Rule2021-12846
Wisconsin Shipwreck Coast National Marine Sanctuary Designation; Final Regulations
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Published
June 23, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Oceanic and Atmospheric Administration (NOAA) issues final regulations to implement the designation of the Wisconsin Shipwreck Coast National Marine Sanctuary (WSCNMS). The approximately 962 square-mile area encompasses a portion of the waters and submerged lands of Lake Michigan adjacent to Ozaukee, Sheboygan, Manitowoc, and Kewaunee Counties. The area includes a nationally significant collection of underwater cultural resources, including 36 known shipwrecks and about 59 suspected shipwrecks. Well preserved by Lake Michigan's cold, fresh water, the shipwrecks in the WSCNMS possess exceptional historical, archaeological and recreational value. NOAA and the State of Wisconsin will co-manage WSCNMS.
Full Text
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[Federal Register Volume 86, Number 118 (Wednesday, June 23, 2021)]
[Rules and Regulations]
[Pages 32737-32757]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12846]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 210608-0125]
RIN 0648-BG01
Wisconsin Shipwreck Coast National Marine Sanctuary Designation;
Final Regulations
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Final rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
issues final regulations to implement the designation of the Wisconsin
Shipwreck Coast National Marine Sanctuary (WSCNMS). The approximately
962 square-mile area encompasses a portion of the waters and submerged
lands of Lake Michigan adjacent to Ozaukee, Sheboygan, Manitowoc, and
Kewaunee Counties. The area includes a nationally significant
collection of underwater cultural resources, including 36 known
shipwrecks and about 59 suspected shipwrecks. Well preserved by Lake
Michigan's cold, fresh water, the shipwrecks in the WSCNMS possess
exceptional historical, archaeological and recreational value. NOAA and
the State of Wisconsin will co-manage WSCNMS.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and
regulations shall take effect and become final after the close of a
review period of forty-five days of continuous session of Congress,
beginning on the date on which this federal rulemaking is published,
unless the Governor of the State of Wisconsin certifies to the
Secretary of Commerce during that same review period that the
designation or any of its terms is unacceptable, in which case the
designation or any unacceptable term shall not take effect. The public
can track days on Congressional session at the following website:
<a href="https://www.congress.gov/days-in-session">https://www.congress.gov/days-in-session</a>. NOAA will publish an
announcement of the effective date of the final regulations in the
Federal Register.
NOAA is staying the effective date of Sec. 922.213(a)(2), which
prohibits grappling into or anchoring on shipwreck sites, until October
1, 2023. The purpose of this stay is detailed in Section II of this
final rule.
ADDRESSES: Copies of the final environmental impact statement and final
management plan (FEIS/FMP) described in this rule and the record of
decision (ROD) are available upon request to Wisconsin Shipwreck Coast
National Marine Sanctuary, One University Drive, Sheboygan, WI 53081,
Attn: Russ Green, Regional Coordinator. The FEIS/FMP and Record of
Decision may be viewed and downloaded at <a href="https://sanctuaries.noaa.gov/wisconsin/">https://sanctuaries.noaa.gov/wisconsin/</a>.
FOR FURTHER INFORMATION CONTACT: Russ Green, Regional Coordinator,
Office of
[[Page 32738]]
National Marine Sanctuaries at 920-459-4425, <a href="/cdn-cgi/l/email-protection#13616660603d746176767d537d7c72723d747c65"><span class="__cf_email__" data-cfemail="9ceee9efefb2fbeef9f9f2dcf2f3fdfdb2fbf3ea">[email protected]</span></a>, or
Wisconsin Shipwreck Coast National Marine Sanctuary, One University
Drive, Sheboygan, WI 53081, Attn: Russ Green, Regional Coordinator.
SUPPLEMENTARY INFORMATION:
I. 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 or Great
Lakes environment that are of special national significance due to
their conservation, recreational, ecological, historical, scientific,
cultural, archeological, educational, or aesthetic qualities. Day-to-
day management of national marine sanctuaries has been delegated by the
Secretary to the Office of National Marine Sanctuaries (ONMS) within
the National Oceanic and Atmospheric Administration (NOAA). The primary
objective of the NMSA is to protect the sanctuary system's biological
and cultural resources, such as marine ecosystem, marine animals,
historic shipwrecks, and archaeological sites.
A. Wisconsin Shipwreck Coast National Marine Sanctuary
The approximately 962 square-mile area designated as the Wisconsin
Shipwreck Coast National Marine Sanctuary (WSCNMS) encompasses a
portion of the waters and submerged lands of Lake Michigan adjacent to
Ozaukee, Sheboygan, Manitowoc, and Kewaunee Counties. Principal cities
in this area include Port Washington, Sheboygan, Manitowoc, and Two
Rivers. The boundary includes approximately 82 miles of shoreline and
extends approximately 7 to 16 miles from the shoreline, and is entirely
located within Wisconsin state waters.
The area includes a nationally significant collection of underwater
cultural resources, including 36 known shipwrecks and approximately 59
suspected shipwrecks. The historic shipwrecks in the sanctuary are
representative of the vessels that sailed and steamed on Lake Michigan
during the nineteenth and twentieth centuries, carrying grain and raw
materials east and coal, manufactured goods, and people west. During
this period entrepreneurs and shipbuilders on the Great Lakes launched
tens of thousands of ships of many different designs. Sailing
schooners, grand palace steamers, revolutionary propeller-driven
passenger ships, and industrial bulk carriers transported materials
that were essential to America's business and industry. In the process
they brought hundreds of thousands of people to the Midwest and made
possible the dramatic growth of the region's farms, cities, and
industries. The Midwest, and indeed the American Nation, could not have
developed with such speed and with such vast economic and social
consequences without the Great Lakes. Twenty-one of the 36 shipwreck
sites in the sanctuary are listed on the National Register of Historic
Places. Many of the shipwrecks retain an unusual degree of
archeological and architectural integrity, with several vessels nearly
intact. Well preserved by Lake Michigan's cold, fresh water, the
shipwrecks in the WSCNMS possess exceptional historical, archaeological
and recreational value. Additional underwater cultural resources, such
as submerged aircraft, docks, piers, and isolated artifacts also exist,
as does the potential for prehistoric (pre-contact) sites and
artifacts.
B. Need for Action
Establishing a national marine sanctuary in Wisconsin waters will
complement and supplement existing state-led preservation efforts,
research programs, and public outreach initiatives. Threats to the
nationally significant underwater cultural resources in the area
include both natural processes and human activities. In some cases
human activities can threaten the long term sustainability of historic
shipwrecks and other underwater cultural resources, and negatively
impact their recreational and archaeological value. These negative
impacts include anchor damage from visiting dive boats, damage from
poorly attached mooring lines, looting of artifacts, movement of
artifacts within a shipwreck site, entanglements of remotely-operated
vehicle tethers, and entanglements of fishing gear. Additional threats
to the national marine sanctuary's resources include human-introduced
invasive mussels and the human disturbance and natural deterioration
also threaten known and undiscovered sanctuary resources. Future
discoveries may include newly uncovered shipwrecks in shallow, sandy
lake bottom, as well as yet-to-be-discovered intact shipwrecks the lie
in deeper areas.
Consistent with the community-based sanctuary nomination (described
below), the national marine sanctuary will also: (a) Build on the 30-
year investment the citizens of Wisconsin have made in the
identification, interpretation, and preservation of shipwrecks and
other maritime resources; (b) build on state and local tourism
initiatives within the many communities that have embraced their
centuries-long maritime relationship with Lake Michigan, the Great
Lakes region, and the nation; (c) enhance the existing state management
program; and (d) provide access to NOAA's extended network of
scientific expertise and technological resources, increase research
efforts, and provide an umbrella for the coordination of these
activities. The national marine sanctuary will also enhance existing
educational initiatives and provide additional programming and
technology for K-12, post-graduate, and the general public across the
state.
C. Procedural History
1. Sanctuary Nomination and Public Scoping
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; and 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, <a href="https://www.wisconsinshipwrecks.org/Files/Wisconsins%20Historic%20Shipwrecks.pdf">https://www.wisconsinshipwrecks.org/Files/Wisconsins%20Historic%20Shipwrecks.pdf</a>).
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 <a href="http://www.nominate.noaa.gov/nominations/">http://www.nominate.noaa.gov/nominations/</a>.
On October 7, 2015, NOAA initiated the public scoping process with
the publication of the Notice of Intent (NOI) in the Federal Register
(80 FR 60631), soliciting public input on the proposed designation and
informing the public of the Agency's intention to prepare a draft
[[Page 32739]]
environmental impact statement (DEIS) to evaluate alternatives related
to the proposed designation of WSCNMS under the 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 the National Historic Preservation Act (NHPA).
In November 2015, NOAA hosted three public meetings and provided
additional opportunities for public comments through the
<a href="http://www.regulations.gov">www.regulations.gov</a> web portal and by traditional mail. The comment
period closed January 15, 2016. All comments received, through any of
these formats, were publicly posted on the <a href="http://www.regulations.gov">www.regulations.gov</a> web
portal (see: <a href="https://www.regulations.gov/docket?D=NOAA-NOS-2015-0112">https://www.regulations.gov/docket?D=NOAA-NOS-2015-0112</a>.
The public comments submitted during the scoping process were used by
NOAA in preparing the proposed sanctuary regulations and the draft
environmental impact statement and draft management plan (DEIS/DMP)
associated with the proposed sanctuary designation.
2. Designation Process
On January 9, 2017, NOAA published a notice in the Federal Register
announcing the proposed designation of approximately 1,075 square miles
of waters and submerged lands of Lake Michigan adjacent to Manitowoc,
Sheboygan, and Ozaukee counties in the State of Wisconsin. (82 FR
2269). NOAA also provided public notice of the availability of the
related DEIS/DMP (82 FR 2269; 82 FR 1733). All three documents
(proposed rule, DEIS, and DMP) were prepared in close consultation with
the State of Wisconsin. NOAA opened an 81-day comment period on the
proposed rule and the DEIS/DMP, which closed on March 31, 2017. During
the public comment period, NOAA held four public meetings in the
Wisconsin cities of Algoma, Manitowoc, Sheboygan, and Port Washington.
All public comments on the proposed designation are available at
<a href="https://www.regulations.gov/docket?D=NOAA-NOS-2016-0150">https://www.regulations.gov/docket?D=NOAA-NOS-2016-0150</a>. NOAA's
response to the public comments are included in Appendix B of the FEIS,
which was made available on June 5, 2020 (85 FR 34625) and in this
document (Section IV).
II. Changes From Proposed to Final Regulations
Based on public comments received between January and March 2017,
internal deliberations, interagency consultations, meetings with
constituent groups, and evaluation of this input with the State of
Wisconsin, NOAA has made the following changes to the proposed rule.
NOAA has also made conforming changes to the FEIS/FMP.
A. Sanctuary Boundary
In response to public comments and discussions with the state, NOAA
chose to modify the sanctuary boundary area from 1,075 square miles, as
originally proposed, to 962 square miles. This new boundary includes 36
known shipwrecks and the potential for approximately 59 new sites to be
discovered. Specific changes include: (1) In response to comments
raised by the commercial shipping industry, excluding all federally
authorized areas (navigation channels) from the sanctuary; (2) in
response to comments raised by shoreline property owners and certain
industry groups and in consultation with the State of Wisconsin, using
the Low Water Datum rather than the Ordinary High Water Mark as the
sanctuary's western/shoreline boundary; (3) in consultation with the
State of Wisconsin, moving the southern sanctuary boundary northward to
approximately 650 feet south of the shipwreck Northerner, putting the
boundary closer to the nominating community of Port Washington and
using a known shipwreck site to demarcate the sanctuary boundary,
rather than a political boundary (i.e., a county or city line); and (4)
in response to public comments, moving the northern boundary
approximately 1.7 miles northward to include the shipwreck America (in
Kewaunee County). A detailed description of these boundary
modifications can be found in Chapter 3 of the FEIS. NOAA's response to
these and other public comments can be found in Appendix B of the FEIS
and in this document (Section IV).
B. Sanctuary Name
In the proposed rule, NOAA referred to the proposed sanctuary as
the ``Wisconsin-Lake Michigan National Marine Sanctuary (WLMNMS).''
However, based on comments received from the public and community
partners, NOAA changes the sanctuary name with this final rule to
Wisconsin Shipwreck Coast National Marine Sanctuary (WSCNMS), which
better describes the purpose of the sanctuary, and, as indicated by
local communities, provides stronger opportunities for marketing and
branding.
C. Definition of ``Sanctuary Resource'' and ``Shipwreck Site''
In response to public comments, NOAA revises the definitions of
``sanctuary resource'' and ``shipwreck site'' for clarity. In the
proposed rule, NOAA defined ``sanctuary resource'' as ``prehistoric,
historic, archaeological, and cultural sites and artifacts within the
sanctuary boundary, including but not limited to, all shipwrecks and
related components.'' With this final rule, NOAA deletes ``including
but not limited to, all shipwrecks and related components'' and
replaces it with ``including all shipwreck sites,'' thus revising the
site-specific definition of ``sanctuary resources,'' located in section
922.211(a)(1), to now mean ``all prehistoric, historic, archaeological,
and cultural sites and artifacts within the sanctuary boundary,
including all shipwreck sites.'' NOAA made this revision to clarify
this sanctuary's emphasis on the protection of shipwrecks and shipwreck
sites, and to better align with state definitions.
Additionally, the proposed rule broadly defined ``shipwreck site''
to mean any sunken watercraft, its components, cargo, contents, and
associated debris field (section 922.211(a)(2)). However, with this
final rule, NOAA revises the definition in section 922.211(a)(2) for
``shipwreck site'' by adding ``historic'' to clarify that NOAA is
focused on historic shipwrecks (i.e., not all shipwrecks, but those
that demonstrate an important role in or relationship with maritime
history). This addition is specifically added to respond to concerns
about defining recent or contemporary sunken craft or objects as
sanctuary resources. For the purposes of this rule, ``historic'' takes
its definition from ``historical resource'' located in section 922.3 of
the National Marine Sanctuary Program regulations.
D. Effective Date of the Regulations on Grappling Into or Anchoring on
Shipwreck Sites
As explained above in the DATES section of this document, NOAA
postpones the effective date for the regulation that prohibits
grappling into or anchoring on shipwreck sites until October 1, 2023.
The purpose of this postponement is to provide NOAA with adequate time
to develop a shipwreck mooring program and plan, begin installing
mooring buoys, seek input from the dive community about the mooring
buoy plan, and develop best practices for accessing shipwrecks when
[[Page 32740]]
mooring buoys are not present. During this period, NOAA will also work
with stakeholders to explore the concept of permitting certain
prohibited activities (e.g., allowing divers to attach mooring lines
directly to some shipwreck sites).
All other regulations will become effective as described in the
DATES section above.
III. Summary of All Final Regulations for WSCNMS
With this final rule, NOAA is implementing the following site-
specific regulations for WSCNMS.
A. Add New Subpart T to Existing National Marine Sanctuary Program
Regulations
NOAA amends the National Marine Sanctuary Program regulations at 15
CFR part 922 by adding a new subpart (subpart T) that contains site-
specific regulations for the WSCNMS. This subpart includes the boundary
description, contains definitions of common terms used in the new
subpart, provides a framework for co-management of the sanctuary,
identifies prohibited activities and exceptions, and establishes
procedures for certification of existing uses, permitting otherwise
prohibited activities, and emergency regulation procedures. Several
conforming changes are also made to the national sanctuary regulations
as described below.
B. Sanctuary Name
The sanctuary name is ``Wisconsin Shipwreck Coast National Marine
Sanctuary (WSCNMS).''
C. Sanctuary Boundary
NOAA designates a 726 square nautical mile (962 square mile) area
of Lake Michigan waters off Ozaukee, Sheboygan, Manitowoc, and Kewaunee
counties of Wisconsin as WSCNMS. The sanctuary's western/shoreward
boundary is defined by the Low Water Datum as defined by the
International Great Lakes Datum, 1985 (IGLD 1985) as an elevation of
577.5 ft above sea level, while the lakeward boundary is drawn to
include all known shipwrecks between the shipwreck America to the north
and shipwreck Northerner to the south. The sanctuary extends
approximately 16 miles offshore at its greatest extent. Within this
boundary are 36 known shipwrecks, including 21 on the National Register
of Historic Places. The harbors and marinas of Two Rivers, Manitowoc,
Sheboygan, and Port Washington are not included in the sanctuary
boundary, nor are federally authorized areas (channels). These are
channels that have been dredged by U.S. Army Corps of Engineers
adjacent to the ports and harbors. The detailed legal sanctuary
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 FEIS on page 4, and can also be
found at <a href="https://sanctuaries.noaa.gov/wisconsin/">https://sanctuaries.noaa.gov/wisconsin/</a>.
D. Definitions
NOAA is including a site-specific definition of ``sanctuary
resources'' for the WSCNMS to include only the underwater cultural
resources found in this area in accordance with the purpose of this
designation. The definition does not include biological and ecological
resources of the area. Creating this narrow, 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 site-specific definition for
WSCNMS at section 922.211(a). This is similar to the approach taken for
other national marine sanctuaries, such as Thunder Bay National Marine
Sanctuary, that do not make use of the full national ``sanctuary
resource'' definition. The WSCNMS definition of ``sanctuary
resources,'' located in section 922.211(a)(1), means all prehistoric,
historic, archaeological, and cultural sites and artifacts within the
sanctuary boundary, including all shipwreck sites. The term ``shipwreck
site'' is further defined as any historic sunken watercraft, its
components, cargo, contents, and associated debris field. This rule
also 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.
E. Co-Management of the Sanctuary
To enhance opportunities and build on existing protections, NOAA
and the State of Wisconsin will collaboratively manage the sanctuary.
NOAA establishes the framework for co-management at section 922.212 and
will develop a Memorandum of Agreement (MOA) with the state to provide
greater details of co-management. NOAA and the state may develop
additional agreements as necessary that would provide details on the
execution of sanctuary management, such as activities, programs, and
permitting programs that can also be updated to adapt to changing
conditions or threats to the sanctuary resources. Any proposed changes
to sanctuary regulations or boundaries will be jointly coordinated with
the state and will be subject to public review as mandated by the NMSA
and other Federal statutes.
F. Prohibited and Regulated Activities
1. Injuring Sanctuary Resources
The regulations for WSCNMS prohibit any person from 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 prohibition
supplements existing Wisconsin laws that prohibit damaging shipwrecks.
Wisconsin State statute (Wis. Stat. Sec. 44.47), which has been in
effect since 1991 and is related to removing or damaging shipwrecks,
currently applies to the area and will continue to apply to these
resources after sanctuary designation.
2. Grappling Into or Anchoring on a Shipwreck Site
The regulations for WSCNMS prohibit the use of grappling into or
anchoring on shipwreck sites to protect fragile shipwrecks within the
sanctuary from damage. To provide the public adequate notice of
shipwreck locations, NOAA will prepare and make available sanctuary
maps with known and suspected shipwreck sites. Shipwreck sites not
listed on maps (i.e., new discoveries as they occur) are considered
sanctuary resources and the prohibition on anchoring and grappling
still apply. The final management plan includes activities related to
surveying the sanctuary area and locating additional shipwreck sites.
As appropriate, NOAA will update the maps as new shipwreck sites are
found.
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 priority
sanctuary shipwreck sites. The moorings will provide a secure, visible,
and convenient anchoring point for users, and eliminate the need for
grappling. NOAA intends to publish guidelines on best practices for
accessing shipwrecks when mooring buoys are not present. An example of
a best practice could include instructions on using a weighted line and
surface float to mark a wreck for divers to descend and ascend. This
weighted line would not be
[[Page 32741]]
used as an anchoring line; it would need to be continuously tended and
removed before the dive boat left the area.
NOAA is postponing the effective date for this prohibition for
October 1, 2023. The purpose of this postponement is to provide NOAA
with adequate time to develop a shipwreck mooring program and plan,
begin installing mooring buoys, seek input from the dive community
about the mooring buoy plan, and develop best practices for accessing
shipwrecks when mooring buoys are not present. During this period, NOAA
will also work with stakeholders to explore the concept of permitting
certain prohibited activities (e.g., allowing divers to attach mooring
lines directly to some shipwreck sites). All other regulations would
remain in effect during this postponement.
3. Interfering With Investigations
The regulations for WSCNMS prohibit interfering with sanctuary
enforcement activities. This regulation will assist in NOAA's
enforcement of the sanctuary regulations and strengthen sanctuary
management.
4. Exemption for Emergencies and Law Enforcement
The regulations for WSCNMS exempt from the three prohibitions
described above activities that respond to emergencies that threaten
lives, property, or the environment, or are necessary for law
enforcement purposes.
G. Emergency Regulations
As part of the designation, NOAA will have the authority to issue
emergency regulations for this sanctuary. Emergency regulations will be
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. NOAA will only
issue emergency regulations that address an imminent risk for a fixed
amount of time for a maximum of 6 months, which can be extended a
single time for not more than an additional six months. Emergency
regulations will only be exempted from notice and comment requirements
under Administrative Procedures Act when the agency ``for good cause
finds (and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.'' A
full rulemaking process must be undertaken, including a public comment
period, to consider making an emergency regulation permanent. NOAA
modifies the national regulations at Sec. 922.44 to include WSCNMS in
the list of sanctuaries that have site-specific regulations related to
emergency regulations, and adds detailed site-specific emergency
regulations to the WSCNMS regulations at Sec. 922.214.
H. General Permits, Certifications, Authorizations, and Special Use
Permits
1. General Permits
The regulations for WSCNMS include the authority for NOAA to issue
permits to allow certain activities that would otherwise violate the
prohibitions listed and described above. Similar to other national
marine sanctuaries, NOAA considers these permits for the purposes of
education, research, or management. To address the above additions to
the ONMS general permit authority for WSCNMS, NOAA is amending
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 Sec. 922.215 in subpart T titled ``Permit procedures and review
criteria'' that would address site-specific permit procedures for
WSCNMS.
2. Certifications
The regulations for WSCNMS include language at section 922.216
describing the process by which NOAA may certify pre-existing
authorizations or rights within the WSCNMS area. Here the term pre-
existing authorizations or rights refers to any leases, permits,
licenses, or rights of subsistence use or access in existence on the
date of sanctuary designation (see 16 U.S.C. 1434(c); 15 CFR 922.47).
Consistent with this definition, WSCNMS regulations at section 922.216
states that certification is the process by which these pre-existing
authorizations that violate sanctuary prohibitions may be allowed to
continue, and the sanctuary may regulate the exercise of the pre-
existing authorizations consistent with the purposes for which the
sanctuary was designated. Applications for certifying pre-existing
authorizations must be received by NOAA within 180 days of the Federal
Register notice announcing the effective date of the designation.
3. Authorizations
NOAA may also allow an otherwise prohibited activity to occur in
the sanctuary, 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 Sec. 922.213. As such, NOAA is amending the regulatory
text at Sec. 922.49 to add reference to subpart T.
4. 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 to: (1) Establish
conditions of access to and use of any sanctuary resource; or (2)
promote public use and understanding of a sanctuary resource. The
activities that qualify for a SUP are set forth in the Federal Register
(82 FR 42298; September 7, 2017). 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 WSCNMS 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. On November 19, 2015, NOAA published public
notice (80 FR 72415) of the methods, formulas and rationale for the
calculations it will use in order to assess fees associated with SUPs.
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.
I. Other Conforming Amendments
The general regulations in part 922, subpart A, and part 922,
subpart E, for regulations of general applicability are amended by this
action so that the regulations are accurate and up-to-date. The
following 10 sections are updated to reflect the increased number of
sanctuaries or to add subpart T to the list of sanctuaries:
<bullet> Section 922.1 Applicability of regulations
<bullet> Section 922.40 Purpose
<bullet> Section 922.41 Boundaries
<bullet> Section 922.42 Allowed activities
[[Page 32742]]
<bullet> Section 922.43 Prohibited or otherwise regulated activities
<bullet> Section 922.44 Emergency regulations
<bullet> Section 922.47 Pre-existing authorizations or rights and
certifications of pre-existing authorizations or rights
<bullet> Section 922.48 National Marine Sanctuary permits--application
procedures and issuance criteria
<bullet> Section 922.49 Notification and review of applications for
leases, licenses, permits, approvals, or other authorizations to
conduct a prohibited activity
<bullet> Section 922.50 Appeals of administrative action
J. Terms of Designation
Section 304(a)(4) of the 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.
NOAA is establishing terms of designation that describe the
geographic area, resources, and activities as described above. NOAA is
adding the terms of designation language as appendix B to the WSCNMS
regulations at 15 CFR part 922, subpart T.
Upon further examination, NOAA has decided to remove Article V.,
Section 2 from the proposed Terms of Designation. NOAA proposed this
provision to incorporate the generally prevailing judicial precedent
and regulatory practice that, to the extent two laws appear to conflict
(e.g., two laws apply to the same activity), the courts or the agencies
will attempt to harmonize them to give effect to both laws if possible.
See, e.g., Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 951 F.3d
1142, 1156 (9th Cir. 2020). NOAA has, however, determined that this
proposed provision is not a fundamental component of the Terms of
Designation (e.g., the establishment of the sanctuary) or the
regulatory scheme finalized herein. In the face of any potential
conflicts of federal laws in the waters of the sanctuary, such as where
a sanctuary prohibition may interfere with Federal safety laws, NOAA
would work with that agency to ensure that the purpose of each law is
given fullest effect. The remaining language in that section
referencing pre-existing authorizations such as a lease, license or
permit is found in section 304(c) of the NMSA, so the removal of the
language in the Terms of Designation does not change NOAA's
authorities. NOAA will coordinate with the State of Wisconsin regarding
any such authorization as specified in Sec. 922.212 of these
regulations regarding co-management of the site.
IV. Response to Comments
During the January 2017 through March 31, 2017, public review
comment period, NOAA received 566 written comments on the DEIS/DMP and
proposed rule. Approximately 400 people attended four public meetings
during the week of March 13, 2017, in the Wisconsin towns of Algoma,
Manitowoc, Sheboygan, and Port Washington, with 75 people providing
verbal comments. Four petitions were submitted with public comments:
One with 163 signatures of individuals supporting the Wisconsin
sanctuary proposal exclusively; one with 128 businesses supporting both
the Wisconsin and Maryland (Mallows Bay National Marine Sanctuary)
sanctuary proposals; and two petitions with 51 total signatures in
opposition to the Wisconsin sanctuary.
For the purposes of managing responses to public comments, NOAA
grouped similar comments by theme. These themes align with the content
of the draft proposed rule that identified the purposes and needs for a
national marine sanctuary, and the draft management plan that
identified the proposed non-regulatory programs and sanctuary
operations. The themes are identified below, followed by NOAA's
response.
Positive Impact on Communities Through Tourism, Economic Development,
Education, and Research
1. Comment: NOAA received many comments supporting the opportunity
for a new sanctuary to promote tourism to coastal communities.
Commenters believe that national exposure and increased cooperation
among the communities will result in increased numbers of visitors to
the region.
Response: NOAA agrees that Wisconsin Shipwreck Coast National
Marine Sanctuary (WSCNMS) would create positive impacts to tourism. The
partnerships developed between NOAA, the State of Wisconsin, and the
communities during the nomination and designation processes will help
in achieving this goal. The WSCNMS final management plan includes a
strategy and action plan that supports this goal.
2. Comment: NOAA received many comments supporting educational
opportunities for a sanctuary to work with local museums and school
districts to engage people in Wisconsin's maritime history and the
Great Lakes.
Response: National marine sanctuaries across the system have robust
education programs. It is a priority for NOAA to educate and engage
people in national marine sanctuaries. The final management plan
includes strategies and action plans to develop education programs with
state and community partners that will provide a variety of educational
experiences. The WSCNMS final management plan includes actions that
support this goal.
3. Comment: NOAA received many comments highlighting the
opportunity for a new sanctuary to promote Wisconsin's maritime
heritage.
Response: The sanctuary designation is an opportunity to partner
with the State of Wisconsin and communities to tell the many stories of
centuries of exploration, travel, and commerce on the Great Lakes. The
sanctuary provides a platform to share Wisconsin's stories with local,
regional, and national audiences. The WSCNMS final management plan
includes actions that support this goal.
4. Comment: NOAA received several comments by researchers
expressing interest in partnering with the sanctuary on both
archaeological and multidisciplinary projects.
Response: Across the nation, national marine sanctuaries partner
with researchers to explore, document, and better understand sanctuary
resources. NOAA expects to attract and partner with a variety of
researchers in the sanctuary, and the final management plan includes
actions that support this goal.
Proposed Sanctuary Boundary
5. Comment: NOAA received many comments from lakeshore landowners
expressing concern about the proposal to use the ordinary high water
mark (OHWM) as the sanctuary's western/shoreline boundary. The key
concerns were: (1) That this boundary choice would negatively impact
riparian rights of lakeshore property owners; (2) that the proposal
would allow public access to areas below the OHWM where riparian owners
currently have exclusive access; (3) that using the OHWM as the
sanctuary's western boundary would impact property values because the
land would change from state to federal ownership; and (4) that, more
generally, using the OHWM was seen as federal overreach and would
[[Page 32743]]
result in more ``red tape'' and permitting.
Response: NOAA's proposal to designate a national marine sanctuary
recognizes the state's sovereignty over its waters and submerged lands
and does not change state ownership of public bottomlands; that is, no
federal ownership of Wisconsin public lands is created by the sanctuary
designation. Likewise, NOAA's proposal to designate a national marine
sanctuary would not change existing riparian rights of the property
owners of Wisconsin, nor would it change state law regarding public
access to the area in which shoreline property owners have exclusive
access. NOAA proposed the OHWM in the draft designation because it
would be consistent with the state's regulatory boundary. Furthermore,
after considering public comments about using the OHWM as the western/
shoreline sanctuary boundary, NOAA is now proposing adopting the low
water datum (LWD) as that boundary. NOAA is doing so because the LWD is
more lakeward than the OHWM, and would move the sanctuary boundary
``lower down the beach'' than the OHWM, thereby removing much of the
beach from NOAA jurisdiction and related riparian rights concerns.
Notably, the LWD is set at an elevation of 577.5 feet. The lowest
recorded water level on Lake Michigan is 576.02 feet. This effectively
places the sanctuary boundary nearly at the all-time low water level
mark for Lake Michigan. Since riparian owners have exclusive use of the
beach between the OHWM and the water's edge, using the LWD effectively
places the sanctuary boundary at the most lakeward extent of this area
as practicable. See Section 3.3.2 in the final environmental impact
statement for a detailed discussion of the difference between OHWM and
LWD.
NOAA realizes that proposing using the LWD rather than the OHWM
differs from its original proposal in that it leaves a portion of the
shoreline (the area between the OHWM and LWD) outside of sanctuary
management; any cultural resources found in this area would not benefit
from sanctuary resource protection. NOAA and the State of Wisconsin are
not currently aware of shipwrecks in the sanctuary that come up to the
OWHM, but depending on lake levels, it is possible that shipwrecks or
parts of shipwrecks that are currently buried can become unburied. The
Wisconsin Historical Society has determined that several undiscovered
shipwrecks may lie in the surf zone. If a cultural resource was
discovered between the OHWM and the LWD that resource would still be
under state jurisdiction because all land from the OHWM lakeward are
state bottomlands.
6. Comment: Certain industry stakeholders commented that NOAA
should use the low water datum as the shoreward boundary of the
sanctuary to ensure that the current beneficial practice of beach
nourishment using dredged materials is continued.
Response: NOAA agrees and proposes that the LWD should be used as
the sanctuary's landward boundary. In addition, NOAA recognizes in the
FEIS several activities important to commercial shipping, including
beach nourishment, and has not proposed regulations specifically
prohibiting use of dredge spoil within the sanctuary. Beach nourishment
using dredge spoil is already regulated by the USACE and the State of
Wisconsin. NOAA, through its co-management arrangement with the state
and relationship with USACE, intends to coordinate a response if a
particular renourishment project has the potential to injure known or
suspected cultural resources within the sanctuary.
7. Comment: NOAA received comments from industry stakeholders
stating that certain areas important to commercial shipping should be
excluded from the sanctuary. NOAA also received suggested clarifying
language to be included in the FEIS on the topic of dredging, and
questions about the impact of the designation on dredging.
Response: To ensure compatible use with commercial shipping and
other activities (such as dredging for commercial ship traffic), NOAA
in the DEIS excluded the ports, harbors, and marinas of Two Rivers,
Manitowoc, Sheboygan, and Port Washington from the sanctuary boundary.
In the FEIS, NOAA has also excluded federally authorized areas
(channels) from the sanctuary.
NOAA also included in Section 3.4.3.3 of the FEIS additional
language, as suggested by the USACE, that specifies the types of
activities important to commercial shipping. Specifically, ``. . .
routine operations and maintenance activities such as dredging, dredge
material placement (nearshore/beach nourishment), and breakwater
maintenance.'' Although NOAA would not regulate these activities per
se, the sanctuary prohibition on injuring a sanctuary resource would
ensure that these activities would not negatively impact underwater
cultural resources.
8. Comment: NOAA received several comments noting that the water's
edge should be used as the sanctuary's western/shoreline boundary.
Response: NOAA did not consider using the water's edge for a
boundary, because it would create a dynamic ``moving'' sanctuary
boundary where cultural resources were variously within or beyond the
sanctuary boundary, depending on lake levels at a given time. NOAA
proposes using the LWD as the sanctuary's western/shoreline boundary.
See Comment 5 for more information.
9. Comment: NOAA received several comments stating that the
sanctuary's western/shoreline boundary should be consistent with state
law.
Response: As indicated in the DEIS, NOAA selected the OHWM as the
landward boundary as its preferred alternative because it was
consistent with the state's jurisdiction for managing underwater
cultural resources. However, as indicated above in response to Comment
5, NOAA proposes to use the LWD as the sanctuary's landward boundary.
Addressing the public's concern about riparian interests outweighs the
benefit of an identical shoreline boundary.
10. Comment: NOAA received several comments asking how the
establishment of the sanctuary would impact the findings of the
Wisconsin Supreme Court case regarding property owner rights (Doemel v.
Jantz, 1923).
Response: Sanctuary designation would not change the interpretation
or application of the Wisconsin Supreme Court case (Doemel v. Jantz,
1923).
11. Comment: NOAA received a few comments urging use of a different
boundary, because no shipwrecks come up to the OHWM.
Response: Refer to Comment 5 above. This comment is addressed by
NOAA use of the LWD as the sanctuary's western/shoreline boundary.
12. Comment: NOAA received many comments supporting Boundary
Alternative B (1,260 square miles, includes additional waters off
Kewaunee County), which was larger than NOAA's preferred alternative in
the DEIS.
Response: NOAA's preferred boundary alternative includes one
shipwreck in Kewaunee County (schooner America), but does not include
additional waters off Kewaunee County. America is listed on the
National Register of Historic Places, supporting its inclusion in the
sanctuary and the aim of protecting nationally significant resources.
13. Comment: NOAA received one comment stating that Kewaunee County
should not be included because a diverse group of stakeholders has not
[[Page 32744]]
been involved to ensure there is no negative impact to the county. The
commenter noted it would be better to see first how the sanctuary
impacts the counties in NOAA's preferred boundary alternative.
Response: Overall, public comments from Kewaunee County were in
favor of including Kewaunee County. Additionally, NOAA held one of its
public comment meetings in Algoma (located in Kewaunee County), and any
member of the public could comment via online or mail. Based on an
evaluation of public comments and discussions with the State of
Wisconsin, NOAA's preferred boundary includes a small portion of
Kewaunee County waters which contains the county's only known shipwreck
(schooner America).
14. Comment: NOAA received one comment stating that no formal
comprehensive remote sensing surveys have been conducted within the
proposed boundary, which suggests more shipwrecks will be found in
Kewaunee County. Consequently, NOAA should consider adding the entire
county to the sanctuary boundary.
Response: Based on historical research by the Wisconsin Historical
Society, NOAA agrees that there is high potential for new historic
sites to be discovered in the entirety of waters off Kewaunee County.
Refer also to Comment 12.
NOAA's draft environmental impact statement published on January 9,
2017, includes a clarification that places the shipwreck Daniel Lyons
in Door County rather than Kewaunee County, leaving only one known
shipwreck in Kewaunee County (schooner America). This clarification was
made by the Wisconsin Historical Society when more accurate GPS
coordinates of the shipwreck became available.
15. Comment: NOAA received several comments supporting the addition
of the waters of Door County to the sanctuary, now or in the future.
Response: Because the addition of Door County would have been well
beyond the geographic scope of the originally nominated area, NOAA
chose not to include it in the final boundary.
16. Comment: NOAA received several comments asking for
clarification on why a large geographic area was required for the
protection of 37 shipwreck sites. In particular, one commenter asked
why NOAA did not propose creating a regulatory area around each
individual shipwreck.
Response: Research by the Wisconsin Historical Society suggests
that as many as 59 shipwrecks are yet to be discovered in the
sanctuary. Consequently, NOAA, in consultation with the State of
Wisconsin, chose to propose a management area that would include these
potential historic sites and facilitate resource management as these
new sites are discovered. This would ensure that newly discovered sites
are protected and managed under sanctuary regulations at the time of
discovery. Thunder Bay National Marine Sanctuary has used this
management approach successfully. The sanctuary area also reflects what
the State of Wisconsin put forth in its nomination to NOAA.
17. Comment: NOAA received a few comments expressing concern that
it would expand the boundaries at a later time without public input.
One comment suggested that the boundary could be expanded inland via
Lake Michigan watershed tributaries.
Response: If NOAA expanded the sanctuary's boundary in the future,
including via Lake Michigan watershed tributaries, that would
constitute a change in the sanctuary's terms of designation. Under the
National Marine Sanctuaries Act, a change in the terms of designation,
including a boundary change, would require the same process that was
undertaken for designation, including public notice and comment, public
hearings, preparation of an environmental impact statement, and review
periods for the governor and Congress. These statutory requirements
also include Section 304(b)(1), which provides the governor of
Wisconsin authority to certify that a term of a designation, including
a proposed boundary expansion, is unacceptable, and the expansion of
the boundary will not take effect in state waters. The State of
Wisconsin, as a co-manager, would be involved in all discussions about
proposed changes. Additionally, NOAA would follow the procedures of the
Administrative Procedure Act, requiring that adequate public notice and
opportunity for public comment be given for new regulations, including
boundary changes.
18. Comment: NOAA received a few comments stating that the agency
did not explain why the preferred boundary alternative was selected.
One comment asked if cost was a factor in choosing the smaller of the
two boundary alternatives.
Response: Chapter 3 of the DEIS and FEIS provide details regarding
NOAA's analysis of boundary alternatives. Cost is not a primary factor
in NOAA's selection of a boundary alternative.
Commercial Shipping (Non-Boundary) and Fishing
19. Comment: NOAA received several comments that the prohibition on
anchoring could be problematic for commercial vessels, and that NOAA
should publish both the known and potential locations of shipwreck
sites. A related comment noted that if the no-anchoring prohibition
extends to undiscovered shipwrecks, shippers might not be able to avoid
anchoring on a shipwreck if they do not know where it is, and as such,
all locations, known or approximated, should be published by NOAA in a
format accessible and useful to all mariners.
Response: Under the proposed regulations, anchoring within the
sanctuary is not prohibited. However, grappling into or anchoring on a
shipwreck site (sanctuary resource) is prohibited. This regulation is
narrowly worded to protect historic shipwreck sites from anchor damage,
while still allowing anchoring inside the sanctuary outside of these
discrete areas. The prohibition does not apply to any activity
necessary to respond to an emergency threatening life or the
environment.
Existing state regulations already prohibit damaging historic
shipwrecks sites within the area proposed as a sanctuary. To help
vessels avoid inadvertently anchoring on known shipwrecks sites, NOAA
will publish maps with coordinates of known and estimated shipwreck
locations. It should be noted that historical research on shipwrecks
yet to be found (potential/estimated shipwrecks) only approximates a
potential shipwreck location. This information is currently available
via the UW Sea Grant and Wisconsin Historical Society maintained
website <a href="http://www.wisconsinshipwrecks.org">www.wisconsinshipwrecks.org</a>. NOAA will work with the state to
update and publish this information and share directly with
stakeholders such as the Lake Carriers' Association. Additionally, NOAA
will prioritize its sonar-based cultural resource surveys in areas
where commercial shipping vessels are likely to anchor, such as off
Manitowoc. This will help locate cultural resources and provide
information useful to both the sanctuary and commercial shippers.
20. Comment: NOAA received a comment requesting that language be
added to Section 922.213(b) that not only considers emergency
situations but adds: ``. . . or anchoring to prevent unsafe conditions,
as determined by the vessel's master and recorded in the vessel's
official log book.''
Response: The proposed regulations provide for an exemption from
the prohibitions in unsafe conditions. The proposed regulations
specify, at 15 CFR 922.213(b): ``The prohibitions in paragraphs (a)(1)
through (3) of this
[[Page 32745]]
section do not apply to any activity necessary to respond to an
emergency threatening life, property or the environment . . .'' As
such, NOAA believes that anchoring to prevent unsafe conditions is
covered under current sanctuary regulations.
21. Comment: NOAA received one comment expressing concern that if
NOAA broadens the scope of the Wisconsin sanctuary beyond maritime
heritage resources, this would negatively impact the ability of
shippers to conduct ballast water exchange.
Response: NOAA is committed to ensuring that the creation of the
sanctuary would support businesses and organizations that use the lake
and surrounding ports. NOAA has not proposed any regulations
prohibiting ballast water exchange in the sanctuary. Also, the Coast
Guard Authorization Act of 2015 (Pub. L. 114-120) prevents the Coast
Guard and U.S. Environmental Protection Agency from prohibiting ballast
water exchange in national marine sanctuaries in the Great Lakes that
protect maritime heritage resources. Ballast water operations would
continue as currently conducted. In terms of future changes to the
sanctuary's scope beyond underwater cultural resources, such a change
would require a public process similar to the original designation,
thereby affording commercial interests and the public an opportunity to
comment on how any change in the scope might affect ballast water
exchange.
22. Comment: NOAA received several comments stating that the
sanctuary would have a negative impact on shipping and could result in
businesses being closed. The comments indicated that the proposed
sanctuary, as a cultural asset, should not encumber critical commercial
activity related to maritime transportation into Wisconsin ports and
through Wisconsin waters. Current legal navigational practices should
continue to be allowed.
Response: NOAA's proposal does not include restrictions to
shipping. The proposal excludes the ports, marinas, and harbors of Two
Rivers, Manitowoc, Sheboygan, and Port Washington from the sanctuary
boundaries to avoid any unintended consequences of sanctuary
designation on those operations. In addition, NOAA is proposing to
eliminate the federally authorized areas (channels) from the sanctuary.
23. Comment: Several commenters asked if the sanctuary designation
gives NOAA the right to regulate commercial and recreational fishing.
One comment indicated that federal regulations as a result of sanctuary
designation should not affect the ability of commercial fishermen to
conduct their fishing operations (particularly in ``Zone 3'').
Response: Sanctuary regulations and terms of designation are
narrowly defined to protect underwater cultural resources, and under
the current terms of designation for WSCNMS, NOAA does not regulate
commercial or recreational fishing activities. There are no
restrictions on where fishing activities can occur or what gear
fishermen can use, as long as the fishing activities do not injure
underwater cultural resources. NOAA would need to amend the terms of
designation through a public process in order to regulate commercial
and recreational fishing. Through its ongoing lakebed mapping surveys,
the sanctuary will work with commercial fishermen to identify and share
shipwreck locations to help avoid net entanglements.
Definitions, Fines, Enforcement, and Scope of Regulations
24. Comment: NOAA received a comment indicating that the definition
of sanctuary resource is too broad and could mean any ``debris'' (e.g.,
beach glass, etc.) along the beach and below the ordinary high water
mark. This could lead to people being fined for gathering such items
along the beach.
Response: NOAA is proposing the LWD as the sanctuary's landward
boundary. Consequently, the area between the OHWM and the LWD (i.e.,
most of the beach area) is not included in the preferred alternative
for the sanctuary. Under the preferred alternative, cultural resources
found along the beach between the OHWM and the LWD are not subject to
the sanctuary regulations, but will remain subject to state regulation.
25. Comment: One commenter asked whether NOAA could impose legally
enforceable restrictions on lake activities that are currently
permissible by state authorities.
Response: No current state laws would be superseded by the proposed
national marine sanctuary. The NMSA gives NOAA the authority to manage
national marine sanctuaries in a manner that complements existing
regulatory authority (16 U.S.C. 1431(b)(2)). Prior to designation,
Section 304(6)(1) of the NMSA provides the governor with authority to
certify that the designation or terms thereof are unacceptable, and
preclude the designation or terms thereof from taking effect in state
waters (16 U.S.C. 1434(6)(1)). This feature of the NMSA ensures the
harmony of federal and state regulations, as well as provides the
states with final approval of the designation and its regulations.
For example, one of the proposed Wisconsin sanctuary regulations,
developed in consultation with the State of Wisconsin, is to prohibit
anchoring at shipwreck sites. While there is no state prohibition on
this activity, it is a violation of state law to damage shipwrecks,
including damage from anchoring. To facilitate public access to
shipwrecks and to eliminate the need for anchoring at these often
fragile sites, NOAA would install moorings at these sites. In this way,
the sanctuary strengthens and complements state regulations and
facilitates public access through a combination of regulation and
proactive resource protection measures.
26. Comment: NOAA received questions on who enforces sanctuary
regulations, fines associated with violations of sanctuary regulations
(including how the fines are calculated), examples of fines, and what
happens to the funds NOAA receives from violations.
Response: NOAA views law enforcement as just one aspect of a
sanctuary's comprehensive resource management strategy. Developing a
plan to facilitate voluntary compliance with sanctuary regulations is
another element of proactive enforcement included in the proposed
sanctuary's draft management plan.
NOAA's Office of Law Enforcement enforces all of NOAA's natural and
cultural resource laws, while also working with the U.S. Coast Guard
(USCG) to enforce sanctuary regulations in the Great Lakes.
Violations of federal sanctuary regulations are violations of the
NMSA, a federal statute. Civil violations are governed under NOAA's
civil procedure regulations found at 15 CFR part 904. NOAA's Office of
General Counsel assesses civil penalties in accordance with the nature,
gravity, and circumstances of a violation. NOAA assesses civil
penalties through the issuance of a notice of violation and assessment
of civil penalty (NOVA). NOAA General Counsel publishes its penalty
policy online to provide notice to the public about how it calculates
penalties in any given case and to provide information about a typical
penalty for a given type of violation. That information can be found at
<a href="https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf">https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf</a>.
Persons charged with civil violations are entitled to an
opportunity for an administrative hearing before an administrative law
judge (ALJ), and may seek reconsideration of the ALJ's ruling and
appeal of the ALJ decision to the NOAA administrator. Persons may seek
judicial review of the administrator's
[[Page 32746]]
decision before a federal district court. Criminal violations are
referred to the U.S. Department of Justice for prosecution.
NOAA's Office of General Counsel does not produce an annual report
detailing violations and fines levied. However, administrative
decisions regarding NOAA violations that are decided by an ALJ and/or
decided on appeal to the NOAA administrator are published at <a href="http://www.gc.noaa.gov/enforce-office6.html">http://www.gc.noaa.gov/enforce-office6.html</a>.
Under the NMSA (16 U.S.C. 1437(f)), amounts received from civil
penalties must be used by NOAA in the following priority order: First,
to manage and improve the sanctuary with respect to which the violation
occurred that resulted in the penalty (e.g., used to restore any damage
to a vessel caused by violating the anchoring restrictions); second, to
pay a reward to a person who furnishes information leading to the civil
penalty; or, third, to manage and improve any other national marine
sanctuary.
27. Comment: NOAA received a comment asking about the definition of
``interfering with'' federal investigations and how NOAA would
determine if an action constitutes interference.
Response: The NOAA Office of Law Enforcement, along with state
officers where authorized under cooperative enforcement agreements,
monitor compliance and investigates potential violations of the NMSA
and its regulations. The NMSA specifies the authorities of those
officers and agents, which includes general authorities to investigate
violations of the statute, regulations, or a permit issued pursuant to
the NMSA; seize evidence of violations or sanctuary resources taken in
violation of the NMSA; and exercise other lawful authorities as sworn
federal law enforcement authorities. Sanctuary regulations would
prohibit interfering with these investigations.
Violations of the NMSA are primarily handled as civil
administrative matters, pursuant to the Administrative Procedure Act.
NOAA assesses civil penalties through the issuance of a NOVA. NOAA's
Office of General Counsel assesses civil penalties in accordance with
the nature, gravity, and circumstances of a violation. NOAA General
Counsel publishes its penalty policy on its website to provide notice
to the public as to how it calculates penalties in any given case and
to provide information as to a typical penalty for a given type of
violation. That information can be found at <a href="https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf">https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf</a>.
28. Comment: Several comments indicated that because NOAA has the
authority to regulate a wide variety of resources through the National
Marine Sanctuaries Act, there is concern that in the future NOAA will
expand its authority beyond protecting maritime heritage resources.
Response: Refer to comment 21 above.
29. Comment: NOAA received a comment asking what happens if a
modern vessel sinks or wrecks in the sanctuary boundaries. Does the
owner of the sunken property get to salvage his/her vessel or does this
become a sanctuary resource?
Response: Current salvage rules and regulations would continue to
apply within WSCNMS. A recently sunken vessel would not be included in
the definition of ``sanctuary resources'' which means ``all
prehistoric, historic, archaeological, and cultural sites and artifacts
within the sanctuary boundary, including all shipwreck sites.''
Additionally, ``shipwreck site'' means ``any historic sunken
watercraft, its components, cargo, contents, and associated debris
field.''
NOAA revised the definition in Sec. 922.211(a)(2) for ``shipwreck
site'' by adding ``historic'' to clarify its focus on historic
shipwrecks (i.e., not all shipwrecks, but those that demonstrate an
important role in or relationship with maritime history). This addition
specifically responded to concerns about defining recent or
contemporary sunken craft or objects as sanctuary resources. For the
purposes of the final rule, ``historic'' takes its definition from
``historical resource'' located in Sec. 922.3 of the generally
applicable sanctuaries regulations.
30. Comment: Several commenters indicated that shipwrecks are not
mentioned in the 1972 Marine Protection, Research, and Sanctuaries Act,
so NOAA does not have the authority to designate a ``shipwreck''
sanctuary.
Response: The NMSA expressly provides that ``the Secretary may
designate any discrete area of the marine environment as a national
marine sanctuary . . . (if) the area is of special national
significance due to its conservation, recreational, ecological,
historical, scientific, cultural, archaeological, educational, or
esthetic qualities'' (16 U.S.C. 1431(a)(2)).
31. Comment: One commenter requested to know what NOAA means by the
term ``lakebottom associated with underwater cultural resources.''
Response: NOAA did not propose any regulation containing the
language cited by the commenter.
32. Comment: A few commenters suggested that NOAA should not take
away the public's right to use metal detectors.
Response: NOAA is not proposing to prohibit metal detecting in the
sanctuary. In addition, the area between the OHWM and the LWD (where
metal detecting on the beach would likely take place) is not included
in the sanctuary boundary.
33. Comment: One commenter raised concerns that NOAA would prohibit
exploration for and development of minerals or other natural resources
in the proposed sanctuary.
Response: NOAA is not proposing to prohibit natural resources
exploration and development in the sanctuary. The regulations are
narrowly defined to protect underwater cultural resources. There are no
restrictions to natural resources exploration and development as long
as these activities do not injure underwater cultural resources or
otherwise conflict with regulations specific to WSCNMS.
34. Comment: One commenter asked if the proposed sanctuary could
ever be abandoned or decommissioned.
Response: Although the NMSA does not contemplate de-designation of
a national marine sanctuary, NOAA engages closely with the state and
public to review and revise its sanctuary management plan every five
years. The management plan prioritizes resource management goals and
describes actions by NOAA and its partners to accomplish them. The plan
encompasses all non-regulatory programming--research, resource
protection, education, outreach, volunteers, operations--that protects
the cultural resources of the sanctuary while supporting responsible
uses and enjoyment. A full management review process may take two to
three years and involve several opportunities for public participation
through scoping and review and comment on a draft and final plan. The
Sanctuary Advisory Council would have a key role in the management plan
review process.
35. Comment: A few commenters requested that sanctuary regulations
protect natural and biological resources in the Great Lakes ecosystem.
Comments suggested regulations to prevent wastewater discharges,
discharge of mercury and other toxic materials, risks from aging
infrastructure, spread of invasive species, and other risks to wildlife
and habitat.
Response: This is beyond the scope of NOAA's stated need for
action, which focused on the protection and interpretation of
nationally significant underwater cultural resources.
[[Page 32747]]
36. Comment: NOAA received comments asking whether the sanctuary
would create any additional restrictions or regulatory requirements
related to dredging, pier structure maintenance, or extension of pier
structures, and if local entities would require NOAA permission to
install a new water intake line into Lake Michigan or to continue
grooming beaches, including areas below the OHWM. A related comment
requested that all necessary maintenance activities regarding Lake
Michigan water intakes should be allowed to proceed uninhibited within
the sanctuary boundaries.
Response: WSCNMS regulations are narrowly focused on protecting
underwater cultural resources. If an activity does not injure these
sanctuary resources, it is not restricted or prohibited, and does not
require a sanctuary permit. Dredging, pier construction and
maintenance, and other construction activities are not expressly
prohibited activities under the proposed regulations. However, should
these types of activities violate the sanctuary prohibition on
``moving, removing, recovering, altering, destroying, possessing, or
otherwise injuring'' a resource, they would be prohibited.
Activities mentioned in this comment are already regulated by state
and other federal entities. Section 106 of the National Historic
Preservation Act requires the State of Wisconsin to identify known and
potential historic resources that may be impacted by dredging and other
activities that affect the lakebed. NOAA, through its co-management
arrangement with the state and through the consultation requirement for
federal agencies under the NMSA Section 304(d), would coordinate its
response, including potential permitting and Section 106 consultation,
when historic/cultural resources may be impacted.
As for grooming beaches, NOAA proposes to adopt a boundary of the
LWD, which will effectively exclude beaches from the boundaries of the
sanctuary.
37. Comment: NOAA received a comment requesting that it refrain
from depicting the national marine sanctuary on Federal Aviation
Administration's aeronautical charts to avoid confusion and
misinterpretation of the area by general aviation pilots.
Response: NOAA is not proposing including overflight restrictions
as part of the sanctuary prohibitions, and not proposing that the
sanctuary be depicted on aeronautical charts.
38. Comment: NOAA received one comment that the proposed sanctuary
overlaps the boundaries of a restricted area (R-6903) used by the Volk
Field Combat Readiness Training Center. In the unlikely event that the
Wisconsin Air National Guard or users of R-6903 would need to conduct
some sort of unconventional and/or kinetic operation in R-6903, close
coordination with NOAA and the Federal Aviation Administration would be
a necessity.
Response: NOAA agrees and will coordinate with the Air National
Guard to ensure compatible use of the sanctuary.
39. Comment: NOAA received a comment asking if the sanctuary would
impact municipal lakebed grants.
Response: No. The sanctuary proposal recognizes the state's
sovereignty over its waters and submerged lands, including any state
lakebed leases.
Public Review Process, State Legislature Involvement, State Role/
Authority
40. Comment: NOAA received a comment stating that it did not
provide enough time for the public to comment and did not provide the
public with enough information about the proposed sanctuary. NOAA also
received one comment asking NOAA to hold a public session to help the
public understand the sanctuary proposal.
Response: NOAA held an 81-day public comment period, which exceeds
the comment period generally recommended under Executive Order 12866
and the 45-day required comment period for a DEIS under NEPA, to allow
the public time to review the proposal and provide comments. NOAA also
held four public meetings to discuss the proposal and gather public
comments. These meetings were held in four cities along the coastal
area to ensure public access. NOAA also published a Federal Register
notice and a website (<a href="http://sanctuaries.noaa.gov/wisconsin/">http://sanctuaries.noaa.gov/wisconsin/</a>) with the
proposed sanctuary information for the public, meeting NMSA
notification requirements. Additionally, NOAA issued a press release
and received coverage in the local, regional, and national press. NOAA
staff presented at city council meetings in Two Rivers, Sheboygan, Port
Washington, and Mequon, and at county council meetings in Sheboygan and
Ozaukee counties. A timeline of the sanctuary designation process can
be found in the FAQ section at <a href="https://sanctuaries.noaa.gov/wisconsin/">https://sanctuaries.noaa.gov/wisconsin/</a>.
41. Comment: NOAA received several comments asking how the state
government is involved in the sanctuary designation and how a sanctuary
designation can be done without the state legislature's involvement.
Response: Throughout the sanctuary designation process, NOAA worked
closely with the Wisconsin Historical Society, Wisconsin Department of
Natural Resources, Wisconsin Coastal Management Program, Wisconsin
Department of Transportation, Wisconsin Department of Tourism,
Wisconsin Public Service Commission, and the Wisconsin Public Lands
Commission. Should NOAA and the Wisconsin governor ultimately concur on
the designation, both NOAA and the state would co-manage WSCNMS.
Furthermore, in national marine sanctuaries that include state
waters, the NMSA provides the governor of the state with the
opportunity to certify to the Secretary of Commerce that the
designation or any of its terms is unacceptable (i.e., objects), in
which case the designation or the unacceptable term shall not take
effect.
42. Comment: Many commenters suggested that a federal government
program or involvement in Wisconsin is an intrusion into sovereign
state waters. Designation of the sanctuary will result in the loss of
state control of Lake Michigan, and a takeover of both management and
regulation of the Wisconsin waters by the federal government.
Response: Wisconsin Shipwreck Coast National Marine Sanctuary will
not change the ownership or control of state lands or waters; that is,
no loss of state sovereignty will occur as a result of designation of a
national marine sanctuary. The state's jurisdiction and rights will be
maintained and NOAA will not intrude upon or change existing state or
local authorities. All existing state laws, regulations, and
authorities will remain in effect. The state will maintain ownership of
the shipwrecks within the sanctuary.
43. Comment: NOAA received several comments stating that while the
proposal highlights co-management with the State of Wisconsin, the
governor only gains power through Section 922.214, Emergency
Regulations. NOAA should consider allowing the governor to hold form of
a veto, or check and balanced action, or at least part of the leasing
or licenses action.
Response: The co-management of the sanctuary provides a number of
opportunities for the State of Wisconsin, either through the governor
or by state agencies, to participate in the management of the
sanctuary. For sanctuaries in state waters, pursuant to the National
Marine Sanctuaries Act 304(b)(1), whenever a sanctuary is proposed to
be designated, or the terms of designation changed, the governor
[[Page 32748]]
has the opportunity to certify to the Secretary of Commerce that the
designation or any of its terms is unacceptable, in which case the
designation or the unacceptable term shall not take effect.
The memorandum of agreement between NOAA and the State of Wisconsin
will describe the details of co-management. The governor and state
agencies will have considerable latitude in shaping the future of the
state's co-management framework with NOAA, including the type of
regulations that would apply to WSCNMS.
44. Comment: NOAA received a comment asking if NOAA does not
ultimately establish a sanctuary, where the factors affecting this
decision will be published. Will these factors be made a part of public
record for future awareness and decision-making?
Response: Should NOAA decide not to designate a sanctuary, it would
publish a notice in the Federal Register to withdraw the proposed rule.
The Federal Register notice would describe the reasons for NOAA's
decision.
45. Comment: NOAA received a comment asking if it would ever have
any accountability to existing state government lake regulations or
laws, specifically those of the Wisconsin Department of Natural
Resources.
Response: The NMSA gives NOAA the authority to manage national
marine sanctuaries in a manner that complements existing regulatory
authority (16 U.S.C. 1431(b)(2)). In a co-management framework with a
respective state government, NOAA and the state would work
collaboratively on the proposed sanctuary. A memorandum of agreement
between NOAA and the state would ensure that state and federal
authorities are harmonized and coordinated. In addition, during the
designation process and any future changes to the terms of designation,
the governor has the authority to certify as unacceptable all or parts
of the designation, which prevents the unacceptable terms from taking
effect in state waters (16 U.S.C. 1434(b)(1)).
Diver Access, Recreational Anchoring, Mooring Buoys, and Resource
Management
46. Comment: NOAA received one comment about the importance of NOAA
defining what it means to not be able to anchor in areas ``associated
with a shipwreck.''
Response: The definition of ``shipwreck site'' in the WSCNMS
regulations at 15 CFR 922.211(a)(2) means ``any historic sunken
watercraft, its components, cargo, contents, and associated debris
field.'' Debris fields associated with shipwrecks sites can have
significant archaeological value, including the existence of fragile
ship structure and artifacts. By ``associated debris field,'' NOAA
means all cultural material adjacent to a shipwreck site, but not
necessarily contiguous with it. Each shipwreck site is unique, and the
resultant debris field forms through a variety of site-specific factors
including depth, circumstances of sinking, and other factors. As more
data are gathered (e.g., through sonar surveys) on individual
shipwrecks sites and associated debris fields, NOAA will publish
information that helps visitors anchor outside of areas that could be
damaged.
47. Comment: NOAA received several comments indicating that divers
are a small percentage of the population, and questioned why a
sanctuary should be established to serve such a small group.
Response: As demonstrated in many sanctuaries, much of the public
often benefits from the sanctuary through diving, kayaking, and
snorkeling, as well as through museums, interpretive displays,
websites, formal and informal educational programs, enhanced tourism
opportunities, multidisciplinary research opportunities, and other
unique sanctuary-related partnerships and activities. The sanctuary's
final management plan outlines priorities in these areas for the first
five years of the sanctuary's operation. These priorities substantially
expand the public benefit of the sanctuary beyond that of divers.
48. Comment: NOAA received one comment that if NOAA does not
install mooring buoys on all shipwrecks, the prohibition on anchoring
will be detrimental to public access.
Response: NOAA promotes public access to shipwrecks, and believes
this is a fundamental way to increase their cultural and recreational
value. Permanent moorings are an important resource protection measure
that eliminates the need to grapple or anchor into the often fragile
sites. This priority is described in the final management plan as
Strategy RP-3.
NOAA recognizes that it will take time to install moorings at all
shipwrecks sites, and that some sites (particularly deep sites) create
challenges for ideal mooring systems. Consequently, NOAA is proposing a
two-year delay in the implementation of the no-anchoring prohibition.
During this period, the sanctuary will work with the state, Sanctuary
Advisory Council, a diver working group, and other relevant
stakeholders to develop a moorings implementation plan and best
practices document. During the two-year delay, NOAA will also consider
guidelines for allowing divers to tie moorings directly on certain
shipwrecks sites via a no-fee sanctuary permit.
49. Comment: NOAA received one comment that anchoring outside the
shipwreck with the ``shot line'' method is not practical and it
increases the dangers of diving.
Response: NOAA recognizes that anchoring outside the wreck and
using a shot line (a weighted line with surface buoy dropped onto a
shipwreck site to mark its location and provide reference for divers)
may be a new practice for some users and not possible for all users.
NOAA recognizes, too, that it will take time to install sanctuary-
maintained moorings (see previous comment). Consequently, NOAA is
considering allowing users to apply for a sanctuary permit to tie a
suitable long-term mooring line directly into some shipwreck sites,
which is a common and more familiar practice. Among other resource
protection benefits, a no-fee permit would allow the sanctuary to work
directly with users to determine which shipwrecks are most popular, and
thereby prioritize future sanctuary-maintained permanent moorings
located adjacent to the shipwreck.
50. Comment: NOAA received a few comments about who would be in
charge of placing mooring buoys, how early in the season buoys would be
placed, if there would be online resources outlining the status of
shipwrecks as marked or unmarked, and how members of a local community
could be involved in buoy management.
Response: As indicated in the final management plan at Strategy RP-
3 (Activity 3.1), NOAA will develop a five-year plan to develop and
begin implementation of a plan for design, implementation, and
maintenance of mooring buoy system, including priorities for which
shipwrecks to buoy. Activity 3.1 includes an item to ``work with local
dive charters to monitor moorings throughout the dive season.''
Overall, while NOAA will have the lead responsibility for the mooring
buoys in the sanctuary, it will work in close cooperation with the
state and with local partners. With regard to online status, in time
WSCNMS will have a GIS-based map similar to that of Thunder Bay
National Marine Sanctuary (<a href="https://thunderbay.noaa.gov/shipwrecks/mooring_program.html">https://thunderbay.noaa.gov/shipwrecks/mooring_program.html</a>). The online tool shows the seasonal status of
mooring buoys at shipwreck sites. As indicated in Comment 47, the
sanctuary will convene a working group to explore how best to implement
the mooring buoy plan, which includes the potential use of volunteers.
[[Page 32749]]
51. Comment: NOAA received several comments about the importance of
NOAA providing additional protection to shipwrecks.
Response: Protecting shipwrecks and other underwater cultural
resources will be a priority of Wisconsin Shipwreck Coast National
Marine Sanctuary. As described in the final management plan, there are
several ways to accomplish the resource protection goal, including
enhanced regulations, installing mooring buoys, engaging with divers
about best practices for diving, providing general education regarding
the significance of these resources, and enforcing federal and state
regulations to address protecting shipwrecks.
52. Comment: NOAA received a few comments that people should not be
restricted from searching for shipwrecks.
Response: NOAA is not restricting the ability of the public to
search for shipwrecks, or proposing requiring a sanctuary permit for
this activity.
53. Comment: NOAA received several comments stating that there
should not be any restrictions on access to shipwrecks.
Response: NOAA is not proposing regulation of, or restrictions on,
recreational diving activities within the sanctuary, as long as the
activities do not injure sanctuary resources or result in anchoring on
or grappling onto a shipwreck site. NOAA is not proposing requiring a
permit to dive in the sanctuary.
54. Comment: NOAA received a few comments asking how locations of
newly discovered shipwrecks would be made public.
Response: While it is the intention of the sanctuary to release
coordinates of known shipwrecks, NOAA may decide to withhold the
release of coordinates of a newly discovered, historically significant
shipwreck for a period of time so that NOAA and the state can document
the site and its artifacts. Under this scenario, NOAA will use agency
and partner resources (and possibly volunteers) to document the site. A
newly discovered site may be particularly fragile or possess a large
number of artifacts, and specific management or monitoring measures
would need to be put into place before site coordinates are published
on the sanctuary's website.
55. Comment: NOAA received several comments asking how the
sanctuary would actually protect shipwrecks, including whether there is
sufficient enforcement to protect shipwrecks.
Response: The goal of WSCNMS is to comprehensively manage the
underwater cultural resources of Lake Michigan. Enforcement is one
aspect of the resource protection strategy as indicated in Strategy RP-
5 of the final management plan, which states ``Develop a plan to
increase awareness of sanctuary regulations and state law and to
enhance law enforcement efforts.'' Since NOAA does not currently have
enforcement officers in the Great Lakes, NOAA works with the U.S. Coast
Guard to enforce sanctuary regulations. NOAA would also work with state
partners to explore options for assistance in the enforcement of
sanctuary regulations. Developing a plan to facilitate voluntary
compliance with sanctuary regulations is another element of proactive
enforcement included in the sanctuary's management plan.
56. Comment: NOAA received one comment asking if future maritime
archaeological research in the sanctuary would be restricted.
Response: NOAA encourages research and documentation of underwater
cultural resources, and in many cases can facilitate and act as a
partner in these activities. NOAA is not restricting archaeological
research, including Phase 1 (searching for shipwrecks) and Phase 2
(documenting shipwrecks) archaeology. However, given the sanctuary's
proposed prohibition on injuring/damaging shipwreck sites, NOAA
encourages researchers to obtain a Phase I archaeology permit from the
State of Wisconsin, and consult with the sanctuary superintendent ahead
of conducting research. For archaeological projects that will alter a
site, or seek to remove artifacts, both a state and sanctuary permit
would be required. Through a programmatic agreement, NOAA and the state
will seek to simplify this process.
57. Comment: NOAA received several comments stating that the threat
to shipwrecks will increase with increased tourism. The commenters
asked who would monitor the shipwrecks, how the shipwrecks would be
protected, and who would pay for these costs.
Response: NOAA believes that increasing public access and tourism
to shipwrecks sites is an important way to foster awareness,
appreciation, and ultimately protection of these special places. While
NOAA encourages public access to shipwrecks, we are aware that
increased use can result in additional pressure to these resources. The
final management plan takes a broad approach to ensuring that the
shipwrecks are protected to the greatest extent possible through the
resource protection, education, and research. Monitoring is captured
Strategy RP-2 of the final management plan.
Other elements of the final management plan that address increased
use of sanctuary resources are the installation of additional mooring
buoys, and public outreach programs on the value and fragility of
shipwrecks. Appendix 1 of the final management plan addresses potential
sanctuary operating budgets and partner contributions.
58. Comment: NOAA received many comments stating that the State of
Wisconsin already protects shipwrecks, and that this effort should not
be duplicated by the federal government.
Response: NOAA and the state will be co-managers of the sanctuary
and work together to ensure that their efforts are complementary and
not duplicative. Importantly, this co-management arrangement affords
opportunities that neither NOAA nor the state could realize on its own.
As detailed in the FEIS (see Chapter 2), designation as a national
marine sanctuary would provide increased resources to carry out the
research, education, and law enforcement activities necessary to more
comprehensively manage, protect, and increase the public benefit of
these resources. For example, the sanctuary would bring national
attention, interest, resources, and partners to the area. The sanctuary
nomination put forth in 2014 by the State of Wisconsin on behalf of
several lakeshore communities states the reasons the state wanted to
partner with NOAA to protect the shipwrecks. The sanctuary nomination
can be found at <a href="https://nominate.noaa.gov/media/documents/nomination_lake_michigan_wisconsin.pdf">https://nominate.noaa.gov/media/documents/nomination_lake_michigan_wisconsin.pdf</a>. An example of the types of
research programs and activities that a national marine sanctuary could
provide in Wisconsin can be found in Thunder Bay National Marine
Sanctuary's 2013 condition report (<a href="https://sanctuaries.noaa.gov/science/condition/tbnms/">https://sanctuaries.noaa.gov/science/condition/tbnms/</a>).
59. Comment: NOAA received a few comments suggesting that
shipwrecks are not threatened to the degree that necessitates NOAA
involvement, and that shipwrecks are already preserved by the fresh
water of the Great Lakes.
Response: While it is true that the cold, fresh water of the Great
Lakes preserves shipwrecks better than a saltwater environment, this
alone does not negate negative impacts to Wisconsin's shipwrecks. These
threats, as described in the FEIS (see Chapter 2), include both natural
processes and human activities. Human threats to underwater cultural
resources include looting and altering shipwreck sites and damaging
shipwreck sites by anchoring. The proposed final rule for WSCNMS
includes a prohibition on the use of
[[Page 32750]]
grappling hooks and anchors at shipwreck sites. This prohibition will
more directly address damage to shipwrecks than the state is able to
address. Additionally, as steward of these nationally significant
cultural resources, NOAA believes that creating public awareness and
engagement in the sanctuary through research, education, and community
engagement is an essential means of resource protection and increasing
public benefit.
60. Comment: NOAA received a comment asking whether NOAA could
charge new fees (for a permit or otherwise) on citizens for lake
activities that are currently free.
Response: NOAA is not proposing to charge any fees on any activity
within the proposed Wisconsin sanctuary.
Funding
61. Comment: NOAA received several comments related to the cost of
designating a national marine sanctuary. The comments included a
concern about higher taxes as a result of the designation; a concern
that the federal government does not have sufficient funds to manage
the area; a statement that federal funds would be better used to
protect natural resources; a concern that NOAA has not provided a cost
or budget analysis; a comment about financial accountability; and two
questions asking about the sources of funding for the sanctuary.
Response: The National Marine Sanctuaries Act (16 U.S.C. Chapter
32) directs NOAA to protect these nationally significant ecological and
historical resources. As a federal agency, appropriations for NOAA
programs are enacted by Congress, and signed into law by the president.
An annual allocation for the management of all the national marine
sanctuaries is included in each annual appropriation. NOAA makes
funding decisions for each sanctuary based on the funding level,
program priorities, and site needs. As a result, funding for a given
site can vary with fluctuations in annual appropriations, which may
impact the level of activities completed in the management plan each
year. As part of the final management plan for this sanctuary, NOAA
included a summary of the sanctuary activities that are possible at
several funding levels. NOAA also anticipates that a varying level of
in-kind contributions from co-managers and partners, as well as grants
and other outside funding, will contribute to the overall sanctuary
goals. Additionally, ONMS has received roughly $2 million in donations
and in-kind contributions and 120,000 volunteer hours per year at its
sites nationwide.
62. Comment: One commenter asked what would happen if Congress
chose to not appropriate sufficient funds for the proposed sanctuary's
operations in any given fiscal year?
Response: The NMSA (16 U.S.C. 1431 et seq.) directs NOAA to protect
these nationally significant areas and their ecological and historical
resources. A program allocation in NOAA's annual appropriations
typically provides funding for the management of all of the national
marine sanctuaries. While NOAA makes funding decisions for each
sanctuary based on the ONMS funding level, program priorities, and site
needs, it executes the ONMS budget to ensure basic operating costs at
all national marine sanctuaries are met.
Economic Impact
63. Comment: NOAA received several comments that the economic
impact of the sanctuary would be limited because not many people dive,
and local museums already do the outreach that NOAA is proposing.
Similarly, NOAA received several comments stating that the
socioeconomic impact study on Thunder Bay National Marine Sanctuary by
the University of Michigan does not demonstrate positive impacts. The
commenters asked why NOAA expects positive economic impacts in
Wisconsin.
Response: As demonstrated at other national marine sanctuaries,
NOAA believes that broader public outreach and education are also
important resource protection activities, because they increase
awareness, appreciation, and value of our nation's maritime heritage
and nationally significant historic sites. That sanctuary activities
aimed at the non-diving public could benefit the region was recognized
in the 2014 sanctuary nomination, which indicated that a chief goal for
the state and communities was to leverage the sanctuary to ``Build and
expand on state and local tourism initiatives and enhance opportunities
for job creation.'' Letters of support from many area museums
accompanied the sanctuary nomination (<a href="https://nominate.noaa.gov/media/documents/nomination_lake_michigan_wisconsin.pdf">https://nominate.noaa.gov/media/documents/nomination_lake_michigan_wisconsin.pdf</a>). Consequently,
education and outreach activities constitute a significant part of the
sanctuary's final management plan.
Initiatives at NOAA's Thunder Bay National Marine Sanctuary in
Alpena, Michigan, provide an example of a wide range of education,
outreach, interpretation, tourism, and partnerships aimed at the
benefitting the general public. NOAA disagrees with the comment on the
2013 economic study for Thunder Bay National Marine Sanctuary.
Draft Management Plan, Sanctuary Name, Operations
64. Comment: NOAA received one comment that NOAA should consider
modifying the goal statement in the education and outreach plan to
include education and dissemination of the maritime cultural landscape
perspective as well as the shipwrecks to be protected by the proposed
sanctuary, and that all of the strategies should address the maritime
cultural landscape.
Response: NOAA believes the maritime cultural landscape is an
essential component of interpreting, understanding, and appreciating
historic shipwrecks. The final management plan contains a strategy and
two activities aimed at characterizing the sanctuary's maritime
cultural landscape. NOAA added a reference to maritime cultural
landscapes in the ``Objectives'' section of the education management
plan. As described by the National Park Service, a cultural landscape
is a geographic area including cultural and natural resources, coastal
environments, human communities, and related scenery that is associated
with historic events, activities, or persons, or exhibits other
cultural or aesthetic value.
65. Comment: NOAA received one comment stating that NOAA should
fund the sanctuary at the $700,000 level (as indicated in a summary of
potential funding scenarios in Appendix 1 of the final management
plan), as this would include enough resources to hire an education
coordinator and implement an education program.
Response: NOAA agrees it is important to implement elements of the
Education and Outreach Action Plan. NOAA makes funding decisions based
on annual appropriations to the program, which drive decisions for each
sanctuary based on the funding level, program priorities, and site
needs. As a result, site level funding can vary from year to year,
which may impact the level of activities completed in the management
plan each year.
66. Comment: NOAA received one comment stating that NOAA needs to
have a presence in each community working on this designation process.
Rather than having a new visitor center created post-designation, NOAA
should capitalize on the existing informal learning institutions and
allied organizations already working to educate and inspire public
appreciation
[[Page 32751]]
of--and involvement in--the Great Lakes.
Response: One of the strengths of the WSCNMS designation is the
many opportunities to partner with, leverage, and complement assets in
each of the sanctuary communities. Per final management plan Strategy
SO-1, the sanctuary will ``Develop a `NOAA presence' within sanctuary
communities that supports the sanctuary's mission and infrastructure
needs, and that recognizes, leverages, and complements individual
assets in sanctuary communities.'' NOAA will develop the strategic plan
supporting Strategy SO-1 after designation in cooperation with local
communities, other appropriate partners, and the Sanctuary Advisory
Council to ensure that NOAA is capitalizing on existing efforts and
institutions in the region.
67. Comment: NOAA received one comment stating that the proposal
should provide more specificity about educational programming and
technology for K-12.
Response: NOAA's final management plan is the initial management
plan for this site, and as such describes general objectives for
education and outreach activities. As sanctuary staff are hired and as
NOAA engages with its education partners after designation, more
specificity will emerge for the sanctuary's education and outreach
activities.
68. Comment: NOAA received one comment suggesting that the
sanctuary should be named ``Wisconsin Marine Protection Area'' as the
name is shorter and easier to say, it would result in less clutter on a
map, and people could identify the name easier.
Response: Community and partner discussions during a sanctuary
branding workshop sponsored by the Wisconsin Department of Tourism
produced the name Wisconsin Shipwreck Coast National Marine Sanctuary,
which NOAA proposes as the sanctuary's official name. The new name
reflects the sanctuary's cultural heritage focus, is responsive to
community input, and is conducive to marketing and branding efforts.
69. Comment: NOAA received one comment stating that Sheboygan would
be the ideal location for a sanctuary office because it is centrally
located, has the most developed riverfront, has Blue Harbor Resort and
charter fishing fleets, and is the largest of the cities in the
proposed sanctuary. NOAA also received other comments identifying
specific communities in a similar way, such as Port Washington.
Response: One of the strengths of the WSCNMS designation is the
many opportunities to partner with, leverage, and complement assets in
each of the sanctuary communities. Per final management plan Strategy
SO-1, the sanctuary will ``Develop a `NOAA presence' within sanctuary
communities that supports the sanctuary's mission and infrastructure
needs, and that recognizes, leverages, and complements individual
assets in sanctuary communities.'' NOAA has not made any decisions
about sanctuary office locations.
70. Comment: NOAA received one comment from the U.S. Environmental
Protection Agency stating that NOAA should address green building
practices and climate change and greenhouse gases in the FEIS. EPA
recommended that the FEIS explain the geographic and policy definitions
of the term ``coastline'' as it applies to this proposed designation.
Response: The FEIS does not include a plan for facility
construction or operation as part of the proposed action. However,
should NOAA propose any of these activities in the future, it will
consider environmentally responsible practices suggested in EPA's
recommendations. In using the term ``coastline,'' NOAA does not define
it as a legal term; instead it is used generally to refer to the land-
water interface. The shore side boundary is defined as the LWD.
V. Classification
1. National Marine Sanctuaries Act
NOAA has determined that the designation of the Wisconsin Shipwreck
Coast 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. The final finding for
NMSA section 304(f) is published on the ONMS website for Wisconsin
Shipwreck Coast designation at <a href="http://sanctuaries.noaa.gov/wisconsin/">http://sanctuaries.noaa.gov/wisconsin/</a>.
2. National Environmental Policy Act
NOAA has prepared a final environmental impact statement to
evaluate the environmental effects of the rulemaking and alternatives
as required by NEPA (42 U.S.C. 4321 et seq.) and the NMSA. The Notice
of Availability is available at 85 FR 34625. NOAA has also prepared a
Record of Decision (ROD). Copies of the ROD and the FEIS are available
at the address and website listed in the ADDRESSES section of this
rule.
3. 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 activities that have reasonably
foreseeable effects on any coastal use or resource. Such activities
must be consistent with approved state coastal policies to the maximum
extent possible. Because WSCNMS encompasses a portion of the Wisconsin
state waters, NOAA submitted a copy of the proposed rule and supporting
documents to the State of Wisconsin Coastal Zone Management Program for
evaluation of Federal consistency under the CZMA. NOAA has presumed the
state's concurrence pursuant to 15 CFR 930.41(a), whereby a federal
agency may presume concurrence if a response is not received within 60
days.
4. Executive Order 12866: Regulatory Impact
This rule has been determined to be significant for purposes of
Executive Order 12866.
5. 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. These sanctuary
regulations are intended only to supplement and complement existing
state and local laws under the NMSA.
6. 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 identified interested parties in
addition to the State Historic Preservation Officer (SHPO), and has
completed 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. NOAA received
a response from the SHPO, dated May 5, 2017, agreeing that the proposed
undertaking will have
[[Page 32752]]
no adverse effect to one or more historic properties located within the
project Area of Potential Effect.
7. Regulatory Flexibility Act
This analysis seeks to fulfill the requirements of Executive Order
12866 and the Regulatory Flexibility Act. Small businesses that could
potentially be impacted from the proposed prohibition on damaging a
sanctuary resource include commercial fishing, recreational fishing and
diving, scenic and sightseeing industries. The Chief Counsel for
Regulation of the Department of Commerce certified to the Chief Counsel
for Advocacy of the Small Business Administration (SBA) at the proposed
rule stage that this rule would not have a significant impact on a
substantial number of small entities. Although NOAA has made a few
changes to the regulations from the proposed rule to the final rule,
none of the changes alter the initial determination that this rule will
not have an impact on small businesses included in the original
analysis. NOAA also did not receive any comments on the certification
or conclusions. Therefore, the determination that this rule will not
have a significant economic impact on a substantial number of small
entities remains unchanged. As a result, a final regulatory flexibility
analysis is not required and has not been prepared.
8. 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 designation of WSCNMS 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 will be requested as part of the renewal package for
0648-0141.
Nationwide, NOAA issues approximately 500 national marine sanctuary
permits each year. WSCNMS is expected to issue an additional 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.
Comments on this determination were solicited in the proposed rule
but no public comments were received. 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.
9. Sunken Military Craft Act
The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title
XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects
from unauthorized disturbance all sunken military craft that are owned
by the United States government, as well as foreign sunken military
craft that lie within United States waters, as defined in the SMCA, and
other vessels owned or operated by a government on military non-
commercial service when it sank. Thousands of U.S. sunken military
craft lie in waters around the world, many accessible to looters,
treasure hunters, and others who may cause damage to them. These craft,
and their associated contents, represent a collection of non-renewable
and significant historical resources that often serve as war graves,
carry unexploded ordnance, and contain oil and other hazardous
materials. By protecting sunken military craft, the SMCA helps reduce
the potential for irreversible harm to these nationally important
historical and cultural resources. Regulations regarding permits for
activities directed at sunken military craft under the jurisdiction of
the Department of Navy can be found at 32 CFR part 767.
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.
Nicole LeBoeuf,
Acting Assistant Administrator for Ocean Services and Coastal Zone
Management.
Accordingly, for the reasons discussed in the preamble, the
National Oceanic and Atmospheric Administration amends 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 Mallows Bay-Potomac River
National Marine Sanctuary, Sanctuary resource is defined at Sec.
922.201(a). For Wisconsin Shipwreck Coast National Marine Sanctuary,
sanctuary resource is defined at Sec. 922.211.
* * * * *
0
4. 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
[[Page 32753]]
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) Mallows Bay-Potomac River National Marine Sanctuary, Sec.
922.204.
(6) Wisconsin Shipwreck Coast National Marine Sanctuary, Sec.
922.214.
0
5. 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 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 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 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
6. 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
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 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
7. 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
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 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) 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
[[Page 32754]]
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
8. 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 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.
0
9. Add subpart T to read as follows:
Subpart T--Wisconsin Shipwreck Coast 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 Shipwreck Coast
National Marine Sanctuary Boundary Description and Coordinates of
the Lateral Boundary Closures and Excluded Areas
Appendix B to Subpart T of Part 922--Wisconsin Shipwreck Coast
Marine Sanctuary Terms of Designation
Sec. 922.210 Boundary.
Wisconsin Shipwreck Coast National Marine Sanctuary consists of an
area of approximately 726 square nautical miles (962 square miles) 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 precise boundary coordinates
are listed in Appendix A to this subpart. The eastern boundary of the
sanctuary begins approximately 9.3 miles east of the Wisconsin
shoreline (as defined by the low water datum) in Lake Michigan at Point
1 north of the border between Manitowoc and Kewaunee County. From Point
1 the boundary continues SSW in a straight line to Point 2 and then SW
to Point 3 which is located in Lake Michigan approximately 16.3 miles
east of a point on the shoreline roughly equidistant between the
borders of northern Mequon, WI and southern Port Washington, WI. From
Point 3 the boundary continues west towards Point 4 until it intersects
the shoreline at the low water datum approximately 2.5 miles north of
the northern border of Mequon, WI. From this intersection the boundary
continues north following the shoreline at the low
[[Page 32755]]
water datum, 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 to Point 6
through Point 9 in numerical order. From Point 9 the boundary continues
towards Point 10 until it intersects the shoreline at the low water
datum at the end of the northern breakwater at the mouth of Sauk Creek.
From this intersection the boundary continues north following the
shoreline at the low water datum cutting across the mouths of creeks
and streams until it intersects the line segment formed between Point
11 and Point 12 at the end of the southern breakwater at the mouth of
the Sheboygan River. From this intersection the boundary continues to
Point 12 through Point 17 in numerical order.
From Point 17 the boundary continues towards Point 18 until it
intersects the shoreline at the low water datum at the end of the
northern breakwater at the mouth of the Sheboygan River. From this
intersection the boundary continues north along the shoreline at the
low water datum cutting across the mouths of creeks and streams until
it intersects the line segment formed between Point 19 and Point 20 at
the end of the southern breakwater at the mouth of Manitowoc Harbor.
From this intersection the boundary continues to Point 20 through Point
23 in numerical order. From Point 23 the boundary continues towards
Point 24 until it intersects the shoreline at the low water datum at
the end of the northern breakwater at the mouth of the Sheboygan River.
From this intersection the boundary continues north following the
shoreline at the low water datum cutting across the mouths of creeks
and streams until it intersects the line segment formed between Point
25 and Point 26 at the end of the western breakwater at the mouth of
East Twin River. From this intersection the boundary continues to Point
27 through Point 31 in numerical order.
From Point 31 the boundary continues towards Point 32 until it
intersects the shoreline at the low water datum at the end of the
eastern breakwater at the mouth of East Twin River. From this
intersection the boundary continues NE following the shoreline at the
low water datum cutting across the mouths of creeks and streams around
Rawley Point and then continues NNW past the county border between
Manitowoc and Kewaunee County until it intersects the line segment
formed between Point 33 and Point 34 along the shoreline at the low
water datum just south of the mouth of the unnamed stream near the
intersection of Sandy Bar Road and Lakeview Road near Carlton, WI.
Finally, from this intersection at the shoreline at the low water datum
the boundary moves east across Lake Michigan to Point 34.
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 all shipwreck sites.
(2) Shipwreck site means any historic sunken watercraft, its
components, cargo, contents, and associated debris field.
(b) All other terms appearing in the regulations in this subpart
are defined at Sec. 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 Agreement
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 32756]]
(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. 922.47 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 Shipwreck Coast 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, 180 days of the Federal Register document
announcing of effective date of the 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 Shipwreck Coast
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 Boundary
------------------------------------------------------------------------
Point_ID Latitude Longitude
------------------------------------------------------------------------
1....................................... 44.35279 -87.34387
2....................................... 43.45716 -87.48817
3....................................... 43.31519 -87.56312
4 *..................................... 43.31519 -87.88828
5 *..................................... 43.38447 -87.86079
6....................................... 43.38455 -87.86062
7....................................... 43.38353 -87.85936
8....................................... 43.38588 -87.85801
9....................................... 43.38510 -87.85950
10 *.................................... 43.38523 -87.85963
11 *.................................... 43.74858 -87.69479
12...................................... 43.74858 -87.69457
13...................................... 43.74840 -87.69457
14...................................... 43.74778 -87.69191
15...................................... 43.74949 -87.69161
16...................................... 43.74977 -87.69196
17...................................... 43.74935 -87.69251
18 *.................................... 43.74946 -87.69265
19 *.................................... 44.09135 -87.64377
20...................................... 44.09147 -87.64366
21...................................... 44.09081 -87.64206
22...................................... 44.09319 -87.64202
23...................................... 44.09254 -87.64365
24 *.................................... 44.09262 -87.64373
25 *.................................... 44.14226 -87.56161
26...................................... 44.14214 -87.56151
27...................................... 44.14199 -87.56181
28...................................... 44.13946 -87.55955
29...................................... 44.14021 -87.55795
30...................................... 44.14274 -87.56023
31...................................... 44.14256 -87.56059
32 *.................................... 44.14267 -87.56069
33 *.................................... 44.35279 -87.53255
34...................................... 44.35279 -87.34387
------------------------------------------------------------------------
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 at the low water datum.
[[Page 32757]]
Appendix B to Subpart T of Part 922--Wisconsin Shipwreck Coast National
Marine Sanctuary Terms of Designation
Terms of Designation for Wisconsin Shipwreck Coast 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., 962 square miles of Lake Michigan off the coast of
Wisconsin's coastal counties of Ozaukee, Sheboygan, Manitowoc, and
Kewaunee are hereby designated as a National Marine Sanctuary for
the purpose of providing long-term protection and management of the
historical resources and recreational, research, educational, and
aesthetic qualities of the area.
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 Wisconsin Shipwreck Coast
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
Wisconsin Shipwreck Coast National Marine Sanctuary consists of
an area of approximately 726 square nautical miles (962 square
miles) of Lake Michigan waters within the State of Wisconsin and the
submerged lands thereunder, over, around, and under the underwater
cultural resources in Lake Michigan. The eastern boundary of the
sanctuary begins approximately 9.3 miles east of the Wisconsin
shoreline in Lake Michigan north of the border between Manitowoc and
Kewaunee County. From this point the boundary continues in Lake
Michigan roughly to the SSW until it intersects a point in Lake
Michigan approximately 16.3 miles east of a point along the
shoreline that is approximately equidistant between the borders of
Mequon, WI and Port Washington, WI. The southern boundary continues
west until it intersects the shoreline at the Low Water Datum at
this point between Mequon, WI and Port Washington, WI. The western
boundary continues north following the shoreline at the Low Water
Datum for approximately 82 miles cutting across the mouths of
rivers, creeks, and streams and excluding federally authorized
shipping channels; specifically those of Sauk Creek at Port
Washington, Sheboygan River at Sheboygan, Manitowoc Harbor as
Manitowoc, and East Twin River at Two Rivers. The western boundary
ends just north of the border between Manitowoc and Kewaunee County
along the shoreline near Carlton, WI. The northern boundary
continues from the shoreline at the Low Water Datum at this point
east across Lake Michigan just north of the border between these
same two counties back to its point of origin approximately 9.3
miles offshore.
Article III: Special Characteristics of the Area
The area includes a nationally significant collection of
maritime heritage resources, including 36 known shipwrecks, about 59
suspected shipwrecks, and other underwater cultural sites. The
historic shipwrecks are representative of the vessels that sailed
and steamed on Lake Michigan during the nineteenth and twentieth
centuries, carrying grain and raw materials east and carrying coal,
manufactured goods, and people west. During this period
entrepreneurs and shipbuilders on the Great Lakes launched tens of
thousands of ships of many different designs. Sailing schooners,
grand palace steamers, revolutionary propeller-driven passenger
ships, and industrial bulk carriers transported America's business
and industry. In the process they brought hundreds of thousands of
people to the Midwest and made possible the dramatic growth of the
region's farms, cities, and industries. The Midwest, and indeed the
American nation, could not have developed with such speed and with
such vast economic and social consequences without the Great Lakes.
Twenty-one of the 36 shipwreck sites in the sanctuary are listed on
the National Register of Historic Places. Many of the shipwrecks
retain an unusual degree of architectural integrity, with several
vessels nearly intact. Well preserved by Lake Michigan's cold, fresh
water, the shipwrecks and related maritime heritage sites in
Wisconsin Shipwreck Coast National Marine Sanctuary possess
exceptional historical, archaeological and recreational value.
Additional underwater cultural resources, such as submerged
aircraft, docks, piers, and isolated artifacts also exist, as do the
potential for prehistoric sites and artifacts.
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. Injuring sanctuary resources.
b. Grappling into or anchoring on a 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.
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
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.
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.
Sec. 922.213 [Amended]
0
10. Stay Sec. 922.213(a)(2) until October 1, 2023.
[FR Doc. 2021-12846 Filed 6-22-21; 8:45 am]
BILLING CODE 3510-NK-P
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</html>Indexed from Federal Register on June 23, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.