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]

Download as PDF 4898 Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Notices cprice-sewell on PROD1PC66 with NOTICES 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 VerDate Aug<31>2005 14:07 Jan 27, 2006 Jkt 208001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 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 E:\FR\FM\30JAN1.SGM 30JAN1 cprice-sewell on PROD1PC66 with NOTICES Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Notices 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 VerDate Aug<31>2005 14:07 Jan 27, 2006 Jkt 208001 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 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 4899 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 E:\FR\FM\30JAN1.SGM 30JAN1 4900 Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Notices 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. cprice-sewell on PROD1PC66 with NOTICES 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. VerDate Aug<31>2005 14:07 Jan 27, 2006 Jkt 208001 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. PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 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 E:\FR\FM\30JAN1.SGM 30JAN1 cprice-sewell on PROD1PC66 with NOTICES Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Notices 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 VerDate Aug<31>2005 14:07 Jan 27, 2006 Jkt 208001 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 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 4901 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 E:\FR\FM\30JAN1.SGM 30JAN1 cprice-sewell on PROD1PC66 with NOTICES 4902 Federal Register / Vol. 71, No. 19 / Monday, January 30, 2006 / Notices 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 VerDate Aug<31>2005 14:07 Jan 27, 2006 Jkt 208001 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, PO 00000 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: VerDate Aug<31>2005 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 http:// 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 Frm 00014 Fmt 4703 Sfmt 4703 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]


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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

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