Proposed Rule2022-22368
Flower Garden Banks National Marine Sanctuary Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 14, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Oceanic and Atmospheric Administration (NOAA) is issuing this proposed rule to remove a provision from one section of the existing Flower Garden Banks National Marine Sanctuary (FGBNMS) regulations, regarding the resolution of conflicting Federal agency regulations by the Director of the Office of National Marine Sanctuaries.
Full Text
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<title>Federal Register, Volume 87 Issue 198 (Friday, October 14, 2022)</title>
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[Federal Register Volume 87, Number 198 (Friday, October 14, 2022)]
[Proposed Rules]
[Pages 62314-62316]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22368]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 /
Proposed Rules
[[Page 62314]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 221006-0212]
RIN 0648-BL38
Flower Garden Banks National Marine Sanctuary Regulations
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.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
issuing this proposed rule to remove a provision from one section of
the existing Flower Garden Banks National Marine Sanctuary (FGBNMS)
regulations, regarding the resolution of conflicting Federal agency
regulations by the Director of the Office of National Marine
Sanctuaries.
DATES: Comments must be received by November 14, 2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NOS-2022-0047, by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-NOS-2022-0047 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
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
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
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).
FOR FURTHER INFORMATION CONTACT: George P. Schmahl, Superintendent,
Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building
216, Galveston, Texas 77551, at 409-356-0383, or
<a href="/cdn-cgi/l/email-protection#1d7a78726f7a78336e7e75707c75715d73727c7c337a726b"><span class="__cf_email__" data-cfemail="096e6c667b6e6c277a6a61646861654967666868276e667f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Flower Garden Banks National Marine Sanctuary
The National Marine Sanctuaries Act (NMSA) authorizes the Secretary
of Commerce (Secretary) to designate and protect, as national marine
sanctuaries, areas of the marine environment that are of special
national significance due to their conservation, recreational,
ecological, historical, scientific, cultural, archeological,
educational, or aesthetic qualities. Day-to-day management of national
marine sanctuaries is delegated by the Secretary to NOAA's ONMS. The
primary objective of the NMSA is to protect nationally significant
marine resources, including biological features such as coral reefs,
and cultural resources, such as historic shipwrecks and archaeological
sites. The mission of FGBNMS is to identify, protect, conserve, and
enhance the natural and cultural resources, values, and qualities of
the sanctuary and its regional environment for this and future
generations.
FGBNMS is located in the northwestern Gulf of Mexico approximately
70 to 115 miles (113 to 185 kilometers) off the coasts of Texas and
Louisiana. These offshore areas encompass a wide range of geologic
features and habitat conditions that support several distinct
biological communities, including the northernmost stony coral reefs in
the continental United States. The banks, reefs, and similar formations
provide the foundation for essential benthic habitats that support a
wide variety of species. They are home to the most significant examples
of coral and algal reefs, mesophotic and deepwater coral communities,
and other biological assemblages in the Gulf of Mexico. The combination
of location and geology makes FGBNMS extremely productive and diverse,
and presents a unique set of challenges for managing and protecting its
natural wonders.
When NOAA first designated FGBNMS on December 5, 1991 (56 FR
63634), and Congress subsequently passed a law recognizing the
designation on January 17, 1992 (Pub. L. 102-251, Title I, Sec. 101),
the sanctuary consisted of only two areas known as East and West Flower
Garden Banks (56 FR 63634). Among other things, FGBNMS regulated a
narrow range of activities, established permit and certification
procedures, and exempted certain U.S. Department of Defense (DOD)
activities from the sanctuary's prohibitions (56 FR 63634). The
regulations also exempted activities necessary to respond to
emergencies threatening life, property, or the environment (56 FR
63634). Those regulations became effective on January 18, 1994 (58 FR
65664). In 1996, Congress added Stetson Bank to the sanctuary (Pub. L.
104-283). The boundaries of Stetson Bank and West Flower Garden Bank
were later amended to improve administrative efficiencies and increase
the precision of all boundary coordinates based on new positioning
technology (65 FR 81175, Dec. 22, 2000). Subsequently, on January 19,
2021, NOAA issued a final rule for the expansion of FGBNMS (86 FR
4953). The final rule went into effect on March 22, 2021 (86 FR 15404),
and expanded the boundaries of FGBNMS from approximately 56 square
miles to approximately 160 square miles (145 square kilometers to 414
square kilometers), and increased the number of protected reefs and
banks (86 FR 4953). FGBNMS now protects East and West Flower Garden
Banks, Stetson Bank, Horseshoe Bank, MacNeil Bank, Rankin/28 Fathom
Banks, Bright Bank, Geyer Bank, Elvers Bank, McGrail Bank, Bouma Bank,
Sonnier Bank, Rezak Bank, Sidner Bank, Parker Bank, and Aldrice Bank.
The areas designated as FGBNMS are currently managed by several
Federal agencies that share jurisdiction over the area and its
resources. These agencies include: the U.S. Department of the Interior,
Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and
Environmental Enforcement (BSEE), who share primary jurisdiction
[[Page 62315]]
over offshore energy exploration and development; the U.S.
Environmental Protection Agency (EPA), which is responsible for
protecting the quality of the nation's waters; NOAA's National Marine
Fisheries Service (NMFS) and Gulf of Mexico Fishery Management Council
(GMFMC), which jointly manage the U.S fisheries; and, as previously
stated above, NOAA's ONMS, which provides comprehensive management and
protection to the sanctuary. Additionally, DoD and U.S. Coast Guard
activities, as well as commercial shipping and other marine activities,
occur in and around the waters of FGBNMS.
B. Summary of the Proposed Revision
This action responds to the issues raised by Federal agency
partners during interagency review of the final rule to expand FGBNMS
(86 FR 4953), and during interagency review of a separate, unrelated
interim final rule to update and reorganize the existing sanctuary
regulations and eliminate redundancies (87 FR 29606). Specifically, the
Federal agency partners expressed concern that the sanctuary regulation
at 15 CFR 922.122(b) does not reflect existing practice and may be an
overreach of the ONMS Director's delegated authority under the NMSA.
Specifically, section 922.122(b) provides that if a Federal agency
regulation and a Sanctuary regulation conflict, then the regulation
deemed by the Director of the ONMS as being more protective of
Sanctuary resources and qualities shall govern. The NMSA does not
contain express language that prescribes how potential conflicts with
other Federal regulations are to be resolved. The NMSA instead
establishes a framework ``to 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)). The NMSA also ``provide[s]
authority for comprehensive and coordinated conservation and management
of . . . marine areas, and activities affecting them, in a manner which
complements existing regulatory authorities'' (16 U.S.C. 1431(b)(2)).
To ensure sanctuary regulations facilitate compatible use and
complement existing regulatory authorities, the NMSA directs NOAA to
consult with other Federal agencies on the proposed designation of new
sites or expansion of existing sites (16 U.S.C. 1433(b)(2),
1434(a)(4)). It is through this consultation process, which occurs
before the designation or expansion of sanctuaries, that potential
conflicts among Federal agency regulations are typically resolved or
avoided. NOAA is presently unaware of any situation in which 15 CFR
922.122(b) has ever been triggered, and section 922.122(b) does not
reflect NOAA's preferred approach to resolve potential interagency
regulatory conflicts. Therefore, to address the concerns raised by
Federal partners, NOAA proposes to remove the existing language from 15
CFR 922.122(b) to reflect existing practice and better track the NMSA.
The remaining paragraphs of 15 CFR 922.122 would remain unchanged.
A provision similar to 15 CFR 922.122(b) also appears in Article V
of the terms of designation codified in appendix B of 15 CFR part 922,
subpart L. This action does not modify that provision. Pursuant to
section 304(a)(4) of the NMSA, the terms of designation may only be
modified by the same procedures by which the designation is made. The
process includes scoping, proposal, consultation with Federal agency
partners and public review, as well as review by Congress. Because
additional procedures are required to alter the terms of designation,
NOAA is using regulatory action as the first step in the process.
II. Classification
A. National Environmental Policy Act
NOAA concludes that this action will not have a significant effect,
individually or cumulatively, on the human environment. This action is
categorically excluded from the requirement to prepare an Environmental
Assessment or Environmental Impact Statement in accordance with the
NOAA Categorical Exclusion G7 because there are no extraordinary
circumstances precluding the application of this categorical exclusion.
Specifically, this action is a notice of an administrative and legal
nature, and any future effects of subsequent actions are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will be subject to later NEPA analysis. This action would remove
language that inaccurately describes how a conflict of regulatory
authorities between Federal agencies would be addressed, and therefore,
is an administrative issue. It does not commit the outcome of any
particular Federal action taken by NOAA or other Federal agencies.
Furthermore, individual Federal actions taken by ONMS or other Federal
agencies will be subject to additional case-by-case analysis, as
required under NEPA, which will be completed as any new Federal actions
are submitted for specific projects and activities. In these
situations, NOAA or other Federal agencies will ensure that the
appropriate NEPA documentation is prepared prior to taking any final
action. Any such NEPA analysis would describe the impacts of
prospective projects or operations.
B. Executive Order 12866: Regulatory Impact
This notice of proposed rulemaking has been determined to be not
significant within the meaning of Executive Order 12866. NOAA has
considered this action under E.O. 12866. Based on that review, this
action is not expected to have an annual effect on the economy of $100
million or more, or have an adverse effect in a material way on the
economy. Furthermore, this action would not create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; or materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or raise novel or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in this E.O.
C. 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 rule, unless the head of 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.
Pursuant to section 605(b), the Chief Counsel for Regulations for
the Department of Commerce has certified to the Office of Advocacy of
the Small Business Administration that the proposed modifications of
the regulations at 15 CFR part 922 would not have a significant
economic impact on a substantial number of small entities.
Because the provision proposed to be removed from the FGBNMS
regulations addresses potential conflicts of law between Federal
agencies, NOAA does not anticipate any impact on small businesses. This
proposed rule also does not establish any new reporting, recordkeeping,
or other compliance requirements. This proposed action is strictly an
administrative action with implications anticipated only on Federal
agency partners. Further, since 15 CFR 922.122(b) has never been
triggered, NOAA is strongly convinced there are no overarching impacts
of this proposed administrative regulatory
[[Page 62316]]
update on any party, whether Federal or otherwise.
Since the impacts of this proposed administrative rule are only
intended as an administrative flexibility for Federal agencies, NOAA
does not anticipate an impact on marine sanctuary stakeholders that
entail small businesses, including entities in the following North
American Industry Classification System (NAICS) categories: consumptive
and non-consumptive recreational charter businesses (NAICS codes 483114
and 483112); commercial fishing businesses (NAICS codes 114112
(Shellfish Fishing), 114111 (Finfish and mackerel fishing), and 114119
(other marine fishing)); sightseeing businesses (NAICS code 487210);
and diving businesses (NAICS codes 611620 (Sports and Recreation
Instruction), 561990 (All Other Support Services), 339920 (Sporting and
Athletic Goods Manufacturing), 459110 (Sporting Goods Retailers)).
Based on the analysis presented above, NOAA concludes that the
proposed action would result in no negative impact on a substantial
number of small entities. Therefore, an initial regulatory flexibility
analysis is not required and none has been prepared.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Marine resources, Natural
resources.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service, National Oceanic and Atmospheric
Administration.
Accordingly, for the reasons set forth above, NOAA proposes to
amend part 922, title 15 of the Code of Federal Regulations as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
0
1. The authority citation for part 922 continues to read as follows:
Authority: 16 U.S.C. 1431 et seq.
Sec. 922.122 [Amended]
0
2. Amend Sec. 922.122 by removing and reserving paragraph (b).
[FR Doc. 2022-22368 Filed 10-13-22; 8:45 am]
BILLING CODE 3510-NK-P
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