[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Notices]
[Pages 63508-63511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30056]



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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.

[[Page 63509]]


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]
BILLING CODE 3510-08-M