[Federal Register Volume 82, Number 5 (Monday, January 9, 2017)]
[Proposed Rules]
[Pages 2269-2280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31741]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 160907828-6828-01]
RIN 0648-BG01
Wisconsin--Lake Michigan National Marine Sanctuary; Notice of
Proposed Rulemaking and Availability of Draft Environmental Impact
Statement and Management Plan
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Proposed rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
proposing to designate an area of 1,075 square miles of Wisconsin state
waters as the Wisconsin--Lake Michigan National Marine Sanctuary
(WLMNMS or sanctuary). NOAA also proposes regulations to implement the
sanctuary designation and establish the sanctuary's terms of
designation. A draft environmental impact statement and draft
management plan have also been prepared for this proposed action. The
purpose of this action is to supplement current Wisconsin state
regulations and resource protection efforts in a way that will ensure
long term protection of the nationally significant collection of
historic shipwrecks and other maritime heritage resources in the area.
NOAA is soliciting public comment on the proposed rule, draft
environmental impact statement (DEIS), and draft management plan (DMP).
NOAA will also begin consultations under Section 106 of the National
Historic Preservation Act (NHPA) and solicit public comments
specifically related to the identification and assessment of the
historic properties within the affected area in compliance with Section
106 review process.
DATES: NOAA will consider all comments received by March 31, 2017.
Public meetings will be held on the following dates:
(1) March 13, 2017, 6:30 p.m. to 8:30 p.m., Algoma, WI;
(2) March 14, 2017, 6:30 p.m. to 8:30 p.m., Manitowoc, WI;
(3) March 15, 2017, 6:30 p.m. to 8:30 p.m., Sheboygan, WI; and
(4) March 16, 2017, 6:30 p.m. to 8:30 p.m., Port Washington, WI.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NOS-2016-0150, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NOS-2016-0150, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Russ Green, Regional Coordinator, Northeast and
Great Lakes Region, NOAA Office of National Marine Sanctuaries,
University of Wisconsin--Sheboygan, One University Drive, Sheboygan, WI
53081.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NOAA. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NOAA will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Copies of the proposed rule, DEIS, and DMP can be downloaded or
viewed on the internet at www.regulations.gov (search for docket #NOAA-
NOS-2016-0150) or at www.regulations.gov/#!docketDetail;D=NOAA-NOS-
2016-0150. Copies can also be obtained by contacting the person
identified under FOR FURTHER INFORMATION CONTACT.
The public meeting locations are:
(1) Algoma, WI: Knudson Hall, 620 Lake Street, Algoma, WI 54201 (March
13, 2017)
(2) Manitowoc, WI: Wisconsin Maritime Museum, 75 Maritime Dr.,
Manitowoc, WI 54220 (March 14, 2017)
(3) Sheboygan, WI: University of Wisconsin--Sheboygan, Main Building,
Wombat Room (Room 2114), 1 University Drive, Sheboygan, WI 53081 (March
15, 2017)
(4) Port Washington, WI: Wilson House, 200 N. Franklin St., Port
Washington, WI 53074 (March 16, 2017)
FOR FURTHER INFORMATION CONTACT: Russ Green, Regional Coordinator,
Northeast and Great Lakes Region at (920) 459-4425 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Wisconsin--Lake Michigan National Marine Sanctuary Background
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate and
protect as national marine sanctuaries areas of the marine environment
that are of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archeological, educational, or esthetic qualities. Day-to-day
management of national marine sanctuaries has been delegated by the
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The
primary objective of the NMSA is to protect the sanctuary system's
biological and cultural resources, such as coral reefs, marine animals,
historic shipwrecks, other historic structures, and archaeological
sites.
The 1,075-square-mile area proposed for designation as the
Wisconsin--Lake Michigan National Marine Sanctuary
[[Page 2270]]
encompasses the waters and bottomlands of Lake Michigan adjacent to
Manitowoc, Sheboygan, and Ozaukee Counties. Principal cities in this
area include Port Washington, Sheboygan, Manitowoc, Two Rivers, and
Mequon. The boundary includes 80 miles of shoreline and extends 7 to 16
miles from the shoreline.
The area includes a nationally significant collection of maritime
heritage resources, including 37 known shipwrecks, about 80 suspected
shipwrecks, and numerous other historic maritime-related features such
as historic cribs, docks, and piers. The historic shipwrecks in the
proposed sanctuary are representative of the vessels that sailed and
steamed this corridor, carrying grain and raw materials east as other
vessels came west loaded with coal, manufactured goods, and people.
Eighteen of the 37 shipwreck sites are listed on the National Register
of Historic Places. Many of the shipwrecks in the proposed sanctuary
retain an unusual degree of architectural integrity, with 14 vessels
nearly intact. Well preserved by Lake Michigan's cold, fresh water, the
shipwrecks and related maritime heritage sites in and around the
proposed Wisconsin--Lake Michigan National Marine Sanctuary possess
exceptional historical, archaeological and recreational value.
On December 2, 2014, pursuant to section 304 of the NMSA and the
Sanctuary Nomination Process (SNP; 79 FR 33851), Wisconsin Governor
Scott Walker, on behalf of the State of Wisconsin; the Cities of Two
Rivers, Manitowoc, Sheboygan, and Port Washington; the Counties of
Ozaukee, Sheboygan, and Manitowoc, submitted a nomination asking NOAA
to consider designating this area of Wisconsin's Lake Michigan waters
as a national marine sanctuary. The State of Wisconsin's selection of
this geographic area for the nomination drew heavily from a 2008 report
conducted by the Wisconsin History Society and funded by the Wisconsin
Coastal Management Program (Wisconsin's Historic Shipwrecks: An
Overview and Analysis of Locations for a State/Federal Partnership with
the National Marine Sanctuary Program, 2008, http://www.maritimetrails.org/assets/pages/Wisconsins%20Historic%20Shipwrecks.pdf). The nomination also identified
opportunities for NOAA to strengthen and expand on resource protection,
education, and research programs by state of Wisconsin agencies and in
the four communities along the Lake Michigan coast. NOAA completed its
review of the nomination, and on February 5, 2015 added the area to the
inventory of nominations that are eligible for designation. All
nominations submitted to NOAA can be found at: http://www.nominate.noaa.gov/nominations/.
NOAA began the sanctuary designation process for Wisconsin--Lake
Michigan National Marine Sanctuary on October 7, 2015 with the
publication of a notice of intent (NOI; 80 FR 60631) to prepare a DEIS
and the initiation of a public process, as required under the NMSA and
the National Environmental Policy Act (NEPA). The DEIS evaluates
alternatives related to the proposed designation of the area, including
a preferred alternative. The NOI also announced NOAA's intent to
fulfill its responsibilities under the requirements of the NHPA.
A duplicate version of the notice for intent was published in error
two days earlier on October 5, 2015 (80 FR 60132). That publication
contained the exact same content as the official version made available
for public inspection and published on October 7, 2015 (80 FR 60631).
Any comments received in connection with the publication in error on
October 5, 2015 were accepted and considered by NOAA.
B. Need for Action
Establishing a national marine sanctuary in Wisconsin waters would
complement and supplement existing state-led preservation efforts,
research programs, and public outreach initiatives. Threats to the
nationally significant resources in the area include both human
activities and natural processes. Natural process include the damaging
impacts of wind, waves, storms, and ice, as well as the impact of
invasive species such as zebra and quagga mussels that today cover most
of Lake Michigan's shipwrecks. Human threats to underwater cultural
resources include looting and altering sanctuary shipwreck sites and
damaging sites by anchoring. These processes threaten the long term
sustainability of historic shipwrecks and other underwater cultural
resources, and negatively impact their recreational and archaeological
value. Examples of these impacts include: Anchor damage from visiting
dive boats, damage due to unpermitted and poorly attached mooring
lines, artifacts being looted, artifacts being moved within a shipwreck
site, a remotely-operated vehicle tether entangled within a shipwreck,
fishing gear entangled within a shipwreck, increased invasive mussel
coverage, and the disturbance and natural deterioration of newly
uncovered shipwrecks within the boundary's large swaths of shallow,
sandy lakebottom.
The sanctuary would enhance and facilitate broader lake
conservation efforts as well as heritage tourism within the many
communities that have embraced their centuries-long maritime
relationship with Lake Michigan, the Great Lakes region, and the
nation. A sanctuary designation would enhance existing comprehensive
management programs. The presence of a sanctuary would provide access
to NOAA's extended network of scientific expertise and technological
resources, enhance ongoing research, and provide an umbrella for the
coordination of these activities. It would support and build on
existing educational initiatives and provide programming and technology
for K-12, post-graduate, and the general public across the state. A
sanctuary designation, the local commitment to the sanctuary, the
existing state agency interest, and NOAA's existing network of
affiliated programs has the potential to create synergies that reach
far beyond the proposed sanctuary boundaries.
C. Designation Process
National Marine Sanctuary Designation Process
NOAA may identify areas to consider for national marine sanctuary
designation through the community-based SNP described above. The
process for designating a new national marine sanctuary is described in
the NMSA and has four steps:
Scoping: NOAA announces its intent to designate a new national
marine sanctuary and asks the public for input on potential boundaries,
resources that could be protected, issues NOAA should consider and any
information that should be included in the detailed resource analysis
in a draft environmental impact statement.
Sanctuary Proposal: NOAA prepares draft designation documents
including a DMP, DEIS that analyzes a range of alternatives, proposed
regulations and proposed boundaries.
Public Review: The public, agency partners, tribes and other
stakeholders provide input on the draft documents. The public review
step also includes the formal consultations required under NEPA, the
NMSA, the NHPA, and other relevant statutes. NOAA considers all input
and determines appropriate changes.
Sanctuary Designation: NOAA makes a final decision and prepares
final documents. Before the designation becomes effective, the Governor
reviews
[[Page 2271]]
the documents. Congress also has the opportunity to review the
documents.
Public Scoping Process
On October 7, 2015 NOAA initiated the public scoping process with
the publication of the NOI in the Federal Register (80 FR 60631) asking
for public input on the proposed designation and informing the public
that NOAA intended to prepare a DEIS evaluating alternatives related to
the proposed designation of Wisconsin-Lake Michigan National Marine
Sanctuary under NMSA. That announcement initiated a 90-day public
comment period during which NOAA solicited additional input related to
the scale and scope of the proposed sanctuary, including ideas
presented in the community nomination. The NOI also announced NOAA's
intent to fulfill its responsibilities under the requirements of NHPA.
During the public comment period, NOAA hosted three public meetings
in November 2015 and provided additional opportunity for comments
through a web-based portal [https://www.regulations.gov/#!docketDetail;D=NOAA-NOS-2015-0112] and by traditional mail until
January 15, 2016. All comments received, through any of these formats,
were publicly posted on the www.regulations.gov web portal.
During this period, approximately 135 individuals provided input.
Comments were overwhelmingly supportive of the goals of sanctuary
designation, including the rationale for conservation of nationally-
significant resources, considerations that enhance public use and
recreation, considerations that enhance tourism and the local economy,
and as a venue for education, science and interpretation as described
in the community nomination.
The comments underscored the need for conservation and
interpretation, particularly the importance of educating users about
the importance of the Great Lakes and the role that shipbuilding and
shipping commerce has played in the history of the region and our
nation. There was strong support from local communities, governments,
and organizations supporting sanctuary designation and offering
opportunities to partner for education, research, outreach and other
activities.
Several commenters who otherwise supported sanctuary designation
expressed concern that designation should not in any way disrupt
existing lake commerce. Specific concerns focused on the need for
continued ability to dredge and maintain ports and the continued
ability for ships to ballast in port and in open water.
The few comments in opposition to sanctuary designation were
concerned about the cost of implementation, the possibility that
designation would make metal detecting illegal, and that designation
would be an unneeded level of government intervention.
There were several requests that NOAA consider expanding the
proposed boundaries. Several comments suggesting expansion north to
include shipwrecks in Kewaunee County, and one commenter requested
inclusion of Green Bay.
NOAA used the public comments submitted during the scoping process
to inform the preparation of the DMP, DEIS, and the proposed sanctuary
regulations. In response to many of these comments, this proposed rule
proposes to provide additional protection to maritime heritage
resources, particularly the nationally significant collection of
historic shipwrecks. The environmental effects of these proposed
designations are analyzed in a DEIS published concurrently with this
proposed rule. NOAA has also developed an associated DMP describing
sanctuary management activities in the area proposed for designation.
NOAA is seeking public comment on the proposed rule, DEIS, and DMP,
which are available at http://sanctuaries.noaa.gov/wisconsin/ or may be
obtained by contacting the individual listed under the heading FOR
FURTHER INFORMATION CONTACT.
II. Summary of the Proposed Regulations
1. Adding New Subpart T and Reserving Subpart S
NOAA is proposing to amend 15 CFR part 922 by adding a new subpart
(subpart T) that contains site-specific regulations for WLMNMS. This
subpart would include the proposed boundary, contain definitions of
common terms used in the new subpart, provide a framework for co-
management of the sanctuary, identify prohibited activities and
exceptions, and establish procedures for certification of existing
uses, permitting otherwise prohibited activities, and emergency
regulation procedures. Several conforming changes would also be made to
the national sanctuary regulations as described below.
NOAA is concurrently working on designating a separate new national
marine sanctuary in Mallows Bay--Potomac River waters as part of a
separate rulemaking process, and those regulations would be published
in their own new subpart (subpart S). As such, in this rulemaking, NOAA
proposes to add and reserve subpart S for any future site-specific
regulations that might be issued. NOAA would harmonize the regulations
for the Mallows Bay-Potomac River designation process with any final
rule associated with this action.
2. Proposed Sanctuary Name
NOAA has proposed to name the sanctuary the ``Wisconsin--Lake
Michigan National Marine Sanctuary (WLMNMS)'' based on the nomination
submitted by the community. This name aptly identifies both the lake
and state where the proposed sanctuary is located. NOAA is asking for
the public to provide input on this proposed name. The public may also
suggest an alternative name and state the reasons for suggesting an
alternative name.
3. Proposed Sanctuary Boundary
NOAA is proposing to designate a 1,075-square mile area of Lake
Michigan waters off Ozaukee, Sheboygan, and Manitowoc Counties as
WLMNMS. The sanctuary's shoreward boundary would be defined by the
Ordinary High Water Mark as defined by the state of Wisconsin, while
the lakeward boundary would be drawn to include all known shipwrecks in
each county, extending 16 miles offshore at its greatest extent. The
harbors and marinas of Two Rivers, Manitowoc, Sheboygan, and Port
Washington would not be included in the sanctuary. The detailed legal
boundary description is included in section 922.210 and the coordinates
are located in 15 CFR part 922, subpart T, appendix A. A map of the
area is shown in the DEIS.
Within this proposed boundary are 37 known shipwrecks, including 18
on the National Register of Historic Places. The sanctuary would
provide comprehensive protection of underwater cultural resources as
well as develop partnerships and resources for education,
interpretation, personnel, research, and administration. This would
provide enhanced management of underwater cultural resources, as well
as potential economic benefits to the coastal communities from Mequon
to Two Rivers.
The proposed boundary reflects the boundary the State of Wisconsin
submitted to NOAA in the nomination with an adjustment based on
discussions with the State of Wisconsin. The State submitted an 875-
square-mile boundary in the nomination. NOAA's adjustments result in a
1,075-square-mile boundary, and includes moving the southern and
northern boundary lines to
[[Page 2272]]
the county lines and expanding the southeast corners to include the
shipwreck site of the Senator (its location was previously unknown),
and excluding ports and harbors.
4. Definitions
NOAA is proposing a site-specific definition of ``sanctuary
resources'' for the WLMNMS to be tailored to include only the
underwater cultural resources found in this area in accordance with the
purpose of the proposed designation. The definition would not include
biological and ecological resources of the area. Creating this new
site-specific definition requires NOAA to modify the national
definition of ``sanctuary resource'' in the national regulations at
section 922.3 to add an additional sentence that defines the term for
WLMNMS at section 922.211(a). This is similar to the approach taken for
other national marine sanctuaries that do not share the full
``sanctuary resource'' definition such as Thunder Bay National Marine
Sanctuary.
The new WLMNMS definition of ``sanctuary resources'' would be all
prehistoric, historic, archaeological, and cultural sites and artifacts
within the sanctuary boundary, including but not limited to, all
shipwrecks and related components.
Additionally NOAA would add a definition for ``shipwreck site'' in
the WLMNMS regulations at Section 922.211(a) that would define a subset
of the ``sanctuary resources.'' The definition for ``shipwreck site''
would be more narrowly focused than the broader ``sanctuary resource''
definition and would be used in one of the prohibited activities
regulations. ``Shipwreck site'' is defined as any sunken watercraft,
its components, cargo, contents, and associated debris field.
This proposed rule incorporates and adopts other common terms
defined in the existing national regulations at section 922.3. One of
the common terms adopted (without modification) is ``National Marine
Sanctuary'' or ``Sanctuary,'' which means an area of the marine
environment of special national significance due to its resource or
human-use values, which is designated as such to ensure its
conservation and management.
5. Co-Management of the Sanctuary
In order to further enhance the engagement forged by the State of
Wisconsin in nominating this area to become a national marine
sanctuary, NOAA is proposing to manage the sanctuary collaboratively
with the State of Wisconsin. NOAA proposes to establish the framework
for co-management of the sanctuary at section 922.212 and intends to
work out the operational details of the collaboration in a Memorandum
of Understanding (MOU). Details on the execution of sanctuary
management such as activities, programs, and permitting programs would
be included in the MOU and can be updated to adapt to changing
conditions or threats to the sanctuary resources. Any significant
changes to the regulations or management plan would not only be jointly
coordinated but also subject to public review.
6. Prohibited and Regulated Activities
NOAA is proposing to supplement and complement existing management
of this area by proposing three regulations to protect the sanctuary
resources in section 922.213(a).
a. Damaging Sanctuary Resources
As a complement to existing protections under state law and NHPA
regulations, NOAA is proposing to prohibit moving, removing,
recovering, altering, destroying, possessing or otherwise injuring, or
attempting to move, remove, recover, alter, destroy, possess or
otherwise injure a sanctuary resource. This sanctuary prohibition would
supplement the existing Wisconsin regulations that prohibit damaging
shipwrecks. Since 1991 Wisconsin has had state regulations related to
removing or damaging shipwrecks that currently apply to the proposed
area and would continue to apply to these resources after sanctuary
designation.
b. Anchoring or Grappling on a Shipwreck Site
NOAA is proposing to prohibit the use of grappling hooks and
anchoring devices into shipwreck sites to protect fragile shipwrecks
within the sanctuary from damage. To provide the public adequate notice
of shipwreck sites, NOAA will prepare and make available sanctuary maps
with known and suspected shipwreck sites. Shipwreck sites not listed on
maps would still be sanctuary resources and the prohibition on
anchoring and grappling would still apply. The proposed management plan
includes activities related to surveying the sanctuary area and
identifying additional shipwreck sites. As appropriate, and in
consideration of resource management conflicts, NOAA would update the
maps as new shipwreck sites are found by the sanctuary, the Wisconsin
Historical Society, or other public or private groups and individuals.
Because NOAA seeks to promote public access, while also ensuring sound
resource protection, an initial focus of the sanctuary management plan
will be the installation of permanent mooring systems at sanctuary
shipwreck sites. The moorings will provide a secure and convenient
anchoring point for users, eliminating the need for grappling, and
providing additional notice of the location of any known shipwreck
site. NOAA is proposing to publish guidelines on best practices for
anchoring near shipwrecks sites to avoid violating this prohibition. An
example of a best practice could include instructions on using a
weighted line, with a suggested maximum weight of 15 pounds, and
surface float to mark a wreck for divers to descend and ascend. But the
line would not use as an anchoring line; it would need to be
continuously tended and removed before the dive boat leaves the area.
c. Interfering With Investigations
NOAA is proposing a regulation to prohibit interfering with
sanctuary enforcement activities. This regulation will assist in NOAA's
enforcement of the sanctuary regulations and strengthen sanctuary
management.
d. Exemption for Emergencies and Law Enforcement
NOAA is proposing to include an exemption from the three
regulations described above for activities that respond to emergencies
that threaten lives, property or the environment, or are necessary for
law enforcement purposes.
7. Emergency Regulations
As part of the proposed designation, NOAA is proposing to give the
sanctuary authority to issue emergency regulations. Emergency
regulations are used in limited cases and under specific conditions
when there is an imminent risk to sanctuary resources and a temporary
prohibition would prevent the destruction or loss of those resources.
Under the NMSA, NOAA only issues emergency regulations that address an
imminent risk for a fixed amount of time with a maximum of 6 months
that can be extended a single time. A full rulemaking process must be
undertaken, including a public comment period, to consider making an
emergency regulation permanent. NOAA would add the authority to issue
emergency regulations by modifying the national regulations at section
922.44 to include WLMNMS in a list of sanctuaries that have site-
specific regulations related to emergency
[[Page 2273]]
regulations, and adding detailed site-specific emergency regulations to
the WLMNMS regulations at section 922.214.
8. General Permits, Certifications, Authorizations, and Special Use
Permits
a. General Permits
NOAA is proposing to include the authority to issue permits to
allow certain activities that would otherwise violate the prohibitions
in WLMNMS regulations. Similar to other national marine sanctuaries,
NOAA is proposing to consider these permits for the purposes of
education, research, or management.
To address the above additions to the ONMS general permit authority
for WLMNMS, NOAA would amend regulatory text in the program-wide
regulations in part 922, subpart E, to add references to subpart T, as
appropriate. NOAA would also add a new section 922.215 in subpart T
titled ``Permit procedures and review criteria'' that would address
site-specific permit procedures for WLMNMS.
b. Certifications
Because of the possibility that preexisting activities, right of
subsistence use or access permitted by other federal, state, local, or
tribal agencies might be occurring within the WLMNMS area that would
otherwise be prohibited by WLMNMS regulations, NOAA would add language
at section 922.216 describing the process by which it can certify
existing activities within the WLMNMS area. In compliance with the
NMSA, WLMNMS regulations at section 922.216 would state that
certification is the process by which permitted activities existing
prior to the designation of the sanctuary that violate sanctuary
prohibitions may be allowed to continue, provided certain conditions
are met. Applications for certifying permitted existing uses would have
to be received by NOAA within 180 days of the effective date of the
designation.
c. Authorizations
NOAA also proposes to provide WLMNMS with the authority to consider
allowing an otherwise prohibited activity if such activity is
specifically authorized by any valid Federal, state, or local lease,
permit, license, approval, or other authorization issued after
sanctuary designation. Authorization authority is intended to
streamline regulatory requirements by reducing the need for multiple
permits and would apply to all proposed prohibitions at section
922.213. As such, NOAA proposes to amend the regulatory text at section
922.49 to add reference to subpart T.
d. Special Use Permits
NOAA has the authority under the NMSA to issue special use permits
(SUPs) at national marine sanctuaries as established by Section 310 of
the NMSA. SUPs can be used to authorize specific activities in a
sanctuary if such authorization is necessary (1) to establish
conditions of access to and use of any sanctuary resource; or (2) to
promote public use and understanding of a sanctuary resource. The
activities that qualify for a SUP are set forth in the Federal Register
(78 FR 25957; May 3, 2013). Categories of SUPs may be changed or added
to through public notice and comment. NOAA would not apply the SUP to
activities in place at the time of the WLMNMS designation.
SUP applications are reviewed to ensure that the activity is
compatible with the purposes for which the sanctuary is designated and
that the activities carried out under the SUP be conducted in a manner
that do not destroy, cause the loss of, or injure sanctuary resources.
NOAA also requires SUP permittees to purchase and maintain
comprehensive general liability insurance, or post an equivalent bond,
against claims arising out of activities conducted under the permit.
The NMSA allows NOAA to assess and collect fees for the conduct of any
activity under a SUP. The fees collected could be used to recover the
administrative costs of issuing the permit, the cost of implementing
the permit, monitoring costs associated with the conduct of the
activity, and the fair market value of the use of sanctuary resources.
9. Other Conforming Amendments
The general regulations in part 922, subpart A, for general
information and part 922, subpart E, for regulations of general
applicability would also have to be amended so that the regulations are
accurate and up-to-date. The 10 sections that will need to be updated
to reflect the increased number of sanctuaries or to add subpart T to
the list of sanctuaries. The modified sections to conform to adding a
new sanctuary are:
Section 922.1 Applicability of regulations
Section 922.40 Purpose
Section 922.41 Boundaries
Section 922.42 Allowed activities
Section 922.43 Prohibited or otherwise regulated activities
Section 922.44 Emergency regulations
Section 922.47 Pre-existing authorizations or rights and
certifications of pre-existing authorizations or rights
Section 922.48 National Marine Sanctuary permits--application
procedures and issuance criteria
Section 922.49 Notification and review of applications for
leases, licenses, permits, approvals, or other authorizations to
conduct a prohibited activity
Section 922.50 Appeals of administrative action
10. Terms of Designation
Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA)
requires that the terms of designation include the geographic area
included within the sanctuary; the characteristics of the area that
give it conservation, recreational, ecological, historical, research,
educational, or aesthetic value; and the types of activities that will
be subject to regulation by the Secretary of Commerce to protect these
characteristics. Section 304(a)(4) also specifies that the terms of
designation may be modified only by the same procedures by which the
original designation was made. Thus, the terms of designation serve as
a constitution for the Sanctuary.
NOAA is proposing to establish terms to designation that describe
the geographic area, resources, and activities as described in details
above. NOAA would add the terms of designation language as appendix B
to the WLMNMS regulations at 15 CFR part 922, subpart T.
III. Classification
National Marine Sanctuaries Act
NOAA has determined that the designation of the Wisconsin--Lake
Michigan National Marine Sanctuary will not have a negative impact on
the National Marine Sanctuary System and that sufficient resources
exist to effectively implement sanctuary management plans and to update
site characterizations. The finding for NMSA section 304(f) is
published on the ONMS Web site for Wisconsin-Lake Michigan designation
at http://sanctuaries.noaa.gov/wisconsin/.
National Environmental Policy Act
NOAA has prepared a draft environmental impact statement to
evaluate the environmental effects of the proposed rulemaking and
alternatives as required by NEPA (42 U.S.C. 4321 et seq.) and the NMSA.
Copies of the DEIS and related DMP are available at the address and Web
site listed in the ADDRESSES section of this proposed rule. NOAA is
also soliciting public
[[Page 2274]]
comments on the DEIS and DMP. Responses to comments received on this
proposed rule as well as on the DEIS and draft management plan will be
published in the final environmental impact statement and preamble to
the final rule.
Coastal Zone Management Act
Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C.
1456) requires Federal agencies to consult with a state's coastal
program on potential Federal regulations having an effect on state
waters. Because WLMNMS encompasses a portion of the Wisconsin State
waters, NOAA intends to submit a copy of this proposed rule and
supporting documents to the State of Wisconsin Coastal Zone Management
Program for evaluation of Federal consistency under the CZMA. NOAA will
publish the final rule and designation only after completion of the
consultation requirements under the CZMA.
Executive Order 12866: Regulatory Impact
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federalism implications sufficient to warrant preparation of a
federalism assessment under Executive Order 13132 because NOAA
supplements and complements state and local laws under the NMSA.
National Historic Preservation Act
The National Historic Preservation Act (NHPA; 16 U.S.C. 470 et
seq.) is intended to preserve historical and archaeological sites in
the United States of America. The act created the National Register of
Historic Places, the list of National Historic Landmarks, and State
Historic Preservation Offices. Section 106 of the NHPA requires Federal
agencies to take into account the effects of their undertakings on
historic properties, and afford the Advisory Council on Historic
Preservation (ACHP) a reasonable opportunity to comment. The historic
preservation review process mandated by Section 106 is outlined in
regulations issued by ACHP (36 CFR part 800 et seq.). In fulfilling its
responsibilities under the NHPA, NOAA is seeking to identify consulting
parties in addition to the State Historic Preservation Officer (SHPO),
and will complete the identification of historic properties and the
assessment of the effects of the undertaking on such properties in
scheduled consultations with those identified parties and the SHPO. By
this notice NOAA seeks public input, particularly in regard to the
identification of historic properties within the proposed areas of
potential effect. Pursuant to 36 CFR 800.16(l)(1), historic properties
includes: ``any prehistoric or historic district, site, building,
structure or object included in, or eligible for inclusion in, the
National Register of Historic Places maintained by the Secretary of the
Interior. The term includes artifacts, records, and remains that are
related to and located within such properties. The term includes
properties of traditional religious and cultural importance to an
Indian tribe or Native Hawaiian organization and that meet the National
Register criteria.'' If you, your organization(s), or business(es)
would like to be considered a ``consulting party'' under Section 106
please contact the individual listed under the heading FOR FURTHER
INFORMATION CONTACT; include contact information for the principal
representative for the consultation; and describe you or your party's
interest in the proposed designation. In accordance with 36 CFR
800.3(f)(3), NOAA will consider all ``consulting party'' requests but
has ultimate discretion in determining and inviting additional
consulting parties.
Regulatory Flexibility Act
This analysis seeks to fulfill the requirements of Executive Order
12866 and the Regulatory Flexibility Act. The Small Business
Administration has established thresholds on the designation of
businesses as ``small entities''. A finfish fishing businesses is
considered a small business if it has annual receipts of less than
$20.5 million. Scenic and Sightseeing and Recreational industries are
considered small businesses if they have annual receipts not in excess
of $7.5 million. According to these limits, each of the businesses
potentially affected by the proposed rule would most likely be small
businesses. However, as further discussed below, these regulations will
not have a significant economic impact on the affected small entities,
and the Chief Counsel for Regulations for the Department of Commerce
has certified to the Chief Counsel for Advocacy of the Small Business
Administration that this rule will not have significant economic impact
on a substantial number of small entities. Thus, NOAA is not required
to and has not prepared an initial regulatory flexibility analysis.
Methodology. The analysis here is based on limited quantitative
information on how much each activity occurs within the proposed
sanctuary. Consequently, the result is more qualitative than
quantitative.
Scales Used for Assessing Impacts. For assessing levels of impacts
within an alternative, NOAA used three levels; ``negligible'',
``moderate'' and ``high'' plus ``no impacts''. For levels of impacts
within the proposed alternatives being analyzed, negligible means very
low benefits, costs, or net benefits (less than 1% change). Moderate
impacts would be more than 1% but less than or equal to 10%, and high
impacts would be more than 10%. For market economic values (revenue,
costs, and profits), negligible would mean no likely impact whereas
moderate and high could mean some measurable impact on market economic
values at the levels noted above. NOAA analyzed the proposed national
marine sanctuary described above.
Small business user groups include commercial fishing operation,
recreation-tourism related businesses, and land use and development
businesses. Other user groups not included here are research and
education, people who receive passive economic use value from
stabilization or improvement to the proposed sanctuary resources, none
of whom are small businesses.
Proposed Action
Prohibition on damaging a sanctuary resource. Small businesses that
could potentially be impacted from the proposed prohibition on damaging
a sanctuary resource include commercial fishing, recreational fishing
and diving. This regulation is expected to have no to minimal impact on
commercial fishermen because it is coextensive with existing state law.
The sanctuary will assist the state in notifying the public, including
fishermen of the locations of known and suspected shipwreck sites,
which will enable them to avoid snagging and damaging their gear on
shipwreck sites. Lastly divers and other recreational water users will
still be able to use the resource, but will not able to take sanctuary
resources. Therefore the impact for this user group from this
prohibition is ``no impact''.
Prohibition on anchoring or grappling into a shipwreck site.
Commercial fishermen use trap nets or gill nets which are anchored
down, but it is unlikely that fishermen would anchor their nets near
known shipwrecks due to snagging and the potential to have their gear
damaged. Thus, the expected impact to commercial fishermen is
[[Page 2275]]
negligible. The impact is also expected to be negligible for dive
charters who would no longer be able to anchor on or grapple into a
shipwreck site. NOAA is planning to add mooring buoys and provide
anchoring best practices guidelines to facilitate divers to visit the
shipwreck sites without damaging the fragile wrecks.
Prohibition on interfering with an investigation. There is no
evidence that any small business in the area would be affected by this
prohibition. Therefore, the prohibition is expected to have no impact
on small businesses.
Thus, the overall expected impact to all these business in the
preferred alternative is ``no impact,'' and the Chief Counsel for
Regulations for the Department of Commerce has certified that this rule
will not have a significant economic impact on a substantial number of
small entities.
Paperwork Reduction Act
ONMS has a valid Office of Management and Budget (OMB) control
number (0648-0141) for the collection of public information related to
the processing of ONMS permits across the National Marine Sanctuary
System. NOAA's proposal to create WLMNMS would likely result in an
increase in the number of requests for ONMS general permits, special
use permits, certifications, and authorizations because this action
proposes to add general permits and special use permits,
certifications, appeals, and the authority to authorize other valid
federal, state, or local leases, permits, licenses, approvals, or other
authorizations. An increase in the number of ONMS permit requests would
require a change to the reporting burden certified for OMB control
number 0648-0141. An update to this control number for the processing
of ONMS permits would be requested as part of the final rule for
sanctuary expansion.
Nationwide, NOAA issues approximately 500 national marine sanctuary
permits each year. Of this amount, WLMNMS is expected to add 4 to 5
permit requests per year. The public reporting burden for national
marine sanctuaries permits is estimated to average 1.5 hours per
response, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed and
completing and reviewing the collection of information.
Send comments regarding the burden estimate for this data
collection requirement, or any other aspect of this data collection,
including suggestions for reducing the burden, to NOAA (see ADDRESSES)
and by email to [email protected], or fax to (202) 395-7285.
Notwithstanding any other provision of law, no person is required to
respond to, nor shall any person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act, unless that collection of information
displays a currently valid OMB control number.
IV. Request for Comments
NOAA requests comments on this proposed rule by March 31, 2017. In
additional to requesting comments on this proposed rule, NOAA is also
soliciting input on the DEIS and DMP. In addition NOAA would like the
public comments on the proposed name for the sanctuary.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Historic
preservation, Intergovernmental relations, Marine resources, Natural
resources, Penalties, Recreation and recreation areas, Reporting and
recordkeeping requirements, Wildlife.
Dated: December 22, 2016.
W. Russell Callender,
Assistant Administrator for Ocean Services and Coastal Zone Management.
Accordingly, for the reasons discussed in the preamble, the
National Oceanic and Atmospheric Administration proposes to amend 15
CFR part 922 as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
0
1. The authority citation for 15 CFR part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
0
2. Revise Sec. 922.1 to read as follows:
Sec. 922.1 Applicability of regulations.
Unless noted otherwise, the regulations in subparts A, D, and E of
this part apply to all National Marine Sanctuaries and related site-
specific regulations set forth in this part. Subparts B and C of this
part apply to the sanctuary nomination process and to the designation
of future Sanctuaries.
0
3. Amend Sec. 922.3 by revising the definition of ``Sanctuary
resource'' to read as follows:
Sec. 922.3 Definitions.
* * * * *
Sanctuary resource means any living or non-living resource of a
National Marine Sanctuary that contributes to the conservation,
recreational, ecological, historical, research, educational, or
aesthetic value of the Sanctuary, including, but not limited to, the
substratum of the area of the Sanctuary, other submerged features and
the surrounding seabed, carbonate rock, corals and other bottom
formations, coralline algae and other marine plants and algae, marine
invertebrates, brine-seep biota, phytoplankton, zooplankton, fish,
seabirds, sea turtles and other marine reptiles, marine mammals and
historical resources. For Thunder Bay National Marine Sanctuary and
Underwater Preserve, Sanctuary resource means an underwater cultural
resource as defined at Sec. 922.191. For Wisconsin--Lake Michigan
National Marine Sanctuary, sanctuary resource is defined at Sec.
922.211(a).
* * * * *
0
4. Revise Sec. 922.40 to read as follows:
Sec. 922.40 Purpose.
The purpose of the regulations in this subpart and in the site-
specific subparts is to implement the designations of the National
Marine Sanctuaries by regulating activities affecting them, consistent
with their respective terms of designation in order to protect,
preserve and manage and thereby ensure the health, integrity and
continued availability of the conservation, ecological, recreational,
research, educational, historical and aesthetic resources and qualities
of these areas. Additional purposes of the regulations implementing the
designation of the Florida Keys and Hawaiian Islands Humpback Whale
National Marine Sanctuaries are found at Sec. Sec. 922.160 and
922.180, respectively.
0
5. Revise Sec. 922.41 to read as follows:
Sec. 922.41 Boundaries.
The boundary for each of the National Marine Sanctuaries is set
forth in the site-specific regulations covered by this part.
0
6. Revise Sec. 922.42 to read as follows:
Sec. 922.42 Allowed activities.
All activities (e.g., fishing, boating, diving, research,
education) may be conducted unless prohibited or otherwise regulated in
the site-specific regulations covered by this part, subject to any
emergency regulations promulgated under this part, subject to all
prohibitions, regulations, restrictions, and conditions validly imposed
by any Federal, State, or local authority of competent jurisdiction,
including but not limited to, Federal, Tribal, and State fishery
management authorities, and subject to the provisions of section 312 of
the National Marine Sanctuaries Act (NMSA), (16 U.S.C. 1431 et seq.).
The Assistant Administrator may only directly
[[Page 2276]]
regulate fishing activities pursuant to the procedure set forth in
section 304(a)(5) of the NMSA.
0
7. Revise Sec. 922.43 to read as follows:
Sec. 922.43 Prohibited or otherwise regulated activities.
The site-specific regulations applicable to the activities
specified therein are set forth in the subparts covered by this part.
0
8. Revise Sec. 922.44 to read as follows:
Sec. 922.44 Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss
of, or injury to a Sanctuary resource or quality, or minimize the
imminent risk of such destruction, loss, or injury, any and all such
activities are subject to immediate temporary regulation, including
prohibition.
(b) The provisions of this section do not apply to the following
national marine sanctuaries with site-specific regulations that
establish procedures for issuing emergency regulations:
(1) Cordell Bank National Marine Sanctuary, Sec. 922.112(e).
(2) Florida Keys National Marine Sanctuary, Sec. 922.165.
(3) Hawaiian Islands Humpback Whale National Marine Sanctuary,
Sec. 922.185.
(4) Thunder Bay National Marine Sanctuary, Sec. 922.196.
(5) [Reserved]
(6) Wisconsin--Lake Michigan National Marine Sanctuary, Sec.
922.214.
0
9. Amend Sec. 922.47 by revising paragraph (b) to read as follows:
Sec. 922.47 Pre-existing authorizations or rights and certifications
of pre-existing authorizations or rights.
* * * * *
(b) The prohibitions listed in subparts F through P and R through T
of this part do not apply to any activity authorized by a valid lease,
permit, license, approval or other authorization in existence on the
effective date of Sanctuary designation, or in the case of the Florida
Keys National Marine Sanctuary the effective date of the regulations in
subpart P, and issued by any Federal, State or local authority of
competent jurisdiction, or by any valid right of subsistence use or
access in existence on the effective date of Sanctuary designation, or
in the case of the Florida Keys National Marine Sanctuary the effective
date of the regulations in subpart P, provided that the holder of such
authorization or right complies with certification procedures and
criteria promulgated at the time of Sanctuary designation, or in the
case of the Florida Keys National Marine Sanctuary the effective date
of the regulations in subpart P, and with any terms and conditions on
the exercise of such authorization or right imposed by the Director as
a condition of certification as the Director deems necessary to achieve
the purposes for which the Sanctuary was designated.
0
10. Revise Sec. 922.48 to read as follows:
Sec. 922.48 National Marine Sanctuary permits--application
procedures and issuance criteria.
(a) A person may conduct an activity prohibited by subparts F
through O and S and T of this part, if conducted in accordance with the
scope, purpose, terms and conditions of a permit issued under this
section and subparts F through O and S and T, as appropriate. For the
Florida Keys National Marine Sanctuary, a person may conduct an
activity prohibited by subpart P of this part if conducted in
accordance with the scope, purpose, terms and conditions of a permit
issued under Sec. 922.166. For the Thunder Bay National Marine
Sanctuary and Underwater Preserve, a person may conduct an activity
prohibited by subpart R of this part in accordance with the scope,
purpose, terms and conditions of a permit issued under Sec. 922.195.
(b) Applications for permits to conduct activities otherwise
prohibited by subparts F through O and S and T of this part, should be
addressed to the Director and sent to the address specified in subparts
F through O of this part, or subparts R through T of this part, as
appropriate. An application must include:
(1) A detailed description of the proposed activity including a
timetable for completion;
(2) The equipment, personnel and methodology to be employed;
(3) The qualifications and experience of all personnel;
(4) The potential effects of the activity, if any, on Sanctuary
resources and qualities; and
(5) Copies of all other required licenses, permits, approvals or
other authorizations.
(c) Upon receipt of an application, the Director may request such
additional information from the applicant as he or she deems necessary
to act on the application and may seek the views of any persons or
entity, within or outside the Federal government, and may hold a public
hearing, as deemed appropriate.
(d) The Director, at his or her discretion, may issue a permit,
subject to such terms and conditions as he or she deems appropriate, to
conduct a prohibited activity, in accordance with the criteria found in
subparts F through O of this part, or subparts R through T of this
part, as appropriate. The Director shall further impose, at a minimum,
the conditions set forth in the relevant subpart.
(e) A permit granted pursuant to this section is nontransferable.
(f) The Director may amend, suspend, or revoke a permit issued
pursuant to this section for good cause. The Director may deny a permit
application pursuant to this section, in whole or in part, if it is
determined that the permittee or applicant has acted in violation of
the terms and conditions of a permit or of the regulations set forth in
this section or subparts F through O of this part, or subparts R
through T of this part or for other good cause. Any such action shall
be communicated in writing to the permittee or applicant by certified
mail and shall set forth the reason(s) for the action taken. Procedures
governing permit sanctions and denials for enforcement reasons are set
forth in subpart D of 15 CFR part 904.
0
11. Revise Sec. 922.49 to read as follows:
Sec. 922.49 Notification and review of applications for leases,
licenses, permits, approvals, or other authorizations to conduct a
prohibited activity.
(a) A person may conduct an activity prohibited by subparts L
through P of this part, or subparts R through T of this part, if such
activity is specifically authorized by any valid Federal, State, or
local lease, permit, license, approval, or other authorization issued
after the effective date of Sanctuary designation, or in the case of
the Florida Keys National Marine Sanctuary after the effective date of
the regulations in subpart P, provided that:
(1) The applicant notifies the Director, in writing, of the
application for such authorization (and of any application for an
amendment, renewal, or extension of such authorization) within fifteen
(15) days of the date of filing of the application or the effective
date of Sanctuary designation, or in the case of the Florida Keys
National Marine Sanctuary the effective date of the regulations in
subpart P, whichever is later;
(2) The applicant complies with the other provisions of this
section;
(3) The Director notifies the applicant and authorizing agency that
he or she does not object to issuance of the authorization (or
amendment, renewal, or extension); and
(4) The applicant complies with any terms and conditions the
Director deems reasonably necessary to protect Sanctuary resources and
qualities.
(b) Any potential applicant for an authorization described in
paragraph (a)
[[Page 2277]]
of this section may request the Director to issue a finding as to
whether the activity for which an application is intended to be made is
prohibited by subparts L through P of this part, or subparts R through
T of this part, as appropriate.
(c) Notification of filings of applications should be sent to the
Director, Office of National Marine Sanctuaries at the address
specified in subparts L through P of this part, or subparts R through T
of this part, as appropriate. A copy of the application must accompany
the notification.
(d) The Director may request additional information from the
applicant as he or she deems reasonably necessary to determine whether
to object to issuance of an authorization described in paragraph (a) of
this section, or what terms and conditions are reasonably necessary to
protect Sanctuary resources and qualities. The information requested
must be received by the Director within 45 days of the postmark date of
the request. The Director may seek the views of any persons on the
application.
(e) The Director shall notify, in writing, the agency to which
application has been made of his or her pending review of the
application and possible objection to issuance. Upon completion of
review of the application and information received with respect
thereto, the Director shall notify both the agency and applicant, in
writing, whether he or she has an objection to issuance and what terms
and conditions he or she deems reasonably necessary to protect
Sanctuary resources and qualities, and reasons therefor.
(f) The Director may amend the terms and conditions deemed
reasonably necessary to protect Sanctuary resources and qualities
whenever additional information becomes available justifying such an
amendment.
(g) Any time limit prescribed in or established under this section
may be extended by the Director for good cause.
(h) The applicant may appeal any objection by, or terms or
conditions imposed by, the Director to the Assistant Administrator or
designee in accordance with the provisions of Sec. 922.50.
0
12. Revise Sec. 922.50 to read as follows:
Sec. 922.50 Appeals of administrative action.
(a)(1) Except for permit actions taken for enforcement reasons (see
subpart D of 15 CFR part 904 for applicable procedures), an applicant
for, or a holder of, a National Marine Sanctuary permit; an applicant
for, or a holder of, a Special Use permit issued pursuant to section
310 of the Act; a person requesting certification of an existing lease,
permit, license or right of subsistence use or access under Sec.
922.47; or, for those Sanctuaries described in subparts L through P and
R through T of this part, an applicant for a lease, permit, license or
other authorization issued by any Federal, State, or local authority of
competent jurisdiction (hereinafter appellant) may appeal to the
Assistant Administrator:
(i) The granting, denial, conditioning, amendment, suspension or
revocation by the Director of a National Marine Sanctuary or Special
Use permit;
(ii) The conditioning, amendment, suspension or revocation of a
certification under Sec. 922.47; or
(iii) For those Sanctuaries described in subparts L through P and
subpart R through T, the objection to issuance of or the imposition of
terms and conditions on a lease, permit, license or other authorization
issued by any Federal, State, or local authority of competent
jurisdiction.
(2) For those National Marine Sanctuaries described in subparts F
through K and S and T of this part, any interested person may also
appeal the same actions described in paragraphs (a)(1)(i) and (ii) of
this section. For appeals arising from actions taken with respect to
these National Marine Sanctuaries, the term ``appellant'' includes any
such interested persons.
(b) An appeal under paragraph (a) of this section must be in
writing, state the action(s) by the Director appealed and the reason(s)
for the appeal, and be received within 30 days of receipt of notice of
the action by the Director. Appeals should be addressed to the
Assistant Administrator for Ocean Services and Coastal Zone Management,
NOAA 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910.
(c)(1) The Assistant Administrator may request the appellant to
submit such information as the Assistant Administrator deems necessary
in order for him or her to decide the appeal. The information requested
must be received by the Assistant Administrator within 45 days of the
postmark date of the request. The Assistant Administrator may seek the
views of any other persons. For the Monitor National Marine Sanctuary,
if the appellant has requested a hearing, the Assistant Administrator
shall grant an informal hearing. For all other National Marine
Sanctuaries, the Assistant Administrator may determine whether to hold
an informal hearing on the appeal. If the Assistant Administrator
determines that an informal hearing should be held, the Assistant
Administrator may designate an officer before whom the hearing shall be
held.
(2) The hearing officer shall give notice in the Federal Register
of the time, place and subject matter of the hearing. The appellant and
the Director may appear personally or by counsel at the hearing and
submit such material and present such arguments as deemed appropriate
by the hearing officer. Within 60 days after the record for the hearing
closes, the hearing officer shall recommend a decision in writing to
the Assistant Administrator.
(d) The Assistant Administrator shall decide the appeal using the
same regulatory criteria as for the initial decision and shall base the
appeal decision on the record before the Director and any information
submitted regarding the appeal, and, if a hearing has been held, on the
record before the hearing officer and the hearing officer's recommended
decision. The Assistant Administrator shall notify the appellant of the
final decision and the reason(s) therefore in writing. The Assistant
Administrator's decision shall constitute final agency action for the
purpose of the Administrative Procedure Act.
(e) Any time limit prescribed in or established under this section
other than the 30-day limit for filing an appeal may be extended by the
Assistant Administrator or hearing office for good cause.
Subpart S--[Added and Reserved]
0
13. Add and reserve subpart S.
0
14. Add subpart T to read as follows:
SUBPART T--WISCONSIN-LAKE MICHIGAN NATIONAL MARINE SANCTUARY
Sec.
922.210 Boundary.
922.211 Definitions.
922.212 Co-management.
922.213 Prohibited or otherwise regulated activities.
922.214 Emergency regulations.
922.215 Permit procedures and review criteria.
922.216 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
Appendix A to Subpart T of Part 922--Wisconsin-Lake Michigan Marine
Sanctuary Boundary Description and Coordinates of the Lateral
Boundary Closures and Excluded Areas
Appendix B to Subpart T of Part 922--Wisconsin-Lake Michigan Marine
Sanctuary Terms of Designation
Sec. 922.210 Boundary.
The Wisconsin-Lake Michigan National Marine Sanctuary consists of
an area of approximately 812 square nautical miles (nmi2) (1,075 sq.
mi) of
[[Page 2278]]
Lake Michigan waters within the state of Wisconsin and the submerged
lands thereunder, over, around, and under the submerged underwater
cultural resources in Lake Michigan. The precise boundary coordinates
are listed in appendix A to this subpart. The eastern boundary of the
sanctuary begins approximately 9.5 miles east of the Wisconsin
shoreline in Lake Michigan at Point 1 roughly on the border between
Manitowoc and Kewaunee County. From this point the boundary continues
SSW in a straight line to Point 2 and then SW to Point 3 at roughly the
border between Ozaukee and Milwaukee County. From this point the
boundary continues west towards Point 4 until it intersects the
shoreline at the ordinary high water mark near Mequon, WI. From this
intersection the boundary continues north following the shoreline
cutting across the mouths of creeks and streams until it intersects the
line segment formed between Point 5 and Point 6 at the end of the
southern breakwater at the mouth of Sauk Creek at Port Washington. From
this intersection the boundary continues across the river mouth towards
Point 6 until it intersects the shoreline at the ordinary high water
mark at the end of the northern breakwater. From this intersection the
boundary continues north following the shoreline until it intersects
the line segment formed between Point 7 and Point 8 at the end of the
southern breakwater at the mouth of the Sheboygan River. From this
intersection the boundary continues across the river mouth towards
Point 8 until it intersects the shoreline at the ordinary high water
mark at the end of the northern breakwater. From this intersection the
boundary continues north along the shoreline until it intersects the
line segment formed between Point 9 and Point 10 at the end of the
southern breakwater at the mouth of Manitowoc Harbor. From this
intersection the boundary continues across the harbor mouth towards
Point until it intersects the shoreline at the ordinary high water
mark10 at the end of the northern breakwater. From this intersection
the boundary continues north following the shoreline until it
intersects the line segment formed between Point 11 and Point 12 at the
end of the western breakwater at the mouth of East Twin River. From
this intersection the boundary continues across the river mouth towards
Point 12 until it intersects the shoreline at the ordinary high water
mark at the end of the eastern breakwater. From this intersection the
boundary follows the shoreline NE around Rawley Point and then NNW
until it intersects the line segment formed between Point 13 and Point
14 along the shoreline at approximately the border between Manitowoc
and Kewaunee County near Twin Creeks, WI. Finally, from this
intersection the boundary moves east across Lake Michigan to Point 14.
Sec. 922.211 Definitions.
(a) The following terms are defined for purposes of this subpart:
(1) Sanctuary resource means all prehistoric, historic,
archaeological, and cultural sites and artifacts within the sanctuary
boundary, including but not limited to, all shipwrecks and related
components.
(2) Shipwreck site means any sunken watercraft, its components,
cargo, contents, and associated debris field.
(b) All other terms appearing in the regulations in this subpart
are defined at 15 CFR 922.3, and/or in the Marine Protection, Research,
and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C.
1431 et seq.
Sec. 922.212 Co-management.
NOAA has primary responsibility for the management of the Sanctuary
pursuant to the Act. However, as the Sanctuary is in state waters, NOAA
will co-manage the Sanctuary in collaboration with the State of
Wisconsin. The Director may enter into a Memorandum of Understanding
regarding this collaboration that may address, but not be limited to,
such aspects as areas of mutual concern, including Sanctuary resource
protection, programs, permitting, activities, development, and threats
to Sanctuary resources.
Sec. 922.213 Prohibited or otherwise regulated activities.
(a) Except as specified in paragraph (b) of this section, the
following activities are prohibited and thus are unlawful for any
person to conduct or to cause to be conducted:
(1) Moving, removing, recovering, altering, destroying, possessing,
or otherwise injuring, or attempting to move, remove, recover, alter,
destroy, possess or otherwise injure a sanctuary resource.
(2) Grappling into or anchoring on shipwreck sites.
(3) Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the Act or any regulation or any permit
issued under the Act.
(b) The prohibitions in paragraphs (a)(1) through (3) of this
section do not apply to any activity necessary to respond to an
emergency threatening life, property or the environment; or to
activities necessary for valid law enforcement purposes.
Sec. 922.214 Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss
of, or injury to a Sanctuary resource, or to minimize the imminent risk
of such destruction, loss, or injury, any and all activities are
subject to immediate temporary regulation, including prohibition. An
emergency regulation shall not take effect without the approval of the
Governor of Wisconsin or her/his designee or designated agency.
(b) Emergency regulations remain in effect until a date fixed in
the rule or six months after the effective date, whichever is earlier.
The rule may be extended once for not more than six months.
Sec. 922.215 Permit procedures and review criteria.
(a) Authority to issue general permits. The Director may allow a
person to conduct an activity that would otherwise be prohibited by
this subpart, through issuance of a general permit, provided the
applicant complies with:
(1) The provisions of subpart E of this part; and
(2) The relevant site specific regulations appearing in this
subpart.
(b) Sanctuary general permit categories. The Director may issue a
sanctuary general permit under this subpart, subject to such terms and
conditions as he or she deems appropriate, if the Director finds that
the proposed activity falls within one of the following categories:
(1) Research--activities that constitute scientific research on or
scientific monitoring of national marine sanctuary resources or
qualities;
(2) Education--activities that enhance public awareness,
understanding, or appreciation of a national marine sanctuary or
national marine sanctuary resources or qualities; or
(3) Management--activities that assist in managing a national
marine sanctuary.
(c) Review criteria. The Director shall not issue a permit under
this subpart, unless he or she also finds that:
(1) The proposed activity will be conducted in a manner compatible
with the primary objective of protection of national marine sanctuary
resources and qualities, taking into account the following factors:
(i) The extent to which the conduct of the activity may diminish or
enhance national marine sanctuary resources and qualities; and
[[Page 2279]]
(ii) Any indirect, secondary or cumulative effects of the activity.
(2) It is necessary to conduct the proposed activity within the
national marine sanctuary to achieve its stated purpose.
(3) The methods and procedures proposed by the applicant are
appropriate to achieve the proposed activity's stated purpose and
eliminate, minimize, or mitigate adverse effects on sanctuary resources
and qualities as much as possible.
(4) The duration of the proposed activity and its effects are no
longer than necessary to achieve the activity's stated purpose.
(5) The expected end value of the activity to the furtherance of
national marine sanctuary goals and purposes outweighs any potential
adverse impacts on sanctuary resources and qualities from the conduct
of the activity.
(6) The applicant is professionally qualified to conduct and
complete the proposed activity.
(7) The applicant has adequate financial resources available to
conduct and complete the proposed activity and terms and conditions of
the permit.
(8) There are no other factors that would make the issuance of a
permit for the activity inappropriate.
Sec. 922.216 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
(a) A person may conduct an activity prohibited by Sec.
922.213(a)(1) through (3) if such activity is specifically authorized
by a valid Federal, state, or local lease, permit, license, approval,
or other authorization, or tribal right of subsistence use or access in
existence prior to the effective date of sanctuary designation and
within the sanctuary designated area and complies with Sec. 922.49 and
provided that the holder of the lease, permit, license, approval, or
other authorization complies with the requirements of paragraph (e) of
this section.
(b) In considering whether to make the certifications called for in
this section, the Director may seek and consider the views of any other
person or entity, within or outside the Federal government, and may
hold a public hearing as deemed appropriate.
(c) The Director may amend, suspend, or revoke any certification
made under this section whenever continued operation would otherwise be
inconsistent with any terms or conditions of the certification. Any
such action shall be forwarded in writing to both the holder of the
certified permit, license, or other authorization and the issuing
agency and shall set forth reason(s) for the action taken.
(d) Requests for findings or certifications should be addressed to
the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary
Superintendent, Wisconsin-Lake Michigan National Marine Sanctuary, 1305
East-West Hwy, 11th Floor, Silver Spring, MD 20910. A copy of the
lease, permit, license, approval, or other authorization must accompany
the request.
(e) For an activity described in paragraph (a) of this section, the
holder of the authorization or right may conduct the activity
prohibited by Sec. 922.213(a)(1) through (3) provided that:
(1) The holder of such authorization or right notifies the
Director, in writing, within 180 days of the effective date of
Sanctuary designation, of the existence of such authorization or right
and requests certification of such authorization or right;
(2) The holder complies with the other provisions of this section;
and
(3) The holder complies with any terms and conditions on the
exercise of such authorization or right imposed as a condition of
certification, by the Director, to achieve the purposes for which the
Sanctuary was designated.
(f) The holder of an authorization or right described in paragraph
(a) of this section authorizing an activity prohibited by Sec. 922.213
may conduct the activity without being in violation of applicable
provisions of Sec. 922.213, pending final agency action on his or her
certification request, provided the holder is otherwise in compliance
with this section.
(g) The Director may request additional information from the
certification requester as he or she deems reasonably necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purposes for which the Sanctuary was designated.
The Director must receive the information requested within 45 days of
the postmark date of the request. The Director may seek the views of
any persons on the certification request.
(h) The Director may amend any certification made under this
section whenever additional information becomes available that he/she
determines justifies such an amendment.
(i) Upon completion of review of the authorization or right and
information received with respect thereto, the Director shall
communicate, in writing, any decision on a certification request or any
action taken with respect to any certification made under this section,
in writing, to both the holder of the certified lease, permit, license,
approval, other authorization, or right, and the issuing agency, and
shall set forth the reason(s) for the decision or action taken.
(j) The holder may appeal any action conditioning, amending,
suspending, or revoking any certification in accordance with the
procedures set forth in Sec. 922.50.
(k) Any time limit prescribed in or established under this section
may be extended by the Director for good cause.
Appendix A to Subpart T of Part 922--Wisconsin-Lake Michigan Marine
Sanctuary Boundary Description and Coordinates of the Lateral Boundary
Closures and Excluded Areas
Coordinates listed in this appendix are unprojected (Geographic)
and based on the North American Datum of 1983.
Table A1--Coordinates for Sanctuary
------------------------------------------------------------------------
Point ID Latitude Longitude
------------------------------------------------------------------------
1............................................. 44.32749 -87.34795
2............................................. 43.45716 -87.48817
3............................................. 43.19198 -87.62813
4 *........................................... 43.19203 -87.89245
5 *........................................... 43.38447 -87.86079
6 *........................................... 43.38523 -87.85963
7 *........................................... 43.74858 -87.69479
8 *........................................... 43.74946 -87.69265
9 *........................................... 44.09135 -87.64377
10 *.......................................... 44.09262 -87.64373
11 *.......................................... 44.14226 -87.56161
12 *.......................................... 44.14267 -87.56069
13 *.......................................... 44.32751 -87.54400
14............................................ 44.32749 -87.34795
------------------------------------------------------------------------
Note: The coordinates in the table above marked with an asterisk
(*) are not a part of the sanctuary boundary. These coordinates are
landward reference points used to draw a line segment that
intersects with the shoreline.
Appendix B to Subpart T of Part 922--Wisconsin-Lake Michigan Marine
Sanctuary Terms of Designation
Terms of Designation for the Proposed Wisconsin-Lake Michigan
National Marine Sanctuary Under the authority of the National Marine
Sanctuaries Act, as amended (the ``Act'' or ``NMSA''), 16 U.S.C.
1431 et seq., 1,075 square miles of Lake Michigan off the coast of
Wisconsin's coastal counties of Ozaukee, Sheboygan and Manitowoc are
hereby designated as a National Marine Sanctuary for the purposes of
providing long-term protection and management of the historical
resources and recreational, research, educational, and aesthetic
qualities of the area.
[[Page 2280]]
Article I: Effect of Designation
The NMSA authorizes the issuance of such regulations as are
necessary and reasonable to implement the designation, including
managing and protecting the historical resources and recreational,
research, and educational qualities of the Wisconsin-Lake Michigan
National Marine Sanctuary (the ``Sanctuary''). Section 1 of Article
IV of this Designation Document lists those activities that may have
to be regulated on the effective date of designation, or at some
later date, in order to protect Sanctuary resources and qualities.
Listing an activity does not necessarily mean that it will be
regulated; however, if an activity is not listed it may not be
regulated, except on an emergency basis, unless Section 1 of Article
IV is amended by the same procedures by which the original Sanctuary
designation was made.
Article II: Description of the Area
The Wisconsin-Lake Michigan National Marine Sanctuary consists
of an area of approximately 812 square nautical miles (nmi2) (1,075
sq. mi) of Lake Michigan waters within the state of Wisconsin and
the submerged lands thereunder, over, around, and under the
submerged underwater cultural resources in Lake Michigan. The
eastern boundary of the sanctuary begins approximately 9.5 miles
east of the Wisconsin shoreline in Lake Michigan roughly on the
border between Manitowoc and Kewaunee County. From this point the
boundary continues in Lake Michigan roughly to the SSW until it
intersects the border between Ozaukee and Milwaukee County at a
point approximately 13 miles east of the shoreline. The southern
boundary continues west approximating the border between these same
two counties until it intersects the shoreline near Mequon, WI. The
western boundary continues north following the shoreline for
approximately 90 miles cutting across the mouths of rivers and
streams; specifically those of Sauk Creek at Port Washington, the
Sheboygan River at Sheboygan, Manitowoc Harbor as Manitowoc, and
East Twin River at Two Rivers as well as any other smaller streams
and creeks. The western boundary ends at roughly the border between
Manitowoc and Kewaunee County along the shoreline near Twin Creeks,
WI. The northern boundary continues from the shoreline east
approximating the border between these same two counties back to its
point of origin 9.5 miles offshore.
Article III: Special Characteristics of the Area
The historic shipwrecks in the Wisconsin-Lake Michigan National
Marine Sanctuary are representative of vessels that sailed and
steamed the Lake Michigan corridor, carrying grain and raw materials
east as other vessels came west loaded with coal, manufactured good,
and immigrants. Eighteen of the 37 shipwrecks are listed on the
National Register of Historic Places. Many of the shipwrecks in the
proposed sanctuary retain an unusual degree of architectural
integrity, with 14 vessels virtually intact. Well preserved by Lake
Michigan's cold, fresh water, the shipwrecks and related underwater
cultural sites in and around the Wisconsin-Lake Michigan National
Marine Sanctuary possess exceptional historical, archaeological and
recreational value.
Article IV: Scope of Regulations
Section 1. Activities Subject to Regulation. The following
activities are subject to regulation, including prohibition, to the
extent necessary and reasonable to ensure the protection and
management of the historical resources and recreational, research
and educational qualities of the area:
a. Damaging sanctuary resources.
b. Using grappling hooks and anchors at shipwreck sites.
c. Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the Act or any regulation issued
under the Act.
d. Reporting shipwreck discoveries and locations to the
sanctuary.
Section 2. Emergencies. Where necessary to prevent or minimize
the destruction of, loss of, or injury to a Sanctuary resource or
quality; or minimize the imminent risk of such destruction, loss, or
injury, any activity, including those not listed in Section 1, is
subject to immediate temporary regulation. An emergency regulation
shall not take effect without the approval of the Governor of
Wisconsin or her/his designee or designated agency.
Article V: Relation to Other Regulatory Programs
Section 1. Fishing Regulations, Licenses, and Permits. Fishing
in the Sanctuary shall not be regulated as part of the Sanctuary
management regime authorized by the Act. However, fishing in the
Sanctuary may be regulated by other Federal, State, Tribal and local
authorities of competent jurisdiction, and designation of the
Sanctuary shall have no effect on any regulation, permit, or license
issued thereunder.
Section 2. Other Regulations, Licenses, and Permits. If any
valid regulation issued by any Federal, state, Tribal, or local
authority of competent jurisdiction, regardless of when issued,
conflicts with a Sanctuary regulation, the regulation deemed by the
Director of the Office of National Marine Sanctuaries, National
Oceanic and Atmospheric Administration, or designee, in consultation
with the State of Wisconsin, to be more protective of Sanctuary
resources and qualities shall govern. Pursuant to section 304(c)(1)
of the Act, 16 U.S.C. 1434(c)(1), no valid lease, permit, license,
approval, or other authorization issued by any Federal, State,
Tribal, or local authority of competent jurisdiction, or any right
of subsistence use or access, may be terminated by the Secretary of
Commerce, or designee, as a result of this designation, or as a
result of any Sanctuary regulation, if such lease, permit, license,
approval, or other authorization, or right of subsistence use or
access was issued or in existence as of the effective date of this
designation. However, the Secretary of Commerce or designee, in
consultation with the State of Wisconsin, may regulate the exercise
of such authorization or right consistent with the purposes for
which the Sanctuary is designated.
Article VI. Alteration of This Designation
The terms of designation may be modified only by the same
procedures by which the original designation is made, including
public meetings, consultation according to the NMSA.
[FR Doc. 2016-31741 Filed 1-6-17; 8:45 am]
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