[Federal Register Volume 65, Number 164 (Wednesday, August 23, 2000)]
[Proposed Rules]
[Pages 51264-51270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21539]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 000526157-0157-01]
RIN 0648-AO36
Installing and Maintaining Commercial Submarine Cables in
National Marine Sanctuaries
AGENCY: Marine Sanctuaries Division (MSD), National Ocean Service
(NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: Notice is hereby given that NOAA is evaluating whether changes
to existing National Marine Sanctuary (NMS) regulations or some form of
policy guidance is necessary to clarify NOAA's decision-making process
regarding the installation and maintenance of commercial submarine
cables within NMSs. If changes or additional guidance are appropriate,
this notice requests comments on what the changes or guidance should
contain. This notice also requests comments on proposed principles on
the installation of commercial submarine cables within the marine and
coastal environment as a whole.
DATES: Comments on this notice must be received by October 23, 2000.
ADDRESSES: Address all comments regarding this notice to Debra Malek,
Conservation Policy and Planning Branch, National Marine Sanctuary
Program, NOAA, 1305 East-West Highway, 11th Floor, Silver Spring, MD
20910; Attention: Submarine Cable FR Comments. Comments may also be
submitted by e-mail to: submarine.cables&noaa.gov
FOR FURTHER INFORMATION CONTACT: Debra Malek, 301-713-3145 extension
162.
SUPPLEMENTARY INFORMATION:
I. Background
Through higher transmission capacity, decreased interruptions in
service, greater security and cost efficiency, fiber-optic
telecommunications cables are meeting demands for better productivity
and quality in telephone, internet and data transmissions, education,
and connectivity. In the face of this demand, global markets are
expanding rapidly and domestic land-based cable routes
[[Page 51265]]
are becoming increasingly congested. For these and other reasons, the
number of project proposals and specific permit requests for laying
cables in the marine and coastal environment is increasing at a
tremendous rate.
The increase in proposals for marine-based telecommunications cable
projects strikingly highlights the Department of Commerce's (DOC) role
as steward for both the nation's economy and the marine and coastal
environment. For DOC, protecting the marine and coastal environment is
as imperative as fostering the growth of telecommunications. Marine and
coastal resources provide economic, cultural, and societal benefits to
the nation. Yet, with the rapid growth and development of the coastal
zone, many marine and coastal resources are at risk of degradation or
loss. As a result, cumulative environmental impact evaluations need to
be performed for cabling projects proposing transit through national
marine sanctuaries, sensitive marine habitats outside of sanctuaries,
submerged cultural resources, fishing zones, and areas of aesthetic
value.
Federal, state, and local governments impose permitting
requirements for all forms of development. The types of issues that are
evaluated in seeking necessary permits for a proposed submarine cable
project include, but are not limited to: cable route planning, cable
installation (e.g., burial), operation, maintenance and repairs, and
removal. Preparing an application for a permit, as well as the
government review and authorization process, takes time and money.
II. Legal Framework
When considering a proposal to lay and operate commercial submarine
cables in the marine and coastal environment, DOC must evaluate the
industry's request relative to several statutes. These statutes provide
the legal framework that governs decision-making. It is important to
understand, however, that other federal, state, and local agencies have
additional authorities that will govern the construction and operation
of submarine cables.
The following describes the principal authorities governing this
issue with which DOC must comply. Please refer to the full text of
these laws for complete information.
National Marine Sanctuaries Act
The National Marine Sanctuaries Act (NMSA or Act), 16 U.S.C. 1431
et seq., provides authority for the establishment of a unique network
of marine protected areas dedicated to the conservation of specially
nationally significant areas of the marine environment. Within NOAA,
the National Marine Sanctuary Program (NMSP or Program) is administered
by the National Ocean Service's Marine Sanctuaries Division. The NMSP
comprises 13 sanctuaries around the United States, including sites in
American Samoa and Hawaii.
The primary objective of the NMSA is protection of sanctuary
resources. Sanctuary resource is defined at 15 CFR 922.3 as:
Any living or nonliving resource of a national marine sanctuary
that contributes to the conservation, recreational, ecological,
historical, research, educational, or aesthetic value of the sanctuary,
including but not limited to, the substratum of the area of the
sanctuary, other submerged features and the surrounding seabed,
carbonate rock, corals and other bottom formations, coralline algae and
other marine plants and algae, marine invertebrates, brine-seep biota,
phytoplankton, zooplankton, fish, seabirds, sea turtles and other
marine reptiles, marine mammals and historical resources.
The NMSP manages sanctuaries on an ecosystem approach to protect
sanctuary resources and sanctuary biological, physical, the chemical
qualities. When a sanctuary is designated NOAA develops a comprehensive
management plan and regulations for the sanctuary. Sanctuary
regulations prohibit a range of activities to protect sanctuary
resources and qualities.
Consequently, when a regulation prohibits a particular activity, a
determination has been made, after public notice and comment, that such
activity is generally incompatible with the resource protection mandate
of the NMSA, and with the purposes for which the sanctuary was
designated.
Relevant to submarine cables, each sanctuary has some type of
regulation that prohibits installation of such cables. Such regulatory
prohibitions include those against: drilling into, dredging or
otherwise altering the seabed of the sanctuary; constructing, placing
or abandoning any structure, material or other matter on the seabed of
the sanctuary; injuring benthic invertebrates; moving or injuring
historical resources; and discharging or depositing any material or
other matter in the sanctuary.
Prohibited activities may be conducted under certain limited
circumstances to the extent they are compatible with the resource
protection mandate and meet regulatory and other requirements for a
sanctuary permit or other authorization. Sanctuary permits may be
issued for research, education, management, or, in some instances,
salvage activities. Some more recently designated sanctuaries have the
authority to authorize another agency's permit for a specific activity,
when such activity is compatible with resource protection and the
purpose for which the sanctuary was designated. The NMSA also provides
authority to issue special use permits for certain types of activities
and NOAA may assess fees for the conduct of such activities.
Permits for commercial submarine cable projects would require
applicants to adhere to certain conditions, including: collection and
analysis of data on the environmental effects of cable installation,
operation and maintenance. Those conditions would apply for the life of
the permit. The project proponent would retain responsibility for any
``out of service'' cable that remains in the marine environment (e.g.,
if the cable is abandoned).
The NMSA also statutorily prohibits destroying, causing the loss
of, or injuring any sanctuary resource managed under law or regulations
for that sanctuary.
Section 304(d) of the NMSA section requires consultation on any
Federal agency action internal or external to a national marine
sanctuary, including private activities authorized by licenses, leases,
or permits, that are likely to destroy, cause the loss of, or injure
any sanctuary resources. Thus, for some proposed submarine cable
projects that do not need a sanctuary permit or other sanctuary
authorization but require another Federal agency's permit, consultation
under the NMSA may be required.
The NMSA is applied in accordance with generally recognized
principles of international law, and in accordance with treaties,
conventions, and other agreements to which the U.S. is a party.
Endangered Species Act
The Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., protects
species of plants and animals that have been listed through regulations
as threatened or endangered. A threatened species is any species that
is likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. An endangered
species is any species, other than some species of the Class Insecta,
that is in danger of extinction throughout all or a significant portion
of its range.
The ESA and its implementing regulations prohibit the ``taking'' of
any
[[Page 51266]]
listed species, except under specified circumstances. A ``take'' is
defined broadly and includes harassment, harm, pursuit, hunting,
shooting, wounding, killing, trapping, capturing, or collecting, or
attempting to engage in any of these types of conduct. The ESA includes
civil and criminal penalties for violations. The Secretaries of the
Departments of the Interior and Commerce may issue permits for the
incidental take of listed species.
The National Marine Fisheries Service (NMFS) of NOAA has
jurisdiction over cetaceans, pinnepeds (except walruses), commercially
harvested estuarine molluscs and crustaceans, marine fish, anadromous
fish, certain other species (e.g., Johnson's seagrass), and sea turtles
in the water. The U.S. Fish and Wildlife Service of the Department of
the Interior (FWS) has jurisdiction over all other species, including
seabirds. The provisions of the ESA extend to actions within the
territory of the United States, state of Federal waters, and by U.S.
entities on the high seas. For example, NMFS must ensure that its
authorization of the conduct of a fishery is not likely to jeopardize
the continued existence of any endangered or threatened species.
After a species is listed as threatened or endangered, NMFS or FWS
is required to designate critical habitat and develop and implement
recovery plans for the listed species. Every Federal agency must ensure
that any action authorized, funded or carried out by such agency is not
likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification
of critical habitat. Federal agencies must consult with NMFS and FWS to
avoid, minimize, or mitigate the impacts of their activities on listed
species.
Submarine cable projects will trigger this consultation process
whenever a federal permit, license, or other action is needed for an
activity that may affect a listed species. If a protected species or
its critical habitat is present in the vicinity of the cable laying
project a Biological Assessment must be prepared by the permitting
agency. The permitting agency must evaluate the potential effects of
the action on listed and proposed species and designated and proposed
critical habitat. The agency then determines whether any such species
or habitat is likely to be adversely affected by the action. If they
believe there are no applicable alternatives to the project and that
the project will jeopardize the continued existence of a protected
species they may apply to the Endangered Species Committee for an ESA
exemption.
Marine Mammal Protection Act
The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq.,
establishes a moratorium on the ``taking'' of marine mammals within
U.S. waters or by U.S. citizens on the high seas. ``Taking'' is
statutorily defined as ``to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture or kill any marine mammal.'' Through NMFS, DOC
has jurisdiction over all marine mammals with the exception of manatees
and dugongs, walrus, polar bears and sea otters, which the Department
of the Interior manages.
The MMPA allows the Secretaries to authorize the incidental taking
of a small number of marine mammals by U.S. citizens who engage in a
specified lawful activity within a specified geographical region,
provided that the total number of takes will have no more than a
negligible impact on affected species and will not have an unmitigable
adverse impact on subsistence hunting.
Laying cable on the seabed and cable repair could potentially
result in the incidental taking of marine mammals due to the elevated
noise levels and vessel traffic associated with the laying of cable and
entanglement of whales in the cable. NMFS regulations governing the
small take authorization program are at 50 CFR 216.101 et seq. The
regulations provide for expedited one-year authorizations for takes by
harassment only and for five-year authorizations covering all forms of
takes.
Magnuson-Stevens Fishery Conservation and Management Act
The Magnuson-Stevens Fishery Conservation and Management Act
(MSFCMA), 16 U.S.C. 1801 et seq., administered by NMFS is the primary
federal fishery management authority. The law established a national
program to conserve and manage the nation's fishery resources and their
habitats so the United States can achieve the full potential of its
fishery resources. In addition to the law's focus on managing fishing
activities, the most recent amendments in 1996 (Pub. L. 104-297)
included language to protect ``essential fish habitat'' (EFH) for each
of more than 700 species under federal authority. The new EFH mandate
requires consultation with NMFS for any project that may adversely
affect habitats of federally-managed species.
The regulations governing EFH consultations are found at 50 CFR
part 600, subpart K. Where possible, EFH will be implemented by using
traditional environmental review processes associated with the National
Environmental Policy Act, Fish and Wildlife Coordination Act,
Endangered Species Act, or other laws, thereby eliminating the need for
separate permit reviews or public comment periods.
Submarine cable projects will trigger this EFH consultation process
whenever a federal permit, license, or other action is needed, if the
proposed activity may adversely affect EFH. Except in rare situations,
the EFH consultation will be conducted between field offices of the
action agency and NMFS. Regional NMFS offices have maps, tables, and
reports documenting areas designated as EFH and can work with the
authorizing agency and industry to determine whether a submarine cable
project affects EFH.
In combination with any documents associated with the traditional
environmental review process (permit application, engineering plans,
NEPA documents), an EFH Assessment must be prepared describing how the
proposed project may affect EFH. The appropriate level of detail
required in the consultation will depend on the proposed action and its
potential impact on EFH.
Coastal Zone Management Act
States with coastal management programs approved by DOC pursuant to
the Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq. (this
includes all coastal states), have the authority to review federal
activities affecting any land or water use or natural resource of the
coastal zone for consistency with their approved state CZM program.
This review authority includes the review of all federal agency permits
(e.g., Army Corps of Engineers Section 10/404 permits and marine
sanctuary permits). In the case of Federal permits, Federal agencies
may not issue permits that are inconsistent with a state's approved
program, unless, after an appeal by the applicant to DOC, an override
decision is made based on certain criteria.
Companies with proposed submarine cable projects should contact the
relevant state coastal management program agencies or NOAA's Office of
Ocean and Coastal Resource Management, Federal Consistency Office, as
early as possible in the federal application process.
National Environmental Policy Act
The National Environmental Policy Act (NEPA) of 1969, 42 U.S.C.
4321 et seq., is the foundation of modern American environmental
protection in
[[Page 51267]]
the United States and its commonwealths, territories, and possessions.
NEPA requires that Federal agency decision-makers, in carrying out
their duties, use all practical means to create and maintain conditions
and fulfill the social, economic, and other needs of present and future
generations of Americans.
NEPA provides a mandate and a framework for Federal agencies to
consider all reasonably foreseeable environmental effects of their
proposed actions and to involve and inform the public in the decision-
making process.
NOAA's Administrative Order 216-6 (updated May 20, 1999) describes
NOAA's policies, requirements, and procedures for complying with NEPA
and the implementing regulations issued by the Council on Environmental
Quality (CEQ) as codified in Parts 1500-1508 of Title 40 of the Code of
Federal Regulations (40 CFR parts 1500-1508) and those issued by DOC in
Department Administrative Order (DAO) 216-6, Implementing the National
Environmental Policy Act.
NEPA applies to any proposed action for which a federal nexus
exists, such as federal funding, permitting, or approval. Examples
include ACOE 404 permits, ESA section 7 consultations for incidental
take statements, or authorization for actions within a national marine
sanctuary. Applicants for such permits or authorizations may be an
individual, a private organizations, or a Federal, state, tribal,
territorial, or foreign governmental body. Based on the action and its
impact on the quality of the human environment, a level of
environmental review is required (i.e., categorical exclusion,
environmental assessment, or environmental impact statement).
NEPA documents may be stand-alone or combined with associated
reviews such as those for state permits or Federal consistency
certification. The latter, joint documentation, is preferred to reduce
duplication and expedite review and clearance processes. When combined
with other review processes, early coordination is essential to produce
final documentation that is acceptable to all approving parties. NEPA
documents are sometimes prepared by a contractor; in such cases, the
documents must be cleared by the Federal agency prior to final action
being taken.
For the purpose of a proposed submarine cable to transit the
coastal zone including a portion of a national marine sanctuary,
several permits or approvals may be required (e.g., ACOE 404, NMSA
permit or other authorization, and state permits and Federal
consistency certification), each requiring federal or state
environmental review. After providing sufficient background information
on the proposed action to the involved agencies, the requisite level of
review is determined, and a NEPA document is prepared and circulated
for public review as appropriate. Upon completion, final NEPA documents
are cleared by the agency(s) and a determination is made on the
applicable authorization(s) or permit(s). No final action by an
applicant may occur prior to completion of the NEPA review process.
National Historic Preservation Act
The National Historical Preservation Act (NHPA), 16 U.S.C. 470 et
seq., directs federal agencies to develop programs to protect their
cultural and historic properties. Section 106 of the NHPA directs that
all federal or federally-funded undertakings, including federally
permitted activities, be reviewed to ensure that no historic properties
are negatively affected. The federal agency (in this case NOAA) must
work in cooperation with states and the Advisory Council on Historic
Preservation to minimize or prevent damage to the resources.
Submarine Cable Landing License Act
Pursuant to the Submarine Cable Landing License Act (47 U.S.C. 34-
39) the President must grant permission to any entity planning to land
a submarine cable in the United States. This statute requires an entity
to get permission before it is allowed to land and operate a submarine
cable ``directly or indirectly connecting the United States with any
foreign country, or connecting one portion of the United States with
any other portion thereof'' * * * except for any submarine cable ``all
of which, including both terminals, lie wholly within the continental
United States.'' 47 U.S.C. 34.
In a related Executive Order (E.O. 10530) the President delegated
authority to the Federal Communications Commission (FCC) to grant,
deny, or condition submarine cable landing licenses, except that no
license can be granted or revoked without the FCC first obtaining
approval from the Secretary of State and advice from any executive
department of the Government as the Commission may deem necessary. The
National Telecommunications and Information Administration (NTIA), an
agency within DOC, advises the Department of State and the FCC on all
submarine cable landing license applications. The factors NTIA
considers in reviewing these applications involve competition issues
and consumer matters.
III. Meetings
NOAA is evaluating whether changes to existing National Marine
Sanctuary regulations or some form of policy guidance is necessary to
clarify NOAA's decision-making process regarding the installation and
maintenance of commercial submarine cables within NMSs. This evaluation
is being undertaken in response to requests from the telecommunications
industry to lay cables through many U.S. coastal and ocean areas,
including NMSs, as well as in response to requests from various members
of the fishing industry and the environmental community for more
detailed information on the processes involved in the installation and
maintenance of telecommunications cables and the possible impacts these
processes have on the marine and coastal environment.
Within the overall marine and coastal environment, national marine
sanctuaries have been established as special places set aside as
protected areas of national significance. As such, they are afforded a
higher level of protection. Within each sanctuary, certain types of
activities, including activities inherent to laying, operating,
repairing, and removing submarine cables, have been determined to be
generally incompatible with the statutory objective of resource
protection and are therefore prohibited by regulation. Under certain
limited circumstances some prohibited activities may be allowed.
As applications were received by NMS offices for submarine cable
installation, the NMSP began internal discussions on how to deal with
such proposals. DOC, as part of its efforts to build productive
partnerships among government, the telecommunications industry, and
non-governmental organizations, convened a series of meetings to give
stakeholders a chance to provide input into the Program's evaluation of
the installation of commercial submarine cables in the marine and
coastal environment. Many key issues were identified at these meetings.
From the business community, we heard the following:
Submarine cables provide high-speed broadband connectivity
and capacity for large geographic areas that are often important
centers of trade and communication;
Submarine cables alleviate existing capacity constraints
and meet the demand for future growth;
[[Page 51268]]
Submarine cables provide emergency routing alternatives to
existing land-based telecommunication systems that are susceptible to
earthquakes, flooding, storms, and other natural phenomena;
Installation can be a low impact process, especially when
compared to other commercial activities currently allowed in the marine
environment (cables are small in diameter, the plow cuts a narrow
trench, cable is buried to one meter, etc.);
Submarine cables carry heavy international communication
traffic without the transmission delays associated with satellites;
Speed to market is critical and competition is fierce (200
new cable systems with over 1,000 shore landings are projected by
2003);
A more succinct and clear policy for submarine cables
would alleviate the current confusion over the approval of such
projects.
From the environmental community, we heard the following:
Little data exists on the cumulative environmental impacts
associated with the installation, maintenance, operation, and repair of
submarine cables;
Sanctuaries and areas of sensitive habitat should be
avoided, with some declared off limits;
NOAA needs to develop policies and regulations for non-
sanctuary waters as well;
Additional information is needed on the immediate and
long-term impacts of fiber optic systems;
Fishing conflicts and gear issues must be resolved;
Reassurance is needed to demonstrate that impacts are
indeed low, as industry claims, and that submarine cables are and will
remain buried;
Regular monitoring of installed submarine cables should be
mandatory, based on a set of baseline standards;
A more succinct and clear policy for submarine cables
would alleviate the current confusion over the approval of such
projects;
Technologies should be examined to determine methods of
burial and retrieval that minimize disturbance to the benthos and
associated water quality;
Mechanisms should be developed to minimize the number of
submarine cable corridors permitted, including requirements to utilize
existing corridors whenever possible;
Once a cable is no longer in use, cables should be removed
and disposed of rather than abandoned in place;
All cable proposals should be subject to rigorous
environmental review under NEPA including full discussion of cumulative
impacts and serious consideration of alternatives;
All monitoring of cable surveys, laying, repair, and
removal should be subject to independent agency verification.
NOAA used the information obtained from these meetings to form the
framework of a ``white paper.'' This document identified the concerns
and issues associated with such activities and led to the development
of draft guiding principles to be applied as part of the project
review. (See Appendix A).
IV. Workshop
On February 28 and 29, 2000, DOC convened a workshop involving
representatives from the telecommunications and fishing industries,
environmental and conservation organizations, and state agencies. The
white paper was distributed at the workshop and was the focus of
discussion.
Participants identified many key issues they felt NOAA should
further address in the Principles section of the document. NOAA has
developed some initial reactions to these issues and has developed some
potential approaches or ways to resolve them. The key issues are listed
below and are followed in brackets by NOAA's initial reactions.
1. Be as explicit and comprehensive as possible in terms of
criteria, legal standards, and rationale for NMSP decision-making.
[Within NMSs, NOAA could base its review of projects on ensuring
resource protection. It is NOAA's view that sanctuary size, unique
characteristics, (e.g., fragile habitats, cultural resources, etc.),
and/or existing regulations would be important criteria in project
review.]
2. Clarify NOAA's regulatory roles outside NMSs. [With regard to
areas outside of NMSs, NOAA's participation could take the form of
project review will be during consultation with other federal and state
agencies that have direct permitting authority over activities in the
marine and coastal environment, including, for example, U.S. Army Corps
of Engineers (ACOE) and other federal agencies addressing such
authorities as MMPA and ESA. Other criteria for consultation review
could include preferred routes, alternative routes, landside
connection, site characterization, cumulative impacts, sensitive
habitats, and cable removal. NOAA would follow the established public
review and comment process established under existing regulations when
evaluating proposed projects.]
3. Clarify NOAA's position on cable installation in NMSs when
habitat outside of a NMS may be more sensitive than the proposed cable
installation route inside the NMS. [NOAA could provide basic
information to help industry identify and locate sensitive habitats to
be avoided.]
4. Clarify NOAA's definition of ``feasible alternative'' to
installing a cable in a NMS. [NOAA could address this through the use
of NEPA's definition of feasible alternative.]
5. Give further attention to and explanation of the development of
a Programmatic Environmental Impact Statement (PEIS) for cable
installation. [NOAA will consider whether a PEIS could and should be
prepared for the proposed installation of submarine cables in marine
sanctuaries and the marine environment as a whole. Such a document
would clearly describe the potential impacts of cable projects within
various habitat types and sanctuaries and would set forth project
limitations. Should a PEIS be developed, environmental review documents
for individual projects would be tiered off of the general document.]
6. Recognize the value of coordination between DOC and other
federal agencies when issues such as cable installation in the marine
environment are concerned. [NOAA could work with ACOE to develop a
Memorandum of Understanding (MOU) that addresses consultation
procedures for cable laying projects. NOAA could also coordinate
necessary consultations under the ESA, MSFCMA (primarily Essential Fish
Habitat), and NMSA. Consultations should be initiated at the earliest
possible dates so potential impacts from each project and cumulative
impacts of industry actions can be minimized.]
7. Incorporate recognition of, and provide flexibility for,
possible technological and environmental changes that may occur during
the life of the cable. [Although initially addressed in the Principles
section of the White Paper, NOAA is looking for further guidance on
this issue.]
8. Recognize that pre-existing data on submarine cables is
available and should be consolidated as much as possible for future
reference. [NOAA will continue to work with industry, environmental
organizations, and other agencies (e.g., Navy, United States Geological
Survey, ACOE) to collect information about existing submarine cable
projects and the known environmental effects of installation and
maintenance.]
9. Recognize the fishing industry's role as a distinct, critical
and interested
[[Page 51269]]
party in submarine cable issues. [NOAA could accomplish this by
strongly encouraging the cable industry to initiate negotiations and
develop agreements with marine and coastal resource user groups before
their applications for permits and licenses are deemed complete for
public review. The cable industry could then negotiate agreements and/
or directly consult with fishing, mining, aquaculture, whale watching,
and other marine and coastal resources user groups to minimize
disruptions to other marine and coastal activities during cable
installation and thereafter.]
10. Recognize the possibility of ``cable corridors'' (fixed-
location lanes for multiple cables). [Although initially addressed in
the Principles section of the White Paper, NOAA is looking for further
guidance on this issue.]
11. Should elaborate further on NOAA's position on the issue of
cable removal. [NOAA could, in issuing any permits for submarine cable
projects, require that permittees collect and analyze data on the
environmental effects of cable installation, operation and maintenance.
Those conditions would then apply for the life of the project. At the
end of the cable's service, the permittee will be required to perform a
survey of the cable route and provide a report describing the status of
the cable (including burial depth) and benthic communities along the
cable route. The permittee would then be required to prepare a thorough
evaluation of leaving the cable in place vs. removal of the cable. For
any ``out of service'' cable that is allowed to remain in the marine
environment, the permittee would retain full responsibility for such
cable in perpetuity. Periodic monitoring by the permittee would also be
required.]
V. Action Requested From the Public
As it continues its evaluation, NOAA is seeking public comment on
both the guiding principles in the Workshop white paper (attached as
Appendix A) and NOAA's reactions to the workshop participants' key
issues articulated above in Section IV. Comments received by NOAA will
help to determine its next steps, i.e., whether the NMS regulations
should be amended to clarify NOAA's decision-making process regarding
the installation of commercial submarine cables or if a DOC policy
statement should be issued.
Regulations would be published in the Federal Register following
appropriate National Environmental Policy Act (NEPA) and Administrative
Procedure Act (APA) steps. Any proposed policy statement would be
published in the Federal Register. It should be noted that while the
white paper lists the statutory elements for imposing a fee for the
issuance of a special use permit, the purpose of this request for
comments does not include setting the amount for any such fee. Rather,
as stated above, NOAA is seeking public input on whether it should
amend its regulations or issue a policy statement. If NOAA decides to
issue regulations or a policy statement which include a requirement for
the issuance of a special use permit, NOAA will undertake another
public process to establish, in light of the statutory elements stated
in the white paper, the appropriate amount of the attendant fee.
Dated: August 17, 2000.
Ted I. Lillestolen,
Deputy Assistant Administrator for Oceans and Coastal Zone Management.
Appendix A
Principles Section from the Draft White Paper ``Proposed Principles for
Laying Submarine Cables in the Marine and Coastal Environment''
Proposed Principles
1. For business, environment, and government alike, accurate
information about the environmental effects of submarine cables on
the marine environment, expectations for completing permit reviews,
project routing and implementation, and ongoing maintenance needs
are vital. In some cases, such as the environmental effects, this
information is lacking. What steps can NOAA take for better
information gathering and information flow?
Implementation steps:
a. NOAA will continue to work with industry, environment, and
other agencies (e.g., Navy, USGS, ACOE) to collect information about
existing submarine cable projects and the known environmental
effects of installation and maintenance.
b. NOAA permits for submarine cable projects will require that
applicants collect and analyze data on the environmental effects of
cable installation, operation and maintenance. Those conditions will
apply for the life of the permit. For any ``out of service'' cable
that remains in the marine environment, the project proponent must
retain responsibility for such cable (e.g., if the cable becomes
unburied).
c. For those projects where NOAA does not have a permitting
role, NOAA will work with other permitting agencies to ensure that
its environmental concerns under ESA, MMPA, MSFCMA, NMSA, and other
authorities are fully adopted or considered, where required or as
appropriate.
d. NOAA will convene interested industry and environmental
representatives from time to time to review new data and
technologies, evaluate guidelines, and otherwise continue the
sharing of information.
2. Industry has described ``speed to market'' as a driving force
in the submarine cable business. As such, it has stated the
importance of a timely and predictable review of projects,
particularly where NOAA permits are required. In addition, it is in
the best interest of effective management of the marine and coastal
environment to be able to quickly and effectively determine the
proper course of action for submarine cable projects, without
compromising NOAA's trustee responsibilities. As the efficient
review of proposed projects is in the best interests of all parties,
what steps can NOAA take to aid in the timely and predictable review
of proposed cable projects?
Implementation steps:
a. NOAA will consider whether it can as a general matter
(legally and from a policy standpoint) approve projects when they
are in the planning stages. NOAA would base such ``planning
approvals'' on specific routes, technologies, monitoring and
maintenance protocols, and other factors.
b. NOAA will coordinate necessary consultations under the ESA,
MSFCMA, NMSA.
c. NOAA will consider the impacts and merits of establishing
submarine cable ``routes'' that direct cable installations into and
out of landing stations in such a way as to minimize individual and
cumulative environmental effects.
d. NOAA will establish points of contact for submarine cable
projects. These individuals will be responsible for coordinating
reviews and outreach within the Department. In addition, NOAA will
maintain records and data on submarine cable projects in order to
further improve internal review and external compliance.
3. National marine sanctuaries are special places of the marine
environment set aside as protected areas for their national
significance. As such, they are afforded a higher level of
protection.
Within each sanctuary certain types of activities, including
activities inherent to laying, operating, repairing, and removing
submarine cables, have been determined to be generally incompatible
with the statutory objective of resource
[[Page 51270]]
protection and are therefore prohibited by regulation.
Under certain limited circumstances some prohibited activities
may be allowed, but as a matter of policy laying of submarine cables
within sanctuaries is discouraged. What steps can NOAA take when
reviewing projects proposed within marine sanctuaries to ensure
resource protection (particularly where uncertainty exists as to the
extent of impact of a proposed project to the sanctuary
environment)?
Implementation steps:
a. It is NOAA's review that sanctuary size, unique
characteristics (e.g., fragile habitats, cultural resources, etc.)
and existing regulations preclude the installation of submarine
cables in the following marine sanctuaries:
(1) Cordell Bank
(2) Channel Islands (within 2 nautical miles of the islands, as
prohibited)
(3) Gulf of Farallones
(4) Fagatele Bay, American Samoa
(5) Gray's Reef
(6) MONITOR
(7) Flower Garden Banks
b. Projects in those sites where cable laying activities are not
prohibited (i.e., Channel Islands NMS outside of 2 nautical miles
from the islands, Hawaiian Island Humpback Whale NMS, when conducted
under valid State or Federal permit) are subject to the consultation
provisions (sec. 304(d)) of the NMSA and will be evaluated by NOAA
similarly to those projects requiring sanctuary approval.
c. NOAA will consider whether a programmatic environmental
impact statement could be prepared for the proposed installation of
submarine cables in marine sanctuaries. Such a document would
clearly describe the permit limitations for projects in specific
sanctuaries or habitat types.
d. Those sites where proposals for installation and operation of
submarine cables would be considered are Monterey Bay, Olympic
Coast, Florida Keys, and Stellwagen Bank sanctuaries. NOAA will
identify fragile habitats and known archaeological sites wherein
installation of submarine cables will be prohibited under any
circumstances near the immediately surrounding area. These are
expected to include the following:
(1) Rocky, hard bottom areas (habitat) where cable cannot be
buried or covered)hard bottom limestone reef areas in particular;
(2) Coral reef and associated hard bottom areas;
(3) Sea grass areas;
(4) Mangrove islands;
(5) Areas likely to have cultural resources, such as historic
shipwrecks;
(6) Kelp forests;
(7) Habitat for endangered or threatened species;
(8) Areas set aside as ``no take'' zones or ``marine or
ecological reserves.''
e. The following minimum criteria must be met for any submarine
cable to be considered in a sanctuary:
(1) There is no feasible alternative to transiting the
Sanctuary;
(2) Impacts to sanctuary resources, including impacts to
cultural resources and cumulative impacts, from installation,
maintenance, long-term operation, and removal, are determined to be
negligible and short-term. This is determined within the context of
the overall environmental analysis;
(3) Appropriate mitigation, including monitoring of impacts of
the activity, is included and paid for by the project proponent; and
(4) The applicant agrees to remove all or part of the cable at
the end of its life, if determined appropriate by NOAA.
f. A specific proposal will be considered following the
applicable review and criteria unique to the specific sanctuary in
which the application is submitted. Installation of a previous cable
within any given sanctuary does not ensure installation of
additional cables in that sanctuary or others in the system. Exact
routes and alternatives, and cumulative impacts will be evaluated in
the environmental analysis.
g. For every project considered, analysis must include, but is
not limited to, the following topics:
(1) Cumulative impacts;
(2) Feasible alternatives to transiting the Sanctuary, including
alternative routes over land;
(3) Impacts to habitat from laying the cable (e.g., trenching)
and long term placement of the cable in its location;
(4) Potential for impacts on sensitive, threatened and
endangered species and their habitats;
(5) Potential impact to cultural resources, using remote-sensing
survey, sonar and magnetometer;
(6) Impacts of removing the cable at the end of its useful life;
and
(7) Impacts on other interests (e.g., fishing interests).
h. Pursuant to sanctuary regulations, a fee will be assessed for
any approved project. This fee includes:
(1) Costs incurred, or expected to be incurred, of issuing the
permit;
(2) Costs incurred, or expected to be incurred, as a direct
results of the activities (including monitoring); and
(3) The fair market value of the use of the sanctuary and a
reasonable return to the U.S. Government.
4. The Department believes that just as the submarine cable
industry is growing, the principles guiding its review of submarine
cable proposals must also continue to evolve. What steps can NOAA
take to aid in this evolution and craft the principles into a living
document?
[FR Doc. 00-21539 Filed 8-22-00; 8:45 am]
BILLING CODE 3510-08-M