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Rule2024-13912

Florida Keys National Marine Sanctuary: Establishment of Temporary Special Use Area for Coral Nursery

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Published

June 27, 2024

Effective

June 27, 2024

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

The National Oceanic and Atmospheric Administration (NOAA) is issuing an interim final rule, temporary emergency rule in the Florida Keys National Marine Sanctuary (FKNMS) establishing three special use areas that will prohibit all entry except for restoration activities under a valid Office of National Marine Sanctuaries (ONMS) permit. These special use areas are needed for the relocation of coral nursery stock to cooler waters in response to an anticipated marine heatwave this summer with a high likelihood of coral bleaching. NOAA is establishing three special use areas, each of which are individually approximately 0.07 square miles and are within Federal waters of FKNMS. This temporary rule is necessary to prevent or minimize destruction of, loss of, or injury to sanctuary resources by facilitating 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. These special use areas would expire within 60 days unless they are extended an additional 60 days. NOAA also requests comments on this action.

Full Text

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<title>Federal Register, Volume 89 Issue 124 (Thursday, June 27, 2024)</title>
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[Federal Register Volume 89, Number 124 (Thursday, June 27, 2024)]
[Rules and Regulations]
[Pages 53483-53487]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13912]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 240618-0166]
RIN 0648-BN10

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: Interim final rule; temporary emergency rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
issuing an interim final rule, temporary emergency rule in the Florida
Keys National Marine Sanctuary (FKNMS) establishing three special use
areas that will prohibit all entry except for restoration activities
under a valid Office of National Marine Sanctuaries (ONMS) permit.
These special use areas are needed for the relocation of coral nursery
stock to cooler waters in response to an anticipated marine heatwave
this summer with a high likelihood of coral bleaching. NOAA is
establishing three special use areas, each of which are individually
approximately 0.07 square miles and are within Federal waters of FKNMS.
This temporary rule is necessary to prevent or minimize destruction of,
loss of, or injury to sanctuary resources by facilitating 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.

[[Page 53484]]

These special use areas would expire within 60 days unless they are
extended an additional 60 days. NOAA also requests comments on this
action.

DATES: This interim final rule is effective on June 27, 2024, through
August 26, 2024. NOAA will consider all comments received by July 29,
2024.

ADDRESSES: You may navigate to the plain language summary of this rule
by visiting <a href="https://www.regulations.gov/docket/NOAA-NOS-2024-0064">https://www.regulations.gov/docket/NOAA-NOS-2024-0064</a>. You
may submit comments on this document, identified by NOAA-NOS-2024-0064,
by any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Visit <a href="https://www.regulations.gov">https://www.regulations.gov</a> and type NOAA-NOS-2024-0064 in the Search box
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results). 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="https://www.regulations.gov">https://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).
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#1063716271783e76717e777d717e507e7f71713e777f66"><span class="__cf_email__" data-cfemail="34475546555c1a52555a5359555a745a5b55551a535b42">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: NOAA is issuing an interim final rule to
create three special use areas in the Federal waters of the Florida
Keys National Marine Sanctuaries in order to protect nursery corals
being relocated to cooler, deeper waters, in response to a marine heat
wave. All entry will be prohibited in these three areas except for
conducting restoration activities under a valid ONMS permit, continuous
transit without interruption, and law enforcement purposes. These
special use areas will be effective for 60 days after publication of
this final rule, and could be extended an additional 60 days. If the
special use areas are extended another 60 days, NOAA would publish
another document in the Federal Register.
NOAA took similar action last summer, and established a 0.07 square
mile temporary special use area approximately five miles southeast of
the community of Tavernier Key on the island of Key Largo from
September 6, 2023 through January 5, 2024 (88 FR 60887, September 6,
2023). During this time period, nursery coral relocated to this deeper
water site experienced double the rate of survivorship as compared to
nursery coral that remained at inshore, shallow sites. NOAA also
anticipates the potential for a reoccurring marine heat waves in the
future summers that will require temporary relocation of coral
nurseries. NOAA seeks public comment on a long-term solution to avoid
issuing emergency temporary rules in the future to protect temporarily
relocated coral nurseries.
The FKNMS regulations at 15 CFR 922.164(e) 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)(ii)). 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 designated to carry out a
restoration objective except to conduct such 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 action is also 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.
NOAA is establishing three temporary special use areas for the
purpose of coral restoration. The sites are as follows: (1) Tavernier
Special Use Area is approximately five miles southeast of the community
of Tavernier, on the island of Key Largo, within Federal waters of
FKNMS; (2) Marathon Special Use Area is approximately 4 miles offshore
from the City of Key Colony Beach/Marathon, within Federal waters of
FKNMS; and (3) Looe Key Special Use Area is approximately 6.5 miles
offshore from Summerland Key, within Federal waters of FKNMS (GPS
coordinates for each special use areas are included below).
These special use areas will serve as sites for the temporary
relocation of nursery corals to deeper waters to protect the nursery
corals from heat stress caused by the anticipated marine heat wave this
summer.
Creation of these temporary special use areas 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 for each site is no larger than the
size reasonably necessary to protect the coral nursery stock from
physical damage. The specific zone areas are 0.068 square miles for
Tavernier, 0.066 square miles for Marathon, and 0.069 square miles for
Looe Key.
Individual coral practitioners would need to apply for a sanctuary
permit to relocate nursery stock to any of the areas. Coral
practitioners must also obtain any other necessary Federal permits.
NOAA will provide notice of the location of this area through
sanctuary radio announcements and press releases. NOAA has also
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 the Temporary Emergency Action

This interim final rule is necessitated by the anticipated marine
heat wave this summer that will likely impact and kill coral reefs in
the Florida Keys at an unprecedented rate and scale. This action is
informed by lessons learned from an emergency rule NOAA promulgated in
response to the marine heat wave in the summer of 2023. In 2023, NOAA
implemented an emergency regulation to establish a 0.07 square mile
temporary special use area approximately five miles southeast of the
community of Tavernier Key on the island of Key Largo (88 FR 60887). At
the time, the south Florida sea temperatures as reported by NOAA were
35[deg]C, which were the warmest on record. These conditions became
unsustainable for coral reef ecosystems in July of 2023 and the extreme
ocean temperatures persisted until at least October 2023. The 2023
special use area was in place for an initial 60 days (from September 6,
2023, through November

[[Page 53485]]

6, 2023) and was extended by an additional 60 days (from November 6,
2023, to January 5, 2024, 88 FR 75229, November 2, 2023), after which
the special use area expired. During this time period, nursery coral
relocated to this deeper water site experienced double the rate of
survivorship as compared to nursery coral that remained at inshore,
shallow sites.
Data shows forecasts for similarly warm waters for 2024, and NOAA
anticipates the need for three special use areas to move and protect
coral species in this summer of 2024. As in the summer of 2023, NOAA
anticipates that a summer heat wave will put at risk 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 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.
While some of the coral nursery stock from these sites may be
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, would be relocated to deeper water sites within Federal waters
of FKNMS. Temperature meters at these deep sites have consistently
shown readings below the bleaching threshold of 30.5 [deg]C.
This emergency action establishes three temporary special use areas
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 these special
use areas need to be in place to avoid further damage to these
sensitive nursery corals that have already experienced impact from heat
stress. As such, establishment of these special use areas is necessary
to prevent or minimize the destruction of, loss of, or injury to
sanctuary resources.

Emergency Measures

This interim final rule establishes three special use areas, each
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. These special use areas will be effective for 60
days after publication of this final rule, and could be extended an
additional 60 days. If the special use areas are extended another 60
days, NOAA would publish another document in the Federal Register.

Locations and Boundaries

Through this interim final rule, NOAA establishes three special use
areas subject to temporary access and use restrictions for a period no
longer than 60 days, with up to one 60 day extension. In these special
use areas for restoration, all entry will be prohibited except for
conducting restoration activities under a valid ONMS permit, continuous
transit without interruption, and law enforcement purposes, in
accordance with Sec. 922.164(e)(3). The coordinates for each temporary
special use area are provided in appendix VI to subpart P of part 922
(below).

1. Tavernier Special Use Area (Temporary)

The first of these special use areas was created in 2023 with a
final temporary rule (88 FR 60887, September 6, 2023), and proved to be
a very good temporary location for moving the coral nursery stock given
that there was double the survivorship of nursery coral relocated to
this deeper water site as compared to nursery coral that remained at
inshore, shallow sites. It is approximately five miles southeast of the
community of Tavernier, on the island of Key Largo.

2. Marathon Special Use Area (Temporary)

The second area is located within Federal open waters of the
Atlantic Ocean, approximately four miles offshore from the City of Key
Colony Beach/Marathon.

3. Looe Key Special Use Area (Temporary)

The third area is located within Federal open waters of the
Atlantic Ocean, approximately 6.5 miles offshore from Summerland Key.
Looe Key Special Use Area includes within its boundary one mooring buoy
that is used by private individuals or diving and fishing charter
operators, which will become unavailable for these uses while the
temporary special use area restrictions are in place. This is one of 47
total mooring buoys in the vicinity of Looe Key, representing 2% of the
total mooring buoy availability in this area (or 0.22% of all mooring
buoys available throughout the sanctuary). Currently within this area
anchoring is prohibited on living coral other than hardbottom in water
depths less than 40 feet when visibility is such that the seabed can be
seen (15 CFR 922.163(a)(5)(ii)), and in Looe Key Sanctuary Preservation
Area, anchoring is prohibited if a mooring buoy is available or if
conducted anywhere other than a designated anchoring area when such
areas have been designated and are available (15 CFR
922.164(d)(1)(vi)).

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
$216,972 per violation per day. See 15 CFR 6.3(f)(13). Furthermore,
NMSA also authorizes an action in rem against any vessel used in
violation of this regulation. See 16 U.S.C. 1437(d)(3).

Request for Comments

While NOAA requests comments on all aspects of this rule, NOAA is
particularly interested in receiving comments on establishing permanent
special use areas where use and access restrictions would be applied on
an as-needed, temporary basis for the relocation of coral nursery stock
to cooler waters in summer seasons when extremely warm water and high
likelihood of bleaching events are anticipated. NOAA would notify the
public whenever the restrictions are in place in a Federal Register
notice and by other means, such as sanctuary radio announcements, press
releases, and a Notice to Mariners.

[[Page 53486]]

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 922.165.

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 interim final 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 this 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 Procedures Act

Pursuant to 5 U.S.C. 553(b)(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. Impacts from an anticipated marine heat wave are expected to
result in immediate and large-scale impact to the coral reef ecosystems
in the Florida Keys as early as July 2024, with greatest risk to the
most sensitive coral nursery stock located at several permitted sites
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 these three special use
areas 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 these three special use areas 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).
However, NOAA will collect public comments for thirty days after
publication of this interim final rule.

List of Subjects in 15 CFR Part 922

Administrative practice and procedure, Corals, Marine protected
areas, Marine resources, National marine sanctuaries, Natural
resources, Recreation and recreation areas.

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 entries for ``Tavernier Special Use
Area (Temporary)'', ``Marathon Special Use Area (Temporary)'', and
``Looe Key Special Use Area (Temporary)'' at the end of the appendix to
read as follows:

Appendix VI to Subpart P of Part 922--Special-Use Areas Boundary
Coordinates and Use Designations

* * * * *

Tavernier Special Use Area (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.]

------------------------------------------------------------------------
Point No. Latitude Longitude
------------------------------------------------------------------------
1............................................. 24.96925 -80.44376
2............................................. 24.97079 -80.43950
3............................................. 24.96763 -80.43768
4............................................. 24.96616 -80.44180
5............................................. 24.96925 -80.44376
------------------------------------------------------------------------

Marathon Special Use Area (Temporary)

[[Page 53487]]

Point 5 as listed in the coordinate in the following table.]

------------------------------------------------------------------------
Point No. Latitude Longitude
------------------------------------------------------------------------
1............................................. 24.65411 -81.01286
2............................................. 24.65412 -81.00869
3............................................. 24.65044 -81.00870
4............................................. 24.65044 -81.01289
5............................................. 24.65411 -81.01286
------------------------------------------------------------------------

Looe Key Special Use Area (Temporary)

------------------------------------------------------------------------
Point No. Latitude Longitude
------------------------------------------------------------------------
1............................................. 24.54255 -81.41811
2............................................. 24.54256 -81.41357
3............................................. 24.53903 -81.41356
4............................................. 24.53901 -81.41812
5............................................. 24.54255 -81.41811
------------------------------------------------------------------------

[FR Doc. 2024-13912 Filed 6-26-24; 8:45 am]
BILLING CODE 3510-NK-P

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