Monitor National Marine Sanctuary; Special Use Permit

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 9401154105]

Monitor National Marine Sanctuary; Special Use Permit

AGENCIES: Sanctuaries and Reserves Division (SRD), Office of Ocean and

Coastal Resource Management (OCRM), National Ocean Service (NOS),

National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of intent to issue a special use permit; request for

applications for special use permit.

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SUMMARY: This is a public notice of intent to issue, and a request for

applications for a special use permit to conduct non-research diving at

the Monitor National Marine Sanctuary (MNMS). Public comments are

invited. Since 1975, NOAA has protected and preserved the wreck of the

USS Monitor as a significant historical resource by restricting

physical access except for research expeditions. NOAA recognizes that

changes in dive technology and experience in the dive community have

resulted in a growing public interest to dive at this site. Thus, NOAA

intends to issue, on a trial basis, a special use permit to a qualified

dive concessionaire, selected competitively, for non-intrusive dives at

this site over a period of 2 weeks during the 1994 season. Because any

touching of the monitor or its debris field will be prohibited, NOAA

expects that no disruption or harm will occur at the site from dive

activities. NOAA will review this trial activity, evaluate impacts to

the Monitor, if any, and assess whether to issue subsequent special use

permits.

DATES: Applications must be submitted no later than April 14, 1994.

Public comments must be received by April 14, 1994. Applicants will be

notified as to the disposition of their applications by May 16, 1994.

ADDRESSES: All applications for a special use permit and comments on

this notice must be sent to: John Broadwater, Manager, Monitor National

Marine Sanctuary, NOAA/Bldg 1519, Fort Eustis, VA 23604. Fax: (804)

878-4619.

FOR FURTHER INFORMATION CONTACT:

John Broadwater, Manager, Monitor National Sanctuary, (804) 878-2973,

or Helen Golde, Sanctuaries and reserves Division, (301) 713-3145.

SUPPLEMENTARY INFORMATION:

I. Authority

This notice and request for applications is issued under the

authority of the National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431

et seq., as amended.

II. Background

The USS Monitor was the first American ironclad and is therefore of

cultural significance to the transition from wood to metal vessels, as

well as for its historic battle against the CSS Virginia (Merrimack).

The Monitor was lost during a storm off Cape Hatteras, NC, on December

31, 1862. The wreck of the Monitor was located in 1973, 16.1 miles

(29.8 km) south-southeast of Cape Hatteras, resting in 230 feet (70.1

m) of water. The Monitor and the water column 1 nautical mile in

diameter centered on the vessel were designated as the first National

Marine Sanctuary in 1975, in order to protect and preserve the Monitor

from commercial salvors and souvenir collectors. The Monitor has also

been designated as a National Historic Landmark.

The regulations governing the NMNS are found at 15 CFR part 924.

The MNMS is the most strictly regulated sanctuary regarding public

access and is the only sanctuary where diving without a sanctuary

permit is prohibited, primarily because it is also an archaeological

research site. Alteration of the seabed risks harm of contextual

information. Thus, non-research access has previously not been

permitted because of the threat of harm or unauthorized removal of

Monitor artifacts and the archaeological information contained by the

vessel and the surrounding seabed. Private research expeditions on the

Monitor have been permitted annually since 1989. Research permits have

allowed access to the MNMS while including conditions to prevent harm

to the Monitor and associated artifacts. NOAA recognizes that non-

research access may be conducted in a similar fashion.

III. Special Use Permit

NOAA plans to issue special use permit pursuant to section 310 of

the NMSA, 16 U.S.C. 1441, for public access to the Monitor. Activities

conducted pursuant to the special use permit will be limited to non-

intrusive, non-destructive access, observation and photography of the

Monitor, and must be consistent to the highest practicable degree with

the preservation and conservation of the MNMS. Touching or disturbing

the Monitor or its associated debris field will be prohibited.

A qualified applicant will be selected on a competitive basis and

allowed to bring qualified divers to the Monitor during a 2 week period

during the 1994 summer dive season. This 2 week period will be at the

convenience of the permittee, except for any conflicts with research

activities permitted and scheduled before the issuance of the

applicant's permit. The permittee will be authorized to conduct one

trip by one vessel to the MNMS per day, during which daylight-only dive

activities may be conducted. The permittee will be responsible for

ensuring that all divers are appropriately qualified and for ensuring

the safety of all divers.

The following conditions will be imposed by the permit:

1. The permittee shall use only vessels and vessel captains that

meet all applicable U.S. Coast Guard (USCG) certification and license

requirements and that are appropriately certified and licensed;

2. The permittee shall not anchor in the sanctuary. The permittee

shall utilize the permanent mooring at the Monitor site for a diver

descent/ascent line when conducting dive activities. The permittee may

secure a surface float or small inflatable boat to the mooring line,

but at no time may the trip vessel be secured to the permanent mooring,

as the mooring capacity is not adequate;

3. The permittee shall ensure activities conducted in the MNMS

pursuant to the special use permit are limited to non-intrusive, non-

destructive access, observation and photography of the Monitor. The

permittee shall ensure that all divers maintain neutral buoyancy, do

not penetrate the wreck, and do not touch, otherwise contact, disturb,

attempt to recover, or recover any portion of the Monitor, its

associated debris field, or any artifact which may be found;

4. The permittee shall document all activities conducted pursuant

to the special use permit through the use of videotape and/or still

photography, and written records. The permittee shall submit a report

on all activities and copies of all photographs and videotapes taken of

the activities;

5. Upon request of the Sanctuary Manager, the permittee shall carry

an individual designated by the Sanctuary Manager as an observer on

board the permittee's vessel during trips to and from the MNMS and when

the vessel is in the MNMS for the purpose of observing, monitoring, and

documenting the activities conducted pursuant to the special use

permit. The permittee shall allow the observer free and unobstructed

access to all portions of the vessel at any time, and facilitate

observation and documentation by the observer of all activities

conducted pursuant to the special use permit. The permittee shall

provide the observer all reasonable assistance to enable the observer

to carry out his/her duties. (Other requirements of the permittee with

respect to the observer such as advance notification of trip dates and

departure times and responsibilities regarding boarding and debarking

will appear in the actual permit conditions.)

6. The permittee shall purchase and maintain a comprehensive

general liability insurance policy in an amount to be negotiated upon

selection of an applicant, but not less than $100,000 plus the value of

any vessel used under the special use permit. The policy shall insure

against any claims that may arise from the activities conducted

pursuant to the special use permit, including diver accidents and

damage to the Monitor. A copy of such policy must be furnished to NOAA

before conducting any activity authorized by the special use permit;

and

7. Before conducting any activity under the special use permit, the

permittee and all divers shall sign and furnish NOAA with a hold

harmless and indemnification agreement, provided by NOAA, releasing and

holding the United States harmless for any claim arising from the

conduct of any activity under the special use permit and assuming the

risk of harm from any such activity.

The NMSA authorizes NOAA to assess fees for the costs incurred, or

expected to be incurred from monitoring the permitted dive activities,

and the cost of the review and processing of the special use permit,

and a fair market value of the use and a reasonable return to the

United States. NOAA will assess a fee for the special use permit issued

pursuant to this notice. The fee will include (1) the cost of reviewing

and processing the application, i.e., personnel hours, copying and

other overhead; (2) the cost of monitoring the activity, i.e.,

personnel hours, equipment costs and travel expenses; and (3) the fair

market value of the use of the Sanctuary which NOAA will determine

prior to issuing the special use permit. In determining the fair market

value, NOAA will consider the amounts proposed in applicant submissions

and comments received in response to this notice.

A. Application Process

All applications should be submitted to Mr. John Broadwater,

Manager at the address indicated in the ADDRESS section. Applications

must be submitted no later than April 14, 1994. Applicants will be

notified as to the disposition of their applications by May 16, 1994.

B. Application Format and Contents

All applications must be typed double spaced. All applications must

describe in detail the methodologies that would be employed to conduct

dive activities at the site, including, but not limited to, the number

of trips, the number of divers per trip, the minimum qualifications

each diver would have to meet, the dive plan, and the diver safety

contingency plans in the event of an accident. In addition, each

application must describe the experience of the applicant in organizing

and running dive expeditions, including information on expeditions

involving diving of this type, including the number of divers, the

depth of the dives, the time of year, and environmental conditions. The

application must include information showing that the applicant has the

financial capability to organize and run the activity to be conducted

under the special use permit and to obtain the required insurance. The

application must include the applicant's plans for documenting all

activities conducted pursuant to the special use permit. Finally, the

application must contain a dollar amount representing the fair market

value of the use of the MNMS or a reasonable return to the United

States that the applicant is willing to pay to be permitted to conduct

a dive concession at the site.

C. Application Review and Evaluation

All applications will be reviewed by the Sanctuaries and Reserves

Division (SRD). This will include the Sanctuary Manager, the technical

projects staff and the regional management staff. Outside peer

reviewers may also to used.

In selecting the permittee, SRD shall consider: (1) The experience

of the applicant for organizing and running dive expeditions involving

diving of this type; (2) the applicant's financial capability; (3) the

likelihood that the permittee will be able to fully comply with all

permit conditions; (4) the fair market value or reasonable return

offered by the applicant; and (5) such other factors as the SRD deems

appropriate, based on review of submitted comments and information,

consistent with the purposes of the NMSA.

SRD may solicit additional information from any applicant, or

written clarification of an application, and may extend the

solicitation period at its discretion. SRD may choose to reject all

applications received at any time, re-request, or cancel this request

at its discretion when in the best interest of preserving and

conserving the MNMS. Any information made available to any applicant by

SRD will be made available to all applicants, and will be available to

the public upon request.

Once an applicant is selected, SRD shall draft and issue a special

use permit incorporating as conditions the terms of this notice and the

application. SRD may include additional conditions if necessary to

protect the MNMS. The special use permit and application shall be

subject to review by the State Historic Preservation Officer and

Advisory Council on Historic Preservation pursuant to section 106 of

the National Historic Preservation Act (NHPA).

NOAA considers diving to the depths of the Monitor (230 ft; 70.1

km) to be extremely hazardous. All dive activities conducted pursuant

to the special use permit are at the permittee's and each diver's own

risk. The permittee is solely responsible for setting the minimum

technical requirements and experience for a diver to participate in

dives at the site. Further, the permittee is solely responsible for the

adequacy and implementation of all diver safety requirements and the

contingency plan for diver emergencies.

IV. Request for Comments

NOAA requests comments and suggestions from applicants and other

interested parties on methods to conduct safe dive activities at the

Monitor site, conditions for the special use permit, methods to

safeguard the wreck, and any other relevant information pertaining to

the activities proposed to be permitted at the MNMS.

NOAA specifically requests comments on what the fair market value

of the use of the MNMS or a reasonable return to the United States

should be, or what factors should be considered in its determination of

such fee.

V. Classification

This notice is not subject to review under E.O. 12866.

Prior notice and an opportunity for public comment, although

voluntarily here given, are not required by the Administrative

Procedure Act or any other law because this notice concerns grants,

benefits and contracts. Therefore, preparation of a Regulatory

Flexibility Analysis is not required.

This action is categorically excluded from the requirements to

prepare an Environmental Assessment by NOAA Directive 02-10.

This notice does not contain policies with federalism implications

sufficient to warrant preparation of a federalism assessment under E.O.

12612.

Dated: March 1, 1994.

W. Stanley Wilson,

Assistant Administrator, Ocean Services and Coastal Zone Management.

[FR Doc. 94-5943 Filed 3-14-94; 8:45 am]

BILLING CODE 3510-08-M