Notice of Modification to the Special Use Permit (SUP) Category for the Continued Presence of Commercial Submarine Cables Within the National Marine Sanctuary System, 66689-66692 [2024-18099]
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Federal Register / Vol. 89, No. 159 / Friday, August 16, 2024 / Notices
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Sheleen Dumas,
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the Under Secretary for Economic Affairs,
Commerce Department.
[FR Doc. 2024–18438 Filed 8–15–24; 8:45 am]
BILLING CODE 3510–JE–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
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Sheleen Dumas,
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the Under Secretary for Economic Affairs,
Commerce Department.
[FR Doc. 2024–18394 Filed 8–15–24; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Notice of Modification to the Special
Use Permit (SUP) Category for the
Continued Presence of Commercial
Submarine Cables Within the National
Marine Sanctuary System
Office of National Marine
Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Notice; request for public
comments.
AGENCY:
NOAA hereby gives public
notice that ONMS is modifying the
special use permit (SUP) category for
the continued presence of commercial
submarine cables on or within a
national marine sanctuary’s submerged
lands so that, for a two-year period, the
SUP category does not apply to
commercial submarine cables in any
new sanctuaries designated after August
16, 2024. In addition, NOAA is seeking
public comment on the use of the SUP
category for the continued presence of
commercial submarine cables, potential
modifications to the SUP category, and
input on developing an updated policy
and permit guidance document for
submarine cable projects. This
temporary suspension affords NOAA
time to consider and respond to public
comment, evaluate the need for
updating the SUP category and permit
guidance document, publish a draft
update of the SUP category and/or the
permit guidance document for further
public comment, and finalize any
updates to the SUP category and/or
permit guidance document, if needed.
During this temporary two-year
suspension, NOAA will not require or
issue SUPs for the continued presence
of commercial submarine cables on or
within the submerged lands of any new
sanctuaries designated after August 16,
SUMMARY:
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Federal Register / Vol. 89, No. 159 / Friday, August 16, 2024 / Notices
2024. Any activities related to
submarine cables that would violate
sanctuary regulatory prohibitions within
new sanctuaries designated after August
16, 2024, which may include such
activities as cable installation,
maintenance, and repair, will still be
prohibited unless approved by other
NOAA approval mechanisms, such as
certifications, authorizations or general
permits. This two-year suspension
period may be subject to further
extension, as appropriate, via
subsequent Federal Register notices.
DATES: The effective date of this
temporary two-year suspension is
August 16, 2024. Comments must be
received on or before September 30,
2024.
Comments may be
submitted by the following method:
Federal eRulemaking Portal: https://
www.regulations.gov. Submit electronic
comments via the Federal eRulemaking
Portal and search for Docket Number
NOAA–NOS–2024–0089.
Instructions: All comments received
are a part of the public record. All
personal identifying information (for
example, name and address) voluntarily
submitted by the commenter may be
publicly accessible. Do not submit
confidential business information or
otherwise sensitive or protected
information. NOAA will accept
anonymous comments (enter N/A in the
required fields to remain anonymous).
FOR FURTHER INFORMATION CONTACT:
Sophie De Beukelaer, NOAA Office of
National Marine Sanctuaries, 1305 East
West Highway, Silver Spring, MD
20910, or sophie.debeukelaer@noaa.gov,
(831) 583–8755.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
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I. Background
Under the National Marine
Sanctuaries Act (NMSA), 16 U.S.C. 1431
et seq., ONMS designates and manages
special areas of the marine environment
as national marine sanctuaries. Congress
first granted NOAA the authority to
issue SUPs for the conduct of specific
activities in national marine sanctuaries
in the 1988 amendments to NMSA (Pub.
L. 100–627). Under section 310 of the
NMSA, 16 U.S.C. 1441, NOAA may
issue SUPs to establish conditions of
access to and use of any sanctuary
resource or to promote public use and
understanding of a sanctuary resource.
See also 15 CFR 922.31 (providing that
a ‘‘person may conduct a specified
special use permit activity, if such
activity is specifically authorized by,
and is conducted in accordance with the
scope, purpose, manner, terms and
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conditions of, a special use permit
issued under this section’’).
In the National Marine Sanctuaries
Amendments Act of 2000 (Pub. L. 106–
513), Congress added a requirement that
prior to identifying any category of
activity subject to a SUP, NOAA has to
provide appropriate public notice. See
16 U.S.C. 1441(b). To comply with this
requirement, NOAA published a list of
five SUP categories—categories of
activities subject to the requirements of
SUPs—in the Federal Register in 2002
(67 FR 35501). One of the five SUP
categories was the maintenance of
submarine cables beneath or on the
seabed. On January 30, 2006, NOAA
amended the submarine cable category
to apply to submarine cables’
‘‘continued presence’’ instead of their
maintenance and, in addition, NOAA
specified the category applies only to
‘‘commercial’’ submarine cables (71 FR
4898). As such, the updated category
provided that ‘‘the continued presence
of commercial submarine cables beneath
or on the seabed’’ was subject to the
requirements of special use permits
under section 310 of the NMSA. NOAA
has since published other notices in the
Federal Register to make updates to
other SUP categories but these notices
did not further revise the SUP category
for the continued presence of
commercial submarine cables.
Section 310(c) of the NMSA, 16 U.S.C.
1441(c), establishes certain conditions
on the issuance of SUPs. Section 310(c)
requires that SUPs:
• Shall authorize the conduct of an
activity only if that activity is
compatible with the purposes for which
the sanctuary is designated and with
protection of sanctuary resources;
• Shall not authorize the conduct of
any activity for a period of more than 5
years unless renewed by NOAA;
• Shall require that activities carried
out under the SUP be conducted in a
manner that does not destroy, cause the
loss of, or injure sanctuary resources;
and
• Shall require the permittee to
purchase and maintain comprehensive
general liability insurance, or post an
equivalent bond, against claims arising
out of activities conducted under the
permit and to agree to hold the United
States harmless against such claims.
In addition, under section 310(d) of
the NMSA, 16 U.S.C. 1441(d), NOAA
may assess three types of fees associated
with the conduct of any activity under
a SUP: (1) administrative costs of
issuing the permit (which NOAA
considers to include a $50 application
fee and labor fees); (2) implementation
and monitoring costs; and (3) fair
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market value (FMV) of the use of the
sanctuary resource.
In 2011, NOAA published Policy and
Permit Guidance for Submarine Cable
Projects 1 (‘‘submarine cable permit
guidance’’) to define and describe how
NOAA will consider proposals to install
and maintain submarine cables within
national marine sanctuaries (76 FR
56973). The submarine cable permit
guidance describes how NOAA
considers proposals (i.e., permit
applications) to conduct site
assessments for cable routes and install,
maintain, repair, and remove submarine
cables within national marine
sanctuaries. The guidance provides
detailed information for a permit
applicant as well as sanctuary staff who
process the permit applications for
activities related to submarine cables in
sanctuaries. NOAA has used this
guidance to approve numerous cables
within existing sanctuary sites.
On November 19, 2015, NOAA
published a Federal Register notice
(FRN) finalizing the methods, formulas
and rationale for the calculations it uses
to assess fees associated with the then
existing seven SUP categories (80 FR
72415). In this FRN, NOAA stated that
it assesses FMV for submarine cables in
national marine sanctuaries based on
the findings of its 2002 study entitled
‘‘Fair Market Value Analysis for a Fiber
Optic Cable Permit in National Marine
Sanctuaries’’ (67 FR 55201).2 The
methodology established in NOAA’s
2002 FMV study provided for FMV
valuation on a per-mile basis, using a
range of fees per mile of overall linear
distance (length) the infrastructure
occupies on or within the seafloor
within the sanctuary. ONMS intends to
consider updating its FMV analysis and
methodology in a new report, which
would be peer reviewed. A separate
FRN would be published when the peer
reviewed report is completed to provide
notice to the public.
1 The Policy and Permit Guidance for Submarine
Cable Projects document is available is available on
the ‘‘National Marine Sanctuaries Documents’’
website at https://sanctuaries.noaa.gov/library/
alldocs.html under the section ‘‘Policy, Permitting
or Regulations’’ or directly at https://
nmssanctuaries.blob.core.windows.net/sanctuariesprod/media/archive/library/pdfs/subcable_final_
guidance_2011.pdf.
2 This 2002 FMV analysis document is available
on the ‘‘National Marine Sanctuaries Documents’’
website at https://sanctuaries.noaa.gov/library/
alldocs.html under the section ‘‘Policy, Permitting
or Regulations’’ or directly at https://
nmssanctuaries.blob.core.windows.net/sanctuariesprod/media/archive/library/pdfs/fmv_focpermit_
final_2002.pdf.
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II. Action Description
A. Two-Year Pause of SUP Requirement
for Commercial Submarine Cables in
New Sanctuaries
With this notice, the SUP category for
the continued presence of commercial
submarine cables is modified so that, for
a two-year period, the SUP category
does not apply to commercial
submarine cables in new sanctuaries
designated after August 16, 2024.
During this timeframe, the continued
presence of commercial submarine
cables on or within the submerged lands
in newly designated sanctuaries will not
be subject to the SUP requirements of
section 310 of the NMSA or 15 CFR part
922. The temporary suspension affords
NOAA time to evaluate the need for
updating (i) the SUP category, (ii) its
submarine cable permit guidance, and/
or (iii) the FMV methodology, consider
and respond to public comment,
publish any proposed updates to the
SUP category and/or submarine cable
permit guidance for further public
comment, and finalize any updates to
the SUP category, submarine cable
permit guidance, and/or FMV
methodology, if needed and
appropriate. During this temporary
suspension, NOAA will not require or
issue SUPs for the continued presence
of commercial submarine cables on or
within the submerged lands of newly
designated sanctuaries.
NOAA’s current (2011) submarine
cable policy and permit guidance
addresses multiple sanctuary permit
mechanisms, including sanctuary
general permits and authorizations as
well as SUPs. NOAA intends to propose
updates to this submarine cable permit
guidance in a separate action, subject to
further public review and comment.
However, at this time, NOAA invites
any public comments on the current
submarine cable permit guidance and
input on updating the guidance. Any
comments received will be considered
and addressed as NOAA is developing
a proposed update to the guidance.
An update to the submarine cable
permit guidance could include various
possible changes, including but not
limited to: updating references to and
clarifications regarding national
sanctuary permitting regulations;
updating construction and mitigation
measures; and adding details about how
repair and maintenance would be
approved or about any different
approval processes for different types of
cables. Revisions could specify
streamlining steps, such as bundling
approval for multiple cables into one
action, and how different stages of a
cable’s ‘‘lifecycle’’ (installation, repair,
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maintenance, and removal) can be
handled. NOAA is reviewing Bureau of
Ocean Energy Management’s (BOEM’s)
and coastal States’ requirements for
permitting submarine electrical
transmission cables, and it may be
prudent to refer to these standards in
the policy and permitting guidelines (or,
to explain how NOAA will handle any
variances should a State’s and BOEM
requirements differ). The updated
submarine cable permit guidance could
contain a more comprehensive section
on prohibited activities within different
sites and a clearer description of the
different types of approvals NOAA
ONMS can issue for prohibited
activities related to cables in national
marine sanctuaries. It could also include
examples of how NOAA ONMS has
issued permits and authorizations for
cable related activities in the past, how
permit applications will be evaluated,
and a checklist of information to
include in the permit application
materials.
Once NOAA has considered public
input, relevant available science, other
peer reviewed information, and
provided the final updated submarine
cable permit guidance to the public,
NOAA would then finalize any updates
to the SUP category for the continued
presence of commercial submarine
cables on or within the submerged lands
of any national marine sanctuary in a
subsequent FRN. In addition, NOAA
intends to consider updating its
submarine cable FMV assessment and
methodology in a peer-reviewed report,
and would provide public notice of any
updated and final FMV assessment and
methodology concurrent with any final
updates to the SUP category.
This notice does not alter:
• The applicability of the SUP
categories other than the category for the
continued presence of commercial
submarine cables beneath or on the
seabed;
• The applicability of the SUP
category for the continued presence of
commercial submarine cables beneath
or on the seabed in national marine
sanctuaries designated prior to August
16, 2024; or
• The applicability of sanctuary
permit types other than SUPs to
submarine cables in national marine
sanctuaries.
Commercial submarine cables in
national marine sanctuaries designated
prior to August 16, 2024 will continue
to be subject to the requirements of this
SUP category, including terms and
conditions of any currently effective
SUPs.
Any prohibited activities related to
submarine cables that would violate
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66691
NOAA regulatory prohibitions for
national marine sanctuaries designated
after August 16, 2024, which may
include such activities as cable
installation, maintenance, and repair,
will still be prohibited unless approved
by other NOAA approval mechanisms,
such as certifications, authorizations, or
general permits. Existing cables within
national marine sanctuaries designated
after August 16, 2024 should be certified
to be in compliance with the NMSA.
Certifications shall be obtained within a
set number of days of the effective date
of sanctuary designation as indicated in
the final regulations of the sanctuary
designation’s FRN.
This two-year suspension period may
be subject to further extension, as
appropriate, via subsequent FRNs.
B. Rationale
A temporary two-year suspension of
requiring or issuing SUPs for
commercial submarine cables in
national marine sanctuaries designated
after August 16, 2024 affords NOAA
time to evaluate if and how it needs to
update the SUP category, including the
FMV methodology, for the continued
presence of commercial submarine
cables on or within the submerged lands
of any national marine sanctuary.
NOAA is initiating this action in part to
be responsive to comments received on
the draft Chumash Heritage National
Marine Sanctuary (CHNMS) designation
documents,3 raising concerns regarding
aspects of this SUP category and its
implications for industries reliant on
submarine cables, including
telecommunications and offshore
renewable energy. NOAA recognizes the
importance of telecommunication cables
and submarine electrical transmission
cables from renewable offshore energy
installations to shore. NOAA will
continue to support the implementation
of the Presidential Policy Directive 21:
Critical Infrastructure Security and
Resilience and the critical infrastructure
Communications Sector-Specific Plan 4
within the Department of Homeland
Security’s National Infrastructure
Protection Plan. NOAA is responding to
the development plans consistent with
NOAA’s statutory authorities and
Executive Order 14008, which directs
all federal agencies to cooperate and
assist in addressing the climate crisis,
including planning for and executing
offshore wind development while
3 At https://www.regulations.gov/, Docket No.
NOAA–NOS–2021–0080.
4 The Department of Homeland Securitiy’s
Cybersecurity and Infrastructure Security Agency’s
Communications Sector-Specific Plan can be
downloaded from: https://www.cisa.gov/2015sector-specific-plans.
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Federal Register / Vol. 89, No. 159 / Friday, August 16, 2024 / Notices
ensuring robust protection for the
Nation’s waters and biodiversity (86 FR
7619). In addition, NOAA acknowledges
that submarine cables have been
designated as critical infrastructure by
the U.S. Government due to their
importance for U.S. commercial and
national security interests.
As authorized in the NMSA, NOAA
protects nationally-significant marine
resources while facilitating compatible
uses in sanctuaries. 16 U.S.C.
1431(b)(6). Cable construction projects
have been proposed, approved by
NOAA, and successfully built within
national marine sanctuaries. However,
for the policy reasons described above
and in consideration of the public and
industry comments NOAA has received,
NOAA considers it timely to evaluate
and seek input on the need to update
the SUP category for commercial
submarine cables. During the pendency
of this process, to avoid uncertainty,
NOAA has determined it appropriate to
suspend the application of the
submarine cable SUP category for a twoyear period for national marine
sanctuaries designated after August 16,
2024.
NOAA has a thorough understanding
of how cables impact national marine
sanctuaries designated before August
16, 2024, and, for those sites, has
established methods to approve
prohibited activities related to cables
and to consider and issue SUPs for the
continued presence of commercial
submarine cables on the seabed. NOAA
may use different approval types
depending on differences in its
regulations for each national marine
sanctuary, findings, or other agency
permits. Approval processes in place for
national marine sanctuaries designated
before August 16, 2024 provide
reasonable predictability and assurance
and suspending the SUPs for the
continued presence of commercial
cables for a short two-year time period
could disrupt existing management,
therefore, NOAA is not extending the
pause to those sites.
Within the two-year suspension
period, NOAA intends to consider and
respond to public comments on a
separate, proposed update to its
submarine cable permit guidance
document. In updating and improving
the submarine cable permit guidance
document and providing an opportunity
for the public to comment on the
updated guidance document, NOAA
intends to be responsive to CHNMS
draft designation documents
comments 5 requesting clearer guidance
5 At https://www.regulations.gov/, Docket No.
NOAA–NOS–2021–0080.
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on the permitting and approval process
for cables.
III. Request for Comments
NOAA is seeking public comment on
the following:
• The use of the SUP category for the
continued presence of commercial
submarine cables;
• Potential modifications to this SUP
category; and
• The current (2011) submarine cable
permit guidance and input on updating
the guidance.
Any subsequent FRN proposing
updates to the SUP category and/or to
the submarine cable permit guidance
will consider and address public
comments received on this notice.
IV. Classification
A. National Environmental Policy Act
NOAA has concluded this action will
not have a significant effect,
individually or cumulatively, on the
human environment. This action is
categorically excluded from the
requirement to prepare an
Environmental Assessment or
Environmental Impact Statement in
accordance with the NOAA Categorical
Exclusion G7 and because there are no
extraordinary circumstances precluding
the application of this categorical
exclusion. Specifically, this action is a
notice of an administrative and legal
nature, and any future effects of
subsequent actions are too broad,
speculative, or conjectural to lend
themselves to meaningful analysis and
will be subject to later NEPA analysis.
This action would only temporarily
pause the issuance of new special use
permits for the continued presence of
commercial submarine cables on or
within the submerged lands of any
national marine sanctuary designated
after August 16, 2024. It does not
commit the outcome of any particular
federal action taken by NOAA. NOAA is
proposing to update the 2011 submarine
cable guidelines and request public
comment on the newly proposed
guidance. NOAA will ensure the
appropriate NEPA documentation is
prepared prior to taking final action or
making any irretrievable or irreversible
commitment of agency resources.
B. Paperwork Reduction Act
Notwithstanding any other provisions
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with a collection of information subject
to the requirements of the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et
seq., unless that collection of
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information displays a currently valid
Office of Management and Budget
(OMB) control number. NOAA has an
OMB control number (0648–0141) for
the collection of public information
related to the processing of ONMS
permits across the National Marine
Sanctuary System. NOAA does not
anticipate that this temporary two-year
suspension of the SUP category for the
continued presence of commercial
submarine cables in newly designated
sanctuaries would alter the public
reporting burden for national marine
sanctuaries permits. As such, this action
does not necessitate a modification to
the information collection approval.
Authority: 16 U.S.C. 1431 et seq.
John Armor,
Director, Office of National Marine
Sanctuaries, National Ocean Service,
National Oceanic and Atmospheric
Administration.
[FR Doc. 2024–18099 Filed 8–15–24; 8:45 am]
BILLING CODE 3510–NK–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Agency Information Collection
Activities; Submission to the Office of
Management and Budget (OMB) for
Review and Approval; Comment
Request; Environmental Compliance
Questionnaire for NOAA Federal
Funding Opportunity Applicants
National Oceanic &
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of information collection,
request for comment.
AGENCY:
The Department of
Commerce, in accordance with the
Paperwork Reduction Act of 1995
(PRA), invites the general public and
other Federal agencies to comment on
proposed, and continuing information
collections, which helps us assess the
impact of our information collection
requirements and minimize the public’s
reporting burden. The purpose of this
notice is to allow for 60 days of public
comment preceding submission of the
collection to OMB.
DATES: To ensure consideration,
comments regarding this proposed
information collection must be received
on or before October 15, 2024.
ADDRESSES: Interested persons are
invited to submit written comments to
Adrienne Thomas, NOAA PRA Officer,
at NOAA.PRA@noaa.gov. Please
reference OMB Control Number 0648–
0538 in the subject line of your
SUMMARY:
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]]>Agencies
[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Notices]
[Pages 66689-66692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18099]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
Notice of Modification to the Special Use Permit (SUP) Category
for the Continued Presence of Commercial Submarine Cables Within the
National Marine Sanctuary System
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Notice; request for public comments.
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SUMMARY: NOAA hereby gives public notice that ONMS is modifying the
special use permit (SUP) category for the continued presence of
commercial submarine cables on or within a national marine sanctuary's
submerged lands so that, for a two-year period, the SUP category does
not apply to commercial submarine cables in any new sanctuaries
designated after August 16, 2024. In addition, NOAA is seeking public
comment on the use of the SUP category for the continued presence of
commercial submarine cables, potential modifications to the SUP
category, and input on developing an updated policy and permit guidance
document for submarine cable projects. This temporary suspension
affords NOAA time to consider and respond to public comment, evaluate
the need for updating the SUP category and permit guidance document,
publish a draft update of the SUP category and/or the permit guidance
document for further public comment, and finalize any updates to the
SUP category and/or permit guidance document, if needed. During this
temporary two-year suspension, NOAA will not require or issue SUPs for
the continued presence of commercial submarine cables on or within the
submerged lands of any new sanctuaries designated after August 16,
[[Page 66690]]
2024. Any activities related to submarine cables that would violate
sanctuary regulatory prohibitions within new sanctuaries designated
after August 16, 2024, which may include such activities as cable
installation, maintenance, and repair, will still be prohibited unless
approved by other NOAA approval mechanisms, such as certifications,
authorizations or general permits. This two-year suspension period may
be subject to further extension, as appropriate, via subsequent Federal
Register notices.
DATES: The effective date of this temporary two-year suspension is
August 16, 2024. Comments must be received on or before September 30,
2024.
ADDRESSES: Comments may be submitted by the following method:
Federal eRulemaking Portal: https://www.regulations.gov. Submit
electronic comments via the Federal eRulemaking Portal and search for
Docket Number NOAA-NOS-2024-0089.
Instructions: All comments received are a part of the public
record. All personal identifying information (for example, name and
address) voluntarily submitted by the commenter may be publicly
accessible. Do not submit confidential business information or
otherwise sensitive or protected information. NOAA will accept
anonymous comments (enter N/A in the required fields to remain
anonymous).
FOR FURTHER INFORMATION CONTACT: Sophie De Beukelaer, NOAA Office of
National Marine Sanctuaries, 1305 East West Highway, Silver Spring, MD
20910, or [email protected], (831) 583-8755.
SUPPLEMENTARY INFORMATION:
I. Background
Under the National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et
seq., ONMS designates and manages special areas of the marine
environment as national marine sanctuaries. Congress first granted NOAA
the authority to issue SUPs for the conduct of specific activities in
national marine sanctuaries in the 1988 amendments to NMSA (Pub. L.
100-627). Under section 310 of the NMSA, 16 U.S.C. 1441, NOAA may issue
SUPs to establish conditions of access to and use of any sanctuary
resource or to promote public use and understanding of a sanctuary
resource. See also 15 CFR 922.31 (providing that a ``person may conduct
a specified special use permit activity, if such activity is
specifically authorized by, and is conducted in accordance with the
scope, purpose, manner, terms and conditions of, a special use permit
issued under this section'').
In the National Marine Sanctuaries Amendments Act of 2000 (Pub. L.
106-513), Congress added a requirement that prior to identifying any
category of activity subject to a SUP, NOAA has to provide appropriate
public notice. See 16 U.S.C. 1441(b). To comply with this requirement,
NOAA published a list of five SUP categories--categories of activities
subject to the requirements of SUPs--in the Federal Register in 2002
(67 FR 35501). One of the five SUP categories was the maintenance of
submarine cables beneath or on the seabed. On January 30, 2006, NOAA
amended the submarine cable category to apply to submarine cables'
``continued presence'' instead of their maintenance and, in addition,
NOAA specified the category applies only to ``commercial'' submarine
cables (71 FR 4898). As such, the updated category provided that ``the
continued presence of commercial submarine cables beneath or on the
seabed'' was subject to the requirements of special use permits under
section 310 of the NMSA. NOAA has since published other notices in the
Federal Register to make updates to other SUP categories but these
notices did not further revise the SUP category for the continued
presence of commercial submarine cables.
Section 310(c) of the NMSA, 16 U.S.C. 1441(c), establishes certain
conditions on the issuance of SUPs. Section 310(c) requires that SUPs:
Shall authorize the conduct of an activity only if that
activity is compatible with the purposes for which the sanctuary is
designated and with protection of sanctuary resources;
Shall not authorize the conduct of any activity for a
period of more than 5 years unless renewed by NOAA;
Shall require that activities carried out under the SUP be
conducted in a manner that does not destroy, cause the loss of, or
injure sanctuary resources; and
Shall require the permittee to purchase and maintain
comprehensive general liability insurance, or post an equivalent bond,
against claims arising out of activities conducted under the permit and
to agree to hold the United States harmless against such claims.
In addition, under section 310(d) of the NMSA, 16 U.S.C. 1441(d),
NOAA may assess three types of fees associated with the conduct of any
activity under a SUP: (1) administrative costs of issuing the permit
(which NOAA considers to include a $50 application fee and labor fees);
(2) implementation and monitoring costs; and (3) fair market value
(FMV) of the use of the sanctuary resource.
In 2011, NOAA published Policy and Permit Guidance for Submarine
Cable Projects \1\ (``submarine cable permit guidance'') to define and
describe how NOAA will consider proposals to install and maintain
submarine cables within national marine sanctuaries (76 FR 56973). The
submarine cable permit guidance describes how NOAA considers proposals
(i.e., permit applications) to conduct site assessments for cable
routes and install, maintain, repair, and remove submarine cables
within national marine sanctuaries. The guidance provides detailed
information for a permit applicant as well as sanctuary staff who
process the permit applications for activities related to submarine
cables in sanctuaries. NOAA has used this guidance to approve numerous
cables within existing sanctuary sites.
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\1\ The Policy and Permit Guidance for Submarine Cable Projects
document is available is available on the ``National Marine
Sanctuaries Documents'' website at https://sanctuaries.noaa.gov/library/alldocs.html under the section ``Policy, Permitting or
Regulations'' or directly at https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf.
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On November 19, 2015, NOAA published a Federal Register notice
(FRN) finalizing the methods, formulas and rationale for the
calculations it uses to assess fees associated with the then existing
seven SUP categories (80 FR 72415). In this FRN, NOAA stated that it
assesses FMV for submarine cables in national marine sanctuaries based
on the findings of its 2002 study entitled ``Fair Market Value Analysis
for a Fiber Optic Cable Permit in National Marine Sanctuaries'' (67 FR
55201).\2\ The methodology established in NOAA's 2002 FMV study
provided for FMV valuation on a per-mile basis, using a range of fees
per mile of overall linear distance (length) the infrastructure
occupies on or within the seafloor within the sanctuary. ONMS intends
to consider updating its FMV analysis and methodology in a new report,
which would be peer reviewed. A separate FRN would be published when
the peer reviewed report is completed to provide notice to the public.
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\2\ This 2002 FMV analysis document is available on the
``National Marine Sanctuaries Documents'' website at https://sanctuaries.noaa.gov/library/alldocs.html under the section
``Policy, Permitting or Regulations'' or directly at https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/fmv_focpermit_final_2002.pdf.
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[[Page 66691]]
II. Action Description
A. Two-Year Pause of SUP Requirement for Commercial Submarine Cables in
New Sanctuaries
With this notice, the SUP category for the continued presence of
commercial submarine cables is modified so that, for a two-year period,
the SUP category does not apply to commercial submarine cables in new
sanctuaries designated after August 16, 2024. During this timeframe,
the continued presence of commercial submarine cables on or within the
submerged lands in newly designated sanctuaries will not be subject to
the SUP requirements of section 310 of the NMSA or 15 CFR part 922. The
temporary suspension affords NOAA time to evaluate the need for
updating (i) the SUP category, (ii) its submarine cable permit
guidance, and/or (iii) the FMV methodology, consider and respond to
public comment, publish any proposed updates to the SUP category and/or
submarine cable permit guidance for further public comment, and
finalize any updates to the SUP category, submarine cable permit
guidance, and/or FMV methodology, if needed and appropriate. During
this temporary suspension, NOAA will not require or issue SUPs for the
continued presence of commercial submarine cables on or within the
submerged lands of newly designated sanctuaries.
NOAA's current (2011) submarine cable policy and permit guidance
addresses multiple sanctuary permit mechanisms, including sanctuary
general permits and authorizations as well as SUPs. NOAA intends to
propose updates to this submarine cable permit guidance in a separate
action, subject to further public review and comment. However, at this
time, NOAA invites any public comments on the current submarine cable
permit guidance and input on updating the guidance. Any comments
received will be considered and addressed as NOAA is developing a
proposed update to the guidance.
An update to the submarine cable permit guidance could include
various possible changes, including but not limited to: updating
references to and clarifications regarding national sanctuary
permitting regulations; updating construction and mitigation measures;
and adding details about how repair and maintenance would be approved
or about any different approval processes for different types of
cables. Revisions could specify streamlining steps, such as bundling
approval for multiple cables into one action, and how different stages
of a cable's ``lifecycle'' (installation, repair, maintenance, and
removal) can be handled. NOAA is reviewing Bureau of Ocean Energy
Management's (BOEM's) and coastal States' requirements for permitting
submarine electrical transmission cables, and it may be prudent to
refer to these standards in the policy and permitting guidelines (or,
to explain how NOAA will handle any variances should a State's and BOEM
requirements differ). The updated submarine cable permit guidance could
contain a more comprehensive section on prohibited activities within
different sites and a clearer description of the different types of
approvals NOAA ONMS can issue for prohibited activities related to
cables in national marine sanctuaries. It could also include examples
of how NOAA ONMS has issued permits and authorizations for cable
related activities in the past, how permit applications will be
evaluated, and a checklist of information to include in the permit
application materials.
Once NOAA has considered public input, relevant available science,
other peer reviewed information, and provided the final updated
submarine cable permit guidance to the public, NOAA would then finalize
any updates to the SUP category for the continued presence of
commercial submarine cables on or within the submerged lands of any
national marine sanctuary in a subsequent FRN. In addition, NOAA
intends to consider updating its submarine cable FMV assessment and
methodology in a peer-reviewed report, and would provide public notice
of any updated and final FMV assessment and methodology concurrent with
any final updates to the SUP category.
This notice does not alter:
The applicability of the SUP categories other than the
category for the continued presence of commercial submarine cables
beneath or on the seabed;
The applicability of the SUP category for the continued
presence of commercial submarine cables beneath or on the seabed in
national marine sanctuaries designated prior to August 16, 2024; or
The applicability of sanctuary permit types other than
SUPs to submarine cables in national marine sanctuaries.
Commercial submarine cables in national marine sanctuaries
designated prior to August 16, 2024 will continue to be subject to the
requirements of this SUP category, including terms and conditions of
any currently effective SUPs.
Any prohibited activities related to submarine cables that would
violate NOAA regulatory prohibitions for national marine sanctuaries
designated after August 16, 2024, which may include such activities as
cable installation, maintenance, and repair, will still be prohibited
unless approved by other NOAA approval mechanisms, such as
certifications, authorizations, or general permits. Existing cables
within national marine sanctuaries designated after August 16, 2024
should be certified to be in compliance with the NMSA. Certifications
shall be obtained within a set number of days of the effective date of
sanctuary designation as indicated in the final regulations of the
sanctuary designation's FRN.
This two-year suspension period may be subject to further
extension, as appropriate, via subsequent FRNs.
B. Rationale
A temporary two-year suspension of requiring or issuing SUPs for
commercial submarine cables in national marine sanctuaries designated
after August 16, 2024 affords NOAA time to evaluate if and how it needs
to update the SUP category, including the FMV methodology, for the
continued presence of commercial submarine cables on or within the
submerged lands of any national marine sanctuary. NOAA is initiating
this action in part to be responsive to comments received on the draft
Chumash Heritage National Marine Sanctuary (CHNMS) designation
documents,\3\ raising concerns regarding aspects of this SUP category
and its implications for industries reliant on submarine cables,
including telecommunications and offshore renewable energy. NOAA
recognizes the importance of telecommunication cables and submarine
electrical transmission cables from renewable offshore energy
installations to shore. NOAA will continue to support the
implementation of the Presidential Policy Directive 21: Critical
Infrastructure Security and Resilience and the critical infrastructure
Communications Sector-Specific Plan \4\ within the Department of
Homeland Security's National Infrastructure Protection Plan. NOAA is
responding to the development plans consistent with NOAA's statutory
authorities and Executive Order 14008, which directs all federal
agencies to cooperate and assist in addressing the climate crisis,
including planning for and executing offshore wind development while
[[Page 66692]]
ensuring robust protection for the Nation's waters and biodiversity (86
FR 7619). In addition, NOAA acknowledges that submarine cables have
been designated as critical infrastructure by the U.S. Government due
to their importance for U.S. commercial and national security
interests.
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\3\ At https://www.regulations.gov/, Docket No. NOAA-NOS-2021-
0080.
\4\ The Department of Homeland Securitiy's Cybersecurity and
Infrastructure Security Agency's Communications Sector-Specific Plan
can be downloaded from: https://www.cisa.gov/2015-sector-specific-plans.
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As authorized in the NMSA, NOAA protects nationally-significant
marine resources while facilitating compatible uses in sanctuaries. 16
U.S.C. 1431(b)(6). Cable construction projects have been proposed,
approved by NOAA, and successfully built within national marine
sanctuaries. However, for the policy reasons described above and in
consideration of the public and industry comments NOAA has received,
NOAA considers it timely to evaluate and seek input on the need to
update the SUP category for commercial submarine cables. During the
pendency of this process, to avoid uncertainty, NOAA has determined it
appropriate to suspend the application of the submarine cable SUP
category for a two-year period for national marine sanctuaries
designated after August 16, 2024.
NOAA has a thorough understanding of how cables impact national
marine sanctuaries designated before August 16, 2024, and, for those
sites, has established methods to approve prohibited activities related
to cables and to consider and issue SUPs for the continued presence of
commercial submarine cables on the seabed. NOAA may use different
approval types depending on differences in its regulations for each
national marine sanctuary, findings, or other agency permits. Approval
processes in place for national marine sanctuaries designated before
August 16, 2024 provide reasonable predictability and assurance and
suspending the SUPs for the continued presence of commercial cables for
a short two-year time period could disrupt existing management,
therefore, NOAA is not extending the pause to those sites.
Within the two-year suspension period, NOAA intends to consider and
respond to public comments on a separate, proposed update to its
submarine cable permit guidance document. In updating and improving the
submarine cable permit guidance document and providing an opportunity
for the public to comment on the updated guidance document, NOAA
intends to be responsive to CHNMS draft designation documents comments
\5\ requesting clearer guidance on the permitting and approval process
for cables.
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\5\ At https://www.regulations.gov/, Docket No. NOAA-NOS-2021-
0080.
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III. Request for Comments
NOAA is seeking public comment on the following:
The use of the SUP category for the continued presence of
commercial submarine cables;
Potential modifications to this SUP category; and
The current (2011) submarine cable permit guidance and
input on updating the guidance.
Any subsequent FRN proposing updates to the SUP category and/or to
the submarine cable permit guidance will consider and address public
comments received on this notice.
IV. Classification
A. National Environmental Policy Act
NOAA has concluded this action will not have a significant effect,
individually or cumulatively, on the human environment. This action is
categorically excluded from the requirement to prepare an Environmental
Assessment or Environmental Impact Statement in accordance with the
NOAA Categorical Exclusion G7 and because there are no extraordinary
circumstances precluding the application of this categorical exclusion.
Specifically, this action is a notice of an administrative and legal
nature, and any future effects of subsequent actions are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will be subject to later NEPA analysis. This action would only
temporarily pause the issuance of new special use permits for the
continued presence of commercial submarine cables on or within the
submerged lands of any national marine sanctuary designated after
August 16, 2024. It does not commit the outcome of any particular
federal action taken by NOAA. NOAA is proposing to update the 2011
submarine cable guidelines and request public comment on the newly
proposed guidance. NOAA will ensure the appropriate NEPA documentation
is prepared prior to taking final action or making any irretrievable or
irreversible commitment of agency resources.
B. Paperwork Reduction Act
Notwithstanding any other provisions of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., unless that collection of information displays a currently valid
Office of Management and Budget (OMB) control number. NOAA has an OMB
control number (0648-0141) for the collection of public information
related to the processing of ONMS permits across the National Marine
Sanctuary System. NOAA does not anticipate that this temporary two-year
suspension of the SUP category for the continued presence of commercial
submarine cables in newly designated sanctuaries would alter the public
reporting burden for national marine sanctuaries permits. As such, this
action does not necessitate a modification to the information
collection approval.
Authority: 16 U.S.C. 1431 et seq.
John Armor,
Director, Office of National Marine Sanctuaries, National Ocean
Service, National Oceanic and Atmospheric Administration.
[FR Doc. 2024-18099 Filed 8-15-24; 8:45 am]
BILLING CODE 3510-NK-P
