[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 [www.gpo.gov]
[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 https://floridakeys.noaa.gov.

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.]

------------------------------------------------------------------------
                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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