Endangered and Threatened Species; Designation of Critical Habitat for the Nassau Grouper

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Parts 223 and 226</CFR> <DEPDOC>[Docket No. 231219-0312]</DEPDOC> <RIN>RIN 0648-BL53</RIN> <SUBJECT>Endangered and Threatened Species; Designation of Critical Habitat for the Nassau Grouper</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, NMFS, designate critical habitat for the threatened Nassau grouper ( <E T="03">Epinephelus striatus</E> ) pursuant to section 4 of the Endangered Species Act (ESA). Specific areas designated as critical habitat contain approximately 2,384.67 sq. kilometers (km) (920.73 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 critical habitat designation, as well as all public comments that were received. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This rule becomes effective February 1, 2024. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> The final rule, maps, Final Regulatory Flexibility Analysis, and Critical Habitat Report used in preparation of this final rule are available on the NMFS website at <E T="03">https://www.fisheries.noaa.gov/national/endangered-species-conservation/critical-habitat.</E> All comments and information received are available at <E T="03">http://www.regulations.gov.</E> All documentation is also available upon request. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Orian Tzadik, NMFS Southeast Region, <E T="03">Orian.Tzadik@noaa.gov,</E> 813-906-0353. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), this final rule is based on the best scientific data available concerning the range, biology, habitat, threats to the habitat, and conservation objectives for the Nassau grouper ( <E T="03">Epinephelus striatus</E> ). We have reviewed the available data and public comments received on the proposed rule. We used the best data available to identify: (1) features essential to the conservation of the species; (2) the specific areas within the occupied geographical areas that contain the physical essential feature that may require special management considerations or protection; (3) the Federal activities that may impact the critical habitat; and (4) the potential impacts of designating critical habitat for the species. This final rule is based on the biological information and the economic, national security, and other relevant impacts described in the Critical Habitat Report. This supporting document is available online (see <E T="02">ADDRESSES</E> ) or upon request (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <HD SOURCE="HD1">Background</HD> On June 29, 2016, we published a final rule that listed Nassau grouper as a threatened species (81 FR 42268). The listing rule identified fishing at spawning aggregations and inadequate law enforcement as the most serious threats to this species. No critical habitat was designated for the Nassau grouper at that time. On October 17, 2022, NMFS proposed to designate critical habitat for Nassau grouper within U.S. jurisdictions throughout the range of the species. We requested public comment on the proposed designation and supporting reports during a 60-day comment period, which closed on December 15, 2022 (87 FR 62930). The essential features of the proposed Nassau grouper critical habitat consisted of (1) nearshore to offshore areas necessary for recruitment, development, and growth of Nassau grouper containing a variety of benthic types that provide cover from predators and habitat for prey, and (2) marine sites used for spawning and adjacent waters that support movement and staging associated with spawning. The final rule does not modify the definitions of these essential features but does identify several new areas containing these features. The proposed rule identified 19 specific areas, or units of critical habitat, in waters off the coasts of southeastern Florida, Puerto Rico, Navassa, and the USVI that contain the essential features. The area covered by the Naval Air Station Key West (NASKW) Integrated Natural Resource Management Plan (INRMP) was found to be ineligible for designation pursuant to section 4(a)(3)(B)(i) of the ESA due to the conservation benefits the INRMP affords the Nassau grouper. Pursuant to section 4(b)(2) of the ESA, no areas were proposed for exclusion from the designation on the basis of economic, national security, and other relevant impacts. We did not propose to designate any unoccupied critical habitat. This final rule relies on the ESA section 4 implementing regulations that are currently in effect, which include provisions that were revised or added in 2019. As explained in the proposed critical habitat rule, on July 5, 2022, the United States District Court for the Northern District of California issued an order vacating the ESA section 4 implementing regulations that were revised or added to 50 CFR part 424 in 2019, which included changes made to the definition of physical or biological feature and the criteria for designating unoccupied critical habitat (“2019 regulations”; 84 FR 45020, August 27, 2019). In the proposed rule, we determined that the critical habitat determination and designation would be the same under the 50 CFR part 424 regulations as they existed before 2019 and under the regulations as revised by the 2019 rule. On September 21, 2022, the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay of the district court's July 5 order, and on November 14, 2022, the Northern District of California issued an order granting the government's request for voluntary remand without vacating the 2019 regulations. As a result, the 2019 regulations are once again in effect, and we are applying the 2019 regulations here. Following the remand of the 2019 regulations, on June 22, 2023, NMFS and the U.S. Fish and Wildlife Service published a proposed rule to revise the ESA section 4 implementing regulations (88 FR 40764). Thus, for purposes of this final rule, we also considered whether our analyses or conclusions would be any different under the regulations in effect prior to 2019 or under the recently proposed regulations (87 FR 62930). We have determined that while our analysis would differ in some respects, the conclusions ultimately reached and presented here would be the same under either set of regulations. This final rule describes the critical habitat for Nassau grouper in waters off the coasts of Florida, and the U.S. Caribbean ( <E T="03">i.e.,</E> waters off the coasts of Navassa Island, Puerto Rico, and the U.S. Virgin Islands) and the basis for its designation. It summarizes relevant information regarding the biology and habitat use of Nassau grouper; the methods used to develop the critical habitat designation; a summary of, and responses to, public comments received; and the final critical habitat determination. The more detailed analyses that contributed to the conclusions presented in this final rule, including the analysis of areas eligible for designation, can be found in the Critical Habitat Report (NMFS, 2022) and the Nassau Grouper Biological Report (Hill and Sadovy de Mitcheson, 2013). These supporting documents are referenced throughout this final rule and are available for review (see <E T="02">ADDRESSES</E> ). <HD SOURCE="HD1">Statutory and Regulatory Background for Critical Habitat Designations</HD> 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. Our regulations provide that critical habitat shall not be designated within foreign countries or in other areas outside U.S. jurisdiction (50 CFR 424.12(g)). 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 INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a) if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is designated. 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. T ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 203k characters. 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