[Federal Register Volume 88, Number 30 (Tuesday, February 14, 2023)]
[Rules and Regulations]
[Pages 9391-9393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03063]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 230206-0037]
RIN 0648-BL38


Flower Garden Banks National Marine Sanctuary Regulations

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

ACTION: Final rule.

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

DATES: This final rule is effective on March 16, 2023.

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

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

SUPPLEMENTARY INFORMATION: 

I. Introduction

A. Flower Garden Banks National Marine Sanctuary

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

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agencies that share jurisdiction over the area and its resources. These 
agencies include: the U.S. Department of the Interior, Bureau of Ocean 
Energy Management and Bureau of Safety and Environmental Enforcement, 
who share primary jurisdiction over offshore energy exploration and 
development; the U.S. Environmental Protection Agency, which is 
responsible for protecting the quality of the nation's waters; NOAA's 
National Marine Fisheries Service and Gulf of Mexico Fishery Management 
Council, which jointly manage the U.S fisheries; and, as previously 
stated above, NOAA's ONMS, which provides comprehensive management and 
protection to the sanctuary. Additionally, DoD and U.S. Coast Guard 
activities, as well as commercial shipping and other marine activities, 
occur in and around the waters of FGBNMS.

B. Summary of This Final Rule's Revision

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

II. Public Comments Received

    NOAA received one comment in response to the proposed rule, and it 
is posted and publicly available on regulations.gov, under docket 
number NOAA-NOS-2022-0047. The comment is summarized and NOAA provides 
a response to the comment below.
    Comment: The commenter asks if the rule evaluated any insurance, 
capacity, or regulatory impacts on small businesses, or if 
environmental and marine protections have been considered in the 
promulgation of the rule. The commenter also asks if competitive labor 
interests or equitable contract leverage will be available, or if 
construction would cause environmental disturbance.
    Response: No, the rule does not evaluate the insurance, capacity, 
or regulatory impacts on small businesses, nor does it consider the 
competitive labor interests. NOAA believes this comment is out of scope 
for this rulemaking. This final rule is strictly administrative in 
nature, and does not create any new requirements for small businesses 
nor does it create or remove any environmental protections. This final 
rule is a technical solution for a regulatory provision for FGBNMS that 
did not accurately describe how potential conflicts between the 
sanctuary regulations and other Federal regulations are to be resolved. 
The existing regulations establish that if a Federal agency regulation 
and a FGBNMS regulation conflict, then the regulation deemed as being 
more protective of sanctuary resources and qualities by the Director of 
ONMS shall govern. In actual practice, NOAA consults with other 
agencies on regulations that conflict with sanctuary regulations, so as 
to facilitate uses of sanctuary resources that are compatible with 
resource protection. Therefore, NOAA is finalizing the proposal without 
change so that existing practices are better reflected.

III. Classification

A. National Environmental Policy Act

    NOAA's Policy and Procedures for Compliance with the National 
Environmental Policy Act (NEPA) and Related Authorities (NOAA 
Administrative Order (NAO) 216-6A and Companion Manual for NAO 216-6A) 
provide that all NOAA major Federal actions be reviewed with respect to 
environmental consequences on the human environment. Based on the NAO 
and Companion Manual, NOAA examined the proposed rule for its potential 
to impact the quality of the human environment and concluded that it is 
categorically excluded from the requirement to prepare an Environmental 
Assessment or Environmental Impact Statement in accordance with the 
NOAA Categorical Exclusion G7 because, this action is a notice of an 
administrative and legal nature, any future effects of subsequent 
actions are too broad, speculative, or conjectural to lend themselves 
to meaningful analysis and will be subject to later NEPA analysis, and 
there are no extraordinary circumstances precluding the application of 
this categorical exclusion. NOAA received no public comments related to 
effects on the human environment. As such, this final rule has been 
determined to be categorically excluded under G7 as described in the 
Companion Manual for NAO 216-6A, Appendix, page E-14, and which applies 
to preparation of policy directives, rules, regulations, and guidelines 
of an administrative, financial, legal, technical, or procedural 
nature, or for which the environmental effects are too broad, 
speculative or conjectural to lend themselves to meaningful analysis.

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B. Executive Order 12866: Regulatory Impact

    This final rule has been determined to be not significant within 
the meaning of Executive Order 12866.

C. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities for purposes of the Regulatory Flexibility Act. The factual 
basis for the certification was published in the proposed rule and is 
not repeated here. No comments were received regarding this 
certification, but NOAA did receive one public comment about the 
evaluation of the insurance, capacity, or regulatory impacts on small 
businesses. However, NOAA has determined that said public comment is 
outside the scope of this rulemaking given the fact that this final 
rule is strictly administrative in nature, the amendment addresses how 
potential conflict among other Federal agency regulations and FGBNMS 
sanctuary regulations are to be resolved, and the final rule does not 
create any new requirements for small businesses nor does it create or 
remove any environmental protections. As a result, a regulatory 
flexibility analysis was not required and none was prepared.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Marine resources, Natural 
resources.

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

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

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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

Subpart L--Flower Garden Banks National Marine Sanctuary


Sec.  922.122  [Amended]

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

[FR Doc. 2023-03063 Filed 2-13-23; 8:45 am]
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