Rule2023-03063
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
February 14, 2023
Effective
March 16, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Oceanic and Atmospheric Administration (NOAA) is issuing this final 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 88 Issue 30 (Tuesday, February 14, 2023)</title>
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[Federal Register Volume 88, Number 30 (Tuesday, February 14, 2023)]
[Rules and Regulations]
[Pages 9391-9393]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03063]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 230206-0037]
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: Final rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
issuing this final 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: This final rule is effective on March 16, 2023.
ADDRESSES: 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#1c7b79736e7b79326f7f74717d74705c72737d7d327b736a"><span class="__cf_email__" data-cfemail="f493919b869391da87979c99959c98b49a9b9595da939b82">[email protected]</span></a>.
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#8cebe9e3feebe9a2ffefe4e1ede4e0cce2e3ededa2ebe3fa"><span class="__cf_email__" data-cfemail="d4b3b1bba6b3b1faa7b7bcb9b5bcb894babbb5b5fab3bba2">[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
[[Page 9392]]
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 and Bureau of Safety and Environmental Enforcement,
who share primary jurisdiction over offshore energy exploration and
development; the U.S. Environmental Protection Agency, which is
responsible for protecting the quality of the nation's waters; NOAA's
National Marine Fisheries Service and Gulf of Mexico Fishery Management
Council, 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 This Final Rule's 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 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 finalizes the proposal 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 will 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. Public Comments Received
NOAA received one comment in response to the proposed rule, and it
is posted and publicly available on <a href="http://regulations.gov">regulations.gov</a>, under docket
number NOAA-NOS-2022-0047. The comment is summarized and NOAA provides
a response to the comment below.
Comment: The commenter asks if the rule evaluated any insurance,
capacity, or regulatory impacts on small businesses, or if
environmental and marine protections have been considered in the
promulgation of the rule. The commenter also asks if competitive labor
interests or equitable contract leverage will be available, or if
construction would cause environmental disturbance.
Response: No, the rule does not evaluate the insurance, capacity,
or regulatory impacts on small businesses, nor does it consider the
competitive labor interests. NOAA believes this comment is out of scope
for this rulemaking. This final rule is strictly administrative in
nature, and does not create any new requirements for small businesses
nor does it create or remove any environmental protections. This final
rule is a technical solution for a regulatory provision for FGBNMS that
did not accurately describe how potential conflicts between the
sanctuary regulations and other Federal regulations are to be resolved.
The existing regulations establish that if a Federal agency regulation
and a FGBNMS regulation conflict, then the regulation deemed as being
more protective of sanctuary resources and qualities by the Director of
ONMS shall govern. In actual practice, NOAA consults with other
agencies on regulations that conflict with sanctuary regulations, so as
to facilitate uses of sanctuary resources that are compatible with
resource protection. Therefore, NOAA is finalizing the proposal without
change so that existing practices are better reflected.
III. Classification
A. National Environmental Policy Act
NOAA's Policy and Procedures for Compliance with the National
Environmental Policy Act (NEPA) and Related Authorities (NOAA
Administrative Order (NAO) 216-6A and Companion Manual for NAO 216-6A)
provide that all NOAA major Federal actions be reviewed with respect to
environmental consequences on the human environment. Based on the NAO
and Companion Manual, NOAA examined the proposed rule for its potential
to impact the quality of the human environment and concluded that it is
categorically excluded from the requirement to prepare an Environmental
Assessment or Environmental Impact Statement in accordance with the
NOAA Categorical Exclusion G7 because, this action is a notice of an
administrative and legal nature, 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, and
there are no extraordinary circumstances precluding the application of
this categorical exclusion. NOAA received no public comments related to
effects on the human environment. As such, this final rule has been
determined to be categorically excluded under G7 as described in the
Companion Manual for NAO 216-6A, Appendix, page E-14, and which applies
to preparation of policy directives, rules, regulations, and guidelines
of an administrative, financial, legal, technical, or procedural
nature, or for which the environmental effects are too broad,
speculative or conjectural to lend themselves to meaningful analysis.
[[Page 9393]]
B. Executive Order 12866: Regulatory Impact
This final rule has been determined to be not significant within
the meaning of Executive Order 12866.
C. Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities for purposes of the Regulatory Flexibility Act. The factual
basis for the certification was published in the proposed rule and is
not repeated here. No comments were received regarding this
certification, but NOAA did receive one public comment about the
evaluation of the insurance, capacity, or regulatory impacts on small
businesses. However, NOAA has determined that said public comment is
outside the scope of this rulemaking given the fact that this final
rule is strictly administrative in nature, the amendment addresses how
potential conflict among other Federal agency regulations and FGBNMS
sanctuary regulations are to be resolved, and the final rule does not
create any new requirements for small businesses nor does it create or
remove any environmental protections. As a result, a regulatory
flexibility analysis was not required and none was 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 amends 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.
Subpart L--Flower Garden Banks National Marine Sanctuary
Sec. 922.122 [Amended]
0
2. Amend Sec. 922.122 by removing and reserving paragraph (b).
[FR Doc. 2023-03063 Filed 2-13-23; 8:45 am]
BILLING CODE 3510-NK-P
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