[Federal Register Volume 87, Number 199 (Monday, October 17, 2022)]
[Proposed Rules]
[Pages 62930-62971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22195]



[[Page 62929]]

Vol. 87

Monday,

No. 199

October 17, 2022

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; Proposed Rule

  Federal Register / Vol. 87, No. 199 / Monday, October 17, 2022 / 
Proposed Rules  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 221005-0211]
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: Proposed rule; request for comments.

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SUMMARY: We, NMFS, propose to designate critical habitat for the 
threatened Nassau grouper pursuant to section 4 of the Endangered 
Species Act (ESA). Specific occupied areas proposed for designation as 
critical habitat contain approximately 2,353.19 sq. kilometers (908.57 
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 proposed 
critical habitat.
    We are soliciting comments from the public on all aspects of the 
proposal, including our identification and consideration of impacts of 
the proposed action.

DATES: Written comments and information must be received by December 
16, 2022.
    Public hearing meetings: If requested, we will hold at least one 
public hearing on this proposed rule.

ADDRESSES: You may submit data, information, and comments on this 
document identified by NOAA-NMFS-2022-0073, as well as the supporting 
documents, by the following methods:
     Electronic Submission: Submit electronic information via 
the Federal e-Rulemaking Portal. Go to www.regulations.gov and enter 
NOAA-NMFS-2022-0073. Click on the ``Comment'' icon and complete the 
required fields. Enter or attach your comments.
     Mail: Submit written comments to Assistant Regional 
Administrator, Protected Resources Division, NMFS, Southeast Regional 
Office, 263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: Comments sent by any other method or received after 
the end of the specified period may not be considered. All comments 
received are a part of the public record and generally will 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 or protected information 
submitted voluntarily by the sender will be publicly accessible. NMFS 
will accept anonymous submissions (enter ``N/A'' in the required fields 
if you wish to remain anonymous). Attachments to electronic comments 
will be accepted in Microsoft Word, Excel, or Adobe portable electronic 
file (PDF) formats only. The petition and previous rulemaking documents 
related to the listing of the species can be obtained electronically on 
our website at: https://www.fisheries.noaa.gov/species/nassau-grouper#conservation-management. The Endangered Species Act Critical 
Habitat Report that was prepared to support the development of this 
proposed rule is available on www.regulations.gov (enter NOAA-NMFS-
2022-0073) for public review and comment.

FOR FURTHER INFORMATION CONTACT: Patrick Opay, [email protected], 
727-551-5789.

SUPPLEMENTARY INFORMATION:

Background

    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.
    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.
    This proposed rule summarizes relevant information regarding the 
biology and habitat use of Nassau grouper, the methods used to develop 
the proposed critical habitat designations, and the proposed critical 
habitat. The following supporting documents provide more detailed 
discussions of information and analyses that contributed to the 
conclusions presented in this proposed rule: Nassau Grouper Biological 
Report (Hill and Sadovy de Mitcheson, 2013), Endangered Species Act 
Critical Habitat Report (NMFS, 2022). These supporting documents are 
referenced throughout this proposed rule and are available for review 
(see ADDRESSES).
    On July 5, 2022, the United States District Court for the Northern 
District of California issued an order vacating regulations, 
promulgated in 2019, that adopted changes to 50 CFR part 424 (84 FR 
45020, August 27, 2019) (the 2019 rule). Among other things, the 2019 
rule made changes to the definition of ``physical or biological 
features'' (50 CFR 424.02) and the criteria for designating specific 
areas outside the

[[Page 62931]]

geographical area occupied by the species as critical habitat (50 CFR 
424.12(b)(2)). On September 21, 2022, the U.S. Court of Appeals for the 
Ninth Circuit granted a temporary stay of the district court's July 5th 
order. As a result, the 2019 rule is once again in effect, and we are 
applying the 2019 regulations here. For purposes of this determination, 
we considered whether the analysis or its conclusions would be any 
different under the pre-2019 regulations. We have determined that our 
analysis and conclusions presented here would not be any different.
    As detailed in the sections that follow, the specific occupied 
areas proposed for designation as critical habitat for the Nassau 
grouper contain approximately 2,352.27 sq. kilometers (908.22 sq. 
miles) of marine habitat within the western North Atlantic Ocean, 
including two sites used for spawning.

Species Description

    Nassau grouper, Epinepheuls 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 ontogenetic shifts in habitat 
utilization: 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 bi-partite life cycle with demersal adults and juveniles 
but pelagic eggs and larvae. It transitions through a series of 
ontogenetic shifts of both habitat and diet from larval to adult stage. 
Adults are sedentary except for spawning periods. Reproduction is known 
only to occur 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 
spherical, buoyant eggs that hatch 23-40 hours following fertilization. 
Eggs of groupers that spawn at sea will require a salinity of about 30 
parts per thousand (ppt) or higher for them to float, but slightly 
lower salinity can be tolerated even though the eggs sink (Tucker, 
1999).
    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-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 (Sheneker 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, and has been 
found to be associated with prevailing winds, currents, and lunar phase 
occurring in short pulses during highly limited periods each year 
(Shenker et al., 1993). These late larvae-early juvenile Nassau grouper 
(18-30 mm TL) were collected with plankton nets as they moved inshore 
from pelagic environments to shallower nursery habitats (Shenker et 
al., 1993). The link between spawning and settlement sites is not 
understood.
    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 (30.0-80.0 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 that 
include seagrass habitat. The size ranges for the three juveniles 
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 these nearshore hardbottom areas for about the 
next 1 to 2 years, where they are found associated with structure in 
areas intermediate between the

[[Page 62932]]

nearshore and offshore reefs 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 (mean = 31.7 mm TL, standard deviation 
(SD) = 2.9, 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 since direct 
holdfast attachment 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 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) found that early 
juveniles (mean = 8.5 cm TL, SD = 11.7, 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 increase predation rates and 
lower the survival of recruits (Dahlgren and Eggleston, 2000).
    Early juveniles in the Bahamas have a disproportionately high 
association with the macroalgae Laurencia spp. and other microhabitats 
(e.g., seagrass, corals) used according to availability (Dahlgren and 
Eggleston, 2001). Reports from Mona Island, Puerto Rico (Aguilar-Perera 
et al., 2006) found early juveniles (60-120 mm TL) 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 from nearshore macroalgae to 
adjacent patch reefs located within either seagrass or intermediate 
hardbottom areas. 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 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) and 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 (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 may protect juveniles from 
predation, but juveniles leave their refuges to forage for food and 
during ontogenetic shifts in habitat (Eggleston, 1995).

Late Juveniles (~15-50 cm 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 (mean = 18.4 cm TL, SD = 3.4, 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, and 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 that should help them avoid 
predators, suggesting that shelter

[[Page 62933]]

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) and 
use structures such as macroalgae and hardbottom substrate as refuge 
(Eggleston, 1995; Camp et al., 2013). In a survey of seagrass bays in 
the USVI, Green (2017) found juvenile Nassau grouper (n = 46, 6-30 cm 
TL) more abundant with taller canopy and less dense native seagrass 
compared to higher density and low canopy height; differences in 
abundance were attributed to the higher 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 permitted better movement by Nassau grouper to forage 
(Green, 2017).
    Juvenile Nassau grouper also rely on hardbottom structure for 
providing prey. Nassau grouper residing on patch reefs are capable of 
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). Structure in 
these areas can be natural or artificial and include crevices, holes, 
ledges, and other shelters. Suitable refuges provide cover for juvenile 
Nassau grouper with crevices 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; weight of mature individuals trapped in the deep 
areas was about double that taken in the shallow areas. While there can 
be an overlap of adults and juveniles in hardbottom habitat areas, a 
general size segregation with depth occurs with smaller fish in shallow 
inshore waters (3 to 17 m) and larger individuals more common 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 Mitchenson, 2013) 
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). Report from fishing activities in the Leeward Islands 
show that although Nassau grouper was 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 range 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 of adult Nassau grouper with 
larger home ranges at less structurally-complex reefs (Bolden, 2001). 
Nassau grouper are 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 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 adult reef fish and invertebrates use 
intermediate hardbottom areas as juveniles.
    As Nassau grouper move from their nearshore settlement habitat, 
through intermediate hardbottom/seagrass habitats, to the offshore 
reefs they occupy as adults, shelter is an essential component that 
connects these habitats and provides cover. 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

[[Page 62934]]

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 mixed 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). A 
similar invertebrate diet has been described for recently settled and 
post-settlement stage (25-35 mm TL) Nassau grouper in the Bahamas that 
live within the macroalgae and seagrass blades and forage for 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 cm-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) 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 feeding can take place around the clock although 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 periods, from about November and perhaps 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, 
many of these may no longer form (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 little as 350 m from the 
shore, and close to a drop-off into deep water. Sites are 
characteristically small, highly circumscribed areas, measuring several 
hundred meters in diameter, with a diversity of bottom types: soft 
corals, sponges, stony coral outcrops, and sandy depressions (Craig, 
1966; Smith 1990; Beets and Friedlander, 1992; Colin, 1992; Aguilar-
Perera, 1994).
    Fidelity at one aggregation site (Grammanik Bank, USVI) has been 
investigated (Bernard et al., 2016) revealing some adults will return 
to the same location across years. Adults are known to travel hundreds 
of kilometers (Bolden, 2000) to gather at specific locations to spawn. 
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. 
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

[[Page 62935]]

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 even 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.
    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).

Activity and Behavior

    Spawning occurs for up to 1.5 hours around sunset for several days 
(Whaylen et al., 2007). 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 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 
fragmented sub-group to the bottom. All spawning events have been 
recorded within 20 minutes of sunset, with most within 10 minutes of 
sunset (Colin, 1992).
    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 two sites that may be reconstituted or novel spawning 
sites in both Puerto Rico and the USVI (Hill and Sadovy de Mitcheson, 
2013): Bajo de Sico in Puerto Rico (Scharer et al., 2012) and Grammanik 
Bank in the USVI (Nemeth et al., 2006). 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 current value to Nassau grouper spawning and 
are seeking additional information through this proposed rule.

Bajo de Sico, Puerto Rico

    Bajo de Sico, 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 rises from a 
mostly flat, gradually sloping shelf that extends to 100 m. 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 mesophotic coral ecosystems due to the range of depths and 
coral/algae development. The area less than 50 m depth includes 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), 
although the closure also 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 times (Scharer et al., 2012). Subsequent diver surveys 
conducted between 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 from tags (n = 29) 
inserted into Nassau grouper 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

[[Page 62936]]

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 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, fishing is prohibited for all species, with an exception for 
highly migratory species, from February 1 to April 30 of each year to 
protect yellowfin grouper (Mycteroperca venenosa) when they aggregate 
to spawn (70 FR 62073, October 28, 2005; Scharer et al., 2012).
    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 
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 closes 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 suggest 
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, however, the Nassau grouper are 
now observed in groups of 100 to 300 fish 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 (Nemeth 
Pers. Comm., February 13, 2022). Spawning occurred well above the 
bottom in 30 to 40 m depth. Vocalization by Nassau grouper has 
indicated that abundance and possibly inferred 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 that lie in an east-west in 
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) 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 recovery of 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 Red Hind Bank Marine Conservation District), 
shifting spawning locations to the Grammanik Bank, a distance of about 
5 km (this 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); (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 Grammanik Bank spawning site (this is 
supported by Jackson et al. (2014) who found strong genetic mixing of 
Nassau grouper populations among 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); and/or (3) self-recruitment by local 
reproduction from the remnant population.

Critical Habitat Identification

    In the following sections, we describe the 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 proposed 
critical habitat designation. In accordance with section 4(b)(2) of the 
ESA, this proposed 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 potential 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

[[Page 62937]]

mapping. To identify specific areas that may qualify as critical 
habitat for Nassau grouper, in accordance with 50 CFR 424.12(b), we 
included the following considerations in the process: Identifying the 
geographical area occupied by the species at the time of listing; 
identifying physical or biological habitat features essential to the 
conservation of the species; identifying 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; determining which of these essential features may require 
special management considerations or protection; and identifying 
specific areas outside the geographical area occupied by the species 
that are essential for the species' conservation. Our evaluation and 
conclusions are described in detail in the following sections.

Geographical Area Occupied

    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 grouper 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 426 feet (130 m). 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 by red 
grouper (E. morio) in areas north of Key West or the Tortugas (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 first 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 targeting 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 Gulf of Mexico.
    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 that Nassau grouper occupied at the 
time of listing. At the time of listing, the range of the Nassau 
grouper spanned the wider Caribbean, and specifically the east coast of 
Florida including the Florida Keys, Puerto Rico, and USVI in the United 
States.

Physical and Biological Features

    The statutory definition of critical habitat refers to ``physical 
or biological features essential to the conservation of the species,'' 
(16 U.S.C. 1532(3)), but the ESA does not specifically define or 
further describe these features. ESA implementing regulations at 50 CFR 
424.02, however, define such features as follows:

    The features that occur in specific areas and 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 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.

    To assess habitat features that may qualify as ``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. 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 clearly 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 conservation. For 
the Nassau grouper, critical habitat includes physical and biological 
features to support adult reproduction at the spawning aggregations, 
and 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 
ontogenetic 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 
ontogenetic growth

[[Page 62938]]

from larval settlement in the nearshore to maturity, with appropriate 
inter-habitat connectivity to support ontogenetic movement from 
nearshore habitat used for larval settlement, to intermediate areas 
used by juveniles, and finally to offshore areas used by adults.
    The following essential features have been identified:
    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 (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.
    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.

Need for Special Management Considerations or Protection

    Specific areas within the geographical area occupied by a species 
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 any ``methods or procedures useful in 
protecting the physical or biological features essential to the 
conservation of listed species'' (50 CFR 424.02). Only those essential 
features that may need special management considerations or protection 
are considered further.
    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 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, including 
sewage, stormwater and agricultural runoff, river discharge, and 
groundwater, 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). 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 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. 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)). Regulations at 50 
CFR 424.12(c) also require that each critical habitat area be shown on 
a map. Because the ESA implementing regulations allow for discretion in 
determining the appropriate scale at which specific areas are drawn (50 
CFR 424.12(b)(1)), we are not required to, nor was it possible to, 
determine that each square inch, acre, or even square mile 
independently meets the definition of ``critical habitat.'' 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 feature. 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 Unified Florida Reef Tract, the Nature Conservancy, and NOAA 
to determine the contiguous areas of appropriate habitat complexity 
that contained a combination of habitat characteristics relevant to the 
Nassau grouper essential

[[Page 62939]]

feature related to habitat providing for 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/. 
projects/unified-reef-map/. projects/unified-reef-map/.
    These resources provide maps and information on the location of 
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 experience and who did 
research on Nassau grouper, 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 from multiple sources were used 
depending on the geographic location. In Florida and the FGBNMS, 
contours created from National Ocean Service Hydrographic Survey Data 
and NOAA ENCDirect bathymetric point data National Park Service (NPS) 
and contours created from NOAA's Coastal Relief Model were used. In 
Puerto Rico, contours were derived from the National Geophysical Data 
Center's (NGDC) 2005 U.S. Coastal Relief Model. In USVI, contours 
derived from NOAA's 2004-2015 Bathymetric Compilation were used. In 
Navassa, contours were 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 proposed critical habitat designation.
    Within the geographical and depth ranges of the species, certain 
areas contain the appropriate substrates, however, due to their 
consistently disturbed nature, these areas do not provide the quality 
of substrate essential for the conservation of the threatened Nassau 
grouper. These disturbances are caused by human activities. While these 
areas may provide substrate for recruitment and growth, the periodic 
nature of direct human disturbance renders them poor habitat. 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 proposed 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 active anchorages. These managed areas are not under 
consideration for critical habitat designation.
    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 them to be included as part of the managed area 
and therefore are not proposing to designate them as critical habitat.
    GIS data of the locations of some managed areas were available and 
extracted from the maps of the specific areas being 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 being proposed as critical 
habitat, no managed areas are part of the specific areas within the 
geographical area occupied by the species that contain the essential 
feature 1.
    Spawning site locations were identified and mapped based on review 
of 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. 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) and 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). 
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.

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. 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.
    While the most serious threats to Nassau grouper are historical 
harvest, 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 may 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 
proposed critical habitat will help conservation of spawning areas 
within U.S. jurisdiction (but not address fishing at the spawning 
aggregations or enforcement of any spawning area protections as that 
cannot be addressed by this rule). The critical habitat identified in 
this proposed rule identifies key habitat necessary for promoting the 
recruitment, refuge, and forage habitat necessary for the conservation 
of the species. Based on our current understanding of the species' 
biology and conservation needs, we have not identified 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 proposed rule from destruction and adverse 
modification stemming from federal actions will help support the 
species' habitat-based conservation needs.

[[Page 62940]]

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 [of Commerce] determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. Our regulations at 50 CFR 424.12(h) provide that, in 
determining whether an applicable benefit is provided, we will 
consider:
    (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.
    NMFS contacted the Department of Defense to determine if any areas 
controlled by the DoD coincide with any of the areas under 
consideration for critical habitat. Naval Air Station Key West (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 considered for the proposed critical habitat 
is approximately 800 acres (3.2 sq km). Within this area, the species 
and proposed essential feature 1 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 proposed critical habitat through the following 
NASKW broad programs and activities: wetlands management; 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; 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 proposed 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.
    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. 
Courts have noted 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 (9th 
Cir. 2015), upholding district court's ruling 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 
4(b)(2). 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 proposed 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 including each 
of the specific areas in the proposed critical habitat designations. We 
considered these impacts when deciding whether to exercise our 
discretion to propose excluding particular areas from the designations. 
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,

[[Page 62941]]

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 proposed 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 section 7 
consultation history from 2011 to 2021 for:
     Activities consulted on in the areas being proposed as 
critical habitat for the Nassau grouper and
     Activities that take place outside of the proposed 
critical habitat but whose effects extend into the critical habitat and 
are therefore subject to consultation.
    In addition, we conducted stakeholder outreach 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. Stakeholders 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 
proposed critical habitat area. We also will review more recent 
consultation information provided by these or other agencies prior to 
the publication of any final rule. We determined all categories of the 
activities identified have potential routes of effects to both the 
threatened Nassau grouper and the proposed Nassau grouper critical 
habitat, or to other species or designated critical habitat and the 
proposed Nassau grouper 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: habitat:
     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;
     Shipwreck and Marine Debris Removal (USCG, NOAA);
     Scientific Research and Monitoring (NOAA);
     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);
     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);
     Fishery management (development of fishery management 
plans under the Magnuson-Stevens Fishery Conservation and Management 
Act) conducted or approved by NMFS;
     Aquaculture (development of aquaculture facilities) 
authorized by EPA and USACE, and funded by NMFS; and
     Military activities (e.g., training exercises) conducted 
by DoD.
    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. 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 our Critical Habitat Report, all 
categories of activities identified as having the potential to affect 
the proposed essential features also have the potential 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 proposed 
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

[[Page 62942]]

designation. The incremental impacts that will be associated 
specifically with the critical habitat designation if finalized as 
proposed are the difference between the two scenarios. Baseline 
protections exist in large areas proposed for designation. In 
particular, areas proposed for Nassau grouper critical habitat 
designation overlap to varying degrees with the presence of the 
threatened or endangered 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 Acropora 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 
proposed Nassau grouper critical habitat (please refer to Critical 
Habitat Report). Importantly, 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 $10,000 for 
programmatic, $5,400 for formal consultations, and $2,600 for informal 
consultations (NMFS 2022).
    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 
12 programmatic consultations, 10 formal consultations, and 117 
informal consultations that will require incremental administrative 
effort. Incremental costs are expected to total approximately $380,000 
over the next 10 years (discounted at 7 percent), at an annualized cost 
of $54,000. 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 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 $380,000 over the next ten years ($54,000 
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 from the additional 
commitment of resources by the DoD or USCG to modify the action 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, 
and whether the Nassau grouper designation would add costs beyond those 
related to the consultation on effects to Nassau grouper or other 
species or critical habitat.
    As described previously, we identified DoD military operations as a 
category of activity that has the potential to affect the essential 
features of the proposed 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 Acropora 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 (National Marine 
Fisheries Service, 2018a). While we do not anticipate that the proposed 
critical habitat designation would result in incremental modifications 
to USCG's AToN operations or affect national security matters, we 
expect USCG would be required to re-initiate consultation on the 
programmatic biological opinion to address impacts to the Nassau 
grouper critical habitat. This would represent an incremental 
administrative impact of the proposed rule, which is considered in the 
economic analysis, but would not affect national security.
    The Navy suggested that NMFS consider areas around Naval Air 
Station Key West for exclusion under ESA section 4(b)(2), however, Navy 
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 proposed critical habitat: 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 proposed 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 proposed rule is not 
anticipated to result in incremental project modifications. However, 
the protections afforded reefs and seagrasses as subcomponents of an 
essential feature of proposed Nassau grouper critical habitat could 
increase awareness of the importance of these habitat types, 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).

[[Page 62945]]

    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.

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 proposed 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. In summary, there are significant baseline 
protections that exist in the areas proposed for the Nassau grouper 
critical habitat, and as a result, the incremental impacts of the 
proposed 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 
$380,000 over the next 10 years ($54,000 annualized), applying a 
discount rate of 7 percent. Further, the analysis indicates that there 
is no particular area within the proposed critical habitat units where 
these costs would be highly concentrated. Moreover, we anticipate that 
no particular industry would be disproportionately impacted. We are not 
proposing to exclude any areas on the basis of national security 
impacts as no national security concerns exist related to the proposed 
critical habitat designation. We are not proposing to exclude 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 proposing to 
exclude any areas as a result of these other relevant impacts.

Proposed 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 proposed critical 
habitat boundaries are defined by the maps in combination with the 
textual information included in the proposed 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. Waters off the west and south 
coast of Mona Island. Area = 18.344 sq. km.
    Puerto Rico Unit 2--Desecheo Island. Waters off the southwest coast 
of the island. Area = 0.468 sq. km.
    Puerto Rico Unit 3--Southwest. Waters off the southwest coast of 
the Puerto Rico main island. Area = 112.393 sq. km.

[[Page 62946]]

    Puerto Rico Unit 4--Northeast. Waters off the northeast coast of 
the Puerto Rico main island. Area = 48.754 sq. km.
    Puerto Rico Unit 5--Vieques Island. Waters off the west and 
northeast, east, and southeast coasts of the island. Area = 9.488 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 the island. Area = 4.149 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 coast of the Water Island. Area = 9.183 sq. km.
    United States Virgin Island Unit 2--St. John. Waters off the east 
coast of the island. Area = 6.552 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 = 1279.696.
    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 = 172.379.
    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 = 372.369 sq. km.
    Florida Unit 4--Key West. Shoal waters south of Woman Key. Area = 
127.078 sq. km.
    Florida Unit 5--New Ground Shoal. New Ground Shoal waters. Area = 
31.042 sq. km.
    Florida Unit 6--Halfmoon Shoal. Halfmoon Shoal waters. Area = 
33.615 sq. km.
    Florida Unit 7--Dry Tortugas. Waters encompassing Loggerhead Key 
and waters surrounding Garden Key and Bush Key. Area = 4.437 sq. km.
    Spawning Site Unit 1--Bajo de Sico. All waters encompassed by 100m 
isobath bounded in the Bajo de Sico spawning area bound within the 
following coordinates: (A) 67[deg]26'13'' W, 18[deg]15'23'' N, (B) 
67[deg]23'08'' W, 18[deg]15'26'' N, (C) 67[deg]26'06'' W, 
18[deg]12'55'' N, and (D) 67[deg]26'13'' W, 18[deg]12'56'' N. Area = 
10.738 sq. km.
    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. Area = 58.77 sq. km.

Effects of Critical Habitat Designations

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to insure 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 proposed for listing under the ESA, 
or likely to destroy or adversely modify proposed 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 
reinitiation of consultation or conference with NMFS on actions that 
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 consultation when they are 
authorized, funded, or carried out by a Federal agency. A private 
entity may also be affected by these proposed 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

[[Page 62947]]

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, shipwreck 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.

Public Comments Solicited

    We request that interested persons submit comments, information, 
and data concerning this proposed rule during the comment period (see 
DATES). We are soliciting comments from the public, other concerned 
governments and agencies, the scientific community, industry, or any 
other interested party concerning the areas proposed for designation 
and appropriateness and description of the essential features. We also 
request comment on areas we are proposing for exclusion, including but 
not limited to the types of areas that qualify as managed area. We also 
solicit comments regarding specific, probable benefits and impacts 
stemming from this designation. We also seek comments on the identified 
geographic area occupied by the species. We seek information that would 
assist in further characterizing spawning aggregation sites 
(environmental parameters). We seek information about any additional 
sightings in the Gulf of Mexico not addressed in this proposed rule or 
supporting information, as well as information about any additional 
areas that might be spawning aggregation sites, and any additional 
information on larval dispersal and settlement areas. We seek any 
additional information about recent observations of Nassau grouper at 
the historical Nassau grouper spawning aggregation site on the eastern 
tip of Lang Bank, USVI that was extirpated in the early 1980s. We seek 
information regarding how the invasive seagrass, Halophila stipulacea, 
may impact the value of juvenile Nassau grouper habitat.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES). We will consider all 
comments pertaining to these designations received during the comment 
period in preparing the final rule. Accordingly, the final designations 
may differ from this proposal.

Information Quality Act and Peer Review

    The data and analyses supporting this proposed 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 
proposed 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 in the critical habitat report and incorporated the peer 
review comments into the report prior to dissemination of this proposed 
rulemaking. 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 proposed 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 does not affect landowner actions that do 
not require Federal funding or permits.

Regulatory Planning and Review (Executive Order 12866)

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866 review. A report evaluating the economic impacts 
of the proposed rule has been prepared and is included in the Critical 
Habitat Report, incorporating the principles of E.O. 12866. Based on 
the economic impacts evaluation in the Critical Habitat Report, total 
incremental costs resulting from the critical habitat are approximately 
$380,000 over the next 10 years ($54,000 annualized), applying a 
discount rate of 7 percent.

Federalism (Executive Order 13132)

    Executive Order 13132 requires agencies to ensure state and local 
officials have the opportunity for meaningful and timely input when 
developing regulatory policies that have federalism implications. 
Policies that have federalism implications are those with substantial, 
direct effect on the states, on the relationship between the Federal 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. If the effects 
of the rule on state and local governments are sufficiently 
substantial, the agency must prepare a Federal assessment. Pursuant to 
the Executive Order on Federalism, E.O. 13132, we determined that this 
proposed rule does not have significant federalism effects and that a 
federalism assessment is not required. However, in keeping with 
Department of Commerce policies and consistent with ESA regulations at 
50 CFR 424.16(c)(1)(ii), we will request information for this

[[Page 62948]]

proposed rule from state and territorial resource agencies in Florida, 
Puerto Rico, and USVI. The proposed designations may have some benefit 
to state and local resource agencies in that the proposed rule clearly 
defines the essential features and the areas in which those features 
are found. Clear definitions and information about the critical habitat 
may help local governments plan for activities that may require ESA 
section 7 consultation.

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. This 
rule, if finalized, 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.)/Initial Regulatory 
Flexibility Analysis (IRFA)

    We prepared an initial regulatory flexibility analysis (IRFA) in 
accordance with section 603 of the Regulatory Flexibility Act (RFA) (5 
U.S.C. 601, et seq.). The IRFA analyzes the impacts to small entities 
that may be affected by the proposed designations and is included as 
Appendix B of the Critical Habitat Report and is available upon request 
(see ADDRESSES section), and is summarized below. We welcome public 
comment on this IRFA, which is summarized below, as required by section 
603 of the RFA.
    Our IRFA 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) as discussed in the main body of the economic report, 
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 
proposed critical habitat. Activities considered in the economic report 
and the IRFA include in-water and coastal construction, water quality 
management, protected area management, fishery management, aquaculture, 
military, scientific research and monitoring, and shipwreck and marine 
debris removal. Based on the relevant consultation history and forecast 
of future activities that may affect the proposed 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 proposed 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 $4,073, which represents approximately 8 percent of the 
total quantified incremental impacts forecasted to result from the 
proposed rule. 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 
IRFA 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.
    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 hundreds of small entities participate in the 
in-water and coastal construction industry, Scenario 1 accordingly 
reflects a high estimate of the number of potentially affected small 
entities (six) and a low estimate of the potential effect in terms of 
percent of revenue. The assumption under Scenario 1 that six small 
entities will be subject to consultation annually reflects the forecast 
that six 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 and the USVI 
units, because section 7 consultation on construction activities is 
anticipated to occur at a rate of 0.9 per year, or nine consultations 
over 10 years, we assume that 0.9 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 $4,073 in 
annualized costs under Scenario 1, including $523 in costs to Florida-
based small entities and $513 in costs each to Puerto Rico-based small 
entities and USVI-based small entities. Annualized impacts of the rule 
are estimated to make up less than 1 percent of average annual revenues 
of approximately $1.29 million for each affected small entity.\1\
---------------------------------------------------------------------------

    \1\ Average annual revenues were calculated based on company-
specific revenue data sourced from the Dun & Bradstreet Hoovers 
database.

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[[Page 62949]]

    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, $3,141 in annualized impacts 
would be borne by a single small entity in Florida. For Puerto Rico and 
USVI, we maintain the assumption in Scenario 1 that 0.9 small entities 
per year bear the third party costs of consultation. This assumption 
reflects our forecast of nine 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. 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.
    While these scenarios present a range of potentially affected 
entities and the associated revenue effects in Florida, we expect the 
actual number of small entities affected and revenue effects will be 
somewhere in the middle. In other words, some subset of the small 
entities in Florida greater than one and up to six will participate in 
section 7 consultations on Nassau grouper critical habitat and bear 
associated impacts annually. Regardless, our analysis demonstrates that 
the greatest potential revenue effect is less than 1 percent across 
scenarios and jurisdictions.
    Even though we cannot definitively determine the numbers of small 
and large entities that may be affected by this proposed 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.
    There are no record-keeping requirements associated with the rule. 
Similarly, there are no reporting requirements.
    No Federal laws or regulations duplicate or conflict with this 
proposed 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 Acropora 
critical habitat with the areas proposed for critical habitat 
designation protects the essential features of the proposed critical 
habitat to the extent that projects or activities that may adversely 
affect the proposed critical habitat also pose a threat to the listed 
species or to Acropora 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 
proposed 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 proposed rule 
that would minimize significant economic impacts to small entities. We 
considered the following alternatives when developing the proposed 
critical habitat rule.
Alternative 1: No Action Alternative
    No action (status quo): We would not designate critical habitat for 
the Nassau grouper. Under this alternative, 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 grouper provide 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, 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 
of the Bajo de Sico and 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 Economic 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 
proposed critical habitat. However, due to the protections afforded the 
essential features of the proposed 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).

[[Page 62950]]

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 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 proposed 
rule without incrementally promoting conservation of the species.
    The agency seeks specific comments on its Initial Regulatory 
Flexibility Act analysis.

Coastal Zone Management Act

    We have determined that this action will have no reasonably 
foreseeable effects on coastal uses or resources under the CZMA in 
Florida, Puerto Rico, and USVI. Upon publication of this proposed rule, 
these determinations will be submitted to responsible state agencies 
for review under section 307 of the Coastal Zone Management Act.

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

    This proposed rule does not contain any new or revised collection 
of information requirements. This rule, if adopted, would 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 proposed 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, 
if finalized, 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 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 proposed rule, we reviewed maps and did not 
identify any areas under consideration for critical habitat that 
overlap with Indian lands. Based on this, we preliminarily found the 
proposed critical habitat does not have tribal implications.

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.

    Dated: October 6, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 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 for Nassau grouper under the ``Fishes'' subheading to read as 
follows:


Sec.  223.102   Enumeration of threatened marine and anadromous 
species.

* * * * *
    (e) The threatened species under the jurisdiction of the Secretary 
of Commerce are:

----------------------------------------------------------------------------------------------------------------
                          Species \1\
---------------------------------------------------------------  Citation(s) for     Critical
                                                Description of       listing          habitat        ESA rules
         Common name          Scientific name   listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
           Fishes
 
                                                  * * * * * * *
Grouper, Nassau.............  Epinephelus      Entire species.  81 FR 42268,             226.230              NA
                               striatus.                         June 29, 2016.

[[Page 62951]]

 
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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.  226.230 to read as follows:


Sec.  226.230   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--All waters from the western 
and southern shorelines out to the coral reef edge in 20-30 m depths.
    (3) Puerto Rico Unit 2--Desecheo Island--All waters from the 
southwest shoreline out to the edge of the coral reef habitat in about 
30 m depth.
    (4) Puerto Rico Unit 3--Southwest--All waters from the southwestern 
shoreline of Puerto Rico, between Playa Tres Tubos just south Mayaquez 
and Punta Ballena in Guanica, extending offshore to depths of about 10m 
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 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 State 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 State 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 20m 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 100m 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.
    (b) Essential features. The features essential to the conservation 
of Nassau grouper are: 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

[[Page 62952]]

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: 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. 
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/endangered-species-conservation/critical-habitat).
    (2) Overview maps of each proposed critical habitat unit follow.
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[FR Doc. 2022-22195 Filed 10-14-22; 8:45 am]
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