[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Rules and Regulations]
[Pages 75229-75230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24194]



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 Rules and Regulations
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  Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / 
Rules and Regulations  

[[Page 75229]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922


Florida Keys National Marine Sanctuary: Establishment of 
Temporary Special Use Area for Coral Nursery

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

ACTION: Notification of extension of temporary special use area.

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SUMMARY: On September 6, 2023, the National Oceanic and Atmospheric 
Administration (NOAA) issued a final temporary rule establishing a 
special use area of a 0.07 square mile area approximately five miles 
southeast of the community of Tavernier, on the island of Key Largo, 
within Federal waters of the Florida Keys National Marine Sanctuary 
(FKNMS) from September 6, 2023, through November 6, 2023. This document 
extends the temporary special use area an additional 60 days. The 
special use area prohibits all entry except for restoration activities 
under a valid Office of National Marine Sanctuaries (ONMS) permit, 
continuous transit without interruption, and for law enforcement 
purposes from November 6, 2023, to January 5, 2024. This temporary 
extension is necessary to prevent or minimize destruction of, loss of, 
or injury to sanctuary resources, specifically to facilitate 
restoration activities to improve or repair living habitats through 
protecting coral nursery stock at this site from potential impacts 
caused by anchor damage and/or fishing gear. This extension is 
necessary to protect the corals in the temporary special use area until 
all of the corals are moved back to the original in-shore permitted 
nursery site. This temporary special use area will expire within 120 
days from the date it was established.

DATES: The effective period for the temporary rule published September 
6, 2023, at 88 FR 60887, is extended. This extension of the final 
temporary rule is effective November 6, 2023, through January 5, 2024.

ADDRESSES: Sarah Fangman, Superintendent, Florida Keys National Marine 
Sanctuary, 33 East Quay Road, Key West, FL, 33040, 305-360-2713 phone, 
or by email at [email protected].
    Additional background materials can be found on the FKNMS website 
at https://floridakeys.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Sarah Fangman, Superintendent, Florida 
Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL, 33040, 
305-360-2713 phone, or by email at [email protected].

SUPPLEMENTARY INFORMATION: On September 6, 2023, NOAA issued a final 
rule (RIN 0648-BM58) creating a temporary special use area for the 
purpose of coral restoration located approximately five miles southeast 
of the community of Tavernier, on the island of Key Largo, within 
Federal waters of FKNMS, for 60 days, with the possibility of extending 
an additional 60-days following public notice. 88 FR 60887 Section 15 
CFR 922.164(e) of the FKNMS regulations allows the ONMS Director to set 
aside discrete areas of the Sanctuary as special use areas in order to 
provide for, among other uses, the restoration of degraded or otherwise 
injured sanctuary resources (15 CFR 922.164(e)(1)(i)). A special use 
area shall be no larger than the size the ONMS Director deems 
reasonably necessary to accomplish the applicable objective. No person 
may enter a special use area except to conduct restoration activities 
under a valid ONMS permit, for continuous transit without interruption, 
or for law enforcement purposes. Activities that are currently allowed 
in the area, including fishing, are prohibited.
    This temporary special use area was established to limit the 
potential for physical impact to a coral nursery that was temporarily 
relocated to deeper waters to protect the nursery corals from heat 
stress caused by the current on-going marine heat wave. Creation of 
this temporary special use area limits the potential for physical 
impact to this sensitive coral nursery stock from anchoring, 
unintentional fouling of fishing gear, and bottom tending fishing gear 
including traps. The ONMS Director determined that the size of 0.07 
square miles is no larger than the size reasonably necessary to protect 
the coral nursery stock from physical damage. The original rule 
established this special area for 60 days, until November 6, 2023, with 
the possibility of one 60-day extension. NOAA has determined a 60-day 
extension is necessary to protect the corals in the temporary special 
use area until all of the corals are moved back to the original in-
shore permitted nursery site.
    NOAA will continue to provide notice of the location of this area 
through sanctuary radio announcements, press releases, and with 
assistance from the U.S. Coast Guard and FKNMS staff. NOAA has 
requested that the U.S. Coast Guard give an additional notification to 
vessels, via notice to mariners, to remain in continuous transit 
through this temporary area through January 5, 2024.

Justification for Emergency Action and Extension

    The establishment of the temporary special use area was taken in 
accordance with 15 CFR 922.165 of the FKNMS regulations (62 FR 32154, 
June 12, 1997). Section 922.165 provides that, where necessary to 
prevent or minimize the destruction of, loss of, or injury to a 
Sanctuary resource, any and all activities are subject to immediate 
temporary regulation, including prohibition, for up to 60 days, with 
one 60-day extension. This notification is for one 60-day extension to 
complete the relocation of the corals from this off-shore temporary 
special use area back to the original in-shore permitted nursery site.
    The final temporary rule was necessitated by the current ongoing 
marine heat wave that was impacting and likely killing coral reefs in 
the Florida Keys at an unprecedented rate and scale. These conditions 
became unsustainable for coral reef ecosystems, and the coral nursery 
stock is most at risk because these are located in shallow, nearshore 
protected environments that heat up much more than offshore locations. 
There are

[[Page 75230]]

currently 14 active coral nursery sites throughout the Florida Keys. 
These nursery sites are strategically located in close proximity to the 
sites where the nursery coral will be outplanted to promote coral 
restoration. Active coral restoration in the Florida Keys is necessary 
to facilitate coral restoration, as in the last 40 years, healthy coral 
cover in the Florida Keys reefs has declined by more than 90 percent.
    During the initial 60-day period of this emergency rule, NOAA and 
restoration partners identified deep water locations to temporarily 
relocate coral nursery stock. These deep water locations had 
temperatures below the bleaching threshold, are not exposed to 
deleterious levels of Ultraviolet (UV) radiation and experience 
substantial water movement, all conditions more conducive to coral 
survival. A portion of the most valuable corals, including 
representative colonies of each species of boulder and branching 
corals, samples of elkhorn coral, staghorn coral, star corals 
(Orbicella spp.), pillar corals and cactus coral listed under the 
Endangered Species Act, as well as multiple representative genotypes of 
these corals to ensure we protect the genetic diversity of these 
species, were relocated to deeper water sites within FKNMS Federal 
waters. Temperature meters at these deep sites have consistently shown 
readings below the bleaching threshold of 30.5 [deg]C.
    This extension of NOAA's emergency action maintains the offshore 
temporary special use area to continue to limit the potential for 
physical impact to this sensitive coral nursery stock while it is being 
fully relocated back to the original inshore permitted nursery site. 
These sensitive corals are being grown to support critical sanctuary 
restoration efforts and could be impacted from anchoring, unintentional 
fouling of fishing gear, and bottom tending fishing gear including 
traps. The protections afforded by maintaining this special use area 
need to be in place to avoid further damage to these sensitive nursery 
corals that have already experienced impact from heat stress. As such, 
a 60-day extension of this special use area is necessary to prevent or 
minimize the destruction of, loss of, or injury to Sanctuary resources.

Emergency Measures

    The 60-day extension of this final temporary rule continues the 
applicability of one special use area, approximately 0.07 square miles 
in size, into which all entry will be prohibited except for conducting 
restoration activities under a valid ONMS permit, continuous transit 
without interruption, and law enforcement purposes. This special use 
area was created and to be effective for 60 days from September 6, 
2023, until November 6, 2023. This action extends the temporary special 
use area for an additional 60 days, until January 5, 2024.
    The coordinates for this temporary special use area are included in 
appendix VI to subpart P of part 922 and in the September 6, 2023, 
Federal Register rule (88 FR 60887).

Location and Boundary

    Effective from September 6, 2023, through January 5, 2024, all 
entry except for conducting restoration activities under a valid ONMS 
permit, continuous transit without interruption, and law enforcement 
purposes is prohibited within this temporary special use area which is 
approximately five miles southeast of the community of Tavernier, on 
the island of Key Largo. The boundary for the special use area begins 
at Point 1 in the coordinates in appendix VI to subpart P of part 922 
and continues to each subsequent point in numerical order ending at 
Point 5. (Coordinates are unprojected (Geographic) and based on the 
North American Datum of 1983).

Penalties

    Pursuant to 16 U.S.C. 1437(d)(1) and 15 CFR 922.8(a), any person 
who violates this rule is subject to a civil penalty. The maximum civil 
monetary penalty authorized under the National Marine Sanctuaries Act 
(NMSA) has been adjusted for inflation over time and is currently 
$210,161 per violation per day. See 15 CFR 6.3(f)(13). Furthermore, 
NMSA also authorizes a proceeding in rem against any vessel used in 
violation of this regulation. See 16 U.S.C. 1437(d)(3).

Classification

A. National Marine Sanctuaries Act
    This action is issued pursuant to the National Marine Sanctuaries 
Act, 16 U.S.C. 1431 et seq. and implementing regulations at 15 CFR part 
922. This action is being taken pursuant to the emergency provision of 
the Florida Keys National Marine Sanctuary regulations at 15 CFR 
922.164(e) and 922.165.
B. Administrative Procedure Act
    In the final temporary rule, 88 FR 60887, the Assistant 
Administrator of the National Ocean Service, NOAA, found good cause to 
waive notice and public comment pursuant to 5 U.S.C. 553(b)(3)(B) and 
make the rule immediately effective under 5 U.S.C. 553(d)(3), as it 
would be impracticable and contrary to the public interest to delay 
taking the emergency measure to protect corals that were being 
relocated due to heat stress to deeper, cooler waters. The final 
temporary rule authorized one 60-day extension of the special use area, 
which we hereby invoke in this document.

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

Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management, 
National Ocean Service, National Oceanic and Atmospheric 
Administration.
[FR Doc. 2023-24194 Filed 11-1-23; 8:45 am]
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