[Federal Register Volume 59, Number 50 (Tuesday, March 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5943]


[[Page Unknown]]

[Federal Register: March 15, 1994]


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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