80 FR 72415 - Final Notice of Fee Calculations for Special Use Permits

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 223 (November 19, 2015)

In accordance with a requirement of Public Law 106-513 (16 U.S.C. 1441(b)), NOAA hereby gives public notice of the methods, formulas and rationale for the calculations it will use in order to assess fees associated with special use permits (SUPs).

[Federal Register Volume 80, Number 223 (Thursday, November 19, 2015)]
[Notices]
[Pages 72415-72417]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-29524]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Final Notice of Fee Calculations for Special Use Permits

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

ACTION: Notice.

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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 methods, 
formulas and rationale for the calculations it will use in order to 
assess fees associated with special use permits (SUPs).

DATES: This notice is effective November 19, 2015.

FOR FURTHER INFORMATION CONTACT: Matt Nichols, Office of National 
Marine Sanctuaries, 1305 East West Highway (N/NMS2), Silver Spring, MD 
20910, telephone (301) 713-7262, email [email protected].

SUPPLEMENTARY INFORMATION: This Federal Register document is also 
accessible via the Internet at [http://www.thefederalregister.org].

I. Background

    Congress first granted NOAA the authority to issue SUPs for 
conducting specific activities in national marine sanctuaries in the 
1988 Amendments to the National Marine Sanctuaries Act (``NMSA'') (16 
U.S.C. 1431 et seq.) (Pub. L. 100-627). The NMSA allows NOAA to 
establish categories of activities that may be subject to an SUP. The 
list of applicable categories of activities was last updated in 2013 
(78 FR 25957). SUPs may be issued for the placement and recovery of 
objects on the seabed related to public or private events, or 
commercial filming; the continued presence of commercial submarine 
cables; the disposal of cremated human remains; recreational diving 
near the USS Monitor; the deployment of fireworks displays; or the 
operation of aircraft below the minimum altitude in restricted zones of 
national marine sanctuaries. Congress also gave NOAA the discretion to 
assess an SUP fee and laid out the basic components of an SUP fee (16 
U.S.C. 1441 (d)). The NMSA states:

    (d) Fees--
    (1) Assessment and Collection--The Secretary may assess and 
collect fees for the conduct of any activity under a permit issued 
under this section.
    (2) Amount--The amount of the fee under this subsection shall be 
the equal to the sum of--
    (A) Costs incurred, or expected to be incurred, by the Secretary 
in issuing the permit;
    (B) Costs incurred, or expected to be incurred, by the Secretary 
as a direct result of the conduct of the activity for which the 
permit is issued, including costs of monitoring the conduct of the 
activity; and
    (C) An amount which represents the fair market value of the use 
of the sanctuary resource.
    (3) Use of Fees--Amounts collected by the Secretary in the form 
of fees under this section may be used by the Secretary--
    (A) For issuing and administering permits under this section; 
and
    (B) For expenses of managing national marine sanctuaries.
    (4) Waiver or Reduction of Fees--The Secretary may accept in-
kind contributions in lieu of a fee under paragraph (2)(C), or waive 
or reduce any fee assessed under this subsection for any activity 
that does not derive profit from the access to or use of sanctuary 
resources.


[[Page 72416]]


    With this notice, NOAA establishes standard procedures for 
assessing fee components associated with the application for and 
issuance of an SUP. SUPs are generally a small portion of the total 
number of permits issued by ONMS. However, with the addition of new SUP 
categories in 2013 and the current and potential expansion of the 
National Marine Sanctuary System, ONMS may see a rise in the number of 
applications submitted annually as well as an increase in the 
complexity of the proposed projects.

II. Summary of Fee Calculations

    When an SUP is applied for by an interested party, and ultimately 
issued by ONMS, the total fee assessed to the applicant will be the sum 
of the three categories of fees provided for in section 310(d)(2) of 
the NMSA: Administrative costs, implementation and monitoring costs, 
and fair market value.

A. Administrative Costs per 16 U.S.C. 1441(d)(2)(A)

    NOAA will assess a non-refundable $50 application fee for each SUP 
application submitted. Administrative costs spent reviewing the permit 
for sufficiency and suitability will be calculated by multiplying a 
regional labor rate, derived from the pay rates of ONMS permitting 
staff and averaged across ONMS regions, by the time spent by staff 
reviewing each permit application. NOAA will update the rate every year 
to account for staff changes as well as inflation. Such administrative 
costs could also include, but are not necessarily limited to, any 
environmental analyses and consultations associated with evaluating the 
permit application and issuing the permit; and equipment used in permit 
review and issuance (e.g., vessels, dive equipment, vehicles, and 
general overhead). Equipment includes but is not limited to autonomous 
underwater vehicles, remotely operated underwater vehicles, and 
sampling equipment. If equipment is acquired specifically to monitor 
the permit, the actual cost of the acquisition will be included.

B. Implementation and Monitoring Costs per 16 U.S.C. 1441(d)(2)(B)

    NOAA may also charge a fee for costs associated with the 
implementation and monitoring of a permitted activity. Such costs will 
include staff time (calculated similarly to the labor rate described 
above), equipment use (including vessels or aircraft to oversee permit 
implementation), the expenses of monitoring the impacts of a permitted 
activity, and compliance with the terms and conditions of the permit.

C. Fair Market Value per 16 U.S.C. 1441(d)(2)(C))

    To date, ONMS has assessed fair market value (FMV) fees assessed 
for an SUP on a case-by-case basis. The SUP category for continued 
operation and maintenance of submarine cables is the only category that 
has an established protocol for determining FMV (Aug. 28, 2002; 67 FR 
55201). Conducting in-depth economic valuation studies for each SUP 
application are normally overly burdensome for NOAA and the permit 
applicant relative to the scope and effects of proposed SUP projects. 
In establishing standard FMV fees for all SUP categories, NOAA has 
examined the fees assessed for past SUPs as well as comparable fees 
assessed by other federal, state, and local agencies for similar 
activities. NOAA now adopts the following standard FMV fee structure 
for the following seven SUP categories:
    1. The placement and recovery of objects associated with public or 
private events on non-living substrate of the submerged lands of any 
national marine sanctuary. The FMV for this activity is $200 per event, 
based on fee values historically applied at national marine sanctuaries 
for this activity.
    2. The placement and recovery of objects related to commercial 
filming. With this notice, NOAA adopts the fee structure below from the 
National Park Service (NPS), which shares a similar mandate with ONMS 
to protect natural spaces of national importance. ONMS has determined 
NPS's broad evaluation methods to be sound and within the intent of 
ONMS SUPs for commercial filming.

          FMV Fee Table for Placement and Recovery of Objects Associated With Commercial Filming Events
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           Number of people             Motion pictures/videos      Number of people        Still photography
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1-10.................................  $150/day...............  1-10...................  $50/day.
11-30................................  $250/day...............  11-30..................  $150/day.
31-49................................  $500/day...............  Over 30................  $250/day.
Over 50..............................  $750/day...............
----------------------------------------------------------------------------------------------------------------

    The number of people refers to the cast and/or crew on location 
within the sanctuary for the commercial filming event, including pre- 
and post-production.
    3. The continued presence of commercial submarine cables on or 
within the submerged lands of any national marine sanctuary. NOAA 
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). For most SUPs, FMV for cables is assessed annually and adjusted 
according to the consumer price index. NOAA will continue using this 
methodology for assessing FMV fees for the continued presence of 
commercial submarine cables.
    4. The disposal of cremated human remains (``cremains'') within or 
into any national marine sanctuary. NOAA will waive all fees, including 
the FMV fee, for private individuals disposing of cremains. NOAA will 
assess a $50 per disposal FMV fee for commercial operators. This value 
is based on similar practices of state governments, such as the State 
of Washington, which assesses a $70 flat fee for a Cremated Human 
Remains Disposition Permit for disposal of cremains by airplane, boat, 
or other disposal methods for businesses.
    5. Recreational diving near the USS Monitor. NOAA will waive the 
FMV fee for any SUP issued for recreational diving within Monitor 
National Marine Sanctuary, given that (1) individual recreational 
divers do not derive profits from their use of the sanctuary; and (2) 
permits for commercial recreational divers further the sanctuary's 
objectives by educating the public about the sanctuary and the 
historical significance of the U.S.S. Monitor.
    6. Fireworks displays. The FMV for fireworks will be a tiered 
structure based on the number of fireworks events conducted per 
calendar year. The fee schedule will be as follows: 1 event per 
calendar year--$100; 2-5 events per calendar year--$300; 6-10 events 
per calendar year--$500; 11-20 events per calendar year--$700.
    7. The operation of aircraft below the minimum altitude in 
restricted zones of national marine sanctuaries. The FMV

[[Page 72417]]

will be $500 per site/per day. This is an existing value that has been 
applied historically at national marine sanctuaries for this activity.

III. Waiver or Reduction of Fees

    NOAA may accept in-kind contributions in lieu of a fee, or waive or 
reduce any fee assessed for any activity that does not derive profit 
from the access to or use of sanctuary resources. NOAA may consider the 
benefits of the activity to support the goals and objectives of the 
sanctuary as an in-kind contribution in lieu of a fee.

IV. Response to Comments

    Comment: One commenter supported NOAA's intent to assess and 
collect fees associated with special use permits and proposed that NOAA 
should require a larger range of for-profit operators to pay fees for 
the use of sanctuary resources.
    Response: While NOAA appreciates the public support for the use of 
this authority in protecting sanctuary resources, the suggestion to 
collect fees for activities which currently do not require a special 
use permit is not within the scope of this action.

V. 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 NOAA 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 SUPs cannot be 
issued for activities that are expected to result in any destruction 
of, injury to, or loss of any sanctuary resource. However, the SUP 
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 SUP 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 SUPs 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.

    Dated: November 12, 2015.
John Armor,
Acting Director, Office of National Marine Sanctuaries.
[FR Doc. 2015-29524 Filed 11-18-15; 8:45 am]
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