E8-19662. Conducting Consultations Pursuant to Section 304(d) of the National Marine Sanctuaries Act

AGENCY:

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

ACTION:

Advance Notice of Proposed Rulemaking.

SUMMARY:

NOAA solicits public comment on whether development of regulations implementing certain aspects of the consultation provisions of section 304(d) of the National Marine Sanctuaries Act is appropriate and, if so, what such regulations should contain to ensure the efficient application and implementation of, and compliance with, this statutory requirement.

DATES:

Comments on this notice must be received by October 31, 2008.

ADDRESSES:

Submit all electronic comments via the Federal eRulemaking Portal at http://www.regulations.gov. Comments can also be mailed to David Bizot, Attn: 304(d) ANPR, NOIA Office of National Marine Sanctuaries, 1305 East-West Hwy (N/ORM6), SSMC4 #11500, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

David Bizot, ONNS Permit and Consultations Coordinator, 301-713-7268.

SUPPLEMENTARY INFORMATION:

I. Consultation Under Section 304(d) of the National Marine Sanctuaries Act

The National Marine Sanctuaries Act (NNSA) authorizes the Secretary of Commerce (Secretary) to designate and manage areas of the marine environment with special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities as national marine sanctuaries. The Secretary has delegated to NOAA and the Office of National Marine Sanctuaries (ONNS) the authority to implement the NNSA and provide comprehensive management of the National Marine Sanctuary System for its primary purpose of marine resource protection. The ONMS implements the NNSA through regulations, permitting, enforcement, research, monitoring, education and outreach.

In the 1992 amendments to the NMSA, Congress added section 304(d), 16 U.S.C. 1434(d), which requires interagency consultation between NOAA and Federal agencies taking actions, including authorization of private activities, “likely to destroy, cause the loss of, or injure a sanctuary resource.” In addition, Federal agencies are required to consult on proposed actions that “may affect” the resources of Stellwagen Bank National Marine Sanctuary (SBNNS), Public Law 102-587 § 2202(e).

Section 304(d) outlines the basic process by which Federal agencies are to consult with NOAA on activities that trigger the need to consult. If a Federal agency finds that a proposed action is likely to destroy, cause the loss of, or injure sanctuary resources (or, for SBNNS, “may affect” sanctuary resources), the agency is required to submit a “written statement” to the ONMS describing the potential effects of the activity on sanctuary resources at the earliest practicable time, but in no case later than no later than 45 days before the final approval of the action, unless another schedule is agreed to. If the ONNS finds that the proposed action is likely to destroy, cause the loss of, or injure a sanctuary resource, it must, within 45 days of receipt of complete information on the proposed action from the Federal agency, develop and recommend “reasonable and prudent alternatives” for the Federal agency to implement to protect sanctuary resources. If the ONNS recommends alternatives to the proposed action, the Federal agency is required to consult with the ONNS regarding plans for incorporating these recommendations into the proposed action. If the Federal agency decides not to follow the ONNS recommendations, it must provide a written explanation for that decision to the ONNS. If the Federal agency takes an action other than an alternative recommended by the ONNS and the action results in the destruction of, loss of, or injury to a sanctuary resource, the head of the agency must promptly prevent and mitigate further damage and restore or replace the sanctuary resource in a manner approved by the ONNS.

II. Proposed Development of Regulations

ONNS staff work diligently with Federal agencies to assist them in achieving full compliance with the NNSA, and encourage Federal agencies to work proactively with the ONNS to identify actions that may require NNSA consultation and to complete consultation at the earliest practicable time. However, more detailed regulatory provisions addressing the consultation process and requirements (e.g., how section 304(d) relates to other statutory and regulatory requirements, how a consultation might be conducted for a class of actions, and what information must be provided in a sanctuary resource statement) may be helpful to Federal agencies to more efficiently and effectively conduct the required consultation. NOAA therefore provides this notice for purposes of evaluating whether the development of such regulations to further implement the NNSA section 304(d) consultation requirement would be useful to Federal agencies and the public.

III. Action Requested From the Public

To expand upon the basic statutory requirements for NMSA consultations, NOAA is considering addressing a number of elements pertaining to these consultations through regulation and seeks comments on the following:

1. It may be appropriate to provide a process for a Federal agency to conduct a single NMSA consultation on a series or class of actions similar in type and effect. Would the public and other Federal agencies find this useful and, if so, how might the ONMS best identify the most appropriate actions that could be subject to this arrangement?

2. Beyond simply describing the action and its potential effects on sanctuary resources, what additional information, if any, should be included in the written statement provided to the ONMS by the Federal action agency to ensure that the consultation fully addresses the effects of the activity on sanctuary resources?

3. The ONNS anticipates there may be circumstances where a sanctuary resource statement might need to be supplemented, such as when the scope of the proposed action changes prior to the conclusion of the consultation process. The ONMS seeks comment on what other circumstances might require a supplemental statement and if this issue should to be addressed through regulation.

4. The ONNS desires that 304(d) consultations be integrated as efficiently as possible with the other statutory requirements that may apply to a Federal agency action. Should regulations address how 304(d) consultations can be best integrated or otherwise coordinated with, for example, actions required by the National Environmental Policy Act (NEPA), consultations conducted pursuant to section 7 of the Endangered Species Act and section 305(b)(2) of the Magnuson Stevens Fisheries Conservation and Management Act (Essential Fish Habitat provision)? If so, what considerations should be made by the ONNS and Federal agencies when integrating NNSA consultations with these other requirements?

5. When multiple Federal agencies are involved with a project, the ONNS believes it may be helpful to consider designating a lead agency to conduct 304(d) consultations on behalf of the other agencies. Do agencies and the public believe this would be useful and, if so, how should this designation be determined and what procedures should govern this arrangement?

6. The ONNS believes that the ONNS permit and NNSA consultation processes should be integrated for Federal activities that trigger both the 304(d) and NNSA permit requirements. Would additional information on how this integration could work be helpful and, if so, should it be described via regulation?

7. Section 304(d) states that if a Federal agency takes action other than what was recommended, and a sanctuary resource is destroyed, lost, or injured, the agency taking action should “prevent and mitigate further damage and restore or replace the sanctuary resource” in a manner approved by ONNS. Would it be helpful to Federal agencies and the public to have regulations to implement this statutory directive?

8. If the circumstances under which a consultation was completed change (i.e., if new information becomes available, there are changes to the proposed action, or the results of monitoring show injury or loss to sanctuary resources), a previously completed NNSA consultation might need to be reopened in order to protect sanctuary resources in accordance with the NNSA. Should regulatory procedures be developed to govern how and when a consultation should be re-opened?

9. Are there any other ideas that should be considered in order to best facilitate and improve the NNSA consultation requirements and process?

Comments received will help NOAA determine its next steps. If NOAA decides that regulations are appropriate for the implementation of NNSA section 304(d), they will be promulgated in compliance with the Administrative Procedure Act, NEPA and other relevant statutes and executive orders.

Classification: This Advanced Notice of Proposed Rulemaking has been determined to be significant for purposes of Executive Order 12866.

Dated: August 19, 2008.

John H. Dunnigan,

Assistant Administrator for Oceans and Coastal Zone Management.