Rule2023-19036
Florida Keys National Marine Sanctuary: Establishment of Temporary Special Use Area for Coral Nursery
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
September 6, 2023
Effective
September 6, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Oceanic and Atmospheric Administration (NOAA) is issuing a final temporary rule establishing a special use area which will prohibit all entry except for restoration activities under a valid Office of National Marine Sanctuaries (ONMS) permit, continuous transit without interruption, and for law enforcement purposes into a 0.07 square mile area approximately five miles southeast of the community of Tavernier, on the island of Key Largo, within Federal waters of the Florida Keys National Marine Sanctuary (FKNMS) from September 6, 2023 to November 6, 2023. This temporary rule is necessary to prevent or minimize destruction of, loss of, or injury to sanctuary resources, specifically to facilitate restoration activities to improve or repair living habitats through protecting coral nursery stock at this site from potential impacts caused by anchor damage and/or fishing gear. This temporary special use area will expire within 60 days unless it is extended an additional 60 days.
Full Text
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<title>Federal Register, Volume 88 Issue 171 (Wednesday, September 6, 2023)</title>
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[Federal Register Volume 88, Number 171 (Wednesday, September 6, 2023)]
[Rules and Regulations]
[Pages 60887-60889]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19036]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 230829-0205]
RIN 0648-BM58
Florida Keys National Marine Sanctuary: Establishment of
Temporary Special Use Area for Coral Nursery
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Final temporary rule; emergency action.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
issuing a final temporary rule establishing a special use area which
will prohibit all entry except for restoration activities under a valid
Office of National Marine Sanctuaries (ONMS) permit, continuous transit
without interruption, and for law enforcement purposes into a 0.07
square mile area approximately five miles southeast of the community of
Tavernier, on the island of Key Largo, within Federal waters of the
Florida Keys National Marine Sanctuary (FKNMS) from September 6, 2023
to November 6, 2023. This temporary rule is necessary to prevent or
minimize destruction of, loss of, or injury to sanctuary resources,
specifically to facilitate restoration activities to improve or repair
living habitats through protecting coral nursery stock at this site
from potential impacts caused by anchor damage and/or fishing gear.
This temporary special use area will expire within 60 days unless it is
extended an additional 60 days.
DATES: This final temporary rule is effective September 6, 2023 through
November 6, 2023.
ADDRESSES: Sarah Fangman, Superintendent, Florida Keys National Marine
Sanctuary, 33 East Quay Road, Key West, FL 33040, 305-360-2713 phone,
or by email at <a href="/cdn-cgi/l/email-protection#65160417040d4b03040b0208040b250b0a04044b020a13"><span class="__cf_email__" data-cfemail="8efdeffcefe6a0e8efe0e9e3efe0cee0e1efefa0e9e1f8">[email protected]</span></a>.
Additional background materials can be found on the FKNMS website
at <a href="https://floridakeys.noaa.gov">https://floridakeys.noaa.gov</a>.
FOR FURTHER INFORMATION CONTACT: Sarah Fangman, Superintendent, Florida
Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL 33040,
305-360-2713 phone, or by email at <a href="/cdn-cgi/l/email-protection#fd8e9c8f9c95d39b9c939a909c93bd93929c9cd39a928b"><span class="__cf_email__" data-cfemail="087b697a6960266e69666f6569664866676969266f677e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: NOAA is by this final rule creating a
temporary special use area for the purpose of coral restoration located
approximately five miles southeast of the community of Tavernier, on
the island of Key Largo, within Federal waters of FKNMS. Section 15 CFR
922.164(e) of the FKNMS regulations allows the ONMS Director to set
aside discrete areas of the Sanctuary as special use areas in order to
provide for, among other uses, the restoration of degraded or otherwise
injured sanctuary resources (15 CFR 922.164(e)(1)(i)). A special use
area shall be no larger than the size the ONMS Director deems
reasonably necessary to accomplish the applicable objective. No person
may enter a special use area except to conduct restoration activities
under a valid ONMS permit, for continuous transit without interruption,
or for law enforcement purposes. Activities that are currently allowed
in the area, including fishing, will be prohibited.
This temporary special use area is established to limit the
potential for physical impact to a coral nursery that are being
temporarily relocated to deeper waters to protect the nursery corals
from heat stress caused by the current on-going marine heat wave.
Creation of this temporary special use area will limit the potential
for physical impact to this sensitive coral nursery stock from
anchoring, unintentional fouling of fishing gear, and bottom tending
fishing gear including traps. The ONMS Director has determined that the
size of 0.07 square miles is no larger than the size reasonably
necessary to protect the coral nursery stock from physical damage. NOAA
will provide notice of the location of this area through sanctuary
radio announcements, press releases, and with assistance from the U.S.
Coast Guard and FKNMS staff. NOAA has requested that the U.S. Coast
Guard give notification to vessels, via notice to mariners, to remain
in continuous transit through this temporary area.
Justification for Emergency Action
This action is taken in accordance with 15 CFR 922.165 of the FKNMS
regulations (62 FR 32154, June 12, 1997). Section 922.165 provides
that, where necessary to prevent or minimize the destruction of, loss
of, or injury to a Sanctuary resource, any and all activities are
subject to immediate temporary regulation, including prohibition, for
up to 60 days, with one 60-day extension. This final temporary rule is
necessitated by the current ongoing marine heat wave that is impacting
and likely killing coral reefs in the Florida Keys at an unprecedented
rate and scale. South Florida sea temperatures as reported by NOAA are
35[deg]C, which is the warmest on record. These conditions became
unsustainable for coral reef ecosystems in July and expert forecasts
suggest that extreme ocean temperatures will likely persist until at
least October 2023. At most risk are the coral nursery stock because
these are located in shallow, nearshore protected environments that
heat up much more than offshore locations. There are currently 14
active coral nursery sites throughout the Florida Keys. These nursery
sites are strategically located in close proximity to the sites where
the nursery coral will
[[Page 60888]]
be outplanted to promote coral restoration. Active coral restoration in
the Florida Keys is necessary to facilitate coral restoration, as in
the last 40 years, healthy coral cover in the Florida Keys reefs has
declined by more than 90 percent.
In the face of the current marine heat wave, four of these nursery
sites have already sustained mortality of 80-90% and the others are now
showing increased signs of stress and bleaching. While some of the
coral nursery stock from these sites is being relocated to land
facilities, the capacity of these land-based systems is not adequate to
hold the bulk of the biomass. NOAA and restoration partners have
identified deep water locations that currently have temperatures below
the bleaching threshold, are not exposed to deleterious levels of
Ultraviolet (UV) radiation and experience substantial water movement,
all conditions more conducive to coral survival. A portion of the most
valuable corals, including representative colonies of each species of
boulder and branching corals, samples of elkhorn coral, staghorn coral,
star corals (Orbicella spp.), pillar corals and cactus coral listed
under the Endangered Species Act, as well as multiple representative
genotypes of these corals to ensure we protect the genetic diversity of
these species, are being relocated to deeper water sites within FKNMS
Federal waters. Temperature meters at these deep sites have
consistently shown readings below the bleaching threshold of
30.5[deg]C.
This emergency action establishes a new temporary special use area
to limit the potential for physical impact to this sensitive coral
nursery stock that is being grown to support critical sanctuary
restoration efforts. Physical impact could result from anchoring,
unintentional fouling of fishing gear, and bottom tending fishing gear
including traps. The protections afforded by establishing this special
use area need to be in place to avoid further damage to these sensitive
nursery corals that have already experienced impact from heat stress.
As such, immediate establishment of this special use area is necessary
to prevent or minimize the destruction of, loss of, or injury to
Sanctuary resources.
Emergency Measures
This final temporary rule establishes one special use area,
approximately 0.07 square miles in size, into which all entry will be
prohibited except for conducting restoration activities under a valid
ONMS permit, continuous transit without interruption, and law
enforcement purposes. This special use area will be effective for 60
days after publication of this final rule, and could be extended an
additional 60 days. If the special use area is extended another 60
days, NOAA would publish another document in the Federal Register.
The coordinates for this temporary special use area are included
below.
Location and Boundary
Effective immediately, all entry except for conducting restoration
activities under a valid ONMS permit, continuous transit without
interruption, and law enforcement purposes is prohibited within this
temporary special use area which is approximately five miles southeast
of the community of Tavernier, on the island of Key Largo. The boundary
for the special use area begins at Point 1 in the amended appendix and
continues to each subsequent point in numerical order ending at Point
5. (Coordinates are unprojected (Geographic) and based on the North
American Datum of 1983).
Penalties
Pursuant to 16 U.S.C. 1437(d)(1) and 15 CFR 922.8(a), any person
who violates this rule is subject to a civil penalty. The maximum civil
monetary penalty authorized under the National Marine Sanctuaries Act
(NMSA) has been adjusted for inflation over time and is currently
$210,161 per violation per day. See 15 CFR 6.3(f)(13). Furthermore,
NMSA also authorizes a proceeding in rem against any vessel used in
violation of this regulation. See 16 U.S.C. 1437(d)(3).
Classification
A. National Marine Sanctuaries Act
This action is issued pursuant to the National Marine Sanctuaries
Act, 16 U.S.C. 1431 et seq. and implementing regulations at 15 CFR part
922. This action is being taken pursuant to the emergency provision of
the Florida Keys National Marine Sanctuary regulations at 15 CFR
922.164(e) and 922.165.
B. 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 final temporary 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 C1, as a habitat
restoration action (see Appendix E of the NOAA NEPA Companion Manual).
It qualifies for this categorical exclusion provided that such action:
(1) transplants only organisms currently or formerly present at the
site or in its immediate vicinity (if transplant is a component of the
action); (2) does not require substantial placement of fill or
dredging; (3) does not involve any removal of debris, excavation, or
conditioning of soils unless such removal of debris, excavation, or
conditioning of soils is geographically limited to the impact area such
that site conditions will not impede or negatively alter natural
processes, is in compliance with all permit and disposal requirements,
and will not impact critical aquifers or recharge areas; and (4) does
not involve an added risk of human or environmental exposure to toxic
or hazardous substances, pathogens, or radioactive materials. In
considering the list of extraordinary circumstances, NOAA determined
that none would be triggered by the temporary emergency action.
Therefore, NOAA concludes that this action will not result in
significant effects to the human environment and is categorically
excluded from the need for further NEPA review.
C. Executive Order 12866: Regulatory Impact
The Office of Management and Budget (OMB) has determined that this
emergency rule is not significant within the meaning of section 3(f) of
Executive Order 12866.
D. Regulatory Flexibility Act
This emergency rule is exempt from the procedures of the Regulatory
Flexibility Act because the rule will not include prior notice or an
opportunity for public comment pursuant to 5 U.S.C. 553 or other law.
Accordingly, no regulatory flexibility analysis is required and none
has been prepared.
E. Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b)(3)(B), the Assistant Administrator of
the National Ocean Service, NOAA, finds good cause to waive notice and
public comment, as it would be impracticable and contrary to the public
interest. Ongoing impacts from the current marine heat wave are
resulting in immediate and large-scale impacts to the coral reef
ecosystems in the Florida Keys with greatest risk to the most sensitive
coral nursery stock located at several permitted sites
[[Page 60889]]
throughout the Florida Keys. Coral nursery sites are established
throughout the Florida Keys and are essential in supporting coral
restoration efforts due to the loss of healthy coral cover in the
Florida Keys reefs that has declined by more than 90 percent in the
last 40 years. While some of the coral nursery stock is being relocated
to land-based sites some coral nursery sites are being moved to
offshore and deeper areas with cooler waters. It is possible that
humans entering the waters of the offshore areas where these coral
nursery stock are being relocated could inadvertently cause irreparable
damage from anchoring and/or dropping or entangling fishing gear in the
coral nursery structures. Establishment of a special use area will
prohibit all entry except to conduct restoration activities under a
valid ONMS permit, for continuous transit without interruption, and for
law enforcement purposes. The protections afforded by establishing this
special use area need to be in place to avoid further damage to these
sensitive nursery corals that have already experienced impact from heat
stress. As such, further damage to these sensitive nursery corals would
occur if the prohibition implemented by this rule is delayed to provide
prior notice and opportunity for public comment.
For the reasons outlined above, NOAA finds it impracticable and
contrary to the public interest to provide prior notice and public
comment on these emergency measures. For the same reasons, NOAA finds
good cause to waive the delay in the effective date of this rule
pursuant to 5 U.S.C. 553(d)(3).
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Natural
resources, Historic preservation, Marine protected areas, Marine
resources, National marine sanctuaries, Recreation and recreation
areas, Corals.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service, National Oceanic and Atmospheric
Administration.
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.
0
2. In appendix VI to subpart P, add a temporary entry for ``Tavernier''
at the end to read as follows:
Appendix VI to Subpart P of Part 922--Special-Use Areas Boundary
Coordinates and Use Designations
* * * * *
Tavernier (Temporary)
(Restoration Only)--[The coordinates are unprojected
(Geographic) and based on the North American Datum of 1983. The
boundary for the special use area begins at Point 1 and continues to
each successive point in numerical order until ending at Point 5 as
listed in the coordinate in the following table.]
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Point No. Latitude Longitude
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1....................................... 24.96934 -80.44378
2....................................... 24.97076 -80.43955
3....................................... 24.96765 -80.43759
4....................................... 24.96612 -80.44186
5....................................... 24.96934 -80.44378
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[FR Doc. 2023-19036 Filed 9-5-23; 8:45 am]
BILLING CODE 3510-NK-P
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