NOAA's consistent and streamlined adherence to National Historic Preservation Act Section 106 regulations. The SHPO noted that comments from other interested parties and the public should be addressed when finalizing the Programmatic Agreement language.

e. Fish Feeding

NOAA proposes to prohibit the feeding and attracting of fish, including sharks, or other marine species, from any vessel or while diving, and to define “diving,” and “feeding.” The term “attracting” is defined in National Marine Sanctuary System-wide regulations at 15 CFR 922.11. The regulatory text in the proposed rule has been developed with additional input and expertise from NMFS staff related to impacts to sharks and shark depredation, human safety concerns, and compliance and enforcement. NOAA has not provided an express “grandfather” clause for current fish feeding operations ( i.e., an exemption for pre-existing operators), although NOAA received some comments requesting such a provision. Instead, NOAA would consider issuing general permits to pre-existing eco-tour operators who are able to satisfy all general permit application requirements. Any permits would contain specific terms and conditions to protect sanctuary resources. In order to assist NOAA in identifying appropriate terms and conditions for such permits, NOAA seeks comments on the numbers, scale, and types of activities related to feeding and attracting fish, including sharks, or other marine species that currently occur within the sanctuary.

NOAA carefully considered public comments regarding extending this prohibition to shore-based operations ( i.e., dock-side fish feeding); however, NOAA is not proposing to regulate shore-based activity at this time because additional information is needed about its scope, scale, and economic impact to develop appropriate regulations.

The proposed new fish feeding regulation would not affect the existing regulatory exception that allows discharge of fish, fish parts, chumming materials, or bait that is used or generated while conducting traditional fishing in the sanctuary.

NOAA proposes modifying the regulatory definition for traditional fishing to clarify that the 1996 FEIS and management plan describe what activities are considered “traditional fishing.” In addition, in response to agency and FMC comments and in recognition of decades of fishery management by state and federal partners that promotes gear innovations to reduce bycatch and other unintended effects of fishing, ONMS plans to work with NMFS, FWC, and the Gulf of Mexico and South Atlantic FMCs on an updated Protocol for Cooperative Fisheries Management. The updated Protocol would further clarify what traditional fishing activities consist of and develop a transparent process by which allowing new or modified fishing activities, such as those that reduce impacts to sanctuary resources, and other relevant changes to fisheries management, can be evaluated for potential future rulemaking.

Public comments generally supported additional prohibitions on fish feeding in the sanctuary. Other comments opposed additional regulation because of the potential loss of eco-tour and educational opportunities and questioned the impacts of fish feeding on the environment, human safety, and fish and shark behavior. In preparing this rule, NOAA has carefully considered available literature on the effects of fish feeding, which include potentially harmful impacts on fish behavior, including shark behavior, and believes that the regulation is necessary. But, as stated above, NOAA would consider issuing permits to pre-existing eco-tour operators in order to minimize the economic impacts of this provision. Agency comments indicated support for regulating fish feeding and, specifically, FWC noted it would consider modifying its existing fish feeding regulation in State waters to be consistent with a sanctuary regulation.

f. Grounded and Deserted Vessels, and Harmful Matter

NOAA proposes including new regulations prohibiting anchoring, mooring, or occupying a vessel at risk of becoming derelict, or deserting a vessel aground, at anchor, or adrift in the sanctuary. The proposed rule would also prohibit leaving harmful matter aboard a grounded or deserted vessel, and would define “at risk of becoming derelict” and “deserting.” The term “harmful matter” is defined in National Marine Sanctuary System-wide regulations at 15 CFR 922.11. These proposed regulations and associated definitions align with existing state regulations that outline conditions for at-risk vessels, and include specific timeframes for giving notice that a vessel has gone aground and for submitting a salvage plan to FKNMS. In addition, these notification requirements would apply anytime a vessel operator strikes the seabed regardless of whether or not sanctuary resources are injured.

NOAA and Florida DEP have an existing Co-Trustee Agreement for Civil Claims that would be updated to reflect these new regulations and processes, and to facilitate coordination and response to grounded and deserted vessels in State waters.

Finally, the revised draft management plan includes additional details for how NOAA would engage with towing and salvage operators to develop best management practices and a permitting process for removing grounded and deserted vessels.

Public comments were generally supportive of NOAA developing new regulations to address grounded and deserted vessels; however, many commenters noted that NOAA should ensure that definitions and application of any proposed regulations are consistent with state regulations and enforcement authorities, particularly related to the term “at risk vessel.” NOAA agrees and the proposed regulations are consistent with state regulations. Commenters also noted that enforcement of a new regulation could prove challenging given the number of deserted vessels in the sanctuary and broad geographic area where they are found. NOAA would collaborate with the State, county, and other partners due to the challenging scope of this issue.

State agency comments were supportive of regulating grounded and deserted vessels, in part, if it builds upon existing state regulations including Florida's Coral Reef Protection Act and relevant FWC boating regulations.

g. Large Vessels and Overnight Use of Mooring Buoys

NOAA proposes to include a new regulation that requires large vessels to use designated large vessel mooring buoys and small vessels to use regular mooring buoys. An associated new definition for “large vessel” would also be added. Additional information about sanctuary mooring buoy management, including plans to engage user groups to help identify areas of use, numbers of users, and placement of mooring buoys, is included in the revised draft management plan.

Public and agency comments generally supported delineating large and small vessel mooring buoys and using the availability of such buoys to limit access to sensitive areas that have been damaged by overcrowding and intensive use. Commenters also recommended boater education courses to increase boater knowledge regarding proper use of and regulations associated with mooring buoys. The sanctuary currently has a voluntary boater education course and participates in and provides sanctuary specific content for boater training courses hosted by the U.S. Coast Guard Auxiliary and others.

Public and agency comments were generally not supportive of prohibiting overnight use of mooring buoys largely due to issues of public safety, public access, and enforcement. Some public comments, however, highlighted concern for new and increasing practice of anchored and moored vessels being used for overnight accommodation ( e.g., vacation rental by owner) and possible impacts from such use, including prohibited discharges. DEP comments also suggested limiting visitors to a maximum 14-day stay to prevent long-term use of moorings, which would be consistent with Florida State Parks rules. While the proposed rule does not include a regulation prohibiting overnight use of mooring buoys at this time, NOAA may reconsider this proposal in the future if conditions warrant.

h. Military Exemption

NOAA proposes revising the existing military exemption regulation in two ways. First, NOAA would update the list of exempted military activities from the list found in the 1996 Final Environmental Impact Statement and Management Plan (FEIS) for the sanctuary to the forthcoming Final Environmental Impact Statement and Management Plan for the sanctuary. Second, NOAA would clarify the process for new military activities to be exempted from sanctuary prohibitions. Each proposed change is described below.

Current FKNMS regulations reference military activities in the sanctuary and, for certain activities, provide an exemption from sanctuary prohibitions. The current exemptions for Department of Defense (DOD) activities in the sanctuary reference existing classes of military activities which were conducted prior to the effective date of these regulations, as identified in the Environmental Impact Statement and Management Plan for the Sanctuary. This language refers to the description of military activities contained in the 1996 FKNMS FEIS (Volume II, pages 93-96). NOAA proposes updating this exemption to include military activities currently conducted within the sanctuary that NOAA has determined are appropriate for exemption because the activities are not likely to injure sanctuary resources or will be carried out in a manner that avoids to the maximum extent practical any adverse impact on sanctuary resources and qualities. An updated list that reflects current DOD activities conducted in the sanctuary that NOAA considers to be exempt is provided in the revised draft management plan. The updated list includes activities that are already exempt, the effects of which were analyzed in the 1996 FKNMS FEIS, and will be included in the 2022 FEIS. In addition, the updated list includes one new activity, the effects of which were analyzed in the Navy's 2018 Atlantic Fleet Testing and Training Environmental Impact Statement and will be incorporated by reference in the forthcoming FEIS. The updated list of exemptions does not include DOD activities that occur outside of the sanctuary, or DOD activities that occur inside the sanctuary but are not prohibited by FKNMS regulations. The updated exemptions would apply to activities that occur within the current sanctuary boundary and the proposed boundary expansion area.

Second, NOAA proposes revising the existing FKNMS military exemption regulation to clarify how new or modified DOD activities may be exempted from the prohibitions in the future. NOAA commits to working with DOD to consider exempting new activities from the prohibitions. NOAA would use the same standard to exempt new activities as used to update the list of DOD exemptions in the forthcoming FEIS. In other words, NOAA would exempt a new activity from the prohibitions if NOAA determines such activity is not likely to injure sanctuary resources or will be carried out in a manner that avoids to the maximum extent practical any adverse impact on sanctuary resources and qualities. Any changes to this list of exempted military activities would only occur after compliance with all applicable laws, such as the Administrative Procedure Act and NEPA, as necessary, and after public notice and comment, as applicable.

NOAA has removed from the military exemption regulation reference to NMSA 304(d) Interagency Cooperation. The regulation previously referenced 304(d) as the mechanism for exempting new DOD activities from the prohibitions. However, NOAA has removed the reference to the 304(d) Interagency Cooperation process because 304(d) applies to all federal agency actions that are likely to destroy, cause the loss of, or injure sanctuary resources, including those conducted by DOD, regardless of whether the specific actions are prohibited by sanctuary regulations. Additionally, certain activities that DOD may seek to exempt from the prohibitions would not require 304(d) consultation if the activities are not likely to injure sanctuary resources.

For those DOD activities that will be exempted and that are likely to injure sanctuary resources, NOAA believes the information DOD provided to NOAA, which was included in Appendix F of the FKNMS 2019 DEIS, satisfies the requirements of a sanctuary resource statement under the NMSA 304(d) Interagency Cooperation provision. Therefore, NOAA will document in the forthcoming FEIS DOD's compliance with the NMSA 304(d) process for all activities that the DOD conducts inside or outside of the sanctuary that are likely to injure sanctuary resources. If a DOD activity described in the 2022 FEIS for this rule is modified, or new information becomes available, such that the activity is likely to destroy, cause the loss of, or injure a sanctuary resource or quality in a manner greater than considered in the FEIS, DOD would reinitiate 304(d) consultation.

Since FKNMS designation, DOD has coordinated closely and successfully with ONMS informally as well as through the Interagency Cooperation requirement under section 304(d) of the NMSA to ensure that DOD operations in the Florida Keys that are essential to national defense are allowed to continue and are conducted to avoid and minimize impacts to sanctuary resources to the greatest extent possible. NOAA is committed to continued partnership with DOD to facilitate mission-critical defense activities in the sanctuary, including reviewing and updating new or changing DOD activities that may warrant exemption from FKNMS regulations.

i. Technical Revisions to Sanctuary Regulations

NOAA proposes including technical revisions and updates to regulatory definitions, terms, and provisions (see the general summary included in Appendix B of the DEIS). As this is the first comprehensive review of FKNMS regulations since they were implemented in 1997, NOAA has undertaken a thorough review of all existing regulations. These technical changes can be grouped in three broad categories described below.

Definitions and Terms would be updated for greater consistency with the State of Florida Administrative Code (F.A.C.), National Marine Sanctuary System-wide regulations, other sanctuary-specific regulations, proposed FKNMS regulations, and the revised management plan. For example, due to proposed new regulations, several new terms and definitions have been added including but not limited to “anchoring,” “archaeological research,” “at risk of becoming derelict,” “continuous transit,” and “deserting.” These new terms are explained in the relevant subsections describing the new substantive regulatory changes in this proposed rule ( i.e., “at risk of becoming derelict” is described in subsection 2.f. of this document). Several terms that are no longer needed or are being replaced with new terms would be eliminated, such as “Ecological Reserve,” “no access buffer,” and “closed.” Terms that are now defined in National Marine Sanctuary System-wide regulations would be removed, including “seagrass” and “vessel.”

General Editorial changes would be made to clarify, remove redundancy, and reorganize and simplify regulations where possible to make them easier to understand. These changes are solely editorial, grammatical, or stylistic, and no new requirements are established by these changes.

Editorial changes to permitting regulations would be made to reduce redundancy with National Marine Sanctuary System-wide permitting regulations, which were recently published for consolidation and updating to 15 CFR subpart D ( 87 FR 29606 ; May 13, 2022). These changes are solely editorial, and no new requirements are established by these changes.

First, since the 1997 FKNMS regulations, ONMS has published application guidelines to aid potential applicants for ONMS permits. The application guidelines explain the necessary parts of an application and how to submit it. Updated National Marine Sanctuary System-wide regulations (15 CFR subpart D) codify these requirements. As such, in the proposed rule, NOAA would remove redundant application instructions.

Second, the proposed rule would also include two new general permit categories that are unique to FKNMS—one for Archaeological Research and one for Restoration—which are discussed in detail in other sections of this document. A third general permit category specific to FKNMS, activities that further FKNMS purposes, is found at 15 CFR subpart D. The proposed rule would only specify where different or additional information or procedures are needed for general permit categories that are unique to FKNMS (such as Tortugas North Conservation Area access permits).

Lastly, NOAA also proposes adding a provision for the certification of any valid lease, permit, license, or right of subsistence use or of access that is in existence when the revised sanctuary terms of designation become effective. Under National Marine Sanctuary System-wide regulations, FKNMS currently has authority to certify such pre-existing rights of access or use (15 CFR 922.10). The proposed rule would add procedures and criteria to clarify how ONMS would issue such certification permits for FKNMS. A certification permit would be available to persons holding such valid and pre-existing rights of access or use in the proposed sanctuary expansion areas, which are currently not under sanctuary jurisdiction but are proposed to be regulated. Certification permits would also be available to persons holding valid and pre-existing rights of access or use to conduct activities in the sanctuary that were not previously regulated but are now proposed to be regulated.

3. Marine Zone Boundaries and Associated Regulations Within the Sanctuary

NOAA's proposed rule includes five marine zone types: Management Areas, Conservation Areas, Sanctuary Preservation Areas, Restoration Areas, and Wildlife Management Areas. This section includes a summary of the marine zones and associated regulations proposed in this rule with relevant highlights from the 2019 DEIS alternatives, and an overview of public and agency comments and how they informed this proposed rule. Global Positioning System (GPS) coordinates for all marine zones included in NOAA's proposed rule can be found in Appendices II through IX. An interactive map (available at the address and website listed in the ADDRESSES section of this proposed rule) showing the existing marine zones and the zoning scheme set forth in this proposed rule, including the specific purpose and intent and resources within each, has also been developed. A marine zone summary table is also provided in the supporting information and is available at the address and website listed in the ADDRESSES section of this proposed rule. The summary table includes the marine zones included in this proposed rule indicating the following: if the marine zone is existing, modified, or proposed new; and if modified, a description of how (spatial or regulation change); and the rationale for the proposed change. In addition to marine zone-specific regulations, sanctuary-wide regulations apply within all marine zones of the sanctuary.

a. Management Areas

NOAA proposes maintaining Key Largo and Looe Key Existing Management Areas, with minor modifications, but would rename them the “Key Largo Management Area” and the “Looe Key Management Area.” These two areas were designated as national marine sanctuaries in 1975 and 1981, respectively, which preceded designation of FKNMS and were therefore included within the FKNMS boundary and referred to as Existing Management Areas. The Looe Key Management Area currently encompasses the Looe Key Special Use Area (SUA) and Sanctuary Preservation Area (SPA). NOAA proposes only slight modifications to the Looe Key Management Area due to the proposed elimination of the Looe Key SUA and the addition of two Restoration Areas within the Looe Key Management Area boundary (see part III, section 3c. Sanctuary Preservation Areas and part III, section 3d. Restoration Areas, below). By eliminating the Looe Key SUA, the Management Area regulations would now apply within the former SUA, and as such, certain fishing activities would be allowed where they are currently not (see the Management Area regulations for details). The Looe Key SPA will remain unchanged. The outer boundary of Looe Key Management Area would not change. With the exception of minor, technical revisions to regulations as explained in part III, section 2i Technical Revisions to Sanctuary Regulations, above, all other Management Area regulations would be maintained in these areas. In response to public comments, NOAA will not apply a no anchor regulation in either Management Area as proposed in the 2019 DEIS.

The Key West and Great White Heron National Wildlife Refuges, which are currently referred to as Existing Management Areas, would simply be referred to by their full names. Existing regulations in the Key West and Great White Heron national wildlife refuges would be maintained with the exception of a minor changes to the area where personal watercraft are allowed (see part III, section 4q. Personal Watercraft below).

i. Public and Agency Comment Highlights Specific to the Proposed Management Areas

NOAA received many comments opposing the no anchor regulation in the Key Largo Management Area proposed in the 2019 DEIS. Comments noted that this was a very large area with multi-use activities, including fishing that would be highly impacted by a no anchor regulation. Comments also noted that the area includes a variety of habitats including sandy bottom, where a no anchor regulation is not needed. Comments did however support the use of no anchor regulations in smaller, targeted areas with sensitive habitats that would benefit from protection from anchor damage. In response to these comments, NOAA will not apply a no anchor regulation in the Key Largo Management Area. However, NOAA does propose additional no anchor regulations in SPAs and Restoration Areas as described in the below sections.

NOAA received public comments on changes proposed in the 2019 DEIS to Looe Key Management Area and associated Sanctuary Preservation Area (SPA) and Special Use Area (SUA). Commenters did not support the proposed changes presented in the 2019 DEIS for a no anchor prohibition for the entire Looe Key Management Area or the proposed expansion of the SPA and SUA boundaries, which would have eliminated a large portion of the Management Area where certain fishing activities are currently allowed. Comments that did not support spatial changes to these zones noted the potential loss of fishing opportunity and access ( e.g., if the Looe Key SPA and SUA were expanded). In response, NOAA is not proposing to prohibit anchoring throughout the Looe Key Management Area or to expand the SPA boundaries. NOAA is proposing to eliminate the existing Looe Key SUA, as described in the Conservation Area section below. Comments supported greater protections in this area due to the presence of coral nursery and transplanting sites, for which NOAA is proposing to create Restoration Areas, as described in the Restoration Area section below.

FWC comments did not support the proposed spatial changes for Looe Key SPA and SUA due to potential loss of fishing access. However, their comments also noted the presence of coral nursery sites in the vicinity of Looe Key SPA and recommended expanding the SPA to capture these sites. Rather than change the SPA, NOAA instead proposes to establish Restoration Areas to capture these sites (see respective sections below for additional information about these zone types and proposed changes).

b. Conservation Areas

NOAA proposes to combine the existing Ecological Reserves and Special Use Areas into one Conservation Area zone type, and to maintain and apply the existing Special Use Area (SUA) regulations prohibiting fishing, requiring continuous transit without interruption, and requiring stowage of gear in such areas. As defined in this proposed rule, “Conservation Area” means an area of the sanctuary that provides natural spawning, nursery, and residence areas for the replenishment and genetic protection of marine life, and protects and preserves groups of habitats and species, within which activities are subject to conditions, restrictions and prohibitions to achieve these objectives. These areas consist of contiguous, diverse habitats, protect a variety of sanctuary resources and/or facilitate scientific research that promotes sanctuary management or recovery of sanctuary resources. In addition, these areas, with the exception of Western Sambo, have similar regulations, which are intended to provide the greatest level of protection to these contiguous habitats and areas set aside to support scientific research.

NOAA's proposed rule includes six Conservation Areas, all of which are existing sanctuary marine zones. Proposed changes include slightly expanding the spatial area of three existing zones (Tennessee Reef, Western Sambo, and Tortugas South), and eliminating one zone (the existing Looe Key SUA). Western Sambo would also be included as a Conservation Area with slightly different regulations as outlined below. With the exception of the zone name change to Conservation Area, NOAA proposes no changes to the existing Conch Reef SUA, Eastern Sambo SUA, or Tortugas North Ecological Reserve.

A summary of proposed Conservation Areas and changes from current FKNMS zoning and regulations follows. Note that for all of the proposed zones below the zone name would be changed to Conservation Area.

• Conch Reef: No changes to the regulations or area.

• Tennessee Reef: No changes to regulations. This zone would be extended to the 90-foot contour line to capture additional deep reef habitats.

• Looe Key: This existing Special Use Area zone would not be converted to a Conservation Area and would be eliminated. This area would, instead, be managed as part of the larger Management Area, as described above in section 3.a. Management Areas.

• Eastern Sambo: No changes to the regulations or area.

• Western Sambo: This existing zone would extend to the 90-foot contour line to capture additional deep reef habitats. In addition, no-anchor restrictions would be included for the southern portion of the zone in the area of most prominent coral reef development. All other existing regulations in Western Sambo would be maintained, including prohibitions on discharging any matter, fishing by any means, or harvesting any marine life. This is the only Conservation Area that allows access for snorkeling and diving. The 2019 DEIS included proposals to establish a shoreline idle speed no wake (Alternative 3) or no entry (Alternative 4) zone, which are not included in this proposed rule.

• Tortugas North: No changes to the regulations or area. In addition, see part III, section 4. Additional Marine Zone Regulations, below, for information on administrative changes to Tortugas North Access Permit requirements.

• Tortugas South: No changes to the regulations. This zone would be extended to the west by one mile along its entire length. This expansion would capture additional habitat west of Riley's Hump that is known to support fish spawning aggregations and important deep reef habitats. Recently collected and compiled mapping coverage data and remotely operated vehicle (ROV) imagery show unique habitat features in this area, including rock escarpment formations and a well-defined ledge. These data also showed the presence of a diversity of fish species. Therefore, the southern boundary of the Tortugas South Conservation Area would not change.

There are several Conservation Areas that NOAA proposed in the 2019 DEIS that are not included in this proposed rule. These are:

• Channel Key Bank and Moser Channel Bank: These proposed new Conservation Areas were included in Alternatives 2, 3, and 4 to protect shallow mixed hardbottom habitat that is not currently well represented in sanctuary marine zones. NOAA's proposed rule does not include these areas as Conservation Areas due to the level of reported fishing use in the area ( e.g., lobster); however, NOAA includes proposed marine zones in the vicinity as idle speed no wake Wildlife Management Areas to protect the bottom habitat from vessel prop scarring (see part III, section 3e. Wildlife Management Areas, below).

• Long Key Tennessee Reef: This area was included as a Sanctuary Preservation Area in Alternative 3 and a Conservation Area in Alternative 4, designed to protect large, contiguous, diverse habitats that support natural spawning, nursery, and residence areas for a variety of marine species. As proposed in the 2019 DEIS, this zone would have included important habitat that supports a range of species life cycle needs ( e.g., lobster settlement) and areas of mixed bottom habitat. Informed by public and FWC comment, NOAA determined that the zone and associated regulations, as designed, may not outweigh the possible negative impact to users including loss of fishing access to local residents, lobster trap fishing, and near-shore flats fishing.

• Tortugas Corridor: This area was included as a Sanctuary Preservation Area in Alternative 3 and a Conservation Area in Alternative 4. This region of the sanctuary serves as a corridor for fish traveling between the Dry Tortugas National Park and known spawning sites in Riley's Hump (within the Tortugas South Conservation Area). NOAA evaluated the need to close this area to fishing, including bottom tending gear. Through consultation with FWC, NOAA determined that the impact to user groups, most notably fishermen, may outweigh the resource protection goals of this proposed zone and associated regulations. However, NOAA acknowledges the importance of conserving fish and wildlife habitat and corridors, and will reconsider this proposal in the future as needed.

i. Public and Agency Comment Highlights Specific to the Proposed Conservation Areas

Public comments related to Conservation Areas both supported the status quo and supported creating additional areas and/or expanding existing or proposed areas. A selection of specific issues is noted here.

Public and agency comments supported expanding the existing Western Sambo Ecological Reserve and the Tennessee Reef Special Use Area to include deep water coral reef habitats. In these proposed expanded zones, FWC also specifically requested that in areas deeper than 60 feet, hook and line trolling or drift fishing be allowed. The proposed rule does not allow fishing in these expanded areas. Conservation Areas are designed to provide the greatest level of protection for the habitats and species within these zones, as such NOAA is not including exceptions for fishing in a portion of these zones. In addition, NOAA determined that consistent regulations would better facilitate public understanding and compliance.

Public and agency comments generally supported extending the existing Tortugas South Ecological Reserve westward to capture additional habitat and an area shown to support multi-fish aggregation activity. Agency comments, specifically from FWC, also recommended that NOAA remove 34 square miles from the southern portion of this zone to allow for fishing opportunities in an area that has been closed to fishing since 2001, noting that the vast majority of known coral reefs in the Tortugas region and fish spawning aggregations would still be included in marine zones in this area. As noted above, NOAA determined that maintaining protection in the southern portion of Tortugas South is warranted due to recently collected and compiled data showing unique habitat features in this area, which support the presence of a diversity of fish species.

Specific to the 2019 DEIS proposal to establish three large, contiguous Conservation Areas in the sanctuary (Carysfort Reef, Long Key Tennessee Reef, and Tortugas Corridor) to further protect interconnected habitats and various stages of marine life, public and agency comments noted the value of providing these additional ecosystem-level management and protection, however also noted the need to properly design a network of reserves. Public comments also included general concern about loss of access and opportunity for use in all the proposed areas. In response to these comments, NOAA is not proposing these three specific areas.

While NOAA is not proposing to include these three new large, contiguous marine zones in the proposed rule at this time, the specific zones proposed in the 2019 DEIS alternatives and the overarching concept of protecting diverse, connected habitats, are topics NOAA may explore more robustly in the future. Specifically, FWC noted that “[t]he knowledge gained from research and monitoring related to the existing spatial management in FKNMS provides a body of knowledge indicating that a properly designed network of reserves containing an appropriate array of management approaches could have substantial positive impacts to the Florida Keys ecosystem and fisheries.” In light of this, FWC recommended NOAA establish an interagency team to evaluate the merits of a carefully designed network of marine reserves. NOAA acknowledges the important research data FWRI scientists have contributed over the years related to performance of the existing network of sanctuary marine zones, and NOAA will continue to work with state and academic partners to monitor the effects of any revised sanctuary zone network, and to explore new contiguous zones in the future.

Public and agency comments did not support creating new Conservation Areas to protect shallow mixed bank and hardbottom habitat in the middle keys, bayside at Channel Key Bank and Moser Channel Red Bay Bank. Public comments noted these are important lobster and flats fishing areas and did not support creating transit only areas; however, public and agency comments did support additional idle speed no wake regulations in these general areas (see the Wildlife Management Area section below).

c. Sanctuary Preservation Areas (SPAs)

NOAA's proposed rule includes 17 SPAs. As defined in NOAA's proposed rule, “Sanctuary Preservation Area” means an area of the sanctuary that encompasses a discrete, biologically important area, within which activities are subject to conditions, restrictions and prohibitions, to avoid concentrations of uses that could result in significant declines in species populations or habitat, to reduce conflicts between uses, to protect areas that are critical for sustaining important marine species or habitats, or to provide opportunities for scientific research.

The proposed rule expands two existing SPAs (Carysfort Reef and Alligator Reef) to capture deep reef habitat, connects the existing Key Largo Dry Rocks and Grecian Rocks SPAs, slightly expands Sombrero Key, eliminates the existing French Reef and Rock Key SPAs, creates two new SPAs at Turtle Rocks and Turtle Shoal, and makes no spatial changes to the eleven existing SPAs: The Elbow, Molasses Reef, Conch Reef, Davis Reef, Hen and Chickens, Cheeca Rocks, Coffins Patch, Newfound Harbor Key, Looe Key, Eastern Dry Rocks, and Sand Key SPAs.

SPA regulations included in the proposed rule eliminate the current exception for catch and release fishing in four existing SPAs where it is currently applied (Conch Reef, Alligator Reef, Sombrero Key, and Sand Key) and eliminate the practice of issuing bait fishing permits (See part III, section 4. Additional Marine Zone Regulations for a full discussion of NOAA's proposal related to bait fishing in the SPAs). In addition, NOAA proposes to prohibit anchoring in all SPAs and to include a new definition for “anchoring,” which would mean securing a vessel to the seabed by any means. All other existing SPA regulations would remain, including prohibitions on discharging any matter except cooling water and fishing by any means or harvesting any marine life. Consistent regulations throughout SPAs are intended to clarify for the public what is allowed and what is restricted to promote understanding and compliance and to facilitate enforcement and management.

A summary of proposed Sanctuary Preservation Areas and changes from current FKNMS zoning and regulations and/or the 2019 DEIS alternatives follows (listed northeast to southwest). For all of the zones listed below, the SPA regulations as outlined above and at 15 CFR 922.164(e), would apply.

• Turtle Rocks: This is a proposed new SPA. This marine zone is expanded slightly from the area included in the 2019 DEIS alternatives to align with the John Pennekamp Coral Reef State Park No Lobster Trap zone and to capture additional historical resources.

• Carysfort Reef: This existing SPA would be expanded to the 90-foot contour to include additional deep reef habitat. This SPA would not include any limited entry regulations as had been proposed in the 2019 DEIS preferred alternative (Alternative 3).

• The Elbow: Existing SPA; no proposed boundary change.

• Key Largo Dry Rocks-Grecian Rocks: This is a proposed modified SPA that would connect two existing SPAs. The proposed rule includes a smaller area than was included in the 2019 DEIS preferred alternative (Alternative 3) due, in part, to public and agency comments noting that the larger zone included sandy bottom area and that SPA protections should be focused on the sensitive coral reef habitats.

• French Reef: This existing SPA would be eliminated. General sanctuary-wide regulations would apply in this area and mooring buoys would be maintained.

• Molasses Reef: Existing SPA; no proposed boundary change.

• Conch Reef: Existing SPA; no proposed boundary change. The regulatory exception that allows catch and release fishing by trolling in the SPA would be removed.

• Davis Reef: Existing SPA; no proposed boundary change.

• Hen and Chickens Reef : Existing SPA; no proposed boundary change.

• Cheeca Rocks: Existing SPA; no proposed boundary change. Agency comments from NMFS, FWC and from the SAFMC recommended that additional areas be included for protection in the Cheeca Rocks SPA. FKNMS reviewed these proposed areas and rather than making the existing Cheeca Rocks SPA larger, proposes to include these areas as Restoration Areas (see part III, section 3d. Restoration Areas, below).

• Alligator Reef: This existing SPA would be expanded to the 90-foot contour to include additional deep reef habitat. The regulatory exception that allows catch and release fishing by trolling in the SPA would be removed.

• Turtle Shoal: This is a proposed new SPA. This marine zone would include the same area as proposed in the 2019 DEIS preferred alternative (Alternative 3).

• Coffins Patch: Existing SPA; no proposed boundary change.

• Sombrero Key: This existing SPA would be expanded slightly to include remnant elkhorn corals, a species listed under the Endangered Species Act. In addition, this proposed expansion would square off the existing triangular shape facilitating marking, compliance, and enforcement. This SPA would not include any limited entry regulations as had been proposed in the 2019 DEIS preferred alternative (Alternative 3). The regulatory exception that allows catch and release fishing by trolling in the SPA would be removed.

• Newfound Harbor Key: Existing SPA; no proposed boundary change.

• Looe Key: Existing SPA; no proposed boundary change.

• Eastern Dry Rocks: Existing SPA; no proposed boundary change.

• Rock Key: This existing SPA would be eliminated. General sanctuary-wide regulations would apply in this area and mooring buoys would be maintained.

• Sand Key: Existing SPA; no proposed boundary change. This SPA would not include any limited entry regulations as had been proposed in the 2019 DEIS preferred alternative (Alternative 3). The regulatory exception that allows catch and release fishing by trolling in the SPA would be removed.

i. Public and Agency Comment Highlights Specific to the Proposed SPAs

The 2019 DEIS included proposals to modify existing SPA boundaries, add new SPAs, and modify regulations within SPAs. NOAA received public comments specific to these proposals, too many to include for each individual SPA; therefore, the summary below is by general theme.

The 2019 DEIS included a proposal to apply idle speed no wake and no anchor regulations in all SPAs. Public and agency commenters did not support an idle speed no wake regulation due to several factors, including the size of many zones and the inclusion of portions of Hawk Channel. In general, comments supported greater protections to coral and other sensitive habitats from anchor damage. Comments also addressed the need for additional, well placed and maintained mooring buoys, particularly if additional no anchor restrictions would be applied. Based on the extensive input received through public comment and agency evaluation of the conservation need and value of idle speed no wake regulations in all SPAs, NOAA's proposed rule does not include an idle speed no wake regulation for SPAs. However, NOAA's proposed rule does include no anchor regulations in all SPAs.

The 2019 DEIS included proposed spatial changes to several existing SPAs. NOAA proposed expanding two SPAs (Carysfort Reef and Alligator Reef) and the Tennessee Reef Conservation Area (discussed in part III, section 3 b. Conservation Areas, above) to the 90-foot depth contour, to include additional deep coral reef habitat. Public comments both supported and opposed this proposal for a variety of reasons. Supporters noted such expansions would provide additional protections to deep reef habitats that show potential resilience to the stony coral tissue loss disease, could serve as a source for coral reef seed stock, and would provide greater ecosystem level protection. Public comments that opposed this proposal did so largely due to general opposition to limiting any access for fishing activity. For these proposed deep reef SPA expansions, FWC also specifically requested that in areas deeper than 60 feet, hook and line trolling or drift fishing be allowed, noting their desire to allow as much user access as possible while still protecting coral reef habitat from physical damage. NOAA determined that consistent regulations would better facilitate public understanding and compliance and therefore, NOAA is not including exceptions for fishing in a portion of these zones.

Of the eight proposed new SPAs included in the 2019 DEIS Alternative 3, NOAA proposes including two in this proposed rule: Turtle Rocks and Turtle Shoal. Both would protect nearshore patch reef habitats, which is a habitat type that is currently underrepresented in the sanctuary zoning network and potentially consists of some of the most resilient areas of the sanctuary. Protecting these resilient areas from local stressors is intended to maintain the health of these sites, associated sanctuary resources, and provide a refuge for important frame-building and Endangered Species Act listed corals, which could potentially serve to promote recovery of surrounding reef sites by maintaining resilient reproductive populations of these species whose offspring can reseed degraded areas. Public and agency comments supported additional protections in these patch reef areas including no fishing and no anchoring. Public comments also supported establishing these areas as Conservation Areas to provide the greatest level of protection for these sensitive habitats. However, at this time NOAA is including these areas as SPAs to maintain some level of public access. FWC comments supported making Turtle Rocks slightly larger to encompass the existing John Pennekamp Coral Reef State Park No Lobster Trap zone, and DEP recommended that the sanctuary coordinate management with the State park. The proposed zone at Turtle Rocks is expanded slightly from what was included in the 2019 DEIS. FKNMS will continue to coordinate with the State Park for this marine zone and more generally.

The 2019 DEIS did not propose to eliminate any existing SPAs. However, following public and agency comments, NOAA is now proposing to eliminate two existing SPAs (French Reef SPA in the Upper Keys and Rock Key SPA in the Lower Keys) to allow for multiple use in these areas. Some public commenters expressed concern that NOAA establishes new marine zones with access restrictions, particularly impacting fishing access, and does not subsequently re-open areas for fishing once the marine zone has either achieved its purpose or resource conditions have shifted. FWC comments specifically supported the elimination of French Reef and Rock Key SPAs.

NOAA proposes to eliminate French Reef SPA in the Upper Keys and Rock Key SPA in the Lower Keys because the habitats no longer contain reproductively viable populations of Endangered Species Act-listed coral reef species or other important reef-building corals. These areas also were selected due to their proximity to other SPAs; therefore, they would promote continued habitat protections and separation of conflicting uses in the general area. Mooring buoys in these areas would be maintained. Sanctuary-wide regulations would continue to apply in these areas.

d. Restoration Areas

Given the increase in important habitat restoration activities in the sanctuary over the past two decades, NOAA's proposed rule includes a new Restoration Area zone type. This new Restoration Area zone would include two distinct designations:

• Restoration Area—Nursery zone type would encompass existing nursery areas and would be regulated similar to Conservation Areas to provide the highest level of protection to sensitive corals and other organisms while they are being propagated. These regulations would prohibit fishing, anchoring, and discharges and would require that vessels remain in transit through the area.

• Restoration Area—Habitat zone type would protect sites where active transplanting and restoration activities are ongoing. These areas would be managed with the same regulations that apply to SPAs to provide for access and educational opportunities while prohibiting fishing, anchoring, and discharges.

In the proposed rule, “Restoration Area” would be defined as an area of the sanctuary that supports species or habitat recovery, including protection for short and long-term propagation nurseries (referred to as Restoration Areas—Nursery) and active restoration sites (Restoration Areas—Habitat), within which activities are subject to conditions, restrictions, and prohibitions to achieve these objectives.

i. Restoration Areas—Nursery

Specifically, the proposed rule includes nine Restoration Areas—Nursery zones with regulations prohibiting fishing, anchoring, and discharges and requiring that vessels remain in transit through the area. All proposed Restoration Areas—Nursery zones are very small (individual zones are approximately 70 acres (0.1 square miles)) and are designed to protect the underwater nursery structures and associated corals growing on them with a 200-yard buffer.

Three of the proposed Restoration Areas—Nursery zones (Pickles Reef, Marathon, and Sand Key) were included in the 2019 DEIS as individual SPA zones in Alternatives 2 and 3. These were included in the 2019 DEIS as representative coral nursery sites in the Upper, Middle and Lower Keys. NOAA proposes to establish all existing, permitted coral nurseries as distinct Restoration Areas—Nursery zones. The following existing, permitted coral nurseries are proposed as distinct Restoration Areas—Nursery zones (listed northeast to southwest):

• Carysfort Reef—Nursery: This zone is a discrete area within the larger Carysfort Reef SPA.

• Pickles Reef West—Nursery: In the 2019 DEIS alternatives 2 and 3, this area was proposed as a SPA. In the proposed rule this marine zone would instead become a Restoration Areas—Nursery and be expanded to include multiple coral nursery sites at this location, which has been shown to be resilient to high water temperatures, storms, and coral disease.

• The Elbow Reef—Nursery: This area was not proposed in the 2019 DEIS; however, it is proposed here to provide additional protections to an existing, permitted coral nursery site.

• Marathon—Nursery: In the 2019 DEIS alternatives 2, 3, and 4 this area was proposed as a SPA. In the proposed rule this marine zone would instead become a Restoration Areas—Nursery. NOAA is not proposing any spatial changes to this zone between the DEIS and proposed rule.

• Middle Keys—Nursery: While not included in the 2019 DEIS, NOAA proposes Middle Keys—Nursery to provide additional protections to an existing, permitted coral nursery site.

• Looe Key East—Nursery: While not included in the 2019 DEIS, NOAA proposes Looe Key East—Nursery to provide additional protections to an existing, permitted coral nursery site.

• Looe Key West—Nursery: While not included in the 2019 DEIS, NOAA proposes Looe Key West—Nursery to provide additional protections to an existing, permitted coral nursery site.

• Key West—Nursery: While not included in the 2019 DEIS, NOAA proposes Key West—Nursery to provide additional protections to an existing, permitted coral nursery site.

• Sand Key—Nursery: In the 2019 DEIS alternatives 2 and 3, NOAA included the coral nursery at Sand Key as the Key West SPA; however, it is proposed here as a Restoration Areas—Nursery. NOAA is not proposing any spatial changes to this zone between the DEIS and proposed rule.

ii. Restoration Areas—Habitat

NOAA also proposes establishing four new Restoration Areas—Habitat to protect existing, permitted active coral reef restoration sites. These were not included in the DEIS as distinct marine zones. All proposed Restoration Areas—Habitat are small, ranging from 5 to 220 acres (<0.01 to 0.35 square miles), with an average size of 85 acres (0.13 square miles), and are designed to protect sites supporting active coral restoration with a 200-yard buffer. The proposed rule would establish the following Restoration Areas—Habitat with regulations prohibiting fishing, anchoring, and discharges:

• Horseshoe Reef—Habitat: This is the only Mission: Iconic Reefs site that is not already included within an existing SPA. The new proposed Restoration Areas—Habitat zone would specifically encompass the portion of Horseshoe Reef targeted for active restoration and would not affect the remainder of the reef.

• Pickles Reef East—Habitat: This is an active and long-term restoration site that includes a large population of Endangered Species Act listed elkhorn coral and staghorn coral that has been particularly vulnerable to anchor damage.

• Cheeca Rocks East—Habitat: This is an active and long-term restoration site with one of the largest remaining populations of Endangered Species Act listed star coral ( Orbicella spp.), still contains intact populations of species susceptible to Stony Coral Tissue Loss Disease and appears to be a site that is more resilient to bleaching and disease.

• Cheeca Rocks South—Habitat: This is an active and long-term restoration site with one of the largest remaining populations of Endangered Species Act listed star coral ( Orbicella spp.), still contains intact populations of species susceptible to Stony Coral Tissue Loss Disease and appears to be a site that is more resilient to bleaching and disease. In addition, NMFS, FWC, and SAFMC comments specifically recommended this site for additional habitat protections.

In this proposed rule all Restoration Areas—Habitat would protect active coral reef restoration; however, NOAA does not intend to limit application of this proposed new zone type to coral restoration activities only. Conceivably, the Restoration Areas—Habitat zone type could be applied in the future in any area to support and facilitate restoration of other degraded habitats or species ( e.g., seagrass, hardbottom, etc.). In addition, a framework for establishing short-term, time sensitive protections to support critical management including habitat restoration is described in a proposed, updated temporary regulation for emergency and adaptive management (see part III, section 2. Sanctuary-wide Regulations above and the proposed full regulatory text included in 15 CFR 922.165.) Additional information about how this zone type may be used in the future can be found in the revised draft management plan. Future nursery and habitat restoration area site locations, sizes, and duration will be informed by site specific habitat restoration plans, which could be prepared as part of a vessel grounding incident, disease response, or Restoration permit application.

Finally, to further facilitate habitat restoration and complement this zone type, NOAA proposes including a new category of general permit for Restoration.

iii. Public and Agency Comment Highlights Specific to the Proposed Restoration Areas

Public and agency comments on the 2019 DEIS supported additional protections for coral nursery sites. However, public and agency comments, specifically FWC's, went beyond the 2019 DEIS to recommend additional protections for coral reef transplanting sites and that a specific zone type be created to further advance habitat restoration efforts and for the purpose of facilitating and educating the public about habitat restoration.

In addition, FWC comments recommended that NOAA develop, in partnership with FWC and other stakeholders, a process to quickly open and close areas for temporary, in-water nurseries. For example, “pop-up” nurseries could be deployed, in which corals are reared directly adjacent to restoration sites and then transplanted when ready. NOAA believes that the Temporary Regulation for Emergency and Adaptive Management, as described in part III, section 2c. Sanctuary-wide Regulations, above, and at 15 CFR 922.165, serves this purpose.

e. Wildlife Management Areas (WMAs)

NOAA's proposed rule includes 47 WMAs. In this proposed rule, “Wildlife Management Area” means an area of the sanctuary in which various access and use restrictions are applied to manage, protect, preserve, and minimize disturbance to sanctuary wildlife resources, including but not limited to endangered or threatened species, or the habitats, special places, or conditions on which they rely. The access and use restrictions applied in each area are specific to the management goals of that area.

The proposed rule includes no change and/or only minor technical modifications to existing regulations for nine existing WMAs, spatial and/or regulatory modifications for 15 existing WMAs, and proposes 23 new WMAs. In addition, the proposed rule eliminates two existing WMAs and does not include eight zones that were included as new WMAs in the 2019 DEIS. The average size of WMAs (excluding the proposed Pulley Ridge and existing Tortugas Bank zones) is 0.62 square miles, ranging from 0.01 to 6.37 square miles (the proposed new Pelican Shoal WMA and Marquesas Turtle WMA, respectively).

WMAs are generally designed to protect shallow water habitats and species dependent on those habitats. Access and use restrictions applied in WMAs address the specific protections necessary to minimize disturbances to sanctuary habitats and wildlife and are therefore tailored for the specific location and resource need. In addition, these access and use restrictions may be for a limited or seasonal time period. The proposed WMAs aim to balance resource protection with compatible uses. This action generally favors sanctuary resource protection over access where biological and impact data demonstrate a need; however, the least restrictive access regulations and zone size needed to meet the resource protection goals are proposed.

Due to the number and range of proposed WMAs, they are discussed in relevant sections below ( e.g., existing zones with no change, proposed new zones etc.); with general overarching public and agency comments included in this introductory section and where public or agency comments directly informed the proposed rule, they are included with the individual WMA description. For a complete list of WMAs in this proposed rule, see 15 CFR 922.164(d).

Public comments both supported and opposed the proposed WMA modifications and new zones. Public comments received also indicated that many in the community are not fully aware of the existing WMAs and associated regulations. Many public comments also provided more tailored input with specific information about the resource status at certain WMAs, human use and other existing and/or potential impacts to resources at the site, and in some cases, specific alternate proposals for where and how to manage the site. These comments generally supported taking some action to protect sanctuary resources while also allowing the greatest level of access and use. Most public comments included some mention of the importance and challenge of marking WMAs and educating the public and users.

NOAA also received several public comments suggesting additional areas to include as new WMAs. NOAA used this information to modify the spatial configuration of one area (proposed in the 2019 DEIS as West Barracouta Key Flats, but now in this proposed rule called Ballast and Man Keys Flats). NOAA is not proposing any additional WMAs beyond those included and analyzed in the 2019 DEIS because NOAA would need additional human use and natural resource information to fully evaluate the need and overall benefit of including these additional areas in the sanctuary zoning scheme. NOAA removed several WMAs that were proposed in the 2019 DEIS because NOAA does not have sufficient information regarding use impacts to warrant proposing restrictions. More detail on these zones is included below in section iv. Existing and DEIS Proposed WMAs that would be Eliminated.

Agency comments also included input on individual WMA proposals. FWC commented on all the WMAs, specifically providing additional human use, ecological, and biological resource data, particularly for bird species of state interest, and requested that NOAA consider each zone on a case-by-case basis to more closely evaluate the balance between resource protection goals and user access. DEP commented on WMAs located within or adjacent to State Parks and/or Aquatic Preserves, and USFWS commented on WMAs located within National Wildlife Refuge boundaries. Agency comments from FWC, DEP, and USFWS also provided additional use and resource data and considerations for cooperative management. USFWS additionally provided guiding principles for their recommendations that focused on the most impacted and their habitat needs within the National Wildlife Refuges, including migratory birds ( e.g., great white heron, reddish egret, little blue heron, and magnificent frigatebirds) and wading birds, seabirds and shorebirds. USFWS recommended, where needed, a 100-yard buffer to minimize disturbance to wading birds and other migratory bird species that are documented to be the most impacted by human disturbance from boats. The Naval Air Station Key West (NASKW) commented on WMAs located within their testing and training operational area and/or adjacent to their property, specifically if the proposals may impact their operations. Notably, NASKW commented on the proposed new Demolition Key marine zone (which is not included in this proposed rule), the proposals for shoreline vessel speed restrictions (which is also not included in this proposed rule), and the Marquesas Turtle zone (which has been modified in this proposed rule).

Nine of the twenty-eight existing WMAs have no spatial or regulatory changes, or only minor technical changes, in this proposed rule. The minor technical changes include (1) spatial changes that clarify exceptions to access regulations for certain channels and (2) regulatory changes in zone access terminology such that the existing “no access buffer” and “closed” regulations would be changed to “no entry” to be consistent with the intent of the regulation and with state regulations.

NOAA proposes to eliminate the existing “no access buffer” and “closed” zone regulation, replacing them with a “no entry” regulation that has the same effect. The existing “no access buffer” zone means a portion of the sanctuary where vessels are prohibited from entering regardless of the method of propulsion. In general practice the “no access buffer,” “closed,” and “no entry” regulations have similar intent. In addition, this change in nomenclature creates consistency in application of this regulation throughout the sanctuary and aligns with state regulations. In addition to the zones discussed in this section, the no-access buffer zones at Crocodile Lake and Marquesas Keys WMAs would be eliminated, however both of these WMAs would have additional minor spatial and/or regulatory changes, so are more fully discussed in the section below.

ii. Existing WMAs With Proposed Spatial or Regulatory Changes

The WMAs in this proposed rule with no spatial or regulatory changes, or only minor technical changes, follow:

• Horseshoe Key: This is an existing 300 foot no access buffer zone with the island closed by the USFWS to decrease disturbance to nesting and roosting birds. NOAA proposes a technical update to change the existing no access buffer regulation to no entry.

• West Content Keys: This is an existing zone with idle speed no wake in selected creeks and no access buffer in one cove to decrease disturbance to shorebirds using the area for nesting and foraging. NOAA proposes a technical update to change the existing no access buffer regulation to no entry.

• Sawyer Key: This is an existing zone where the tidal creeks on the south side are closed to decrease disturbance to nesting birds. NOAA proposes a technical update to change the existing closed regulation to no entry.

• East Harbor Key: This is an existing 300 foot no access buffer zone to decrease disturbance to various resting and nesting birds. NOAA proposes a technical update to change the existing no access buffer regulation to no entry.

• Cayo Agua Keys: This is an existing zone with idle speed no wake in all navigable creeks to decrease disturbance to nesting and roosting birds, including great white heron, osprey, and the large numbers of resting shorebirds. There would be no change from the status quo.

• Big Mullet Key: This is an existing 300 foot no motor zone around the island to decrease disturbance to nesting birds and resting shorebirds. There would be no change from the status quo.

• Little Mullet Key: This is an existing 300 foot no access buffer zone to decrease disturbance to nesting, roosting, and foraging birds and shallow seagrass flats around the island, which exhibit prop scarring. NOAA proposes a technical update to change the existing no access buffer regulation to no entry.

• Pelican Shoal: This is an existing zone that was proposed to be eliminated in the DEIS; however, in recent years this area has been repopulated with nesting roseate terns and is an area that is thought to be the last active ground-breeding location for this ESA-listed species in Florida. Additionally, this is an FWC Critical Wildlife Area that was established in 1990. For these reasons, NOAA would retain Pelican Shoal WMA in the proposed rule.

• Tortugas Bank: This is an existing sanctuary zone prohibiting anchoring by vessels over 50 meters in length, which protects coral and hardbottom habitats on Tortugas Bank from anchor damage. NOAA proposes no change in the spatial area or regulations for this zone; however, it would be included as a WMA since the purpose and intent of the zone align with those of WMAs.

ii. Existing WMAs With Proposed Spatial or Regulatory Changes

As noted above, WMAs protect important habitats and species dependent on those habitats with access and use restrictions tailored for the specific location and resource need. Listed below (approximately northeast to southwest) are existing WMAs with proposed changes to spatial boundaries, regulations, or a combination of both. These proposed changes were informed by public and agency comments, and additional data on resources and human uses. With this additional input, NOAA refined the spatial areas included in WMAs and the specific regulations that apply to most efficiently protect sanctuary resources while allowing the greatest level of use compatible with the resource protection goals. A summary of proposed changes follows:

• Crocodile Lake: This existing March 1 to October 1 no access buffer WMA would be modified to become a year-round no entry zone but would allow transit through Steamboat Creek. The portion of the existing Crocodile Lake WMA on the northwestern shoreline of Eastern Lake Surprise would become part of the Eastern Lake Surprise WMA as it is contiguous with that area. Crocodile Lake WMA is intended to decrease disturbance to ESA-listed species, including American crocodile and West Indian manatee, and various bird species that use the area for foraging, nesting and roosting. This WMA is also intended to protect the shallow seagrass flats near Card Sound Bridge that have been impacted by vessel groundings and exhibit prop scarring. This is a slight modification from the 2019 DEIS alternatives including shifting a portion of the zone to Eastern Lake Surprise and allowing transit in Steamboat Creek, which was requested through public and agency comment.

• Eastern Lake Surprise: This existing WMA would be modified to include a no entry area along the western shoreline that is currently part of the Crocodile Lake WMA. In the canal and basin on the southeast side of Eastern Lake Surprise, the existing regulations would be changed from idle speed no wake to no entry. All other regulations would be maintained. Like Crocodile Lake WMA, this WMA is intended to decrease disturbance to ESA-listed species including American crocodile and West Indian manatee. This is a slight modification from the 2019 DEIS alternatives due to the addition of the western shoreline that is now included in Crocodile Lake WMA.

• Dove and Rodriguez Keys: These two existing WMAs would be combined to create one no motor zone WMA. The existing regulations that close two small islands near Dove Key would be eliminated. This WMA is intended to decrease disturbance to a variety of birds, fish, and the benthic community, including seagrass and hardbottom habitat. The shallow seagrass flats in this area have been impacted by vessel groundings and exhibit prop scarring. This proposed rule modifies the 2019 DEIS preferred alternative (Alternative 3), which included a no entry zone around Dove Key and a no anchor regulation throughout.

• Tavernier Key: This is an existing no motor zone. NOAA proposes to maintain the existing no motor regulation, add no anchor, and provide exceptions to these regulations in Tavernier Creek and the unnamed channel to the northeast leading to it. This WMA is intended to decrease disturbance to a variety of birds, fish, and the benthic community, including seagrass and hardbottom habitat. The shallow seagrass flats in this area have been impacted by vessel groundings and exhibit prop scarring. The proposed rule would be the same as the 2019 DEIS preferred alternative (Alternative 3).

• Snake Creek: This existing no motor zone would be extended to the west along the shoreline up to but not including the existing Monroe County no motor zone as was included in the 2019 DEIS preferred alternative (Alternative 3). An exception to the no motor regulations would be made for Snake Creek itself and the three channels providing access to Windley Key. This WMA is intended to decrease the disturbance to a variety of birds using the area for nesting, roosting, and foraging, and protect shallow water habitat used by various fish species. The shallow seagrass flats have been impacted by vessel groundings and exhibit prop scarring.

• Cotton Key: This existing no motor zone would be extended to include an area west of Cotton Key that exhibits prop scarring. The 2019 DEIS preferred alternative (Alternative 3) included expanding the WMA to include additional area to the south east of the existing zone; however, this expansion is not included in this proposed rule due to public and agency concerns related to proximity and the potential to interfere with access to Whale Harbor Channel. In addition to protecting shallow seagrass habitats, this WMA is intended to decrease disturbance to nesting and roosting birds.

• East Content Keys and Upper Harbor Key Flats: East Content Keys and Upper Harbor Key Flats are both existing marine zones that are proposed to be modified in this proposed rule. East Content Keys WMA consists of an existing small idle speed no wake zone in the largest tidal creek. NOAA proposes applying additional idle speed no wake regulations in the remaining tidal creeks at East Content Keys. In addition, the seagrass flats to the east, north, and south of East Content Key, extending beyond Upper Harbor Key, would be designated as idle speed no wake as this area exhibits scarring. This large, idle speed no wake zone was included in the 2019 DEIS Alternative 4 as the Upper Harbor Key Flats WMA. Upper Harbor Keys WMA is an existing 300-foot no access zone around the entire island. NOAA proposes changing this no access buffer zone to a no entry zone that would be encompassed within the larger proposed East Content Keys and Upper Harbor Key Flats idle speed no wake WMA.

• Snipe Keys: This existing marine zone would have a no entry area added, which is an important roosting area for magnificent frigatebirds that are easily disturbed by motorized and non-motorized boat traffic. This proposed expansion is just south of the existing no motor and idle speed no wake areas, which would not change. The proposed rule would be the same as the 2019 DEIS preferred alternative (Alternative 3).

• Mud Keys: This existing marine zone includes idle speed no wake and closed areas within the channels. NOAA proposes updating this to idle speed no wake in all channels. Through discussion with USFWS, NOAA determined that idle speed no wake would be sufficient to decrease disturbance to nesting, roosting, and foraging birds while also providing user access in this area.

• Lower Harbor Keys: This existing zone includes idle speed no wake in selected tidal creeks. NOAA proposes expanding the idle speed no wake area to further protect and decrease disturbance to various nesting, roosting, and wading birds. The expanded area would also capture surrounding seagrass flats that exhibit prop scarring. NOAA also proposes including slightly more area than the 2019 DEIS preferred alternative (Alternative 3) included to provide better protection for wading bird species in this location.

• Bay Keys: This existing marine zone would expand the current idle speed no wake area in the channel leading to the northwest island, maintain that island as no motor, and would include an additional adjacent island to the southeast as no motor. Southwest Bay Key, the existing no motor zone, is used as a roosting area for magnificent frigatebirds, a species that is highly disturbed by boater use. These proposed modifications, informed by USFWS data, would decrease disturbance to nesting and roosting birds, including great white heron, tricolored heron, little blue heron, cormorant, osprey, and various other small birds. The WMA in this proposed rule would be the same as the 2019 DEIS Alternative 2.

• Cottrell Key: This existing no motor zone would be updated to a no entry zone to decrease disturbance to nesting and roosting birds. Cottrell Key has one of the highest annual counts of nesting great white herons in the Lower Keys, and serves as an important island for other nesting, roosting and foraging birds. The WMA in this proposed rule would be the same as the 2019 DEIS preferred alternative (Alternative 3).

• Woman Key: This existing marine zone, which currently includes one-half of the beach and sand spit as closed, would be changed to no entry and expanded to include 300-feet offshore of the beach to further decrease disturbance to nesting and roosting birds and ESA-listed sea turtles, which may be impacted during nesting by high concentrations of visitors. The WMA in this proposed rule would be the same as the 2019 DEIS preferred alternative (Alternative 3).

• Boca Grande Key: This existing marine zone currently includes a closed area on the south half of the beach and the island is closed by the USFWS. In this proposed rule the WMA would be changed to no entry and expanded to include 300-feet offshore of the beach to decrease disturbance to nesting and roosting birds and ESA-listed sea turtles, which may be impacted during nesting by high concentrations of visitors. The WMA in this proposed rule would be slightly smaller than the 2019 DEIS preferred alternative (Alternative 3), which extended further along the shoreline at both ends of the marine zone (to the north and east).

• Marquesas Keys: This is an existing zone with a 300-foot no motor regulation around three keys, a 300-foot no access buffer zone around one island (all on the western side of Mooney Harbor), and idle speed no wake in a southwest tidal creek. NOAA proposes to maintain all of these areas; however, the no motor and no access buffer zones would be updated to no entry and would add one additional island on the south end of Mooney Harbor as no entry. The idle speed no wake zone in the southwest tidal creek would not change. Based on public comments and discussions with USFWS related to the resource status and protection needs for the main island of Long Beach, NOAA does not propose to include a no entry area around the main island, which was included in the 2019 DEIS preferred alternative (Alternative 3). USFWS noted the potential value of a no motor zone; however, at this time no additional marine zone would be proposed for this area. Therefore, the WMA in this proposed rule is a combination of status quo and the 2019 DEIS preferred alternative (Alternative 3) as outlined above.

iii. Proposed New WMAs

NOAA proposes including 23 new WMAs. All of these areas were included in the 2019 DEIS with various spatial and regulatory options across Alternatives 2, 3, and 4. However, nine of the newly proposed WMAs have been modified in NOAA's proposed rule in either their spatial boundary, access regulations, or both (Whitmore Bight, Channel Key Banks, Red Bay Bank, Marathon Oceanside, Happy Jack Keys, Western Dry Rocks, Marquesas Turtle, Barracuda Keys, and Ballast and Man Keys Flats). These changes have stemmed directly from public and agency comments, resource status, and existing or potential resource impact.

• Barnes-Card Sound: This is a proposed new WMA intended to decrease disturbance to nesting and wading birds, shallow water gamefish, and impacts to the benthic community including seagrass and macroalgae where shallow seagrass flats exhibit prop scarring. The WMA in this proposed rule would be the same as the 2019 DEIS preferred alternative (Alternative 3).

• Whitmore Bight: This is a proposed new no motor WMA which has been modified slightly from the 2019 DEIS Alternative 2. The proposed rule would include an area along the shoreline in John Pennekamp State Coral Reef Park up to but not including the State Park managed no motor zone. This proposed zone is intended to decrease disturbance to the benthic community, including hardbottom habitat that supports juvenile lobster and various reef and game fish. Shallow seagrass flats in this area exhibit prop scarring.

• Pelican Key: This is a proposed new no entry WMA, which is the same as the 2019 DEIS Alternative 4. The proposed rule would include the most protective measures for this area to decrease disturbance of roosting and wading birds including magnificent frigatebirds and pelicans. Shallow seagrass flats in this area exhibit prop scarring.

• Pigeon Key: This is a proposed new no entry WMA intended to decrease disturbance to nesting wading birds including roseate spoonbills and roosting magnificent frigatebirds. The WMA in this proposed rule is the same as the 2019 DEIS preferred alternative (Alternative 3).

• Ashbey-Horseshoe Key: This is a proposed new no entry WMA intended to decrease disturbance of brown pelicans and magnificent frigatebirds roosting in Lignumvitae Key Aquatic Preserve and Lignumvitae Key Botanical State Park. In addition, recent monitoring documented many nesting cormorants and great egrets, including great egret hatchlings. The WMA in this proposed rule is the same as the 2019 DEIS preferred alternative (Alternative 3).

• Channel Key Banks: This is a proposed new idle speed no wake WMA, which has been modified from the 2019 DEIS alternatives. The proposed rule would include a much smaller and targeted zone in the area with the greatest amount of prop scarring. This WMA is intended to protect seagrass and hardbottom habitat that supports a diverse assemblage of corals, sponges, macroalgae, seagrass, and many juvenile fish species prior to their movement to the coral reefs. This habitat type is not currently well represented in the existing FKNMS marine zones.

• Red Bay Bank: This is a proposed new idle speed no wake WMA, which has been modified from the 2019 DEIS alternatives. The proposed rule would include a much smaller and targeted zone in the area with the greatest amount of prop scarring. This WMA is intended to protect seagrass and hardbottom habitat that supports a diverse assemblage of corals, sponges, macroalgae, seagrass, and many juvenile fish species prior to their movement to the coral reefs. These habitat types are not currently well represented in the existing FKNMS marine zones.

• Marathon Oceanside Shoreline: This is a proposed new idle speed no wake WMA to decrease disturbance to nearshore seagrass and hardbottom habitats from vessel impacts in areas with prop scarring. The 2019 DEIS preferred alternative (Alternative 3) included this zone as a no motor area and based on public comment, the WMA in this proposed rule would be idle speed no wake with exceptions for established channels.

• East Bahia Honda Key: This is a proposed new no motor WMA intended to decrease disturbance to nesting and foraging birds. Shallow seagrass flats in this area exhibit prop scarring. The WMA in this proposed rule is the same as the 2019 DEIS Alternative 2.

• West Bahia Honda Key: This is a proposed new no motor WMA intended to decrease disturbance to nesting and foraging birds. The WMA in this proposed rule is the same as the 2019 DEIS Alternative 2.

• Little Pine Key Mangrove: This is a proposed new no entry WMA intended to decrease disturbance to nesting and roosting birds including magnificent frigatebirds, reddish egrets, and tricolored and great white herons. The WMA in this proposed rule is the same as the 2019 DEIS preferred alternative (Alternative 3).

• Water Key Mangroves: This is a proposed new no entry WMA intended to decrease disturbance to nesting, wading, and foraging birds and to decrease impacts to habitats for shallow water foraging shorebirds. The WMA in this proposed rule is the same as the 2019 DEIS preferred alternative (Alternative 3).

• Howe Key Mangrove: This is a proposed new no entry WMA intended to decrease disturbance to nesting birds including great white heron, great blue heron and reddish egret. The WMA in this proposed rule is the same as the 2019 DEIS preferred alternative (Alternative 3).

• Torch Key Mangroves: This is a proposed new no entry WMA intended to decrease disturbance to nesting and roosting habitat for various birds including white-crowned pigeon and reddish egret, and is shallow water foraging habitat for wading and shorebirds. The WMA in this proposed rule is the same as the 2019 DEIS preferred alternative (Alternative 3).

• Crane Key: This is a proposed new no entry WMA intended to decrease disturbance to nesting and roosting birds including magnificent frigatebirds and great white heron. Crane Key has the highest post-Hurricane Irma annual count of nesting great white herons in the backcountry, and serves as an important island for other nesting, roosting and foraging birds. Additional protections would reduce flushing of these birds from their nests and roosting sites. Shallow seagrass flats exhibit prop scarring. The WMA in this proposed rule is the same as the 2019 DEIS preferred alternative (Alternative 3).

• Northeast Tarpon Belly Keys: This is a proposed new no motor WMA intended to decrease disturbance to nesting and roosting sites for reddish egrets and other wading birds. The WMA in this proposed rule is the same as the 2019 DEIS Alternative 2.

• Happy Jack Key: This is a proposed new no entry WMA intended to decrease disturbance to wading bird foraging habitat and nesting reddish egret and great white heron. Happy Jack Key supports high numbers of nesting and roosting reddish egrets, while the surrounding shallows provide pristine foraging habitat. The WMA in this proposed rule includes a smaller and different island to the southeast of the island and area included in the 2019 DEIS preferred alternative (Alternative 3).

• Western Dry Rocks: This is a proposed new WMA that would mirror newly established FWC regulations (February 2021) with a seasonal no fishing prohibition from April 1 to July 31, and include a no anchor regulation during this same seasonal time period.

NOAA received hundreds of public comments related to including Western Dry Rocks as a sanctuary marine zone. The 2019 DEIS included options for a 796 acre (1.2 square mile) trolling only Wildlife Management Area (Alternatives 2 and 3) and a transit only Conservation Area (Alternative 4). Public comments both strongly supported and opposed these proposals. Comments in support noted the need to protect this site due to its importance as a multi-fish spawning aggregation site; comments included support for both a year-round closure and seasonal closure during the peak spawning time, particularly for permit species, which are not managed through an existing fishery management plan. Public comments in opposition noted the importance of this site for charter fishing activity, questioned the definition of trolling, and noted that any action at Western Dry Rocks should be taken through fishery management plan action and referenced recent action taken to modify bag and size limits for mutton snapper, one of several fish that spawn at this site. Agency comments, specifically those from FWC, did not support NOAA taking any action at Western Dry Rocks and recommended it be removed from further consideration. FWC commented that fisheries management in State waters at this location should remain under the sole authority of FWC, and further noted that FWC would consider rulemaking for this area. Since submitting their comments on the 2019 DEIS, FWC proposed various options for protecting fish spawning aggregations at Western Dry Rocks, and at their February 2021 FWC Commission meeting, adopted a seasonal closure that prohibits fishing from April 1 through July 31 annually in an area that mostly encompasses NOAA's 2019 DEIS proposal, but is slightly smaller (0.98 square miles). As a result, and because it is customary for federal and state agencies to craft complementary regulations to ensure consistency and transparency and improve enforcement, NOAA also proposes including a seasonal no fishing WMA at Western Dry Rocks. Further, FWC has requested that anchoring by vessels be prohibited during the seasonal fishing closure, so NOAA is proposing to establish no anchoring regulations at the same time of year as the no fishing regulations. NOAA would work cooperatively with FWC to place marker buoys to delineate the Western Dry Rocks WMA.

• Barracuda Keys: This is a proposed new idle speed no wake WMA intended to decrease disturbance to important shallow water habitats and the large numbers of resting shorebirds that use the shallow seagrass flats. Shallow flats exhibit prop scarring. Informed by public comment, the proposed rule modifies the 2019 DEIS preferred alternative (Alternative 3), which included this area as a no motor zone. In the 2019 DEIS this WMA was referred to as Marvin Barracuda Key Flat.

• Archer Key: This is a proposed new no anchor WMA intended to decrease disturbance to nesting and roosting birds and protect seagrass habitat and associated species, which exhibit prop scarring. The WMA in this proposed rule is the same as the 2019 DEIS Alternative 2.

• Ballast and Man Keys Flats: This is a proposed new idle speed no wake WMA intended to protect important hardbottom and seagrass habitat, which exhibit prop scarring. Additional regulation in this area would also reduce user conflict between flats fishers and recreational boaters. The WMA in this proposed rule is modified from the 2019 DEIS preferred alternative (Alternative 3), which proposed no anchor in an area slightly to the north. The shift in location and regulation is based on public comment, user feedback and prioritizing protection in the area of greatest prop scarring.

• Marquesas Turtle: This is a proposed new idle speed no wake zone to decrease disturbance to ESA-listed green sea turtles on a rare, internationally-important foraging ground. NOAA proposes including a smaller area than was proposed in the 2019 DEIS preferred alternative (Alternative 3). The WMA boundary included in this proposed rule removes the southern portion of the area that was included in the DEIS proposal due to public and agency comment regarding needing this area for safe transit to the Marquesas Keys. The WMA in this proposed rule also captures the area of greatest habitat variability and highest numbers of turtle sightings.

• Pulley Ridge: This area is proposed for overall sanctuary boundary expansion where sanctuary-wide regulations would apply. Additional regulations would prohibit anchoring by all vessels. This proposed new WMA would protect the deepest known photosynthetic coral reef system off the coast of the continental United States with demonstrated connectivity to the Florida Keys. These nationally-significant mesophotic reef ecosystems are threatened by anchor damage. This zone overlaps with an existing Gulf of Mexico Fishery Management Council Habitat Area of Particular Concern (HAPC), which prohibits anchoring by fishing vessels and bottom tending fishing gear, with an exception for long-line gear in a portion of the HAPC. The proposed no anchor regulations for all vessels would complement the existing HAPC anchoring restrictions that only apply to fishing vessels. The WMA in this proposed rule is the same as the 2019 DEIS Alternative 4 proposal. In addition, as noted in part III. section 1. Sanctuary Boundary, NOAA is also pursuing International Maritime Organization adoption of a no anchoring area designation for Pulley Ridge.

iv. Existing DEIS Proposed WMAs That Would Be Eliminated

Several new WMAs were proposed in the 2019 DEIS alternatives, which, for various reasons, including extensive public and agency comments, are not included in NOAA's proposed rule. One existing WMA, Little Crane Key, which was proposed to be eliminated in the DEIS, is also proposed to be eliminated in NOAA's proposed rule. Another existing WMA, Tidal Flat South of Marvin Key, was not proposed for elimination in the DEIS alternatives but is proposed to be eliminated in NOAA's proposed rule. Table 2 provides a summary of the eight WMAs that were proposed in the DEIS and are not being included in NOAA's proposed rule and the two existing WMAs that would also be eliminated.

v. Shoreline Slow Speed

In addition, NOAA has decided not to include a shoreline slow speed regulation in this proposed rule. The existing regulation requiring idle speed no wake operation within 100 yards of residential shorelines would remain in effect and not be modified. NOAA's deliberation on this draft regulation considered the value that additional shoreline protections could provide in light of potential impacts from climate change and sea level rise and therefore NOAA does not rule out potential future, additional shoreline vessel speed regulations.

Public comments were generally supportive of a proposed shoreline slow speed regulation because it would potentially decrease the number of individual Wildlife Management Areas (where speed is regulated), reduce the need for marker buoys and signage, and provide additional protections for nearshore habitats and species. However, several comments noted concern regarding the feasibility of enforcing a shoreline slow speed regulation and the number of exceptions that may be required for channels, passes, and ability to access deeper areas nearshore. Agency comments both supported this proposed regulation and noted similar concerns to those included in public comments.

4. Additional Marine Zone Regulations

a. Motorized Personal Watercraft

NOAA proposes including regulatory changes to allow motorized personal watercraft (PWC) operation in a small portion of the Key West National Wildlife Refuge, west of the Key West main ship channel around marker G13, where PWC operation is otherwise prohibited.

The 2019 DEIS included this proposal in Alternatives, 2, 3, and 4. Public comments on the operation of PWCs in the sanctuary ranged from banning PWCs throughout the sanctuary to opposing any restrictions for where PWCs could operate. Public comments also included more specific recommendations, such as allowing PWC use in areas parallel to the entire length of the Key West ship channel to further public safety, and that the State of Florida should take the lead for regulating PWCs under Chapter 327.60 Florida Statutes, which states that personal watercraft must be regulated as any other vessel on waters of the State. USFWS comments supported allowing PWC operation in this small section with no other changes to PWC operations within the National Wildlife Refuges.

b. Tortugas North Access Permits

NOAA proposes streamlining the permit application process for persons wishing to enter the Tortugas North Conservation Area. The current regulation requires that access permits must be requested at least 72 hours but no longer than one month before the date that access is requested. NOAA proposes to remove the current requirement to request access permits no longer than one month before the date of entrance to the area, and remove the requirement to notify FKNMS before entering and upon leaving the area. The requirement to request an access permit at least 72 hours in advance will remain. This permit would also refer to the zone as Tortugas North Conservation Area rather than Ecological Reserve due to the zone type name change.

NOAA received minimal public and agency comments regarding this specific proposal, but those comments received were supportive of it.

c. Catch and Release Fishing by Trolling in Four SPAs

NOAA proposes eliminating the exception allowing catch and release fishing by trolling in four SPAs (Conch Reef, Alligator Reef, Sombrero Key, and Sand Key). NOAA believes that user compliance is greatly reduced and enforcement greatly hindered when exceptions to regulations in specific zones are provided. Over two decades of management experience with marine zones in the sanctuary points to providing zones with consistent and clear regulations.

The 2019 DEIS included this proposal in Alternatives 2, 3, and 4. Public comments included support for additional and consistent protections and opposition for the loss of fishing access in these SPAs. FWC comments noted that state rules at 68B-6, F.A.C. allow catch and release by trolling in Sand Key SPA, which is in State waters. Modification to fishing activities in this area would constitute a fisheries management action under FWC authority, and the FWC was not supportive of access limitations without information to justify that such an action was in response to a specific problem. Considering these comments, NOAA determined that the effects of removing the exception for catch and release fishing at Sand Key SPA, in State waters, would be insignificant given the small size of this zone (0.45 square miles) and because fishermen are able to access multiple reef areas nearby but outside this zone. As noted above, consistent no fishing and no harvest regulations in fully protected SPAs facilitate compliance by all users.

d. Bait Fishing Permits

NOAA proposes eliminating over a three-year period the practice of issuing bait fishing permits of any kind in SPAs in federal waters and the practice of issuing permits to bait fish using cast nets in SPAs in State waters. FKNMS regulations currently prohibit fishing within SPAs, with exceptions for catch and release fishing in four SPAs (see 15 CFR 922.164(d)). However, NOAA has been issuing a very small number of general permits for limited bait fishing in SPAs since the original FKNMS regulations became effective in 1997. Permits issued to date allow the harvest of bait fish from all 18 SPAs using either a hand-thrown cast net (which is the gear used by recreational and charter fishermen) or modified lampara net (which is the gear type used by commercial fishermen in the State's limited endorsement lampara net fishery). NOAA also issues general permits that authorize the use of small hair hooks ( i.e., sabiki rig) to remove baitfish from just three of the SPAs in federal waters offshore of Islamorada. All permitted fishermen are required to report their catch inside and outside of the SPAs to FKNMS annually. NOAA's proposal to eliminate the practice of issuing bait fish permits does not require a change to the regulations and would be implemented via changes to FKNMS's permitting policies. When final FKNMS regulations become effective, existing bait fishing permit holders would have the option to renew their permit annually for three years but NOAA would not issue any bait fishing permits to any new persons. After the third year, NOAA would no longer issue permits for this activity.

Public comments supporting this proposal noted that allowing this activity in SPAs creates an incentive to fish in no-fishing zones more generally and supported consistency of regulations in all SPAs. Public comments opposing this proposal noted that allowing bait fishing in SPAs was part of an original trade-off with fishermen to gain their support for the establishment of SPAs, noting that this agreement should continue to be upheld.

Agency comments from FWC and SAFMC supported phasing out the use of cast nets for bait fishing in SPAs, stating that the use of this gear may cause impacts to coral reef and hardbottom habitats. GMFMC noted that NOAA may want to consider specific gear types that could be allowed and recommended consulting with FWC. More specifically, FWC supported continuing to allow the use of modified lampara nets to commercially harvest baitfish in the SPAs. FWC also noted that even though this proposal does not impact the ability of fishermen to fish for bait outside of SPAs, SPA areas have been identified as important areas for bait fishing in the Keys. FWC noted that a limited entry lampara net endorsement exists in State waters and therefore recommended that those endorsement holders be allowed to continue to fish within designated SPAs. FWC explained that gear contact with the reef is unlikely and conflict with other user groups is unlikely based on the time of day they fish.

NOAA considered FWC's comments regarding continuing to allow lampara net use in SPAs in federal waters, but believes that allowing only certain gear types increases conflict with other users and importantly, complicates compliance with the existing prohibition against fishing in these areas. This proposed decision is based on over 25 years of management of the network of marine zones within the sanctuary, including a review of catch log data submitted by permit holders over the past five years. These reports indicate that there is a limited number of recreational and commercial fishermen using the permits to catch bait fish, with over half of the permitted fishermen reporting annually they are not using the permit ( i.e., not catching baitfish within the SPAs). Those fishermen that do state they are harvesting baitfish within the SPAs report very low catch numbers, leading NOAA to believe that very few users will be adversely affected by this change and that most fishermen are already catching baitfish outside of the SPAs. NOAA has also received input from dozens of recreational (cast net) fishermen over the last two decades through log form reporting and other means ( e.g., phone calls, emails) noting conflicts with commercial lampara net fishermen when in the SPAs.

NOAA considered all of this input when proposing the change in bait fishing permits in this proposed rule. Specifically, in support of the comments from FWC summarized above, NOAA would work with state fishery managers to develop a process for fishermen currently managed through the State's limited entry endorsement program to use lampara nets in existing SPAs in State waters.

e. Restricted Access in Select Sanctuary Preservation Areas

NOAA's proposed rule does not include a regulation to restrict commercial operator access in three SPAs (Carysfort Reef, Sombrero Key, and Sand Key), as proposed in Alternatives 3 and 4 in the DEIS. In these regulatory alternatives, NOAA would have only allowed charter operator access to these areas to dive/snorkel businesses that participate in the Blue Star program. The Blue Star program is an existing program that recognizes tour operators who are committed to promoting responsible and sustainable diving and snorkeling practices to reduce the impact of these activities on ecosystems in the Florida Keys, participate in training for their staff, and conduct conservation activities. NOAA received many public comments specific to these alternatives to limit access, with the majority of comments opposing. While not supporting this specific proposal, comments also noted concern about increasing numbers and intensity of use and supported considering ways to manage numbers of users in the sanctuary including in coral reef and backcountry areas. In addition, many commenters acknowledged that other resource protection entities (U.S. Forest Service, National Park Service, international marine parks, among others) manage use, access, and overall numbers of users through various regulatory and non-regulatory mechanisms, and some commenters provided ideas and recommendations for consideration, which NOAA will evaluate as additional management plan activities are considered. In response to these comments, the revised draft management plan includes additional information about NOAA's intent to better assess sanctuary carrying capacity, evaluate regulatory and non-regulatory tools to manage use and use numbers in the sanctuary, and consider how existing regulations and management activities can be more strategically applied to better manage use and impacts from use ( e.g., boater education, mooring buoys, proposed no anchor regulation in SPAs, etc.). With this additional evaluation and further public and agency engagement, NOAA may consider regulatory action to manage numbers of users and impacts of this use on sanctuary resources in the future.

5. Sanctuary Management Plan

NOAA has revised the draft management plan that was published along with the 2019 DEIS. While NOAA received very few direct comments on the specific content in that draft plan, public comments did highlight several management issues of interest including: (1) water quality, (2) enforcement, (3) education, (4) mooring and marker buoys and signage, (5) better understanding of carrying capacity and managing high and conflicting uses, (6) habitat restoration, (7) artificial habitats and artificial reefs, and (8) management effectiveness monitoring and the ability to be more flexible in responding to outcomes of such monitoring.

The revised draft management plan, which includes the non-regulatory actions, complements and further supports this notice of proposed rulemaking. The revised draft management plan actions are largely focused on understanding and improving the condition of sanctuary resources through reducing threats and addressing emerging issues. Actions also include the need to engage with and strengthen partnerships to address issues and impacts that occur outside the sanctuary boundary and fall within the jurisdiction or authority of partner federal or state agencies. For example, a priority is strengthening the NOAA partnership with the South Florida Ecosystem Restoration Task Force to ensure Florida Keys water quality, habitat, living marine resource conditions, and community interests are considered and integrated into regional restoration and management plans.

NOAA has revised the draft management plan to provide more detail on these and other topics identified in this Notice. A copy of this revised draft management plan is available at the address and website listed in the ADDRESSES section of this proposed rule.

IV. Summary of Proposed Changes to the Sanctuary Terms of Designation

Section 304(a)(4) of the NMSA requires that the terms of designation for national marine sanctuaries include: (1) the geographic area of the sanctuary; (2) the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or aesthetic value; and (3) the types of activities subject to regulation by NOAA to protect those characteristics. This section also specifies that the terms of designation may be modified only by the same procedures by which the original designation was made, including public notice and comment, and preparation of an EIS. Terms of designation include the geographic area of the sanctuary, characteristics of the area that give it value, and the types of activities that will be subject to regulation. Therefore, through the proposed rule, the revised FKNMS terms of designation would:

1. Modify Article I (“Designation and Effect”) to include the expanded sanctuary boundary;

2. Modify Article II (“Description of the Area”) by changing the geographic description and size of the sanctuary;

3. Modify Article III (“Characteristics of the Area That Give it Particular Value”) by updating the size of the sanctuary and the description of the special resources contained within it;

4. Modify Article IV (“Scope of Regulation”) by simplifying descriptions of the categories of activities that may be subject to regulation. As originally drafted, the Terms of Designation contain a level of detail similar to, if not the same, as the regulations. Instead, NOAA proposes to provide broad categories of activities to be more consistent with the legislative intent of section 304(a)(4) of the NMSA to merely identify the “types of activities,” and rely instead on the regulations themselves to provide the specific regulatory details. Otherwise, the “Scope of Regulation” section would be duplicative of the regulations and serve no purpose. By simplifying the activity descriptions, NOAA is not broadening in any way the scope of the regulations and is not adding any new or different activities to be subject to regulation. The regulations themselves contain the operative language and only the regulations are enforceable;

5. Modify Article V (“Effect on Leases, Permits, Licenses, and Rights”) by modifying language to be consistent with section 304(c) of the NMSA related to any valid lease, permit, license, approval, or other authorization or right in existence prior to the effective date of the revised terms of designation, and to cite the correct section of Office of National Marine Sanctuaries regulations for certifying such valid rights;

6. Modify the “Florida Keys National Marine Sanctuary Boundary Coordinates” to include the expanded sanctuary boundary.

For the proposed modified FKNMS Designation Document, please refer to appendix J.

V. Classification

1. National Marine Sanctuaries Act

Section 301(b) of the NMSA (16 U.S.C. 1431) provides authority for comprehensive and coordinated conservation and management of national marine sanctuaries in coordination with other resource management authorities. Section 304(a)(4) of the NMSA (16 U.S.C. 1434) requires that the procedures specified in Section 304 for designating a national marine sanctuary be followed for modifying any terms of designation. This action is revising the terms of designation ( e.g., expanding the boundary) for FKNMS. Section 304(a)(5) of the NMSA also requires that NOAA consult with the appropriate federal fishery management council on any action proposing to regulate fishing in federal waters. Consultation with the SAFMC and GMFMC is discussed above in part II, FKNMS 2019 DEIS—The Restoration Blueprint Process, section 3c, Agency Consultations and Other Coordination. Pursuant to Section 304(a)(1) of the NMSA, Congress and the Governor of Florida will also have the opportunity to review this proposed action.

2. National Environmental Policy Act

In accordance with Section 304(a)(2) of the NMSA (16 U.S.C. 1434(a)(2)), and the provisions of NEPA (42 U.S.C. 4321-4370), NOAA has prepared a DEIS to evaluate the impacts of this action. For more information on the DEIS and steps leading to the action, please refer above to part II, FKNMS 2019 DEIS—The Restoration Blueprint Process, section 2, Draft Environmental Impact Statement (DEIS). The DEIS contains a statement of the purpose and need for the project, description of proposed alternatives, including the no action alternative, description of the affected environment, and evaluation and comparison of environmental consequences including cumulative impacts.

NOAA has determined that a supplemental NEPA analysis is not required for this proposed rule because the DEIS presented the public with a comprehensive analysis of the spectrum of environmental impacts among several alternative scenarios from which this proposed rule was derived. Any changes reflected in the proposed action are insubstantial in that they do not differ from the impacts already analyzed in the DEIS. The specific combination of elements from the alternatives analyzed in the DEIS and reflected in the proposed rulemaking will not have any synergistic or cumulative impacts not already analyzed in the DEIS. Based on the evaluation of the alternatives, NOAA determined that no significant adverse impacts to resources and the human environment are expected if any of the alternatives are adopted, and this conclusion applies to this proposed action. Copies of the DEIS are available at the address and website listed in the ADDRESSES section of this proposed rule. NOAA will analyze the comments that have been previously received on the DEIS when the final rule and FEIS are prepared and issued. NOAA also invites the public to provide additional comments on the DEIS based on the proposed rule as presented herein.

3. Executive Order 12866: Regulatory Impact

OMB has determined this rule is significant as that term is defined under Executive Order 12866. NOAA anticipates the associated costs with this proposed rule will be de minimis, as explained more fully in the Regulatory Flexibility Analysis, a copy of which is available at the address and website listed in the ADDRESSES section of this proposed rule.

4. Executive Order 13132: Federalism Assessment

NOAA has concluded this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132. This proposed rule will not have a substantial or direct effect on states or local governments. NOAA has coordinated closely with state partners throughout the development of this proposed rule and, where applicable and practicable, aligns with and/or defers to existing state regulations for proposals within State waters of the sanctuary. NOAA has aimed for consistent regulations throughout sanctuary waters including those within state and federal jurisdiction.

5. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175 reaffirms the Federal government's commitment to tribal sovereignty, self-determination, and self-government. Its purpose is to ensure that all Executive departments and agencies consult with Indian tribes and respect tribal sovereignty as they develop policies on issues that impact Indian communities. This proposed action is not anticipated to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibility between the Federal government and Indian tribes. The Seminole Tribe of Florida Tribal Historic Preservation Office provided comments on the DEIS specific to the Programmatic Agreement under Section 106 of the National Historic Preservation Act regarding Florida Keys National Marine Sanctuary Operations, Management, and Permitting, and consultation related to archaeological research permits.

6. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires Federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking, unless the agency can certify, pursuant to 5 U.S.C. 605(b), that the action will not have a significant economic impact on a substantial number of small entities. NOAA has prepared a Socioeconomic Report, in which Chapter 6 serves as the factual basis for certification. A copy of this report is available as a supporting document to this rule (see ADDRESSES ). Chapter 6 of the report, Economic Effects on Small Entities, is also included here.

This section evaluates the quantitative potential effects of marine zone boundary changes on small entities. There are three primary industries considered in this section; commercial fishing, recreational for-hire fishing and dive/snorkeling for-hire operations. Based upon quantitative and qualitative analysis, the quantitative assessment provided here is an overestimate of the negative potential impacts of the proposed rule. We conclude that the economic impacts are expected to be much smaller because, based on other studies of marine protected areas, fishers are anticipated to be able to relocate their effort to other areas or other species.

The RFA requires agencies to consider the effects of rules on small entities. The RFA does not require the agency to necessarily minimize a rule's impact on small entities. There are no decision criteria in the RFA. Instead, the goal of the RFA is to inform the agency and public of expected economic effects of the proposed rule contained within the regulatory action and to ensure the agency considers alternatives that minimize the expected economic effects on small entities while meeting the goals and objectives of the applicable statutes.

This analysis supports NOAA's decision to certify that the proposed rule will not have a significant economic impact on a substantial number of entities, and, therefore, no further analysis is needed under the RFA (US EEOC, 2021). The analysis provided here supports NOAA's decision to certify that there will not be a significant economic impact on a substantial number of entities.

Small entities are defined by the Small Business Administration (SBA). The definition of the relevant small businesses are presented here and are from the most recent size standards published by the SBA in 2019 (US SBA, 2019). Size standards are based upon the average annual receipts (all revenue) or the average employment of a firm. The commercial size standards for finfish fishing (NAICS code—114111) is $22.0 million, shellfish fishing (NAICS code—114112) is $6.0 million and other marine fishing (NAICS code—114119) is $8.0 million. Scenic and sightseeing transportation, water-based businesses such as for-hire recreational fishing operations, and dive/snorkeling for-hire operations (NAICS code—487210) have size standards of $8.0 million.

a. Commercial Fishing

All data presented in this chapter uses the five-year average (2015-2019). The data was provided by FWC. The data set requested by ONMS only includes data for landings that occur within the statistical areas and subareas described in Chapter 4 of the Socioeconomic Report. It is possible that some of the vessels with landings in the evaluated statistical areas have additional landings outside of the data requested from the State. This means that some of the vessels evaluated may not be classified as small businesses as defined by the SBA if their landings within Monroe County-associated statistical areas in addition to those outside Monroe County surpass the SBA size standards. Additionally, complete ownership and cost data for businesses and vessels that participate in commercial fishing and other industries is not available.

Consequently, NOAA is not able to determine affiliations between multiple vessels and businesses. As a result, NOAA assumes that each of the vessels are independently owned by a single business. Either one of these two factors alone could result in an overestimate of the actual number of small businesses directly impacted by the proposed regulatory action. Additionally, the spatial data provided is for the statistical subareas and data are not available related to the specific catch or number of businesses that operate within the proposed marine zones. In this regard, there is a spatial mismatch between the data available and the size of the marine zones, which are likely to affect commercial and recreational activity. Chapter 4 of the Socioeconomic Report documents the assumptions made with regards to how affects to these specific industries are estimated.

i. Description and Estimate of the Number of Small Entities to Which the Proposed Action Would Apply

NOAA has calculated the potential number of vessels that may be impacted by this proposed rule. If a vessel operates in a statistical subarea that has a proposed zone or zone change that would impact commercial fishing, these vessels were considered. Unless otherwise stated, the supporting Socioeconomic Report (see Table 4 in Chapter 2) shows the statistical areas associated with the Gulf of Mexico or South Atlantic regions and which statistical areas include proposed rule zone changes that would restrict commercial fishing. In total, there are six statistical areas that have zone changes within habitat that the species analyzed are likely to be associated with. Impacts are considered by fish groups below. It is possible, and likely, that vessels may target multiple species and thus would be accounted for in several of the individual fish groupings provided below.

Reef Fish

The reef fish analyzed here include red grouper, grunts, hogfish (hog snapper), mutton snapper, grey (mangrove) snapper, lane snapper, black grouper (carberita), gag grouper, and yellowtail snapper. Please see Chapter 4 of the Socioeconomic Report for a more detailed explanation of why the analysis of reef fish focused on these nine specific reef associated species. The analysis for reef associated species is provided for the Gulf of Mexico and South Atlantic fisheries. The five-year average (2015-2019) of the number of vessels that reported at least $1 or more of harvest revenue for reef associated species in statistical areas affected by the proposed rule are presented here. In the Gulf of Mexico region, there was an annual average of 39 vessels. For the South Atlantic fishery there was an annual average of 231 vessels. (The estimates of vessels should not be summed to get the total number of vessels, as some vessels may fish in both regions and this would result in double counting.) Further, the maximum annual average revenue (2011-2015) of vessels operating within the Gulf of Mexico Reef Fish Fishery is $4.9 million (GMFMC, 2017). Within the South Atlantic Snapper Grouper Fishery, the maximum average annual revenue (2012-2016) is $1.7 million (SAFMC, 2019). The SBA commercial size standard for finfish is $22.0 million, all vessels that have reported $1 or more of reef fish harvest revenue do not surpass this threshold. Consequently, all the vessels potentially affected by this regulation are considered small entities.

Shrimp

Commercial vessels that fished pink, brown, white, royal red, rock, and “other” shrimp species (as reported in FWC trip tickets) were considered in this analysis. The number of vessels engaged in the shrimp fishery was estimated for the Gulf of Mexico and South Atlantic regions. Statistical subarea 2.8 (Federal Waters Gulf of Mexico) is the only statistical subarea in which the shrimp fishery may be affected by the proposed rule; thus, no South Atlantic region vessels engaged in the shrimp fishery would be affected. From 2015-2019, an average of 108 vessels per year reported at least $1 or more of harvest revenue in statistical subarea 2.8. The SBA commercial size standard for shell fishing is $6.0 million. From 2011-2014, the maximum annual average revenue for a single vessel harvesting shrimp in the Gulf of Mexico was $2.0 million (GMFMC, 2017b). Consequently, all vessels potentially affected by the proposed rule were considered small entities.

Lobster

The five-year average of the number of vessels that reported at least $1 or more of harvest revenue for lobster in statistical areas affected by the proposed rule are presented here. The analysis for lobster is not differentiated by South Atlantic and Gulf of Mexico regions and 521 vessels on average (2015-2019) were identified as harvesting $1 or more in lobster revenue. The maximum annual average revenue (2012-2016) from all species reported by a single vessel that harvested lobster was $2.0 million (GMFMC, 2018). The SBA commercial size standard for shell fishing is $6.0 million, all vessels that have $1 or more of lobster harvest revenue do not surpass this threshold. Consequently, the vessels potentially affected by this proposed rule are considered small entities.

Stone Crab

The five-year average of the number of vessels that reported at least $1 or more of harvest revenue for stone crab in statistical subareas affected by the proposed rule are presented here. The analysis for stone crab is not differentiated by region and only considered harvesters in the State of Florida. An annual average of 282 vessels were identified as harvesting $1 or more in stone crab revenue within the statistical subareas where there are proposed zone changes. The SBA commercial size standard for shell fishing is $6.0 million, all vessels that have $1 or more of stone crab harvest revenue do not surpass this threshold. Consequently, the vessels affected by this proposed rule are considered small entities.

ii. Significance of Economic Effects on Small Entities: Reef Fish Substantial Number Criterion

The proposed rule is likely to impact those that fish within the statistical areas affected by the proposed rule zone changes. On average (2011-2015), there were 585 vessels that landed at least one pound within the Gulf of Mexico Reef Fish Fishery (both Individual Fishing Quota (IFQ) and non-IFQ species) managed under the Gulf reef fish fishery management plan (GMFMC, 2017). The maximum average annual gross revenue earned by a single vessel was approximately $4.9 million (GMFMC, 2017). There is an average of 39 vessels that were identified (annually from 2015-2019) that may be affected by the proposed rule within the Gulf of Mexico.

The number of vessels that used their commercial permits annually for harvesting purposes on average between 2012 and 2016 was 584 vessels in the South Atlantic Snapper Grouper Fishery (SAFMC, 2019). In the South Atlantic, the maximum average annual gross revenue from 2012-2016 for a single vessel within the snapper grouper fishery was about $1.7 million (SAFMC, 2019 F-3). Within the South Atlantic region, an average of 231 vessels were identified (annually from 2015-2019) that used the statistical areas likely to be affected by the proposed rule. Based upon the maximum average gross revenue all these commercial reef fishing businesses are believed to be small entities. Consequently, this action would affect a substantial number of small entities within the reef fishery in the South Atlantic region (39.6 percent), but not the Gulf of Mexico (3.8 percent).

Significant Economic Impacts

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

The maximum potential average annual loss of harvest revenue across all vessels within the South Atlantic Snapper Grouper Fishery is estimated to be $19,900 and the estimated maximum potential loss within the Gulf of Mexico Reef Fish Fishery is roughly $1,400 for the reef species analyzed. (The above estimates are totals across the fisheries and not per vessel maximum potential losses.) Although profit loss is not analyzed here, the loss in profit would be smaller than the loss of harvest revenue. The loss of profit considers the avoided costs of not spending the time and effort to catch the fish, where the harvest revenue does not. It is unknown how this loss would be distributed across individual vessels. However, the areas where fishing is prohibited are a small fraction of the overall sanctuary. The targeted zones, of which 95 percent are less than 5 square kilometers and 90 percent are less than 1 square kilometer, are spread throughout the sanctuary. Consistent with previous studies that analyze the impact of marine zone changes, it is likely that fishers would not experience the maximum potential loss and would be able to substitute places within the proposed zones for areas just outside or elsewhere (CDFG, 2008, Hackett et al., 2017, Jeffrey, et al., 2012, Murray & Hee, 2019, and PISCO, 2013). Further, each spatial zone is small and it is likely that commercial harvesters will, in the long-run, find replacement areas and/or benefit from spillover from improvements to reefs and fish communities within closed areas. Because of the above information, a significant reduction in profits for a substantial number of small entities is not expected from the proposed rule to these reef fish fisheries.

iii. Significance of Economic Effects on Small Entities: Lobster Substantial Number Criterion

On average (2012-2016), there were 770 commercial fishing businesses with recorded landings of spiny lobster in the State of Florida (GMFMC, 2018). During this time, these businesses earned an average annual revenue of approximately $84,000 ($2017) and spiny lobster accounted for 67 percent of revenue (GMFMC, 2018). The maximum average annual revenue from all species reported by a single business that harvested spiny lobster from 2012 to 2016 was about $2.0 million (GMFMC, 2018). There are 521 vessels that were identified on average between 2015-2019 that may be affected by the proposed rule. Since these commercial fishing businesses are believed to be small entities, it is assumed that this proposed rule would affect a substantial number of small entities.

Significant Economic Impacts

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

The maximum potential total loss of lobster harvest revenue per year (for the 2015-2019 average) was estimated to be $966,000. The average harvest revenue per year in the Monroe County statistical areas was roughly $42.0 million. This represents a maximum potential loss of 2.3 percent of harvest revenue when compared to the harvest revenue in Monroe County statistical areas. If this potential loss of harvest revenue is evenly distributed across the 521 vessels, the average annual loss per vessel would be $1,900. Although profit loss is not analyzed here, the loss in profit would be smaller than the loss of harvest revenue. The loss of profit considers the avoided costs of not spending effort (time and money) to catch the fish, where the harvest revenue does not. Further, as stated earlier, most targeted zones are small, and it is unlikely that the maximum potential loss would occur. A significant reduction in profits for a substantial number of small entities is not expected from the proposed rule in the lobster fishery.

iv. Significance of Economic Effects on Small Entities: Shrimp Substantial Number Criterion

On average (2011-2014), there were 1,140 vessels with valid permits that actively fished (had landings) in the Gulf of Mexico Shrimp Fishery. From 2011-2014 the average annual gross revenue was about $413,900 for vessels with a shrimp moratorium permit (GMFMC, 2019). There are 108 vessels on average (from 2015-2019) that may be affected by this proposed rule.

From 2014-2018, the average number of vessels with a valid permit that actively fished (had landings) in the South Atlantic Shrimp Fishery was 262 (SAFMC, 2020). However, in the South Atlantic fishery, zero vessels that reported shrimp landings would be affected by the proposed rule.

These commercial fishing businesses are believed to be small entities. However, it is assumed that this proposed rule would not affect a substantial number of small entities. Less than 10 percent of vessels in the Gulf of Mexico fishery and zero percent of vessels in the South Atlantic fishery would be affected.

Significant Economic Impacts

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

The proposed zone changes in the proposed rule are not expected to affect the South Atlantic shrimp fishery. Within the Gulf of Mexico shrimp fishery, there is a de minimis effect that is expected. Small marginal areas of existing zones that were previously closed to shrimping will be opened, while other areas that have been closed may see minor increases in size due to slight boundary changes. Although the analysis found the resulting estimated benefit of $5 of harvest revenue occurring across the fishery, it is likely that these small boundary changes will have no economic impact or alter the location of effort. Consequently, a significant reduction in profits for a substantial number of small entities is not expected from the proposed rule in the shrimp fishery.

v. Significance of Economic Effects on Small Entities: Stone Crab Substantial Number Criterion

This proposed rule would apply to all commercial fishing businesses that harvest stone crab in sanctuary waters. On average (2015-2019), there were 754 commercial fishing vessels with recorded landings of stone crab in Florida, but on average 282 of these vessels (2015-2019) harvested stone crab in the statistical areas that contain marine zones that are affected by the proposed rule. In the absence of more specific data, it is assumed that a maximum of 282 vessels may be affected within the stone crab fishery. The stone crab commercial fishing vessels are believed to be small entities, it is assumed that this proposed rule would affect a substantial number of small entities.

Significant Economic Impacts

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

The maximum potential loss of harvest revenue across all vessels from the proposed rule is roughly $37,700. Within Monroe County statistical subareas, the average annual total harvest revenue was $20.2 million. The maximum potential loss represents a potential loss of 0.2 percent of harvest revenue from the Monroe County statistical areas. Given the information above, a significant reduction in profits for a substantial number of small entities is not expected from the proposed rule. Although profit loss is not analyzed here, the loss in profit would be smaller than the loss of harvest revenue. The loss of profit considers the avoided costs of not spending effort (time and money) to catch the fish, where the harvest revenue does not.

vi. Summary of Effects to Commercial Fisheries

Table 3 provides a summary of the maximum average harvest revenue and maximum average revenue to the various fisheries provided in this section based upon their total catch. These numbers include total catch, regardless of targeted species. Additionally, the estimated loss of harvest revenue because of the proposed zone changes are provided, along with the loss of revenue on average to each vessel that reported fishing in the affected statistical areas. The last column provides information on the percent of total average annual harvest revenue lost per vessel. Except for the lobster fishery, losses are expected to be less than one percent. The lobster fishery vessels may experience a loss of roughly two percent. The losses are assumed to be evenly distributed across vessels operating in the statistical subareas affected by the proposed zone changes. Data on the costs, harvest revenues, and profits to individual businesses are not available to NOAA.

This estimate of losses is considered the maximum potential loss (MPL). This MPL is not expected to occur. First, the MPL is based on gross revenue, which does not consider a reduction in costs ( e.g., fuel, labor) from decreased fishing effort. Further, these losses do not account for substitution of activity outside of the proposed zones or for harvesting of other species.

Most targeted zones are small, and it is unlikely that the maximum potential loss would occur. The Restoration Areas—Nursery, a new type of zone, are all roughly a half square kilometer or less in size. This new zone type results in an additional 2.4 square kilometers being added as transit only areas. Wildlife Management Areas may vary in regulations from idle speed, no wake, no motor, and no entry. In total, 4.0 square kilometers of area will be converted or expanded to Wildlife Management Areas. The smallest zone change proposed is 0.001 square kilometers and the largest zone change is 0.56 square kilometers. Additionally, as noted above, several studies across multiple geographies have demonstrated that the maximum potential losses do not occur because of the availability of substitute places with the proposed zones for areas just outside or elsewhere (CDFG, 2008, Hackett et al., 2017, Jeffrey, et al., 2012, Marry & Hee, 2019, and PISCO, 2013). Each spatial zone proposed to be added is small and it is likely that commercial harvesters will find substitute areas and benefit from spillover improvements from the proposed closed areas. Within the commercial fishing industry, a significant economic effect is not expected to occur to a substantial number of small businesses from the proposed rule.

b. Recreational For-Hire Fishing

i. Description and Estimate of the Number of Small Entities to Which the Proposed Action Would Apply

For hire recreational fishing includes both charter and headboats. Charter boats, generally, are fishing vessels that are hired to take up to six anglers on a fishing trip. Typically, the charge is on a per-trip basis. Headboats usually operate on a schedule, and may provide several trips in a single day, taking many different fishing parties at a time. The charge is on a per-person basis. Headboats are usually larger and able to accommodate more anglers than a charter boat. Headboats are defined in Souza & Liese, 2019 as vessels with a passenger capacity of 18 or more individuals or were included in the Southeast Region Headboat Survey, and make up less than ten percent of permit holders (This definition differs from the NMFS definition.) There were 172 headboats identified, of which 51 percent (or 87 vessels) operated within Florida (Souza & Liese, 2019).

The summary provided here is for federally permitted for-hire vessels. In 2017 (from September to October) 1,166 charter vessels were identified to have active permits in the South Atlantic of which 29 percent reported they had not taken a trip within the past year, yielding 828 active charter vessels in the South Atlantic. Within the Gulf of Mexico, 956 charter vessels were identified with 24 percent of vessels reporting they were not active within the last year. Only active vessels would be affected by this proposed rule (Souza & Liese, 2019). There are 828 charter vessels associated with the South Atlantic that may be affected and 727 charter vessels that may be affected within the Gulf of Mexico.

The maximum average annual gross revenue for a headboat in the South Atlantic in 2017 was about $779,100. On average, annual gross revenue for charter vessels is less than half of that for headboats, so it is assumed that the maximum annual gross revenue for charter vessels in the South Atlantic is less than $779,100 (85 FR 43135; July 16, 2020). As of 2018, annual average gross revenue was estimated to be approximately $89,600 for for-hire charter vessels in the Gulf of Mexico (85 FR 43135; July 16, 2020). In 2017, the maximum annual gross revenue for a single headboat in the Gulf of Mexico was about $1.3 million, so it was assumed that the maximum annual gross revenue for a single charter vessel was less than $1.3 million (85 FR 45363; July 28, 2020). The annual average revenue for headboats in the southeast region ( i.e., Gulf of Mexico and South Atlantic) was approximately $701,500 (Souza & Liese, 2019). Because all for-hire fishing businesses are considered small entities, it was assumed that the proposed rule would affect a substantial number of small entities.

ii. Significance of Economic Effects on Small Entities

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

The average trip revenue including labor for South Atlantic charters is $554, for Gulf of Mexico charters it is $781 and for the southeast headboat it is $1,815. The average number of passengers are 4.7, 5.5 and 28.2, respectively (Souza & Liese, 2019). However, the proposed zones are small and headboat fishing is not dependent upon specific species being harvested, even if passengers may have a target in mind.

It was estimated that the average annual mean effort of person-trips from charter vessels from 2014-2018 is 117,119 (MRIP, 2020). As a result of the proposed rule, up to 424 days of person activity (or 0.36 percent) may be lost. The trips lost are associated with the South Atlantic, and may result in a total of roughly $50,000 revenue lost on average each year (average trip revenue*number of lost person-days/average number of people per trip in the South Atlantic). The distribution of this loss is not known. It is likely that both charter operations and passengers will adapt to locations outside of the targeted marine zones with the targeted fish or catch other species. A significant reduction in profits for a substantial number of small entities is not expected from the proposed rule.

c. Non-Consumptive Recreation Industry

This section considers the number of small businesses operating within the non-consumptive recreation industry and the potential effects on those businesses. Businesses considered within this industry include dive and snorkeling operations, rental equipment operations, wildlife viewing operations and other businesses that either utilize or whose customers utilize sanctuary resources, but do not take resources.

i. Description and Estimate of the Number of Small Entities to Which the Proposed Action Would Apply

There are currently thirty recognized Blue Star dive/snorkeling operators (M. Tumolo, Pers. Comm. 2021). However, this number should be viewed as a minimum and it regularly changes as operations close and other operators sign up for the program. The exact number of dive and snorkeling operations is not known as many of these small businesses do not operate from brick and mortar locations. Further, using Trip Advisor, there were several operations identified for other watersports (Table 5). The table does not reflect the unique number of businesses, as those that provide multiple services may be identified in multiple rows. Utilizing NAICS code 487210 (scenic and sightseeing transportation), the U.S. Census identifies 73 establishments in 2017 in Monroe County, Florida (U.S. Census, 2021b).

Based upon site knowledge, these non-consumptive businesses are believed to be small entities, it is assumed that this proposed rule would affect a substantial number of small entities.

ii. Significance of Economic Effects on Small Entities

Profitability: Do the regulations significantly reduce profits for a substantial number of small entities?

Although some of the proposed marine zone boundary changes will affect activity, the majority of zones that limit activity are small. The Conservation Areas will see an increase of 49.3 square kilometers being converted to transit only areas. Ecological Reserves and Special Use Areas under current regulations will be renamed Conservation Areas under the proposed rule. Further, 46.5 square kilometers are located in the Tortugas South Conservation Area, and are not frequented often by operations because the area only allows transit, this means only 2.8 square kilometers of Conservation Areas are likely to affect non-consumptive recreation businesses. Tortugas North Conservation Area allows activity if the user has an access permit.

The Restoration Areas—Nursery, a new type of zone, are all roughly a half square kilometer or less in size. This new zone type results in an additional 2.4 square kilometers being added as transit only areas. Lastly, Wildlife Management Areas may vary in regulations from idle speed, no wake, no motor, and no entry. In total, 4.0 square kilometers of area will be converted or expanded to Wildlife Management Areas. The smallest zone proposed is 0.001 square kilometers and the largest zone change was 0.56 square kilometers in size.

Estimates on revenue, costs and profitability of non-consumptive business are not available. However, the zone changes being proposed, except for Tortugas South Conservation Area (46.5 sq. km) and Tennessee Reef Conservation Area (1.8 sq. km) are all roughly a half square kilometer or less. Further, these additional protections will help to conserve and sustain resources to ensure the future health of the individual reefs and consequently the larger reef tract to ensure its existence and use of FKNMS to support businesses.

Further, some of the zones and/or expanded areas of the zones are proposed to be no anchor. This may affect small businesses if there is not a sufficient number of mooring buoys available. In addition to the marine zone boundary changes, the proposed sanctuary wide regulation requires vessels 65 feet in length or greater to use a large vessel mooring buoy may affect non-consumptive recreation entities. However, as part of the management action, the site plans to work with the Sanctuary Advisory Council to determine the number and locations where large vessel moorings are needed. The intent of these regulations is primarily to protect sensitive reef habitat by building better infrastructure to support access to these areas. As a result of the information above, a significant reduction in profits for a substantial number of small entities is not expected as a result of the proposed rule.

d. Sanctuary Wide and Marine Zone Regulations

Due to the lack of quantitative data on the number of businesses directly affected by the proposed rule and their levels of revenues, costs, and profits from their activities within the sanctuary, the analysis provided here is qualitative. The types of small entities that may be impacted by the proposed rule include cruise lines, non-consumptive and consumptive recreational charter businesses, and commercial fishing businesses.

In this analysis, NOAA concluded that the impacts to small business entities that were analyzed would be no effect or negligible. No effect means that the proposed action would have no impact to small entities, and negligible means that the proposed rule would cause less than 1 percent change to small businesses and no likely impact to revenue, costs, and profits.

i. Discharge Regulation Exception

The costs to cruise ship businesses are minimal to non-existent since they can discharge once outside sanctuary boundaries. Additionally, cruise ships are limited to the Key West ship channel and spend little time transiting the sanctuary. Any costs associated with the discharge regulations would be minor compared to overall costs of operating a cruise ship.

ii. Temporary Regulation for Emergency and Adaptive Management

Temporary regulations allow the sanctuary to prevent or minimize the destruction of, loss of, or injury to sanctuary resources or the quality of the resources upon which many small businesses ( e.g., commercial fishing, consumptive recreational charters, dive operations) rely. Potential costs include temporary displacement of activities from the initiation of the temporary regulation. But in the short-term, substitution or re-location of activities will most likely be available and short-term disruption to activity would be minimal. There would be no long-term costs associated with each temporary regulation, but future temporary regulations would have costs similar to the short-term costs associated with disruption of activity. Although these proposed regulations may result in short-term costs to small entities, they are expected to provide large net benefits to small entities in the long-term through improved resource conditions. The effect of this proposed rule on small entities would be negligible.

iii. Historical Resources Permitting

The revised historical resources permitting system would eliminate deaccession/transfer permits, thereby removing the ability of individuals to take private possession of historic resources. This will not have any economic effects because the sanctuary has never issued any such permits. This proposed rule would have no effect on small entities.

iv. Fish Feeding

The fish feeding regulation would not apply to feeding for the purpose of harvesting marine species during traditional fishing. There are very few non-consumptive recreational operations in FKNMS that conduct fish feeding activities. There is a lack of data on how fish feeding activities generate revenue for small businesses. Existing eco-tour operators may seek an ONMS permit for fish feeding if they are able to satisfy all general permit application requirements and review criteria, which would serve to mitigate any costs associated with the proposed rule. This proposed rule would have negligible effects on small entities.

v. Grounded and Deserted Vessels, and Harmful Matter

The grounding or desertion of vessels is not essential to the operations of any type of small entity in the sanctuary. Additionally, any costs to small entities to remove derelict and/or abandoned vessels are minimal compared to their liability if the derelict or abandoned vessel damages sanctuary resources or damage assessment cases are brought against those who damage sanctuary resources. The proposed rule would have negligible effects on small entities.

vi. Large Vessel Mooring Buoys

In conjunction with this regulation, NOAA will work with user groups to ensure that an adequate number of large vessel mooring buoys are available and sited at appropriate locations. Accordingly, this proposed rule would have no effect on small entities.

vii. Prohibition of Catch and Release Fishing by Trolling in Four Sanctuary Preservation Areas

The proposed regulation only applies to catch and release fishing, so commercial fishing operations would not be impacted. Isolating the effects of the regulation to specific charter fishing businesses is not possible given the spatial limitations of the data available. However, the spatial extent of the SPAs where this activity is currently allowed is small and any costs to small entities are likely to be offset by spatial substitution to similar areas nearby. Accordingly, costs to small entities would be negligible.

viii. Bait Fishing Permits

The FKNMS baitfish permit database does not contain information on businesses affiliated with permit holders. However, it is assumed that some of these permit holders use baitfish catch for either commercial fishing operations or charter fishing operations. Estimated average annual replacement costs per active permit holder ( i.e., those who reported using the permit at least once) are $684 for lampara net fishers, between $815 and $1304 for cast net fishers, and between $94 and $150 for hair hook fishers. These estimates represent maximum potential replacement costs, as they do not account for the likelihood of spatial substitution away from the relatively small SPAs. Additionally, from 2015-2019, there were only 3 lampara net permit holders, 26 active cast net permit holders, and 5 active hair hook permit holders. The proposed rule would not affect a substantial number of small commercial fishing or charter fishing entities.

ix. Tortugas North Access Permits

This proposed regulation is an administrative change that would result in no costs to small entities.

e. Summary of Findings

i. Description of the Projected Reporting, Record-Keeping and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities Which Will be Subject to the Requirement and the Type of Professional Skills Necessary for the Preparation of the Report or Records

The proposed regulatory action would not establish any new reporting or record-keeping requirements.

ii. Identification of All Relevant Federal Rules, Which May Duplicate, Overlap or Conflict With the Proposed Rule

No duplicative, overlapping, or conflicting federal rules have been identified.

iii. Description of Significant Alternatives to the Proposed Action and Discussion of How the Alternatives Attempt To Minimize Economic Impacts on Small Entities

This proposed rule, if implemented, is not expected to reduce the profits of any small businesses directly regulated by this proposed rule. This is in part due to the potential for substitution of location for activities and that the proposed rule is informed by and responsive to comments from the potentially impacted user groups ( e.g., two specific marine zones included in the DEIS are not included in the proposed rule due, in part, to comments from lobster fishermen regarding their expected maximum potential loss of access and use). As a result, the issue of significant alternatives is not relevant.

f. Conclusion of Regulatory Flexibility Analysis

This proposed regulatory action, if implemented, is not expected to reduce the profits of any small businesses directly regulated by this proposed rule. As a result, the issue of significant alternatives is not relevant. The proposed regulatory action would not establish any new reporting or record-keeping requirements. No duplicative, overlapping, or conflicting federal rules have been identified. The Chief Counsel for Regulation of the Department of Commerce certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities.

7. Paperwork Reduction Act

The existing FKNMS regulations contain a collection-of-information requirement for persons making an application for a permit. This collection of information is subject to the Paperwork Reduction Act (PRA), approved by the Office of Management and Budget (OMB), under control number 0648-0141 (expires November 30, 2024), for collection-of-information for reporting and recordkeeping requirements under 15 CFR part 922. This proposed rule would not increase or otherwise revise the existing paperwork burdens.

The public reporting burden for national marine sanctuary general permit applications is estimated to average 1 hour 30 minutes per application, including the time for reviewing the application instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. For special use permits, a collection-of- information requirement is necessary to determine whether the proposed activities are consistent with the terms and conditions of special use permits prescribed by the NMSA. The public reporting burden for this collection of information is estimated to average eight (8) hours per response (application, annual report, and financial report), including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The current OMB-approved collection-of-information requirement also includes other types of permits that may be issued by FKNMS, such as Tortugas North access permits, authorization permits, and certification permits. The estimates set forth in the OMB approval do not include additional time that may be required should the applicant be required to provide information to NOAA for the preparation of documentation that may be required under NEPA (16 U.S.C. 1431 et seq. ).

NOAA does not expect that this proposed rule would appreciably change the average annual number of respondents or the reporting burden for the information requirements supporting general or special use permits, authorization permits, or certification permits because sanctuary boundaries, marine zones, and regulations are not being modified in such a way that a significant number of new permits would be expected or required. Uses that require permits are anticipated to continue with similar frequencies as current operations. NOAA believes that the proposed regulations do not necessitate a modification to its information collection approval by the Office of Management and Budget under the Paperwork Reduction Act. However, an increase in the number of ONMS permit requests would require a change to the reporting burden certified for OMB control number 0648-0141. While not expected, if such permit requests do increase, an update to this control number for the processing of ONMS permits would be requested.

Comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, may be sent to NOAA (see ADDRESSES above) and to the Office of Management and Budget (OMB) by email to OIRA_submission@omb.eop.gov or fax to (202) 395-7285. Before an agency submits a collection-of-information to OMB for approval, the agency shall provide 60-day notice in the Federal Register , and otherwise consult with members of the public and affected agencies concerning each proposed collection of information, to solicit comments to:

(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(ii) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(iii) Enhance the quality, utility, and clarity of the information to be collected; and

(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

8. National Historic Preservation Act

The National Historic Preservation Act (NHPA; 54 U.S.C. 300101 et seq. ) is intended to preserve historical and archaeological sites in the United States of America. The NHPA created the National Register of Historic Places, the list of National Historic Landmarks, and the State Historic Preservation Offices. Section 106 of the NHPA requires Federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. The review process mandated by Section 106 is outlined in regulations issued by the ACHP ( 36 CFR part 800 ).

In coordinating its responsibilities under Section 106 of the NHPA with release of the 2019 DEIS, NOAA solicited for and identified potential consulting parties, identified historic properties in the area of potential effects, and assessed the effects of the undertaking on such properties in consultations with those identified parties. NOAA received official comment letters from the Florida State Historic Preservation Officer, the Seminole Tribe of Florida, non-governmental organizations, associations, sanctuary historical resource permittees, and other interested members of the public. Pursuant to 36 CFR 800.16 (1)(1), the term “historic property” means: “any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior.” The term includes “artifacts, records, and remains that are related to and located within such properties” as well as “properties of traditional religious and cultural importance to an Indian tribe . . . that meet the National Register criteria.” Responses to comments received on the 2019 DEIS, this proposed rule, and the Section 106 consultation will be published in the Final Environmental Impact Statement and in the final rule. NOAA intends to contact the Florida State Historic Preservation Officer and the Seminole Tribe of Florida to continue NHPA Section 106 consultation based on this proposed rule and revised draft management plan. NOAA also invites additional comments from consulting parties or other interested parties on the effects to historic properties from this proposed rule.

Once this rule is final, NOAA will continue coordination with SHPO, ACHP, and other consulting parties to finalize the draft Programmatic Agreement under Section 106 of the National Historic Preservation Act regarding Florida Keys National Marine Sanctuary Operations, Management, and Permitting, which is a separate effort from this proposed rule.

9. Coastal Zone Management Act

Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 1456) requires Federal agencies to conduct their activities in a manner that is consistent to the maximum extent practicable with the enforceable policies of a state's coastal management program if such activities will affect any coastal uses or resources of the State. NOAA provided copies of the DEIS to the State of Florida and requested that the State identify any enforceable policies of its coastal management program applicable to the proposed action. In compliance with the CZMA, NOAA will prepare a consistency determination and submit it to the State of Florida before publishing the final rule.

VI. Request for Comments

Comments are welcome on any and all aspects of the proposed rule, and we request any data that may further inform impacts of the proposed action.

List of Subjects in 15 CFR Part 922

• Administrative practice and procedure
• Coastal zone
• Fishing gear
• Incorporation by reference
• Marine

Accordingly, for the reasons set forth above, NOAA is proposing to amend 15 CFR part 922 (as amended by 87 FR 29606, May 13, 2002; delayed at 87 FR 37729, June 24, 2022) as follows:

PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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

Subpart P also issued under Public Law 101-605.

2. Revise subpart P to read as follows: