[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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