[Federal Register Volume 65, Number 164 (Wednesday, August 23, 2000)]
[Proposed Rules]
[Pages 51264-51270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21539]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 000526157-0157-01]
RIN 0648-AO36


Installing and Maintaining Commercial Submarine Cables in 
National Marine Sanctuaries

AGENCY: Marine Sanctuaries Division (MSD), National Ocean Service 
(NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION:  Advance notice of proposed rulemaking.

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SUMMARY: Notice is hereby given that NOAA is evaluating whether changes 
to existing National Marine Sanctuary (NMS) regulations or some form of 
policy guidance is necessary to clarify NOAA's decision-making process 
regarding the installation and maintenance of commercial submarine 
cables within NMSs. If changes or additional guidance are appropriate, 
this notice requests comments on what the changes or guidance should 
contain. This notice also requests comments on proposed principles on 
the installation of commercial submarine cables within the marine and 
coastal environment as a whole.

DATES:  Comments on this notice must be received by October 23, 2000.

ADDRESSES: Address all comments regarding this notice to Debra Malek, 
Conservation Policy and Planning Branch, National Marine Sanctuary 
Program, NOAA, 1305 East-West Highway, 11th Floor, Silver Spring, MD 
20910; Attention: Submarine Cable FR Comments. Comments may also be 
submitted by e-mail to: submarine.cables&noaa.gov

FOR FURTHER INFORMATION CONTACT: Debra Malek, 301-713-3145 extension 
162.

SUPPLEMENTARY INFORMATION:

I. Background

    Through higher transmission capacity, decreased interruptions in 
service, greater security and cost efficiency, fiber-optic 
telecommunications cables are meeting demands for better productivity 
and quality in telephone, internet and data transmissions, education, 
and connectivity. In the face of this demand, global markets are 
expanding rapidly and domestic land-based cable routes

[[Page 51265]]

are becoming increasingly congested. For these and other reasons, the 
number of project proposals and specific permit requests for laying 
cables in the marine and coastal environment is increasing at a 
tremendous rate.
    The increase in proposals for marine-based telecommunications cable 
projects strikingly highlights the Department of Commerce's (DOC) role 
as steward for both the nation's economy and the marine and coastal 
environment. For DOC, protecting the marine and coastal environment is 
as imperative as fostering the growth of telecommunications. Marine and 
coastal resources provide economic, cultural, and societal benefits to 
the nation. Yet, with the rapid growth and development of the coastal 
zone, many marine and coastal resources are at risk of degradation or 
loss. As a result, cumulative environmental impact evaluations need to 
be performed for cabling projects proposing transit through national 
marine sanctuaries, sensitive marine habitats outside of sanctuaries, 
submerged cultural resources, fishing zones, and areas of aesthetic 
value.
    Federal, state, and local governments impose permitting 
requirements for all forms of development. The types of issues that are 
evaluated in seeking necessary permits for a proposed submarine cable 
project include, but are not limited to: cable route planning, cable 
installation (e.g., burial), operation, maintenance and repairs, and 
removal. Preparing an application for a permit, as well as the 
government review and authorization process, takes time and money.

II. Legal Framework

    When considering a proposal to lay and operate commercial submarine 
cables in the marine and coastal environment, DOC must evaluate the 
industry's request relative to several statutes. These statutes provide 
the legal framework that governs decision-making. It is important to 
understand, however, that other federal, state, and local agencies have 
additional authorities that will govern the construction and operation 
of submarine cables.
    The following describes the principal authorities governing this 
issue with which DOC must comply. Please refer to the full text of 
these laws for complete information.

National Marine Sanctuaries Act

    The National Marine Sanctuaries Act (NMSA or Act), 16 U.S.C. 1431 
et seq., provides authority for the establishment of a unique network 
of marine protected areas dedicated to the conservation of specially 
nationally significant areas of the marine environment. Within NOAA, 
the National Marine Sanctuary Program (NMSP or Program) is administered 
by the National Ocean Service's Marine Sanctuaries Division. The NMSP 
comprises 13 sanctuaries around the United States, including sites in 
American Samoa and Hawaii.
    The primary objective of the NMSA is protection of sanctuary 
resources. Sanctuary resource is defined at 15 CFR 922.3 as:
    Any living or nonliving resource of a national marine sanctuary 
that contributes to the conservation, recreational, ecological, 
historical, research, educational, or aesthetic value of the sanctuary, 
including but not limited to, the substratum of the area of the 
sanctuary, other submerged features and the surrounding seabed, 
carbonate rock, corals and other bottom formations, coralline algae and 
other marine plants and algae, marine invertebrates, brine-seep biota, 
phytoplankton, zooplankton, fish, seabirds, sea turtles and other 
marine reptiles, marine mammals and historical resources.
    The NMSP manages sanctuaries on an ecosystem approach to protect 
sanctuary resources and sanctuary biological, physical, the chemical 
qualities. When a sanctuary is designated NOAA develops a comprehensive 
management plan and regulations for the sanctuary. Sanctuary 
regulations prohibit a range of activities to protect sanctuary 
resources and qualities.
    Consequently, when a regulation prohibits a particular activity, a 
determination has been made, after public notice and comment, that such 
activity is generally incompatible with the resource protection mandate 
of the NMSA, and with the purposes for which the sanctuary was 
designated.
    Relevant to submarine cables, each sanctuary has some type of 
regulation that prohibits installation of such cables. Such regulatory 
prohibitions include those against: drilling into, dredging or 
otherwise altering the seabed of the sanctuary; constructing, placing 
or abandoning any structure, material or other matter on the seabed of 
the sanctuary; injuring benthic invertebrates; moving or injuring 
historical resources; and discharging or depositing any material or 
other matter in the sanctuary.
    Prohibited activities may be conducted under certain limited 
circumstances to the extent they are compatible with the resource 
protection mandate and meet regulatory and other requirements for a 
sanctuary permit or other authorization. Sanctuary permits may be 
issued for research, education, management, or, in some instances, 
salvage activities. Some more recently designated sanctuaries have the 
authority to authorize another agency's permit for a specific activity, 
when such activity is compatible with resource protection and the 
purpose for which the sanctuary was designated. The NMSA also provides 
authority to issue special use permits for certain types of activities 
and NOAA may assess fees for the conduct of such activities.
    Permits for commercial submarine cable projects would require 
applicants to adhere to certain conditions, including: collection and 
analysis of data on the environmental effects of cable installation, 
operation and maintenance. Those conditions would apply for the life of 
the permit. The project proponent would retain responsibility for any 
``out of service'' cable that remains in the marine environment (e.g., 
if the cable is abandoned).
    The NMSA also statutorily prohibits destroying, causing the loss 
of, or injuring any sanctuary resource managed under law or regulations 
for that sanctuary.
    Section 304(d) of the NMSA section requires consultation on any 
Federal agency action internal or external to a national marine 
sanctuary, including private activities authorized by licenses, leases, 
or permits, that are likely to destroy, cause the loss of, or injure 
any sanctuary resources. Thus, for some proposed submarine cable 
projects that do not need a sanctuary permit or other sanctuary 
authorization but require another Federal agency's permit, consultation 
under the NMSA may be required.
    The NMSA is applied in accordance with generally recognized 
principles of international law, and in accordance with treaties, 
conventions, and other agreements to which the U.S. is a party.

Endangered Species Act

    The Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., protects 
species of plants and animals that have been listed through regulations 
as threatened or endangered. A threatened species is any species that 
is likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. An endangered 
species is any species, other than some species of the Class Insecta, 
that is in danger of extinction throughout all or a significant portion 
of its range.
    The ESA and its implementing regulations prohibit the ``taking'' of 
any

[[Page 51266]]

listed species, except under specified circumstances. A ``take'' is 
defined broadly and includes harassment, harm, pursuit, hunting, 
shooting, wounding, killing, trapping, capturing, or collecting, or 
attempting to engage in any of these types of conduct. The ESA includes 
civil and criminal penalties for violations. The Secretaries of the 
Departments of the Interior and Commerce may issue permits for the 
incidental take of listed species.
    The National Marine Fisheries Service (NMFS) of NOAA has 
jurisdiction over cetaceans, pinnepeds (except walruses), commercially 
harvested estuarine molluscs and crustaceans, marine fish, anadromous 
fish, certain other species (e.g., Johnson's seagrass), and sea turtles 
in the water. The U.S. Fish and Wildlife Service of the Department of 
the Interior (FWS) has jurisdiction over all other species, including 
seabirds. The provisions of the ESA extend to actions within the 
territory of the United States, state of Federal waters, and by U.S. 
entities on the high seas. For example, NMFS must ensure that its 
authorization of the conduct of a fishery is not likely to jeopardize 
the continued existence of any endangered or threatened species.
    After a species is listed as threatened or endangered, NMFS or FWS 
is required to designate critical habitat and develop and implement 
recovery plans for the listed species. Every Federal agency must ensure 
that any action authorized, funded or carried out by such agency is not 
likely to jeopardize the continued existence of any endangered or 
threatened species or result in the destruction or adverse modification 
of critical habitat. Federal agencies must consult with NMFS and FWS to 
avoid, minimize, or mitigate the impacts of their activities on listed 
species.
    Submarine cable projects will trigger this consultation process 
whenever a federal permit, license, or other action is needed for an 
activity that may affect a listed species. If a protected species or 
its critical habitat is present in the vicinity of the cable laying 
project a Biological Assessment must be prepared by the permitting 
agency. The permitting agency must evaluate the potential effects of 
the action on listed and proposed species and designated and proposed 
critical habitat. The agency then determines whether any such species 
or habitat is likely to be adversely affected by the action. If they 
believe there are no applicable alternatives to the project and that 
the project will jeopardize the continued existence of a protected 
species they may apply to the Endangered Species Committee for an ESA 
exemption.

Marine Mammal Protection Act

    The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., 
establishes a moratorium on the ``taking'' of marine mammals within 
U.S. waters or by U.S. citizens on the high seas. ``Taking'' is 
statutorily defined as ``to harass, hunt, capture, or kill, or attempt 
to harass, hunt, capture or kill any marine mammal.'' Through NMFS, DOC 
has jurisdiction over all marine mammals with the exception of manatees 
and dugongs, walrus, polar bears and sea otters, which the Department 
of the Interior manages.
    The MMPA allows the Secretaries to authorize the incidental taking 
of a small number of marine mammals by U.S. citizens who engage in a 
specified lawful activity within a specified geographical region, 
provided that the total number of takes will have no more than a 
negligible impact on affected species and will not have an unmitigable 
adverse impact on subsistence hunting.
    Laying cable on the seabed and cable repair could potentially 
result in the incidental taking of marine mammals due to the elevated 
noise levels and vessel traffic associated with the laying of cable and 
entanglement of whales in the cable. NMFS regulations governing the 
small take authorization program are at 50 CFR 216.101 et seq. The 
regulations provide for expedited one-year authorizations for takes by 
harassment only and for five-year authorizations covering all forms of 
takes.

Magnuson-Stevens Fishery Conservation and Management Act

    The Magnuson-Stevens Fishery Conservation and Management Act 
(MSFCMA), 16 U.S.C. 1801 et seq., administered by NMFS is the primary 
federal fishery management authority. The law established a national 
program to conserve and manage the nation's fishery resources and their 
habitats so the United States can achieve the full potential of its 
fishery resources. In addition to the law's focus on managing fishing 
activities, the most recent amendments in 1996 (Pub. L. 104-297) 
included language to protect ``essential fish habitat'' (EFH) for each 
of more than 700 species under federal authority. The new EFH mandate 
requires consultation with NMFS for any project that may adversely 
affect habitats of federally-managed species.
    The regulations governing EFH consultations are found at 50 CFR 
part 600, subpart K. Where possible, EFH will be implemented by using 
traditional environmental review processes associated with the National 
Environmental Policy Act, Fish and Wildlife Coordination Act, 
Endangered Species Act, or other laws, thereby eliminating the need for 
separate permit reviews or public comment periods.
    Submarine cable projects will trigger this EFH consultation process 
whenever a federal permit, license, or other action is needed, if the 
proposed activity may adversely affect EFH. Except in rare situations, 
the EFH consultation will be conducted between field offices of the 
action agency and NMFS. Regional NMFS offices have maps, tables, and 
reports documenting areas designated as EFH and can work with the 
authorizing agency and industry to determine whether a submarine cable 
project affects EFH.
    In combination with any documents associated with the traditional 
environmental review process (permit application, engineering plans, 
NEPA documents), an EFH Assessment must be prepared describing how the 
proposed project may affect EFH. The appropriate level of detail 
required in the consultation will depend on the proposed action and its 
potential impact on EFH.

Coastal Zone Management Act

    States with coastal management programs approved by DOC pursuant to 
the Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq. (this 
includes all coastal states), have the authority to review federal 
activities affecting any land or water use or natural resource of the 
coastal zone for consistency with their approved state CZM program. 
This review authority includes the review of all federal agency permits 
(e.g., Army Corps of Engineers Section 10/404 permits and marine 
sanctuary permits). In the case of Federal permits, Federal agencies 
may not issue permits that are inconsistent with a state's approved 
program, unless, after an appeal by the applicant to DOC, an override 
decision is made based on certain criteria.
    Companies with proposed submarine cable projects should contact the 
relevant state coastal management program agencies or NOAA's Office of 
Ocean and Coastal Resource Management, Federal Consistency Office, as 
early as possible in the federal application process.

National Environmental Policy Act

    The National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 
4321 et seq., is the foundation of modern American environmental 
protection in

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the United States and its commonwealths, territories, and possessions.
    NEPA requires that Federal agency decision-makers, in carrying out 
their duties, use all practical means to create and maintain conditions 
and fulfill the social, economic, and other needs of present and future 
generations of Americans.
    NEPA provides a mandate and a framework for Federal agencies to 
consider all reasonably foreseeable environmental effects of their 
proposed actions and to involve and inform the public in the decision-
making process.
    NOAA's Administrative Order 216-6 (updated May 20, 1999) describes 
NOAA's policies, requirements, and procedures for complying with NEPA 
and the implementing regulations issued by the Council on Environmental 
Quality (CEQ) as codified in Parts 1500-1508 of Title 40 of the Code of 
Federal Regulations (40 CFR parts 1500-1508) and those issued by DOC in 
Department Administrative Order (DAO) 216-6, Implementing the National 
Environmental Policy Act.
    NEPA applies to any proposed action for which a federal nexus 
exists, such as federal funding, permitting, or approval. Examples 
include ACOE 404 permits, ESA section 7 consultations for incidental 
take statements, or authorization for actions within a national marine 
sanctuary. Applicants for such permits or authorizations may be an 
individual, a private organizations, or a Federal, state, tribal, 
territorial, or foreign governmental body. Based on the action and its 
impact on the quality of the human environment, a level of 
environmental review is required (i.e., categorical exclusion, 
environmental assessment, or environmental impact statement).
    NEPA documents may be stand-alone or combined with associated 
reviews such as those for state permits or Federal consistency 
certification. The latter, joint documentation, is preferred to reduce 
duplication and expedite review and clearance processes. When combined 
with other review processes, early coordination is essential to produce 
final documentation that is acceptable to all approving parties. NEPA 
documents are sometimes prepared by a contractor; in such cases, the 
documents must be cleared by the Federal agency prior to final action 
being taken.
    For the purpose of a proposed submarine cable to transit the 
coastal zone including a portion of a national marine sanctuary, 
several permits or approvals may be required (e.g., ACOE 404, NMSA 
permit or other authorization, and state permits and Federal 
consistency certification), each requiring federal or state 
environmental review. After providing sufficient background information 
on the proposed action to the involved agencies, the requisite level of 
review is determined, and a NEPA document is prepared and circulated 
for public review as appropriate. Upon completion, final NEPA documents 
are cleared by the agency(s) and a determination is made on the 
applicable authorization(s) or permit(s). No final action by an 
applicant may occur prior to completion of the NEPA review process.

National Historic Preservation Act

    The National Historical Preservation Act (NHPA), 16 U.S.C. 470 et 
seq., directs federal agencies to develop programs to protect their 
cultural and historic properties. Section 106 of the NHPA directs that 
all federal or federally-funded undertakings, including federally 
permitted activities, be reviewed to ensure that no historic properties 
are negatively affected. The federal agency (in this case NOAA) must 
work in cooperation with states and the Advisory Council on Historic 
Preservation to minimize or prevent damage to the resources.

Submarine Cable Landing License Act

    Pursuant to the Submarine Cable Landing License Act (47 U.S.C. 34-
39) the President must grant permission to any entity planning to land 
a submarine cable in the United States. This statute requires an entity 
to get permission before it is allowed to land and operate a submarine 
cable ``directly or indirectly connecting the United States with any 
foreign country, or connecting one portion of the United States with 
any other portion thereof'' * * * except for any submarine cable ``all 
of which, including both terminals, lie wholly within the continental 
United States.'' 47 U.S.C. 34.
    In a related Executive Order (E.O. 10530) the President delegated 
authority to the Federal Communications Commission (FCC) to grant, 
deny, or condition submarine cable landing licenses, except that no 
license can be granted or revoked without the FCC first obtaining 
approval from the Secretary of State and advice from any executive 
department of the Government as the Commission may deem necessary. The 
National Telecommunications and Information Administration (NTIA), an 
agency within DOC, advises the Department of State and the FCC on all 
submarine cable landing license applications. The factors NTIA 
considers in reviewing these applications involve competition issues 
and consumer matters.

III. Meetings

    NOAA is evaluating whether changes to existing National Marine 
Sanctuary regulations or some form of policy guidance is necessary to 
clarify NOAA's decision-making process regarding the installation and 
maintenance of commercial submarine cables within NMSs. This evaluation 
is being undertaken in response to requests from the telecommunications 
industry to lay cables through many U.S. coastal and ocean areas, 
including NMSs, as well as in response to requests from various members 
of the fishing industry and the environmental community for more 
detailed information on the processes involved in the installation and 
maintenance of telecommunications cables and the possible impacts these 
processes have on the marine and coastal environment.
    Within the overall marine and coastal environment, national marine 
sanctuaries have been established as special places set aside as 
protected areas of national significance. As such, they are afforded a 
higher level of protection. Within each sanctuary, certain types of 
activities, including activities inherent to laying, operating, 
repairing, and removing submarine cables, have been determined to be 
generally incompatible with the statutory objective of resource 
protection and are therefore prohibited by regulation. Under certain 
limited circumstances some prohibited activities may be allowed.
    As applications were received by NMS offices for submarine cable 
installation, the NMSP began internal discussions on how to deal with 
such proposals. DOC, as part of its efforts to build productive 
partnerships among government, the telecommunications industry, and 
non-governmental organizations, convened a series of meetings to give 
stakeholders a chance to provide input into the Program's evaluation of 
the installation of commercial submarine cables in the marine and 
coastal environment. Many key issues were identified at these meetings.
    From the business community, we heard the following:
     Submarine cables provide high-speed broadband connectivity 
and capacity for large geographic areas that are often important 
centers of trade and communication;
     Submarine cables alleviate existing capacity constraints 
and meet the demand for future growth;

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     Submarine cables provide emergency routing alternatives to 
existing land-based telecommunication systems that are susceptible to 
earthquakes, flooding, storms, and other natural phenomena;
     Installation can be a low impact process, especially when 
compared to other commercial activities currently allowed in the marine 
environment (cables are small in diameter, the plow cuts a narrow 
trench, cable is buried to one meter, etc.);
     Submarine cables carry heavy international communication 
traffic without the transmission delays associated with satellites;
     Speed to market is critical and competition is fierce (200 
new cable systems with over 1,000 shore landings are projected by 
2003);
     A more succinct and clear policy for submarine cables 
would alleviate the current confusion over the approval of such 
projects.
    From the environmental community, we heard the following:
     Little data exists on the cumulative environmental impacts 
associated with the installation, maintenance, operation, and repair of 
submarine cables;
     Sanctuaries and areas of sensitive habitat should be 
avoided, with some declared off limits;
     NOAA needs to develop policies and regulations for non-
sanctuary waters as well;
     Additional information is needed on the immediate and 
long-term impacts of fiber optic systems;
     Fishing conflicts and gear issues must be resolved;
     Reassurance is needed to demonstrate that impacts are 
indeed low, as industry claims, and that submarine cables are and will 
remain buried;
     Regular monitoring of installed submarine cables should be 
mandatory, based on a set of baseline standards;
     A more succinct and clear policy for submarine cables 
would alleviate the current confusion over the approval of such 
projects;
     Technologies should be examined to determine methods of 
burial and retrieval that minimize disturbance to the benthos and 
associated water quality;
     Mechanisms should be developed to minimize the number of 
submarine cable corridors permitted, including requirements to utilize 
existing corridors whenever possible;
     Once a cable is no longer in use, cables should be removed 
and disposed of rather than abandoned in place;
     All cable proposals should be subject to rigorous 
environmental review under NEPA including full discussion of cumulative 
impacts and serious consideration of alternatives;
     All monitoring of cable surveys, laying, repair, and 
removal should be subject to independent agency verification.
    NOAA used the information obtained from these meetings to form the 
framework of a ``white paper.'' This document identified the concerns 
and issues associated with such activities and led to the development 
of draft guiding principles to be applied as part of the project 
review. (See Appendix A).

IV. Workshop

    On February 28 and 29, 2000, DOC convened a workshop involving 
representatives from the telecommunications and fishing industries, 
environmental and conservation organizations, and state agencies. The 
white paper was distributed at the workshop and was the focus of 
discussion.
    Participants identified many key issues they felt NOAA should 
further address in the Principles section of the document. NOAA has 
developed some initial reactions to these issues and has developed some 
potential approaches or ways to resolve them. The key issues are listed 
below and are followed in brackets by NOAA's initial reactions.
    1. Be as explicit and comprehensive as possible in terms of 
criteria, legal standards, and rationale for NMSP decision-making. 
[Within NMSs, NOAA could base its review of projects on ensuring 
resource protection. It is NOAA's view that sanctuary size, unique 
characteristics, (e.g., fragile habitats, cultural resources, etc.), 
and/or existing regulations would be important criteria in project 
review.]
    2. Clarify NOAA's regulatory roles outside NMSs. [With regard to 
areas outside of NMSs, NOAA's participation could take the form of 
project review will be during consultation with other federal and state 
agencies that have direct permitting authority over activities in the 
marine and coastal environment, including, for example, U.S. Army Corps 
of Engineers (ACOE) and other federal agencies addressing such 
authorities as MMPA and ESA. Other criteria for consultation review 
could include preferred routes, alternative routes, landside 
connection, site characterization, cumulative impacts, sensitive 
habitats, and cable removal. NOAA would follow the established public 
review and comment process established under existing regulations when 
evaluating proposed projects.]
    3. Clarify NOAA's position on cable installation in NMSs when 
habitat outside of a NMS may be more sensitive than the proposed cable 
installation route inside the NMS. [NOAA could provide basic 
information to help industry identify and locate sensitive habitats to 
be avoided.]
    4. Clarify NOAA's definition of ``feasible alternative'' to 
installing a cable in a NMS. [NOAA could address this through the use 
of NEPA's definition of feasible alternative.]
    5. Give further attention to and explanation of the development of 
a Programmatic Environmental Impact Statement (PEIS) for cable 
installation. [NOAA will consider whether a PEIS could and should be 
prepared for the proposed installation of submarine cables in marine 
sanctuaries and the marine environment as a whole. Such a document 
would clearly describe the potential impacts of cable projects within 
various habitat types and sanctuaries and would set forth project 
limitations. Should a PEIS be developed, environmental review documents 
for individual projects would be tiered off of the general document.]
    6. Recognize the value of coordination between DOC and other 
federal agencies when issues such as cable installation in the marine 
environment are concerned. [NOAA could work with ACOE to develop a 
Memorandum of Understanding (MOU) that addresses consultation 
procedures for cable laying projects. NOAA could also coordinate 
necessary consultations under the ESA, MSFCMA (primarily Essential Fish 
Habitat), and NMSA. Consultations should be initiated at the earliest 
possible dates so potential impacts from each project and cumulative 
impacts of industry actions can be minimized.]
    7. Incorporate recognition of, and provide flexibility for, 
possible technological and environmental changes that may occur during 
the life of the cable. [Although initially addressed in the Principles 
section of the White Paper, NOAA is looking for further guidance on 
this issue.]
    8. Recognize that pre-existing data on submarine cables is 
available and should be consolidated as much as possible for future 
reference. [NOAA will continue to work with industry, environmental 
organizations, and other agencies (e.g., Navy, United States Geological 
Survey, ACOE) to collect information about existing submarine cable 
projects and the known environmental effects of installation and 
maintenance.]
    9. Recognize the fishing industry's role as a distinct, critical 
and interested

[[Page 51269]]

party in submarine cable issues. [NOAA could accomplish this by 
strongly encouraging the cable industry to initiate negotiations and 
develop agreements with marine and coastal resource user groups before 
their applications for permits and licenses are deemed complete for 
public review. The cable industry could then negotiate agreements and/
or directly consult with fishing, mining, aquaculture, whale watching, 
and other marine and coastal resources user groups to minimize 
disruptions to other marine and coastal activities during cable 
installation and thereafter.]
    10. Recognize the possibility of ``cable corridors'' (fixed-
location lanes for multiple cables). [Although initially addressed in 
the Principles section of the White Paper, NOAA is looking for further 
guidance on this issue.]
    11. Should elaborate further on NOAA's position on the issue of 
cable removal. [NOAA could, in issuing any permits for submarine cable 
projects, require that permittees collect and analyze data on the 
environmental effects of cable installation, operation and maintenance. 
Those conditions would then apply for the life of the project. At the 
end of the cable's service, the permittee will be required to perform a 
survey of the cable route and provide a report describing the status of 
the cable (including burial depth) and benthic communities along the 
cable route. The permittee would then be required to prepare a thorough 
evaluation of leaving the cable in place vs. removal of the cable. For 
any ``out of service'' cable that is allowed to remain in the marine 
environment, the permittee would retain full responsibility for such 
cable in perpetuity. Periodic monitoring by the permittee would also be 
required.]

V. Action Requested From the Public

    As it continues its evaluation, NOAA is seeking public comment on 
both the guiding principles in the Workshop white paper (attached as 
Appendix A) and NOAA's reactions to the workshop participants' key 
issues articulated above in Section IV. Comments received by NOAA will 
help to determine its next steps, i.e., whether the NMS regulations 
should be amended to clarify NOAA's decision-making process regarding 
the installation of commercial submarine cables or if a DOC policy 
statement should be issued.
    Regulations would be published in the Federal Register following 
appropriate National Environmental Policy Act (NEPA) and Administrative 
Procedure Act (APA) steps. Any proposed policy statement would be 
published in the Federal Register. It should be noted that while the 
white paper lists the statutory elements for imposing a fee for the 
issuance of a special use permit, the purpose of this request for 
comments does not include setting the amount for any such fee. Rather, 
as stated above, NOAA is seeking public input on whether it should 
amend its regulations or issue a policy statement. If NOAA decides to 
issue regulations or a policy statement which include a requirement for 
the issuance of a special use permit, NOAA will undertake another 
public process to establish, in light of the statutory elements stated 
in the white paper, the appropriate amount of the attendant fee.

    Dated: August 17, 2000.
Ted I. Lillestolen,
Deputy Assistant Administrator for Oceans and Coastal Zone Management.

Appendix A

Principles Section from the Draft White Paper ``Proposed Principles for 
Laying Submarine Cables in the Marine and Coastal Environment''

Proposed Principles

    1. For business, environment, and government alike, accurate 
information about the environmental effects of submarine cables on 
the marine environment, expectations for completing permit reviews, 
project routing and implementation, and ongoing maintenance needs 
are vital. In some cases, such as the environmental effects, this 
information is lacking. What steps can NOAA take for better 
information gathering and information flow?
    Implementation steps:
    a. NOAA will continue to work with industry, environment, and 
other agencies (e.g., Navy, USGS, ACOE) to collect information about 
existing submarine cable projects and the known environmental 
effects of installation and maintenance.
    b. NOAA permits for submarine cable projects will require that 
applicants collect and analyze data on the environmental effects of 
cable installation, operation and maintenance. Those conditions will 
apply for the life of the permit. For any ``out of service'' cable 
that remains in the marine environment, the project proponent must 
retain responsibility for such cable (e.g., if the cable becomes 
unburied).
    c. For those projects where NOAA does not have a permitting 
role, NOAA will work with other permitting agencies to ensure that 
its environmental concerns under ESA, MMPA, MSFCMA, NMSA, and other 
authorities are fully adopted or considered, where required or as 
appropriate.
    d. NOAA will convene interested industry and environmental 
representatives from time to time to review new data and 
technologies, evaluate guidelines, and otherwise continue the 
sharing of information.

    2. Industry has described ``speed to market'' as a driving force 
in the submarine cable business. As such, it has stated the 
importance of a timely and predictable review of projects, 
particularly where NOAA permits are required. In addition, it is in 
the best interest of effective management of the marine and coastal 
environment to be able to quickly and effectively determine the 
proper course of action for submarine cable projects, without 
compromising NOAA's trustee responsibilities. As the efficient 
review of proposed projects is in the best interests of all parties, 
what steps can NOAA take to aid in the timely and predictable review 
of proposed cable projects?
    Implementation steps:
    a. NOAA will consider whether it can as a general matter 
(legally and from a policy standpoint) approve projects when they 
are in the planning stages. NOAA would base such ``planning 
approvals'' on specific routes, technologies, monitoring and 
maintenance protocols, and other factors.
    b. NOAA will coordinate necessary consultations under the ESA, 
MSFCMA, NMSA.
    c. NOAA will consider the impacts and merits of establishing 
submarine cable ``routes'' that direct cable installations into and 
out of landing stations in such a way as to minimize individual and 
cumulative environmental effects.
    d. NOAA will establish points of contact for submarine cable 
projects. These individuals will be responsible for coordinating 
reviews and outreach within the Department. In addition, NOAA will 
maintain records and data on submarine cable projects in order to 
further improve internal review and external compliance.

    3. National marine sanctuaries are special places of the marine 
environment set aside as protected areas for their national 
significance. As such, they are afforded a higher level of 
protection.
    Within each sanctuary certain types of activities, including 
activities inherent to laying, operating, repairing, and removing 
submarine cables, have been determined to be generally incompatible 
with the statutory objective of resource

[[Page 51270]]

protection and are therefore prohibited by regulation.
    Under certain limited circumstances some prohibited activities 
may be allowed, but as a matter of policy laying of submarine cables 
within sanctuaries is discouraged. What steps can NOAA take when 
reviewing projects proposed within marine sanctuaries to ensure 
resource protection (particularly where uncertainty exists as to the 
extent of impact of a proposed project to the sanctuary 
environment)?
    Implementation steps:
    a. It is NOAA's review that sanctuary size, unique 
characteristics (e.g., fragile habitats, cultural resources, etc.) 
and existing regulations preclude the installation of submarine 
cables in the following marine sanctuaries:
    (1) Cordell Bank
    (2) Channel Islands (within 2 nautical miles of the islands, as 
prohibited)
    (3) Gulf of Farallones
    (4) Fagatele Bay, American Samoa
    (5) Gray's Reef
    (6) MONITOR
    (7) Flower Garden Banks
    b. Projects in those sites where cable laying activities are not 
prohibited (i.e., Channel Islands NMS outside of 2 nautical miles 
from the islands, Hawaiian Island Humpback Whale NMS, when conducted 
under valid State or Federal permit) are subject to the consultation 
provisions (sec. 304(d)) of the NMSA and will be evaluated by NOAA 
similarly to those projects requiring sanctuary approval.
    c. NOAA will consider whether a programmatic environmental 
impact statement could be prepared for the proposed installation of 
submarine cables in marine sanctuaries. Such a document would 
clearly describe the permit limitations for projects in specific 
sanctuaries or habitat types.
    d. Those sites where proposals for installation and operation of 
submarine cables would be considered are Monterey Bay, Olympic 
Coast, Florida Keys, and Stellwagen Bank sanctuaries. NOAA will 
identify fragile habitats and known archaeological sites wherein 
installation of submarine cables will be prohibited under any 
circumstances near the immediately surrounding area. These are 
expected to include the following:
    (1) Rocky, hard bottom areas (habitat) where cable cannot be 
buried or covered)hard bottom limestone reef areas in particular;
    (2) Coral reef and associated hard bottom areas;
    (3) Sea grass areas;
    (4) Mangrove islands;
    (5) Areas likely to have cultural resources, such as historic 
shipwrecks;
    (6) Kelp forests;
    (7) Habitat for endangered or threatened species;
    (8) Areas set aside as ``no take'' zones or ``marine or 
ecological reserves.''
    e. The following minimum criteria must be met for any submarine 
cable to be considered in a sanctuary:
    (1) There is no feasible alternative to transiting the 
Sanctuary;
    (2) Impacts to sanctuary resources, including impacts to 
cultural resources and cumulative impacts, from installation, 
maintenance, long-term operation, and removal, are determined to be 
negligible and short-term. This is determined within the context of 
the overall environmental analysis;
    (3) Appropriate mitigation, including monitoring of impacts of 
the activity, is included and paid for by the project proponent; and
    (4) The applicant agrees to remove all or part of the cable at 
the end of its life, if determined appropriate by NOAA.
    f. A specific proposal will be considered following the 
applicable review and criteria unique to the specific sanctuary in 
which the application is submitted. Installation of a previous cable 
within any given sanctuary does not ensure installation of 
additional cables in that sanctuary or others in the system. Exact 
routes and alternatives, and cumulative impacts will be evaluated in 
the environmental analysis.
    g. For every project considered, analysis must include, but is 
not limited to, the following topics:
    (1) Cumulative impacts;
    (2) Feasible alternatives to transiting the Sanctuary, including 
alternative routes over land;
    (3) Impacts to habitat from laying the cable (e.g., trenching) 
and long term placement of the cable in its location;
    (4) Potential for impacts on sensitive, threatened and 
endangered species and their habitats;
    (5) Potential impact to cultural resources, using remote-sensing 
survey, sonar and magnetometer;
    (6) Impacts of removing the cable at the end of its useful life; 
and
    (7) Impacts on other interests (e.g., fishing interests).
    h. Pursuant to sanctuary regulations, a fee will be assessed for 
any approved project. This fee includes:
    (1) Costs incurred, or expected to be incurred, of issuing the 
permit;
    (2) Costs incurred, or expected to be incurred, as a direct 
results of the activities (including monitoring); and
    (3) The fair market value of the use of the sanctuary and a 
reasonable return to the U.S. Government.

    4. The Department believes that just as the submarine cable 
industry is growing, the principles guiding its review of submarine 
cable proposals must also continue to evolve. What steps can NOAA 
take to aid in this evolution and craft the principles into a living 
document?

[FR Doc. 00-21539 Filed 8-22-00; 8:45 am]
BILLING CODE 3510-08-M