2024-18844. Florida Keys National Marine Sanctuary: Establishment of Temporary Special Use Area for Coral Nursery

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Department of Commerce

National Oceanic and Atmospheric Administration

1. 15 CFR Part 922

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.

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 [e-mail].

Additional background materials can be found on the FKNMS website at https://floridakeys.noaa.gov.

( print 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 [e-mail].

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° 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 ( print 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. See15 CFR 6.3(f)(13). Furthermore, NMSA authorizes a proceeding in rem against any vessel used in violation of this regulation. See16 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.