[Federal Register Volume 87, Number 198 (Friday, October 14, 2022)]
[Proposed Rules]
[Pages 62314-62316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22368]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 87, No. 198 / Friday, October 14, 2022 / 
Proposed Rules  

[[Page 62314]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 221006-0212]
RIN 0648-BL38


Flower Garden Banks National Marine Sanctuary Regulations

AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Proposed rule; request for public comments.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
issuing this proposed rule to remove a provision from one section of 
the existing Flower Garden Banks National Marine Sanctuary (FGBNMS) 
regulations, regarding the resolution of conflicting Federal agency 
regulations by the Director of the Office of National Marine 
Sanctuaries.

DATES: Comments must be received by November 14, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NOS-2022-0047, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NOS-2022-0047 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NOAA. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NOAA will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: George P. Schmahl, Superintendent, 
Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 
216, Galveston, Texas 77551, at 409-356-0383, or 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

A. Flower Garden Banks National Marine Sanctuary

    The National Marine Sanctuaries Act (NMSA) authorizes the Secretary 
of Commerce (Secretary) to designate and protect, as national marine 
sanctuaries, areas of the marine environment that are of special 
national significance due to their conservation, recreational, 
ecological, historical, scientific, cultural, archeological, 
educational, or aesthetic qualities. Day-to-day management of national 
marine sanctuaries is delegated by the Secretary to NOAA's ONMS. The 
primary objective of the NMSA is to protect nationally significant 
marine resources, including biological features such as coral reefs, 
and cultural resources, such as historic shipwrecks and archaeological 
sites. The mission of FGBNMS is to identify, protect, conserve, and 
enhance the natural and cultural resources, values, and qualities of 
the sanctuary and its regional environment for this and future 
generations.
    FGBNMS is located in the northwestern Gulf of Mexico approximately 
70 to 115 miles (113 to 185 kilometers) off the coasts of Texas and 
Louisiana. These offshore areas encompass a wide range of geologic 
features and habitat conditions that support several distinct 
biological communities, including the northernmost stony coral reefs in 
the continental United States. The banks, reefs, and similar formations 
provide the foundation for essential benthic habitats that support a 
wide variety of species. They are home to the most significant examples 
of coral and algal reefs, mesophotic and deepwater coral communities, 
and other biological assemblages in the Gulf of Mexico. The combination 
of location and geology makes FGBNMS extremely productive and diverse, 
and presents a unique set of challenges for managing and protecting its 
natural wonders.
    When NOAA first designated FGBNMS on December 5, 1991 (56 FR 
63634), and Congress subsequently passed a law recognizing the 
designation on January 17, 1992 (Pub. L. 102-251, Title I, Sec. 101), 
the sanctuary consisted of only two areas known as East and West Flower 
Garden Banks (56 FR 63634). Among other things, FGBNMS regulated a 
narrow range of activities, established permit and certification 
procedures, and exempted certain U.S. Department of Defense (DOD) 
activities from the sanctuary's prohibitions (56 FR 63634). The 
regulations also exempted activities necessary to respond to 
emergencies threatening life, property, or the environment (56 FR 
63634). Those regulations became effective on January 18, 1994 (58 FR 
65664). In 1996, Congress added Stetson Bank to the sanctuary (Pub. L. 
104-283). The boundaries of Stetson Bank and West Flower Garden Bank 
were later amended to improve administrative efficiencies and increase 
the precision of all boundary coordinates based on new positioning 
technology (65 FR 81175, Dec. 22, 2000). Subsequently, on January 19, 
2021, NOAA issued a final rule for the expansion of FGBNMS (86 FR 
4953). The final rule went into effect on March 22, 2021 (86 FR 15404), 
and expanded the boundaries of FGBNMS from approximately 56 square 
miles to approximately 160 square miles (145 square kilometers to 414 
square kilometers), and increased the number of protected reefs and 
banks (86 FR 4953). FGBNMS now protects East and West Flower Garden 
Banks, Stetson Bank, Horseshoe Bank, MacNeil Bank, Rankin/28 Fathom 
Banks, Bright Bank, Geyer Bank, Elvers Bank, McGrail Bank, Bouma Bank, 
Sonnier Bank, Rezak Bank, Sidner Bank, Parker Bank, and Aldrice Bank.
    The areas designated as FGBNMS are currently managed by several 
Federal agencies that share jurisdiction over the area and its 
resources. These agencies include: the U.S. Department of the Interior, 
Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and 
Environmental Enforcement (BSEE), who share primary jurisdiction

[[Page 62315]]

over offshore energy exploration and development; the U.S. 
Environmental Protection Agency (EPA), which is responsible for 
protecting the quality of the nation's waters; NOAA's National Marine 
Fisheries Service (NMFS) and Gulf of Mexico Fishery Management Council 
(GMFMC), which jointly manage the U.S fisheries; and, as previously 
stated above, NOAA's ONMS, which provides comprehensive management and 
protection to the sanctuary. Additionally, DoD and U.S. Coast Guard 
activities, as well as commercial shipping and other marine activities, 
occur in and around the waters of FGBNMS.

B. Summary of the Proposed Revision

    This action responds to the issues raised by Federal agency 
partners during interagency review of the final rule to expand FGBNMS 
(86 FR 4953), and during interagency review of a separate, unrelated 
interim final rule to update and reorganize the existing sanctuary 
regulations and eliminate redundancies (87 FR 29606). Specifically, the 
Federal agency partners expressed concern that the sanctuary regulation 
at 15 CFR 922.122(b) does not reflect existing practice and may be an 
overreach of the ONMS Director's delegated authority under the NMSA. 
Specifically, section 922.122(b) provides that if a Federal agency 
regulation and a Sanctuary regulation conflict, then the regulation 
deemed by the Director of the ONMS as being more protective of 
Sanctuary resources and qualities shall govern. The NMSA does not 
contain express language that prescribes how potential conflicts with 
other Federal regulations are to be resolved. The NMSA instead 
establishes a framework ``to facilitate to the extent compatible with 
the primary objective of resource protection, all public and private 
uses of the resources of these marine areas not prohibited pursuant to 
other authorities'' (16 U.S.C. 1431(b)(6)). The NMSA also ``provide[s] 
authority for comprehensive and coordinated conservation and management 
of . . . marine areas, and activities affecting them, in a manner which 
complements existing regulatory authorities'' (16 U.S.C. 1431(b)(2)). 
To ensure sanctuary regulations facilitate compatible use and 
complement existing regulatory authorities, the NMSA directs NOAA to 
consult with other Federal agencies on the proposed designation of new 
sites or expansion of existing sites (16 U.S.C. 1433(b)(2), 
1434(a)(4)). It is through this consultation process, which occurs 
before the designation or expansion of sanctuaries, that potential 
conflicts among Federal agency regulations are typically resolved or 
avoided. NOAA is presently unaware of any situation in which 15 CFR 
922.122(b) has ever been triggered, and section 922.122(b) does not 
reflect NOAA's preferred approach to resolve potential interagency 
regulatory conflicts. Therefore, to address the concerns raised by 
Federal partners, NOAA proposes to remove the existing language from 15 
CFR 922.122(b) to reflect existing practice and better track the NMSA. 
The remaining paragraphs of 15 CFR 922.122 would remain unchanged.
    A provision similar to 15 CFR 922.122(b) also appears in Article V 
of the terms of designation codified in appendix B of 15 CFR part 922, 
subpart L. This action does not modify that provision. Pursuant to 
section 304(a)(4) of the NMSA, the terms of designation may only be 
modified by the same procedures by which the designation is made. The 
process includes scoping, proposal, consultation with Federal agency 
partners and public review, as well as review by Congress. Because 
additional procedures are required to alter the terms of designation, 
NOAA is using regulatory action as the first step in the process.

II. Classification

A. National Environmental Policy Act

    NOAA concludes that this action will not have a significant effect, 
individually or cumulatively, on the human environment. This action is 
categorically excluded from the requirement to prepare an Environmental 
Assessment or Environmental Impact Statement in accordance with the 
NOAA Categorical Exclusion G7 because there are no extraordinary 
circumstances precluding the application of this categorical exclusion. 
Specifically, this action is a notice of an administrative and legal 
nature, and any future effects of subsequent actions are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will be subject to later NEPA analysis. This action would remove 
language that inaccurately describes how a conflict of regulatory 
authorities between Federal agencies would be addressed, and therefore, 
is an administrative issue. It does not commit the outcome of any 
particular Federal action taken by NOAA or other Federal agencies. 
Furthermore, individual Federal actions taken by ONMS or other Federal 
agencies will be subject to additional case-by-case analysis, as 
required under NEPA, which will be completed as any new Federal actions 
are submitted for specific projects and activities. In these 
situations, NOAA or other Federal agencies will ensure that the 
appropriate NEPA documentation is prepared prior to taking any final 
action. Any such NEPA analysis would describe the impacts of 
prospective projects or operations.

B. Executive Order 12866: Regulatory Impact

    This notice of proposed rulemaking has been determined to be not 
significant within the meaning of Executive Order 12866. NOAA has 
considered this action under E.O. 12866. Based on that review, this 
action is not expected to have an annual effect on the economy of $100 
million or more, or have an adverse effect in a material way on the 
economy. Furthermore, this action would not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; or materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or raise novel or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in this E.O.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires Federal agencies to 
prepare an analysis of a rule's impact on small entities whenever the 
agency is required to publish a rule, unless the head of the agency can 
certify, pursuant to 5 U.S.C. 605(b), that the action will not have a 
significant economic impact on a substantial number of small entities.
    Pursuant to section 605(b), the Chief Counsel for Regulations for 
the Department of Commerce has certified to the Office of Advocacy of 
the Small Business Administration that the proposed modifications of 
the regulations at 15 CFR part 922 would not have a significant 
economic impact on a substantial number of small entities.
    Because the provision proposed to be removed from the FGBNMS 
regulations addresses potential conflicts of law between Federal 
agencies, NOAA does not anticipate any impact on small businesses. This 
proposed rule also does not establish any new reporting, recordkeeping, 
or other compliance requirements. This proposed action is strictly an 
administrative action with implications anticipated only on Federal 
agency partners. Further, since 15 CFR 922.122(b) has never been 
triggered, NOAA is strongly convinced there are no overarching impacts 
of this proposed administrative regulatory

[[Page 62316]]

update on any party, whether Federal or otherwise.
    Since the impacts of this proposed administrative rule are only 
intended as an administrative flexibility for Federal agencies, NOAA 
does not anticipate an impact on marine sanctuary stakeholders that 
entail small businesses, including entities in the following North 
American Industry Classification System (NAICS) categories: consumptive 
and non-consumptive recreational charter businesses (NAICS codes 483114 
and 483112); commercial fishing businesses (NAICS codes 114112 
(Shellfish Fishing), 114111 (Finfish and mackerel fishing), and 114119 
(other marine fishing)); sightseeing businesses (NAICS code 487210); 
and diving businesses (NAICS codes 611620 (Sports and Recreation 
Instruction), 561990 (All Other Support Services), 339920 (Sporting and 
Athletic Goods Manufacturing), 459110 (Sporting Goods Retailers)).
    Based on the analysis presented above, NOAA concludes that the 
proposed action would result in no negative impact on a substantial 
number of small entities. Therefore, an initial regulatory flexibility 
analysis is not required and none has been prepared.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Marine resources, Natural 
resources.

Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management, 
National Ocean Service, National Oceanic and Atmospheric 
Administration.

    Accordingly, for the reasons set forth above, NOAA proposes to 
amend part 922, title 15 of the Code of Federal Regulations as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

0
1. The authority citation for part 922 continues to read as follows:

    Authority: 16 U.S.C. 1431 et seq.


Sec.  922.122  [Amended]

0
2. Amend Sec.  922.122 by removing and reserving paragraph (b).

[FR Doc. 2022-22368 Filed 10-13-22; 8:45 am]
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