[Federal Register Volume 78, Number 10 (Tuesday, January 15, 2013)]
[Notices]
[Pages 2957-2959]
From the Federal Register Online via the Government Printing 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
Vicki.Wedell@noaa.gov.
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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