[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Proposed Rules]
[Pages 50259-50260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19662]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 070726413-8730--01]
RIN 0648-AV89


Conducting Consultations Pursuant to Section 304(d) of the 
National Marine Sanctuaries Act

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

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: NOAA solicits public comment on whether development of 
regulations implementing certain aspects of the consultation provisions 
of section 304(d) of the National Marine Sanctuaries Act is appropriate 
and, if so, what such regulations should contain to ensure the 
efficient application and implementation of, and compliance with, this 
statutory requirement.

DATES: Comments on this notice must be received by October 31, 2008.

ADDRESSES: Submit all electronic comments via the Federal eRulemaking 
Portal at http://www.regulations.gov. Comments can also be mailed to 
David Bizot, Attn: 304(d) ANPR, NOIA Office of National Marine 
Sanctuaries, 1305 East-West Hwy (N/ORM6), SSMC4 11500, Silver 
Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: David Bizot, ONNS Permit and 
Consultations Coordinator, 301-713-7268.

SUPPLEMENTARY INFORMATION: 

I. Consultation Under Section 304(d) of the National Marine Sanctuaries 
Act

    The National Marine Sanctuaries Act (NNSA) authorizes the Secretary 
of Commerce (Secretary) to designate and manage areas of the marine 
environment with special national significance due to their 
conservation, recreational, ecological, historical, scientific, 
cultural, archeological, educational, or esthetic qualities as national 
marine sanctuaries. The Secretary has delegated to NOAA and the Office 
of National Marine Sanctuaries (ONNS) the authority to implement the 
NNSA and provide comprehensive management of the National Marine 
Sanctuary System for its primary purpose of marine resource protection. 
The ONMS implements the NNSA through regulations, permitting, 
enforcement, research, monitoring, education and outreach.
    In the 1992 amendments to the NMSA, Congress added section 304(d), 
16 U.S.C. 1434(d), which requires interagency consultation between NOAA 
and Federal agencies taking actions, including authorization of private 
activities, ``likely to destroy, cause the loss of, or injure a 
sanctuary resource.'' In addition, Federal agencies are required to 
consult on proposed actions that ``may affect'' the resources of 
Stellwagen Bank National Marine Sanctuary (SBNNS), Public Law 102-587 
Sec.  2202(e).
    Section 304(d) outlines the basic process by which Federal agencies 
are to consult with NOAA on activities that trigger the need to 
consult. If a Federal agency finds that a proposed action is likely to 
destroy, cause the loss of, or injure sanctuary resources (or, for 
SBNNS, ``may affect'' sanctuary resources), the agency is required to 
submit a ``written statement'' to the ONMS describing the potential 
effects of the activity on sanctuary resources at the earliest 
practicable time, but in no case later than no later than 45 days 
before the final approval of the action, unless another schedule is 
agreed to. If the ONNS finds that the proposed action is likely to 
destroy, cause the loss of, or injure a sanctuary resource, it must, 
within 45 days of receipt of complete information on the proposed 
action from the Federal agency, develop and recommend ``reasonable and 
prudent alternatives'' for the Federal agency to implement to protect 
sanctuary resources. If the ONNS recommends alternatives to the 
proposed action, the Federal agency is required to consult with the 
ONNS regarding plans for incorporating these recommendations into the 
proposed action. If the Federal agency decides not to follow the ONNS 
recommendations, it must provide a written explanation for that 
decision to the ONNS. If the Federal agency takes an action other than 
an alternative recommended by the ONNS and the action results in the 
destruction of, loss of, or injury to a sanctuary resource, the head of 
the agency must promptly prevent and mitigate further damage and 
restore or replace the sanctuary resource in a manner approved by the 
ONNS.

II. Proposed Development of Regulations

    ONNS staff work diligently with Federal agencies to assist them in 
achieving full compliance with the NNSA, and encourage Federal agencies 
to work proactively with the ONNS to identify actions that may require 
NNSA consultation and to complete consultation at the earliest 
practicable time. However, more detailed regulatory provisions 
addressing the consultation process and requirements (e.g., how section 
304(d) relates to other statutory and regulatory requirements, how a 
consultation might be conducted for a class of actions, and what 
information must be provided in a sanctuary resource statement) may be 
helpful to Federal agencies to more efficiently and effectively conduct 
the required consultation. NOAA therefore provides this notice for 
purposes of evaluating whether the development of such regulations to 
further implement the NNSA section 304(d) consultation requirement 
would be useful to Federal agencies and the public.

III. Action Requested From the Public

    To expand upon the basic statutory requirements for NMSA 
consultations, NOAA is considering addressing a number of elements 
pertaining to these consultations through regulation and seeks comments 
on the following:

[[Page 50260]]

    1. It may be appropriate to provide a process for a Federal agency 
to conduct a single NMSA consultation on a series or class of actions 
similar in type and effect. Would the public and other Federal agencies 
find this useful and, if so, how might the ONMS best identify the most 
appropriate actions that could be subject to this arrangement?
    2. Beyond simply describing the action and its potential effects on 
sanctuary resources, what additional information, if any, should be 
included in the written statement provided to the ONMS by the Federal 
action agency to ensure that the consultation fully addresses the 
effects of the activity on sanctuary resources?
    3. The ONNS anticipates there may be circumstances where a 
sanctuary resource statement might need to be supplemented, such as 
when the scope of the proposed action changes prior to the conclusion 
of the consultation process. The ONMS seeks comment on what other 
circumstances might require a supplemental statement and if this issue 
should to be addressed through regulation.
    4. The ONNS desires that 304(d) consultations be integrated as 
efficiently as possible with the other statutory requirements that may 
apply to a Federal agency action. Should regulations address how 304(d) 
consultations can be best integrated or otherwise coordinated with, for 
example, actions required by the National Environmental Policy Act 
(NEPA), consultations conducted pursuant to section 7 of the Endangered 
Species Act and section 305(b)(2) of the Magnuson Stevens Fisheries 
Conservation and Management Act (Essential Fish Habitat provision)? If 
so, what considerations should be made by the ONNS and Federal agencies 
when integrating NNSA consultations with these other requirements?
    5. When multiple Federal agencies are involved with a project, the 
ONNS believes it may be helpful to consider designating a lead agency 
to conduct 304(d) consultations on behalf of the other agencies. Do 
agencies and the public believe this would be useful and, if so, how 
should this designation be determined and what procedures should govern 
this arrangement?
    6. The ONNS believes that the ONNS permit and NNSA consultation 
processes should be integrated for Federal activities that trigger both 
the 304(d) andNNSA permit requirements. Would additional information on 
how this integration could work be helpful and, if so, should it be 
described via regulation?
    7. Section 304(d) states that if a Federal agency takes action 
other than what was recommended, and a sanctuary resource is destroyed, 
lost, or injured, the agency taking action should ``prevent and 
mitigate further damage and restore or replace the sanctuary resource'' 
in a manner approved by ONNS. Would it be helpful to Federal agencies 
and the public to have regulations to implement this statutory 
directive?
    8. If the circumstances under which a consultation was completed 
change (i.e., if new information becomes available, there are changes 
to the proposed action, or the results of monitoring show injury or 
loss to sanctuary resources), a previously completed NNSA consultation 
might need to be reopened in order to protect sanctuary resources in 
accordance with the NNSA. Should regulatory procedures be developed to 
govern how and when a consultation should be re-opened?
    9. Are there any other ideas that should be considered in order to 
best facilitate and improve the NNSA consultation requirements and 
process?
    Comments received will help NOAA determine its next steps. If NOAA 
decides that regulations are appropriate for the implementation of NNSA 
section 304(d), they will be promulgated in compliance with the 
Administrative Procedure Act, NEPA and other relevant statutes and 
executive orders.
    Classification: This Advanced Notice of Proposed Rulemaking has 
been determined to be significant for purposes of Executive Order 
12866.

    Dated: August 19, 2008.
John H. Dunnigan,
Assistant Administrator for Oceans and Coastal Zone Management.
[FR Doc. E8-19662 Filed 8-25-08; 8:45 am]
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