2024-18099. Notice of Modification to the Special Use Permit (SUP) Category for the Continued Presence of Commercial Submarine Cables Within the National Marine Sanctuary System

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Department of Commerce

National Oceanic and Atmospheric Administration

AGENCY:

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

ACTION:

Notice; request for public comments.

SUMMARY:

NOAA hereby gives public notice that ONMS is modifying the special use permit (SUP) category for the continued presence of commercial submarine cables on or within a national marine sanctuary's submerged lands so that, for a two-year period, the SUP category does not apply to commercial submarine cables in any new sanctuaries designated after August 16, 2024. In addition, NOAA is seeking public comment on the use of the SUP category for the continued presence of commercial submarine cables, potential modifications to the SUP category, and input on developing an updated policy and permit guidance document for submarine cable projects. This temporary suspension affords NOAA time to consider and respond to public comment, evaluate the need for updating the SUP category and permit guidance document, publish a draft update of the SUP category and/or the permit guidance document for further public comment, and finalize any updates to the SUP category and/or permit guidance document, if needed. During this temporary two-year suspension, NOAA will not require or issue SUPs for the continued presence of commercial submarine cables on or within the submerged lands of any new sanctuaries designated after August 16, ( print page 66690) 2024. Any activities related to submarine cables that would violate sanctuary regulatory prohibitions within new sanctuaries designated after August 16, 2024, which may include such activities as cable installation, maintenance, and repair, will still be prohibited unless approved by other NOAA approval mechanisms, such as certifications, authorizations or general permits. This two-year suspension period may be subject to further extension, as appropriate, via subsequent Federal Register notices.

DATES:

The effective date of this temporary two-year suspension is August 16, 2024. Comments must be received on or before September 30, 2024.

ADDRESSES:

Comments may be submitted by the following method:

Federal eRulemaking Portal: https://www.regulations.gov. Submit electronic comments via the Federal eRulemaking Portal and search for Docket Number NOAA-NOS-2024-0089.

Instructions: All comments received are a part of the public record. All personal identifying information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NOAA will accept anonymous comments (enter N/A in the required fields to remain anonymous).

FOR FURTHER INFORMATION CONTACT:

Sophie De Beukelaer, NOAA Office of National Marine Sanctuaries, 1305 East West Highway, Silver Spring, MD 20910, or [e-mail], [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Under the National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et seq., ONMS designates and manages special areas of the marine environment as national marine sanctuaries. Congress first granted NOAA the authority to issue SUPs for the conduct of specific activities in national marine sanctuaries in the 1988 amendments to NMSA (Pub. L. 100-627). Under section 310 of the NMSA, 16 U.S.C. 1441, NOAA may issue SUPs to establish conditions of access to and use of any sanctuary resource or to promote public use and understanding of a sanctuary resource. See also15 CFR 922.31 (providing that a “person may conduct a specified special use permit activity, if such activity is specifically authorized by, and is conducted in accordance with the scope, purpose, manner, terms and conditions of, a special use permit issued under this section”).

In the National Marine Sanctuaries Amendments Act of 2000 (Pub. L. 106-513), Congress added a requirement that prior to identifying any category of activity subject to a SUP, NOAA has to provide appropriate public notice. See16 U.S.C. 1441(b). To comply with this requirement, NOAA published a list of five SUP categories—categories of activities subject to the requirements of SUPs—in the Federal Register in 2002 (67 FR 35501). One of the five SUP categories was the maintenance of submarine cables beneath or on the seabed. On January 30, 2006, NOAA amended the submarine cable category to apply to submarine cables' “continued presence” instead of their maintenance and, in addition, NOAA specified the category applies only to “commercial” submarine cables (71 FR 4898). As such, the updated category provided that “the continued presence of commercial submarine cables beneath or on the seabed” was subject to the requirements of special use permits under section 310 of the NMSA. NOAA has since published other notices in the Federal Register to make updates to other SUP categories but these notices did not further revise the SUP category for the continued presence of commercial submarine cables.

Section 310(c) of the NMSA, 16 U.S.C. 1441(c), establishes certain conditions on the issuance of SUPs. Section 310(c) requires that SUPs:

• 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;
• Shall not authorize the conduct of any activity for a period of more than 5 years unless renewed by NOAA;
• Shall require that activities carried out under the SUP be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources; and
• 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.

In addition, under section 310(d) of the NMSA, 16 U.S.C. 1441(d), NOAA may assess three types of fees associated with the conduct of any activity under a SUP: (1) administrative costs of issuing the permit (which NOAA considers to include a $50 application fee and labor fees); (2) implementation and monitoring costs; and (3) fair market value (FMV) of the use of the sanctuary resource.

In 2011, NOAA published Policy and Permit Guidance for Submarine Cable Projects ^[1] (“submarine cable permit guidance”) to define and describe how NOAA will consider proposals to install and maintain submarine cables within national marine sanctuaries (76 FR 56973). The submarine cable permit guidance describes how NOAA considers proposals ( i.e., permit applications) to conduct site assessments for cable routes and install, maintain, repair, and remove submarine cables within national marine sanctuaries. The guidance provides detailed information for a permit applicant as well as sanctuary staff who process the permit applications for activities related to submarine cables in sanctuaries. NOAA has used this guidance to approve numerous cables within existing sanctuary sites.

On November 19, 2015, NOAA published a Federal Register notice (FRN) finalizing the methods, formulas and rationale for the calculations it uses to assess fees associated with the then existing seven SUP categories (80 FR 72415). In this FRN, NOAA stated that it assesses FMV for submarine cables in national marine sanctuaries based on the findings of its 2002 study entitled “Fair Market Value Analysis for a Fiber Optic Cable Permit in National Marine Sanctuaries” (67 FR 55201).^[2] The methodology established in NOAA's 2002 FMV study provided for FMV valuation on a per-mile basis, using a range of fees per mile of overall linear distance (length) the infrastructure occupies on or within the seafloor within the sanctuary. ONMS intends to consider updating its FMV analysis and methodology in a new report, which would be peer reviewed. A separate FRN would be published when the peer reviewed report is completed to provide notice to the public.

( print page 66691)

II. Action Description

A. Two-Year Pause of SUP Requirement for Commercial Submarine Cables in New Sanctuaries

With this notice, the SUP category for the continued presence of commercial submarine cables is modified so that, for a two-year period, the SUP category does not apply to commercial submarine cables in new sanctuaries designated after August 16, 2024. During this timeframe, the continued presence of commercial submarine cables on or within the submerged lands in newly designated sanctuaries will not be subject to the SUP requirements of section 310 of the NMSA or 15 CFR part 922. The temporary suspension affords NOAA time to evaluate the need for updating (i) the SUP category, (ii) its submarine cable permit guidance, and/or (iii) the FMV methodology, consider and respond to public comment, publish any proposed updates to the SUP category and/or submarine cable permit guidance for further public comment, and finalize any updates to the SUP category, submarine cable permit guidance, and/or FMV methodology, if needed and appropriate. During this temporary suspension, NOAA will not require or issue SUPs for the continued presence of commercial submarine cables on or within the submerged lands of newly designated sanctuaries.

NOAA's current (2011) submarine cable policy and permit guidance addresses multiple sanctuary permit mechanisms, including sanctuary general permits and authorizations as well as SUPs. NOAA intends to propose updates to this submarine cable permit guidance in a separate action, subject to further public review and comment. However, at this time, NOAA invites any public comments on the current submarine cable permit guidance and input on updating the guidance. Any comments received will be considered and addressed as NOAA is developing a proposed update to the guidance.

An update to the submarine cable permit guidance could include various possible changes, including but not limited to: updating references to and clarifications regarding national sanctuary permitting regulations; updating construction and mitigation measures; and adding details about how repair and maintenance would be approved or about any different approval processes for different types of cables. Revisions could specify streamlining steps, such as bundling approval for multiple cables into one action, and how different stages of a cable's “lifecycle” (installation, repair, maintenance, and removal) can be handled. NOAA is reviewing Bureau of Ocean Energy Management's (BOEM's) and coastal States' requirements for permitting submarine electrical transmission cables, and it may be prudent to refer to these standards in the policy and permitting guidelines (or, to explain how NOAA will handle any variances should a State's and BOEM requirements differ). The updated submarine cable permit guidance could contain a more comprehensive section on prohibited activities within different sites and a clearer description of the different types of approvals NOAA ONMS can issue for prohibited activities related to cables in national marine sanctuaries. It could also include examples of how NOAA ONMS has issued permits and authorizations for cable related activities in the past, how permit applications will be evaluated, and a checklist of information to include in the permit application materials.

Once NOAA has considered public input, relevant available science, other peer reviewed information, and provided the final updated submarine cable permit guidance to the public, NOAA would then finalize any updates to the SUP category for the continued presence of commercial submarine cables on or within the submerged lands of any national marine sanctuary in a subsequent FRN. In addition, NOAA intends to consider updating its submarine cable FMV assessment and methodology in a peer-reviewed report, and would provide public notice of any updated and final FMV assessment and methodology concurrent with any final updates to the SUP category.

This notice does not alter:

• The applicability of the SUP categories other than the category for the continued presence of commercial submarine cables beneath or on the seabed;
• The applicability of the SUP category for the continued presence of commercial submarine cables beneath or on the seabed in national marine sanctuaries designated prior to August 16, 2024; or
• The applicability of sanctuary permit types other than SUPs to submarine cables in national marine sanctuaries.

Commercial submarine cables in national marine sanctuaries designated prior to August 16, 2024 will continue to be subject to the requirements of this SUP category, including terms and conditions of any currently effective SUPs.

Any prohibited activities related to submarine cables that would violate NOAA regulatory prohibitions for national marine sanctuaries designated after August 16, 2024, which may include such activities as cable installation, maintenance, and repair, will still be prohibited unless approved by other NOAA approval mechanisms, such as certifications, authorizations, or general permits. Existing cables within national marine sanctuaries designated after August 16, 2024 should be certified to be in compliance with the NMSA. Certifications shall be obtained within a set number of days of the effective date of sanctuary designation as indicated in the final regulations of the sanctuary designation's FRN.

This two-year suspension period may be subject to further extension, as appropriate, via subsequent FRNs.

B. Rationale

A temporary two-year suspension of requiring or issuing SUPs for commercial submarine cables in national marine sanctuaries designated after August 16, 2024 affords NOAA time to evaluate if and how it needs to update the SUP category, including the FMV methodology, for the continued presence of commercial submarine cables on or within the submerged lands of any national marine sanctuary. NOAA is initiating this action in part to be responsive to comments received on the draft Chumash Heritage National Marine Sanctuary (CHNMS) designation documents,^[3] raising concerns regarding aspects of this SUP category and its implications for industries reliant on submarine cables, including telecommunications and offshore renewable energy. NOAA recognizes the importance of telecommunication cables and submarine electrical transmission cables from renewable offshore energy installations to shore. NOAA will continue to support the implementation of the Presidential Policy Directive 21: Critical Infrastructure Security and Resilience and the critical infrastructure Communications Sector-Specific Plan ^[4] within the Department of Homeland Security's National Infrastructure Protection Plan. NOAA is responding to the development plans consistent with NOAA's statutory authorities and Executive Order 14008, which directs all federal agencies to cooperate and assist in addressing the climate crisis, including planning for and executing offshore wind development while ( print page 66692) ensuring robust protection for the Nation's waters and biodiversity (86 FR 7619). In addition, NOAA acknowledges that submarine cables have been designated as critical infrastructure by the U.S. Government due to their importance for U.S. commercial and national security interests.

As authorized in the NMSA, NOAA protects nationally-significant marine resources while facilitating compatible uses in sanctuaries. 16 U.S.C. 1431(b)(6). Cable construction projects have been proposed, approved by NOAA, and successfully built within national marine sanctuaries. However, for the policy reasons described above and in consideration of the public and industry comments NOAA has received, NOAA considers it timely to evaluate and seek input on the need to update the SUP category for commercial submarine cables. During the pendency of this process, to avoid uncertainty, NOAA has determined it appropriate to suspend the application of the submarine cable SUP category for a two-year period for national marine sanctuaries designated after August 16, 2024.

NOAA has a thorough understanding of how cables impact national marine sanctuaries designated before August 16, 2024, and, for those sites, has established methods to approve prohibited activities related to cables and to consider and issue SUPs for the continued presence of commercial submarine cables on the seabed. NOAA may use different approval types depending on differences in its regulations for each national marine sanctuary, findings, or other agency permits. Approval processes in place for national marine sanctuaries designated before August 16, 2024 provide reasonable predictability and assurance and suspending the SUPs for the continued presence of commercial cables for a short two-year time period could disrupt existing management, therefore, NOAA is not extending the pause to those sites.

Within the two-year suspension period, NOAA intends to consider and respond to public comments on a separate, proposed update to its submarine cable permit guidance document. In updating and improving the submarine cable permit guidance document and providing an opportunity for the public to comment on the updated guidance document, NOAA intends to be responsive to CHNMS draft designation documents comments ^[5] requesting clearer guidance on the permitting and approval process for cables.

III. Request for Comments

NOAA is seeking public comment on the following:

• The use of the SUP category for the continued presence of commercial submarine cables;
• Potential modifications to this SUP category; and
• The current (2011) submarine cable permit guidance and input on updating the guidance.

Any subsequent FRN proposing updates to the SUP category and/or to the submarine cable permit guidance will consider and address public comments received on this notice.

IV. Classification

A. National Environmental Policy Act

NOAA has concluded 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 the NOAA Categorical Exclusion G7 and because there are no extraordinary circumstances precluding the application of this categorical exclusion. Specifically, this action is a notice of an administrative and legal nature, and any future effects of subsequent actions are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will be subject to later NEPA analysis. This action would only temporarily pause the issuance of new special use permits for the continued presence of commercial submarine cables on or within the submerged lands of any national marine sanctuary designated after August 16, 2024. It does not commit the outcome of any particular federal action taken by NOAA. NOAA is proposing to update the 2011 submarine cable guidelines and request public comment on the newly proposed guidance. NOAA will ensure the appropriate NEPA documentation is prepared prior to taking final action or making any irretrievable or irreversible commitment of agency resources.

B. 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. NOAA has an OMB control number (0648-0141) for the collection of public information related to the processing of ONMS permits across the National Marine Sanctuary System. NOAA does not anticipate that this temporary two-year suspension of the SUP category for the continued presence of commercial submarine cables in newly designated sanctuaries would alter the public reporting burden for national marine sanctuaries permits. As such, this action does not necessitate a modification to the information collection approval.

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

John Armor,

Director, Office of National Marine Sanctuaries, National Ocean Service, National Oceanic and Atmospheric Administration.

Footnotes

1.  The Policy and Permit Guidance for Submarine Cable Projects document is available is available on the “National Marine Sanctuaries Documents” website at https://sanctuaries.noaa.gov/​library/​alldocs.html under the section “Policy, Permitting or Regulations” or directly at https://nmssanctuaries.blob.core.windows.net/​sanctuaries-prod/​media/​archive/​library/​pdfs/​subcable_​final_​guidance_​2011.pdf.

2.  This 2002 FMV analysis document is available on the “National Marine Sanctuaries Documents” website at https://sanctuaries.noaa.gov/​library/​alldocs.html under the section “Policy, Permitting or Regulations” or directly at https://nmssanctuaries.blob.core.windows.net/​sanctuaries-prod/​media/​archive/​library/​pdfs/​fmv_​focpermit_​final_​2002.pdf.

3.  At https://www.regulations.gov/​, Docket No. NOAA-NOS-2021-0080.

4.  The Department of Homeland Securitiy's Cybersecurity and Infrastructure Security Agency's Communications Sector-Specific Plan can be downloaded from: https://www.cisa.gov/​2015-sector-specific-plans.

5.  At https://www.regulations.gov/​, Docket No. NOAA-NOS-2021-0080.