Texas Flower Garden Banks New Regulations

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

DATES: Effective Date: May 29, 2012.

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

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

 Summary of the Revisions

This rulemaking:

    1. Requires any vessel moored in the sanctuary to exhibit the blue and white International Code flag ``A'' (``alpha'' dive flag) or red and white ``sports diver'' flag whenever a SCUBA diver from that vessel is in the water and remove the ``alpha'' dive flag or ``sports diver'' flag after all divers exit the water and return on board the vessel, consistent with U.S. Coast Guard guidelines relating to sports diving as contained within ``Special Notice to Mariners'' (00-208) for the Gulf of Mexico;

    2. Clarifies and updates the prohibition on discharges or deposits of any material or other matter;  

    3. Prohibits killing, injuring, attracting, touching, or disturbing a ray or whale shark; and  

    4. Makes technical corrections.

A. Dive Flag Requirements

NOAA is requiring any vessel engaged in diving activity within the FGBNMS to clearly exhibit the blue and white International Code flag ``A'' (``alpha'' dive flag) or the red and white ``sports diver'' flag whenever a SCUBA diver from that vessel is in the water and remove the ``alpha'' dive flag or ``sports diver'' flag after all SCUBA divers exit the water and return on board the vessel. This is consistent with U.S. Coast Guard guidelines relating to sports diving as contained within ``Special Notice to Mariners'' (00-208) for the Gulf of Mexico. 

Specifically, the U.S. Coast Guard (USCG) requires any vessel in federal waters engaged in diving operations to use an ``alpha'' dive flag, when that vessel is of a size that makes it impracticable to exhibit all lights and shapes prescribed in USCG regulations (33 CFR 83.27). However, the U.S. Coast Guard makes the distinction between diving operations where divers are attached to the vessel (i.e. surface supplied diving) vs. ``free swimming'' divers (i.e. SCUBA).

In a ``Special Notice to Mariners'' (00-2008) for the Gulf of Mexico (``Special Notice to Mariners''), issued in 2009 (available online at: http://www.uscg.mil/d8/waterways/marinfo.asp), the U.S. Coast Guard encourages the use of the red and white ``sports diver'' flag for ``free swimming'' divers. The Special Notice to Mariners states, ``The Alpha flag is to be flown on small vessels engaged in diving operations whenever these vessels are restricted in their ability to maneuver if divers are attached to the vessel. But in sports diving, where divers are usually free swimming, the Alpha flag does not have to be shown and the Coast Guard encourages the continued use of the traditional sports diver flag. The distinction the Coast Guard wants to make clear is: The Alpha flag is a navigational signal intended to protect the vessel from collision. The sports diver flag is an unofficial signal that, through custom, has come to be used to protect the diver in the water. It is the responsibility of the operator of a diving vessel to determine if his craft's movements are restricted.''

NOAA acknowledges that Federal law and policy strongly favor uniform rules wherever it is deemed practical and appropriate. Because the entire sanctuary is within federal waters, NOAA proposes to make the regulations consistent with USCG dive flag requirements.

B. General Discharge/Deposit Prohibition

NOAA is updating and amending the prohibition on discharges or deposits (hereafter referred collectively as ``discharges'') in the FGBNMS regulations by: (1) Clarifying that the prohibition applies to discharges into the sanctuary as well as from within the sanctuary boundaries; (2) modifying the exception for the discharge of fish parts; (3) revising the exception for effluent from marine sanitation devices (MSDs); (4) requiring that MSDs be locked; (5) eliminating the word ``biodegradable'' and replacing that term with a more clear standard; and (6) clarifying the scope of the exception for discharges associated with ``routine vessel operation.''

1. Clarification of a ``direct discharge.'' Since the sanctuary was designated in 1992, NOAA has prohibited discharges or deposits of material or other matter. In doing so, NOAA's regulations have differentiated between discharges that originate from within the boundaries of the sanctuary (hereafter referred to as ``direct discharges'') and those that originate from beyond the sanctuary boundaries, enter the sanctuary, and injure sanctuary resources. The primary difference between these two classes is that proof of injury is required with respect to the latter class for there to be a violation whereas no such proof is required for a violation arising from a direct discharge.

To clarify the intended application of the direct discharge prohibition and to ensure consistency among the regulations for other sanctuaries, this rule clarifies that the prohibition on discharging or depositing any material or other matter applies to discharges or deposits from within ``or into'' the sanctuary.    By adding the words ``or into'', NOAA is clarifying that the prohibition does not only apply to discharges originating in the waters of the sanctuary, the prohibition also applies, for example, to immediate discharges and deposits into the sanctuary from aircraft, when waste is thrown into the sanctuary from a vessel, or from other similar activities.

This regulatory change will not have an effect on the existing oil and gas activities in the vicinity of the sanctuary. For example, the two existing platforms closest to the sanctuary are: (a) High Island 384, located 0.26 miles (1373 feet) from the boundary of West Flower Bank; and (b) High Island 376, located 0.22 miles (1162 feet) from East Flower Garden Bank. Because of the distance between those platforms and the sanctuary boundaries, NOAA does not foresee that either platform would be impacted by the new rule because NOAA does not envision conditions that would enable a discharge from these platforms to be considered a direct discharge under sanctuary regulations and consequently violate 15 CFR 922.122(a)(3)(i).

The purpose of the regulation is not to create new restrictions on otherwise lawful activities occurring beyond, but adjacent to, the sanctuary boundaries. Rather, NOAA's goal is to ensure consistency among the regulations of other sanctuaries and clarify the discharge and deposit regulations. Discharges or deposits originating from beyond the sanctuary would still remain subject to the regulations at Sec.  922.122(a)(3)(ii), which requires proof of entry into the sanctuary and injury to sanctuary resources to constitute a violation.

In the event NOAA decides to pursue sanctuary expansion (as described in the final management plan for the sanctuary, published concurrently with this rulemaking), NOAA will consider the need to revise this regulation and consult with stakeholders, including the oil and gas industry, to ensure adjacent activities are not unnecessarily affected.

2. Exception for discharges of fish parts. The rule also clarifies that the exception to the prohibition on discharges or deposits (hereafter referred collectively as ``discharges'') for fish, fish parts, or chumming materials (bait) applies only to discharges made during the conduct of fishing with conventional hook and line gear within the sanctuary. This rule prevents the dumping of fish, fish parts, or chumming materials at all other times except for during fishing with conventional hook and line gear within the sanctuary.

3. Exception for MSD effluent. This rule clarifies that the exception for discharge or deposit of vessel waste generated by a federally approved marine sanitation device was not intended to allow the discharge of untreated sewage (e.g., discharges from Type III MSDs) into the sanctuary. Type I and Type II MSDs treat sewage, whereas Type III MSDs store sewage until it is removed at designated pump-out stations on shore or discharged at sea. Therefore, NOAA is modifying the FGBNMS regulations to clarify that only discharges of effluent from properly functioning Type I or II MSDs are allowed in the sanctuary.

4. Locking MSDs. In addition, NOAA is requiring all MSDs be locked in a manner that prevents discharge or deposit of untreated sewage. The requirement that MSDs be locked (e.g., locking closed an overboard discharge valve) helps prevent both intentional and unintentional overboard discharges of untreated sewage within the sanctuary.

5. Standard for excepted discharges or deposits. The revised regulations would only allow a vessel to discharge clean effluent from a Type I or Type II MSD. The use of the word ``clean'' would replace the use of the word ``biodegradable'' in the regulations. Under the revised regulations, ``clean'' means not containing detectable levels of harmful matter; and ``harmful matter'' means any substance, or combination of substances, that because of quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed at 40 CFR 302.4 (Sec. 922.131) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C 9601(14)).

 NOAA decided to remove the term ``biodegradable'' from the regulations because NOAA has determined that the term has no recognized legal definition, and products are labeled ``biodegradable'' without reference to a fixed set of standards. NOAA could define the term; however, it would not be reasonable to expect a vessel operator to know which of the wide spectrum of products labeled as ``biodegradable'' meet NOAA's definition. Defining the terms ``clean'' and ``harmful matter'' provide vessel operators with a definition of what is prohibited, and focuses on the types of contaminants that pose the greatest threat to water quality within the sanctuary.

 6. Scope of discharges or deposits from routine vessel operations. NOAA is replacing the exception for ``water generated from routine vessel operations'' with an exception for clean deck wash down, clean cooling water, and clean bilge water provided they are free of detectable levels of ``harmful matter'' as defined by the regulations. This facilitates compliance by clearly identifying what types of discharges from routine vessel operations are allowed, and focusing on those contaminants that pose the greatest threat to water quality. The requirement also makes the regulations consistent with recent requirements governing other national marine sanctuaries.

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

Approximately 20 species of sharks and rays have been documented at the Flower Garden and Stetson Banks; some are seasonal, and others frequent the sanctuary year-round. During the winter months, spotted eagle rays (Aetobatus narinari) visit all three banks. The reason for the seasonal visits is unclear, but the occurrence is quite predictable. Summer months usually bring whale sharks (Rhincodon typus). These filter-feeding creatures can reach over 30 feet (9 meters) in length. Manta rays (Manta birostris) and the very similar-looking mobula rays (Mobula spp.) are regular visitors to the sanctuary throughout the year. At least 58 different individual manta rays have been documented and identified by distinctive markings on their undersides. Recent acoustic tracking of the manta rays has revealed that the mantas are moving between the three banks of the sanctuary.

 Whale sharks and rays are transient creatures and migrate between areas for feeding and mating. The sanctuary is a place where rays and whale sharks should be protected from human-induced death, injury, or other harm. Humans can physically harm rays and whale sharks by attracting, touching, riding, or pursuing these animals. Their external sensory systems are affected by unnatural activation, which has unknown consequences on their ability to sense their environment. These animals may actively avoid diver interaction by changing direction or diving, and may exhibit violent shuddering. When these responses occur, rays and whale sharks expend energy in ways other than feeding and other natural activities, which can adversely affect their overall health. In addition, people can injure the skin of these animals through touching, and can expose the animals to other potential injuries. Finally, attracting rays and whale sharks changes their behavior and may negatively impact their health. As an example of how rays have been affected by divers, stingrays in the Cayman Islands have developed shoaling behavior and altered feeding habits, as well as exhibit skin abrasions from handling. Scientific citations regarding the concerns and examples here can be found in the references section of the environmental assessment (see ADDRESSES for instructions on obtaining a copy).

Rays and whale sharks are not listed under the Endangered Species Act (ESA). These species are also not designated as depleted under the Marine Mammal Protection Act (MMPA) because they are not mammals. Therefore, they are not protected in the same manner as threatened or endangered species protected under the ESA or depleted marine mammals protected under the MMPA. With this final rule, NOAA is strengthening the protection of rays and whale sharks from harm (or likelihood thereof) in the sanctuary by prohibiting killing, injuring, attracting, touching, or disturbing these animals. The intent is to prevent intentional human interaction with rays and whale sharks in such a manner that the animals change direction, dive away from human interaction, shudder, or have any other adverse behavioral or physical reaction. An exception to this new prohibition is made for incidental by-catch of a ray or whale shark when using conventional hook-and-line fishing gear. In order to make this new prohibition as clear as possible, NOAA is adding definitions for the terms ``attract or attracting'' and ``disturb or disturbing a ray or whale shark'' in Sec.  922.121.

D. Technical Corrections

NOAA is making a technical correction to eliminate the references in the regulations to Sec.  922.122(a)(4), because that clause no longer exists. This subparagraph references a specific prohibition on vessel anchoring activities that was eliminated from the FGBNMS regulations in 2001 (66 FR 58370).

NOAA also is updating cross references in Sec.  922.122(c) through (g) and updating cross references in Sec.  922.123(a) and (c) that may change as a result of the re-designation of paragraphs associated with this rule.

Last, NOAA is amending the regulations to update the sanctuary office address in Sec.  922.123(b). The sanctuary office moved from Bryan, TX to Galveston, TX in 2006, and the regulations were not amended immediately following the move.

III. Differences Between the Proposed Rule and the Final Rule

The Administrative Procedure Act (APA) notice-and-comment process (5 U.S.C. 553) contemplates that changes may be made to the proposed rule without triggering an additional round public notice and comment so long as the changes are ``in character with the original scheme'' and are of a type that could have been reasonably anticipated by the public (i.e., a logical outgrowth of the proposal or comments received) (Foss v. National Marine Fisheries Service, 161 F.3d 584, 591 (9th Cir. 1998); Chemical Mfrs Ass'n v. United States Environmental Protection Agency, 870 F.2d 177 (5th Cir. 1989). In addition, the APA provides exceptions to notice and comment rulemaking for ``(A) interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds * * * that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest'' (5 U.S.C. 553(b)). The proposed rule text published in October 2010 (75 FR 65256) and this final rule, including the bases for changes, are summarized as follows:

A. NOAA is amending the ``alpha'' dive flag requirement (proposed as Sec.  922.122(a)(2)(iii)). The proposed rule published in October 2010 only required the use of the ``alpha'' flag (75 FR 65256). In this final rule, NOAA is requiring any vessel engaged in diving activity within the FGBNMS to clearly exhibit the blue and white International Code flag ``A'' (``alpha'' dive flag) or the red and white ``sports diver'' flag whenever a SCUBA diver from that vessel is in the water and remove the ``alpha'' dive flag or ``sports diver'' flag once all SCUBA divers exit the water and return on board the vessel. This is consistent with U.S. Coast Guard guidelines relating to sports diving as contained within ``Special Notice to Mariners'' (00-208) for the Gulf of Mexico. NOAA is making this change in the final rule to ensure consistency with the U.S. Coast Guard regulations and the Special Notice to Mariners (available online at: http://www.uscg.mil/d8/waterways/marinfo.asp). NOAA views the change in the final rule as a logical outgrowth of the originally proposed rule.

B. NOAA is amending the definition for ``disturb or disturbing a ray or whale shark''. NOAA received many public comments requesting a change to the definition proposed in the Notice of Proposed Rulemaking published in 75 FR 65256. The public was mainly concerned that under the definition (as originally proposed) a violation could arise if the animal initiated interaction or if the animal exhibited some natural behavioral traits (like shuddering) without provocation. That was not NOAA's intent. Therefore, in response to these comments, the final rule clarifies that behavioral responses by the animal produced by passive interaction with a human does not constitute a violation of the regulations. NOAA is only concerned with active human conduct that disturbs a ray or whale shark, through (but not limited to) touching, handling, riding, pursuing, chasing, hunting, or restraining the animal.

C. NOAA is creating a new exception for the prohibition on killing, injuring, attracting, touching or disturbing a ray or whale shark. 

Public comments received by NOAA indicate that some small rays such as sting rays can sometimes be caught as by-catch by lawful hook-and-line fishing. NOAA's intention with this new regulation was not to impose restrictions on users of conventional hook and line gear, as the species of rays and whale sharks NOAA is concerned about protecting would not be likely by-catch of hook and line recreational fishing. By adding an exception for the use of conventional hook and line gear, NOAA clarifies that the prohibition on killing, injuring, attracting, touching or disturbing rays and whale sharks does not apply to incidental by-catch during lawful fishing in the sanctuary.

D. NOAA is amending the regulations to update the sanctuary office address in Sec.  922.123(b). The sanctuary office moved from Bryan, TX to Galveston, TX in 2006, and the regulations were not amended immediately following the move. NOAA finds good cause to change the address because the public must be able to contact the office for permit applications and other reasons, and the modification is exempt from normal notice and comment procedures since it is a minor technical change affecting current agency organization or practice.

E. NOAA is amending Sec.  922.122(a)(4) to clarify that the only exception to the prohibition on drilling into, dredging or otherwise altering the seabed is for activities conducted in areas of the sanctuary outside the no-activity zones and incidental to exploration for, development of, or production of oil or gas in those areas (Sec.  922.122(c)). The original regulatory language provided a broad exception for anchoring; however, this was rendered obsolete with the promulgation of the anchoring prohibition in 2001 (66 FR 58370). Since the only anchoring currently allowed in FGBNMS pertains to Sec.  922.122(c), NOAA finds good cause to clarify the regulations. NOAA views this as a technical change and logical outgrowth of the 2001 rulemaking. This change does not alter the intent of the regulations, nor is it expected to substantially impact any users of the sanctuary since the existing anchoring prohibition in FGBNMS has been in effect for more than a decade; therefore, no changes were made to the environmental assessment associated with this rulemaking and additional notice and comment is not required under the APA.

For ease of reference and understanding, NOAA is reprinting section 922.122 as it would read in its entirety as amended, and section 922.123(a) through (c), rather than printing individual, editorial instructions to the Federal Register. Except as noted above, there are no additional changes to the sections from the proposed rule.