Monitor National Marine Sanctuary

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

Monitor National Marine Sanctuary

AGENCY: 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; request for comments.

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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. In 1994,

NOAA issued a special use permit, on a trial basis, which authorized a

concessionaire to conduct non-research dives over a two-week period.

Upon evaluation of activities conducted under the 1994 permit, NOAA has

determined to issue a three-year special use permit to a qualified dive

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

site for a total of two (2) weeks (14 days) each year. 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 continue to review this 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 February 9, 1996.

Public comments must be received by February 9, 1996. Applicants will

be notified as to the disposition of their applications by March 11,

1996.

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/Building 1519, Fort Eustis, VA 23604. Fax: (804)

878-4619.

FOR FURTHER INFORMATION CONTACT:

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

2973, Internet: [email protected]; or Helen Golde,

Sanctuaries and Reserves Division, (301) 713-3145, extension 152,

Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Authority

This notice and request for applications is issued under the

authority of the National Marine Sanctuaries Act (NMSA), as amended, 16

U.S.C. 1431 et seq.

II. Background

The USS Monitor was the first American ironclad turretted warship

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 MNMS are found at 15 CFR part 924.

The MNMS is the most strictly regulated sanctuary regarding public

access and is the only sanctuary where any type of 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 had 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 for research purposes 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.

1994 Special Use Permit

NOAA issued a special use permit to conduct non-research dives on a

trial basis during the 1994 season. Out of 15 days scheduled for

diving, dives were successfully conducted on 4 days. The canceled dives

were due to adverse weather and current conditions. Typically, at

Hatteras, approximately one-third of the scheduled dive days are lost

due to adverse weather and/or currents. The divers who were successful

in diving to the Monitor reported bottom conditions varying from fair

to excellent. Participants generally agreed that they enjoyed the

diving experience, but that the questionable diving conditions would

negatively affect their decision to return for future dives. Dive

procedures and dive safety briefings were given daily by the

concessionaire. A NOAA Observer was present on the boat during all

diving operations, but did not dive.

Although the NOAA observer did not dive and directly observe dive

activities, based on observations of, and conversation with and among

the divers, it appeared that a number of divers made contact with the

wreck by diving through or under the wreck or through accidental

contact due to the effects of nitrogen narcosis, strong currents and

excessive amounts of gear (usually including steel tanks hanging at the

divers' sides). Such incidental contact, if repeated frequently enough,

would have a very adverse cumulative effect on the Monitor. The NOAA

observer also noted that dive briefings were not as thorough as they

should have been, primarily because they were usually conducted hastily

at the dock before departure.

The 1994 dive trips were not widely advertised, partially due to

the short time frame the concessionaire had to schedule the 1994 dives.

Further, adverse weather and sea conditions resulted in the

cancellation of dive trips. Thus, only a few divers were able to view

the wreck. However, NOAA believes that the goal of increased public

access was at least partially met by allowing the non-research dives

under the special use permit.

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Future Special Use Permits

As a result of the 1994 special use permit, the concessionaire and

Sanctuary manager provided a number of recommendations for future

special use permits to address the concerns raised during the 1994

dives. Consequently, based on its review of the activities conducted

under the 1994 special use permit and recommendations from the

Sanctuary manager, NOAA determined that it is possible to establish a

viable, ongoing special use permit procedure to allow non-research

dives on the Monitor. NOAA believes this can be accomplished without

causing serious adverse effects to the wreck or creating an

unmanageable administrative burden to NOAA, the concessionaire or the

divers. NOAA will issue a three-year special use permit to a qualified

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

this site for a total of two (2) weeks (14 days) each year.

Recommendations from the Sanctuary manager based on the 1994 special

use permit are reflected in the conditions outlined below, and will be

further reflected in the 1996-1998 special use permit terms and

conditions.

NOAA will supply the concessionaire with informational packets to

be distributed to each participating diver. Each packet will provide a

history of the ship, a description of the sanctuary, illustrations of

the wreck as it lies on the seabed with unstable areas identified, and

sanctuary regulations. In addition, prohibitions against all contact

with the wreck will be specified in more detail, including specific

prohibitions against entering the wreck, diving beneath the wreck and

all types of disturbance including fanning the silt in or around the

wreck with hands, fins or other methods. Finally, by issuing a three-

year special use permit, NOAA will reduce the administrative burden and

costs on the agency, the concessionaire, and the divers.

Recent research, by both private research expeditions and by NOAA,

has shown that the Monitor's hull has become unstable in some areas,

especially in the stern area near the propeller. During 1995, NOAA

attempted to remove the Monitor's skeg and propeller in an effort to

stabilize the stern, but adverse weather prevented the recovery.

Another expedition is being planned for 1996. Although non-research

divers will be prohibited from touching or otherwise contacting the

Monitor, the special use permittee shall, in the dive safety briefings,

be required to specifically advise divers to use extra caution if

opting to dive near the stern area of the wreck.

III. Special Use Permit

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

the NMSA, 16 U.S.C. 1441, to allow non-research dives 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

(14 days) between May and October in the three-year period 1996-1998.

The two week period will be determined by NOAA in consultation with the

selected permittee. Applicants are requested to include their preferred

dates for the 1996 season. In addition, should the permittee be unable

to conduct dives on 4 or more days of that 2-week period due to weather

or environmental conditions, NOAA will attempt to accommodate the

permittee by scheduling another 2-week period to conduct the remainder

of the dives [Note: Due to scheduled research dives at the Monitor,

which must take precedence, make-up dives may not be able to be

scheduled]. No more than a total of 14 days of diving per year may be

conducted under special use 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

fully responsible for ensuring that all divers are appropriately

qualified and for ensuring the safety of all divers.

At a minimum, the following conditions will be included in the

special use permit:

1. The permittee may use only 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 provide documentation verifying that all

vessel captains are (a) thoroughly familiar with the local

environmental conditions at the sanctuary and (b) experienced in

supporting dive operations in deep water (up to 250 feet);

3. The permittee shall use only vessels of less than 45 feet in

length that meet all applicable U.S. Coast Guard (USCG) certification

and license requirements and that are appropriately inspected,

certified, and licensed. A low profile vessel to reduce wind drag is

preferred;

4. The permittee shall carry a maximum of 18 divers each day and

shall allow a maximum of 6 divers to dive at the same time;

5. The permittee shall be responsible for screening divers to

ensure that they meet minimum requirements for diving skills and

experience that the permittee deems necessary for making dives on the

Monitor;

6. 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;

7. The permittee shall not allow any dives to be made if currents

at the surface are greater than one (1) knot;

8. 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;

9. The permittee shall conduct a briefing for all divers before the

first day of diving, as well as a briefing before each dive, these

briefings must stress the importance of avoiding any contact with or

disturbance of the Monitor, its associated debris field, or any

artifact(s) which may be observed;

10. 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

[[Page 63510]]

regarding boarding and debarking will appear in the actual permit

conditions.)

11. Pursuant to section 310 of the NMSA, 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

12. Pursuant to section 310 of the NMSA, 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.

In addition, depending on the final agreement between the permittee

and NOAA as to the exact role of the NOAA, observer, the permittee may

also be asked to comply with the following condition:

13. 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.

Fees

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

expected to be incurred from the review and processing of the special

use permit, monitoring the permitted dive activities, and a fair market

value of the use of the resources and a reasonable return to the United

States. Therefore, NOAA will assess a fee for the special use permit

issued pursuant to this notice. Based on the 1994 special use permit

and NOAA's other experience with special use permits, the fee will be

approximately (exact costs are subject to actual costs incurred): (1)

$500.00 to cover the cost of reviewing and processing the application,

i.e., personnel hours, copying and other overhead; (2) $200.00 per day

that dives take place to cover the cost of monitoring the activity,

i.e., personnel hours, equipment costs and travel expenses; and (3) 2%

of the gross receipts that the permittee receives to cover the fair

market value and reasonable rate of return.

IV. Application Process

All applications should be submitted to Mr. John Broadwater,

Manager at the address indicated in the ADDRESSES section. Applications

must be submitted no later than February 9, 1996. Applicants will be

notified as to the disposition of their applications by March 11, 1996.

Application Format and Contents

All applications must be typed double spaced. All applications must

describe in detail:

1. 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, type of vessel, the minimum

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

diver safety contingency plans in the event of an accident;

2. 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;

3. Information and/or statement 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;

4. The applicant's plans for documenting all activities conducted

pursuant to the special use permit (assume that the NOAA Observer will

not be participating in dives);

5. The applicant's plans to advertise the availability of dives at

the MNMS, as NOAA believes that public access should be widely

publicized in the diving community; and

6. The dates that applicant prefers to conduct dive activities.

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 be used.

In selecting the permittee, SRD shall consider the applicants

ability to address the criteria in B, above, and: (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; and (4) 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 Monitor 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 m)

with compressed air 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.

V. 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; the fair market value of the use of the MNMS and a

reasonable return to the United States; and any other relevant

information pertaining to the activities proposed to be permitted at

the MNMS.

VI. 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

[[Page 63511]]

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: December 4, 1995.

W. Stanley Wilson,

Assistant Administrator, Ocean Services and Coastal Zone Management.

[FR Doc. 95-30056 Filed 12-8-95; 8:45 am]

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