Rule2023-24194
Florida Keys National Marine Sanctuary: Establishment of Temporary Special Use Area for Coral Nursery
Primary source
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Published
November 2, 2023
Effective
September 6, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
On September 6, 2023, the National Oceanic and Atmospheric Administration (NOAA) issued a final temporary rule establishing a special use area of 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, through November 6, 2023. This document extends the temporary special use area an additional 60 days. The special use area prohibits 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 from November 6, 2023, to January 5, 2024. This temporary extension 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 extension is necessary to protect the corals in the temporary special use area until all of the corals are moved back to the original in-shore permitted nursery site. This temporary special use area will expire within 120 days from the date it was established.
Full Text
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<title>Federal Register, Volume 88 Issue 211 (Thursday, November 2, 2023)</title>
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[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Rules and Regulations]
[Pages 75229-75230]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24194]
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Rules and Regulations
Federal Register
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 /
Rules and Regulations
[[Page 75229]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
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: Notification of extension of temporary special use area.
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SUMMARY: On September 6, 2023, the National Oceanic and Atmospheric
Administration (NOAA) issued a final temporary rule establishing a
special use area of 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, through November 6, 2023. This document
extends the temporary special use area an additional 60 days. The
special use area prohibits 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 from November 6, 2023, to January 5, 2024. This temporary
extension 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 extension is
necessary to protect the corals in the temporary special use area until
all of the corals are moved back to the original in-shore permitted
nursery site. This temporary special use area will expire within 120
days from the date it was established.
DATES: The effective period for the temporary rule published September
6, 2023, at 88 FR 60887, is extended. This extension of the final
temporary rule is effective November 6, 2023, through January 5, 2024.
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#14677566757c3a72757a7379757a547a7b75753a737b62"><span class="__cf_email__" data-cfemail="12617360737a3c74737c757f737c527c7d73733c757d64">[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#36455744575e18505758515b5758765859575718515940"><span class="__cf_email__" data-cfemail="bccfddceddd492daddd2dbd1ddd2fcd2d3dddd92dbd3ca">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On September 6, 2023, NOAA issued a final
rule (RIN 0648-BM58) 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, for 60 days, with the possibility of extending
an additional 60-days following public notice. 88 FR 60887 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, are prohibited.
This temporary special use area was established to limit the
potential for physical impact to a coral nursery that was 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 limits 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 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. The original rule
established this special area for 60 days, until November 6, 2023, with
the possibility of one 60-day extension. NOAA has determined a 60-day
extension is necessary to protect the corals in the temporary special
use area until all of the corals are moved back to the original in-
shore permitted nursery site.
NOAA will continue to 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 an additional notification to
vessels, via notice to mariners, to remain in continuous transit
through this temporary area through January 5, 2024.
Justification for Emergency Action and Extension
The establishment of the temporary special use area was 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 notification is for one 60-day extension to
complete the relocation of the corals from this off-shore temporary
special use area back to the original in-shore permitted nursery site.
The final temporary rule was necessitated by the current ongoing
marine heat wave that was impacting and likely killing coral reefs in
the Florida Keys at an unprecedented rate and scale. These conditions
became unsustainable for coral reef ecosystems, and the coral nursery
stock is most at risk because these are located in shallow, nearshore
protected environments that heat up much more than offshore locations.
There are
[[Page 75230]]
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 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.
During the initial 60-day period of this emergency rule, NOAA and
restoration partners identified deep water locations to temporarily
relocate coral nursery stock. These deep water locations had
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, were 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 extension of NOAA's emergency action maintains the offshore
temporary special use area to continue to limit the potential for
physical impact to this sensitive coral nursery stock while it is being
fully relocated back to the original inshore permitted nursery site.
These sensitive corals are being grown to support critical sanctuary
restoration efforts and could be impacted from anchoring, unintentional
fouling of fishing gear, and bottom tending fishing gear including
traps. The protections afforded by maintaining 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,
a 60-day extension of this special use area is necessary to prevent or
minimize the destruction of, loss of, or injury to Sanctuary resources.
Emergency Measures
The 60-day extension of this final temporary rule continues the
applicability of 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 was created and to be effective for 60 days from September 6,
2023, until November 6, 2023. This action extends the temporary special
use area for an additional 60 days, until January 5, 2024.
The coordinates for this temporary special use area are included in
appendix VI to subpart P of part 922 and in the September 6, 2023,
Federal Register rule (88 FR 60887).
Location and Boundary
Effective from September 6, 2023, through January 5, 2024, 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 coordinates in appendix VI to subpart P of part 922
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. Administrative Procedure Act
In the final temporary rule, 88 FR 60887, the Assistant
Administrator of the National Ocean Service, NOAA, found good cause to
waive notice and public comment pursuant to 5 U.S.C. 553(b)(3)(B) and
make the rule immediately effective under 5 U.S.C. 553(d)(3), as it
would be impracticable and contrary to the public interest to delay
taking the emergency measure to protect corals that were being
relocated due to heat stress to deeper, cooler waters. The final
temporary rule authorized one 60-day extension of the special use area,
which we hereby invoke in this document.
Authority: 16 U.S.C. 1431 et seq.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service, National Oceanic and Atmospheric
Administration.
[FR Doc. 2023-24194 Filed 11-1-23; 8:45 am]
BILLING CODE 3510-NK-P
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