[Federal Register Volume 78, Number 10 (Tuesday, January 15, 2013)]
[Notices]
[Pages 2957-2959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00535]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


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

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

ACTION: Notice; request for public comments.

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SUMMARY: In accordance with a requirement of Public Law 106-513 (16 
U.S.C. 1441(b)), 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 March 18, 2013.

ADDRESSES: You may submit comments, identified by docket ID NOAA-NOS-
2012-0162, by one of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov. 
You may enter the following docket number to submit comments: NOAA-NOS-
2012-0162.
     Mail: Submit all written comments to Vicki Wedell, Office 
of National Marine Sanctuaries, 1305 East West Highway (N/NMS2), 11th 
floor, Silver Spring, MD 20910.
    Instructions: To submit electronic public comments through the 
Federal eRulemaking Portal, http://www.regulations.gov, select ``submit 
a comment'' under the heading ``Begin a search by choosing a task or 
entering a keyword,'' type docket number NOAA-NOS-2012-0162 under the 
heading ``Enter keyword or ID,'' and select ``Search'' to receive 
search results. Then follow online instructions for submitting your 
comments.
    All comments received are a part of the public record and will be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (for example, name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. ONMS will accept anonymous

[[Page 2958]]

comments (for electronic comments submitted through the Federal 
eRulemaking Portal, enter N/A in the required fields if you wish to 
remain anonymous).
    Attachments to electronic comments will be accepted in Microsoft 
Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Vicki Wedell, Office of National 
Marine Sanctuaries, 1305 East West Highway (N/NMS2), Silver Spring, MD 
20910, telephone (301) 713-3125, extension 237, email 
[email protected].

SUPPLEMENTARY INFORMATION: This Federal Register document is also 
accessible via the Internet at: http://www.access.gpo.gov/.

I. Background

    Congress first granted NOAA the authority to issue special use 
permits for the conduct of specific activities in national marine 
sanctuaries in the 1988 Amendments to the National Marine Sanctuaries 
Act (16 U.S.C. 1431 et seq.; NMSA) (Pub. L. 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 generally been issued to persons conducting commercial (and 
usually revenue-generating) operations in national marine sanctuaries. 
Section 310 of the NMSA allows NOAA to issue special use permits to 
authorize the conduct of specific activities and allows NOAA to assess 
fees for special use permits.
    In the National Marine Sanctuaries Amendments Act of 2000 (Pub. L. 
106-513), Congress added a 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).'' 16 U.S.C. 
1441(b). In addition, Public Law 106-513 gives NOAA the authority to 
waive, reduce, or accept in-kind contributions in lieu of special use 
permit fees when the activity does not derive a profit from the access 
to or use of sanctuary resources. 16 U.S.C. 1441(d)(4).
    On January 30, 2006, NOAA published a list of five categories for 
which the requirements of special use permits would be applicable (71 
FR 4898):
    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;
    3. The placement and subsequent recovery of objects associated with 
public events on non-living substrate of the seabed;
    4. The deposit or placement and immediate recovery of objects 
related to special effects of motion pictures; and
    5. The continued presence of commercial submarine cables beneath or 
on the seabed.
    In publishing this list, NOAA clarified that simply being 
consistent with one of the categories would not guarantee approval of a 
special use permit for any given activity. Special use permit 
applications are reviewed for consistency with the relevant sanctuary's 
management plan and regulations, the NMSA, as well as the published 
description of the category. Individual special use permit applications 
are also reviewed with respect to all other pertinent regulations and 
statutes, including the National Environmental Policy Act. Special use 
permits are issued only for activities NOAA determines can be conducted 
in a manner that does not destroy, cause the loss of, or injure 
sanctuary resources.

II. Summary of Proposed Changes and Additions

    NOAA proposes to revise three of the five existing categories of 
special use permits: (1) Disposal of cremated human remains in any 
national marine sanctuary; (2) the placement and recovery of objects 
associated with public or private events on nonliving substrate of the 
seabed; and (3) the placement and subsequent recovery of objects 
related to commercial filming. NOAA is also proposing to add two new 
categories of special use permits for: (1) Recreational diving near the 
USS MONITOR; and (2) fireworks displays. The remaining two special use 
permit categories would remain unchanged: (1) The operation of aircraft 
below the minimum altitude in restricted zones of national marine 
sanctuaries; and (2) the continued presence of commercial submarine 
cables beneath or on the seabed.

The Disposal of Cremated Human Remains in Any National Marine Sanctuary

    NOAA is proposing to eliminate the requirement that the disposal of 
human cremains be performed by a ``commercial operator.'' Allowing both 
commercial operators and private individuals to discharge cremated 
human remains more adequately captures the full range of permit 
applicants for this activity. NOAA previously stated that when private 
individuals wish to scatter cremated human remains in a national marine 
sanctuary, they may request an authorization of the EPA's general 
permit from the appropriate sanctuary superintendent on a case-by-case 
basis pursuant to NOAA's authority under section 922.49. Because 
section 922.49 only applies to six sanctuaries individuals wishing to 
scatter cremated human remains in other sanctuaries may not be able to 
do so. NOAA has determined that this restriction is unnecessary and 
that the ability to permit this activity should apply to all 
sanctuaries.

The Placement and Recovery of Objects Associated With Public or Private 
Events on Non-Living Substrate of the Seabed

    NOAA is proposing to expand the type of event associated with this 
category to include public and private events. As currently written, 
the category is specific to ``public'' events. NOAA believes that the 
previous Federal Register notice was not clear whether this term 
includes events that are not intended to be open to the public (i.e., 
private events or those run by commercial operators). NOAA has several 
examples of activities in Florida Keys National Marine Sanctuary that 
are not generally open to all members of the public, whether it is 
because the event is hosted by private industry or because 
participation requires an entry fee, etc. Specific examples of such 
events involve the promotion of SCUBA diving; an annual underwater 
pumpkin carving contest; and a contest to determine the world record 
for underwater ironing. NOAA believes that expanding the category to 
apply to events that are generally open to all members of the public 
and those that are limited to a restricted number of participants more 
accurately captures the types of events that can be conducted in a 
national marine sanctuary under the requirements of the special use 
permit.

The Placement and Recovery of Objects Related to Commercial Filming

    NOAA is proposing to expand the category to include commercial 
filming, rather than just the special effects related to motion 
pictures. NOAA has found the terms ``special effects'' and ``motion 
picture'' to be too limiting and should be eliminated from the category

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description in favor of the more broad term ``commercial filming'' 
which is intended to capture all aspects of motion pictures and other 
media productions.

Recreational Diving Near the USS MONITOR

    NOAA is proposing to add a new category of special use permit for 
recreational diving near the USS MONITOR within Monitor National Marine 
Sanctuary. NOAA's management philosophy for Monitor National Marine 
Sanctuary and other maritime heritage resources favors in situ 
preservation over artifact recovery. As such, and to enhance public 
awareness and appreciation of the USS MONITOR, NOAA has determined that 
enhancing recreational diving access to the wreck is a priority. NOAA 
believes that recreational diving near the USS MONITOR can be conducted 
in a manner that does not injure maritime heritage resources of the 
sanctuary and therefore, it is an activity that should qualify for 
special use permits.

Fireworks Displays

    NOAA is proposing to add a new category of special use permit for 
fireworks displays in sanctuaries. Fireworks are discharged from land 
or from a barge offshore (that is close enough for people to view). 
Permits are typically issued to individuals, pyrotechnics companies, or 
municipalities for special events. NOAA would evaluate each special use 
permit application for this category individually and against all 
applicable sanctuary regulations, laws, and policies. As with all other 
special use permits, permits would be issued under this category only 
if NOAA determines the activities can be conducted in a manner that 
does not destroy, cause the loss of, or injure sanctuary resources. For 
example, possible measures to mitigate adverse impacts to wildlife 
include changes to timing or location, and ensuring debris related to 
exploded fireworks are removed.

Summary

    As proposed in this notice, the categories of activities that would 
be subject to the requirements of special use permits would be:
    1. The disposal of cremated human remains in any national marine 
sanctuary;
    2. The operation of aircraft below the minimum altitude in 
restricted zones of national marine sanctuaries;
    3. The placement and recovery of objects associated with public or 
private events on non-living substrate of the seabed;
    4. The placement and recovery of objects related to commercial 
filming;
    5. The continued presence of commercial submarine cables beneath or 
on the seabed;
    6. Recreational diving near the USS MONITOR;
    7. Fireworks displays.

III. Request for Comments

    NOAA is requesting comments on the modification of current 
categories of special use permits and the addition of new categories to 
the requirements of special use permits.

IV. Classification

A. 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 6.03c3(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 ONMS will be 
subject to additional case-by-case analysis, as required under NEPA, 
which will be completed as new permit applications are submitted for 
specific projects and activities.
    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. 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 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.

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. Applications for 
the special use permits discussed in this notice involve 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 provide 
environmental information for preparing 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 provide the information 
needed 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).

    Dated: November 6, 2012.
Daniel J. Basta,
Director, Office of National Marine Sanctuaries.
[FR Doc. 2013-00535 Filed 1-14-13; 8:45 am]
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