Final Notice of Applicability of Special Use Permit Requirements to Certain Categories of Activities Conducted Within the National Marine Sanctuary System, 4898-4903 [06-808]
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Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Notices
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public of the availability of the permit
application for review and comment.
DATES: Written comments on the permit
application must be received at the
appropriate address or fax number (see
ADDRESSES) no later than 5 p.m. Pacific
standard time on March 1, 2006.
ADDRESSES: Written comments on the
permit application should be sent to the
appropriate office as indicated below.
Comments may also be sent via fax to
the number indicated for the request.
Comments will not be accepted if
submitted via e-mail or the Internet. The
permit application and related
documents for permit 1558 are available
for review by appointment at: Protected
Resources Division, NMFS, 650 Capitol
Mall, Suite 8–300, Sacramento, CA
95814 (ph: 916–930–3604, fax: 916–
930–3629). Documents may also be
reviewed by appointment in the Office
of Protected Resources, F/PR3, NMFS,
1315 East-West Highway, Silver Spring,
MD 20910 3226 (301–713–1401).
FOR FURTHER INFORMATION CONTACT:
Michael Tucker at phone number 916–
930–3604, or e-mail:
FRNpermit.sac@noaa.gov
SUPPLEMENTARY INFORMATION:
Authority
Issuance of permits and permit
modifications, as required by the
Endangered Species Act of 1973 (16
U.S.C. 1531 1543) (ESA), is based on a
finding that such permits/modifications:
(1) are applied for in good faith; (2)
would not operate to the disadvantage
of the listed species which are the
subject of the permits; and (3) are
consistent with the purposes and
policies set forth in section 2 of the
ESA. Authority to take listed species is
subject to conditions set forth in the
permits. Permits and modifications are
issued in accordance with and are
subject to the ESA and NMFS
regulations governing listed fish and
wildlife permits (50 CFR parts 222–226).
Those individuals requesting a
hearing on an application listed in this
notice should set out the specific
reasons why a hearing on that
application would be appropriate (see
ADDRESSES). The holding of such a
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
tshawytscha), and threatened Central
Valley steelhead (O. mykiss).
Applications Received
William Mitchell of Jones and Stokes
requests a 4 year-permit (1558) for take
of juvenile Central Valley spring-run
Chinook salmon and Central Valley
steelhead in the Yuba River, California.
The purpose of this study is to evaluate
the effectiveness of specific flow
reduction and fluctuation criteria that
have been established for the lower
Yuba River, by examining the levels of
juvenile stranding and isolation, and
redd dewatering that may occur as a
result of flow fluctuations allowable
under these new criteria. Take is
expected to occur as a result of
deliberate flow reductions that will be
implemented for the specific purpose of
studying the impacts of these reductions
on juvenile salmonids. No field
evaluations of redd dewatering are
proposed. Instead, the potential for redd
dewatering will be evaluated using a
habitat modeling approach.
Quantitative estimates of total take are
not possible given the size of the area
to be affected (the entire lower Yuba
River from Englebright Dam to the
mouth), substantial annual variability in
fish distribution and abundance, and
unpredictable impacts to listed
salmonids associated with the proposed
flow reductions (the purpose of the
study). Instead, annual take estimates
are expressed in terms of the total area
of river where stranding and other forms
of take may occur during each phase of
the study. Based on preliminary
estimates, a maximum of 20 acres of off
channel habitat and 151 acres of low
gradient (<2 percent slope) bar habitat
could be isolated orexposed during the
maximum range of flow reductions that
would be implemented as part of the
study.
Dated: January 24, 2006.
Angela Somma,
Chief, Endangered Species Division, Office
of Protected Resources, National Marine
Fisheries Service.
[FR Doc. E6–1112 Filed 1–27–06; 8:45 am]
BILLING CODE 3510–22–S
Species Covered in This Notice
This notice is relevant to federally
threatened Central Valley spring-run
Chinook salmon (Oncorhynchus
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Final Notice of Applicability of Special
Use Permit Requirements to Certain
Categories of Activities Conducted
Within the National Marine Sanctuary
System
National Marine Sanctuary
Program (NMSP), National Ocean
Service (NOS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
AGENCY:
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 (301) 713–3125.
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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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, shortterm 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
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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
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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-ofinformation 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,
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Frm 00013
Fmt 4703
Sfmt 4703
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
E:\FR\FM\30JAN1.SGM
30JAN1
Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Notices
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.
[FR Doc. 06–808 Filed 1–27–06; 8:45 am]
BILLING CODE 3510–NK–M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
Comment Request
Department of Education.
The IC Clearance Official,
Regulatory Information Management
Services, Office of the Chief Information
Officer invites comments on the
submission for OMB review as required
by the Paperwork Reduction Act of
1995.
DATES: Interested persons are invited to
submit comments on or before March 1,
2006.
ADDRESSES: Written comments should
be addressed to the Office of
Information and Regulatory Affairs,
Attention: Rachel Potter, Desk Officer,
Department of Education, Office of
Management and Budget, 725 17th
Street, NW., Room 10222, New
Executive Office Building, Washington,
DC 20503 or faxed to (202) 395–6974.
SUPPLEMENTARY INFORMATION: Section
3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Chapter 35) requires
that the Office of Management and
Budget (OMB) provide interested
Federal agencies and the public an early
opportunity to comment on information
collection requests. OMB may amend or
waive the requirement for public
consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate State or
Federal law, or substantially interfere
with any agency’s ability to perform its
statutory obligations. The IC Clearance
Official, Regulatory Information
Management Services, Office of the
Chief Information Officer, publishes that
notice containing proposed information
collection requests prior to submission
of these requests to OMB. Each
proposed information collection,
grouped by office, contains the
following: (1) Type of review requested,
e.g. new, revision, extension, existing or
reinstatement; (2) Title; (3) Summary of
the collection; (4) Description of the
need for, and proposed use of, the
information; (5) Respondents and
frequency of collection; and (6)
AGENCY:
cprice-sewell on PROD1PC66 with NOTICES
SUMMARY:
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14:07 Jan 27, 2006
Jkt 208001
Reporting and/or Recordkeeping
burden. OMB invites public comment.
Dated: January 24, 2006.
Angela C. Arrington,
IC Clearance Official, Regulatory Information
Management Services, Office of the Chief
Information Officer.
Institute of Education Sciences
Type of Review: New.
Title: Evaluation of Math Curricula.
Frequency: Semi-Annually.
Affected Public: Not-for-profit
institutions; Individuals or household.
Reporting and Recordkeeping Hour
Burden:
Responses: 10,200.
Burden Hours: 5,000.
Abstract: The Evaluation of Math
Curricula will assess the effectiveness of
up to five early elementary math
curricula. This submission includes
recruitment of districts and schools
only; forms will be developed and
submitted in a second request.
Requests for copies of the information
collection submission for OMB review
may be accessed from https://
edicsweb.ed.gov, by selecting the
‘‘Browse Pending Collections’’ link and
by clicking on link number 2932. When
you access the information collection,
click on ‘‘Download Attachments’’ to
view. Written requests for information
should be addressed to U.S. Department
of Education, 400 Maryland Avenue,
SW., Potomac Center, 9th Floor,
Washington, DC 20202–4700. Requests
may also be electronically mailed to IC
DocketMgr@ed.gov or faxed to 202–245–
6623. Please specify the complete title
of the information collection when
making your request.
Comments regarding burden and/or
the collection activity requirements
should be electronically mailed to the email address IC DocketMgr@ed.gov.
Individuals who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 1–800–877–
8339.
4903
the Committee Management Secretariat,
General Services Administration, notice
is hereby given that the Environmental
Management Advisory Board (Board) is
being renewed for a two-year period
beginning on January 17, 2006. The
Board will provide advice and
recommendations to the Assistant
Secretary for Environmental
Management (EM).
The Board provides the Assistant
Secretary for EM with information and
strategic advice on a broad range of
corporate issues affecting the EM
program. It recommends options to
resolve difficult issues faced in the EM
program including, but not limited to:
Project management and oversight
activities; cost/benefit analyses; program
performance; contracts and acquisition
strategies; human capital management;
and site end states activities. Consensus
recommendations to the DOE from the
Board on programmatic nationwide
resolution of numerous difficult issues
will help achieve the DOE’s objective of
the safe and efficient cleanup of its
contaminated sites.
Additionally, the renewal of the
Environmental Management Advisory
Board has been determined to be
essential to the conduct of the DOE’s
business and to be in the public interest
in connection with the performance of
duties imposed on the DOE by law and
agreement. The Board will operate in
accordance with the provisions of the
FACA, and rules and regulations issued
in implementation of that Act.
Further information regarding this
Advisory Board may be obtained from
Ms. Terri Lamb at (202) 586–9007.
Issued in Washington, DC on January 24,
2006.
James N. Solit,
Advisory Committee Management Officer.
[FR Doc. E6–1117 Filed 1–27–06; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF ENERGY
BILLING CODE 4000–01–P
Funding Opportunity Announcement
DE–PS26–06NT15430, Enhanced Oil
and Natural Gas Production Through
Carbon Dioxide Injection
DEPARTMENT OF ENERGY
AGENCY:
[FR Doc. E6–1125 Filed 1–27–06; 8:45 am]
Office of Environmental Management;
Environmental Management Advisory
Board Renewal
National Energy Technology
Laboratory, Department of Energy
(DOE).
ACTION: Notice of release of funding
opportunity announcement.
Pursuant to Section 14(a)(2)(A) of the
Federal Advisory Committee Act
(FACA) (Pub. L. 92–463), and in
accordance with Title 41 of the Code of
Federal Regulations, section 102–
3.65(a), and following consultation with
SUMMARY: The DOE will support
producers of oil and gas in carrying out
projects to inject carbon dioxide for the
purpose of enhancing recovery of oil or
natural gas, while increasing the
sequestration of carbon dioxide (CO2).
PO 00000
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Fmt 4703
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E:\FR\FM\30JAN1.SGM
30JAN1
]]>Agencies
[Federal Register Volume 71, Number 19 (Monday, January 30, 2006)]
[Notices]
[Pages 4898-4903]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-808]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
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 (301) 713-3125.
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
[[Page 4899]]
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
[[Page 4900]]
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
[[Page 4901]]
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
[[Page 4902]]
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
[[Page 4903]]
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.
[FR Doc. 06-808 Filed 1-27-06; 8:45 am]
BILLING CODE 3510-NK-M
