[Federal Register Volume 89, Number 1 (Tuesday, January 2, 2024)]
[Rules and Regulations]
[Pages 126-176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28483]



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Vol. 89

Tuesday,

No. 1

January 2, 2024

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Parts 223 and 226





Endangered and Threatened Species; Designation of Critical Habitat for 
the Nassau Grouper; Final Rule

Federal Register / Vol. 89 , No. 1 / Tuesday, January 2, 2024 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 231219-0312]
RIN 0648-BL53


Endangered and Threatened Species; Designation of Critical 
Habitat for the Nassau Grouper

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We, NMFS, designate critical habitat for the threatened Nassau 
grouper (Epinephelus striatus) pursuant to section 4 of the Endangered 
Species Act (ESA). Specific areas designated as critical habitat 
contain approximately 2,384.67 sq. kilometers (km) (920.73 sq. miles) 
of aquatic habitat located in waters off the coasts of southeastern 
Florida, Puerto Rico, Navassa, and the United States Virgin Islands 
(USVI). We have considered positive and negative economic, national 
security, and other relevant impacts of the critical habitat 
designation, as well as all public comments that were received.

DATES: This rule becomes effective February 1, 2024.

ADDRESSES: The final rule, maps, Final Regulatory Flexibility Analysis, 
and Critical Habitat Report used in preparation of this final rule are 
available on the NMFS website at https://www.fisheries.noaa.gov/national/endangered-species-conservation/critical-habitat. All comments 
and information received are available at http://www.regulations.gov. 
All documentation is also available upon request.

FOR FURTHER INFORMATION CONTACT: Orian Tzadik, NMFS Southeast Region, 
<a href="/cdn-cgi/l/email-protection#ffb08d969e91d1ab859e9b9694bf91909e9ed1989089"><span class="__cf_email__" data-cfemail="eea19c878f80c0ba948f8a8785ae80818f8fc0898198">[email protected]</span></a>, 813-906-0353.

SUPPLEMENTARY INFORMATION: In accordance with section 4(b)(2) of the 
ESA and our implementing regulations (50 CFR 424.12), this final rule 
is based on the best scientific data available concerning the range, 
biology, habitat, threats to the habitat, and conservation objectives 
for the Nassau grouper (Epinephelus striatus). We have reviewed the 
available data and public comments received on the proposed rule. We 
used the best data available to identify: (1) features essential to the 
conservation of the species; (2) the specific areas within the occupied 
geographical areas that contain the physical essential feature that may 
require special management considerations or protection; (3) the 
Federal activities that may impact the critical habitat; and (4) the 
potential impacts of designating critical habitat for the species. This 
final rule is based on the biological information and the economic, 
national security, and other relevant impacts described in the Critical 
Habitat Report. This supporting document is available online (see 
ADDRESSES) or upon request (see FOR FURTHER INFORMATION CONTACT).

Background

    On June 29, 2016, we published a final rule that listed Nassau 
grouper as a threatened species (81 FR 42268). The listing rule 
identified fishing at spawning aggregations and inadequate law 
enforcement as the most serious threats to this species. No critical 
habitat was designated for the Nassau grouper at that time.
    On October 17, 2022, NMFS proposed to designate critical habitat 
for Nassau grouper within U.S. jurisdictions throughout the range of 
the species. We requested public comment on the proposed designation 
and supporting reports during a 60-day comment period, which closed on 
December 15, 2022 (87 FR 62930). The essential features of the proposed 
Nassau grouper critical habitat consisted of (1) nearshore to offshore 
areas necessary for recruitment, development, and growth of Nassau 
grouper containing a variety of benthic types that provide cover from 
predators and habitat for prey, and (2) marine sites used for spawning 
and adjacent waters that support movement and staging associated with 
spawning. The final rule does not modify the definitions of these 
essential features but does identify several new areas containing these 
features. The proposed rule identified 19 specific areas, or units of 
critical habitat, in waters off the coasts of southeastern Florida, 
Puerto Rico, Navassa, and the USVI that contain the essential features. 
The area covered by the Naval Air Station Key West (NASKW) Integrated 
Natural Resource Management Plan (INRMP) was found to be ineligible for 
designation pursuant to section 4(a)(3)(B)(i) of the ESA due to the 
conservation benefits the INRMP affords the Nassau grouper. Pursuant to 
section 4(b)(2) of the ESA, no areas were proposed for exclusion from 
the designation on the basis of economic, national security, and other 
relevant impacts. We did not propose to designate any unoccupied 
critical habitat.
    This final rule relies on the ESA section 4 implementing 
regulations that are currently in effect, which include provisions that 
were revised or added in 2019. As explained in the proposed critical 
habitat rule, on July 5, 2022, the United States District Court for the 
Northern District of California issued an order vacating the ESA 
section 4 implementing regulations that were revised or added to 50 CFR 
part 424 in 2019, which included changes made to the definition of 
physical or biological feature and the criteria for designating 
unoccupied critical habitat (``2019 regulations''; 84 FR 45020, August 
27, 2019). In the proposed rule, we determined that the critical 
habitat determination and designation would be the same under the 50 
CFR part 424 regulations as they existed before 2019 and under the 
regulations as revised by the 2019 rule. On September 21, 2022, the 
U.S. Court of Appeals for the Ninth Circuit granted a temporary stay of 
the district court's July 5 order, and on November 14, 2022, the 
Northern District of California issued an order granting the 
government's request for voluntary remand without vacating the 2019 
regulations. As a result, the 2019 regulations are once again in 
effect, and we are applying the 2019 regulations here. Following the 
remand of the 2019 regulations, on June 22, 2023, NMFS and the U.S. 
Fish and Wildlife Service published a proposed rule to revise the ESA 
section 4 implementing regulations (88 FR 40764). Thus, for purposes of 
this final rule, we also considered whether our analyses or conclusions 
would be any different under the regulations in effect prior to 2019 or 
under the recently proposed regulations (87 FR 62930). We have 
determined that while our analysis would differ in some respects, the 
conclusions ultimately reached and presented here would be the same 
under either set of regulations.
    This final rule describes the critical habitat for Nassau grouper 
in waters off the coasts of Florida, and the U.S. Caribbean (i.e., 
waters off the coasts of Navassa Island, Puerto Rico, and the U.S. 
Virgin Islands) and the basis for its designation. It summarizes 
relevant information regarding the biology and habitat use of Nassau 
grouper; the methods used to develop the critical habitat designation; 
a summary of, and responses to, public comments received; and the final 
critical habitat determination. The more detailed analyses that 
contributed to the conclusions presented in this final rule, including 
the analysis of areas eligible for designation, can be found in the 
Critical Habitat Report (NMFS, 2022)

[[Page 127]]

and the Nassau Grouper Biological Report (Hill and Sadovy de Mitcheson, 
2013). These supporting documents are referenced throughout this final 
rule and are available for review (see ADDRESSES).

Statutory and Regulatory Background for Critical Habitat Designations

    Section 3(5)(A) of the ESA defines critical habitat as (i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination by the Secretary 
of Commerce (Secretary) that such areas are essential for the 
conservation of the species. (16 U.S.C. 1532(5)(A)). Conservation is 
defined in section 3(3) of the ESA as the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this Act are no longer necessary (16 U.S.C.1532(3)). Section 3(5)(C) 
of the ESA provides that, except in those circumstances determined by 
the Secretary, critical habitat shall not include the entire 
geographical area which can be occupied by the threatened or endangered 
species. Our regulations provide that critical habitat shall not be 
designated within foreign countries or in other areas outside U.S. 
jurisdiction (50 CFR 424.12(g)).
    Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense (DOD) or designated for its use that are 
subject to an INRMP prepared under section 101 of the Sikes Act (16 
U.S.C. 670a) if the Secretary determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
designated. Section 4(b)(2) of the ESA requires the Secretary to 
designate critical habitat for threatened and endangered species under 
the jurisdiction of the Secretary on the basis of the best scientific 
data available and after taking into consideration the economic impact, 
the impact on national security, and any other relevant impact of 
specifying any particular area as critical habitat. This section also 
grants the Secretary discretion to exclude any area from critical 
habitat if the Secretary determines the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat. However, the Secretary may not exclude areas if such exclusion 
will result in the extinction of the species (16 U.S.C. 1533(b)(2)).
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to destroy or adversely modify that habitat 
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section 
7(a)(2) requirement that Federal agencies ensure their actions are not 
likely to jeopardize the continued existence of ESA-listed species. 
Specifying the geographic area identified as critical habitat also 
facilitates implementation of section 7(a)(1) of the ESA by identifying 
areas where Federal agencies can focus their conservation programs and 
use their authorities to further the purposes of the ESA. See 16 U.S.C. 
1536(a)(1). The ESA section 7 consultation requirements do not apply to 
citizens engaged in actions on private land that do not involve a 
Federal agency, for example if a private landowner is undertaking an 
action that does not require a Federal permit or is not federally 
funded. However, designating critical habitat can help focus the 
efforts of other, non-federal, conservation partners (e.g., state and 
local governments, individuals, and non-governmental organizations).

Species Description

    Nassau grouper, Epinephelus striatus (Bloch 1792), are long-lived, 
moderate-sized fish (family Epinephelidae) with large eyes and a robust 
body. Their coloration is generally buff, with distinguishing markings 
of five dark brown vertical bars, a large black saddle blotch on the 
caudal peduncle (i.e., the tapered region behind the dorsal and anal 
fins where the caudal fin attaches to the body), and a row of black 
spots below and behind each eye. Juveniles exhibit a color pattern 
similar to adults (e.g., Silva Lee, 1977). Individuals reach sexual 
maturity between 4 and 8 years (Sadovy and Colin, 1995; Sadovy and 
Eklund, 1999). Nassau grouper undergo shifts in habitat utilization as 
they mature: larvae settle in nearshore habitats and then as juveniles 
move to nearshore patch reefs (Eggleston, 1995), and eventually recruit 
to deeper waters and reef habitats (Sadovy and Eklund, 1999). As 
adults, individuals are sedentary except for when they aggregate to 
spawn--the timing of which appears to be linked to both lunar cycles 
and water temperature (Kobara et al., 2013). Maximum age has been 
estimated as 29 years, based on an ageing study using sagittal otoliths 
(Bush et al., 2006). Maximum size is about 122 cm total length (TL) and 
maximum weight is about 25 kg (Heemstra and Randall, 1993).

Natural History and Habitat Use

    The Nassau grouper, like most large marine reef fishes, 
demonstrates a two-part life cycle with pelagic eggs and larvae but 
demersal juveniles and adults. It undergoes a series of shifts of both 
habitat and diet as it matures from larval to adult stage. Adults 
maintain resident home ranges (Randall, 1962 1963; Carter et al., 
1994), but may undergo long migrations to spawning aggregation sites 
(Bolden, 2000). Reproduction is known to occur only during annual 
aggregations, in which large numbers of Nassau grouper, ranging from 
dozens to tens of thousands, collectively gather to spawn at 
predictable times and locations.
    In the following sections, we describe the natural history of the 
Nassau grouper as it relates to habitat needs from the egg and larval 
stage to settlement into nearshore habitats followed by a progressive 
offshore movement with increasing size and maturation.

Egg and Larval Planktonic Stage

    Fertilized eggs are pelagic, measure about 1 mm in diameter, and 
have a single oil droplet about 0.22 mm in diameter (Guitart-Manday and 
Ju[aacute]rez-Fernandez, 1966). Data from eggs produced in an aquarium 
(Guitart-Manday and Juarez-Fernandez, 1966) and artificially fertilized 
in the laboratory (Powell and Tucker, 1992; Colin, 1992) indicate that 
spherical, buoyant eggs hatch 23-40 hours following fertilization. Eggs 
of groupers that spawn at sea require a salinity of about 30 parts per 
thousand (ppt) or higher for maximum survivorship and for them to float 
(Tucker, 1999). Both buoyancy and survivorship decrease as salinity 
declines below optimum levels, resulting in less than 50% hatching 
rates at salinities of 24 ppt (Ellis et al., 1997).
    The pelagic larvae begin feeding on zooplankton approximately 2-4 
days after hatching (Tucker and Woodward, 1994). Newly hatched larvae 
in the laboratory measured 1.8 mm notochord length and were slightly 
curved around the yolk sac (Powell and Tucker, 1992). Nassau grouper 
larvae are rarely reported from offshore waters (Leis, 1987) and little 
is known of their movements or distribution. The pelagic larval period 
has been reported to range from 37 to 45 days based on otolith analysis 
of newly settled juveniles in the Bahamas (Colin et al., 1997) with a 
mean of 41.6 days calculated from net-

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caught samples (Colin, 1992; Colin et al., 1997). Collections of 
pelagic larvae were made 0.8 to 16 km off Lee Stocking Island, Bahamas, 
at 2 to 50 m depths and from tidal channels leading onto the Exuma Bank 
(Greenwood, 1991). Larvae were widely dispersed or distributed in 
patches of various sizes (Greenwood, 1991). Larvae collected 10 days 
after back-calculated probable spawning date measure 6-10 mm standard 
length (SL) and attain a maximum size of 30 mm SL (Shenker et al., 
1993).

Larval Settlement

    After spending about 40 days in the plankton, in the Bahamas Nassau 
grouper larvae have been found to recruit from the oceanic environment 
into demersal, bank habitats through tidal channels (Colin, 1992). This 
recruitment process can be brief and intense, occurring in short pulses 
during highly limited periods (often several days) each year, and has 
been found to be associated with prevailing winds, currents, and lunar 
phase (Shenker et al., 1993). These late larvae/early juvenile Nassau 
grouper (18-30 mm total length (TL)) moved inshore from pelagic 
environments to shallower nursery habitats (Shenker et al., 1993).
    Most of what is known about the earliest cryptic life stages is 
known from research in the Bahamas where recently settled Nassau 
grouper were found to be on average 32 mm TL when they recruit into the 
nearshore habitat and settle out of the plankton (Eggleston, 1995). 
Newly settled or post-settlement fish found by Eggleston (1995) ranged 
in size from 25-35 mm TL and were patchily distributed at 2-3 m depth 
in substrates characterized by numerous sponges and stony corals with 
some holes and ledges residing exclusively within coral clumps (e.g., 
Porites spp.) covered by masses of macroalgae (primarily the red alga 
Laurencia spp.). Stony corals provided attachment sites for red algae 
since direct holdfast attachment was probably inhibited by heavy layers 
of coarse calcareous sand. This algal and coral matrix also supported 
high densities and a diverse group of xanthid crabs, hippolytid shrimp, 
bivalve, gastropods and other small potential prey items. In the USVI, 
Beets and Hixon (1994) observed groupers on a series of nearshore 
artificial reefs constructed of cement blocks with small and large 
openings and found the smallest Nassau groupers (30-80 mm TL) were 
closely associated with the substrate, usually in small burrows under 
the concrete blocks. Growth during this period was about 10 mm/month 
(Eggleston, 1995).

Juveniles

    After settlement, Nassau grouper grow through three juvenile 
stages, defined by size, as they progressively move from nearshore 
areas adjacent to the coastline to shallow hardbottom areas and 
seagrass habitat. The size ranges for the three juvenile stages, which 
we discuss in more detail below, are approximations and are not always 
collected the same way between studies. Juvenile Nassau grouper reside 
within nearshore areas for about 1 to 2 years, where they are found 
associated with structure in both seagrass (Eggleston, 1995; Camp et 
al., 2013; Claydon and Kroetz, 2008; Claydon et al., 2009, 2010; Green, 
2017) and hardbottom areas (Bardach, 1958; Beets and Hixon, 1994; 
Eggleston, 1995; Camp et al., 2013; Green, 2017). Juvenile Nassau 
grouper leave these refuges to forage and when they transition to new 
habitats (Eggleston, 1995; Eggleston et al., 1998).

Newly Settled (Post-Settlement) Juveniles (~2.5-5 cm TL)

    Most of what is known about the earliest demersal life stages of 
Nassau grouper comes from a series of studies conducted from 1987-1994 
near Lee Stocking Island in the Exuma Cays, Bahamas as reported by 
Eggleston (1995). These surveys and experiments in mangrove-lined 
lagoons and tidal creeks (1-4 m deep), seagrass beds, and sand or patch 
reef habitats helped identify the Nassau grouper's early life 
ontogenetic (i.e., developmental) habitat changes. Benthic habitat of 
newly settled Nassau grouper (31.7 <plus-minus> 2.9 mm TL (mean <plus-
minus> standard deviation), n=31) was described as exclusively within 
coral clumps (e.g., Porites spp.) covered by masses of macroalgae 
(primarily the red alga Laurencia spp.). These macroalgal clumps were 
patchily distributed at 2 to 3 m depths in substrate characterized by 
numerous sponges and stony corals, with some holes and ledges. The 
stony corals (primarily Porites spp.) provided attachment sites for red 
algae; direct holdfast attachment to the coral by the red algae was 
probably inhibited by heavy layers of coarse calcareous sand and minor 
amounts of silt and detritus. The open lattice of the algal-covered 
coral clumps provided cover and prey and facilitated the movement of 
individuals within the interstices of the clumps (Eggleston 1995). 
Post-settlement Nassau grouper were either solitary or aggregated 
within isolated coral clumps. Density of the post-settlement fish was 
greatest in areas with both algal cover and physical structure 
(Eggleston, 1995). A concurrent survey of the adjacent seagrass beds 
found abundance of nearly settled Nassau grouper was substantially 
higher in Laurencia spp. Habitats than in neighboring seagrass 
(Eggleston, 1995).
    Eggleston (1995) found the functional relationship between percent 
algal cover and post-settlement density of Nassau grouper was linear 
and positive compared to other habitat characteristics such as algal 
displacement volume, and the numbers of holes, ledges, and corals. 
Recently-settled Nassau grouper have also been collected from tilefish 
(Malacanthus plumieri) rubble mounds, with as many as three fish 
together (Colin et al., 1997). They have been reported as associated 
with discarded queen conch (Strombus gigas) shells and other debris 
within Thalassia beds (Claydon et al., 2009, 2010) in the Turks and 
Caicos Islands, although the exact fish sizes observed are not clear. 
Post-settlement survival in macroalgal habitats is higher than in 
seagrass beds, showing a likely adaptive advantage for the demonstrated 
habitat selection (Dahlgren and Eggleston, 2000). Nassau grouper remain 
in the shallow nearshore habitat for about 3 to 5 months following 
settlement and grow at about 10 mm/month (Randall, 1983; Eggleston, 
1995).

Early Juveniles (~4.5-15 cm TL)

    Band transects performed near Lee Stocking Island, Bahamas, 4-5 
months after the settlement period (June 1991-93) showed that early 
juveniles (8.5 <plus-minus> 11.7 cm TL, n=65) demonstrated a subtle 
change in microhabitat; 88 percent were solitary within or adjacent to 
algal-covered coral clumps (Eggleston, 1991). As the early juveniles 
grew, reef habitats, including solution holes and ledges, took on 
comparatively greater importance as habitats (Eggleston, 1991). Low 
habitat complexity was associated with increased predation rates and 
lowered the survival of recruits (Dahlgren and Eggleston, 2000).
    Early juveniles in the Bahamas have a disproportionately high 
association with the macroalgae Laurencia spp.; whereas other 
microhabitats (e.g., seagrass, corals) are used in proportion to their 
availability (Dahlgren and Eggleston, 2001). Reports from Mona Island, 
Puerto Rico (Aguilar-Perera et al., 2006) indicate that early juveniles 
(60-120 mm TL) were found at the edge of a seagrass patch, under rocks 
surrounded by seagrass, in a tire, and in a dissolution hole in shallow 
bedrock.
    A conspicuous change in habitat occurs about 4-5 months post-
settlement when Nassau grouper move

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from nearshore macroalgae habitat to adjacent patch reefs located 
within either seagrass or hardbottom areas, between the nearshore 
environment and the offshore reefs. In the Bahamas, early juvenile 
Nassau grouper (12-15 cm TL) exhibited an ontogenetic movement from 
macroalgal clumps to patch reef habitats in the late summer and early 
fall after settlement in the winter as demonstrated by a significant 
decrease in juvenile density within the macroalgal habitat and 
concomitant increase in the seagrass meadows (Eggleston, 1995). 
Similarly in the Turks and Caicos, 87 percent of early juvenile Nassau 
grouper (identified as less than 12 cm TL, n=181) were found in 
seagrass and 10 percent were found in rock or rubble habitat (Claydon 
and Kroetz, 2008). Within the Turks and Caicos seagrass habitat, 44 
percent of the early juveniles were found in discarded conch shells and 
33 percent were found along blowout ledges (Claydon and Kroetz, 2008). 
Individuals were rarely seen in open areas; instead they were usually 
seen in close proximity to a structure or sheltering within structure 
(i.e., discarded conch shell or blowout ledge). Density of Nassau 
grouper (>12 cm TL) was found to increase when discarded conch shells 
were placed in seagrass habitat (Claydon et al., 2009), perhaps due to 
reduced mortality as the structure limited access of larger predators 
(Claydon et al,. 2010). On shallow constructed block reefs in the USVI, 
newly settled and early juveniles (3-8 cm TL) occupied small separate 
burrows beneath the reef while larger juveniles occupied holes in the 
reefs (Beets and Hixon, 1994).
    Juvenile fish are vulnerable to predation (large fish, eels, other 
groupers and sharks) and utilize refuges to protect themselves (Beets 
and Hixon, 1994; Eggleston 1995; Claydon and Kroetz, 2008) and to 
forage for crustaceans using ambush predation techniques (Eggleston et 
al., 1998; Claydon and Kroetz, 2008). Juveniles often associate with 
refuges proportional to their body size (Beets and Hixon, 1994) and 
seek new shelter as they grow (Eggleston, 1995). Suitable refuges 
provide some protection from predation; however, juveniles may leave 
their refuges to forage for food and during ontogenetic shifts in 
habitat (Eggleston, 1995).

Late Juveniles (~15-50cm TL)

    Camp et al. (2013) conducted a broad-scale survey in the shallow 
nearshore lagoons of Little Cayman and found Nassau grouper (12-26 cm 
TL) on hardbottom areas more frequently than other more available 
habitats (sand, seagrass and algae). Eighty-two percent of juvenile 
Nassau grouper (18.4 <plus-minus> 3.4 cm TL, n=142) were found at 
depths from 1.0-2.3 m in hardbottom habitat that provided crevices, 
holes, ledges and other shelter, with 10-66 percent of the holes with 
grouper also containing one or more cleaning organisms (i.e., banded 
coral shrimp; Elacatinus gobies; or bluehead wrasse, Thalasoma 
bifasciatum). A small percentage of Nassau grouper (3 percent) were 
found in other habitat sheltered in holes (i.e., concrete blocks or 
conch shells). Overall, the vast majority of juvenile Nassau grouper 
were associated with some form of shelter, suggesting that shelter 
represents a primary determinant of microhabitat use (Camp et al., 
2013).
    As late juveniles, Nassau grouper may occupy seagrass habitats for 
food and protection from predators (Claydon and Kroetz, 2008); they 
forage for crustaceans in seagrass beds (Eggleston et al., 1998). In a 
survey of seagrass bays in the USVI, Green (2017) found that juvenile 
Nassau grouper (n=46, 6-30 cm TL) were more abundant in areas with 
taller canopy and less dense native seagrasses compared to higher 
density of the same seagrasses and low canopy height. Differences in 
abundance were attributed to the taller canopy providing better cover 
from predators (Beets and Hixon, 1994). Tall seagrass also increases 
hiding places for their prey (Eggleston, 1995), and the less dense 
seagrass habitats permit better movement by Nassau grouper to forage 
(Green, 2017).
    Juvenile Nassau grouper also rely on hardbottom structure for 
refuge from predation and ambush of potential prey. Nassau grouper 
residing on patch reefs use short bursts of speed that allow them to 
ambush crabs located up to 7 m away from a patch reef and return to a 
reef within 5 seconds (D. Eggleston pers. comm. as cited in Eggleston 
et al., 1999). Suitable refuges provide cover for juvenile Nassau 
grouper with crevices, holes, and ledges proportionate to their body 
size (Beets and Hixon, 1994).
    As juveniles grow, they move progressively to deeper banks and 
offshore reefs (Tucker et al., 1993; Colin et al. 1997). In Bermuda, 
Bardach (1958) noted that few small Nassau grouper (less than 4 inches 
or 10 cm TL) were found on outer reefs, and few mature fish were found 
on inshore reefs. The weights of mature individuals trapped in deep 
areas were about double that of Nassau grouper captured in the shallow 
areas. While there can be an overlap of adults and juveniles in 
hardbottom habitat areas, size segregation generally occurs by depth, 
with smaller fish typically occurring in shallow inshore waters (3 to 
17 m), and larger individuals more commonly occurring on deeper (18 to 
55 m), offshore banks (Bardach et al., 1958; Cervig[oacute]n, 1966; 
Silva Lee, 1974; Radakov et al., 1975; Thompson and Munro, 1978).

Adults

    Both male and female Nassau grouper typically mature between 40 and 
45 cm SL (44 and 50 cm TL), with most individuals attaining sexual 
maturity by about 50 cm SL (55 cm TL) and about 4-5 years of age (see 
Table 1 and additional details in Hill and Sadovy de Mitcheson, 2013) 
and with most fish spawning by age 7+ years (Bush et al., 2006).
    Adults are found near shallow, high-relief coral reefs and rocky 
bottoms to a depth of at least 90 m (Bannerot, 1984; Heemstra and 
Randall, 1993). Reports from fishing activities in the Leeward Islands 
show that although Nassau grouper were fished to 130 m, the greatest 
trap catches were from 52-60 m (Brownell and Rainey, 1971). In 
Venezuela, Nassau grouper were cited as common to 40 m in the 
Archipelago Los Roques (Cervig[oacute]n, 1966). Nassau groupers tagged 
with depth sensors in Belize exhibited marked changes in depth at 
specific times throughout the year: 15-34 m from May through December, 
followed by movement to very deep areas averaging 72 m with a maximum 
of 255 m for a few months during spawning periods, then returning to 
depths of about 20 m in April (Starr et al., 2007).
    Adults lead solitary lives outside of spawning periods and tend to 
be secretive, often seeking shelter in reef crevices, ledges, and 
caves; rarely venturing far from cover (Bardach, 1958; Starck and 
Davis, 1966; Bohlke and Chaplin, 1968; Smith, 1961, 1971; Carter, 1988, 
1989). Although they tend to be solitary, individuals will crowd 
peacefully in caves or fish traps with some proclivity to re-enter fish 
traps resulting in multiple recaptures (Randall, 1962; Sadovy and 
Eklund, 1999; Bolden, 2001). Nassau grouper have the ability to home 
(Bardach et al., 1958; Bolden, 2000) and remain within a highly 
circumscribed area for extended periods (Randall, 1962 1963; Carter et 
al., 1994; Bolden, 2001). In the Florida Keys, adult Nassau grouper 
(n=12) were found more often in high- and moderate-relief habitats 
compared to low-relief reefs (Sluka et al., 1998). Habitat complexity 
has been found to influence home range size of adult Nassau grouper, 
with larger home ranges at less structurally-complex reefs (Bolden, 
2001). Nassau grouper are

[[Page 130]]

diurnal or crepuscular in their movements (Collette and Talbot, 1972). 
Bolden (2001) investigated diel activity patterns via continuous 
acoustic telemetry and found Nassau groupers are more active diurnally 
and less active nocturnally, with activity peaks at 1000 and 2000 
hours.

Importance of Shelter

    For many reef fishes, access to multiple, high-quality habitats and 
microhabitats represents a critical factor determining settlement 
rates, post-settlement abundances, mortality rates, and growth rates, 
because suitably sized refuges provide protection from predators and 
access to appropriate food (Shulman, 1984; Hixon and Beets, 1989; 
Eggleston et al., 1997, 1998; Grover et al., 1998; Lindeman et al., 
2000; Dahlgren and Eggleston, 2000, 2001; Dahlgren and Marr, 2004; 
Eggleston et al., 2004). Many reef fish and invertebrates use 
hardbottom areas located between the nearshore environment and the 
outer reefs as juveniles.
    As Nassau grouper move from their nearshore settlement habitat, 
through hardbottom and seagrass mosaic habitats, to the offshore reefs 
they occupy as adults, shelter provides an essential life history 
function by reducing risk of predation and promoting successful ambush 
hunting. Availability of suitably sized shelters may be a key factor 
limiting successful settlement and survival for juvenile Nassau grouper 
and related species that settle and recruit to shallow, off-reef 
habitats (Hixon and Beets, 1989; Eggleston, 1995; Lindeman et al., 
2000; Dahlgren and Eggleston, 2001). In addition, shelters of different 
sizes may govern the timing and success of ontogenetic movements to 
adult habitats (Caddy, 1986; Moran and Reaka, 1988; Eggleston, 1995). 
Camp et al. (2013) found juvenile Nassau grouper use shelters of 
varying sizes and degrees of complexity. Suitably-sized refuge from 
predators is expected to be a key characteristic supporting the 
survival and growth of juvenile Nassau grouper and other species, with 
access to food resources likely representing another key, and sometimes 
opposing, characteristic (Shulman, 1984; Hixon and Beets, 1989; 
Eggleston et al., 1997, 1998; Grover et al., 1998; Dahlgren and 
Eggleston, 2001). The transition to these new habitats, however, 
heightens predation risk if habitats are far apart (Sogard, 1997; 
Tupper and Boutilier, 1997; Almany and Webster, 2006) and there is 
minimal cover between them (Dahlgren and Eggleston, 2000; Caddy, 2008). 
Nassau grouper rely on shelter to safely move between these 
interconnected habitats. Benthic juvenile fish rely on complex 
structure to protect themselves from predation and the simplification 
of habitats can lead to declines in recruitment (Caddy, 2008). Stock 
replenishment is threatened by degradation of the habitats of 
successive life stages. Nassau grouper must often risk predation by 
crossing seascapes where cover connectivity is limited. Loss of cover 
therefore increases mortality, reduces foraging success, and affects 
other life-history activities.

Diet

    In the planktonic stage, the yolk and oil in the egg sac nourish 
the early yolk-sac larva as it develops prior to hatching. The pelagic 
larvae begin feeding on zooplankton approximately 2-4 days after 
hatching when a small mouth develops (Tucker and Woodward, 1994). In 
the laboratory, grouper larvae eat small rotifers, copepods, and other 
zooplankton, including brine shrimp (Tucker and Woodward, 1994). Diet 
information for newly settled Nassau grouper is based on visual 
observations indicating that young fish (20.2-27.2 mm SL) feed on a 
variety of plankton, including pteropods, ostracods, amphipods, and 
copepods (Greenwood, 1991; Grover et al., 1998). Similarly, in the 
Bahamas, recently settled and post-settlement stage (25-35 mm TL) 
Nassau grouper living within the macroalgae and seagrass blades have a 
primarily invertebrate diet of xanthid crabs, hippolytid shrimp, 
bivalves, and gastropods (Eggleston, 1995).
    More detailed diet information is available for juveniles and 
adults. Stomach contents of juvenile Nassau grouper (5-19 cm TL) 
collected from seagrass beds near Panama contained primarily 
porcellanid and xanthid crabs with minor amounts of fish (Heck and 
Weinstein, 1989). Four dominant prey were ingested by small (< 20 cm 
TL) Nassau grouper in the Bahamas: stomatopods, palaemonid shrimp, and 
spider and portunid crabs (Eggleston et al., 1998). Fish and spider 
crabs made up the bulk of the diet for both mid-size (20.0-29.9 cm TL) 
and large (>30 cm TL) Nassau grouper in opposite proportion: spider 
crabs dominated the diet of the mid-size fish, while fish were the most 
important prey for large Nassau grouper (Eggleston et al., 1998). 
Juveniles generally engulfed their prey whole (Eggleston et al. 1998). 
Smaller juveniles ate greater numbers of prey than larger grouper, but 
the individual prey items ingested by larger grouper weighed more 
(Eggleston et al., 1998). Similar ontogenetic changes in the Nassau 
grouper diet were reported by Randall (1965) and Eggleston et al. 
(1998) who analyzed stomach contents and determined that juveniles fed 
mostly on crustaceans, while adults foraged mainly on fishes.
    As adults, Nassau grouper are unspecialized-ambush-suction 
predators (Randall, 1965; Thompson and Munro, 1978) that lie under 
shelter, wait for prey, and then quickly expand their gill covers to 
create a current to engulf prey by suction (Thompson and Munro, 1978; 
Carter, 1986) and swallow their prey whole (Werner, 1974, 1977). 
Numerous studies describe adult Nassau groupers as piscivores, with 
their diet dominated by reef fishes: parrotfish (Scaridae), wrasses 
(Labridae), damselfishes (Pomacentridae), squirrelfishes 
(Holocentridae), snappers (Lutjanidae), groupers (Epinephelidae) and 
grunts (Haemulidae) (Randall and Brock, 1960; Randall, 1965, 1967; 
Parrish, 1987; Carter et al, 1994; Eggleston et al., 1998). The 
propensity for adult Nassau grouper to consume primarily fish (Randall, 
1965; Eggleston et al., 1998) may be due to increased visual perception 
and swimming-burst speed with increasing body size (e.g., Kao et al., 
1985; Ryer, 1988). Large Nassau grouper are probably foraging on reef-
fish prey that are either associated with a reef (Eggleston et al., 
1997) or adjacent seagrass meadows. In general, groupers have been 
characterized from gut content studies as generalist opportunistic 
carnivores that forage throughout the day (Randall, 1965, 1967; Goldman 
and Talbot, 1976; Parrish, 1987), and perhaps being more active near 
dawn and dusk (Parrish, 1987; Carter et al., 1994). Comparison of 
Nassau grouper stomach contents from natural and artificial reefs were 
found to be generally similar (Eggleston et al., 1999). While Smith and 
Tyler (1972) classified Nassau grouper as nocturnally active residents, 
Randall (1967) investigated Nassau grouper gut contents and determined 
that although feeding can take place around the clock, most fresh food 
is found in stomachs collected in the early morning and at dusk. Silva 
Lee (1974) reported Nassau grouper with empty stomachs throughout 
daylight hours.

Spawning

    The most recognized Nassau grouper habitats are the sites where 
adult males and females assemble briefly at predictable times during 
winter full moons for the sole purpose of reproduction. These spawning 
aggregation sites are occupied by Nassau grouper during winter full 
moon

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periods, from about November and extending to May (USVI) (Nemeth et 
al., 2006). Aggregations consist of hundreds, thousands, or, 
historically, tens of thousands of individuals. Some aggregations have 
consistently formed at the same locations for 90 years or more (see 
references in Hill and Sadovy de Mitcheson 2013). All known 
reproductive activity for Nassau grouper occurs in aggregations; pair 
spawning has not been observed. About 50 spawning aggregation sites 
have been recorded, mostly from insular areas in the Bahamas, Belize, 
Bermuda, British Virgin Islands, Cayman Islands, Cuba, Honduras, 
Jamaica, Mexico, Puerto Rico, Turks and Caicos, and the USVI; however, 
Nassau grouper may no longer form spawning aggregations at many of 
these sites (Figure 10 in Hill and Sadovy de Mitcheson, 2013). While 
both the size and number of spawning aggregations has diminished, 
spawning is still occurring in some locations (NMFS, 2013).
    Spawning aggregation sites typically occur near the edge of insular 
platforms in a wide (6-50 m) depth range, as close as 350 m to the 
shore, and close to a drop-off into deep water. These sites are 
characteristically small, highly circumscribed areas, measuring several 
hundred meters in diameter, with a diversity of bottom types, including 
soft corals, sponges, stony coral outcrops, and sandy depressions 
(Craig, 1966; Smith 1990; Beets and Friedlander, 1992; Colin, 1992; 
Aguilar-Perera, 1994). Adults are known to travel hundreds of 
kilometers (Bolden, 2000) to gather at specific spawning aggregation 
sites. While aggregated, the Nassau grouper are extremely vulnerable to 
overfishing (Sadovy de Mitcheson et al., 2008).
    It is not known how Nassau grouper select and locate aggregation 
sites or why they aggregate to spawn. Variables that are considered to 
influence spawning site suitability include geomorphological 
characteristics of the seabed, hydrodynamics including current speed 
and prevailing direction of flow to disperse eggs and larvae, seawater 
temperature, and proximity to suitable benthic habitats for settlement 
(Kobara and Heyman, 2008). The link between spawning sites and 
settlement sites is not well understood. The geomorphology of spawning 
sites has led researchers to assume that offshore transport was a 
desirable property of selected sites. However, currents in the vicinity 
of aggregation sites do not necessarily favor offshore egg transport, 
leaving open the possibility that some stocks are at least partially 
self-recruiting. Additional research is needed to understand these 
spatial dynamics.
    The biological cues known to be associated with Nassau grouper 
spawning include photoperiod (i.e., length of day), water temperature, 
and lunar phase (Colin, 1992). The timing and synchronization of 
spawning may be to accommodate immigration of widely dispersed adults, 
facilitate egg dispersal, or reduce predation on adults or eggs.

Movement

    ``Spawning runs,'' or movements of adult Nassau grouper from coral 
reefs to spawning aggregation sites, were first described in Cuba in 
1884 by Vilaro Diaz, and later by Guitart-Manday and Juarez-Fernandez 
(1966). Nassau grouper migrate to aggregation sites in groups numbering 
between 25 and 500, moving parallel to the coast or along shelf edges 
or inshore reefs (Colin, 1992; Carter et al., 1994; Aguilar-Perera and 
Aguilar-Davila, 1996; Nemeth et al., 2009). Distance traveled by Nassau 
grouper to aggregation sites is highly variable; some fish move only a 
few kilometers, while others move up to several hundred kilometers 
(Colin, 1992; Carter et al., 1994; Bolden, 2000). Observations suggest 
that individuals may return to their original home reef following 
spawning (Semmens et al., 2007).
    Larger fish are more likely to return to aggregation sites and 
spawn in successive months than smaller fish (Semmens et al., 2007). 
Nassau grouper have been shown to have high site fidelity to an 
aggregation site, with 80 percent of tagged Nassau grouper returning to 
the same aggregation site, Bajo de Sico, each year over the 2014-2016 
tracking period in Puerto Rico (Tuohy et al., 2016). The area occupied 
during spawning by Nassau grouper is smaller at Bajo de Sico compared 
to Grammanik Bank off St. Thomas. Acoustic detections of tagged Nassau 
grouper revealed a southwesterly movement from the Puerto Rican shelf 
to the Bajo de Sico in a narrow corridor (Tuohy et al., 2017).

Spawning Activity and Behavior

    Spawning occurs for up to 1.5 hours around sunset for several days 
(Whaylen et al., 2007). All spawning events have been recorded within 
20 minutes of sunset, with most within 10 minutes of sunset (Colin, 
1992). At spawning aggregation sites, Nassau grouper tend to mill 
around for a day or two in a ``staging area'' adjacent to the core area 
where spawning activity later occurs (Colin, 1992; Kadison et al., 
2010; Nemeth, 2012). Courtship is indicated by two behaviors that occur 
late in the afternoon: ``following'' and ``circling'' (Colin, 1992). 
The aggregation then moves into deeper water shortly before spawning 
(Colin, 1992; Tucker et al., 1993; Carter et al., 1994). Progression 
from courtship to spawning may depend on aggregation size, but 
generally fish move up in the water column, with an increasing number 
of the fish exhibiting the bicolor phase (i.e. when spawning animals 
change to solid dark and white colors, temporarily losing their 
characteristic stripes) (Colin, 1992; Carter et al., 1994). Following 
the release of sperm and eggs, there is a rapid return of the spawning 
individuals to the bottom.
    Repeated spawning occurs at the same site for up to three 
consecutive months generally around the full moon or between the full 
and new moons (Smith, 1971; Colin, 1992; Tucker et al., 1993; Aguilar-
Perera, 1994; Carter et al., 1994; Tucker and Woodward, 1994). 
Examination of female reproductive tissue suggests multiple spawning 
events across several days at a single aggregation (Smith, 1972). A 
video recording shows a single female in repeated spawning rushes 
during a single night, repeatedly releasing eggs (Colin, 1992).

Spawning Aggregations in U.S. Waters

    The best available information suggests that spawning in U.S. 
waters occurs at three sites: Bajo de Sico in waters off the coast of 
Puerto Rico (Scharer et al., 2012), Grammanik Bank in waters off the 
coast of the USVI (Nemeth et al., 2006), and Riley's Hump within the 
Tortugas South Ecological Reserve in Florida (Locascio and Burton 2015; 
J. McCawley, Pers. comm., December 9, 2022). These three sites are all 
at least partially protected under existing fishery regulations, as 
discussed below. For all three sites, it is unclear whether they are 
reconstituted (i.e., reestablished after depletion) or novel spawning 
sites. Nassau grouper spawning has been positively confirmed at Bajo de 
Sico (Scharer et al. 2012; Scharer et al. 2017; Tuohy et al. 2017) and 
Grammanik Bank (Nemeth et al. 2006; Nemeth et al. 2009; Nemeth et al. 
2023). At Riley's Hump, visual and acoustic evidence suggests that 
spawning is occurring there (Locascio and Burton 2015; J. McCawley, 
Pers. comm., December 9, 2022). A spawning aggregation site 
historically existed on the eastern tip of Lang Bank, USVI that was 
extirpated in the early 1980s; however, we have insufficient 
information regarding its continued existence or its current value to 
Nassau grouper spawning.

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Bajo de Sico
    Bajo de Sico, in waters off the coast of Puerto Rico, is a 
submerged offshore seamount located in the Mona Passage off the insular 
platform of western Puerto Rico approximately 29 km west of Mayaguez 
(Scharer-Umpierre et al., 2014). Reef bathymetry is characterized by a 
ridge of highly rugose rock promontories ranging in depths from 25 to 
45 m, which rise from a mostly flat, gradually sloping shelf that 
extends to 100 m deep. Below this depth, the shelf ends in a vertical 
wall that reaches depths of 200-300 m to the southeast and over 1,000 m 
to the north (Tuohy et al., 2015). Most of the shallow (<180 m depth) 
areas of this 11 km\2\ seamount are located in the U.S. exclusive 
economic zone (EEZ). Bajo de Sico is considered a mesophotic coral 
ecosystem due to the range of depths and coral/algae development. Where 
water depths are less than 50 m, this area is characterized by a reef 
top, vertical reef wall and rock promontories, colonized hardbottom 
with sand channels, uncolonized gravel, and substantial areas of 
rhodolith reef habitat (Garcia-Sais et al., 2007).
    In 1996, NMFS approved a 3-month seasonal fishing closure (December 
1 through February 28) in Federal waters at Bajo de Sico to protect 
spawning aggregations of red hind (61 FR 64485, December 5, 1996); the 
closure also partially protects Nassau grouper spawning aggregations 
(Scharer et al., 2012). During the closure period, all fishing was 
prohibited (61 FR 64485). A later rule prohibited the use of bottom-
tending gear, including traps, pots, gillnets, trammel nets, and bottom 
longlines, in Bajo de Sico year-round (70 FR 62073, October 28, 2005). 
In 2010, NMFS approved a modification to the Bajo de Sico seasonal 
closure, extending the closure period to 6-months (October 1 through 
March 31), altering the restriction to prohibit fishing for and 
possessing Caribbean reef fish in or from Federal waters at Bajo de 
Sico during the closure period, and prohibiting anchoring by fishing 
vessels year-round in the area (75 FR 67247, November 2, 2010). The 
2010 rule is still in place.
    In February 2012, a Nassau grouper spawning aggregation was 
identified at Bajo de Sico when at least 60 individuals were observed 
via video and audio recordings exhibiting reproductive behaviors 
(Scharer et al., 2012). While actual spawning was not observed on the 
2012 video recordings, all four Nassau grouper spawning coloration 
patterns and phases (Smith, 1972; Colin, 1992; Archer et al., 2012) 
were observed, including the bi-color phase associated with peak 
spawning activity (Scharer et al., 2012). Subsequent diver surveys 
conducted from January 25 to April 5, 2016, indicated between 5-107 
individuals at the site, with the greatest number occurring in February 
(Scharer et al., 2017). The highest detection rate of tagged Nassau 
grouper (n=29) occurred in February and March, with other detections in 
January and April, all peaking following the full moon (Scharer et al., 
2017). The depth range (40 to 155 m) being used by Nassau grouper at 
the Bajo de Sico exceeds other locations (Scharer et al., 2017).
Grammanik Bank, USVI
    Grammanik Bank, USVI is located approximately 4 km east of the Hind 
Bank Marine Conservation District (MCD), on the southern edge of the 
Puerto Rican Shelf. Grammanik Bank is a narrow deep coral reef bank 
(35-40 m) about 1.69 km long and 100 m wide at the widest point located 
on the shelf edge about 14 miles south of St. Thomas. It is bordered to 
the north by extensive mesophotic reef and to the south by a steep 
drop-off and a deep Agaricea reef at 200-220 ft (60-70 m) (Nemeth et 
al., 2006; Scharer et al., 2012). The benthic habitat is primarily 
composed of a mesophotic reef at depths between 30-60 m, which includes 
a combination of Montastrea and Orbicella coral and hardbottom 
interspersed with gorgonians and sponges (Smith et al., 2008). Corals 
are present on Grammanik Bank at depths between 35 and 40 m and the 
coral bank is bordered to the east and west by shallower (25 to 30 m) 
hardbottom ridges along the shelf edge, which is sparsely colonized by 
corals, gorgonians, and sponges (Nemeth et al., 2006). When Hind Bank 
MCD was established in 1999 as the first no-take fishery reserve in the 
USVI to protect coral reef resources, reef fish stocks, including red 
hind (E. guttatus), and their habitats (64 FR 60132, November 4, 1999), 
fishing pressure is thought to have moved to the adjacent Grammanik 
Bank (Nemeth et al., 2006). Fishing is prohibited for all species at 
Hind Bank MCD year-round. At Grammanik Bank, all fishing for species 
other than highly migratory species is prohibited from February 1 to 
April 30 of each year. The initial intent of the spatial closure was to 
protect yellowfin grouper (Mycteroperca venenosa) when they aggregate 
to spawn (70 FR 62073, October 28, 2005; Scharer et al., 2012), but 
this closure has also proven beneficial for the protection of spawning 
aggregations of tiger grouper (M. venenosa), yellowmouth grouper (M. 
interstitialis), cubera snapper (Lutjanus cyanopterus) and Nassau 
grouper (Nemeth et al. 2006).
    Approximately 100 Nassau grouper were observed aggregating at the 
Grammanik Bank in 2004 between January and March (Nemeth et al., 2006). 
This discovery marked the first documented appearance of a Nassau 
grouper spawning aggregation site within U.S. waters since the mid-
1970s (Kadison et al., 2009); however, commercial fishers were quick to 
target this new aggregation site and began to harvest both yellowfin 
(Mycteroperca venenosa) and Nassau groupers (Nemeth et al., 2006). In 
2005, NMFS approved a measure developed by the Caribbean Fisheries 
Management Council (70 FR 62073, October 10, 2005) that closed the 
Grammanik Bank to fishing for all species, with an exception for highly 
migratory species, from February 1 through April 30 each year. Diver 
surveys and collection of fish in traps recorded 668 Nassau grouper at 
Grammanik Bank between 2004 and 2009 (Kadison et al., 2010). The fish 
were of reproductive size and condition and arrived on and around the 
full moon in February, March, and April and then departed 10 to 12 days 
after the full moon. The number of Nassau grouper observed in diver 
visual surveys suggests that Nassau grouper spawning biomass has 
increased at the aggregation site from a maximum abundance of 30 
individuals sighted per day in 2005, to 100 per day in 2009 (Kadison et 
al., 2009). By 2013, a maximum abundance of 214 individuals was 
recorded per day (Scharer-Umpierre et al., 2014). Since then the 
maximum number of Nassau grouper counted per day during spawning 
periods has continued to increase, reaching over 500 in 2020, 750 in 
February 2021, and at least 800 in January 2022 (R. S. Nemeth, 
unpublished data).
    The behavior of Nassau grouper in the aggregation has also changed 
dramatically in the past few years. From 2004 to 2019, Nassau grouper 
were found aggregating in small groups of 10, 20, or maybe as high as 
40 individuals, resting close to the bottom among the coral heads. 
Nassau grouper were also observed to swim down the slope to 60 to 80 m, 
presumably to spawn, to an extensive Agaricia larmarki reef that Nassau 
grouper also use for shelter (R. S. Nemeth, unpublished data). These 
deep movements were later verified with acoustic telemetry data, and 
Nassau grouper were suspected of spawning near this deep reef area. 
Since 2020, Nassau grouper have been observed in groups of 100 to 300 
fish

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aggregated 5 to 10 m above the bottom. On January 24, 2022 (7 days 
after full moon), researchers captured the first ever observation of 
Nassau grouper spawning at the Grammanik Bank at 17:40 and a second 
spawning rush at 18:10 (R.S. Nemeth, pers. comm., February 13, 2022). 
Spawning occurred well above the bottom in 30 to 40 m depth. 
Vocalization by Nassau grouper has suggested that abundance and 
spawning of Nassau grouper peaked at Grammanik Bank after the full 
moons in January through May (Rowell et al., 2013).
    Nemeth et al. (2009) first reported synchronous movement of Nassau 
grouper during the spawning period between Hind Bank MCD and Grammanik 
Bank using acoustic telemetry. Both Nassau and yellowfin groupers 
primarily used two of three deep (50 m) parallel linear reefs that link 
Grammanik Bank with the Hind Bank MCD and lie in an east-west 
orientation parallel to the shelf edge. The linear reef about 300 to 
500 m north of the shelf edge was used mostly by Nassau grouper. 
Acoustic telemetry and bioacoustic recordings were later integrated by 
Rowell et al. (2015) to identify a synchronized pathway taken by pre- 
and post -spawning Nassau grouper to the Grammanik Bank spawning site 
from the nearby Hind Bank MCD. While not every Nassau grouper was found 
to use this spawning route, the majority (64 percent) of the tagged 
fish followed this specific route on a regular or often daily basis 
during the week when spawning was occurring at Grammanik Bank. Because 
56 percent of the tagged Nassau grouper (n=10) traversed between Hind 
Bank MCD and Grammanik Bank during spawning, it was suggested by Nemeth 
et al. (2009) and by Nemeth et al. (2023), that the boundary of the 
Grammanik Bank fishing closure area be expanded to the south, north, 
and west to protect the moving fish.
    It remains unknown whether the increasing abundance at the Nassau 
grouper aggregation at Grammanik Bank is a result of: (1) Remnant 
adults from the nearby overfished aggregation site (the historical 
Grouper Bank, now located within the Hind Bank Marine Conservation 
District) shifting spawning locations to the Grammanik Bank, a distance 
of about 5 km; (2) Larvae dispersed from distant spawning aggregations 
elsewhere in the Eastern Caribbean that have settled on the St. Thomas/
St. John shelf, matured, and migrated to the Grammanik Bank spawning 
site; or (3) Self-recruitment by local reproduction from the remnant 
population. Each of these recovery scenarios is supported by various 
researchers who have observed these same phenomena in separate 
locations. The first scenario is supported by Heppel et al. (2013), who 
found that Nassau grouper visit multiple aggregation sites during the 
spawning season, yet all fish aggregate and spawn at a single location. 
The second scenario is supported by Jackson et al. (2014), who found 
strong genetic mixing of Nassau grouper populations among the Lesser 
and Greater Antilles, including Turks and Caicos. Bernard et al. (2015) 
also found that external recruitment is an important driver of the 
Grammanik Bank spawning aggregation recovery. The third scenario relies 
on self-recruitment, a popular strategy of recruitment among marine 
species.
Riley's Hump, Florida
    Riley's Hump, Florida, is located approximately 16 km to the 
southwest of the Dry Tortugas National Park and is within the 
boundaries of the Tortugas South Ecological Reserve. The larger area of 
the Dry Tortugas--which encompasses the Dry Tortugas National Park, the 
Tortugas Bank, the Tortugas South Ecological Reserve, and the Tortugas 
North Ecological Reserve--includes a series of carbonate banks and sand 
shoals located southwest of the Florida continental margin. Riley's 
Hump is one of these carbonate banks, separated from the Tortugas Bank 
to the north by a deep trough, which is filled with thick sedimentary 
deposits. The bank crests at about 30 m, and has a 20 m escarpment at 
the shelf break on the south side of the bank (Mallinson et al., 2003). 
While coral cover on Riley's Hump is relatively low, fish diversity is 
high and is characterized by species that are rare in other locations 
(Dahlgreen et al., 2001).
    Riley's Hump is located within the boundaries of the Tortugas South 
Ecological Reserve, which has been closed to fishing since 2001, when 
both the North and South Ecological Reserves were established, adjacent 
to the Dry Tortugas National Park. The Tortugas South Ecological 
Reserve hosts several known annual spawning aggregations, including 
aggregations of mutton snapper, and likely black grouper, red grouper, 
red hind, and Nassau grouper (Locascio and Burton, 2015). The location 
and depth of Riley's Hump make it particularly difficult to conduct 
annual monitoring projects. However, visual surveys have documented 
higher densities of Nassau groupers at Riley's Hump than anywhere in 
Florida, and are estimated at roughly 1 adult per 0.04 acres (D. 
Morley, Pers. comm., September 6, 2023). Some observations have 
included individuals displaying colorations and producing sounds 
associated with spawning (Locascio and Burton, 2015, J. Locascio, Pers. 
comm., September 6, 2023).
    The mechanism behind the spawning aggregation at Riley's Hump 
remains unclear. The southern Florida reef tract is near the northern 
extent of the range of Nassau grouper, and the species is extremely 
rare in this location. However, historical accounts suggest that the 
species was once more common in the area; this aggregation could be a 
remnant of a depleted historical aggregation, or a new aggregation that 
is being formed by individuals which have settled and matured in the 
area.

Summary of Changes From the Proposed Critical Habitat Designation

    We evaluated the comments and new information received from the 
public during the public comment period. Based on our consideration of 
these comments and the best scientific information available (as noted 
below in the Summary of Comments and Responses section), we made the 
following substantive changes to the final rule:
    1. Based on new information received during the public comment 
period, coupled with additional local ecological knowledge and baseline 
ecological studies we obtained following publication of the proposed 
rule, and as described above (see Natural History and Habitat Use), 
Riley's Hump, Florida, is considered a third spawning aggregation area 
in U.S. waters, and we are including this area in the critical habitat 
designation. To reflect this change in the critical habitat 
designation, we added the following textual description of the Riley's 
Hump spawning unit to read as follows: Spawning Site Unit 3--Riley's 
Hump--All waters encompassing Riley's Hump located southwest of the Dry 
Tortugas out to the 35 m isobath on the north, west, and east side of 
the hump and out to the 50 m isobath on the south side of the hump. See 
comment 10 and our response to the comment for further explanation of 
this change.
    2. We extended the offshore boundary of Puerto Rico Unit 1 out to 
the 50 m isobaths off the islands of Mona and Monito and modified the 
associated description to read as follows: Puerto Rico Unit 1--Isla de 
Mona and Monito--All waters surrounding the islands of Mona and Monito 
from the shoreline to the 50 m isobaths. This change was driven by 
years of monitoring data and scientific observations we received during 
the public comment period from an

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internationally-recognized researcher, whose work includes in-depth 
studies of habitat use by Nassau grouper at these locations. Comment 8 
and our response to the comment provides further explanation of this 
change.
    3. We extended the offshore boundary for Puerto Rico Unit 2 out to 
the 50 m isobaths off the island of Desecheo and revised the associated 
textual description to read as follows: Puerto Rico Unit 2--Desecheo 
Island--All waters surrounding the island of Desecheo from the 
shoreline to the 50 m isobath. This change was driven by years of 
monitoring data and scientific observations we received from the same 
researcher regarding this specific habitat unit. See comment 8 and our 
response to the comment for a more detailed explanation of this change.
    We updated the maps of Puerto Rico Units 1 and 2 to reflect the 
extension of these units' boundaries and have included a new map of 
Spawning Site Unit 3--Riley's Hump. As a result of these changes, the 
total area encompassed by this final designation has increased by 32.4 
sq. km (12.51 sq. miles), compared to the proposed designation.

Other Changes

    In addition to substantive changes in the final rule described 
above, we also made clarifying changes to the final rule, and to the 
Critical Habitat Report, in response to public comments and new 
information. Specifically, the economic values are updated and detailed 
in both the final rule and the Critical Habitat Report. We considered 
whether the extended boundaries for Puerto Rico Units 1 and 2 and the 
addition of Spawning Site Unit 3--Riley's Hump would alter the number 
and nature of ESA section 7 consultations included in the analysis and 
whether any additional economic, national security, other relevant 
impacts that were not previously considered could be identified. We 
confirmed that no additional section 7 consultations relevant to the 
expansion of Puerto Rico Units 1 and 2 or the addition of Spawning Site 
Unit 3--Riley's Hump are expected or should be incorporated into the 
economic analysis, and we received no additional information regarding 
future planned or expected federal activities within these areas. 
Therefore, we project no additional economic impacts as a result of 
these changes. Further, the added areas are already located within 
reserve areas and are not used for military purposes. For this reason, 
the newly added areas pose no impacts to national security. No other 
relevant impacts were identified as a result of these changes in the 
specific areas of the critical habitat. Therefore, while the specific 
areas under consideration changed slightly to include an additional 
32.4 sq. km (12.51 sq. miles), no changes were made to the conclusions 
of our ESA section 4(b)(2) analysis.

Summary of Public Comments and Responses

    We solicited comments on the proposed rule and the supporting 
Critical Habitat Report during a 60-day comment period (87 FR 62930, 
October 17, 2022). To facilitate public participation, the proposed 
rule was made available on our website and comments were accepted via 
both standard mail and through the Federal eRulemaking portal, https://www.regulations.gov.
    We received 18 comments; of these, 16 comments were generally 
supportive of the proposed rule. One comment opposed the proposed 
designation, but it provided no rationale or additional information to 
controvert our analysis or conclusions. Another comment was not 
relevant to the subject of Nassau grouper critical habitat and was 
likely submitted to the wrong comment docket. All public comments are 
posted on the Federal eRulemaking Portal (docket number: NOAA-NMFS-
2022-0073). We reviewed and fully considered all relevant public 
comments and significant new information received in developing the 
final critical habitat designation. Where appropriate, we have combined 
similar comments from multiple commenters and addressed them together.

General Comments in Support of the Proposed Rule

    Comment 1: The majority (89 percent) of the comments we received 
were supportive of the proposed rule and did not include substantive 
content or suggest any changes to the proposed critical habitat 
designations. Many of these comments noted that critical habitat 
designation is a crucial aspect of population recovery while also 
noting benefits to the surrounding ecosystem. Other comments pointed to 
the decline in habitat quality throughout the range of the Nassau 
grouper and the consequent need to preserve and protect habitat that is 
deemed critical to the species. Many of the comments also acknowledged 
human-induced reduction of the species via overfishing, specifically at 
spawning aggregation sites.
    Response: We appreciate these comments. We look forward to working 
with stakeholders throughout the range of the Nassau grouper to promote 
the recovery of the species, and acknowledge that the critical habitat 
designation is one step in that process. As described in the final 
listing determination (81 FR42268), we concur that overfishing, 
particularly at spawning aggregations, is the primary threat to the 
species.

Comments on Need for Special Management Considerations or Protection

    Comment 2: One commenter requested that we expand the Need for 
special management considerations or protection section.
    Response: The commenter did not provide any additional detail as to 
what aspect of the section needed further expansion or explain why the 
commenter thought our analysis was insufficient. In response to this 
comment, we reviewed our discussion and explanation of how the 
identified physical and biological features essential to the 
conservation of Nassau grouper meet the ``may require special 
management considerations or protections'' aspect of the statutory 
definition of ``critical habitat.'' As described in the proposed rule 
(87 FR 62930), we found that the essential feature components that 
support settlement, development, refuge, and foraging (essential 
feature 1, components a through d) are particularly susceptible to 
impacts from human activity because of the relatively shallow water 
depth range where these features occur as well as their proximity to 
the coast. As a result, these features may be directly and indirectly 
impacted by activities such as coastal and in-water construction, 
dredging and disposal activities, beach nourishment, stormwater run-
off, wastewater and sewage outflow discharges, point and non-point 
source pollutant discharges, fishing activities, and anthropogenically-
induced climate change. The spawning aggregation sites essential 
feature (essential feature 2) is affected by activities that may make 
the sites unsuitable for reproductive activity, such as activities that 
inhibit fish movement to and from the sites or within the sites during 
the period the fish are expected to spawn, or create conditions that 
deter the fish from selecting the site for reproduction. Further, 
because the spawning aggregation sites are so discrete and rare and the 
species' reproduction depends on their use of aggregation sites, the 
species is highly vulnerable at these locations and loss of an 
aggregation site could lead to significant population impacts. By 
identifying and discussing

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these various sources and types of impacts on the essential features of 
the critical habitat we provide sufficient demonstration that the 
essential features meet the ``may require special management or 
protections'' prong of the definition of critical habitat. We note that 
we are not obligated to identify all possible management concerns or 
protections that may be relevant, nor does the ESA require that we do 
so. However, in response to this comment, we note that activities that 
inhibit fish movement to and from spawning sites or create conditions 
that deter the fish from selecting the site for reproduction by 
altering the essential features described in this rule, might include 
the placement of in-water barriers, direct physical destruction of 
benthic habitats both at the site and within migratory corridors, and 
pollution (e.g., chemical or noise) that renders the site less 
biologically suitable.

Comments on Economic Analysis

    Comment 3: One commenter asked whether private landowners were 
contacted regarding the economic impact of the proposed critical 
habitat designation.
    Response: Private landowners as well as all other stakeholders were 
given an opportunity to provide comments during the 60-day public 
comment period on the proposed rule. In addition, a thorough economic 
analysis was conducted as an integral part of the critical habitat 
proposed rule (81 FR 42268, October 17, 2022). All publicly available 
resources were used to identify economic impacts that would result from 
the designation of critical habitat. As explained in the economic 
analysis, the only types of activities for which private landowners 
might incur costs stemming from the critical habitat are those related 
to in-water and coastal construction (e.g., docks, boat ramps, marina). 
Further, the economic analysis concludes that the designation would not 
result in the need for changes to such projects beyond those already 
required due to existing (``baseline'') regulations, such as the 
presence of the ESA-listed Nassau grouper and corals and existing 
designated critical habitat for seven species of listed corals. The 
only incremental costs potentially incurred by private landowners are 
the administrative costs of addressing effects to Nassau grouper 
critical habitat through informal and formal section 7 consultations, 
and most of these costs would be borne by the responsible federal 
action agency (e.g., U.S. Army Corps of Engineers). Due to the presence 
of ESA-listed species and designated critical habitat for other 
species, these section 7 consultations would occur absent the 
designation of critical habitat for Nassau grouper. The analysis 
projects that fewer than two section 7 formal consultations and fewer 
than 80 informal consultations on construction-related projects would 
consider effects to Nassau grouper critical habitat over the next 10 
years. This equates to less than 0.2 formal consultations and fewer 
than eight informal consultations per year. Based on the best available 
information, third party administrative section 7 costs directly 
attributable to Nassau grouper critical habitat would be approximately 
$510 per informal consultation (2022 dollars). It is highly unlikely 
that these costs would deter a private landowner from completing a 
construction project. As there would be no incremental costs to or 
restrictions placed on private landowners conducting activities that do 
not involve a federal agency, there is no basis for concluding there 
would be any loss in property values or impact on the scope or volume 
of non-federally regulated activities.

Comments on Exclusion of Managed Areas

    Comment 4: One commenter asked why managed areas, as defined in the 
proposed rule, are not considered for critical habitat designation. A 
separate commenter referred to the proposed treatment of navigation 
channels as managed areas and requested that NMFS include navigation 
channels and their immediate surroundings within the critical habitat 
designation. This commenter also stated that federal activities that 
adversely affect critical habitat should be mitigated under ESA section 
7 and not excluded from critical habitat designation.
    Response: The proposed rule specified that an area would not be 
included in critical habitat if it is a managed area where the 
substrate is continually disturbed by planned management activities 
authorized by local, state, or Federal governmental entities at the 
time of critical habitat designation and will continue to be disturbed 
by such management. Examples of managed areas included dredged 
navigation channels, shipping basins, vessel berths, and active 
anchorages. Due to the ongoing use and maintenance of these managed 
areas and the persistent disturbance of the bottom, the areas are poor 
habitat with little to no ability to support the long-term conservation 
of Nassau grouper. Therefore, we did not include managed areas within 
the proposed critical habitat designation. We also explained in the 
proposed rule that channel dredging may result in sedimentation impacts 
beyond the actual channel edge, and to the extent these impacts are 
persistent, they are expected to recur whenever the channel is dredged 
and are of such a level that the areas in question are currently 
unsuitable to support the essential features of critical habitat. As a 
result, we consider such areas as part of the managed areas that are 
not included in the final designation. We note that ESA section 7 
consultations on actions that propose new or modified navigation 
channels will consider impacts to the essential features of Nassau 
grouper critical habitat outside of pre-existing managed areas.

Comments on Predation Threats to the Species

    Comment 5: One commenter questioned why impacts from invasive 
lionfish were not included in the critical habitat proposed rule and 
provided a reference that observed Nassau grouper in direct competition 
with the red lionfish in high quality habitats, as well as predation by 
lionfish on juvenile Nassau grouper.
    Response: The final listing determination for Nassau grouper (81 
FR42268; June 29, 2016) considered the factors for listing as outlined 
in section 4(a)(1). One of these factors (factor C) identifies 
predation as a potential basis for listing a species. Based on the 
extinction risk analysis and supporting documentation in the biological 
report, it was determined that Nassau grouper is at a ``very low risk'' 
of extinction due to predation. Any additional threats from invasive 
species could be considered under risk factor E (i.e., other natural or 
manmade factors affecting its continued existence), however, 
competition with invasive lionfish was not considered as a threat to 
the existence of the species, nor were any other invasive species 
considered as direct threats to the existence of Nassau grouper. Nassau 
grouper occupy a niche as a large-bodied predator within coral reef 
fish communities throughout its range. As an integral part of the fish 
community, they are subjected to competition with a variety of other 
species, including the red lionfish (Pterois volitans), but we have no 
information to undermine our previous conclusion that Nassau grouper is 
at low risk of extinction due to predation. Additionally, there is no 
indication that red lionfish alter the essential features of the 
critical habitat designation. We reviewed and considered the comment, 
as well as the referenced paper, and did not find a basis to alter the 
areas designated as critical habitat, nor the

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essential features of critical habitat, as a result. The referenced 
paper specifically mentions that red lionfish do not prey on Nassau 
grouper, and therefore that effect was considered negligible.

Comments on the Essential Features

    Comment 6: One commenter requested that the phrase ``close 
proximity'' in the description of the recruitment and developmental 
habitat essential feature be expanded upon in the final rule to 
increase public and federal agency awareness. The commenter also 
provided a copy of a peer-reviewed publication (Blincow et al., 2020) 
that could be used to inform movement and range estimates.
    Response: In our description of the essential features, we proposed 
to describe the intermediate hardbottom and seagrass areas in ``close 
proximity'' to the nearshore shallow subtidal marine nursery areas, and 
the offshore linear and patch reefs in ``close proximity'' to 
intermediate hardbottom and seagrass areas. We use the term ``close 
proximity'' to account for the high variability in habitat 
configurations, oceanographic conditions, and the movement patterns of 
individual Nassau grouper, which also vary across developmental stages, 
rather than prescribe a particular distance. We find that this term 
allows us to appropriately describe and include habitat components that 
are needed and accessible to maturing individual groupers as they 
recruit and progress to successive developmental stages and the bottom 
types that support each stage of development and to exclude areas that 
may have the prescribed bottom characteristics, but which are isolated 
from areas that support other developmental stages. As per the 
regulations for designating critical habitat (50 CFR 424.12) the 
description outlined above is the appropriate level of specificity for 
the essential feature based on the available information for this 
species.
    The peer-reviewed publication (Blincow et al., 2020) referenced by 
the commenter demonstrates a clear variability in depth use by Nassau 
grouper depending on the condition of the individual (i.e., the 
relative health of the individual), but does not attempt to quantify 
the extent of daily movements. In addition, the referenced publication 
discusses movement patterns of Nassau grouper adults and does not 
include the juveniles that were discussed in the recruitment and 
developmental habitat essential feature. We therefore have retained the 
term ``close proximity'' in the description of the recruitment and 
development habitat essential feature as appropriate to prioritize the 
proximity of progressive ontogenetic habitats rather than the range 
movements of individual adults.

Comments on Critical Habitat Units

    Comment 7: One commenter suggested that Florida Unit 1 be expanded 
farther north, while Florida Units 3 and 4 be expanded to include areas 
off of Boca Chica and Key West.
    Response: The commenter did not provide any new supporting evidence 
as to why the Florida units should be expanded beyond a slightly 
different interpretation of the same maps that we considered. The areas 
identified as critical habitat include the benthic types listed in the 
recruitment and developmental habitat essential feature, as determined 
by an analysis of the best available benthic maps, and the areas 
suggested by the commenter do not include the necessary features. 
Specifically, the areas included in Florida Units 1, 3, and 4 comprise 
hard bottom habitat with a mosaic of benthic habitats including 
pavement, seagrass, and carbonate sand and rubble. The areas adjacent 
to these units that are suggested by the commenter do not include the 
benthic types we specified for this essential feature, as the sites had 
clear breaks of contiguous habitats (e.g., seagrass, colonized 
hardbottom) that were discontinued at the specified critical habitat 
boundaries and are therefore not designated as critical habitat.
    Comment 8: One commenter requested the expansion of the critical 
habitat designations around the oceanic islands of Desecheo, Mona, and 
Monito, off the west coast of Puerto Rico, to include all platform 
areas up to the 50 m (164 ft) depth contour. They provided peer-
reviewed scientific literature to support the assertion that the unique 
characteristics of these islands require special consideration with 
regards to habitat use by Nassau grouper.
    Response: We agree with the commenter that these habitats should be 
included in the critical habitat designation and as mentioned above in 
the summary of changes, we have incorporated the suggestions into the 
final rule, specifically in Puerto Rico Units 1 and 2. The commenter 
provided ample scientific data, including years of monitoring data as 
well as scientific observation, to indicate that Nassau grouper use the 
platforms of these isolated islands differently than other insular 
shelf areas. Oceanographic conditions in the Mona Passage cause a 
biogeographic barrier that limits genetic connectivity on either side 
of the barrier (Baums et al., 2006, Beltran et al., 2017, Taylor and 
Hellberg, 2003), while promoting self-recruiting populations on the 
islands within the channel (Olson et al., 2019). Due to the unique 
nature of these oceanic islands (i.e., Mona, Monito, and Desecheo), 
including the extreme bathymetric slope and limited availability of 
shallow and nearshore habitats, the essential physical and biological 
features associated with recruitment and developmental habitat are 
found and used by all Nassau grouper life stages in benthic habitats 
from the shoreline up to depths of 50 m (Aguilar-Perera et al., 2006, 
Scharer, 2009, Garcia-Sais et al., 2017). We therefore determined that 
the recruitment and developmental habitat essential feature was present 
throughout these oceanic island shelf areas from the shoreline out to 
depths of 50 m.
    Comment 9: One commenter suggested that information was missing 
from the Florida data analyses in that data from NOAA's National Coral 
Reef Monitoring Program (NCRMP) diver surveys regarding the density of 
Nassau grouper and their habitat use was not evaluated.
    Response: The NCRMP dataset on fish communities, which is a subset 
of the Coral Reef Information System, is a stationary point count 
method to quantify fish diversity and abundance in coral reef 
environments under U.S. jurisdictions. The dataset is extremely useful 
to determine the presence or absence of a species, and therefore can be 
extrapolated to answer questions about the range of a species and 
habitat use. Evaluations of 23 years of NCRMP data (1999-2022) 
indicated Nassau grouper utilize the following habitat types: 
contiguous hardbottom, isolated patch reefs, spur and groove reef and 
rubble. Nassau grouper densities were extremely low throughout their 
range; however, the NCRMP data is consistent with the known range of 
the species, and is therefore consistent with the critical habitat 
designation. The dataset was therefore considered, but not incorporated 
into the rule nor the supporting documentation, due to the limitations 
of the data for the specific application of designating critical 
habitat for an extremely rare species.
    Comment 10: One commenter requested expanding the critical habitat 
designation near the Dry Tortugas in Florida to include a feature known 
as ``Riley's Hump'' as a potential spawning aggregation site, citing 
the geomorphological features of the seamount as well as years of 
continuous monitoring at the site where individuals were observed to 
exhibit courting behavior, spawning color patterns, and

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sounds associated with spawning activity.
    Response: We agree with the commenter regarding the inclusion of 
Riley's Hump into the final ruling and have done so in the form of a 
new unit in the final rule, titled ``Spawning Site Unit 3--Riley's 
Hump.'' As the commenter points out, Riley's Hump is an extremely 
productive multi-species spawning aggregation site. The Florida Fish 
and Wildlife Research Institute has documented several grouper and 
snapper species aggregating and spawning at Riley's Hump. Nassau 
grouper have been observed among the fishes at these aggregation sites, 
and these individuals have displayed spawning coloration, behaviors, 
and sound production (Locascio and Burton, 2015). In addition, limited 
surveys at Riley's Hump have documented substantially higher Nassau 
grouper encounter rates (>66 percent of sample sites) as compared to 
the rest of the Florida reef tract (<1 percent of sample sites). We 
have concluded that Riley's Hump contains the spawning habitat 
essential feature and consequently warrants inclusion in the critical 
habitat designation due to the relatively higher density of Nassau 
grouper at the site, multiple observations of individuals exhibiting 
spawning behavior (including courtship coloration and sound production 
associated with spawning activity), the presence of these individuals 
at known spawning times, and the yearly reoccurrence of their presence.

Critical Habitat Identification and Designation

    In the following sections, we describe the application of relevant 
definitions and requirements in the ESA and implementing regulations at 
50 CFR part 424 and the key information and criteria used to prepare 
this critical habitat designation. In accordance with section 4(b)(2) 
of the ESA, this critical habitat designation is based on the best 
scientific data available and takes into consideration the economic 
impact, the impact on national security, and any other relevant impact 
of specifying any particular area as critical habitat. Scientific data 
used to identify critical habitat includes the information contained in 
the Biological Report for the Nassau grouper (Hill and Sadovy de 
Mitcheson, 2013), the proposed and final rules to list the Nassau 
grouper under the ESA (79 FR 51929, September 2, 2014; 81 FR 42268, 
June 29, 2016), articles in peer-reviewed journals, other scientific 
reports and fishery management plans, and relevant Geographic 
Information System (GIS) data (e.g., shoreline data, U.S. maritime 
limits and boundaries data) for geographic area calculations and 
mapping. To identify specific areas that may qualify as critical 
habitat for Nassau grouper, in accordance with 50 CFR 424.12(b), we 
undertook the following steps: Identified the geographical area 
occupied by the species at the time of listing; identified physical or 
biological habitat features essential to the conservation of the 
species; identified the specific areas within the geographical area 
occupied by the species that contain one or more of the physical or 
biological features essential to the conservation of the species; 
determined which of these essential features may require special 
management considerations or protection; and evaluated whether any 
specific areas outside the geographical area occupied by the species 
are essential for the species' conservation. Our evaluations and 
conclusions are described in detail in the following sections.

Geographical Area Occupied by the Species

    The phrase ``geographical areas occupied by the species,'' which 
appears in the statutory definition of critical habitat (16 U.S.C. 
1532(5)(A)(i)), is defined by regulation as ``an area that may 
generally be delineated around species' occurrences, as determined by 
the Secretary (i.e., range). Such areas may include those areas used 
throughout all or part of the species' life cycle, even if not used on 
a regular basis (e.g., migratory corridors, seasonal habitats, and 
habitats used periodically, but not solely by vagrant individuals) (50 
CFR 424.02).
    Nassau groupers are found in tropical and subtropical waters of the 
western North Atlantic. The 2016 listing rule identified the 
distribution or range of the Nassau grouper as ``Bermuda and Florida 
(USA), throughout the Bahamas and Caribbean Sea'' (81 FR 42268, 42271; 
June 29, 2016) based on existing literature (e.g., Heemstra and 
Randall, 1993). They generally live among shallow reefs but can be 
found in depths to 130 m (426 feet). Many earlier reports of Nassau 
grouper up the Atlantic coast of Florida to North Carolina have not 
been confirmed (Hill and Sadovy de Mitcheson, 2013).
    We investigated the distribution of Nassau grouper in the Gulf of 
Mexico. As summarized in the 2016 listing rule, Nassau grouper is 
generally replaced ecologically in the eastern Gulf of Mexico, in areas 
north of Key West or the Tortugas, by red grouper (E. morio) (Smith, 
1971). Nassau grouper are considered a rare or transient species off 
Texas in the northwestern Gulf of Mexico (Gunter and Knapp, 1951 in 
Hoese and Moore, 1998). The only confirmed sighting of Nassau grouper 
in the Flower Garden Banks National Marine Sanctuary (FGBNMS), which is 
located in the northwest Gulf of Mexico approximately 180 km southeast 
of Galveston, Texas, was reported by Foley et al. (2007). Since then, 
no additional Nassau grouper have been reported in the FGBNMS despite 
an extensive survey by remote operated vehicles (E. Hickerson, FGBNMS, 
personal communication, 2021). There are two records (1996 and 2006) of 
Nassau grouper in the Gulf of Mexico from the NMFS Southeast Area 
Monitoring and Assessment Program (SEAMAP) reef fish video (RFV) 
survey. This RFV survey of hardbottom habitats in the Gulf of Mexico 
has been conducted annually since 1992 (with the exception of 1998-2000 
and 2020) at approximately 300 sites and targets snappers and groupers 
at mesophotic reefs out to the 200 m depth contour between the Florida 
Keys and Texas. Both sightings were presumed adult Nassau grouper and 
both occurred off the Florida west coast: one off the panhandle and one 
west of the Dry Tortugas (K. Rademacher, NMFS, personal communication, 
2021). We conclude from the paucity of these reports that the Nassau 
grouper does not regularly occur in the United States portion of the 
Gulf of Mexico.
    The range of the Nassau grouper spans the wider Caribbean, and 
specifically the east coast of Florida including the Florida Keys, 
Puerto Rico, and USVI in the United States (Hill and Sadovy de 
Mitcheson, 2013). Because we cannot designate critical habitat areas 
outside of U.S. jurisdiction (50 CFR 424.12(g)), the geographical area 
under consideration for this designation is limited to areas under the 
jurisdiction of the United States.

Physical and Biological Features Essential to Conservation

    Within the geographical area occupied by the species, critical 
habitat consists of specific areas on which are found physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protection (16 
U.S.C. 1532(3). Features essential to the conservation of the species 
are defined as features that are essential to support the life-history 
needs of the species, including but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other

[[Page 138]]

features. A feature may be a single habitat characteristic, or a more 
complex combination of habitat characteristics. Features may include 
habitat characteristics that support ephemeral or dynamic habitat 
conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity (50 CFR 424.02).
    To assess habitat features that are ``essential to the 
conservation'' of Nassau grouper, we considered the physical and 
biological features that are essential to support the life history 
needs and are essential to the conservation of Nassau grouper within 
the areas they occupy within U.S. waters. As noted previously, section 
3 of the ESA defines the terms ``conserve,'' ``conserving,'' and 
``conservation'' to mean: ``to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this Act are no longer necessary'' (16 U.S.C. 1532(3)).
    Because the reduction in the number of Nassau grouper through 
historical harvest and fishing at spawning aggregations was a major 
factor in the listing determination (81 FR 42286, June 26, 2016), 
Nassau grouper conservation necessitates increasing the number of 
individuals, particularly the spawning population. Therefore, we have 
identified physical and biological features that support reproduction, 
recruitment, and growth as essential to the species' conservation. For 
the Nassau grouper, critical habitat includes physical and biological 
features to support adult reproduction at the spawning aggregations, 
settlement of larvae, and subsequent growth to maturity. These features 
are essential to the conservation of the species because long-term 
population recovery relies on successful recruitment and the existence 
of individuals across a broad size range. Nassau grouper populations 
are dependent on settlement of pelagic larvae to coastal locations and 
rely on a contiguous reef system to accommodate habitat shifts from 
inshore locations to nearshore patch reefs and hardbottom areas and 
subsequent movement into offshore reef habitats as the individuals 
mature. Both natural and artificial reefs are used. While in nursery 
habitats, juvenile grouper associate with a variety of microhabitats, 
including macroalgae, seagrass, empty conch shells, coral patches, 
sponges, rubble mounds produced by sand tilefish (Malcanthus plumieri) 
(Bloch, 1786), artificial structures, and debris (Eggleston, 1995; 
Colin et al., 1997; Eggleston et al., 1998; Aguilar-Perera et al., 
2006; Claydon and Kroetz, 2008; Claydon et al., 2009, 2011). Nassau 
grouper conservation requires habitat to support growth from larval 
settlement in the nearshore to maturity, with appropriate inter-habitat 
connectivity to support movement from nearshore habitat used for larval 
settlement, to intermediate areas used by juveniles, and finally to 
offshore areas used by adults. Observations at documented spawning 
sites indicate that spawning aggregation sites are typically located 
near the edge of an insular platform, often in areas that are close to 
shore, yet also close to a deep-water drop-off. These sites are 
generally small, some measuring several hundred meters in diameter, and 
can contain a wide diversity of bottom types (Craig, 1966; Smith, 1990; 
Beets and Friedlander, 1992; Colin, 1992; Aguilar-Perera, 1994). The 
spawning habitat designated as critical habitat include the specific 
sites used for spawning (i.e., where the fish aggregate and release 
gametes into the water column) as well as any documented staging areas 
(i.e., the areas used by adult Nassau grouper in between spawning 
events) and known migration corridors between neighboring spawning 
locations.
    Within the habitats used by Nassau grouper as they progress through 
their life history stages, we have identified the following essential 
features, which remain unchanged from the proposed rule (87 FR 62930):
    1. Recruitment and developmental habitat. Areas from nearshore to 
offshore necessary for recruitment, development, and growth of Nassau 
grouper containing a variety of benthic types that provide cover from 
predators and habitat for prey, consisting of the following:
    a. Nearshore shallow subtidal marine nursery areas with substrate 
that consists of unconsolidated calcareous medium to very coarse 
sediments (>= 0.5 mm grain size, as per Wentworth 1922) and shell and 
coral fragments and may also include cobble, boulders, whole corals and 
shells, or rubble mounds, to support larval settlement and provide 
shelter from predators during growth and habitat for prey.
    b. Intermediate hardbottom and seagrass areas in close proximity to 
the nearshore shallow subtidal marine nursery areas that provide refuge 
and prey resources for juvenile fish. The areas include seagrass 
interspersed with areas of rubble, boulders, shell fragments, or other 
forms of cover; inshore patch and fore reefs that provide crevices and 
holes; or substrates interspersed with scattered sponges, octocorals, 
rock and macroalgal patches, or stony corals.
    c. Offshore linear and patch reefs in close proximity to 
intermediate hardbottom and seagrass areas that contain multiple 
benthic types; for example: coral reef, colonized hardbottom, sponge 
habitat, coral rubble, rocky outcrops, or ledges, to provide shelter 
from predation during maturation and habitat for prey.
    d. Structures between the subtidal nearshore area and the 
intermediate hardbottom and seagrass area and the offshore reef area 
including overhangs, crevices, depressions, blowout ledges, holes, and 
other types of formations of varying sizes and complexity to support 
juveniles and adults as movement corridors that include temporary 
refuge that reduces predation risk as Nassau grouper move from 
nearshore to offshore habitats.
    2. Spawning Habitat. Marine sites used for spawning and adjacent 
waters that support movement and staging associated with spawning.

Special Management Considerations or Protection

    Specific areas within the geographical area occupied by a species 
at the time of listing may be designated as critical habitat only if 
they contain essential features that ``may require special management 
considerations or protection'' (16 U.S.C. 1532(5)(A)(i)(II)). Special 
management considerations or protection are defined as any ``methods or 
procedures useful in protecting the physical or biological features 
essential to the conservation of listed species'' (50 CFR 424.02).
    The essential feature components that support settlement, 
development, refuge, and foraging (essential feature 1, components a 
through d) are particularly susceptible to impacts from human activity 
because of the relatively shallow water depth range where these 
features occur as well as their proximity to the coast. As a result, 
these features may be impacted by activities such as coastal and in-
water construction, dredging and disposal activities, beach 
nourishment, stormwater run-off, wastewater and sewage outflow 
discharges, point and non-point source pollutant discharges, and 
fishing activities. Coastal and in-water construction, dredging and 
disposal, and beach nourishment activities can directly remove the 
essential feature that supports settlement, development, refuge, and 
foraging by dredging or by depositing sediments, making habitat 
unavailable. These same activities can impact the essential feature by 
creating turbidity during operations. Stormwater

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run-off, wastewater and sewage outflow discharges, and point and non-
point source pollutant discharges can adversely impact the essential 
feature by allowing nutrients and sediments from point and non-point 
sources to alter the natural levels of nutrients or sediments in the 
water column, which could negatively impact the substrate 
characteristics or health (e.g., seagrass and corals). In addition to 
the direct removal of individuals from their preferred habitats, 
fishing activities can be destructive in nature and alter the essential 
features of the habitat by physical impacts of weights, nets, lead 
lines, and other gear types. Further, the global oceans are being 
impacted by climate change from greenhouse gas emissions. The impacts 
from all these activities, combined with those from natural factors 
(e.g., major storm events) affect the habitat, including the components 
described for this essential feature. We conclude that this essential 
feature is currently and will likely continue to be negatively impacted 
by some or all of these factors.
    The spawning habitat essential feature (essential feature 2) is 
affected by activities that may make the sites unsuitable for 
reproductive activity, such as activities that inhibit fish movement to 
and from the sites or within the sites during the period the fish are 
expected to spawn or create conditions that deter the fish from 
selecting the site for reproduction. Pollution leading to significant 
declines in water quality may render spawning locations unusable or 
reduce adult or egg survival. Acoustic disturbances may also inhibit 
spawning activity due to the acoustic cues used by the animal during 
courtship and spawning behaviors. Further, because the spawning 
aggregation sites are so discrete and rare, and the species' 
reproduction depends on their use of these sites, the species is highly 
vulnerable at these locations and loss of an aggregation site could 
lead to significant population impacts.
    Based on the above, we determined that the essential features may 
require special management considerations or protection.

Specific Areas Within the Geographic Area Occupied by the Species 
Containing the Essential Features

    To determine what areas qualify as critical habitat within the 
geographical area occupied by the species, we are required to identify 
``specific areas'' within the geographical area occupied by the species 
that contain the physical or biological features essential to the 
conservation of the species (50 CFR 424.12(b)(1)(iii)). Delineation of 
the specific areas is done ``at a scale determined by the Secretary [of 
Commerce] to be appropriate'' (50 CFR 424.12(b)(1)). Our regulations 
also require that each critical habitat area be shown on a map with 
more-detailed information discussed in the preamble of the rulemaking 
documents in the Federal Register, which will reference each area by 
the State, county, or other local governmental unit in which it is 
located (50 CFR 424.12(c)). In determining the appropriate boundaries 
and mapping the specific areas of critical habitat, we relied on the 
best available data as further described below and including the 
Critical Habitat Report. A main goal in determining and mapping the 
boundaries of the specific areas is to provide a clear description and 
documentation of the areas containing the identified essential 
features. This is ultimately crucial to ensuring that Federal action 
agencies are able to determine whether their particular actions may 
affect the critical habitat.
    Available habitat and bathymetric data layers were examined with 
the help of databases from Florida Fish and Wildlife Conservation 
Commission (FWC) Unified Florida Reef Tract, the Nature Conservancy, 
and NOAA to determine the contiguous areas of appropriate habitat 
complexity that contain a combination of habitat characteristics 
relevant to the essential features supporting Nassau grouper 
development, refuge, and foraging. For example, we used information 
from the National Centers for Coastal Ocean Science Benthic Habitat 
Mapping program that provides data and maps at http://products.coastalscience.noaa.gov/collections/benthic/default.aspx and 
the Unified Florida Reef Tract Map found at https://myfwc.com/research/gis/regional-projects/unified-reef-map/.
    These resources provide maps and information on the location of 
habitat features important to Nassau grouper such as seagrass; 
unconsolidated calcareous sediment of medium to very coarse sediments 
(not fine sand) including shell and coral fragments interspersed with 
cobble, boulders, corals, and rubble mounds; continuous and 
discontinuous areas of seagrass and inshore patch and fore reefs; coral 
reef; and colonized hardbottom. Areas of these habitat types that were 
not sufficiently close to satisfy the need for contiguous habitat that 
could support nearshore to offshore movement of the species from larva 
to adult were excluded. Species presence or absence was also used to 
inform the decision making. Expert opinion was important to identifying 
areas that contain the feature. These experts included a NMFS regional 
GIS lead, a NMFS Nassau Grouper Recovery Coordinator with 30 years of 
protected species and Nassau grouper conservation research experience, 
and other Nassau grouper researchers. NMFS staff jointly reviewed all 
data prior to delineating proposed units, consulting with these 
experts.
    To map these specific areas we reviewed available species 
occurrence, bathymetric, substrate, and water quality data. The highest 
resolution bathymetric data available were used for each geographic 
location. For areas in Florida and the FGBNMS, we used contours created 
from National Ocean Service Hydrographic Survey Data, NOAA ENCDirect 
bathymetric point data, National Park Service (NPS) data, and NOAA's 
Coastal Relief Model. For areas in Puerto Rico, we used contours 
derived from the National Geophysical Data Center's (NGDC) 2005 U.S. 
Coastal Relief Model. For areas in USVI, we used contours derived from 
NOAA's 2004-2015 Bathymetric Compilation. For areas in Navassa, we used 
contours derived from NOAA's NGDC 2006 bathymetric data. These 
bathymetric data were used with other geographic or management 
boundaries to draw the boundaries of each specific area on the maps in 
the critical habitat designation. Twenty specific areas, or units, were 
delineated based on these data, and are described later in this 
document (see Occupied Critical Habitat Unit Descriptions).
    Within the geographical and depth ranges of the species, certain 
areas contain the appropriate substrates but, due to their consistently 
disturbed nature, do not provide the quality of substrate, structure, 
and often water quality, essential for the conservation of the 
threatened Nassau grouper. These disturbances are caused by human 
activities, such as dredging. While these areas may provide substrate 
for recruitment and growth, the periodic nature of direct human 
disturbance renders them unsuitable habitat to promote recruitment and 
growth. In some of these areas, the substrate has been persistently 
disturbed by planned management activities authorized by local, state, 
or Federal governmental entities at the time of critical habitat 
designation. For the purpose of this rule, we refer to the areas 
disturbed by planned management activities as ``managed areas.'' We 
expect that these areas will continue to be periodically disturbed by 
such planned management activities. Examples include dredged navigation 
channels, vessel berths, and

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active anchorages. These managed areas are not designated as critical 
habitat.
    NMFS is aware that dredging may result in sedimentation impacts 
beyond the actual dredge channel. To the extent that these impacts are 
persistent, are expected to recur whenever the channel is dredged, and 
are of such a level that the areas in question have already been made 
unsuitable, we consider such areas to be included as part of the 
managed area and therefore are not designated as critical habitat.
    GIS data of the locations of some managed areas were available and 
extracted from the maps of the specific areas considered for critical 
habitat designation. These data were not available for every managed 
area. Regardless of whether the managed area is extracted from the maps 
depicting the specific areas designated as critical habitat, no managed 
areas as defined above are part of the specific areas within the 
geographical area occupied by the species that contain the essential 
feature related to recruitment and development habitat (essential 
feature 1).
    Spawning site locations were identified and mapped based on a 
review of relevant literature, including existing maps used in 
Caribbean Fishery Management Council management measures, codified in 
the Code of Federal Regulations (CFR), and confirmation with species 
experts to determine the areas relevant to the Nassau grouper spawning 
habitat essential feature (essential feature 2). The identified marine 
sites used for spawning and adjacent waters that support movement and 
staging associated with spawning are: Bajo de Sico (waters encompassed 
by 100 m isobath bounded in the Bajo de Sico spawning area off the west 
coast of Puerto Rico); Grammanik Bank and Hind Bank (waters which make 
up the Grammanik Bank and the Hind Bank, interconnecting waters between 
these banks, and waters extending out to 366 m directly south from 
Grammanik Bank, located south of St. Croix); and Riley's Hump (waters 
encompassing Riley's Hump located southwest of the Dry Tortugas out to 
the 35 m isobath on the north, west, and east side of the hump and out 
to the 50 m isobath on the south side of the hump). The species has 
been known to spawn in the waters of the Grammanik Bank and to use the 
nearby Hind Bank for staging and movement to and from the spawning 
area. In addition, continuous monitoring at Riley's Hump, Florida by 
FWC indicates that Nassau grouper aggregate at the site during winter 
months and display typical spawning behaviors.

Areas Outside of the Geographical Areas Occupied by the Species at the 
Time of Listing That Are Essential for Conservation

    ESA section 3(5)(A)(ii) defines critical habitat to include 
specific areas outside the geographical area occupied by the species at 
the time of listing if the areas are determined by the Secretary to be 
essential for the conservation of the species. An area must logically 
be ``habitat'' in order for that area to meet the narrower category of 
``critical habitat'' as defined in the ESA. Weyerhaeuser Co. v. U.S. 
FWS, 139 S. Ct. 361, 368 (2018) (explaining that an area cannot be 
designated as critical habitat unless it is also habitat for the 
species). Our regulations at 50 CFR 424.12(b)(2) further explain that 
the Secretary will identify, at a scale determined by the Secretary to 
be appropriate, specific areas outside the geographical area occupied 
by the species only upon a determination that such areas are essential 
for the conservation of the species. As noted previously, we considered 
these current regulatory requirements, as well as those in effect prior 
to 2019 and the recently proposed revisions to 50 CFR 424.12(b)(2) (see 
88 FR 40764, June 22, 2023). Although our analyses would differ with 
regard to considering whether any unoccupied areas qualify as critical 
habitat for Nassau grouper, our conclusions would be the same.
    While the most serious threats to Nassau grouper are historical 
overutilization, fishing at spawning aggregations, and inadequate law 
enforcement (81 FR 42268, 42280-81, June 29, 2016), loss of the 
habitats used by groupers during various life stages can influence 
their distribution, abundance, and survival. For example, alterations 
or destruction of nearshore nursery areas and degradation of hardbottom 
habitat can affect Nassau grouper's ability to grow and survive. The 
designated critical habitat will help conservation of spawning areas 
within U.S. jurisdiction. The critical habitat identified in this final 
rule identifies key habitat necessary for promoting the recruitment, 
refuge, forage, and spawning habitat necessary for the conservation of 
the species. Based on our current understanding of the species' life 
history, status, and conservation needs, we have not identified any 
specific areas outside the geographical area occupied by the species 
that are essential for its conservation. The protection of the specific 
areas identified in this final rule from destruction and adverse 
modification stemming from federal actions will help support the 
species' habitat-based conservation needs.

Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

    Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense (DoD), or designated for its use, that are 
subject to an Integrated Natural Resources Management Plan (INRMP) 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is designated. Pursuant to our 
regulations at 50 CFR 424.12(h), we consider the following when 
determining whether such a benefit is provided:
    (1) The extent of the area and features present;
    (2) The type and frequency of use of the area by the species;
    (3) The relevant elements of the INRMP in terms of management 
objectives, activities covered, and best management practices, and the 
certainty that the relevant elements will be implemented; and
    (4) The degree to which the relevant elements of the INRMP will 
protect the habitat from the types of effects that would be addressed 
through a destruction-or-adverse-modification analysis.
    NASKW is the only installation controlled by the DoD, specifically 
the Department of the Navy (Navy) that coincides with any of the areas 
under consideration for critical habitat. On July 14, 2022, the Navy 
requested in writing that the areas covered by the 2020 INRMP for NASKW 
not be designated as critical habitat, pursuant to ESA section 
4(a)(3)(B)(i).
    The NASKW INRMP covers the lands and waters (generally out to 50 
yards (45.7 m)) adjacent to NASKW, including several designated 
restricted areas. The total area of the waters covered by the INRMP 
that overlaps with areas identified as critical habitat is 
approximately 800 acres (3.2 sq km). Within this area, the species and 
the recruitment and developmental habitat essential feature are 
present, specifically young juvenile fish and nearshore shallow 
subtidal marine nursery and intermediate hardbottom and seagrass areas 
in close proximity to the nearshore shallow subtidal marine nursery 
areas. As detailed in the INRMP, the plan provides benefits to the 
threatened Nassau grouper and areas included in the designated critical 
habitat through the following NASKW broad programs and activities: 
wetlands management,

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floodplains management, soil conservation and erosion control, 
stormwater and water quality control, coastal and marine management, 
threatened species and natural communities management, wetlands 
protection and shoreline enhancement, federally listed species 
assessments, community outreach and awareness, fish and wildlife 
conservation signage, and marine resources surveys. These types of best 
management practices have been ongoing at NASKW since 1983; thus, they 
are likely to continue into the future. Further, the plan specifically 
provides assurances that all NASKW staff have the authority and funding 
(subject to appropriations) to implement the plan. The plan also 
provides assurances that the conservation efforts will be effective 
through annual reviews conducted by state and Federal natural resource 
agencies. These activities address some of the particular conservation 
and protection needs that critical habitat would afford. These 
activities are similar to those that we describe for avoiding or 
reducing effects to the critical habitat. Further, the INRMP includes 
provisions for monitoring and evaluating conservation effectiveness, 
which will ensure continued benefits to the species. Therefore, 
pursuant to section 4(a)(3)(B)(i) of the ESA, we determined that the 
INRMP provides a benefit to Nassau grouper, and areas within the 
boundaries covered by the INRMP are ineligible for designation as 
critical habitat.

Application of ESA Section 4(b)(2)

    Section 4(b)(2) of the ESA requires that we consider the economic 
impact, impact on national security, and any other relevant impact of 
designating any particular area as critical habitat. Additionally, the 
Secretary has the discretion to exclude any area from critical habitat 
if the Secretary determines the benefits of exclusion (that is, 
avoiding some or all of the impacts that would result from designation) 
outweigh the benefits of designation. The Secretary may not exclude an 
area from designation if the Secretary determines, based upon the best 
scientific and commercial data available, exclusion will result in the 
extinction of the species. Because the authority to exclude is 
discretionary, exclusion is not required for any particular area under 
any circumstances.
    The ESA provides the Secretary broad discretion in how to consider 
impacts. (See H.R. Rep. No. 95-1625, at 17, reprinted in 1978 
U.S.C.C.A.N. 9453, 9467 (1978)). Regulations at 50 CFR 424.19(b) 
specify that the Secretary will consider the probable impacts of the 
designation at a scale that the Secretary determines to be appropriate 
and that such impacts may be qualitatively or quantitatively described. 
The Secretary is also required to compare impacts with and without the 
designation (50 CFR 424.19(b)). In other words, we are required to 
assess the incremental impacts attributable to the critical habitat 
designation relative to a baseline that reflects existing regulatory 
impacts in the absence of the critical habitat. The consideration and 
weight given to any particular impact is determined by the Secretary, 
and the ESA does not contain requirements for any particular methods or 
approaches. See, e.g., Bldg. Indus. Ass'n of the Bay Area et al. v U.S. 
Dept. of Commerce et al., 792 F.3d 1027, 1032 (9th Cir. 2015) (holding 
that the ESA does not require the agency to follow a specific 
methodology when designating critical habitat under section 4(b)(2)). 
NMFS and the U.S. Fish and Wildlife Service have adopted a joint policy 
setting out non-binding guidance explaining generally how we exercise 
our discretion under section 4(b)(2) of the ESA (see Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act 
(``4(b)(2) Policy,'' 81 FR 7226, February 11, 2016)). For this final 
rule, we followed the same basic approach to describing and evaluating 
impacts as we have for several recent critical habitat rulemakings, as 
informed by our 4(b)(2) Policy.
    The following discussion of impacts is summarized from our Critical 
Habitat Report, which identifies the economic, national security, and 
other relevant impacts that we project would result from designating 
each of the specific areas as critical habitat. We considered these 
impacts when deciding whether to exercise our discretion to exclude 
particular areas from designation. Both positive and negative impacts 
were identified and considered (these terms are used interchangeably 
with benefits and costs, respectively). Impacts were evaluated in 
quantitative terms where feasible, but qualitative appraisals were used 
where that is more appropriate to particular impacts.
    The primary impacts of a critical habitat designation result from 
the ESA section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat and that they consult with NMFS in 
fulfilling this requirement. Determining these impacts is complicated 
by the fact that section 7(a)(2) also requires that Federal agencies 
ensure their actions are not likely to jeopardize the species' 
continued existence. One incremental impact of designation is the 
extent to which Federal agencies modify their proposed actions to 
ensure they are not likely to destroy or adversely modify the critical 
habitat beyond any modifications the agencies would make because of 
listing and the requirement to avoid jeopardy to the listed Nassau 
grouper. When the same modification would be required due to impacts to 
both the species and critical habitat, there would be no additional or 
incremental impact attributable to the critical habitat designation 
beyond the administrative impact associated with conducting the 
critical habitat analysis.
    Relevant, existing regulatory protections are referred to as the 
``baseline'' for the analysis and are discussed in the Critical Habitat 
Report. In this case, notable baseline protections include the ESA 
listing of the species (81 FR 42268, June 29, 2016), and other species 
listings and critical habitat designations (e.g., Elkhorn and staghorn 
coral, 73 FR 72209, November 26, 2008).
    The Critical Habitat Report describes the projected future Federal 
activities that would trigger ESA section 7 consultation requirements 
if they are implemented in the future because the activities may affect 
the essential features. These activities and the ESA consultation 
consequently may result in economic costs or negative impacts. The 
report also identifies the potential national security and other 
relevant impacts that may arise due to the critical habitat 
designation, such as positive impacts that may arise from conservation 
of the species and its habitat, state and local protections that may be 
triggered as a result of designation, and educating the public about 
the importance of an area for species conservation.

Economic Impacts

    Economic impacts of the critical habitat designations primarily 
occur through implementation of section 7 of the ESA in consultations 
with Federal agencies to ensure their proposed actions are not likely 
to destroy or adversely modify critical habitat. The economic impacts 
of consultation may include both administrative and project 
modification costs; economic impacts that may be associated with the 
conservation benefits resulting from designation are described later.
    To identify the types and geographic distribution of activities 
that may trigger section 7 consultation on Nassau grouper critical 
habitat, we first reviewed the NMFS Southeast Region's

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section 7 consultation history from 2011 to 2021 for:
    <bullet> Activities consulted on in the areas being designated as 
critical habitat for the Nassau grouper and
    <bullet> Activities that take place outside of the designated 
critical habitat but whose effects extend into the critical habitat and 
are therefore subject to consultation.
    In addition, we conducted outreach to relevant agencies to identify 
future activities that may affect Nassau grouper critical habitat that 
may not have been captured by relying on the section 7 consultation 
history. Through this outreach, we did not identify any additional 
activities that may affect Nassau grouper critical habitat. Agencies 
included the U.S. Army Corps of Engineers (USACE), the U.S. Air Force, 
the Department of the Navy, and the U.S. Coast Guard (USCG). We 
reviewed the USACE's Jacksonville District permit application database 
to identify all permit applications for projects located within the 
designated critical habitat area, including more recent consultation 
information provided by these or other agencies prior to the 
publication of this final rule. We determined all categories of the 
activities identified have potential routes of effects to both the 
threatened Nassau grouper and the designated Nassau grouper critical 
habitat, or to other species or designated critical habitat. We did not 
identify and we do not anticipate Federal actions that have the 
potential to affect only the Nassau grouper critical habitat.
    We identified the following eight categories of activities 
implemented by seven different Federal entities as having the potential 
to affect the essential features of the Nassau grouper critical 
habitat:
    <bullet> Coastal and in-water construction (e.g., docks, seawalls, 
piers, marinas, port expansions, anchorages, pipelines/cables, bridge 
repairs, aids to navigation, etc.) conducted or authorized by USACE or 
USCG;
    <bullet> Derelict Vessel and Marine Debris Removal (USCG, NOAA);
    <bullet> Scientific Research and Monitoring (NOAA);
    <bullet> Water quality management (revision of state water quality 
standards, issuance of National Pollutant Discharge Elimination System 
(NPDES) permits and Total Maximum daily load (TMDL) standards under the 
Clean Water Act and ecological risk assessments associated with 
pesticide registrations under the Federal Insecticide, Fungicide and 
Rodenticide Act) authorized by the Environmental Protection Agency 
(EPA);
    <bullet> Protected area management (development of management plans 
for national parks, marine sanctuaries, wildlife refuges, etc.) 
conducted by the National Park Service (NPS) and NOAA National Ocean 
Service (NOS);
    <bullet> Fishery management (development of fishery management 
plans under the Magnuson-Stevens Fishery Conservation and Management 
Act) conducted or approved by NMFS;
    <bullet> Aquaculture (development of aquaculture facilities) 
authorized by EPA and USACE, and funded by NMFS; and
    <bullet> Military activities (e.g., training exercises) conducted 
by DoD.
    Additionally, we considered the potential for oil and gas and 
renewable energy development activities to damage the critical habitat 
through various pathways in the Critical Habitat Report. These pathways 
include, but are not limited to, physical damage to coral reefs and 
colonized hardbottom by oil and gas platforms and ships and reduced 
water quality resulting from increased sedimentation and turbidity 
generated by oil and gas and renewable energy exploration and 
development activities. We considered potential effects of oil spills 
and USCG-led cleanup activities on the critical habitat in the section 
more broadly discussing derelict vessel and marine debris removal.
    There are no active oil and gas leases within the Straits of 
Florida Planning Area, where the Florida units are located, and the 
area is excluded from consideration for leasing for purposes of 
exploration, development, or production through June 30, 2032. In 
addition, neither Puerto Rico nor the USVI has any crude oil 
production, refining, or proved reserves.
    BOEM currently has no active offshore renewable energy leases in 
Florida, and the section 7 consultation record revealed no historical 
consultations related to renewable energy projects in Puerto Rico or 
the USVI. While the current Administration has announced a goal to 
deploy 17 gigawatts of offshore wind in the U.S. OCS by 2030, no 
potential lease sites are located offshore of Florida's Atlantic coast. 
A 2022 study published by the National Renewable Energy Laboratory 
found that wind has the potential to lower the cost of energy in Puerto 
Rico. However, the study excluded from consideration offshore wind 
energy development in potential use conflict areas, including the 
majority of waters comprising Nassau grouper critical habitat units 
around Puerto Rico. In addition, the timing of development of offshore 
wind energy projects in state and federal waters off of Puerto Rico is 
uncertain, and no specific offshore wind energy projects or sites have 
been identified for development. We therefore determined that no oil 
and gas or renewable energy activity within or affecting Nassau grouper 
critical habitat is anticipated over the next ten years.
    Also, given the nearly complete overlap between Nassau grouper 
critical habitat and existing critical habitat for acropora and 5 
Caribbean corals,* other than the intracoastal zone of Biscayne Bay 
(much of which is included in Biscayne National Park), any project 
modifications required to avoid destruction or adverse modification of 
Nassau grouper critical habitat by activities including, but not 
limited to, those associated with oil and gas and renewable energy 
development would likely already be required due to jeopardy/
destruction or adverse modification (DAM) determinations for listed 
species and/or existing critical habitat. Thus, we would expect that 
any potential incremental costs to oil and gas or renewable energy 
activities attributable to Nassau grouper critical habitat would be 
limited to the administrative costs of considering effects to the 
critical habitat in consultations that would occur absent the 
designation, and that Nassau grouper critical habitat would have 
negligible effect on BOEM activities.
---------------------------------------------------------------------------

    * The exceptions are the Bajo de Sico spawning site unit and a 
portion of the Grammanik Bank/Hind Bank spawning site in the U.S. 
Caribbean, and Biscayne Bay in Florida.
---------------------------------------------------------------------------

    Future consultations were projected based on the frequency and 
distribution of section 7 consultations conducted from 2011 to 2021, 
review of USACE permit applications over the same time frame, and 
outreach to Federal stakeholders. In the absence of other relevant 
information regarding future federal activities, we consider it a 
reasonable assumption that the breakdown of past consultations by type 
(into informal, formal, and programmatic consultations) and activity 
category (e.g., in-water and coastal construction, water quality 
management) from the previous 10 years coupled with information 
provided by federal stakeholders likely reflects the breakdown of 
future consultations. We accordingly assume that the number and type of 
activities occurring within or affecting Nassau grouper critical 
habitat will not change in the future.
    As discussed in more detail in section 10 of the Critical Habitat 
Report, all categories of activities identified as having the potential 
to affect the essential features also have the potential

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to affect Nassau grouper, which is listed as a threatened species, or 
other listed species or critical habitat. To estimate the economic 
impacts of critical habitat designation, our analysis compares the 
state of the world with and without the designation of critical 
habitat. The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already afforded the 
critical habitat as a result of the listing of Nassau grouper as 
threatened and as a result of other Federal, state, and local 
regulations or protections, including other species listings and 
critical habitat determinations. The ``with critical habitat'' scenario 
describes the state of the world with the critical habitat designation. 
The incremental impacts that will be associated specifically with the 
critical habitat designation are the difference between the two 
scenarios. Baseline protections exist in large areas of the 
designation. In particular, areas of Nassau grouper critical habitat 
overlap to varying degrees with the presence of other threatened or 
endangered species, including Nassau grouper, green sea turtle, 
loggerhead sea turtle, hawksbill sea turtle, corals, and smalltooth 
sawfish; and critical habitat designated for green, loggerhead, and 
hawksbill sea turtles and coral species. These areas already receive 
significant protections related to these listings and designations, and 
these protections may also protect the essential features of the Nassau 
grouper critical habitat (please refer to Critical Habitat Report, 
section 10). Therefore, we do not expect designation of critical 
habitat for the Nassau grouper to result in project modifications for 
any of the activities that may affect the critical habitat.
Administrative Section 7 Costs
    The effort required to address adverse effects to the proposed 
critical habitat is assumed to be the same, on average, across 
categories of activities. Informal consultations are expected to 
require comparatively low levels of administrative effort, while formal 
and programmatic consultations are expected to require comparatively 
higher levels of administrative effort. For all formal and informal 
consultations, we anticipate that incremental administrative costs will 
be incurred by NMFS, the consulting Federal action agencies, and, 
potentially, third parties. For programmatic consultations, we 
anticipate that costs will be incurred by NMFS and the consulting 
Federal action agencies. Incremental administrative costs per 
consultation effort are expected on average to be $13,000 for 
programmatic, $6,400 for formal consultations, and $3,100 for informal 
consultations (NMFS, 2023).
    We estimate the incremental administrative costs of section 7 
consultation by applying these per consultation costs to the forecasted 
number of consultations. We anticipate that there will be approximately 
11 programmatic consultations, 11 formal consultations, and 114 
informal consultations that will require incremental administrative 
effort. Incremental costs are expected to total approximately $440,000 
over the next 10 years (discounted at 7 percent), at an annualized cost 
of $62,000. We conservatively assume that there will be approximately 
eight re-initiations of existing consultations to address effects to 
Nassau grouper critical habitat. We anticipate the re-initiations to be 
on consultations related to fishery management, military, construction, 
and scientific research and monitoring activities.
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    In summary, significant baseline protections exist in the areas 
proposed for the Nassau grouper critical habitat. The incremental 
impacts for the

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proposed designation are projected to reflect the incremental 
administrative effort required for section 7 consultations to consider 
effects to the critical habitat. Taking into consideration several 
assumptions and uncertainties, total projected incremental costs are 
approximately $440,000 over the next ten years ($62,000 annualized), 
applying a discount rate of 7 percent. Notwithstanding the uncertainty 
underlying the projection of incremental costs, the results provide an 
indication of the potential activities that may be affected and a 
reasonable projection of future costs.

National Security Impacts

    Impacts to national security could occur if a designation triggers 
future ESA section 7 consultations because a proposed military activity 
``may affect'' the physical or biological feature(s) essential to the 
listed species' conservation. Interference with mission-essential 
training or testing or unit readiness could result if the DoD or USCG 
were required to modify or delay their actions to prevent adverse 
modification of critical habitat or implement Reasonable and Prudent 
Alternatives. Whether national security impacts result from the 
designation also depends on whether future consultations and associated 
project modifications and/or implementation of Reasonable and Prudent 
Measures and Terms and Conditions would otherwise be required due to 
potential effects to Nassau grouper or other ESA-listed species or 
designated critical habitat, regardless of the Nassau grouper critical 
habitat designation.
    As described previously, we identified DoD military operations as a 
category of activity that has the potential to affect the essential 
features of the designated critical habitat. However, for the actions 
that may affect Nassau grouper critical habitat, designating critical 
habitat for Nassau grouper would not result in incremental impacts 
beyond administrative costs because the consultations would otherwise 
be required to address effects to either the Nassau grouper or other 
listed species or the substrate feature of designated critical habitat 
for corals. In 2022, we requested descriptions and locations of any 
geographical areas owned or controlled by the DoD or the USCG that may 
overlap with the areas under consideration for critical habitat that 
they would like considered for exclusion due to impacts to national 
security. The USCG responded that maintenance and replacement of fixed 
Aids to Navigation (AToNs) may affect the proposed habitat by 
generating sedimentation of the seafloor surrounding piling or other 
foundations. USCG further indicated that use of floating AToNs may 
result in removal of the essential feature related to development, 
refuge, and foraging through chain scouring and placement of the 
sinker. However, USCG already implements measures to mitigate the 
impacts of AToN operations to corals, hardbottom, and seagrass, per the 
programmatic biological opinion on USCG's AToN program (NMFS, 2023). 
NMFS developed a conference opinion for USCG's ATON program (NMFS, 
2023) that considered proposed Nassau grouper critical habitat. NMFS 
anticipates adopting that conference opinion as the biological opinion 
once this rule is finalized. As part of that process, NMFS will 
consider whether and how changes in the final rule affect the 
determination in the conference opinion; however, NMFS does not 
anticipate USCG ATON actions in the additional areas designated in this 
final rule will result in destruction or adverse modification of Nassau 
grouper critical habitat in the action areas.
    The Navy requested that NMFS exclude areas around Naval Air Station 
Key West from the critical habitat designation under ESA section 
4(b)(2). However, the Navy's concerns have been addressed through the 
previously described INRMP exclusion. No areas managed by other DoD 
branches were identified as potentially of concern.

Other Relevant Impacts

    We identified three broad categories of other relevant impacts of 
this critical habitat designation: Conservation benefits, both to the 
species and to the ecosystem; impacts on governmental or private 
entities that are implementing existing management plans that provide 
benefits to the listed species; and educational and awareness benefits. 
Our Impacts Analysis discusses conservation benefits of designating the 
areas, and the benefits of conserving the species to society.
Conservation Benefits
    The primary benefit of critical habitat designation is the 
contribution to conservation and recovery. That is, in protecting the 
features essential to the conservation of the species, critical habitat 
directly contributes to the conservation and recovery of the species. 
This analysis contemplates two broad categories of conservation 
benefits of critical habitat designation:
    (1) Increased probability of conservation and recovery of the 
species, and
    (2) Ecosystem service benefits.
    The most direct benefits of the critical habitat designations stem 
from the enhanced probability of conservation and recovery of the 
species. From an economic perspective, the appropriate measure of the 
value of this benefit is people's ``willingness-to-pay'' for the 
incremental change. While the existing economics literature is 
insufficient to provide a quantitative estimate of the extent to which 
people value incremental changes in recovery potential, the literature 
does provide evidence that people have a positive preference for listed 
species conservation, even beyond any direct (e.g., recreation, such as 
viewing the species while snorkeling or diving) or indirect (e.g., 
fishing that is supported by the presence of healthy ecosystems) use 
for the species.
    In addition, designating critical habitat can benefit the 
ecosystem. Overall, coral reef and benthic ecosystems, including those 
comprising Nassau grouper critical habitat, provide important ecosystem 
services of value to individuals, communities, and economies. These 
include recreational opportunities (and associated tourism spending in 
the regional economy), habitat and nursery functions for recreationally 
and commercially valuable fish species, shoreline protection in the 
form of wave attenuation and reduced beach erosion, and climate 
stabilization via carbon sequestration. Critical habitat most directly 
influences the recovery potential of the species and protects ecosystem 
services through its implementation under section 7 of the ESA. Our 
analysis finds that the final rule is not anticipated to result in 
incremental project modifications. However, the inclusion of reefs and 
seagrasses as subcomponents of an essential feature of Nassau grouper 
critical habitat could increase awareness of the importance of these 
habitat features, which in turn could lead to additional conservation 
efforts.
    In addition, critical habitat designation may generate ancillary 
environmental improvements and associated ecosystem service benefits 
(i.e., to commercial fishing and recreational activities). While 
neither benefit can be directly monetized, existing information on the 
value of coral reefs provides an indication of the value placed on 
those ecosystems. For example, it is estimated that the top 1 meter of 
U.S. coral reefs prevents $2.6 billion in indirect economic effects 
(Reguero et al., 2021) per year, while the total value of direct 
economic effects has been estimated at roughly $1.7

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billion per year for reefs across Florida, Puerto Rico, and the U.S. 
Virgin Islands (Brander and Van Beukering, 2013).
Impacts to Governmental and Private Entities With Existing Management 
Plans Benefitting the Listed Species
    Among other relevant impacts of the critical habitat designations 
that we considered under section 4(b)(2) of the ESA are impacts on the 
efforts of private and public entities involved in management or 
conservation efforts benefiting listed species. In cases where there is 
a federal nexus (e.g., a federal grant or permit), critical habitat 
designation could necessitate consultation with NMFS to incrementally 
address the effects of the management or conservation activities on 
critical habitat. In such cases, these entities may have to allocate 
resources to fulfill their section 7 consultation obligations as third 
parties to the consultation--including the administrative effort of 
consultation and, potentially, modification of projects or conservation 
measures to avoid adverse modification to the critical habitat--that, 
absent critical habitat designation, would be applied to management or 
conservation efforts benefiting listed species. Thus, the potential for 
reallocation of these private and public entities' resources would be 
limited to the incremental administrative costs of section 7 
consultations that would occur absent Nassau grouper critical habitat. 
Therefore, we do not expect that designating critical habitat for the 
Nassau grouper would diminish private and public entities' ability to 
provide for the conservation of the Nassau grouper.
Education and Awareness Benefits
    The critical habitat designation could potentially have benefits 
associated with education and awareness. The potential for such 
benefits stems from three sources: (1) entities that engage in section 
7 consultation, including Federal action agencies and, in some cases, 
third party applicants; (2) members of the general public interested in 
conservation; and (3) state and local governments that take action to 
complement the critical habitat designation. Certain entities, such as 
applicants for particular permits, may alter their activities to 
benefit the essential features of the critical habitat because they 
were made aware of the critical habitat designation through the section 
7 consultation process. Similarly, Federal action agencies that 
undertake activities that affect the critical habitat may alter their 
activities to benefit the critical habitat. Members of the public 
interested in conservation also may adjust their behavior to benefit 
critical habitat because they learned of the critical habitat 
designation through outreach materials or the regulatory process. In 
our experience, designation raises the public's awareness that there 
are special considerations to be taken within the area identified as 
critical habitat. Similarly, state and local governments may be 
prompted to enact laws or rules to complement the critical habitat 
designations and benefit the listed species. Those laws would likely 
result in additional impacts of the designations. However, it is not 
possible to quantify the beneficial effects of the awareness gained 
through, or the impacts from state and local regulations resulting 
from, the critical habitat designation.

Exclusions Under Section 4(b)(2)

    We are not exercising our discretion to exclude any particular 
areas from designation based on economic, national security, and other 
relevant impacts. There are significant baseline protections that exist 
in the areas we are designating as the Nassau grouper critical habitat, 
and as a result, the incremental impacts of the designation are low and 
reflect the incremental administrative effort required for section 7 
consultations to consider the critical habitat. Taking into 
consideration several assumptions and uncertainties, the total 
projected incremental costs are approximately $440,000 over the next 10 
years ($62,000 annualized), applying a discount rate of 7 percent. 
Further, the analysis indicates that there is no particular area within 
the designated critical habitat units where these costs would be highly 
concentrated. Moreover, we anticipate that no particular industry would 
be disproportionately impacted. We are not excluding any areas on the 
basis of national security impacts as no national security concerns 
exist related to the critical habitat designation. We are not excluding 
any particular area based on other relevant impacts. Other relevant 
impacts include conservation benefits of the designation, both to the 
species and to the ecosystem. We expect that designation of critical 
habitat will support conservation and recovery of the species. Future 
section 7 consultations on some of the activities that may affect 
Nassau grouper will also consider effects to the critical habitat. 
While we do not expect these consultations to result in additional 
conservation measures, the additional consideration of effects to the 
critical habitat will increase overall awareness of the importance of 
Nassau grouper and its habitat. For these reasons, we are not excluding 
any areas as a result of these other relevant impacts.

Critical Habitat Designation

    Our critical habitat regulations state that we will show critical 
habitat on a map with more detailed information discussed in the 
preamble of the critical habitat rulemaking and made available from 
NMFS (50 CFR 424.12(c)). When several habitats, each satisfying the 
requirements for designation as critical habitat, are located in 
proximity to one another, an inclusive area may be designated as 
critical habitat (50 CFR 424.12(d)). The habitat containing the 
essential features and that may require special management 
considerations or protection is marine habitat of particular benthic 
composition and structure in the Atlantic Ocean and Caribbean Sea. The 
boundaries of each specific area were determined by the presence of the 
essential features and Nassau grouper, as described earlier within this 
document. Because the quality of the available GIS data varies based on 
collection method, resolution, and processing, the critical habitat 
boundaries are defined by the maps in combination with the textual 
information included in the regulation. This textual information 
clarifies and refines the location and boundaries of each specific 
area.

Occupied Critical Habitat Unit Descriptions

    Based on the available data, we identified specific areas that 
contain the essential features. The specific areas or ``units'' can 
generally be grouped as the: Navassa Island unit, Puerto Rico units, 
USVI units, Florida units, and spawning units. The units and their 
general location are listed here (refer to the maps and regulation text 
for more details).
    Navassa Island Unit. Waters surrounding Navassa Island. Area = 
2.468 sq. km.
    Puerto Rico Unit 1--Mona Island and Monito. Waters between the 
shoreline out to the 50 m isobaths around Mona and Monito Islands. Area 
= 30.65 sq. km.
    Puerto Rico Unit 2--Desecheo Island. All waters between the 
shoreline out to the 50 m isobaths around Desecheo Island. Area = 4.28 
sq. km.
    Puerto Rico Unit 3--Southwest. Waters off the southwest coast of 
the Puerto Rico main island. Area = 112.39 sq. km.
    Puerto Rico Unit 4--Northeast. Waters off the northeast coast of 
the Puerto Rico main island. Area = 48.75 sq. km.

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    Puerto Rico Unit 5--Vieques Island. Waters off the west and 
northeast, east, and southeast coasts of the island. Area = 9.49 sq. 
km.
    Puerto Rico Unit 6--Culebra/Culebrita Islands. The Culebra area 
consists of waters off the southeastern Culebra coastline. The 
Culebrita area consists of waters off the western and southern coasts 
of Culebrita Island. Area = 4.15 sq. km.
    United States Virgin Island Unit 1--St Thomas. Waters off the east 
coast of St. Thomas Island and waters off the southwest, south, and 
southeast coasts of Water Island. Area = 9.18 sq. km.
    United States Virgin Island Unit 2--St. John. Waters off the east 
coast of St. John Island. Area = 6.55 sq. km.
    United States Virgin Island Unit 3--St. Croix. Waters off the east 
end of St. Croix Island and waters off the north coast of Buck Island. 
Area = 50.35 sq. km.
    Florida Unit 1--Biscayne Bay/Key Largo. Waters south of 
Rickenbacker Causeway, including portions of waters from the coastline 
into Biscayne Bay, and waters off the eastern coastline to 
80[deg]29'21'' W, 25[deg]01'59'' N. Area = 1279.7 sq. km.
    Florida Unit 2--Marathon. Waters off the southern shoreline 
approximately between Knights Key to 80[deg]55'51''W, 24[deg]46'26'' N. 
Area = 172.38 sq. km.
    Florida Unit 3--Big Pine Key to Geiger Key. Waters off the south 
side of coastline and US 1 from approximately Geiger Key to Big Pine 
Key. Area = 372.37 sq. km.
    Florida Unit 4--Key West. Shoal waters south of Woman Key. Area = 
127.09 sq. km.
    Florida Unit 5--New Ground Shoal. New Ground Shoal waters. Area = 
31.04 sq. km.
    Florida Unit 6--Halfmoon Shoal. Halfmoon Shoal waters. Area = 33.62 
sq. km.
    Florida Unit 7--Dry Tortugas. Waters encompassing Loggerhead Key 
and waters surrounding Garden Key and Bush Key. Area = 4.43 sq. km.
    Spawning Site Unit 1--Bajo de Sico (Puerto Rico). All waters 
encompassed by the 100 m isobath within the Bajo de Sico spawning area, 
which we define here as being bounded by the following coordinates: A) 
67[deg]26'13'' W, 18[deg]15'26'' N, B) 67[deg]23'08'' W, 18[deg]15'26'' 
N, C) 67[deg]23'08'' W, 18[deg]12'56'' N, and D) 67[deg]26'13'' W, 
18[deg]12'56'' N. Area = 10.74 sq. km.
    Spawning Site Unit 2--Grammanik Bank and Hind Bank (St. Thomas, 
USVI). All waters which make up the Hind Bank and the Grammanik Bank, 
interconnecting waters between these banks, and waters extending out to 
the 200 fathom line directly south from Grammanik Bank. Area = 59.69 
sq. km.
    Spawning Site Unit 3--Riley's Hump (Dry Tortugas, Florida). All 
waters encompassing Riley's Hump at 83[deg]6'31'' W, 24[deg]29'42'' N 
out to the 35 m isobath on the north, west, and east side of the hump, 
extending out to the 50 m isobath on the south side of the hump to 
include the escarpment on the southern face of the bank. Area = 15.35 
sq. km.

Effects of Critical Habitat Designations

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to ensure that any action authorized, funded, or carried out by 
the agency is not likely to jeopardize the continued existence of any 
threatened or endangered species or destroy or adversely modify 
designated critical habitat. Federal agencies are also required to 
confer with NMFS regarding any actions likely to jeopardize the 
continued existence of any species for listing under the ESA, or likely 
to destroy or adversely modify critical habitat, pursuant to section 
7(a)(4).
    A conference involves informal discussions in which NMFS may 
recommend conservation measures to minimize or avoid adverse effects 
(50 CFR 402.02). The discussions and conservation recommendations are 
documented in a conference report provided to the Federal agency (50 
CFR 402.10(e)). If requested by the Federal agency and deemed 
appropriate by NMFS, the conference may be conducted following the 
procedures for formal consultation in 50 CFR 402.14, and NMFS may issue 
an opinion at the conclusion of the conference. This opinion may be 
adopted as the biological opinion when the species is listed or 
critical habitat designated if no significant new information or 
changes to the action alter the content of the opinion (50 CFR 
402.10(d)).
    When a species is listed or critical habitat is designated, Federal 
agencies must consult with NMFS on any agency actions that may affect a 
listed species or its critical habitat. During the consultation, we 
evaluate the agency action to determine whether the action may 
adversely affect listed species or critical habitat and issue our 
findings in a letter of concurrence or in a biological opinion. If we 
conclude in the biological opinion that the action would likely result 
in the destruction or adverse modification of critical habitat, we 
would also identify any reasonable and prudent alternatives to the 
action. Reasonable and prudent alternatives are defined in 50 CFR 
402.02 as alternative actions identified during formal consultation 
that can be implemented in a manner consistent with the intended 
purpose of the action, that can be implemented consistent with the 
scope of the Federal agency's legal authority and jurisdiction, that 
are economically and technologically feasible, and that we believe 
would avoid the likelihood of destruction or adverse modification of 
critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where:
    (1) Critical habitat is subsequently designated that may be 
affected by the identified action; or
    (2) New information or changes to the action may result in effects 
to critical habitat in a manner or to an extent not previously 
considered.
    Consequently, some Federal agencies may request re-initiation of 
consultation or conference with NMFS on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities subject to the ESA section 7 consultation process are 
those activities authorized, funded, or carried out by Federal action 
agencies, whether on Federal, state, or private lands or waters. ESA 
section 7 consultation would not be required for Federal actions that 
do not affect listed species or critical habitat and for actions that 
are not federally funded, authorized, or carried out.

Activities That May Be Affected

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate in any proposed or final regulation to designate critical 
habitat those activities, whether public or private, that may adversely 
modify such habitat or that may be affected by such designation. As 
described in our Critical Habitat Report, a wide variety of Federal 
activities may require ESA section 7 consultation because they may 
affect the essential features of Nassau grouper critical habitat. 
Specific future activities will need to be evaluated with respect to 
their potential to destroy or adversely modify critical habitat, in 
addition to their potential to affect and jeopardize the continued 
existence of listed species. For example, activities may adversely 
modify the substrate portion of the development essential feature by 
removing or altering the substrate. These activities, whether public or 
private, would require ESA section 7

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consultation when they are authorized, funded, or carried out by a 
Federal agency. A private entity may also be affected by these critical 
habitat designations if it is a proponent of a project that requires a 
Federal permit or receives Federal funding. Categories of activities 
that may be affected through section 7 consultation by designating 
Nassau grouper critical habitat include coastal and in-water 
construction, protected area management, fishery management, scientific 
research and monitoring, derelict vessel and marine debris removal, 
aquaculture, water quality management, and military activities.
    Questions regarding whether specific activities may constitute 
destruction or adverse modification of critical habitat should be 
directed to us (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
    Identifying the extent or severity of an impact on the essential 
features at which the conservation value of habitat for the listed 
species may be affected is inherently complex. Consequently, the actual 
responses of the critical habitat to effects to the essential features 
resulting from future Federal actions will be case and site-specific, 
and predicting such responses will require case and site-specific data 
and analyses.

Information Quality Act and Peer Review

    The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to be in compliance with 
applicable information quality guidelines implementing the Information 
Quality Act (Section 515 of Pub. L. 106-554). On December 16, 2004, OMB 
issued its Final Information Quality Bulletin for Peer Review 
(Bulletin). The Bulletin was published in the Federal Register on 
January 14, 2005 (70 FR 2664), and all of the requirements were 
effective by June 16, 2005. The primary purpose of the Bulletin is to 
improve the quality and credibility of scientific information 
disseminated by the Federal government by requiring peer review of 
``influential scientific information'' and ``highly influential 
scientific assessments'' prior to public dissemination. ``Influential 
scientific information'' is defined as information that the agency 
reasonably can determine will have or does have a clear and substantial 
impact on important public policies or private sector decisions. The 
Bulletin provides agencies broad discretion in determining the 
appropriate process and level of peer review of influential scientific 
information. Stricter standards were established for the peer review of 
highly influential scientific assessments, defined as information whose 
dissemination could have a potential impact of more than $500 million 
in any one year on either the public or private sector or for which the 
dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.
    The information in the Critical Habitat Report supporting this 
final critical habitat rule is considered influential scientific 
information and subject to peer review. To satisfy our requirements 
under the OMB Bulletin, we obtained independent peer review of the 
information used to draft this report and incorporated the peer review 
comments into the draft Critical Habitat Report prior to dissemination 
of the Final Critical Habitat Report and completion of this rule. 
Comments received from peer reviewers are available on our website at 
http://www.cio.noaa.gov/services_programs/prplans/ID346.html.

Classification

Takings (Executive Order 12630)

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of private property. A taking of property 
includes actions that result in physical invasion or occupancy of 
private property and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
this final rule would not have significant takings implications. A 
takings implication assessment is not required. These designations 
would affect only Federal agency actions (i.e., those actions 
authorized, funded, or carried out by Federal agencies). Therefore, the 
critical habitat designations do not affect landowner actions that do 
not require Federal funding or permits. We anticipate that the 
designation of critical habitat for the Nassau grouper will result in 
no section 7 consultations and no restrictions on federally permitted 
landowner actions beyond those that would already be required due to 
pre-existing protections to ESA-listed species and designated critical 
habitat. The only incremental costs incurred by landowners would be 
minor administrative costs associated with considering effects of the 
action on Nassau grouper critical habitat in section 7 consultations 
that would be required absent the designation. Thus, Nassau grouper 
critical habitat is not expected to affect land values or use.

Regulatory Planning and Review (Executive Order 12866)

    This rule has been determined to be significant for purposes of 
E.O. 12866, as amended by Executive Order 14094. Executive Order 14094, 
which amends E.O. 12866 and reaffirms the principles of E.O. 12866 and 
E.O 13563, states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and be consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.
    Based on the economic impacts evaluation in the Critical Habitat 
Report, total incremental costs resulting from the critical habitat are 
approximately $440,000 over the next 10 years ($62,000 annualized), 
applying a discount rate of 7 percent. These total impacts include the 
additional administrative efforts necessary to consider critical 
habitat in section 7 consultations. Overall, economic impacts are 
expected to be small and to be largely associated with the 
administrative costs borne by Federal agencies.

Federalism (Executive Order 13132)

    Pursuant to the Executive Order on Federalism, E.O. 13132, we 
determined that this final rule does not have significant federalism 
effects and that a federalism assessment is not required. The 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. As a result, this rule does not 
have substantial direct effects on the States or territories, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in E.O. 13132. State or local governments may 
be indirectly affected by this critical habitat designation if they 
require Federal funds or formal approval or authorization from a 
Federal agency as a prerequisite to conducting an action. In these 
cases, the State or local government agency may participate in the ESA 
section 7

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consultation as a third party. One of the key conclusions of the 
economic impact analysis is that the incremental impacts of the 
critical habitat designation will likely be limited to additional 
administrative costs to NMFS and Federal agencies stemming from the 
need to consider impacts to critical habitat as part of the forecasted 
section 7 consultations. The designation of critical habitat is not 
expected to have substantial indirect impacts on State or local 
governments.

Energy Supply, Distribution, and Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking an action expected to lead to the 
promulgation of a final rule or regulation that is a significant 
regulatory action under E.O. 12866 and is likely to have a significant 
adverse effect on the supply, distribution, or use of energy. OMB 
Guidance on Implementing E.O. 13211 (July 13, 2001) states that 
significant adverse effects could include any of the following outcomes 
compared to a world without the regulatory action under consideration: 
(1) reductions in crude oil supply in excess of 10,000 barrels per day; 
(2) reductions in fuel production in excess of 4,000 barrels per day; 
(3) reductions in coal production in excess of 5 million tons per year; 
(4) reductions in natural gas production in excess of 25 million cubic 
feet per year; (5) reductions in electricity production in excess of 1 
billion kilowatt-hours per year or in excess of 500 megawatts of 
installed capacity; (6) increases in energy use required by the 
regulatory action that exceed any of the thresholds above; (7) 
increases in the cost of energy production in excess of 1 percent; (8) 
increases in the cost of energy distribution in excess of 1 percent; or 
(9) other similarly adverse outcomes. A regulatory action could also 
have significant adverse effects if it: (1) adversely affects in a 
material way the productivity, competition, or prices in the energy 
sector; (2) adversely affects in a material way productivity, 
competition or prices within a region; (3) creates a serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency regarding energy; or (4) raises novel legal or policy 
issues adversely affecting the supply, distribution or use of energy 
arising out of legal mandates, the President's priorities, or the 
principles set forth in E.O. 12866 and 13211.
    As discussed above and in the Critical Habitat Report, the critical 
habitat designations are not expected to affect oil and gas or 
renewable energy production. Therefore, this rule will not have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, we have not prepared a Statement of Energy Effects.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    We prepared a final regulatory flexibility analysis (FRFA) pursuant 
to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et 
seq.), as amended by the Small Business Regulatory Enforcement Fairness 
Act (SBREFA) of 1996. The FRFA analyzes the impacts to small entities 
that may be affected by the critical habitat designations, and is 
included as Appendix B of the Critical Habitat Report (https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf). We received no comments on our initial regulatory 
flexibility analysis (IRFA). Results of the FRFA are summarized below.
    Our FRFA uses the best available information to identify the 
potential impacts of designating critical habitat on small entities. 
However, a number of uncertainties complicate quantification of these 
impacts. These include (1) the fact that the manner in which these 
potential impacts will be allocated between large and small entities is 
unknown; and (2) uncertainty regarding the potential effects of 
critical habitat designation, which requires some categories of 
potential impacts be described qualitatively. Absent specific knowledge 
regarding which small entities may be involved in consultations with 
NMFS over the next 10 years, this analysis relies on industry- and 
location-specific information on small businesses with North American 
Industry Classification System codes that were identified as relevant 
to the major activity categories considered in the economic analysis 
and which operate within counties or territories that share a coastline 
with the critical habitat. Activities considered in the economic 
analysis and the FRFA include in-water and coastal construction, water 
quality management, protected area management, fishery management, 
aquaculture, military, scientific research and monitoring, and derelict 
vessel and marine debris removal. Based on the relevant consultation 
history and forecast of future activities that may affect the 
determined critical habitat, only in-water and coastal construction 
activities are anticipated to involve third parties that qualify as 
small entities. Given the uncertainty regarding the proportion of 
consultations on construction activities that will involve third 
parties, the analysis conservatively assumes that all future 
consultations on these activities will involve third parties and that 
all of these third parties will be small entities. All of the counties 
and territories that share a coastline with the designated critical 
habitat have populations of more than 50,000, so no impacts to small 
governmental jurisdictions are expected as a result of the critical 
habitat designation.
    The maximum total annualized impacts to small entities are 
estimated to be $4,221, which represents approximately 7 percent of the 
total quantified incremental impacts forecasted to result from the 
final rule. This estimate reflects incremental administrative costs, 
such as written and verbal communication with NMFS and other Federal 
action agencies, at a rate of $100/hour and ranging from approximately 
1.5 hours providing technical assistance to approximately 10.25 hours 
engaging in formal consultation (see Exhibit C.1 and accompanying text, 
Summary of Estimated Impacts to Small Entities by Activity Type, in 
Appendix C of the Critical Habitat Report, https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf). These impacts are anticipated to be borne by the 
small entities in the construction industry that obtain funds or 
permits from Federal agencies that will consult with NMFS regarding 
Nassau grouper critical habitat in the next 10 years.
    Given the uncertainty regarding which small entities in a given 
industry will need to consult with NMFS, the analysis estimates impacts 
to small entities under two different scenarios. These scenarios are 
intended to reflect the range of uncertainty regarding the number of 
small entities that may be affected by the designation and the 
potential impacts of critical habitat designation on their annual 
revenues. Under both scenarios, the FRFA assumes that entities 
conducting in-water and coastal construction activities in the Florida 
units are limited to those entities located in Miami-Dade and Monroe 
Counties, entities conducting in-water and coastal construction 
activities in the Puerto Rico units are limited to those entities 
located in Puerto Rico, and entities conducting in-water and coastal 
construction activities in the USVI units are limited to those entities 
located in the USVI. Estimated annualized impacts for both scenarios 
are calculated by multiplying the forecasted number of annual 
consultations involving third parties by the administrative costs per

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consultation estimated to be borne by small entities. Absent specific 
knowledge regarding the timing of future consultations involving third 
parties, the FRFA further assumes under both scenarios that an equal 
number of such consultations will occur each year over the next ten 
years.
    Under Scenario 1, the analysis assumes that all third parties 
involved in future consultations are small and that incremental impacts 
are distributed evenly across all of these entities. For the Florida 
units, where we estimate approximately 400 small entities participate 
in the in-water and coastal construction industry (see Exhibit B-1 in 
Appendix B of the Critical Habitat Report, https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf), Scenario 1 accordingly reflects a high estimate of 
the number of potentially affected small entities (6.4) and a low 
estimate of the potential effect in terms of percent of revenue. The 
assumption under Scenario 1 that 6.4 small entities will be subject to 
consultation annually reflects the forecast that 6.4 consultations will 
occur annually on in-water and coastal construction activities 
involving third parties. This assumes that each consultation within the 
in-water and coastal construction industry involves a unique small 
entity. This scenario, therefore, may overstate the number of small 
entities based in Miami-Dade and Monroe counties that are likely to be 
affected by the rule and understate the revenue effect. Scenario 1 also 
assumes that each consultation within the in-water and coastal 
construction industry in the Puerto Rico and USVI units involves a 
unique small entity. For the Puerto Rico units, because section 7 
consultation on construction activities is anticipated to occur at a 
rate of 0.8 per year, or eight consultations over 10 years, we assume 
that 0.8 small entities will be impacted per year. Similarly, because 
section 7 consultation on construction activities affecting the USVI 
units is anticipated to occur at a rate of 0.8 per year, or eight 
consultations over 10 years, we assume that 0.8 USVI-based small 
entities will be impacted per year. Therefore, Scenario 1 does not 
yield the same overstatement of the number of small entities likely to 
be affected (unless the third party entities involved in the 
consultations on the construction activities in Puerto Rico and USVI 
are not small entities) or the same understatement of the revenue 
effect for these jurisdictions. The analysis anticipates that, across 
the three jurisdictions where there are small entities that are assumed 
to conduct in-water and coastal construction, approximately eight small 
entities will incur $4,221 in annualized costs under Scenario 1, 
including $527 in costs to Florida-based small entities, $513 in costs 
to Puerto Rico-based small entities, and $549 in costs to USVI-based 
small entities. Annualized impacts of the rule are estimated to make up 
less than 1 percent of average annual revenues of approximately $1.31 
million for each affected small entity (see Exhibit B-1 in Appendix B 
of the Critical Habitat Report, https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf). This percentage 
would be higher for a small entity with annual revenues lower than the 
average of annual revenues of all potentially impacted small entities, 
and lower for a small entity with annual revenues higher than the 
average of annual revenues of all potentially impacted small entities.
    Under Scenario 2, the analysis assumes that all third parties 
participating in future consultations are small and that costs 
associated with each consultation action are borne each year by a 
single small entity within an industry. This method likely understates 
the number of small entities affected and overstates the likely impacts 
on an entity for the Florida units. As such, this method arrives at a 
low estimate of potentially affected entities in Florida units and a 
high estimate of potential effects on revenue, assuming that quantified 
costs represent a complete accounting of the costs likely to be borne 
by private entities. Under Scenario 2, $3,379 in annualized impacts 
would be borne by a single small entity in Florida. We maintain the 
assumption in Scenario 1 that 0.8 small entities per year bear the 
third party costs of consultation in Puerto Rico and 0.8 small entities 
per year bear the third party costs of consultation in USVI. This 
assumption reflects our forecast of eight consultations on construction 
projects over 10 years in both Puerto Rico and USVI. This scenario 
forecasts that annualized impacts to single entities in both Puerto 
Rico and USVI would be $513 and $549, respectively. Though this 
scenario almost certainly overstates the costs borne by a single small 
entity in Florida, the impact is nonetheless expected to represent less 
than 1 percent of the average annual revenues for the single entity. 
Impacts to single small entities in Puerto Rico and USVI are also 
anticipated to be less than 1 percent of average annual revenues. As 
with Scenario 1, this percentage would be higher for a small entity 
with annual revenues lower than the average of annual revenues of all 
potentially impacted small entities, and lower for a small entity with 
annual revenues higher than the average of annual revenues of all 
potentially impacted small entities.
    While these scenarios present a range of potentially affected 
entities and the associated revenue effects in Florida, our analysis 
demonstrates that the greatest potential revenue effect is less than 1 
percent across scenarios and jurisdictions. Moreover, although we 
cannot definitively determine the numbers of small and large entities 
that may be affected by this final rule, there is no indication that 
affected project applicants would be only small entities or mostly 
small entities. It is unclear whether small entities would be placed at 
a competitive disadvantage compared to large entities.
    No Federal laws or regulations duplicate or conflict with this 
final rule. However, other aspects of the ESA may overlap with the 
critical habitat designations. For instance, listing of the Nassau 
grouper under the ESA requires Federal agencies to consult with NMFS to 
ensure against jeopardy to the species. Overlap of the presence of 
other ESA-listed species, including listed corals, and coral critical 
habitat with the areas designated as critical habitat protects the 
essential features of the critical habitat to the extent that projects 
or activities that may adversely affect the critical habitat also pose 
a threat to the listed species or to coral critical habitat. Several 
fishery management plans, developed under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act, serve to 
prevent overfishing of Nassau grouper prey and promote the spawning, 
breeding, feeding, and growth to maturity of reef fish such as the 
Nassau grouper. Overlap of the final Nassau grouper critical habitat 
with several Federal protected areas affords the critical habitat 
extensive protections against potentially damaging activities. Some of 
these consultations on activities associated with these protections 
will need to be reviewed to consider potential effects to Nassau 
grouper critical habitat.
    The RFA requires consideration of alternatives to the final rule 
that would minimize significant economic impacts to small entities. We 
considered the following alternatives when developing the final 
critical habitat rule.

Alternative 1: No Action Alternative

    Under this status quo alternative, we would not designate critical 
habitat for

[[Page 154]]

the Nassau grouper. Conservation and recovery of the listed species 
would depend exclusively upon the protection provided under the 
``jeopardy'' provisions of section 7 of the ESA. Under the status quo, 
there would be no increase in the number of ESA consultations in the 
future that would not otherwise be required due to the listing of the 
Nassau grouper. However, we have determined that the physical and 
biological features forming the basis for our critical habitat 
designation are essential to the Nassau grouper's conservation, and 
conservation of the species will not succeed without these features 
being available. Thus, the lack of protection of the critical habitat 
features from adverse modification could result in continued declines 
in abundance of Nassau grouper, and loss of associated economic and 
other values the species provides to society, such as commercial diving 
services. Small entities engaged in industries that depend on the 
presence of Nassau grouper or elements of the species' critical 
habitat, particularly coral reefs, would be adversely affected by 
continued declines in the Nassau grouper. Thus, the no action 
alternative is not necessarily a ``no cost'' alternative for small 
entities. Moreover, because the ESA requires designation of critical 
habitat to the maximum extent prudent and determinable, and in this 
case critical habitat is both prudent and determinable, this option 
would not be legally viable under the ESA.

Alternative 2: Preferred Alternative

    Under this alternative, the areas designated are waters from the 
shoreline to depths ranging from 2 m to 30 m in seven units in Florida, 
six units in Puerto Rico, three units in USVI, and one unit at Navassa 
Island; and in deeper, offshore waters up to 200 fathoms (366 m) deep 
off the Riley's Hump, Bajo de Sico, Grammanik, and Hind Banks spawning 
sites. An analysis of the costs and benefits of the preferred 
alternative designation is presented in Section 10.1 of the Critical 
Habitat Report. Relative to the no action alternative, this alternative 
will likely result in an increase in administrative costs of section 7 
consultations that would already occur absent designation. We have 
determined that no categories of activities would require consultation, 
and no project modifications would be required, in the future solely 
due to this rule and the need to prevent adverse modification of the 
designated critical habitat. However, due to the protections afforded 
the essential features of the designated critical habitat under this 
alternative, it is likely that consultations on future Federal actions 
within those categories of activities will require additional 
administrative effort to address specific impacts to Nassau grouper 
critical habitat. This additional administrative effort would be an 
incremental impact of this rule. Consultation costs associated with 
those projects with larger or more diffuse action areas, i.e., projects 
that may affect a wider range of listed species or critical habitats, 
would likely be largely coextensive with listings or other regulatory 
requirements.
    The preferred alternative was selected because it best implements 
the critical habitat provisions of the ESA by including the well-
defined environmental features that we can clearly state are essential 
to the species' conservation, and because this alternative would reduce 
the economic impacts on entities relative to an alternative that 
encompasses a larger geographical area (see Alternative 3). Also, as 
noted above, Alternative 1, would fail to meet statutory requirements 
for designation of critical habitat; and, as described below, 
Alternative 3, would not adequately reflect the best available science 
and our consideration of economic impacts.

Alternative 3: Different Geographic Boundaries

    We considered a third alternative that would have delineated the 
designation for all nearshore units containing the development, refuge, 
and foraging essential feature based a single depth contour of 30 m. We 
evaluated this alternative based on our experience with the 2008 
Acropora critical habitat designation, which created a single 
designation for both acroporid corals species from 0 to 30 m depth, 
generally, and to ensure inclusion across units of areas where the 
growth and development essential feature is abundant. However, the 
areas in which the development, refuge, and foraging essential feature 
is sufficiently abundant and contiguously located to appreciably 
promote conservation of the species comprise variable depth swaths 
across units. Under Alternative 3, a larger number of future Federal 
activities could affect the Nassau grouper critical habitat and trigger 
the need for ESA section 7 consultation, resulting in higher 
incremental administrative costs compared to the preferred alternative. 
Thus, we rejected this alternative because, relative to the preferred 
alternative, it would likely increase incremental costs of the final 
rule to small entities without incrementally promoting conservation of 
the species.
    In the final rule, we selected Alternative 2 because it provides 
for the conservation of the species while reducing the economic, 
national security, and other relevant impacts on affected entities.

Coastal Zone Management Act

    We have determined that this action will have no reasonably 
foreseeable effects on the enforceable policies of approved coastal 
zone management plans in Florida, Puerto Rico, and USVI.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new or revised collection of 
information requirements. This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. Therefore, the Paperwork Reduction Act 
does not apply.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    This rule will not produce a Federal mandate. The designation of 
critical habitat does not impose a legally-binding duty on non-Federal 
government entities or private parties. The only regulatory effect is 
that Federal agencies must ensure that their actions are not likely to 
destroy or adversely modify critical habitat under section 7 of the 
ESA. Non-Federal entities that receive Federal funding, assistance, 
permits or otherwise require approval or authorization from a Federal 
agency for an action may be indirectly impacted by the designation of 
critical habitat, but the Federal agency has the legally binding duty 
to avoid destruction or adverse modification of critical habitat. We do 
not anticipate that this rule will significantly or uniquely affect 
small governments. Therefore, a Small Government Action Plan is not 
required.

Consultation and Coordination With Indian Tribal Governments (Executive 
Order 13175)

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal government.
    This relationship has given rise to a special Federal trust 
responsibility involving the legal responsibilities and obligations of 
the United States toward Indian Tribes and with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. 
Pursuant to these authorities, lands have been

[[Page 155]]

retained by Indian Tribes or have been set aside for tribal use. These 
lands are managed by Indian Tribes in accordance with tribal goals and 
objectives within the framework of applicable treaties and laws. 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the Federal government in 
matters affecting tribal interests.
    In developing this rule, we reviewed maps and did not identify any 
areas designated as critical habitat that overlap with tribal lands, 
nor do we anticipate impacts on tribal fisheries as a result of these 
critical habitat designations. Based on this, we found the critical 
habitat designations for Nassau grouper do not have tribal 
implications.

Environmental Justice and Racial Equity (E.O.s 12898, 14096, 14019, 
13985)

    The designation of critical habitat is not expected to have a 
disproportionately high effect on minority populations or low-income 
populations. The purpose of this rule is to protect and conserve ESA-
listed species through the designation of critical habitat and is 
expected to help promote a healthy environment; thus, we do not 
anticipate minority populations or low-income populations to experience 
disproportionate and adverse human health or environmental burdens. The 
designation of critical habitat is not expected to disproportionately 
affect minority populations, low-income populations, or populations 
otherwise adversely affected by persistent poverty or inequality. 
Further, it is not expected to create any barriers to opportunity for 
underserved communities. The proposed rule was widely distrusted, 
including to the affected States and territorial governments. We did 
not receive any public comment suggesting the designation would result 
in effects these communities.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Website at https://www.fisheries.noaa.gov/species/nassau-grouper#conservation-management and is available upon request from NMFS 
(see ADDRESSES).

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 226

    Endangered and threatened species.

Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NOAA amends 50 CFR parts 
223 and 226 as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, amend the table in paragraph (e) by revising the 
entry under the ``Fishes'' subheading for ``Grouper, Nassau'' to read 
as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Species \1\
---------------------------------------------------------------------------------------  Citation(s) for listing
                                                                Description of listed       determination(s)         Critical habitat        ESA rules
             Common name                  Scientific name               entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Grouper, Nassau.....................  Epinephelus striatus...  Entire species.........  81 FR 42268, June 29,     [Insert 226.231]......              NA
                                                                                         2016.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *

PART 226--DESIGNATED CRITICAL HABITAT

0
3. The authority citation for part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.


0
4. Add Sec.  226.231 to read as follows:


Sec.  226.231  Critical habitat for the Nassau grouper.

    Critical habitat is designated in the following state and 
territories as depicted in the maps below and described in paragraphs 
(a) through (d) of this section. The maps as clarified by the textual 
descriptions in this section are the definitive sources for determining 
the critical habitat boundaries.
    (a) Critical habitat boundaries. Except as noted in paragraph (c) 
of this section, critical habitat is defined as:
    (1) Navassa Island--All waters surrounding Navassa Island, from the 
shoreline to the 30 m isobath.
    (2) Puerto Rico Unit 1--Isla de Mona and Monito--All waters 
surrounding the islands of Mona and Monito from the shoreline to the 50 
m isobath.
    (3) Puerto Rico Unit 2--Desecheo Island--All waters surrounding the 
island of Desecheo from the shoreline to the 50 m isobath.
    (4) Puerto Rico Unit 3--Southwest--All waters from the southwestern 
shoreline of Puerto Rico, between Playa Tres Tubos just south Mayaguez 
and Punta Ballena in Guanica, extending offshore to depths of about 10 
m and, near La Parguera, to depths of about 15 m.
    (5) Puerto Rico Unit 4--Northeast--All waters from the northeastern 
shoreline of Puerto Rico out to depths

[[Page 156]]

of about 10 m between Cabeza Chiquita and Punta Lima.
    (6) Puerto Rico Unit 5--Vieques Island--There are two areas that 
make up this unit. First, all waters from the southwestern shoreline 
out to the inner reef in depths of about 2 m between Punta Boca 
Quebrada and Punta Vaca. Second, all waters from the southeastern and 
northeastern shorelines out to the inner reef in depths of about 2 m 
between Punta Mulas and Ensenada Honda near Cayo Jalovita.
    (7) Puerto Rico Unit 6--Isla de Culebra--There are two areas that 
make up this unit. First, all waters from the southeastern shoreline of 
Isla de Culebra out to the reef ledge in depths of about 15 m between 
Punta del Soldado and Cabeza de Perro, excluding the bays of Puerto del 
Manglar and Ensenada Honda. Second, all waters from the southern 
shoreline of Isla Culebrita out to the nearshore reef in depths of 
about 5 m between the western point of the island and Punta del Este.
    (8) United State Virgin Islands Unit 1--St. Thomas--There are two 
areas that make up this unit. First, all waters off the southeast end 
of St. Thomas between Stalley Bay and Cabrita Point out to the reef 
ledge in depths of about 15 m and surrounding Great St. James, Little 
St. James, and Dog Islands. Second, all waters on the south side of 
Water Island from the shoreline out to the coral reef in depths of 
about 5 m between Druif Point and the south end of Sand Bay.
    (9) United States Virgin Islands Unit 2--St. John--All waters on 
the east end of St. John from the shoreline out to the inner coral reef 
in depths of about 2 m between White Point on the south coast and 
Leinster Point on the north coast.
    (10) United States Virgin Islands Unit 3--St. Croix--There are two 
areas that make up this unit. First, all waters on the east end of St. 
Croix from the shoreline to the outer coral reef edge in depths of 
about 10 m on the north coast and 15 m on the eastern point and south 
coast between Batiste Point and Pelican Cove Beach, excluding the 
Christiansted navigation channel. Second, all waters on the north side 
of Buck Island between the shoreline and the coral reef in depths of 
about 5 m.
    (11) Florida Unit 1--Biscayne Bay/Key Largo--All waters of Biscayne 
Bay (bounded on the north by the Rickenbacker Causeway), Card Sound 
(bounded on the south by Card Sound Road), and the Atlantic Ocean out 
to the coral reef and hardbottom in depths of about 20 m between 
Stiltsville, south of Cape Florida, and Harry Harris Beach Park near 
the south end of Key Largo, excluding the Intracoastal Waterway; unit 
overlaps areas of Miami-Dade and Monroe County.
    (12) Florida Unit 2--Marathon--All waters from the southern 
shoreline of the City of Marathon in Monroe County out to the 15 m 
isobath between Knights Key and Grassy Key, excluding the Boot Key 
navigation channel.
    (13) Florida Unit 3--Big Pine Key to Geiger Key--All waters south 
of U.S. Highway 1 out to the 15 m isobath between the eastern point of 
Big Pine Key and Geiger Key in Monroe County.
    (14) Florida Unit 4--Key West--All shoal waters south of Woman Key 
between 5 and 30 m depth that contain coral reef and hardbottom and 
seagrass habitat in Monroe County.
    (15) Florida Unit 5--New Ground Shoal--All New Ground Shoal waters 
shown in the map below for this unit in Monroe County.
    (16) Florida Unit 6--Halfmoon Shoal--All Halfmoon Shoal Waters 
shown in the map below for this unit in Monroe County.
    (17) Florida Unit 7--Dry Tortugas--There are three areas which make 
up this unit located in Monroe County. First, all waters surrounding 
Loggerhead Key to depths of about 2 m. Second, all waters surrounding 
Garden Key to depths out to about 3.5 m. Third, all waters surrounding 
Bush Key to depths out to about 5.5 m.
    (18) Spawning Site Unit 1--Bajo de Sico--All waters encompassed by 
the 100 m isobath in the Bajo de Sico area.
    (19) Spawning Site Unit 2--Grammanik Bank/Hind Bank--All waters 
which make up the Hind Bank and the Grammanik Bank, interconnecting 
waters between these banks, and waters extending out to the 200 fathom 
line directly south from Grammanik Bank.
    (20) Spawning Site Unit 3--Riley's Hump--All waters encompassing 
Riley's Hump located southwest of the Dry Tortugas out to the 35 m 
isobath on the north, west, and east side of the hump and out to the 50 
m isobath on the south side of the hump.
    (b) Essential features. The features essential to the conservation 
of Nassau grouper are:
    (1) Recruitment and developmental habitat. Areas from nearshore to 
offshore necessary for recruitment, development, and growth of Nassau 
grouper containing a variety of benthic types that provide cover from 
predators and habitat for prey, consisting of the following:
    (i) Nearshore shallow subtidal marine nursery areas with substrate 
that consists of unconsolidated calcareous medium to very coarse 
sediments (not fine sand) and shell and coral fragments and may also 
include cobble, boulders, whole corals and shells, or rubble mounds, to 
support larval settlement and provide shelter from predators during 
growth and habitat for prey.
    (ii) Intermediate hardbottom and seagrass areas in close proximity 
to the nearshore shallow subtidal marine nursery areas that protect 
growing fish from predation as they move from nearshore nursery areas 
into deeper waters and provide habitat for prey. The areas include 
seagrass interspersed with areas of rubble, boulders, shell fragments, 
or other forms of cover; inshore patch and fore reefs that provide 
crevices and holes; or substrates interspersed with scattered sponges, 
octocorals, rock and macroalgal patches, or stony corals.
    (iii) Offshore linear and patch reefs in close proximity to 
intermediate hardbottom and seagrass areas that contain multiple 
benthic types, for example, coral reef, colonized hardbottom, sponge 
habitat, coral rubble, rocky outcrops, or ledges, to provide shelter 
from predation during maturation and habitat for prey.
    (iv) Structures between the subtidal nearshore area and the 
intermediate hardbottom and seagrass area and the offshore reef area 
including overhangs, crevices, depressions, blowout ledges, holes, and 
other types of formations of varying sizes and complexity to support 
juveniles and adults as movement corridors that include temporary 
refuge that reduce predation risk as Nassau grouper move from nearshore 
to offshore habitats.
    (2) Spawning habitat. Marine sites used for spawning and adjacent 
waters that support movement and staging associated with spawning.
    (c) Areas not included in critical habitat. Critical habitat does 
not include:
    (1) Managed areas where the substrate is continually disturbed by 
planned management activities authorized by local, state, or Federal 
governmental entities at the time of critical habitat designation, and 
that will continue to be disturbed by such management. Examples 
include, but are not necessarily limited to, dredged navigation 
channels, shipping basins, vessel berths, and active anchorages.
    (2) Pursuant to ESA section 4(a)(3)(B), all area subject to the 
Naval Air Station Key West Integrated Natural Resources Management 
Plan.
    (d) Maps of Nassau grouper critical habitat. (1) Spatial data for 
these critical habitats and mapping tools are maintained on our website 
and are available for public use (www.fisheries.noaa.gov/national/

[[Page 157]]

endangered-species-conservation/critical-habitat).
    (2) Overview maps of each final critical habitat unit follow.
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[FR Doc. 2023-28483 Filed 12-29-23; 8:45 am]
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