[Federal Register Volume 89, Number 164 (Friday, August 23, 2024)]
[Rules and Regulations]
[Pages 68100-68102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18844]


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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: Extension of temporary special use areas.

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SUMMARY: On July 27, 2024, the National Oceanic and Atmospheric 
Administration (NOAA) issued an interim final rule establishing three 
special use areas within Federal waters of the Florida Keys National 
Marine Sanctuary (FKNMS) from July 27, 2024 through August 26, 2024. 
This notice extends the temporary special use areas an additional 60 
days. The special use areas prohibit 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 August 26, 2024 to October 25, 2024. This 
temporary rule 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 areas 
until water temperatures cool and 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 interim final rule, temporary 
emergency rule published July 27, 2024, at 89 FR 53483, is extended. 
This extension of this rule is effective August 26, 2024 through 
October 25, 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.

[[Page 68101]]


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 July 27, 2024, NOAA issued an interim 
final rule, temporary emergency rule (RIN 0648-BN10) creating three 
temporary special use areas for the purpose of coral restoration within 
Federal waters of FKNMS for 60 days with the possibility of extending 
an additional 60 days following public notice (89 FR 53483). 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, continuous transit without interruption, or 
law enforcement purposes. Activities that are currently allowed in the 
area, including fishing, are prohibited.
    These temporary special use areas were established to limit the 
potential for physical impact to coral nurseries that were temporarily 
relocated to deeper waters to protect the nursery corals from heat 
stress caused by the current on-going marine heat wave. Creation of 
these temporary special use areas 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 for each site is no larger than the size reasonably 
necessary to protect the coral nursery stock from physical damage. The 
original rule established these special use areas for 60 days, until 
August 26, 2024, 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 areas until water temperatures cool and all of 
the corals are moved back to the original in-shore permitted nursery 
sites.
    NOAA will continue to provide notice of the location of these areas 
through sanctuary radio announcements, press releases, and with 
assistance from the U.S. Coast Guard and FKNMS staff. NOAA has 
requested 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 October 25, 2024.

Justification for Emergency Action and Extension

    The establishment of the three temporary special use areas 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 
allow water temperatures to cool and complete the relocation of the 
corals from these off-shore temporary special use areas back to the 
original in-shore permitted nursery site.
    The interim final rule was necessitated by anticipation of a marine 
heat wave this summer that would impact and likely kill coral reefs in 
the Florida Keys at an unprecedented rate and scale. These conditions 
are unsustainable for coral reef ecosystems, and those at most risk are 
the coral nursery stock because these are located in shallow, nearshore 
protected environments that heat up much more than offshore locations. 
There are 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.
    NOAA and restoration partners identified these three deepwater 
locations because they maintain 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] 
Celsius (C).
    This extension of NOAA's emergency action maintains the offshore 
temporary special use areas to continue to limit the potential for 
physical impact to this sensitive coral nursery stock until 
temperatures cool and corals may be relocated back to the original 
inshore permitted nursery sites. 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 these special use areas 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 
these special use areas is necessary to prevent or minimize the 
destruction of, loss of, or injury to Sanctuary resources.

Emergency Measures

    The 60-day extension of this interim final rule continues the 
applicability of three special use areas, approximately 0.07 square 
miles in size for each site, 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. 
These special use areas were created for 60 days from July 27, 2024 
until August 26, 2024. This action extends the temporary special use 
areas for an additional 60 days, until October 25, 2024.
    The coordinates for this temporary special use area are included in 
Appendix VI to Subpart P of Part 922 and in the July 27, 2024 Federal 
Register (89 FR 53483).

Location and Boundary

    Effective from July 27, 2024 through October 25, 2024, all entry 
except for conducting restoration activities under a valid ONMS permit, 
continuous transit without interruption, and law enforcement purposes 
is prohibited within these temporary special use areas. The boundaries 
for the special use areas begin at Point 1 in each of the coordinates 
in Appendix VI to Subpart P of Part 922 and continue to each subsequent 
point in numerical order ending at Point 5. (Coordinates are 
unprojected (Geographic) and based on the North American Datum of 
1983).
1. Tavernier Special Use Area (Temporary)
    The first of these special use areas was created in 2023 with a 
final temporary rule (88 FR 60887, September

[[Page 68102]]

6, 2023), and proved to be a very good temporary location for moving 
the coral nursery stock given that there was double the survivorship of 
nursery coral relocated to this deeper water site as compared to 
nursery coral that remained at inshore, shallow sites. It is 
approximately five miles southeast of the community of Tavernier, on 
the island of Key Largo.
2. Marathon Special Use Area (Temporary)
    The second area is located within Federal open waters of the 
Atlantic Ocean, approximately four miles offshore from the City of Key 
Colony Beach/Marathon.
3. Looe Key Special Use Area (Temporary)
    The third area is located within Federal open waters of the 
Atlantic Ocean, approximately 6.5 miles offshore from Summerland Key. 
Looe Key Special Use Area includes within its boundary one mooring buoy 
that is used by private individuals or diving and fishing charter 
operators, which is unavailable for these uses while the temporary 
special use area restrictions are in place. This is one of 47 total 
mooring buoys in the vicinity of Looe Key, representing 2% of the total 
mooring buoy availability in this area (or 0.22% of all mooring buoys 
available throughout the sanctuary). Currently within this area 
anchoring is prohibited on living coral other than hardbottom in water 
depths less than 40 feet when visibility is such that the seabed can be 
seen (15 CFR 922.163(a)(5)(ii)), and in Looe Key Sanctuary Preservation 
Area, anchoring is prohibited if a mooring buoy is available or if 
conducted anywhere other than a designated anchoring area when such 
areas have been designated and are available (15 CFR 
922.164(d)(1)(vi)).

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 
$216,972 per violation per day. See 15 CFR 6.3(f)(13). Furthermore, 
NMSA 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 interim final rule, 89 FR 53483, 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 relocated due to heat 
stress to deeper, cooler waters. NOAA invited comments for 30 days 
(until July 29, 2024) following publication of the interim final rule. 
The interim final rule authorized one 60-day extension of the special 
use area, which we hereby invoke.

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

John Armor,
Director, Office of National Marine Sanctuaries, National Ocean 
Service, National Oceanic and Atmospheric Administration.
[FR Doc. 2024-18844 Filed 8-22-24; 8:45 am]
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