[Federal Register Volume 67, Number 97 (Monday, May 20, 2002)]
[Notices]
[Pages 35501-35504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12521]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 020322065-2065-01]


Notice of Applicability of Special Use Permit Requirements to 
Certain Categories of Activities Conducted Within the National Marine 
Sanctuary System

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

ACTION: Notice; request for public comments.

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SUMMARY: In accordance with a requirement of Pub. L. 106-513, NOAA 
hereby gives public notice of the applicability of the special use 
permit requirements of Section 310 of the National Marine Sanctuaries 
Act to certain categories of activities conducted within the National 
Marine Sanctuary System. In addition, NOAA is seeking public comment on 
the subject of special use permits.

DATES: Comments must be received on or before July 19, 2002.

ADDRESSES: Submit all written comments to Helen Golde, National Marine 
Sanctuary Program, 1305 East West Highway (N/ORM6), 11th floor, Silver 
Spring, MD 20910.

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FOR FURTHER INFORMATION CONTACT: Helen Golde, National Marine Sanctuary 
Program, 1305 East West Highway (N/ORM6), Silver Spring, MD 20910, 
telephone (301) 713-3125, extension 152, email [email protected]; or 
John Armor, National Marine Sanctuary Program, 1305 East West Highway 
(N/ORM6), Silver Spring, MD 20910, telephone (301) 713-3125, extension 
117, email [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Congress first granted NOAA the authority to issue special use 
permits for the conduct of specific activities in National Marine 
Sanctuaries (NMSs or Sanctuaries) in the 1988 Amendments to the 
National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.; NMSA) (Public 
Law 100-627). The NMSA allows NOAA to issue special use permits to 
establish conditions of access to and use of any Sanctuary resource or 
to promote public use and understanding of a Sanctuary resource. Since 
1988, special use permits have been issued to persons conducting 
usually commercial (and usually revenue-generating), otherwise 
prohibited, operations in NMSs. Such activities have included a diving 
concessionaire conducting trips to the USS Monitor, the filming of 
television advertisements, and the use of a Sanctuary for public 
events.
    Section 310 of the NMSA allows NOAA to issue special use permits to 
authorize the conduct of specific activities with four conditions. The 
NMSA requires that special use permits:
    1. Shall authorize the conduct of an activity only if that activity 
is compatible with the purposes for which the Sanctuary is designated 
and with protection of Sanctuary resources;
    2. Shall not authorize the conduct of any activity for a period of 
more than 5 years unless renewed by NOAA;
    3. Shall require that activities carried out under the permit be 
conducted in a manner that does not destroy, cause the loss of, or 
injure Sanctuary resources; and
    4. Shall require the permittee to purchase and maintain 
comprehensive general liability insurance, or post an equivalent bond, 
against claims arising out of activities conducted under the permit and 
to agree to hold the United States harmless against such claims.
    Condition 3 above tends to be the most limiting in that it prevents 
NOAA from issuing a special use permit if the activity may destroy, 
cause the loss of, or injure a Sanctuary resource. Since activities 
that are prohibited by National Marine Sanctuary Program (NMSP) 
regulations (15 CFR Part 922) usually have some adverse impact, it is 
generally thought that if an activity is prohibited, it should not 
qualify for a special use permit. While this is generally true, there 
are some prohibited activities that, when done in a certain way, are 
not likely to adversely impact a Sanctuary resource. Several of these 
activities are of a nature that does not qualify for other NMS permits 
(for example, because they are not related to research or education), 
but do meet the statutory conditions for special use permits. 
Therefore, special use permits may be issued for the narrow range of 
activities that are both prohibited by NMSP regulations and do not 
destroy, cause the loss of, or injure a Sanctuary resource when 
conducted in a certain way.
    Section 310 of the NMSA allows NOAA to assess and collect a fee for 
special use permits. A special use permit fee must include each of 
three components. They are:
    1. The costs incurred, or expected to be incurred, by NOAA in 
issuing the permit;
    2. The costs incurred, or expected to be incurred, by NOAA as a 
direct result of the conduct of the activity for which the permit is 
issued, including costs of monitoring the conduct of the activity; and
    3. An amount which represents the fair market value of the use of 
the Sanctuary resource.
    Number 1 above essentially covers the administrative costs that 
NOAA incurs when it processes permit applications (including labor, 
printing costs, and contracts for the preparation of supporting 
documentation). Number 2 includes amounts to fund monitoring projects 
designed to assess the success or failure of the permittee to comply 
with the terms and conditions of the permit. It may also include money 
to fund a compliance monitoring program and to recoup any costs 
incurred by the NMSP in enforcing permit terms and conditions. Number 3 
is calculated using economic valuation methods appropriate to the 
situation.
    In the National Marine Sanctuaries Amendments Act of 2000 (P.L. 
106-513), Congress added a new requirement that prior to requiring a 
special use permit for any category of activity, NOAA shall give 
appropriate public notice. Subsection (b) of section 310 of the NMSA, 
as amended by Public Law 106-513, provides: ``[NOAA] shall provide 
appropriate public notice before identifying any category of activity 
subject to a special use permit under subsection (a).'' In addition, 
Public Law 106-513 gives the NMSP the authority to waive, reduce, or 
accept in-kind contributions in lieu of these fees when the activity 
does not derive a profit from the access to or use of Sanctuary 
resources.
    This notice lists those categories of activities that have been 
subject to the requirements of Section 310 in the past and will 
continue to be in the future (unless NOAA issues a Federal Register 
notice indicating otherwise). All of these activities are currently 
prohibited by NMS regulations, and may only be permitted using a 
special use permit when conducted in a way that does not injure, cause 
the loss of, or destroy a Sanctuary resource. It is important to note 
that the fact that an activity is consistent with a category listed in 
this notice does not guarantee approval of an application for a special 
use permit. Special use permit applications will be reviewed for 
consistency with the relevant Sanctuary's management plan and 
regulations, the NMSA, as well as this Federal Register notice. 
Individual special use permit applications will also be reviewed with 
respect to all other pertinent regulations and statutes, including the 
National Environmental Policy Act. Additional categories of activities 
may be added in subsequent Federal Register notices, if the NMSP deems 
them appropriate for special use permits.
    As such, the following categories of activities have been and will 
continue until further notice to be subject to the requirements of 
special use permits:
    1. The disposal of cremated human remains by a commercial operator 
in any National Marine Sanctuary;
    2. The operation of aircraft below the minimum altitude in 
restricted zones of National Marine Sanctuaries for commercial 
purposes;
    3. The placement and subsequent recovery of objects associated with 
public events on non-living substrate of the seabed;
    4. The discharge and immediate recovery of objects related to 
special effects of motion pictures; and
    5. The maintenance of submarine cables beneath or on the seabed.
    Each category listed above is further described below.

Disposal of Cremated Human Remains by a Commercial Entity

    The NMSP has received permit applications to spread cremated human 
remains (i.e., ashes) over and within the Monterey Bay National Marine 
Sanctuary (MBNMS). Since most NMS regulations prohibit the discharge of 
material or other matter into the Sanctuary, this activity requires a 
permit. After an extensive review of the common practices involved with 
the

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disposal of cremated human remains, the MBNMS determined that no 
detectable negative impacts to NMS resources and qualities were 
expected to result from the practice when certain conditions are 
adhered to by those engaged in the activity.
    Conditions placed on this activity that eliminate negative impacts 
to Sanctuary resources include: restricting the minimum altitude of any 
aircraft used to facilitate the spreading of the ashes; prohibiting the 
use of any plastics or any other toxic material associated with the 
remains; and requiring that the remains be sufficiently incinerated.
    In 1998, the superintendent of MBNMS issued an authorization 
(authorization number MBNMS-03-98) of the U.S. Environmental Protection 
Agency's (EPA) general permit for burial at sea (40 CFR 229.1). This 
authorization allows anyone (commercial entities as well as private 
individuals) to discharge cremated human remains in the MBNMS without 
first requesting a permit (subject to special conditions such as those 
described above). This authorization does not authorize anyone to 
conduct any activity otherwise prohibited by the MBNMS regulations 
except the discharge of cremated human remains (e.g., this 
authorization does not allow a person to operate an aircraft below 
1,000 feet in one of the restricted overflight zones during the course 
of discharging cremated human remains). If an individual engaged in the 
disposal of cremated human remains wished to conduct an additional 
otherwise prohibited activity (e.g., low overflight) he would need to 
first obtain permission from the Sanctuary superintendent. This 
authorization expires on April 7, 2004 and does not apply to any other 
NMS in the system.
    Commercial entities proposing the dispersion of cremated human 
remains must apply for and receive a special use permit prior to 
initiating this activity within the boundaries of any National Marine 
Sanctuary except MBNMS, as described above. (When private individuals 
wish to scatter cremated human remains in a NMS other than the MBNMS, 
they may request an individual authorization, if available, of the 
EPA's general permit from the appropriate Sanctuary manager or 
superintendent on a case-by-case basis.)

Commercial Overflights in Restricted Zones

    Within certain zones of MBNMS, Olympic Coast National Marine 
Sanctuary (OCNMS), Channel Islands National Marine Sanctuary, and the 
Gulf of the Farallones National Marine Sanctuary operating an aircraft 
below a minimum altitude is prohibited by Sanctuary regulations (15 CFR 
Part 922). The minimum altitude for the zones within all aforementioned 
Sanctuaries, with the exception of OCNMS, is 1,000 feet. The minimum 
altitude for the zones within OCNMS is 2,000 feet.
    The NMSP has received applications for permits to fly below the 
minimum altitude for commercial purposes within the restricted zones of 
MBNMS. Examples of commercial activities that have been subject to 
special use permits in the past include the filming of television 
advertisements and documentaries. When conditioned so that impacts to 
Sanctuary resources are eliminated, these activities have been 
determined to qualify for special use permits. Conditions on the 
permits generally include, but are not limited to, limitations on the 
number of passes an aircraft can take in a particular location, 
requirements for monitors to be present during operations, and seasonal 
restrictions so as to avoid certain areas during particularly sensitive 
times of the year.
    All Sanctuaries with overflight restrictions have received requests 
to fly below the minimum altitude for non-commercial purposes 
(scientific research or education). These activities are eligible for 
research or education permit categories permittable under each site's 
regulatory authority and do not require the issuance of a special use 
permit.
    Anyone wishing to operate an aircraft for commercial purposes below 
the designated altitude in any of the restricted overflight zones must 
apply for and receive a special use permit prior to conducting that 
activity.

The Placement and Subsequent Recovery of Objects Associated With 
Public Events on Non-Living Substrate

    MBNMS has, in the past, issued special use permits to non-profit 
institutions and public entities to place temporary objects (e.g., 
marker buoys) on non-living portions of the seabed when that activity 
is associated with public events. Public triathlons and the California 
Chocolate Abalone dive are two such events that have been subject to 
special use permit requirements. Since the placement of objects on the 
seabed within most NMSs is prohibited by individual Sanctuary 
regulations, this activity usually requires a permit.
    Conditions of special use permits for public events require that 
each object be placed on the seafloor in such a way as to not destroy, 
cause the loss of, or injure Sanctuary resources or qualities. The 
objects are required to be removed in a similar non-intrusive fashion 
after each event. In addition, the markers and other objects themselves 
are to be composed of substances that do not leach deleterious 
materials or other matter into the Sanctuary.
    Special use permits are required for public events that involve the 
placement of objects on the seafloor in any National Marine Sanctuary. 
Anyone wishing to hold a public event that involves the placement of an 
object (or objects) on the seafloor of a National Marine Sanctuary must 
apply for and receive a special use permit prior to holding the event.

The Deposit and Immediate Recovery of Objects Related to Special 
Effects of Motion Pictures

    The NMSP has received inquiries from motion picture companies 
seeking to deposit objects into a Sanctuary and immediately recover 
them for special effects. No special use permit has been applied for or 
issued for this type of activity to date. Sanctuary regulations 
generally prohibit the placement of objects on the seabed as well as 
the discharge of material or other matter into the Sanctuary. If the 
NMSP determines to allow this type of activity, persons proposing this 
activity would be required to prove to the NMSP that the objects being 
deposited would not injure, cause the loss of, or destroy any Sanctuary 
resource (e.g., are of a nature that would not cause harmful substances 
to leach into the Sanctuary, that the objects would be recovered from 
the Sanctuary immediately, and that the area of the seafloor where the 
object would be deposited is not sensitive to the proposed 
disturbance). In addition, Sanctuary staff would require that, if 
permitted, this type of activity is done at locations and during times 
of the year that are least likely to have sensitive Sanctuary resources 
in the vicinity of the disturbance.
    Any individual or entity proposing to deposit any object into a 
National Marine Sanctuary related to special effects by the motion 
picture or other industry must apply for and receive a permit prior to 
conducting this activity within a National Marine Sanctuary.

The Maintenance of Commercial Submarine Cables on or Beneath the 
Seafloor

    The NMSP has issued two special use permits to allow 
telecommunications companies to maintain fiber optic cables beneath the 
seafloor within the Olympic Coast National Marine Sanctuary (two cables 
permitted in November of 1999) and Stellwagen Bank National Marine 
Sanctuary (one cable permitted in June of 2000). While the actual 
installation,

[[Page 35504]]

removal, and any necessary repair activities were authorized under the 
NMSP's regulatory authority, the continued presence of the cable buried 
beneath the surface of the seabed was allowed through a special use 
permit issued pursuant to section 310 of the NMSA. This activity will 
continue to be subject to the requirements of section 310 of the NMSA.
    In a separate process, NOAA will continue to develop its policy on 
submarine cables within National Marine Sanctuaries, following up on 
the August 23, 2000, Advance Notice of Proposed Rulemaking (ANPR) on 
Installing and Maintaining Commercial Submarine Cables in National 
Marine Sanctuaries (65 FR 51264). The ANPR included a draft set of 
proposed principles for laying submarine cables in the marine and 
coastal environment. Through this separate process, NOAA will consider 
whether to issue regulations or a policy statement on submarine cables 
within Sanctuaries including whether the issuance of special use 
permits allowing the presence of submarine cables beneath or on the 
seafloor continues to be appropriate. Depending on the outcome of this 
process the NMSP may issue another Federal Register notice amending 
this one, as appropriate.

Comments

    NMSP is accepting comments on its use of the special use permit 
authority. NMSP is especially interested in comments that pertain 
specifically to the impacts of the aforementioned activities on 
Sanctuary resources. NMSP is also interested in any other comments on 
the subject matter addressed in this notice.

Miscellaneous Requirements

Paperwork Reduction Act

    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information subject to the 
requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., unless that collection of information displays a currently valid 
Office of Management and Budget (OMB) control number. Applications for 
the special use permits discussed in this notice involves a collection-
of-information requirement subject to the requirements of the PRA. OMB 
has approved this collection-of-information requirement under OMB 
control number 0648-0141.
    The collection-of-information requirement applies to persons 
seeking special use permits to conduct otherwise prohibited activities 
and is necessary to determine whether the proposed activities are 
consistent with the terms and conditions of special use permits 
prescribed by the NMSA. Public reporting burden for this collection of 
information is estimated to average twenty four (24) hours per response 
(application, annual report, and financial report), including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information. This estimate also includes the significant 
time that may be required should the applicant choose to prepare a 
draft of any documentation that may be required under the National 
Environmental Policy Act (NEPA), e.g., environmental impact statement 
or environmental assessment. If the applicant chooses not to prepare a 
draft of any NEPA documentation for the proposed activity, or if only 
minimal NEPA documentation is needed, the public reporting burden would 
be much less (approximately one hour for each response). If additional 
NEPA documentation is required and not prepared in draft by the permit 
applicant, NOAA would be required to prepare this documentation using 
its own staff and resources prior to NOAA taking final action on the 
application. As staff time and funding resources are limited, the 
preparation of complicated NEPA documents can significantly add to the 
time NOAA takes to review the application and take final action.
    This may also significantly add to the costs incurred by the 
federal government in processing the special use permit applications 
and thus the cost to the applicant.
    Send comments on the burden estimate or on any other aspect of the 
collection of information, and ways of reducing the burden, to NOAA and 
OMB (see ADDRESSES).

National Environmental Policy Act

    NOAA has concluded that this action will not have a significant 
effect, individually or cumulatively, on the human environment. This 
action is categorically excluded from the requirement to prepare an 
environmental assessment or environmental impact statement in 
accordance with Section 6.05c3(i) of NOAA Administrative Order 216-6. 
Specifically, this action is a notice of an administrative and legal 
nature. Furthermore, individual permit actions by the NMSP will be 
subject to additional case-by-case analysis, as required under NEPA, 
and will be completed when those actions are proposed to be taken by 
NMSP in the future.
    NOAA also expects that many of these individual actions will also 
meet the criteria of one or more of the categorical exclusions 
described in NOAA Administrative Order 216-6 because special use 
permits cannot be issued for activities that are expected to result in 
any destruction of, injury to, or loss of any Sanctuary resource. 
However, the special use permit authority may at times be used to allow 
activities that may meet the Council on Environmental Quality's 
definition of the term ``significant'' despite the lack of apparent 
environmental impacts (e.g., publicly controversial activities). In 
addition, NOAA may, in certain circumstances, combine its special use 
permit authority with other regulatory authorities to allow activities 
not described above that may result in environmental impacts to NMS 
resources and thus require the preparation of an environmental 
assessment or environmental impact statement. In these situations NOAA 
will ensure that the appropriate NEPA documentation is prepared prior 
to taking final action on a permit or making any irretrievable or 
irreversible commitment of agency resources.

Jamison S. Hawkins,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management.
[FR Doc. 02-12521 Filed 5-17-02; 8:45 am]
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