06-808. Final Notice of Applicability of Special Use Permit Requirements to Certain Categories of Activities Conducted Within the National Marine Sanctuary System

AGENCY:

National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice.

SUMMARY:

On May 20, 2002 NOAA published a notice in the Federal Register announcing the applicability of the special use permit requirements (Section 310) of the National Marine Sanctuaries Act to certain categories of activities conducted within the National Marine Sanctuary System. The notice requested public comment on the subject of special use permits. This notice makes minor changes to the previously published list and responds generally to the comments received. Through this notice, NOAA is also expanding the list of activities subject to the requirements of special use permits by adding private overflights to the overflights category.

DATES:

This notice is effective as of January 30, 2006. Comments on the addition of private overflights to the list must be received by March 31, 2006.

ADDRESSES:

Submit all written comments to David Bizot, National Permit Coordinator, National Marine Sanctuary Program, 1305 East West Highway (N/ORM6), 11th floor, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

John Armor at [phone].

SUPPLEMENTARY INFORMATION:

Background

Congress first granted NOAA the authority to issue special use permits for the conduct of specific activities in National Marine Sanctuaries (NMSs or sanctuaries) in the 1988 Amendments to the National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.; NMSA) (Pub. L. 100-627). The NMSA allows NOAA to issue special use permits to establish conditions of access to and use of any sanctuary resource or to promote public use and understanding of a sanctuary resource. Since 1988, special use permits have been issued to persons conducting usually commercial (and usually revenue-generating), otherwise prohibited, activities in NMSs. Such activities have included a diving concessionaire conducting trips to the USS Monitor, the filming of television advertisements, and the use of Sanctuaries for public events. Section 310 of the NMSA (16 U.S.C. 1441) allows NOAA to issue special use permits to authorize the conduct of specific activities with four conditions. The NMSA requires that special use permits:

1. Shall authorize the conduct of an activity only if that activity is compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources;

2. Shall not authorize the conduct of any activity for a period of more than 5 years unless renewed by NOAA;

3. Shall require that activities carried out under the permit be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources; and

4. Shall require the permittee to purchase and maintain comprehensive general liability insurance, or post an equivalent bond, against claims arising out of activities conducted under the permit and to agree to hold the United States harmless against such claims.

Condition 3 above tends to be the most limiting in that NOAA may only issue a special use permit if the activity does not destroy, cause the loss of, or injure a sanctuary resource. Since an activity that is prohibited by National Marine Sanctuary Program (NMSP) regulations (15 CFR Part 922) has some adverse impact, it is generally thought that it should not qualify for a special use permit. While this is generally true, there are some prohibited activities that, when conducted pursuant to specific terms and conditions, are not likely to destroy, cause the loss of, or injure a sanctuary resource. Several of these activities are of a nature that do not qualify for other NMS permit types (for example, because they are not related to research or education), but do meet the statutory conditions for special use permits. Therefore, special use permits may be issued for certain activities that are both prohibited by NMSP regulations and do not destroy, cause the loss of, or injure a sanctuary resource when conducted in a certain way.

Section 310 of the NMSA allows NOAA to assess and collect fees for special use permits. A special use permit fee must include each of three components. They are:

1. The costs incurred, or expected to be incurred, by NOAA in issuing the permit;

2. The costs incurred, or expected to be incurred, by NOAA as a direct result of the conduct of the activity for which the permit is issued, including costs of monitoring the conduct of the activity; and

3. An amount which represents the fair market value of the use of the sanctuary resource.

Number 1 above essentially covers the administrative costs that NOAA incurs when it processes permit applications (including labor, printing costs, and contracts for the preparation of supporting documentation). Number 2 includes amounts to fund monitoring projects designed to assess the success or failure of the permittee to comply with the terms and conditions of the permit, including confirming the lack of resource damage. It may also include money to recoup any costs incurred by NOAA in enforcing permit terms and conditions. Number 3 is calculated using economic valuation methods appropriate to the situation. In the National Marine Sanctuaries Amendments Act of 2000 (Pub. L. 106-513), Congress added a new requirement that prior to requiring a special use permit for any category of activity, NOAA shall give appropriate public notice. Subsection (b) of section 310 of the NMSA, as amended by Public Law 106-513, provides: “[NOAA] shall provide appropriate public notice before identifying any category of activity subject to a special use permit under subsection (a).” In addition, Public Law 106-513 gives the NMSP the authority to accept in-kind contributions in lieu of these fees, or waive or reduce any fees for any activity that does not derive a profit from the access to or use of sanctuary resources. To comply with this new requirement, on May 20, 2002, NOAA published in the Federal Register (67 FR 35501), a list of categories of activities that are subject to the special use permitting requirements of the NMFS. The May 20, 2002 notice listed those categories of activities that have been subject to the requirements of Section 310 in the past and will continue to be in the future (subject to possible future amendments). This notice makes minor changes to the list published on May 20, 2002 and responds to the public comments received. Through this notice, NOAA is also expanding one of the categories listed in the May 20, 2002 notice and will accept comments on the addition of this new category.

Final List of Categories of Activities Subject to the Special Use Permitting Requirements

The list of categories of activities subject to the requirements of special use permits and the descriptions of those activities published in the Federal Register on May 20, 2002 (67 FR 35501) has been modified to: Expand the overflight category to include private overflights; respond as appropriate to public comments; and to clarify the activity descriptions. The revised list of categories of activities and their descriptions are below.

The following categories of activities are subject to the requirements of special use permits under section 310 of the NMSA:

1. The disposal of cremated human remains by a commercial operator in any national marine sanctuary;

2. The operation of aircraft below the minimum altitude in restricted zones of national marine sanctuaries;

3. The placement and subsequent recovery of objects associated with public events on non-living substrate of the seabed;

4. The deposit or placement and immediate recovery of objects related to special effects of motion pictures; and

5. The continued presence of commercial submarine cables beneath or on the seabed.

Each category of activities listed above is further described below.

Disposal of Cremated Human Remains by a Commercial Entity

The NMSP has received permit applications to spread cremated human remains (i.e., ashes) over and within the Monterey Bay National Marine Sanctuary (MBNMS). Since most NMS regulations prohibit the discharge of material or other matter into a sanctuary, this activity requires a permit. After an extensive review of the common practices involved with the disposal of cremated human remains, the MBNMS Superintendent determined that no detectable negative impacts to NMS resources and qualities were expected to result from the practice when certain conditions are adhered to by those engaged in the activity.

Conditions placed on this activity that eliminate negative impacts to sanctuary resources include: Restricting the minimum altitude of any aircraft used to facilitate the spreading of the ashes; prohibiting the use of any plastics or any other toxic material associated with the remains; and requiring that the remains be sufficiently incinerated.

Commercial entities proposing the dispersion of cremated human remains must apply for and receive a special use permit prior to initiating this activity within the boundaries of any sanctuary, as described above.

Overflights in Restricted Zones

To protect sanctuary resources, the operation of aircraft below certain altitudes within zones of MBNMS, Olympic Coast National Marine Sanctuary (OCNMS), Channel Islands National Marine Sanctuary, and Gulf of the Farallones National Marine Sanctuary is restricted by NMSP regulations (15 CFR Part 922).

The NMSP has received applications for permits to fly below the minimum altitude for commercial and private purposes within the restricted zones of MBNMS. Examples of commercial activities that have been subject to special use permits in the past include the filming of television advertisements and documentaries. The NMSP has also received an application for a permit to fly below the minimum altitude within the restricted zones of MBNMS for private purposes. This request was made by an individual who needed to fly below the threshold to access his/her private landing strip.

When conditioned so that impacts to sanctuary resources are eliminated, these activities may qualify for special use permits. Conditions on the permits generally include, but are not limited to, limitations on the number of passes an aircraft can take in a particular location, requirements for monitors to be present during operations, and seasonal restrictions so as to avoid certain areas during particularly sensitive times of the year (e.g., marine mammal pupping season). The NMSP will not issue a special use permit if disturbance of sensitive marine resources (e.g., birds, marine mammals) may result.

Overflights for scientific research or educational purposes are eligible for research or education permit categories issued under the NMSP's regulatory authority.

Anyone wishing to operate an aircraft for commercial or private purposes below the designated altitude in any of the restricted overflight zones must apply for and receive a special use permit prior to conducting that activity.

The Placement and Subsequent Recovery of Objects Associated With Public Events on Non-Living Substrate

The NMSP has, in the past, issued special use permits to non-profit institutions and public entities to place temporary objects (e.g., marker buoys) on non-living portions of the seabed when that activity is associated with public events. Public triathlons and the California Chocolate Abalone dive are two such events that have been subject to special use permit requirements. Since the placement of objects on the seabed within most NMSs is prohibited by NMSP regulations, this activity usually requires a permit.

Conditions of special use permits for these types of public events require that each object be placed on the seafloor in such a way as to not destroy, cause the loss of, or injure sanctuary resources or qualities. The objects are required to be removed in a similar non-intrusive fashion after each event. In addition, the markers and other objects themselves are to be composed of substances that do not leach deleterious materials or other matter into the sanctuary.

Special use permits are required for public events that involve the placement of objects on the seafloor in any sanctuary. Anyone wishing to hold a public event that involves the placement of an object on the seafloor of a sanctuary must apply for and receive a special use permit prior to holding the event. Scientific research or educational activities that involve the placement and subsequent recovery of objects on the seafloor are eligible for research or education permit categories issued under the NMSP's requlatory authority.

The Deposit or Placement and Immediate Recovery of Objects Related to Special Effects of Motion Pictures

The NMSP has received inquiries from motion picture companies seeking to deposit or place objects for special effects into a sanctuary and immediately recover them. No special use permit has been applied for or issued for this type of activity to date. Sanctuary regulations generally prohibit the deposit or placement of objects on the seabed as well as the discharge of material or other matter into the sanctuary. If the NMSP determines to allow this type of activity, the permit would be conditioned to ensure the objects being deposited or placed would not injure, cause the loss of, or destroy any sanctuary resource (e.g., are of a nature that would not cause harmful substances to leach into the sanctuary, that the objects would be recovered from the sanctuary immediately, adn that the area of the seafloor where the object would be deposited is not sensitive to the proposed disturbance). In addition, the NMSP would require that, if permitted, this type of activitity is done at locations and during times of the year that are least likely to have sensitive sanctuary resources in the vicinity of the activity.

Any individual or entity proposing to deposit or place into a sanctuary any object related to special effects by the motion picture or other industry must apply for and receive a special use permit prior to conducting this activity.

The Continued Presence of Commercial Submarine Cables on or Beneath the Seafloor

The NMSP has issued two special use permits to allow the ongoing or continued presence of telecommunications fiber optic cables within the OCNMS (two cables permitted in November of 1999) and Stellwagen Bank National Marine Sanctuary (one cable permitted in June of 2000). While the actual installation (e.g., burial), removal, and any necessary repair activities were authorized under the NMSP's regulatory authority, the continued presence of the cable was allowed through the special use permit issued pursuant to section 310 of the NMSA. This category of activity will continue to be subject to the requirements of section 310 of the NMSA.

The NMSP does not consider intrusive activities related to commercial submarine cables such as installation (e.g., burial), removal, and maintenance/repair work to qualify for a special use permit. When such activities are subject to NMSP regulatory prohibitions, they will be reviewed and, if appropriate, approved through the NMSP's regulatory authority (and not through the special use permit authority). Commercial submarine cables that were installed in a sanctuary prior to the sanctuary's designation or prior to the date of this notice are not required to get a special use permit to remain in place if they have not already been required to do so. Intrusive activities subject to NMSP regulatory prohibitions (trenching, removal, etc.) related to existing commercial submarine cables would require approval under the NMSP's regulatory authority before proceeding.

Responses to Comments

The NMSP received comments from four entities during the comment period (May 20, 2002 through July 19, 2002). The Department of the Navy (Office of General Counsel), the MBNMS Sanctuary Advisory Council, the Ocean Conservancy, and the North American Submarine Cable Association submitted comments. Comments are summarized below with responses.

Comment 1. Special use permits are not required or are not appropriate for the maintenance of submarine cables (MBNMS/SAC; Navy; NASCA; OC).

Response: In writing the original notice, NOAA used the phrase “maintenance of commercial submarine cables” to mean the simple act of the cable lying on or beneath the seafloor. NOAA did not intent for this to include intrusive maintenance activities, such as cable removal or repair work. These activities are not considered appropriate for special use permits. The description of this activity (as well as the title) has been changed in this notice to reflect this. Specifically, the term “maintenance” has been replaced by “continued presence” to more accurately reflect NOAA's intent.

As stated in NOAA's May 20, 2002 Federal Register notice, NOAA is currently considering the continued appropriateness of issuing special use permits to allow the continued presence of commercial submarine cables on or beneath the seafloor of a NMS. Depending on the outcome of this separate process, NOAA may amend this notice, as appropriate. Until further notice, however, the continued presence of commercial submarine cables remains subject to the requirements of Section 310 of the NMSA.

Comment 2. NOAA has failed to justify its distinction between commercial and non-commercial submarine cables. (NASCA).

Response: NOAA disagrees and is justified in making a distinction in how it processes applications to conduct activities related to cable systems for different purposes (i.e., commercial versus non-commercial cable systems). Activities related to commercial submarine cable system do not fit within the scope of the permit types under the NMSP regulations. NMSP regulations provide for the issuance of permits for a variety of non-commercial purposes (e.g., research and education) that further a sanctuary's goals and objectives. Rather, commercial cables appear to clearly fall within the Congressional intent for the use of special use permits.

Comment 3. In adopting rules, regulations, and policies for submarine cables beyond the 12-mile territorial sea, NOAA must ensure that it does not infringe upon high-seas freedoms regarding submarine cables as guaranteed by international law. (Navy; NASCA).

Response: NOAA recognizes that under international law other nations are entitled to lay and maintain submarine cables on the United States' continental shelf beyond the 12-mile territorial sea. As a coastal nation, under international law the Untied States has sovereign rights with respect to its natural resources and may take reasonable measures to protect those resources from harmful activities, consistent with the rights of other nations under applicable international law. It is NOAA's intent to apply the NMSA and implementing regulations in a manner that both protects the resources of its sanctuaries and respects the rights of other nations under international law, as is required by the NMSA.

Comment 4. Activities conducted by the Department of Defense to maintain its submarine cable systems are not subject to the requirements of special use permits. (Navy).

Response: First, please see the response to comment number one regarding the term “maintenance” in the original notice. Second, as discussed in the response to comment number two, non-commercial submarine cable activities that are prohibited under the NMSP regulations are more appropriately addressed under NMSP regulatory authority for approval (e.g., research permits). Finally, many ongoing military activities conducted by the Department of Defense since prior to the designation of a NMS are expressly exempted from by NMSP regulations and would therefore not require any form of approval from the NMSP.

Comment 5. 16 U.S.C. 1434(d) outlines a process for federal agencies to consult with sanctuary personnel regarding actions of federal agencies which are “likely to destroy, cause the loss of, or injure any sanctuary resources.” To the extent maintenance of DoD submarine cables is “likely to destroy, cause the loss of, or injure any sanctuary resource,” which the Department of Defense believes it will not, the consultation process would govern the maintenance process and not the proposed special permit process. (Navy)

Response: Section 304(d) consultation (16 U.S.C. 1434(d)) applies to Federal agency actions internal or external to a sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause the loss of, or injure any sanctuary resource. Section 304(d) does not supplant the NMSP regulations. Rather, it is an additional tool for protecting sanctuary resources. Therefore, Federal agency actions are subject to both the requirements of section 304(d) of the NMSA and the NMSP regulations.

In cases where a Federal agency action is both a prohibited activity under NMSP regulations and requires consultation pursuant to section 304(d) of the NMSA, the Federal agency should apply for the appropriate NMS permit or other authorization. If the permit or other authorization is issued, the Federal agency would also be notified that its obligations to consult under section 304(d) of the NMSA have been satisfied. Most military activities, however, are expressly exempted from the NMSP regulations and do not require a permit from the NMSP.

Comment 6. The NMSP should publish a separate Federal Register notice soliciting comment for each special use permit it considers so that the public will have opportunity to provide input on each permit application. (OC).

Response: NOAA does not think that issuance of a separate Federal Register notice for most special use permit applications is necessary or appropriate because most will be for small, short-term activities. In some cases, however, NOAA may choose to solicit public comments on a pending special use permit application. The NMSP will decide on a case-by-case basis whether issuance of a case-specific Federal Register notice is appropriate.

Comment 7. Submarine cables offer important public interest benefits which NOAA's permitting processes and rulemaking have yet to acknowledge. (NASCA).

Response: The public interest benefits ofa specific submarine cable project is not a factor that would determine the applicability of the special use permit requirements to that entire category of activities. Further, the NMSA does not exclude activities with “important public interest benefits” from being subject to the requirements of special use permits.

Comment 8. NOAA should explain its suggestion that commercial submarine cables should be barred from NMSs. (NASCA).

Response: Nothing in this notice suggests that submarine cables should be barred from NMSs. This notice merely states that NOAA has required special use permits for the continued presence of commercial submarine cables in the past and will continue to do so until further notice (see response to comment number one).

Comment 9. Submarine cables are environmentally benign. (NASCA).

Response: Addressing this issue generally is beyond the scope of this notice. As for special use permits, the NMSA specifically requires that special use permits be issued only for activities that do not destroy, cause the loss of, or injure sanctuary resources.

Comment 10. Any fear of a long-term upward trend in submarine cable deployment is unfounded. (NASCA).

Response: The list of categories of activities in this notice are not necessarily those activities NOAA thinks will be increasing in frequency in the future. Rather, the list represents all categories of activities for which NOAA has issued special use permits in the last few years or for which NOAA expects to receive an application in the near future.

Comment 11. NOAA's National Environmental Policy Act (NEPA) compliance section in the notice (1) is flawed because its criteria for determining the significance of the environmental impacts of an action give inappropriate weight to public opposition and (2) evidences insufficient interagency coordination. (NASCA).

Response: The NEPA analysis provided in the previous notice (67 FR 35501) was for the action of publishing the notice and for that action alone. The NEPA analysis was not intended to meet NOAA's NEPA responsibilities for the issuance of future special use permits. The notice did, however, provide additional information about how NOAA might meet its NEPA obligations for future special use permit decisions by stating that: “* * * the special use permit authority may at times be used to allow activities that may meet the Council on Environmental Quality's definition of the term ‘significant’ despite the lack of apparent environmental impacts (e.g., publicly controversial activities).” This was not meant to imply that public controversy alone would dictate the level of NEPA documentation NOAA would prepare for individual actions. Rather, NOAA will consider public controversy among the other factors provided in the Council on Environmental Quality's implementing regulations (40 CFR Parts 1500-1508) and NOAA Administrative Order 216-6 in deciding the appropriate level of NEPA documentation for each special use permit decision. In the interest of clarity, we have deleted the sentence in question.

The notice also stated: “* * * NOAA may, in certain circumstances, combine its special use permit authority with other regulatory authorities to allow activities not described above that may result in environmental impacts to NMS resources and thus require the preparation of an environmental assessment or environmental impact statement.” The “other regulatory authorities” referred to NOAA's regulatory authority under 15 CFR 922.49, which allows the NMSP to allow in some sanctuaries the conduct of activities (that would otherwise be prohibited by NMSP regulations) that are specifically authorized by a local, state, or federal authority of competent jurisdiction. This reference was not meant to allude to NOAA's responsibilities under NEPA to coordinate with other Federal agencies. NOAA has coordinated extensively with other government agencies regarding the issue of submarine cables in NMSs including the Federal Communications Commission, the Army Corps of Engineers, the United States Coast Guard, the State of Washington, the Makah Indian Nation, the Commonwealth of Massachusetts, and others. NOAA will continue to involve appropriate entities in meeting its obligations and responsibilities under NEPA.

Request for Comments

By this notice, NOAA is also requesting comments on the expansion of the overflight category to include private overflights in the list of categories of activities subject to the special use permit requirements. NOAA is especially interested in comments that pertain specifically to the impacts of private overflights on sanctuary resources and the eligibility of that category of activities for special use permits.

Miscellaneous Requirements

Paperwork Reduction Act

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. Applications for the special use permits discussed in this notice involves a collection-of-information requirement subject to the requirements of the PRA. OMB has approved this collection-of-information requirement under OMB control number 0648-0141.

The collection-of-information requirement applies to persons seeking special use permits to conduct otherwise prohibited activities and is necessary to determine whether the proposed activities are consistent with the terms and conditions of special use permits prescribed by the NMSA. Public reporting burden for this collection of information is estimated to average twenty four (24) hours per response (application, annual report, and financial report), including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This estimate also includes the significant time that may be required should the applicant choose to prepare a draft of any documentation that may be required under the NEPA, e.g., environmental impact statement or environmental assessment. If the applicant chooses not to prepare a draft of any NEPA documentation for the proposed activity, or if only minimal NEA documentation is needed, the public reporting burden would be much less (approximately one hour for each response). If additional NEPA documentation is required and not prepared in draft by the permit applicant, NOAA would be required to prepare this documentation using its own staff and resources prior to NOAA taking final action on the application. As staff time and funding resources are limited, the preparation of complicated NEPA documents can significantly add to the time NOAA takes to review the application and take final action. This may also significantly add to the costs incurred by the federal government in processing the special use permit applications and thus the cost to the applicant. Send comments on the burden estimate or on any other aspect of the collection of information, and ways of reducing the burden, to NOAA and OMB (see ADDRESSES).

National Environmental Policy Act

NOAA has concluded that this action will not have a significant effect, individually or cumulatively, on the human environment. This action is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement in accordance with Section 6.05c3(i) of NOAA Administrative Order 216-6. Specifically, this action is a notice of an administrative and legal nature. Furthermore, individual permit actions by the NMSP will be subject to additional case-by-case analysis, as required under NEPA, and will be completed when those actions are proposed to be taken by NMSP in the future.

NOAA also expects that many of these individual actions will also meet the criteria of one or more of the categorical exclusions described in NOAA Administrative Order 216-6 because special use permits cannot be issued for activities that are expected to result in any destruction of, injury to, or loss of any sanctuary resource. NOAA may, in certain circumstances, combine its special use permit authority with other regulatory authorities to allow activities not described above that may result in environmental impacts and thus require the preparation of an environmental assessment or environmental impact statement. In these situations NOAA will ensure that the appropriate NEPA documentation is prepared prior to taking final action on a permit or making any irretrievable or irreversible commitment of agency resources.

Dated: January 23, 2006.

John H. Dunnigan,

Assistant Administrator, Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration.