Notice2024-18099
Notice of Modification to the Special Use Permit (SUP) Category for the Continued Presence of Commercial Submarine Cables Within the National Marine Sanctuary System
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 16, 2024
Effective
August 16, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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, 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.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Notices]
[Pages 66689-66692]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18099]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="/cdn-cgi/l/email-protection#196a766971707c377d7c7b7c6c727c75787c6b5977767878377e766f"><span class="__cf_email__" data-cfemail="a9dac6d9c1c0cc87cdcccbccdcc2ccc5c8ccdbe9c7c6c8c887cec6df">[email protected]</span></a>, (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:
<bullet> 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;
<bullet> Shall not authorize the conduct of any activity for a
period of more than 5 years unless renewed by NOAA;
<bullet> 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
<bullet> 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.
---------------------------------------------------------------------------
\1\ The Policy and Permit Guidance for Submarine Cable Projects
document is available is available on the ``National Marine
Sanctuaries Documents'' website at <a href="https://sanctuaries.noaa.gov/library/alldocs.html">https://sanctuaries.noaa.gov/library/alldocs.html</a> under the section ``Policy, Permitting or
Regulations'' or directly at <a href="https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf">https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf</a>.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ This 2002 FMV analysis document is available on the
``National Marine Sanctuaries Documents'' website at <a href="https://sanctuaries.noaa.gov/library/alldocs.html">https://sanctuaries.noaa.gov/library/alldocs.html</a> under the section
``Policy, Permitting or Regulations'' or directly at <a href="https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/fmv_focpermit_final_2002.pdf">https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/fmv_focpermit_final_2002.pdf</a>.
---------------------------------------------------------------------------
[[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:
<bullet> The applicability of the SUP categories other than the
category for the continued presence of commercial submarine cables
beneath or on the seabed;
<bullet> 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
<bullet> 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.
---------------------------------------------------------------------------
\3\ At <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, 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: <a href="https://www.cisa.gov/2015-sector-specific-plans">https://www.cisa.gov/2015-sector-specific-plans</a>.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\5\ At <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, Docket No. NOAA-NOS-2021-
0080.
---------------------------------------------------------------------------
III. Request for Comments
NOAA is seeking public comment on the following:
<bullet> The use of the SUP category for the continued presence of
commercial submarine cables;
<bullet> Potential modifications to this SUP category; and
<bullet> 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
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 16, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.