[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Notices]
[Pages 66689-66692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18099]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Notice of Modification to the Special Use Permit (SUP) Category 
for the Continued Presence of Commercial Submarine Cables Within the 
National Marine Sanctuary System

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

ACTION: Notice; request for public comments.

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SUMMARY: NOAA hereby gives public notice that ONMS is modifying the 
special use permit (SUP) category for the continued presence of 
commercial submarine cables on or within a national marine sanctuary's 
submerged lands so that, for a two-year period, the SUP category does 
not apply to commercial submarine cables in any new sanctuaries 
designated after August 16, 2024. In addition, NOAA is seeking public 
comment on the use of the SUP category for the continued presence of 
commercial submarine cables, potential modifications to the SUP 
category, and input on developing an updated policy and permit guidance 
document for submarine cable projects. This temporary suspension 
affords NOAA time to consider and respond to public comment, evaluate 
the need for updating the SUP category and permit guidance document, 
publish a draft update of the SUP category and/or the permit guidance 
document for further public comment, and finalize any updates to the 
SUP category and/or permit guidance document, if needed. During this 
temporary two-year suspension, NOAA will not require or issue SUPs for 
the continued presence of commercial submarine cables on or within the 
submerged lands of any new sanctuaries designated after August 16,

[[Page 66690]]

2024. Any activities related to submarine cables that would violate 
sanctuary regulatory prohibitions within new sanctuaries designated 
after August 16, 2024, which may include such activities as cable 
installation, maintenance, and repair, will still be prohibited unless 
approved by other NOAA approval mechanisms, such as certifications, 
authorizations or general permits. This two-year suspension period may 
be subject to further extension, as appropriate, via subsequent Federal 
Register notices.

DATES: The effective date of this temporary two-year suspension is 
August 16, 2024. Comments must be received on or before September 30, 
2024.

ADDRESSES:  Comments may be submitted by the following method:
    Federal eRulemaking Portal: https://www.regulations.gov. Submit 
electronic comments via the Federal eRulemaking Portal and search for 
Docket Number NOAA-NOS-2024-0089.
    Instructions: All comments received are a part of the public 
record. All personal identifying information (for example, name and 
address) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NOAA will accept 
anonymous comments (enter N/A in the required fields to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Sophie De Beukelaer, NOAA Office of 
National Marine Sanctuaries, 1305 East West Highway, Silver Spring, MD 
20910, or [email protected], (831) 583-8755.

SUPPLEMENTARY INFORMATION:

I. Background

    Under the National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et 
seq., ONMS designates and manages special areas of the marine 
environment as national marine sanctuaries. Congress first granted NOAA 
the authority to issue SUPs for the conduct of specific activities in 
national marine sanctuaries in the 1988 amendments to NMSA (Pub. L. 
100-627). Under section 310 of the NMSA, 16 U.S.C. 1441, NOAA may issue 
SUPs to establish conditions of access to and use of any sanctuary 
resource or to promote public use and understanding of a sanctuary 
resource. See also 15 CFR 922.31 (providing that a ``person may conduct 
a specified special use permit activity, if such activity is 
specifically authorized by, and is conducted in accordance with the 
scope, purpose, manner, terms and conditions of, a special use permit 
issued under this section'').
    In the National Marine Sanctuaries Amendments Act of 2000 (Pub. L. 
106-513), Congress added a requirement that prior to identifying any 
category of activity subject to a SUP, NOAA has to provide appropriate 
public notice. See 16 U.S.C. 1441(b). To comply with this requirement, 
NOAA published a list of five SUP categories--categories of activities 
subject to the requirements of SUPs--in the Federal Register in 2002 
(67 FR 35501). One of the five SUP categories was the maintenance of 
submarine cables beneath or on the seabed. On January 30, 2006, NOAA 
amended the submarine cable category to apply to submarine cables' 
``continued presence'' instead of their maintenance and, in addition, 
NOAA specified the category applies only to ``commercial'' submarine 
cables (71 FR 4898). As such, the updated category provided that ``the 
continued presence of commercial submarine cables beneath or on the 
seabed'' was subject to the requirements of special use permits under 
section 310 of the NMSA. NOAA has since published other notices in the 
Federal Register to make updates to other SUP categories but these 
notices did not further revise the SUP category for the continued 
presence of commercial submarine cables.
    Section 310(c) of the NMSA, 16 U.S.C. 1441(c), establishes certain 
conditions on the issuance of SUPs. Section 310(c) requires that SUPs:
     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;
     Shall not authorize the conduct of any activity for a 
period of more than 5 years unless renewed by NOAA;
     Shall require that activities carried out under the SUP be 
conducted in a manner that does not destroy, cause the loss of, or 
injure sanctuary resources; and
     Shall require the permittee to purchase and maintain 
comprehensive general liability insurance, or post an equivalent bond, 
against claims arising out of activities conducted under the permit and 
to agree to hold the United States harmless against such claims.
    In addition, under section 310(d) of the NMSA, 16 U.S.C. 1441(d), 
NOAA may assess three types of fees associated with the conduct of any 
activity under a SUP: (1) administrative costs of issuing the permit 
(which NOAA considers to include a $50 application fee and labor fees); 
(2) implementation and monitoring costs; and (3) fair market value 
(FMV) of the use of the sanctuary resource.
    In 2011, NOAA published Policy and Permit Guidance for Submarine 
Cable Projects \1\ (``submarine cable permit guidance'') to define and 
describe how NOAA will consider proposals to install and maintain 
submarine cables within national marine sanctuaries (76 FR 56973). The 
submarine cable permit guidance describes how NOAA considers proposals 
(i.e., permit applications) to conduct site assessments for cable 
routes and install, maintain, repair, and remove submarine cables 
within national marine sanctuaries. The guidance provides detailed 
information for a permit applicant as well as sanctuary staff who 
process the permit applications for activities related to submarine 
cables in sanctuaries. NOAA has used this guidance to approve numerous 
cables within existing sanctuary sites.
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    \1\ The Policy and Permit Guidance for Submarine Cable Projects 
document is available is available on the ``National Marine 
Sanctuaries Documents'' website at https://sanctuaries.noaa.gov/library/alldocs.html under the section ``Policy, Permitting or 
Regulations'' or directly at https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf.
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    On November 19, 2015, NOAA published a Federal Register notice 
(FRN) finalizing the methods, formulas and rationale for the 
calculations it uses to assess fees associated with the then existing 
seven SUP categories (80 FR 72415). In this FRN, NOAA stated that it 
assesses FMV for submarine cables in national marine sanctuaries based 
on the findings of its 2002 study entitled ``Fair Market Value Analysis 
for a Fiber Optic Cable Permit in National Marine Sanctuaries'' (67 FR 
55201).\2\ The methodology established in NOAA's 2002 FMV study 
provided for FMV valuation on a per-mile basis, using a range of fees 
per mile of overall linear distance (length) the infrastructure 
occupies on or within the seafloor within the sanctuary. ONMS intends 
to consider updating its FMV analysis and methodology in a new report, 
which would be peer reviewed. A separate FRN would be published when 
the peer reviewed report is completed to provide notice to the public.
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    \2\ This 2002 FMV analysis document is available on the 
``National Marine Sanctuaries Documents'' website at https://sanctuaries.noaa.gov/library/alldocs.html under the section 
``Policy, Permitting or Regulations'' or directly at https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/fmv_focpermit_final_2002.pdf.

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[[Page 66691]]

II. Action Description

A. Two-Year Pause of SUP Requirement for Commercial Submarine Cables in 
New Sanctuaries

    With this notice, the SUP category for the continued presence of 
commercial submarine cables is modified so that, for a two-year period, 
the SUP category does not apply to commercial submarine cables in new 
sanctuaries designated after August 16, 2024. During this timeframe, 
the continued presence of commercial submarine cables on or within the 
submerged lands in newly designated sanctuaries will not be subject to 
the SUP requirements of section 310 of the NMSA or 15 CFR part 922. The 
temporary suspension affords NOAA time to evaluate the need for 
updating (i) the SUP category, (ii) its submarine cable permit 
guidance, and/or (iii) the FMV methodology, consider and respond to 
public comment, publish any proposed updates to the SUP category and/or 
submarine cable permit guidance for further public comment, and 
finalize any updates to the SUP category, submarine cable permit 
guidance, and/or FMV methodology, if needed and appropriate. During 
this temporary suspension, NOAA will not require or issue SUPs for the 
continued presence of commercial submarine cables on or within the 
submerged lands of newly designated sanctuaries.
    NOAA's current (2011) submarine cable policy and permit guidance 
addresses multiple sanctuary permit mechanisms, including sanctuary 
general permits and authorizations as well as SUPs. NOAA intends to 
propose updates to this submarine cable permit guidance in a separate 
action, subject to further public review and comment. However, at this 
time, NOAA invites any public comments on the current submarine cable 
permit guidance and input on updating the guidance. Any comments 
received will be considered and addressed as NOAA is developing a 
proposed update to the guidance.
    An update to the submarine cable permit guidance could include 
various possible changes, including but not limited to: updating 
references to and clarifications regarding national sanctuary 
permitting regulations; updating construction and mitigation measures; 
and adding details about how repair and maintenance would be approved 
or about any different approval processes for different types of 
cables. Revisions could specify streamlining steps, such as bundling 
approval for multiple cables into one action, and how different stages 
of a cable's ``lifecycle'' (installation, repair, maintenance, and 
removal) can be handled. NOAA is reviewing Bureau of Ocean Energy 
Management's (BOEM's) and coastal States' requirements for permitting 
submarine electrical transmission cables, and it may be prudent to 
refer to these standards in the policy and permitting guidelines (or, 
to explain how NOAA will handle any variances should a State's and BOEM 
requirements differ). The updated submarine cable permit guidance could 
contain a more comprehensive section on prohibited activities within 
different sites and a clearer description of the different types of 
approvals NOAA ONMS can issue for prohibited activities related to 
cables in national marine sanctuaries. It could also include examples 
of how NOAA ONMS has issued permits and authorizations for cable 
related activities in the past, how permit applications will be 
evaluated, and a checklist of information to include in the permit 
application materials.
    Once NOAA has considered public input, relevant available science, 
other peer reviewed information, and provided the final updated 
submarine cable permit guidance to the public, NOAA would then finalize 
any updates to the SUP category for the continued presence of 
commercial submarine cables on or within the submerged lands of any 
national marine sanctuary in a subsequent FRN. In addition, NOAA 
intends to consider updating its submarine cable FMV assessment and 
methodology in a peer-reviewed report, and would provide public notice 
of any updated and final FMV assessment and methodology concurrent with 
any final updates to the SUP category.
    This notice does not alter:
     The applicability of the SUP categories other than the 
category for the continued presence of commercial submarine cables 
beneath or on the seabed;
     The applicability of the SUP category for the continued 
presence of commercial submarine cables beneath or on the seabed in 
national marine sanctuaries designated prior to August 16, 2024; or
     The applicability of sanctuary permit types other than 
SUPs to submarine cables in national marine sanctuaries.
    Commercial submarine cables in national marine sanctuaries 
designated prior to August 16, 2024 will continue to be subject to the 
requirements of this SUP category, including terms and conditions of 
any currently effective SUPs.
    Any prohibited activities related to submarine cables that would 
violate NOAA regulatory prohibitions for national marine sanctuaries 
designated after August 16, 2024, which may include such activities as 
cable installation, maintenance, and repair, will still be prohibited 
unless approved by other NOAA approval mechanisms, such as 
certifications, authorizations, or general permits. Existing cables 
within national marine sanctuaries designated after August 16, 2024 
should be certified to be in compliance with the NMSA. Certifications 
shall be obtained within a set number of days of the effective date of 
sanctuary designation as indicated in the final regulations of the 
sanctuary designation's FRN.
    This two-year suspension period may be subject to further 
extension, as appropriate, via subsequent FRNs.

B. Rationale

    A temporary two-year suspension of requiring or issuing SUPs for 
commercial submarine cables in national marine sanctuaries designated 
after August 16, 2024 affords NOAA time to evaluate if and how it needs 
to update the SUP category, including the FMV methodology, for the 
continued presence of commercial submarine cables on or within the 
submerged lands of any national marine sanctuary. NOAA is initiating 
this action in part to be responsive to comments received on the draft 
Chumash Heritage National Marine Sanctuary (CHNMS) designation 
documents,\3\ raising concerns regarding aspects of this SUP category 
and its implications for industries reliant on submarine cables, 
including telecommunications and offshore renewable energy. NOAA 
recognizes the importance of telecommunication cables and submarine 
electrical transmission cables from renewable offshore energy 
installations to shore. NOAA will continue to support the 
implementation of the Presidential Policy Directive 21: Critical 
Infrastructure Security and Resilience and the critical infrastructure 
Communications Sector-Specific Plan \4\ within the Department of 
Homeland Security's National Infrastructure Protection Plan. NOAA is 
responding to the development plans consistent with NOAA's statutory 
authorities and Executive Order 14008, which directs all federal 
agencies to cooperate and assist in addressing the climate crisis, 
including planning for and executing offshore wind development while

[[Page 66692]]

ensuring robust protection for the Nation's waters and biodiversity (86 
FR 7619). In addition, NOAA acknowledges that submarine cables have 
been designated as critical infrastructure by the U.S. Government due 
to their importance for U.S. commercial and national security 
interests.
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    \3\ At https://www.regulations.gov/, Docket No. NOAA-NOS-2021-
0080.
    \4\ The Department of Homeland Securitiy's Cybersecurity and 
Infrastructure Security Agency's Communications Sector-Specific Plan 
can be downloaded from: https://www.cisa.gov/2015-sector-specific-plans.
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    As authorized in the NMSA, NOAA protects nationally-significant 
marine resources while facilitating compatible uses in sanctuaries. 16 
U.S.C. 1431(b)(6). Cable construction projects have been proposed, 
approved by NOAA, and successfully built within national marine 
sanctuaries. However, for the policy reasons described above and in 
consideration of the public and industry comments NOAA has received, 
NOAA considers it timely to evaluate and seek input on the need to 
update the SUP category for commercial submarine cables. During the 
pendency of this process, to avoid uncertainty, NOAA has determined it 
appropriate to suspend the application of the submarine cable SUP 
category for a two-year period for national marine sanctuaries 
designated after August 16, 2024.
    NOAA has a thorough understanding of how cables impact national 
marine sanctuaries designated before August 16, 2024, and, for those 
sites, has established methods to approve prohibited activities related 
to cables and to consider and issue SUPs for the continued presence of 
commercial submarine cables on the seabed. NOAA may use different 
approval types depending on differences in its regulations for each 
national marine sanctuary, findings, or other agency permits. Approval 
processes in place for national marine sanctuaries designated before 
August 16, 2024 provide reasonable predictability and assurance and 
suspending the SUPs for the continued presence of commercial cables for 
a short two-year time period could disrupt existing management, 
therefore, NOAA is not extending the pause to those sites.
    Within the two-year suspension period, NOAA intends to consider and 
respond to public comments on a separate, proposed update to its 
submarine cable permit guidance document. In updating and improving the 
submarine cable permit guidance document and providing an opportunity 
for the public to comment on the updated guidance document, NOAA 
intends to be responsive to CHNMS draft designation documents comments 
\5\ requesting clearer guidance on the permitting and approval process 
for cables.
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    \5\ At https://www.regulations.gov/, Docket No. NOAA-NOS-2021-
0080.
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III. Request for Comments

    NOAA is seeking public comment on the following:
     The use of the SUP category for the continued presence of 
commercial submarine cables;
     Potential modifications to this SUP category; and
     The current (2011) submarine cable permit guidance and 
input on updating the guidance.
    Any subsequent FRN proposing updates to the SUP category and/or to 
the submarine cable permit guidance will consider and address public 
comments received on this notice.

IV. Classification

A. National Environmental Policy Act

    NOAA has concluded this action will not have a significant effect, 
individually or cumulatively, on the human environment. This action is 
categorically excluded from the requirement to prepare an Environmental 
Assessment or Environmental Impact Statement in accordance with the 
NOAA Categorical Exclusion G7 and because there are no extraordinary 
circumstances precluding the application of this categorical exclusion. 
Specifically, this action is a notice of an administrative and legal 
nature, and any future effects of subsequent actions are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will be subject to later NEPA analysis. This action would only 
temporarily pause the issuance of new special use permits for the 
continued presence of commercial submarine cables on or within the 
submerged lands of any national marine sanctuary designated after 
August 16, 2024. It does not commit the outcome of any particular 
federal action taken by NOAA. NOAA is proposing to update the 2011 
submarine cable guidelines and request public comment on the newly 
proposed guidance. NOAA will ensure the appropriate NEPA documentation 
is prepared prior to taking final action or making any irretrievable or 
irreversible commitment of agency resources.

B. Paperwork Reduction Act

    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information subject to the 
requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., unless that collection of information displays a currently valid 
Office of Management and Budget (OMB) control number. NOAA has an OMB 
control number (0648-0141) for the collection of public information 
related to the processing of ONMS permits across the National Marine 
Sanctuary System. NOAA does not anticipate that this temporary two-year 
suspension of the SUP category for the continued presence of commercial 
submarine cables in newly designated sanctuaries would alter the public 
reporting burden for national marine sanctuaries permits. As such, this 
action does not necessitate a modification to the information 
collection approval.
    Authority: 16 U.S.C. 1431 et seq.

John Armor,
Director, Office of National Marine Sanctuaries, National Ocean 
Service, National Oceanic and Atmospheric Administration.
[FR Doc. 2024-18099 Filed 8-15-24; 8:45 am]
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