Mallows Bay-Potomac River National Marine Sanctuary; Notice of Proposed Rulemaking and Availability of Draft Environmental Impact Statement and Management Plan, 2254-2269 [2016-31742]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 5 (Monday, January 9, 2017)]
[Proposed Rules]
[Pages 2254-2269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31742]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 160907827-6827-01]
RIN 0648-BG02


Mallows Bay--Potomac River National Marine Sanctuary; Notice of 
Proposed Rulemaking and Availability of Draft Environmental Impact 
Statement and Management Plan

AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Proposed rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
proposes to designate approximately 52 square miles of waters 
encompassing and surrounding Maryland's Mallows Bay as the Mallows 
Bay--Potomac River National Marine Sanctuary (MPNMS or sanctuary). NOAA 
also proposes regulations to implement the sanctuary designation and 
establish the sanctuary's terms of designation to protect historical, 
archeological, and cultural resources of national significance. A draft 
environmental impact statement (DEIS) and draft management plan (DMP) 
have also been prepared for this proposed action. The purpose of this 
action is to supplement and complement current Maryland state 
regulations and resource protection efforts to ensure long term 
protection of the nationally significant collection of historic 
shipwrecks and other maritime cultural heritage resources. NOAA is 
soliciting public comment on the proposed rule, draft environmental 
impact statement, and draft management plan. NOAA will also begin 
consultations under Section 106 of the National Historic Preservation 
Act (NHPA) and solicit public comments specifically related to the 
identification and assessment of the historic properties within the 
affected area in compliance with Section 106 review process.

DATES: NOAA will consider all comments received by March 31, 2017. 
Public meetings will be held on the following dates:
    (1) March 7, 2017, 6:00 p.m. to 9:00 p.m., La Plata, MD, and
    (2) March 9, 2017, 6:00 p.m. to 9:00 p.m., Arnold, MD.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-

[[Page 2255]]

NOS-2016-0149, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NOS-2016-0149, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Paul Orlando, Regional Coordinator, Northeast and 
Great Lakes Region, 410 Severn Ave., Suite 207-A, Annapolis, MD 21403.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NOAA. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NOAA will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Copies of the proposed rule, DEIS, and DMP can be downloaded or 
viewed on the internet at www.regulations.gov (search for docket # 
NOAA-NOS-2016-0149) or at www.regulations.gov/#!docketDetail;D=NOAA-
NOS-2016-0149. Copies can also be obtained by contacting the person 
identified under FOR FURTHER INFORMATION CONTACT.
    The public meeting locations are:

(1) La Plata, MD: Charles County Government Building, 200 Baltimore 
St., La Plata, MD 20646 (March 7, 2017)
(2) Arnold, MD: Anne Arundel Community College, Center for Applied 
Learning and Technology (CALT) Building, Room 100, 101 College Pkwy., 
Arnold, MD 21012 (March 9, 2017)

FOR FURTHER INFORMATION CONTACT: Paul Orlando, Regional Coordinator, 
Northeast and Great Lakes Region at (240) 460-1978, 
paul.orlando@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Background

    The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce (Secretary) to designate and 
protect as national marine sanctuaries areas of the marine environment 
that are of special national significance due to their conservation, 
recreational, ecological, historical, scientific, cultural, 
archeological, educational, or esthetic qualities. Day-to-day 
management of national marine sanctuaries has been delegated by the 
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The 
primary objective of the NMSA is to protect the sanctuary system's 
biological and cultural resources, such as coral reefs, marine animals, 
historical shipwrecks, historic structures, and archaeological sites.
    NOAA is considering the Mallows Bay area of the tidal Potomac River 
for designation as a national marine sanctuary. The area is 40 miles 
south of Washington, DC, located off the Nanjemoy Peninsula of Charles 
County, Maryland. This is an area of national significance featuring 
unique historical, archaeological, cultural, ecological, and esthetic 
resources and qualities, which offer opportunities for conservation, 
education, recreation, and research. Its maritime landscape is home to 
a diverse collection of historic shipwrecks that date back to the Civil 
War and potentially date to the American Revolutionary War, totaling 
nearly 200 known vessels including the remains of the largest ``Ghost 
Fleet'' of World War I, wooden steamships built for the U.S. Emergency 
Fleet. The fleet was constructed at more than 40 shipyards in 17 states 
as part of the massive national wartime preparation. The area's 
archaeological and cultural resources cover centuries of history from 
the earliest American Indian presence in the region about 12,000 years 
ago to the Revolutionary, Civil and two World Wars, as well as 
successive regimes of Potomac fishing industries.
    The Maryland Department of Natural Resources (DNR), Maryland 
Historical Trust, Maryland Department of Tourism, and Charles County, 
MD, have worked together with community partners to initiate 
conservation and compatible public access strategies in and around 
Mallows Bay, consistent with numerous planning and implementation 
documents. In 2010, DNR purchased a portion of land adjacent to Mallows 
Bay and made it available to Charles County to create and manage 
Mallows Bay County Park, the main launch point for access to the 
historic shipwrecks. Pursuant to the NHPA, Maryland Historical Trust 
has stewardship and oversight responsibility for the shipwrecks, along 
with hundreds of other historic sites around the state. DNR manages the 
waterbody and associated ecosystem resources, including land use, 
resource conservation and extraction activities. The lands on either 
side of Mallows Bay County Park are held by the U.S. Department of 
Interior's Bureau of Land Management and a private citizen.
    On September 16, 2014, pursuant to section 304 of the National 
Marine Sanctuaries Act and the Sanctuary Nomination Process (SNP; 79 FR 
33851), a coalition of community groups submitted a nomination asking 
NOAA to designate Mallows Bay--Potomac River as a national marine 
sanctuary. The nomination cited conservation goals to protect and 
conserve the fragile remains of the Nation's cultural heritage as well 
as the opportunities to expand public access, recreation, tourism, 
research, and education to the area. The nomination was endorsed by a 
diverse coalition of organizations and individuals at local, state, 
regional, and national levels including elected officials, businesses, 
Native American, environmental, recreation, conservation, fishing, 
tourism, museums, historical societies, and education groups. The 
nomination identified opportunities for NOAA to protect, study, 
interpret, and manage the area's unique resources, including by 
building on existing local, county, and State of Maryland efforts to 
manage the area for the protection of shipwrecks. NOAA's review of the 
nomination against the criteria and considerations of the SNP, 
including the requirement for broad-based community support indicated 
strong merit in proposing this area as a national marine sanctuary. 
Therefore, NOAA completed its review of the nomination and, on January 
12, 2015, added the area to the inventory of nominations that are 
eligible for designation. All nominations submitted to NOAA can be 
found at: https://www.nominate.noaa.gov/nominations/.
    NOAA began the sanctuary designation process for Mallows Bay--
Potomac River National Marine Sanctuary on October 7, 2015 with the 
publication of a notice of intent (NOI; 80 FR 60634) to prepare a DEIS 
and the initiation of a public process, as required under the NMSA and 
the National Environmental Policy Act (NEPA). The DEIS evaluates 
alternatives related to the proposed designation of Mallows Bay--
Potomac River National Marine Sanctuary, including a no action 
alternative. The NOI also announced NOAA's intent to fulfill its 
responsibilities under the requirements of the NHPA.

B. Need for Action

    The proposed designation would allow NOAA to complement current 
state-led efforts to conserve and manage the nationally significant 
maritime cultural heritage resources while

[[Page 2256]]

enhancing public awareness and appreciation, and facilitating to the 
extent compatible with the primary objective of resource protection, 
all public and private uses including recreation and tourism, as 
directed by the NMSA. The threats to these resources are related to 
actions or conditions that result in the damage or loss of the historic 
resources. Over time direct damage both intentionally and unintentional 
has occurred from breaking, redistribution of shipwrecks and artifacts, 
defacing and physical alteration, burning, and removal from the area. 
Additionally, indirect damage to the resources has occurred from the 
accumulation and entanglement of trash and marine debris around the 
resources and from weather-related processes such as wind, flood, and 
ice events.
    The proposed sanctuary would concentrate on the protection, access 
and interpretation of the maritime cultural features of the area, 
including the Ghost Fleet, other vessels of historic significance, and 
related maritime infrastructure. The State of Maryland currently has a 
comprehensive set of management measures for the protection of the 
natural environment, including wildlife, fish, birds, water quality, 
and habitat. As such, NOAA's proposed sanctuary regulations would focus 
only on the protection of the shipwrecks and associated maritime 
cultural heritage resources.
    NOAA's proposed management actions will be primarily non-regulatory 
in nature with a concise set of regulations focused on protecting the 
maritime cultural heritage resources. Although the Maryland Submerged 
Archeological Historic Property Act (Md. Code Ann., State Fin. & Proc. 
sections 5A-333 et seq.) provides a basic level of protection for 
maritime cultural heritage resources in Mallows Bay and adjacent areas 
of the Potomac River, the proposed action would allow NOAA's management 
under the NMSA to supplement and complement the existing authority and 
the current management framework in the area. The proposed national 
marine sanctuary would address ongoing threats to the maritime cultural 
heritage resources while providing opportunities for research, 
education, recreation, and tourism through coordinated and 
comprehensive management and conservation the resources in 
collaboration with the State of Maryland and Charles County. NOAA is 
also proposing to carry out education, science, and interpretative 
programs that describe for visitors and user communities the 
relationship between the shipwreck structures and their interplay with 
the natural system.

C. Designation Process

National Marine Sanctuary Designation Process
    The National Marine Sanctuaries Act authorizes NOAA to identify, 
designate, and protect areas of the marine and Great Lakes environment 
with special national significance due to their conservation, 
recreational, ecological, historical, scientific, cultural, 
archaeological, educational, or aesthetic qualities as national marine 
sanctuaries. NOAA may identify areas to consider for national marine 
sanctuary designation through the community-based Sanctuary Nomination 
Process as described in the final rule (79 FR 33851) establishing the 
process. The NMSA process for designating a new national marine 
sanctuary has four steps:
    Scoping: NOAA announces its intent to designate a new national 
marine sanctuary and asks the public for input on potential boundaries, 
resources that could be protected, issues NOAA should consider and any 
information that should be included in the detailed resource analysis 
in a draft environmental impact statement.
    Sanctuary Proposal: NOAA prepares draft designation documents 
including a DMP, DEIS that analyzes a range of alternatives, proposed 
regulations, and proposed boundaries.
    Public Review: The public, agency partners, tribes, and other 
stakeholders provide input on the draft documents. The public review 
step also includes the formal consultations required under NEPA, the 
NMSA, the NHPA, and other relevant statutes. NOAA considers all input 
and determines appropriate changes.
    Sanctuary Designation: NOAA makes a final decision and prepares 
final documents. Before the designation becomes effective, the Governor 
reviews the documents. Congress also has the opportunity to review the 
documents.
Public Scoping Process
    On October 7, 2015, NOAA initiated the public scoping process with 
the publication of a NOI in the Federal Register (80 FR 60634) asking 
for public input on the proposed designation and informing the public 
that NOAA intended to prepare a DEIS evaluating alternatives related to 
the proposed designation of Mallows Bay--Potomac River National Marine 
Sanctuary under the NMSA. That announcement initiated a 90-day public 
comment period during which NOAA would 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 NHPA.
    During the public comment period, NOAA solicited input on the range 
of issues to be considered in an environmental impact statement to 
designate this area as a national marine sanctuary. NOAA specifically 
asked for information that would assist in the development of 
alternatives including proposed regulations and boundaries. NOAA 
accepted public comments through a web-based portal and by mail from 
October 7, 2015 through January 15, 2016, and hosted two public scoping 
meetings. During the scoping comment period, NOAA received 
approximately 264 comments from individuals, businesses, organizations, 
and local, state, and federal agencies. The first scoping meeting was 
held on November 4, 2015 in La Plata, MD, where approximately 125 
people attended and 51 oral and written comments were received. The 
second meeting was held on November 10, 2015 in Annapolis, MD. 
Approximately 100 people attended that meeting, and 23 oral and written 
comments were received.
    The written comments received included 141 from individuals, nine 
from businesses, 46 from organizations, two from local agencies, two 
from state agencies, and four from federal agencies. Comments were also 
submitted by U.S. Representative Steny Hoyer and U.S. Senator Ben 
Cardin. All comments are available for review online at https://www.regulations.gov/#!docketDetail Detail;D=NOAA-NOS-2015-0111.
    The majority of comments received during the scoping period 
generally support the proposed sanctuary designation based on the 
considerable value and significance of the natural, maritime, 
archaeological, and cultural resources within the area including those 
related to Native American history and activities, the immense 
potential for ecological and archaeological research of the area's 
resources, and the economic and educational benefits of increased 
tourism and public access and awareness. The public comments also 
identified several additional potential benefits, including restoration 
of the Chesapeake watershed, economic revitalization of the local area, 
and promoting heritage and ecotourism.
    Several comments opposed the nomination predominantly citing 
opposition to the possibility of increased government intervention, 
specifically regarding fossil collection and fishing activities that 
could

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potentially be impacted by a sanctuary designation.
    The comments also identified boundary alternatives for 
consideration during the designation process. Several comments 
supported the boundary proposed in the sanctuary nomination package, 
intended to align with the boundary of the Mallows Bay--Widewater 
Archaeological and Historic District submitted by the State of Maryland 
(National Register Listing Number 15000173, April 24, 2015). However, 
the majority of comments supported an expanded boundary. Several 
comments supported a northward expansion to Mattawoman Creek, but most 
of the comments supported a larger boundary extending from Chapman Park 
in the North to Chapel point in the South. One comment suggested an 
even larger northern boundary extending to Piscataway Creek. Most of 
the support for the expanded boundaries was based on the benefits of 
the additional protection that the commenters felt a larger boundary 
would provide to the significant natural and maritime cultural heritage 
resources in the area.
    Several comments did not support a boundary expansion citing issues 
related to management, local impact, and government overreach. Some 
comments expressed concerns regarding how the boundaries would affect 
the Commonwealth of Virginia's interests and one comment noted that 
Virginia should be excluded from the sanctuary boundary.
    Additional comments addressed regulatory frameworks, access issues, 
migratory bird protections, designation timeline goals, 
intergovernmental collaboration, infrastructure, education and outreach 
programing, and interpretation plans.
    NOAA used these public comments to inform the preparation of the 
draft management plan, draft environmental impact statement, and the 
proposed sanctuary regulations. The proposed designation reflects the 
general public support for the protection of all nationally significant 
maritime cultural heritage resources in the area. It also incorporates 
the need for enhanced recreation and access to the proposed sanctuary 
to support tourism and the local economy.
    In this proposed rule, NOAA is proposing to regulate damage to the 
maritime cultural heritage resources in a 52-square mile area of 
Maryland waters of the Potomac River as described below. The proposed 
boundaries were expanded beyond the initially nominated area and the 
National Register Historic District based on public comments, 
additional research conducted related to the historical and 
archaeological resources of the area, and input from Maryland 
Department of Natural Resources, Maryland Historical Trust, and Charles 
County.
    The environmental effects of this proposed designation and 
alternatives are analyzed in a DEIS published concurrently with this 
proposed rule summary statement. NOAA has also developed an associated 
draft management plan describing comprehensive proposed management 
framework envisioned for the area, including non-regulatory programs 
and activities actions and strategies to promote opportunities for 
research, education, and recreation in the area. NOAA is seeking public 
comment on the proposed rule, DEIS, and draft management plan, which 
are available at https://sanctuaries.noaa.gov/mallows-bay/ or may be 
obtained by contacting the individual listed under the heading FOR 
FURTHER INFORMATION CONTACT.

II. Summary of the Proposed Regulations

1. Adding New Subpart S and Reserving Subpart T

    NOAA is proposing to amend 15 CFR part 922 by adding a new subpart 
(subpart S) that contains site-specific regulations for MPNMS. This 
subpart would include the proposed boundary, contain definitions of 
common terms used in the new subpart, provide a framework for co-
management of the sanctuary, identify prohibited activities and 
exceptions, and establish procedures for certification of existing 
uses, permitting otherwise prohibited activities, and emergency 
regulation procedures. Several conforming changes would also be made to 
the national regulations as described detail below.
    NOAA is concurrently working on designating a separate new national 
marine sanctuary in Wisconsin's Lake Michigan waters as part of a 
separate rulemaking process, and those regulations would be published 
in their own new subpart (subpart T). As such, in this rulemaking, NOAA 
proposes to add and reserve subpart T for any future site-specific 
regulations that might be issued. NOAA would later harmonize the 
regulations for the Wisconsin Lake Michigan designation process with 
any final rule associated with this action.

2. Proposed Sanctuary Name

    NOAA has proposed to name the sanctuary the ``Mallows Bay--Potomac 
River National Marine Sanctuary (MPNMS)'' based on the nomination 
submitted by the community. The name aptly identifies the area where 
the proposed sanctuary is located. NOAA has also selected the acronym 
of ``MPNMS'' to avoid having a longer acronym, such as ``MBPRNMS,'' and 
avoid duplication with an acronym already in use within the national 
marine sanctuary system, such as ``MBNMS'' used for Monterey Bay 
National Marine Sanctuary. NOAA is asking for public input on this 
proposed name. The public may also suggest an alternative name and 
state the reasons for suggesting an alternative name.

3. Proposed Sanctuary Boundary

    NOAA is proposing to designate an area of approximately 52 square 
miles of the Potomac River as MPNMS. The northern boundary of the area 
would extend approximately 200 yards upstream of the Dominion Power 
lines near Ben Doane Road, Maryland to Possum Nose, Virginia. The 
southern boundary would extend from the end of Owens Drive east of 
Chotank Creek, Virginia to Benny Gray Point, Maryland. The boundary 
would encompass all tidal waters within this boundary from mean high 
tide in Maryland to mean low tide in Virginia, which serves as the 
boundary between Maryland and Virginia. Areas where the Virginia state 
line is otherwise delineated, the Quantico exclusion zone, and the area 
around the Quantico marina would be excluded from the sanctuary. The 
detailed legal boundary description is included in section 922.200 and 
the coordinates are located in 15 CFR part 922, subpart S, appendix A. 
A map of the area is shown in the DEIS.
    The proposed MPNMS would include all of the known WWI-era U.S. 
Emergency Fleet Corporation vessels in Maryland waters, as well as a 
number of historically, archaeologically, and recreationally 
significant shipwrecks not currently included in the National Register 
Historic District that is located within the proposed area. The area 
incorporates marine battlescapes such as the land-sea engagements in 
the Civil War, among the first in that conflict, and one Revolutionary 
War battlescape; the site of the first military balloon launch from a 
purpose built ``aircraft carrier'' in history; the site of two major 
amphibious invasion operations: Butler's attack from Budd's Ferry to 
Quantico Creek on March 9, 1861, and the Liverpool Point to Aquia Creek 
crossings during the Fredericksburg Campaign; several wharves, 
landings, navigational aids of historic note; Confederate 
communications and contraband water routes during the Civil War, and 
the overall scene of the

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Union's Potomac River blockade, 1861-1865.
    The proposed boundary was developed based on the nomination 
submitted by the State of Maryland and expanded based on additional 
information and suggestions received during the public comment period. 
NOAA's adjustments include moving both the northern and southern 
boundary lines to incorporate additional maritime culture heritage 
resources.

4. Definitions

a. Define MPNMS Sanctuary Resources
    NOAA is proposing to narrowly define ``sanctuary resources'' for 
MPNMS to include only the maritime cultural heritage resources of the 
sanctuary area in accordance with the purpose of the proposed 
designation. The definition would not include biological and ecological 
resources of the area already managed by the State of Maryland. 
Creating this new site-specific definition requires NOAA to modify the 
national definition of ``sanctuary resource'' in the national 
regulations at section 922.3 to add an additional sentence that defines 
the term for MPNMS at section 922.201(a). This is similar to the 
approach taken for other national marine sanctuaries that do not share 
the full ``sanctuary resource'' definition such as Thunder Bay National 
Marine Sanctuary.
    Additionally NOAA would add a definition in the MPNMS regulations 
at section 922.201(a) for sanctuary resource that uses the national 
definition for ``historical resources'' and expands it to specifically 
provide examples of the types of resources in this sanctuary that fall 
within that definition. The national definition of ``historical 
resources'' at section 922.3 describes the resource within the 
definition of ``historical resource'' to include resources that possess 
historical, cultural, archaeological or paleontological significance, 
such as sites, contextual information, structures, districts, and 
objects significantly associated with or representative of earlier 
people, cultures, maritime heritage, and human activities and events. 
These historical resources also include ``cultural resources,'' 
``submerged cultural resources,'' and also include ``historical 
properties,'' as defined in the National Historic Preservation Act.
    The new MPNMS definition of sanctuary resources would then be 
defined in section 922.201 to include historical resources as defined 
by section 922.3. This would include any sunken watercraft and any 
associated rigging, gear, fittings, trappings, and equipment. It would 
also include personal property of the officers, crew, and passengers, 
and any cargo, as well as and any submerged or partially submerged 
prehistoric, historic cultural remains, such as docks, piers, fishing-
related remains (e.g. weirs, fish-traps) or other cultural heritage 
materials. For MPNMS sanctuary resource would also mean any 
archaeological, historical, and cultural remains associated with or 
representative of historic or prehistoric American Indians and historic 
groups or peoples and their activities.
    This proposed rule incorporates and adopts other common terms 
defined in the existing national regulations at section 922.3; some of 
those definitions include: ``Cultural resources,'' which means any 
historical or cultural feature, including archaeological sites, 
historic structures, shipwrecks, and artifacts; and ``National Marine 
Sanctuary'' or ``Sanctuary,'' which means an area of the marine 
environment of special national significance due to its resource or 
human-use values, which is designated as such to ensure its 
conservation and management.

5. Co-Management of the Sanctuary

    In order to further enhance the strong engagement forged by the 
State of Maryland and Charles County in nominating this area as a 
proposed national marine sanctuary and in contributing to the 
development of the draft designation documents, NOAA proposes to manage 
the sanctuary collaboratively with the state and county. NOAA proposes 
to establish the framework for co-management of the sanctuary at 
section 922.202 and intends to work out the operational details of the 
collaboration in a Memorandum of Understanding (MOU). Details on the 
execution of sanctuary management such as activities, programs, and 
permitting programs would be included in the MOU and can be updated to 
adapt to changing conditions or threats to the sanctuary resources. Any 
significant changes to the regulations or management plan would not 
only be jointly coordinated but also subject to public review.

6. Prohibited and Regulated Activities

    NOAA is proposing to supplement and complement existing management 
of this area by proposing three regulations to protect the sanctuary 
resources in section 922.203(a).
a. Damaging Sanctuary Resources
    As a complement to existing protections under state law and NHPA 
regulations, NOAA is proposing to prohibit damaging a sanctuary 
resource. The proposed regulation would prohibit moving, removing, 
recovering, altering, destroying, possessing, or otherwise injuring, or 
attempting to move, remove, recover, alter, destroy, possess or 
otherwise injure a sanctuary resource. The sanctuary prohibition on 
possessing a sanctuary resources would not apply to historical 
resources removed from the Sanctuary before the designation is 
complete. However, Maryland state regulations related to the limited 
removal of historical resources have been in effect since July 1, 1988 
currently apply to these resources and will continue to do so. In the 
case of sanctuary resources that are covered under the Sunken Military 
Craft Act (SMCA; Pub. L. 108-375, Tit. XIV; 10 U.S.C. 113 note), NOAA 
and the U.S. Navy would cooperate on protecting those resources using 
the policy and procedures described in the 2015 Memorandum of Agreement 
(MOA). NOAA and the Maryland Historical Trust have tentatively 
identified one shipwreck as covered under the SMCA. A copy of the MOA 
is available at: https://www.gc.noaa.gov/moa-2014-navy-signed.pdf.
b. Damaging Sanctuary Signs
    In addition to prohibiting damage to sanctuary resources, NOAA is 
also proposing to prohibit damage to sanctuary signs, notices, 
placards, monuments, stakes, posts, buoys, or boundary markers. These 
materials are part of the management of the sanctuary and may 
contribute to education and outreach programs. The materials are also 
federal property and therefore NOAA proposes to prohibit damage from 
marking, defacing or altering the materials in any way.
c. Interfering With Investigations
    NOAA is proposing a regulation to prohibit interfering with 
sanctuary enforcement activities. This regulation will assist in NOAA's 
enforcement of the sanctuary regulations and strengthen sanctuary 
management.
d. Exemption for Emergencies and Law Enforcement
    NOAA is proposing to include an exemption from the three 
regulations described above for activities the respond to emergencies 
that threaten lives, property or the environment, or are necessary for 
law enforcement purposes.
e. Department of Defense Activities
    NOAA is also proposing that Department of Defense (DOD) activities 
be carried out in a manner that avoids

[[Page 2259]]

damage to sanctuary resources to the maximum extent practicable. In the 
event that DOD activities damage a sanctuary resource, NOAA and DOD 
would coordinate to work out a mitigation and restoration plan. Given 
the definition of sanctuary resources is limited to the historical 
resources and does not include biological or ecological resources NOAA 
does not anticipate that many, if any, current DOD activities would 
impact the resources.

7. Emergency Regulations

    As part of the proposed designation, NOAA is proposing to give the 
sanctuary authority to issue emergency regulations. Emergency 
regulations are used in limited cases and under specific conditions 
when there is an imminent risk to sanctuary resources and a temporary 
prohibition would prevent the destruction or loss of those resources. 
Under the NMSA, NOAA only issues emergency regulations that address an 
imminent risk for a fixed amount of time with a maximum of 6 months 
that can only be extended a single time. A full rulemaking process must 
be undertaken, including a public comment period, to consider making an 
emergency regulation permanent. NOAA would add the authority to issue 
emergency regulations by modifying the national regulations at section 
922.44 to include MPNMS in a list of sanctuaries that have site-
specific regulations related to emergency regulations, and adding 
detailed site-specific emergency regulations to the MPNMS regulations 
at section 922.204.

8. General Permits, Certifications, Authorizations, and Special Use 
Permits

a. General Permits
    NOAA is proposing to include the authority to issue permits to 
allow certain activities that would otherwise violate the prohibition 
in MPNMS. Similar to other national marine sanctuaries, NOAA is 
proposing to consider these permits only for education, research, or 
management.
    To address the above additions to the ONMS general permit authority 
for MPNMS, NOAA would amend regulatory text in the program-wide 
regulations in part 922, subpart E, to add references to subpart S, as 
appropriate. NOAA would also add a new section 922.205 in subpart S 
titled ``Permit procedures and review criteria'' that would address 
site-specific permit procedures for MPNMS.
b. Certifications
    Because of the possibility that preexisting activities, right of 
subsistence use or access permitted by other federal, state, local, or 
tribal agencies might be occurring within the MPNMS area that would 
otherwise be prohibited by MPNMS regulations, NOAA would add language 
at section 922.206 describing the process by which it can certify 
existing activities within the expansion area. In compliance with the 
NMSA, MPNMS regulations at section 922.206 would state that 
certification is the process by which permitted activities existing 
prior to the designation of the sanctuary that violate sanctuary 
prohibitions may be allowed to continue, provided certain conditions 
are met. Applications for certifying permitted existing uses would have 
to be received by NOAA within 180 days of the effective date of the 
designation.
c. Authorizations
    NOAA also proposes to provide MPNMS with the authority to consider 
allowing an otherwise prohibited activity if such activity is 
specifically authorized by any valid Federal, state, or local lease, 
permit, license, approval, or other authorization issued after 
sanctuary designation. Authorization authority is intended to 
streamline regulatory requirements by reducing the need for multiple 
permits and would apply to all proposed prohibitions at section 
922.203. As such, NOAA proposes to amend the regulatory text at section 
922.49 to add reference to subpart S.
d. Special Use Permits
    NOAA has the authority under the NMSA to issue special use permits 
(SUPs) at national marine sanctuaries as established by Section 310 of 
the NMSA. SUPs can be used to authorize specific activities in a 
sanctuary if such authorization is necessary (1) to establish 
conditions of access to and use of any sanctuary resource; or (2) to 
promote public use and understanding of a sanctuary resource. The 
activities that qualify for a SUP are set forth in the Federal Register 
(78 FR 25957; May 3, 2013). Categories of SUPs may be changed or added 
to through public notice and comment. NOAA would not apply the SUP to 
activities in place at the time of the MPNMS designation.
    SUP applications are reviewed to ensure that the activity is 
compatible with the purposes for which the sanctuary is designated and 
that the activities carried out under the SUP be conducted in a manner 
that do not destroy, cause the loss of, or injure sanctuary resources. 
NOAA also requires SUP permittees to purchase and maintain 
comprehensive general liability insurance, or post an equivalent bond, 
against claims arising out of activities conducted under the permit. 
The NMSA allows NOAA to assess and collect fees for the conduct of any 
activity under a SUP. The fees collected could be used to recover the 
administrative costs of issuing the permit, the cost of implementing 
the permit, monitoring costs associated with the conduct of the 
activity, and the fair market value of the use of sanctuary resources.

9. Other Conforming Amendments

    The general regulations in part 922, subpart A, for general 
information and part 922, subpart E, for regulations of general 
applicability would also have to be amended so that the regulations are 
accurate and up-to-date. The 10 sections that will need to be updated 
to reflect the increased number of sanctuaries or to add subpart S to 
the list of sanctuaries. The modified sections to conform to adding a 
new sanctuary are:

 Section 922.1 Applicability of regulations
 Section 922.40 Purpose
 Section 922.41 Boundaries
 Section 922.42 Allowed activities
 Section 922.43 Prohibited or otherwise regulated activities
 Section 922.44 Emergency regulations
 Section 922.47 Pre-existing authorizations or rights and 
certifications of pre-existing authorizations or rights
 Section 922.48 National Marine Sanctuary permits--application 
procedures and issuance criteria
 Section 922.49 Notification and review of applications for 
leases, licenses, permits, approvals, or other authorizations to 
conduct a prohibited activity
 Section 922.50 Appeals of administrative action

10. Terms of Designation

    Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA) 
requires that the terms of designation include the geographic area 
included within the sanctuary; the characteristics of the area that 
give it conservation, recreational, ecological, historical, research, 
educational, or aesthetic value; and the types of activities that will 
be subject to regulation by the Secretary of Commerce to protect these 
characteristics. Section 304(a)(4) also specifies that the terms of 
designation may be modified only by the same procedures by which the 
original designation was made. Thus, the terms of designation serve as 
a constitution for the Sanctuary.

[[Page 2260]]

    NOAA is proposing to establish terms to designation that describe 
the geographic area, resources, and activities as described in details 
above. NOAA would add the terms of designation language as Appendix B 
to the MPNMS regulations at 15 CFR part 922, subpart S.

III. Classification

National Marine Sanctuaries Act

    NOAA has determined that the designation of the Mallows Bay--
Potomac River National Marine Sanctuary will not have a negative impact 
on the National Marine Sanctuary System and that sufficient resources 
exist to effectively implement sanctuary management plans and to update 
site characterizations. The finding for NMSA section 304(f) is 
published on the ONMS Web site for the Mallows Bay--Potomac River 
designation at https://sanctuaries.noaa.gov/mallows-bay/.

National Environmental Policy Act

    NOAA has prepared a draft environmental impact statement to 
evaluate the environmental effects of the proposed rulemaking and 
alternatives as required by NEPA (42 U.S.C. 4321 et seq.) and the NMSA. 
Copies of the DEIS and related DMP are available at the address and Web 
site listed in the ADDRESSES section of this proposed rule. NOAA is 
also soliciting public comments on the DEIS and DMP. Responses to 
comments received on this proposed rule as well as on the DEIS and 
draft management plan will be published in the final environmental 
impact statement and preamble to the final rule.

Coastal Zone Management Act

    Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 
1456) requires Federal agencies to consult with a state's coastal 
program on potential Federal regulations having an effect on state 
waters. Because MPNMS encompasses a portion of the Maryland State 
waters and is adjacent to the Commonwealth of Virginia lands and 
waters, NOAA intends to submit a copy of this proposed rule and 
supporting documents to the Maryland Coastal Zone Management Program 
and Virginia Coastal Zone Management Program for evaluation of Federal 
consistency under the CZMA. NOAA will publish the final rule and 
designation only after completion of the consultation requirements 
under the CZMA.

Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 13132 because NOAA 
supplements and complements state and local laws under the NMSA.

National Historic Preservation Act

    The National Historic Preservation Act (NHPA; 16 U.S.C. 470 et 
seq.) is intended to preserve historical and archaeological sites in 
the United States of America. The act created the National Register of 
Historic Places, the list of National Historic Landmarks, and State 
Historic Preservation Offices. Section 106 of the NHPA requires Federal 
agencies to take into account the effects of their undertakings on 
historic properties, and afford the Advisory Council on Historic 
Preservation (ACHP) a reasonable opportunity to comment. The historic 
preservation review process mandated by Section 106 is outlined in 
regulations issued by ACHP (36 CFR part 800 et seq.). In fulfilling its 
responsibilities under the NHPA, NOAA is seeking to identify consulting 
parties in addition to the State Historic Preservation Officer (SHPO), 
and will complete the identification of historic properties and the 
assessment of the effects of the undertaking on such properties in 
scheduled consultations with those identified parties and the SHPO. By 
this notice NOAA seeks public input, particularly in regard to the 
identification of historic properties within the proposed areas of 
potential effect. Pursuant to 36 CFR 800.16(1)(1), historic properties 
includes: ``any prehistoric or historic district, site, building, 
structure or object included in, or eligible for inclusion in, the 
National Register of Historic Places maintained by the Secretary of the 
Interior. The term includes artifacts, records, and remains that are 
related to and located within such properties. The term includes 
properties of traditional religious and cultural importance to an 
Indian tribe or Native Hawaiian organization and that meet the National 
Register criteria.'' If you, your organization(s), or business(es) 
would like to be considered a ``consulting party'' under Section 106 
please contact the individual listed under the heading FOR FURTHER 
INFORMATION CONTACT; include contact information for the principal 
representative for the consultation; and describe you or your party's 
interest in the proposed designation. In accordance with 36 CFR 
800.3(f)(3), NOAA will consider all ``consulting party'' requests but 
has ultimate discretion in determining and inviting additional 
consulting parties.

Regulatory Flexibility Act

    The Small Business Administration has established thresholds on the 
designation of businesses as ``small entities''. A finfish fishing 
businesses is considered a small business if it has annual receipts of 
less than $20.5 million. Scenic and Sightseeing and Recreational 
industries are considered small businesses if they have annual receipts 
not in excess of $7.5 million. According to these limits, each of the 
businesses potentially affected by the proposed rule would most likely 
be small businesses. However, as further discussed below, these 
regulations will not have a significant economic impact on the affected 
small entities, and the Chief Counsel for Regulations for the 
Department of Commerce has certified to the Chief Counsel for Advocacy 
of the Small Business Administration that this rule will not have 
significant economic impact on a substantial number of small entities. 
Thus, NOAA is not required to and has not prepared an initial 
regulatory flexibility analysis.
    Methodology. The analysis here is based on limited quantitative 
information on how much each activity occurs within the proposed 
sanctuary. Consequently, the result is more qualitative than 
quantitative.
    Scales Used for Assessing Impacts. For assessing levels of impacts 
within an alternative, NOAA used three levels; ``negligible'', 
``moderate'' and ``high'' plus ``no impacts''. For levels of impacts 
within the proposed alternatives being analyzed, negligible means very 
low benefits, costs, or net benefits (less than 1% change). Moderate 
impacts would be more than 1% but less than or equal to 10%, and high 
impacts would be more than 10%. For market economic values (revenue, 
costs, and profits), negligible would mean no likely impact whereas 
moderate and high could mean some measurable impact on market economic 
values at the levels noted above. NOAA analyzed the proposed national 
marine sanctuary described above.
    Small business user groups include commercial fishing operation, 
recreation-tourism related businesses, and land use and development

[[Page 2261]]

businesses. Other user groups not included here are research and 
education, people who receive passive economic use value from 
stabilization or improvement to the proposed sanctuary resources and 
the U.S. Navy, none of whom are small businesses.
    NOAA assessed three types of regulations included in the proposed 
action; (1) moving, removing, recovering, altering, inuring, etc., (2) 
marking, defacing or damaging etc., and (3) interfering with 
obstructing, etc. (see section 922.203 for full details).
    Proposed Action.
    Moving, Removing, etc. Regulation. Under the proposed rule, NOAA 
would not permit moving, removing, recovering, altering, injuring, 
destroying, possessing or attempting to move, remove, recover, alter, 
injure, destroy or possess a sanctuary resource (except where removed 
or possessed prior to sanctuary designation). Small businesses that 
could potentially be impacted include commercial fishing, recreational 
for-hire fishing operations, dive operations and other water recreation 
based operators.
    The expected impact to all these business in the preferred 
alternative is ``no impact''. The gear likely to be used to 
commercially fish or recreationally fish in the sanctuary will not be 
impacted by this regulation. Therefore, commercial fishing operations 
and for-hire operations are not expected to be impacted. Education and 
outreach will be used to educate user groups about the location of the 
sanctuary resources to prevent anchor damage. Divers will still be able 
to use the resource, but not able to take sanctuary resources, 
therefore the impact for this user group is also ``no impact''.
    Marking, defacing or damaging, etc. Regulation. Using the best 
information, there are no known businesses that rely on damaging or 
defacing sanctuary resources and no known businesses whose actions 
damage or deface sanctuary resources. Therefore, this prohibition is 
expected to have ``no impact'' on small businesses.
    Interfering with, obstructing, delaying or preventing an 
investigation Regulation. This prohibition is also expected to have 
``no impact'' on small businesses. There is no evidence that any small 
businesses in the area would be impacted by this prohibition.
    All Regulations. NOAA expects the combined effects of all the 
regulations to have ``no impact'' on small businesses. However, it is 
possible that some small business may be able to leverage a sanctuary 
designation to increase awareness and interest in recreational 
opportunities within the sanctuary and sanctuary community. This could 
potentially improve the potential for business growth within the area. 
In which case, recreational operators could potentially see a positive 
``moderate'' improvement. Additionally, these regulations will have no 
impact on personal property rights, land use and planning.

Paperwork Reduction Act

    ONMS has a valid Office of Management and Budget (OMB) control 
number (0648-0141) for the collection of public information related to 
the processing of ONMS permits across the National Marine Sanctuary 
System. NOAA's proposal to create MPNMS would likely result in an 
increase in the number of requests for ONMS general permits, special 
use permits, certifications, and authorizations because this action 
proposes to add general permits and special use permits, 
certifications, appeals, and the authority to authorize other valid 
federal, state, or local leases, permits, licenses, approvals, or other 
authorizations. An increase in the number of ONMS permit requests would 
require a change to the reporting burden certified for OMB control 
number 0648-0141. An update to this control number for the processing 
of ONMS permits would be requested as part of the final rule for 
sanctuary expansion.
    Nationwide, NOAA issues approximately 500 national marine sanctuary 
permits each year. Of this amount, MPNMS is expected to add 4 to 5 
permit requests per year. The public reporting burden for national 
marine sanctuaries permits is estimated to average 1.5 hours per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed and 
completing and reviewing the collection of information.
    Send comments regarding the burden estimate for this data 
collection requirement, or any other aspect of this data collection, 
including suggestions for reducing the burden, to NOAA (see ADDRESSES) 
and by email to OIRA_submission@omb.eop.gov, or fax to (202) 395-7285.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act, unless that collection of information 
displays a currently valid OMB control number.

IV. Request for Comments

    NOAA requests comments on this proposed rule by March 31, 2017. In 
additional to requesting comments on this proposed rule, NOAA is also 
soliciting input on the DEIS and DMP. In addition NOAA would like the 
public comments on the proposed name for the sanctuary.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Historic 
preservation, Intergovernmental relations, Marine resources, Natural 
resources, Penalties, Recreation and recreation areas, Reporting and 
recordkeeping requirements, Wildlife.

    Dated: December 22, 2016.
W. Russell Callender,
Assistant Administrator for Ocean Services and Coastal Zone Management.

    Accordingly, for the reasons discussed in the preamble, the 
National Oceanic and Atmospheric Administration proposes to amend 15 
CFR part 922 as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

0
1. The authority citation for 15 CFR part 922 continues to read as 
follows:

    Authority: 16 U.S.C. 1431 et seq.

0
2. Revise Sec.  922.1 to read as follows:


Sec.  922.1  Applicability of regulations.

    Unless noted otherwise, the regulations in subparts A, D, and E of 
this part apply to all National Marine Sanctuaries and related site-
specific regulations set forth in this part. Subparts B and C of this 
part apply to the sanctuary nomination process and to the designation 
of future Sanctuaries.
0
3. Amend Sec.  922.3 by revising the definition of ``Sanctuary 
resource'' to read as follows:


Sec.  922.3  Definitions.

* * * * *
    Sanctuary resource means any living or non-living resource of a 
National Marine Sanctuary that contributes to the conservation, 
recreational, ecological, historical, research, educational, or 
aesthetic value of the Sanctuary, including, but not limited to, the 
substratum of the area of the Sanctuary, other submerged features and 
the surrounding seabed, carbonate rock, corals and other bottom 
formations, coralline algae and other marine plants and algae, marine 
invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, 
seabirds, sea turtles and other marine reptiles, marine mammals and

[[Page 2262]]

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).
* * * * *
0
4. Revise Sec.  922.40 to read as follows:


Sec.  922.40  Purpose.

    The purpose of the regulations in this subpart and in the site-
specific subparts is to implement the designations of the National 
Marine Sanctuaries by regulating activities affecting them, consistent 
with their respective terms of designation in order to protect, 
preserve and manage and thereby ensure the health, integrity and 
continued availability of the conservation, ecological, recreational, 
research, educational, historical and aesthetic resources and qualities 
of these areas. Additional purposes of the regulations implementing the 
designation of the Florida Keys and Hawaiian Islands Humpback Whale 
National Marine Sanctuaries are found at Sec. Sec.  922.160 and 
922.180, respectively.
0
5. Revise Sec.  922.41 to read as follows:


Sec.  922.41  Boundaries.

    The boundary for each of the National Marine Sanctuaries is set 
forth in the site-specific regulations covered by this part.
0
6. Revise Sec.  922.42 to read as follows:


Sec.  922.42  Allowed activities.

    All activities (e.g., fishing, boating, diving, research, 
education) may be conducted unless prohibited or otherwise regulated in 
the site-specific regulations covered by this part, subject to any 
emergency regulations promulgated under this part, subject to all 
prohibitions, regulations, restrictions, and conditions validly imposed 
by any Federal, State, or local authority of competent jurisdiction, 
including but not limited to, Federal, Tribal, and State fishery 
management authorities, and subject to the provisions of section 312 of 
the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.). 
The Assistant Administrator may only directly regulate fishing 
activities pursuant to the procedure set forth in section 304(a)(5) of 
the NMSA.
0
7. Revise Sec.  922.43 to read as follows:


Sec.  922.43  Prohibited or otherwise regulated activities.

    The site-specific regulations applicable to the activities 
specified therein are set forth in the subparts covered by this part.
0
8. Revise Sec.  922.44 to read as follows:


Sec.  922.44  Emergency regulations.

    (a) Where necessary to prevent or minimize the destruction of, loss 
of, or injury to a Sanctuary resource or quality, or minimize the 
imminent risk of such destruction, loss, or injury, any and all such 
activities are subject to immediate temporary regulation, including 
prohibition.
    (b) The provisions of this section do not apply to the following 
national marine sanctuaries with site-specific regulations that 
establish procedures for issuing emergency regulations:
    (1) Cordell Bank National Marine Sanctuary, Sec.  922.112(e).
    (2) Florida Keys National Marine Sanctuary, Sec.  922.165.
    (3) Hawaiian Islands Humpback Whale National Marine Sanctuary, 
Sec.  922.185.
    (4) Thunder Bay National Marine Sanctuary, Sec.  922.196.
    (5) Mallows Bay--Potomac River National Marine Sanctuary, Sec.  
922.204.
    (6) [Reserved]
0
9. Amend Sec.  922.47 by revising paragraph (b) to read as follows:


Sec.  922.47  Pre-existing authorizations or rights and certifications 
of pre-existing authorizations or rights.

* * * * *
    (b) The prohibitions listed in subparts F through P and R through T 
of this part do not apply to any activity authorized by a valid lease, 
permit, license, approval or other authorization in existence on the 
effective date of Sanctuary designation, or in the case of the Florida 
Keys National Marine Sanctuary the effective date of the regulations in 
subpart P, and issued by any Federal, State or local authority of 
competent jurisdiction, or by any valid right of subsistence use or 
access in existence on the effective date of Sanctuary designation, or 
in the case of the Florida Keys National Marine Sanctuary the effective 
date of the regulations in subpart P, provided that the holder of such 
authorization or right complies with certification procedures and 
criteria promulgated at the time of Sanctuary designation, or in the 
case of the Florida Keys National Marine Sanctuary the effective date 
of the regulations in subpart P, and with any terms and conditions on 
the exercise of such authorization or right imposed by the Director as 
a condition of certification as the Director deems necessary to achieve 
the purposes for which the Sanctuary was designated.
0
10. Revise Sec.  922.48 to read as follows:


Sec.  922.48  National Marine Sanctuary permits--application procedures 
and issuance criteria.

    (a) A person may conduct an activity prohibited by subparts F 
through O and S and T of this part, if conducted in accordance with the 
scope, purpose, terms and conditions of a permit issued under this 
section and subparts F through O and S and T, as appropriate. For the 
Florida Keys National Marine Sanctuary, a person may conduct an 
activity prohibited by subpart P of this part if conducted in 
accordance with the scope, purpose, terms and conditions of a permit 
issued under Sec.  922.166. For the Thunder Bay National Marine 
Sanctuary and Underwater Preserve, a person may conduct an activity 
prohibited by subpart R of this part in accordance with the scope, 
purpose, terms and conditions of a permit issued under Sec.  922.195.
    (b) Applications for permits to conduct activities otherwise 
prohibited by subparts F through O and S and T of this part, should be 
addressed to the Director and sent to the address specified in subparts 
F through O of this part, or subparts R through T of this part, as 
appropriate. An application must include:
    (1) A detailed description of the proposed activity including a 
timetable for completion;
    (2) The equipment, personnel and methodology to be employed;
    (3) The qualifications and experience of all personnel;
    (4) The potential effects of the activity, if any, on Sanctuary 
resources and qualities; and
    (5) Copies of all other required licenses, permits, approvals or 
other authorizations.
    (c) Upon receipt of an application, the Director may request such 
additional information from the applicant as he or she deems necessary 
to act on the application and may seek the views of any persons or 
entity, within or outside the Federal government, and may hold a public 
hearing, as deemed appropriate.
    (d) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct a prohibited activity, in accordance with the criteria found in 
subparts F through O of this part, or subparts R through T of this 
part, as appropriate. The Director shall further impose, at a minimum, 
the conditions set forth in the relevant subpart.
    (e) A permit granted pursuant to this section is nontransferable.
    (f) The Director may amend, suspend, or revoke a permit issued 
pursuant to

[[Page 2263]]

this section for good cause. The Director may deny a permit application 
pursuant to this section, in whole or in part, if it is determined that 
the permittee or applicant has acted in violation of the terms and 
conditions of a permit or of the regulations set forth in this section 
or subparts F through O of this part, or subparts R through T of this 
part or for other good cause. Any such action shall be communicated in 
writing to the permittee or applicant by certified mail and shall set 
forth the reason(s) for the action taken. Procedures governing permit 
sanctions and denials for enforcement reasons are set forth in subpart 
D of 15 CFR part 904.
0
11. Revise Sec.  922.49 to read as follows:


Sec.  922.49  Notification and review of applications for leases, 
licenses, permits, approvals, or other authorizations to conduct a 
prohibited activity.

    (a) A person may conduct an activity prohibited by subparts L 
through P of this part, or subparts R through T of this part, if such 
activity is specifically authorized by any valid Federal, State, or 
local lease, permit, license, approval, or other authorization issued 
after the effective date of Sanctuary designation, or in the case of 
the Florida Keys National Marine Sanctuary after the effective date of 
the regulations in subpart P, provided that:
    (1) The applicant notifies the Director, in writing, of the 
application for such authorization (and of any application for an 
amendment, renewal, or extension of such authorization) within fifteen 
(15) days of the date of filing of the application or the effective 
date of Sanctuary designation, or in the case of the Florida Keys 
National Marine Sanctuary the effective date of the regulations in 
subpart P of this part, 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 Sanctuary resources and qualities. The information requested 
must be received by the Director within 45 days of the postmark date of 
the request. The Director may seek the views of any persons on the 
application.
    (e) The Director shall notify, in writing, the agency to which 
application has been made of his or her pending review of the 
application and possible objection to issuance. Upon completion of 
review of the application and information received with respect 
thereto, the Director shall notify both the agency and applicant, in 
writing, whether he or she has an objection to issuance and what terms 
and conditions he or she deems reasonably necessary to protect 
Sanctuary resources and qualities, and reasons therefor.
    (f) The Director may amend the terms and conditions deemed 
reasonably necessary to protect Sanctuary resources and qualities 
whenever additional information becomes available justifying such an 
amendment.
    (g) Any time limit prescribed in or established under this section 
may be extended by the Director for good cause.
    (h) The applicant may appeal any objection by, or terms or 
conditions imposed by, the Director to the Assistant Administrator or 
designee in accordance with the provisions of Sec.  922.50.
0
12. Revise Sec.  922.50 to read as follows:


Sec.  922.50  Appeals of administrative action.

    (a)(1) Except for permit actions taken for enforcement reasons (see 
subpart D of 15 CFR part 904 for applicable procedures), an applicant 
for, or a holder of, a National Marine Sanctuary permit; an applicant 
for, or a holder of, a Special Use permit issued pursuant to section 
310 of the Act; a person requesting certification of an existing lease, 
permit, license or right of subsistence use or access under Sec.  
922.47; or, for those Sanctuaries described in subparts L through P and 
R through T of this part, an applicant for a lease, permit, license or 
other authorization issued by any Federal, State, or local authority of 
competent jurisdiction (hereinafter appellant) may appeal to the 
Assistant Administrator:
    (i) The granting, denial, conditioning, amendment, suspension or 
revocation by the Director of a National Marine Sanctuary or Special 
Use permit;
    (ii) The conditioning, amendment, suspension or revocation of a 
certification under Sec.  922.47; or
    (iii) For those Sanctuaries described in subparts L through P and R 
through T of this part, the objection to issuance of or the imposition 
of terms and conditions on a lease, permit, license or other 
authorization issued by any Federal, State, or local authority of 
competent jurisdiction.
    (2) For those National Marine Sanctuaries described in subparts F 
through K and S and T of this part, any interested person may also 
appeal the same actions described in paragraphs (a)(1)(i) and (ii) of 
this section. For appeals arising from actions taken with respect to 
these National Marine Sanctuaries, the term ``appellant'' includes any 
such interested persons.
    (b) An appeal under paragraph (a) of this section must be in 
writing, state the action(s) by the Director appealed and the reason(s) 
for the appeal, and be received within 30 days of receipt of notice of 
the action by the Director. Appeals should be addressed to the 
Assistant Administrator for Ocean Services and Coastal Zone Management, 
NOAA 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910.
    (c)(1) The Assistant Administrator may request the appellant to 
submit such information as the Assistant Administrator deems necessary 
in order for him or her to decide the appeal. The information requested 
must be received by the Assistant Administrator within 45 days of the 
postmark date of the request. The Assistant Administrator may seek the 
views of any other persons. For the Monitor National Marine Sanctuary, 
if the appellant has requested a hearing, the Assistant Administrator 
shall grant an informal hearing. For all other National Marine 
Sanctuaries, the Assistant Administrator may determine whether to hold 
an informal hearing on the appeal. If the Assistant Administrator 
determines that an informal hearing should be held, the Assistant 
Administrator may designate an officer before whom the hearing shall be 
held.
    (2) The hearing officer shall give notice in the Federal Register 
of the time, place and subject matter of the hearing. The appellant and 
the Director may appear personally or by counsel at the hearing and 
submit such material and present such arguments as deemed appropriate 
by the hearing officer.

[[Page 2264]]

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
13. Add subpart S to read as follows:

Subpart S--Mallows Bay--Potomac River National Marine Sanctuary

Sec.
922.200 Boundary.
922.201 Definitions.
922.202 Joint management.
922.203 Prohibited or otherwise regulated activities.
922.204 Emergency regulations.
922.205 Permit procedures and review criteria.
922.206 Certification of preexisting leases, licenses, permits, 
approvals, other authorizations, or rights to conduct a prohibited 
activity.
Appendix A to Subpart S of Part 922--Mallows Bay--Potomac River 
Marine Sanctuary Boundary Description and Coordinates of the Lateral 
Boundary Closures and Excluded Areas
Appendix B to Subpart S of Part 922--Mallows Bay--Potomac River 
Marine Sanctuary Terms of Designation


Sec.  922.200  Boundary.

    The Mallows Bay--Potomac River National Marine Sanctuary consists 
of an area of approximately 39 square nautical miles (nmi 2) (52 sq. 
mi) of waters of the state of Maryland in the Potomac River and the 
submerged lands thereunder, over, around, and under the underwater 
cultural resources in the Potomac River. The precise boundary 
coordinates are listed in appendix A to this subpart. The southern and 
western boundary of the sanctuary approximates the border between the 
Commonwealth of Virginia and the State of Maryland along the western 
side of the Potomac River and begins at Point 1 east of Choptank Creek 
in King George County near Hooes, VA. From this point the boundary 
continues to the west passing through the points in numerical order 
until it reaches Point 237 at Bull Bluff on the southern side of the 
mouth of Potomac Creek. From this point the boundary continues north 
across the mouth of Potomac Creek to Point 238 near Marlboro Point in 
Stafford, VA. and once again follows the points in numerical order 
until it reaches Point 269 at the southern side of the mouth of Aquia 
Creek. From this point the boundary continues north across the mouth of 
Aquia Creek to Point 270 near Brent Point in Stafford, VA. The boundary 
then continues north passing through the points in numerical order 
until it reaches Point 312 north of Tank Creek near the restricted area 
in the Potomac River around Marine Base Quantico at the mouth of 
Chopawamsic Creek. From this point the boundary continues outside of 
and around the restricted area to the east and then north again passing 
through the points in numerical order until it reaches Point 343 south 
of Quantico Marina. From this point the boundary continues to the east, 
then north and west around the marina and then north again following 
the points in numerical order until it reaches Point 365 at Shipping 
Point on the southern side of the mouth of Quantico Creek in Quantico, 
VA. From this point the boundary moves to the NNE across the mouth of 
Quantico Creek to Possum Point near Dumfries, VA. From this point the 
boundary continues north passing through the points in numerical order 
until it reaches Point 390 SE of Southbridge, VA. From this point the 
boundary moves SE towards Point 391 in a straight line crossing the 
Potomac River until it intersects the shoreline of the river at Moss 
Point on the Maryland side at mean high water near Indian Head, MD just 
north of Goose Bay. From this intersection the boundary then follows 
the shoreline initially to the SW cutting across the mouths of creeks 
and streams along the eastern side of the Potomac River, then south 
past Sandy Point and around Mallows Bay. The boundary then continues 
following the shoreline south past Smith Point and Thomas Point where 
it turns to the SE and then east around Maryland Point. From here the 
boundary continues to follow the shoreline to the ENE past Riverside, 
MD until it intersects the line formed between Point 392 and Point 393 
at Benny Gray Point on the western side of the mouth of Nanjemoy Creek 
on Tayloe Neck in Maryland. Finally, from this intersection the 
boundary crosses the Potomac River to the SE in a straight line and 
continues to Point 393 east of Choptank Creek on the Virginia side of 
the Potomac River.


Sec.  922.201  Definitions.

    (a) The following terms are defined for purposes of this subpart:
    (1) Sanctuary resource means any historical resource with the 
Sanctuary boundaries, as defined in Sec.  922.3. This includes, but is 
not limited to, any sunken watercraft and any associated rigging, gear, 
fittings, trappings, and equipment; the personal property of the 
officers, crew, and passengers, and any cargo; and any submerged or 
partially submerged prehistoric, historic cultural remains, such as 
docks, piers, fishing-related remains (e.g., weirs, fish-traps) or 
other cultural heritage materials. Sanctuary resource also means any 
archaeological, historical, and cultural remains associated with or 
representative of historic or prehistoric American Indians and historic 
groups or peoples and their activities.
    (2) [Reserved]
    (b) All other terms appearing in the regulations in this subpart 
are defined at 15 CFR 922.3, and/or in the Marine Protection, Research, 
and Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 
1431 et seq.


Sec.  922.202  Joint management.

    NOAA has primary responsibility for the management of the Sanctuary 
pursuant to the Act. However, NOAA shall co-manage the Sanctuary in 
collaboration with the State of Maryland and Charles County. The 
Director shall enter into a Memorandum of Understanding regarding this 
collaboration that shall address, but not be limited to, such aspects 
as areas of mutual concern, including Sanctuary programs, permitting, 
activities, development, and threats to Sanctuary resources.


Sec.  922.203  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) and (c) 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. This 
prohibition does not apply to possessing historical resources removed 
from the Sanctuary area before the effective date of the Sanctuary 
designation.
    (2) Marking, defacing, or damaging in any way, or displacing or 
removing or

[[Page 2265]]

tampering with any signs, notices, or placards, whether temporary or 
permanent, or with any monuments, stakes, posts, buoys, or other 
boundary markers related to the Sanctuary.
    (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.
    (c)(1) Department of Defense activities must be carried out in a 
manner that avoids to the maximum extent practicable any adverse 
impacts on Sanctuary resources.
    (2) In the event of destruction of, loss of, or injury to a 
Sanctuary resource resulting from an incident, including but not 
limited to discharges, deposits, and groundings, caused by a Department 
of Defense activity, the Department of Defense, in coordination with 
the Director, must promptly prevent and mitigate further damage and 
must restore or replace the Sanctuary resource in a manner approved by 
the Director.


Sec.  922.204  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 Maryland 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.  922.205  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
    (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.  922.206  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.  
922.203(a)(1) through (3) if such activity is specifically authorized 
by a valid Federal, state, or local lease, permit, license, approval, 
or other authorization, or tribal right of subsistence use or access in 
existence prior to the effective date of sanctuary designation and 
within the sanctuary designated area and complies with Sec.  922.49 and 
provided that the holder of the lease, permit, license, approval, or 
other authorization complies with the requirements of paragraph (e) of 
this section.
    (b) In considering whether to make the certifications called for in 
this section, the Director may seek and consider the views of any other 
person or entity, within or outside the Federal government, and may 
hold a public hearing as deemed appropriate.
    (c) The Director may amend, suspend, or revoke any certification 
made under this section whenever continued operation would otherwise be 
inconsistent with any terms or conditions of the certification. Any 
such action shall be forwarded in writing to both the holder of the 
certified permit, license, or other authorization and the issuing 
agency and shall set forth reason(s) for the action taken.
    (d) Requests for findings or certifications should be addressed to 
the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary 
Superintendent, Mallows Bay--Potomac 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.  922.203(a)(1) through (3) provided that:
    (1) The holder of such authorization or right notifies the 
Director, in writing, within 180 days of the effective date of 
Sanctuary designation, of the existence of such authorization or right 
and requests certification of such authorization or right;
    (2) The holder complies with the other provisions of this section; 
and
    (3) The holder complies with any terms and conditions on the 
exercise of such authorization or right imposed as a condition of 
certification, by the Director, to achieve the purposes for which the 
Sanctuary was designated.

[[Page 2266]]

    (f) The holder of an authorization or right described in paragraph 
(a) of this section authorizing an activity prohibited by Sec.  922.203 
may conduct the activity without being in violation of applicable 
provisions of Sec.  922.203, 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 S of Part 922--Mallows Bay--Potomac River Marine 
Sanctuary Boundary Description and Coordinates of the Lateral Boundary 
Closures and Excluded Areas

    Coordinates listed in this appendix are unprojected (Geographic) 
and based on the North American Datum of 1983.

                   Table A1--Coordinates for Sanctuary
------------------------------------------------------------------------
                Point ID                     Latitude        Longitude
------------------------------------------------------------------------
1.......................................        38.36739       -77.08823
2.......................................        38.36717       -77.08948
3.......................................        38.36704       -77.09072
4.......................................        38.36699       -77.09216
5.......................................        38.36698       -77.09295
6.......................................        38.36683       -77.09370
7.......................................        38.36674       -77.09433
8.......................................        38.36680       -77.09469
9.......................................        38.36703       -77.09430
10......................................        38.36735       -77.09456
11......................................        38.36761       -77.09482
12......................................        38.36774       -77.09518
13......................................        38.36808       -77.09629
14......................................        38.36830       -77.09729
15......................................        38.36870       -77.09816
16......................................        38.36879       -77.09873
17......................................        38.36913       -77.10063
18......................................        38.36925       -77.10201
19......................................        38.36947       -77.10402
20......................................        38.36954       -77.10569
21......................................        38.36950       -77.10722
22......................................        38.36936       -77.10863
23......................................        38.36900       -77.11124
24......................................        38.36861       -77.11351
25......................................        38.36845       -77.11467
26......................................        38.36816       -77.11552
27......................................        38.36818       -77.11624
28......................................        38.36810       -77.11658
29......................................        38.36782       -77.11717
30......................................        38.36749       -77.11806
31......................................        38.36709       -77.12039
32......................................        38.36688       -77.12209
33......................................        38.36682       -77.12429
34......................................        38.36681       -77.12705
35......................................        38.36690       -77.12792
36......................................        38.36717       -77.12974
37......................................        38.36742       -77.13146
38......................................        38.36757       -77.13329
39......................................        38.36764       -77.13392
40......................................        38.36774       -77.13577
41......................................        38.36776       -77.13724
42......................................        38.36774       -77.13795
43......................................        38.36753       -77.13850
44......................................        38.36728       -77.13890
45......................................        38.36693       -77.13928
46......................................        38.36577       -77.14035
47......................................        38.36475       -77.14148
48......................................        38.36398       -77.14256
49......................................        38.36280       -77.14402
50......................................        38.36191       -77.14499
51......................................        38.36031       -77.14648
52......................................        38.35891       -77.14763
53......................................        38.35736       -77.14879
54......................................        38.35491       -77.15073
55......................................        38.35391       -77.15170
56......................................        38.35321       -77.15266
57......................................        38.35308       -77.15292
58......................................        38.35282       -77.15334
59......................................        38.35248       -77.15365
60......................................        38.35144       -77.15461
61......................................        38.35025       -77.15589
62......................................        38.34887       -77.15758
63......................................        38.34760       -77.15944
64......................................        38.34669       -77.16101
65......................................        38.34611       -77.16212
66......................................        38.34560       -77.16323
67......................................        38.34525       -77.16412
68......................................        38.34501       -77.16493
69......................................        38.34502       -77.16541
70......................................        38.34491       -77.16578
71......................................        38.34483       -77.16626
72......................................        38.34482       -77.16666
73......................................        38.34460       -77.16748
74......................................        38.34441       -77.16840
75......................................        38.34444       -77.16902
76......................................        38.34429       -77.16950
77......................................        38.34407       -77.17030
78......................................        38.34381       -77.17097
79......................................        38.34350       -77.17163
80......................................        38.34334       -77.17206
81......................................        38.34317       -77.17263
82......................................        38.34287       -77.17360
83......................................        38.34209       -77.17576
84......................................        38.34146       -77.17773
85......................................        38.34128       -77.17854
86......................................        38.34128       -77.17906
87......................................        38.34138       -77.17955
88......................................        38.34137       -77.17966
89......................................        38.34135       -77.17980
90......................................        38.34133       -77.18005
91......................................        38.34131       -77.18017
92......................................        38.34122       -77.18040
93......................................        38.34116       -77.18079
94......................................        38.34119       -77.18150
95......................................        38.34120       -77.18263
96......................................        38.34122       -77.18323
97......................................        38.34115       -77.18430
98......................................        38.34095       -77.18614
99......................................        38.34079       -77.18791
100.....................................        38.34064       -77.18962
101.....................................        38.34059       -77.19086
102.....................................        38.34052       -77.19230
103.....................................        38.34053       -77.19403
104.....................................        38.34068       -77.19429
105.....................................        38.34078       -77.19441
106.....................................        38.34064       -77.19511
107.....................................        38.34055       -77.19586
108.....................................        38.34048       -77.19651
109.....................................        38.34040       -77.19799
110.....................................        38.34033       -77.19986
111.....................................        38.34040       -77.20078
112.....................................        38.34052       -77.20213
113.....................................        38.34064       -77.20333
114.....................................        38.34070       -77.20421
115.....................................        38.34043       -77.20531
116.....................................        38.34008       -77.20635
117.....................................        38.33976       -77.20698
118.....................................        38.33959       -77.20767
119.....................................        38.33960       -77.20782
120.....................................        38.33973       -77.20824
121.....................................        38.33977       -77.20867
122.....................................        38.33976       -77.20888
123.....................................        38.33973       -77.20909
124.....................................        38.33964       -77.20958
125.....................................        38.33928       -77.21080
126.....................................        38.33892       -77.21195
127.....................................        38.33854       -77.21310
128.....................................        38.33852       -77.21378
129.....................................        38.33804       -77.21485
130.....................................        38.33792       -77.21523
131.....................................        38.33761       -77.21625
132.....................................        38.33724       -77.21710
133.....................................        38.33692       -77.21799
134.....................................        38.33673       -77.21878
135.....................................        38.33658       -77.21966
136.....................................        38.33647       -77.22072
137.....................................        38.33640       -77.22109
138.....................................        38.33596       -77.22240
139.....................................        38.33567       -77.22315
140.....................................        38.33526       -77.22414
141.....................................        38.33483       -77.22528
142.....................................        38.33444       -77.22657
143.....................................        38.33408       -77.22777
144.....................................        38.33340       -77.22978
145.....................................        38.33291       -77.23116
146.....................................        38.33264       -77.23265
147.....................................        38.33231       -77.23448

[[Page 2267]]

 
148.....................................        38.33227       -77.23495
149.....................................        38.33259       -77.23502
150.....................................        38.33258       -77.23529
151.....................................        38.33209       -77.23529
152.....................................        38.33180       -77.23634
153.....................................        38.33145       -77.23785
154.....................................        38.33130       -77.23898
155.....................................        38.33123       -77.23965
156.....................................        38.33112       -77.24061
157.....................................        38.33110       -77.24127
158.....................................        38.33107       -77.24231
159.....................................        38.33109       -77.24303
160.....................................        38.33109       -77.24356
161.....................................        38.33104       -77.24483
162.....................................        38.33105       -77.24512
163.....................................        38.33107       -77.24533
164.....................................        38.33107       -77.24607
165.....................................        38.33114       -77.24689
166.....................................        38.33144       -77.24694
167.....................................        38.33144       -77.24716
168.....................................        38.33121       -77.24719
169.....................................        38.33109       -77.24770
170.....................................        38.33117       -77.24806
171.....................................        38.33139       -77.24916
172.....................................        38.33133       -77.24978
173.....................................        38.33139       -77.25021
174.....................................        38.33150       -77.25141
175.....................................        38.33159       -77.25294
176.....................................        38.33150       -77.25606
177.....................................        38.33158       -77.25623
178.....................................        38.33177       -77.25646
179.....................................        38.33187       -77.25682
180.....................................        38.33184       -77.25856
181.....................................        38.33196       -77.26076
182.....................................        38.33201       -77.26171
183.....................................        38.33218       -77.26196
184.....................................        38.33233       -77.26254
185.....................................        38.33243       -77.26373
186.....................................        38.33247       -77.26524
187.....................................        38.33264       -77.26545
188.....................................        38.33289       -77.26591
189.....................................        38.33319       -77.26671
190.....................................        38.33340       -77.26757
191.....................................        38.33339       -77.26797
192.....................................        38.33377       -77.26839
193.....................................        38.33391       -77.26862
194.....................................        38.33402       -77.26888
195.....................................        38.33412       -77.26937
196.....................................        38.33416       -77.26960
197.....................................        38.33438       -77.27005
198.....................................        38.33456       -77.27032
199.....................................        38.33482       -77.27065
200.....................................        38.33546       -77.27098
201.....................................        38.33565       -77.27125
202.....................................        38.33558       -77.27149
203.....................................        38.33570       -77.27231
204.....................................        38.33583       -77.27267
205.....................................        38.33592       -77.27292
206.....................................        38.33601       -77.27324
207.....................................        38.33635       -77.27474
208.....................................        38.33656       -77.27539
209.....................................        38.33669       -77.27564
210.....................................        38.33683       -77.27572
211.....................................        38.33694       -77.27583
212.....................................        38.33708       -77.27589
213.....................................        38.33719       -77.27585
214.....................................        38.33728       -77.27637
215.....................................        38.33738       -77.27685
216.....................................        38.33768       -77.27729
217.....................................        38.33803       -77.27741
218.....................................        38.33829       -77.27725
219.....................................        38.33883       -77.27803
220.....................................        38.33888       -77.27829
221.....................................        38.33863       -77.27848
222.....................................        38.33868       -77.27885
223.....................................        38.33899       -77.27960
224.....................................        38.33924       -77.28012
225.....................................        38.33939       -77.28028
226.....................................        38.33954       -77.28022
227.....................................        38.33978       -77.27993
228.....................................        38.34024       -77.27997
229.....................................        38.34082       -77.28058
230.....................................        38.34137       -77.28120
231.....................................        38.34185       -77.28191
232.....................................        38.34227       -77.28244
233.....................................        38.34255       -77.28270
234.....................................        38.34263       -77.28289
235.....................................        38.34276       -77.28333
236.....................................        38.34288       -77.28399
237.....................................        38.34287       -77.28458
238.....................................        38.35169       -77.28785
239.....................................        38.35176       -77.28762
240.....................................        38.35222       -77.28722
241.....................................        38.35296       -77.28696
242.....................................        38.35378       -77.28704
243.....................................        38.35441       -77.28734
244.....................................        38.35475       -77.28746
245.....................................        38.35571       -77.28759
246.....................................        38.35698       -77.28798
247.....................................        38.35753       -77.28814
248.....................................        38.35832       -77.28794
249.....................................        38.35873       -77.28777
250.....................................        38.35909       -77.28772
251.....................................        38.35949       -77.28810
252.....................................        38.36243       -77.29110
253.....................................        38.36281       -77.29123
254.....................................        38.36306       -77.29148
255.....................................        38.36425       -77.29288
256.....................................        38.36685       -77.29439
257.....................................        38.36867       -77.29555
258.....................................        38.36937       -77.29586
259.....................................        38.36998       -77.29646
260.....................................        38.37142       -77.29799
261.....................................        38.37293       -77.30072
262.....................................        38.37327       -77.30098
263.....................................        38.37342       -77.30149
264.....................................        38.37356       -77.30181
265.....................................        38.37371       -77.30200
266.....................................        38.37392       -77.30224
267.....................................        38.37426       -77.30275
268.....................................        38.37482       -77.30401
269.....................................        38.37519       -77.30479
270.....................................        38.39732       -77.31009
271.....................................        38.39823       -77.31030
272.....................................        38.39856       -77.31060
273.....................................        38.39887       -77.31075
274.....................................        38.39917       -77.31067
275.....................................        38.40015       -77.31074
276.....................................        38.40090       -77.31146
277.....................................        38.40139       -77.31216
278.....................................        38.40198       -77.31237
279.....................................        38.40314       -77.31278
280.....................................        38.40658       -77.31377
281.....................................        38.40984       -77.31466
282.....................................        38.41389       -77.31693
283.....................................        38.41832       -77.31913
284.....................................        38.41975       -77.31931
285.....................................        38.42352       -77.31972
286.....................................        38.42549       -77.32030
287.....................................        38.42738       -77.32081
288.....................................        38.43092       -77.32240
289.....................................        38.43163       -77.32242
290.....................................        38.43351       -77.32264
291.....................................        38.43385       -77.32269
292.....................................        38.43430       -77.32265
293.....................................        38.43462       -77.32229
294.....................................        38.43498       -77.32146
295.....................................        38.43526       -77.32057
296.....................................        38.43522       -77.32040
297.....................................        38.47321       -77.31846
298.....................................        38.47434       -77.31874
299.....................................        38.47561       -77.31753
300.....................................        38.47655       -77.31686
301.....................................        38.47748       -77.31667
302.....................................        38.47821       -77.31604
303.....................................        38.47871       -77.31554
304.....................................        38.47885       -77.31564
305.....................................        38.47905       -77.31559
306.....................................        38.47922       -77.31578
307.....................................        38.47943       -77.31592
308.....................................        38.47986       -77.31592
309.....................................        38.48494       -77.31336
310.....................................        38.48878       -77.31142
311.....................................        38.49279       -77.30997
312.....................................        38.49351       -77.30981
313.....................................        38.49257       -77.30624
314.....................................        38.49509       -77.30103
315.....................................        38.49849       -77.29738
316.....................................        38.50281       -77.29424
317.....................................        38.50653       -77.29712
318.....................................        38.50663       -77.29695
319.....................................        38.50755       -77.29621
320.....................................        38.50794       -77.29610
321.....................................        38.50823       -77.29611
322.....................................        38.50858       -77.29613
323.....................................        38.50871       -77.29604
324.....................................        38.50880       -77.29604
325.....................................        38.50896       -77.29612
326.....................................        38.51029       -77.29518
327.....................................        38.51167       -77.29327
328.....................................        38.51204       -77.29382
329.....................................        38.51575       -77.29102
330.....................................        38.51736       -77.29034
331.....................................        38.51778       -77.29023
332.....................................        38.51797       -77.29006
333.....................................        38.51828       -77.28968
334.....................................        38.51867       -77.28916
335.....................................        38.51883       -77.28893
336.....................................        38.51897       -77.28886
337.....................................        38.51905       -77.28874
338.....................................        38.51902       -77.28867
339.....................................        38.51904       -77.28854
340.....................................        38.51909       -77.28843
341.....................................        38.51922       -77.28834
342.....................................        38.51935       -77.28825
343.....................................        38.51945       -77.28816
344.....................................        38.51883       -77.28626
345.....................................        38.51945       -77.28539
346.....................................        38.52021       -77.28482
347.....................................        38.52115       -77.28762
348.....................................        38.52130       -77.28757
349.....................................        38.52175       -77.28728
350.....................................        38.52193       -77.28687
351.....................................        38.52223       -77.28639
352.....................................        38.52282       -77.28636
353.....................................        38.52317       -77.28616
354.....................................        38.52390       -77.28552
355.....................................        38.52434       -77.28500
356.....................................        38.52475       -77.28427
357.....................................        38.52485       -77.28385
358.....................................        38.52498       -77.28362
359.....................................        38.52516       -77.28351
360.....................................        38.52540       -77.28331

[[Page 2268]]

 
361.....................................        38.52558       -77.28310
362.....................................        38.52603       -77.28307
363.....................................        38.52706       -77.28312
364.....................................        38.52767       -77.28309
365.....................................        38.52782       -77.28322
366.....................................        38.53398       -77.27927
367.....................................        38.53458       -77.27946
368.....................................        38.53542       -77.27940
369.....................................        38.53640       -77.27899
370.....................................        38.53725       -77.27822
371.....................................        38.53714       -77.27792
372.....................................        38.53680       -77.27703
373.....................................        38.53820       -77.27624
374.....................................        38.53908       -77.27673
375.....................................        38.53962       -77.27641
376.....................................        38.54088       -77.27604
377.....................................        38.54218       -77.27594
378.....................................        38.54311       -77.27590
379.....................................        38.54345       -77.27604
380.....................................        38.54416       -77.27638
381.....................................        38.54523       -77.27670
382.....................................        38.54603       -77.27677
383.....................................        38.54678       -77.27655
384.....................................        38.54732       -77.27606
385.....................................        38.54806       -77.27536
386.....................................        38.54901       -77.27473
387.....................................        38.54986       -77.27422
388.....................................        38.55036       -77.27373
389.....................................        38.55131       -77.27265
390.....................................        38.55133       -77.27263
391*....................................        38.52603       -77.25146
392*....................................        38.41053       -77.12394
393.....................................        38.36739       -77.08823
------------------------------------------------------------------------


    Note: The coordinates in the table above marked with an asterisk 
(*) are not a part of the sanctuary boundary. These coordinates are 
landward reference points used to draw a line segment that 
intersects with the shoreline.

Appendix B to Subpart S of Part 922--Mallows Bay--Potomac River Marine 
Sanctuary Terms of Designation

Terms of Designation for the Proposed Mallows Bay--Potomac River 
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., certain 
waters and submerged lands located off the Nanjemoy Peninsula of 
Charles County, Maryland and along the tidal Potomac River and its 
surrounding waters are hereby designated as a National Marine 
Sanctuary for the purposes of providing long-term protection and 
management of the historical resources and recreational, research, 
educational, and aesthetic qualities of the area.

Article I: Effect of Designation

    The NMSA authorizes the issuance of such regulations as are 
necessary and reasonable to implement the designation, including 
managing and protecting the historical resources and recreational, 
research, and educational qualities of the Mallows Bay--Potomac 
River National Marine Sanctuary (the ``Sanctuary''). Section 1 of 
Article IV of this Designation Document lists those activities that 
may have to be regulated on the effective date of designation, or at 
some later date, in order to protect Sanctuary resources and 
qualities. Listing an activity does not necessarily mean that it 
will be regulated; however, if an activity is not listed it may not 
be regulated, except on an emergency basis, unless Section 1 of 
Article IV is amended by the same procedures by which the original 
Sanctuary designation was made.

Article II: Description of the Area

    The Mallows Bay--Potomac River National Marine Sanctuary 
consists of an area of approximately 39 square nautical miles (nmi 
2) (52 sq. mi) of waters of the state of Maryland in the Potomac 
River and the submerged lands thereunder, over, around, and under 
the underwater cultural resources in the Potomac River. The southern 
and western boundary of the sanctuary approximates the border 
between the Commonwealth of Virginia and the State of Maryland for 
roughly 29 miles along the western side of the Potomac River and 
begins east of Choptank Creek in King George County near Hooes, VA. 
From this point the boundary approximates the border west and then 
north cutting across the mouths of Choptank Creek, Potomac Creek, 
and Aquia Creek. The boundary then continues past Widewater, VA and 
around the Marine Base Quantico restricted area to the east and then 
continues north again cutting across the mouth of Quantico Creek. 
From a point just north of Quantico Creek and Possum Point near 
Dumfries, VA the boundary crosses the Potomac to the southeast until 
it intersects the Maryland shoreline at Moss Point near Indian Head, 
MD. From this point the eastern and northern boundary of the 
sanctuary, approximately 21 miles in length, follows the Maryland 
shoreline south past Sandy Point and Mallows Bay cutting across the 
mouths of streams and creeks. The boundary then continues following 
the shoreline south past Smith Point and Thomas Point where it turns 
to the east around Maryland Point. From here the boundary continues 
to follow the shoreline past Riverside, MD to a location at Benny 
Gray Point on the western side of the mouth of Nanjemoy Creek on 
Tayloe Neck in Maryland. From here the boundary crosses the Potomac 
River again to the south back to its point of origin east of 
Choptank Creek on the Virginia side of the river. The boundary 
encompasses all tidal waters within this boundary from mean high 
tide in Maryland to mean low tide in Virginia. Excluded from the 
sanctuary are areas where the Virginia state line is otherwise 
delineated, the Quantico exclusion zone, and the area around the 
Quantico marina.

Article III: Special Characteristics of the Area

    Mallows Bay--Potomac River National Marine Sanctuary and its 
surrounding waters contain a diverse collection of nearly 200 known 
historic shipwreck vessels dating back to the Civil War and 
potentially dating back to the Revolutionary War as well as 
archaeological artifacts dating back 12,000 years indicating the 
presence of some of the region's earliest American Indian cultures, 
including the Piscataway Indian Nation and the Piscataway Conoy 
Tribe of Maryland. The area is most renowned for the remains of over 
100 wooden steamships, known as the ``Ghost Fleet,'' that were built 
for the U.S. Emergency Fleet between 1917-1919 as part of U.S. 
engagement in World War I. Their construction at more than 40 
shipyards in 17 states reflects the massive national wartime effort 
that drove the expansion and economic development of communities and 
related maritime service industries including the present-day 
Merchant Marines. The area is contiguous to the Captain John Smith 
Chesapeake National Historic Trail, the Star Spangled Banner 
National Historic Trail, the Potomac Heritage National Scenic Trail 
and the Lower Potomac Water Trail which offer meaningful educational 
and recreational opportunities centered on the region's culture, 
heritage and history. Additionally, the structure provided by the 
vessels and related infrastructure serve as important habitat to 
thriving populations of recreational fisheries, bald eagles, and 
other aquatic species. The area's listing on the National Historical 
Register of Places in 2015 codifies the historical, archaeological 
and recreational significance of the Ghost Fleet and related 
maritime heritage sites in and around Mallows Bay--Potomac River 
National Marine Sanctuary.

Article IV: Scope of Regulations

    Section 1. Activities Subject to Regulation. The following 
activities are subject to regulation, including prohibition, to the 
extent necessary and reasonable to ensure the protection and 
management of the historical resources and recreational, research 
and educational qualities of the area:
    a. Damaging sanctuary resources.
    b. Damaging sanctuary property.
    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 
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 Maryland or her/
his designee or designated agency.

Article V: Relation to Other Regulatory Program

    Section 1. Fishing Regulations, Licenses, and Permits. Fishing 
in the Sanctuary shall not be regulated as part of the Sanctuary 
management regime authorized by the Act. However, fishing in the 
Sanctuary may be regulated by other Federal, State, Tribal and local 
authorities of competent jurisdiction, and designation of the 
Sanctuary shall have no effect on any regulation, permit, or license 
issued thereunder.
    Section 2. Other Regulations, Licenses, and Permits. If any 
valid regulation issued by any Federal, state, Tribal, or local 
authority of

[[Page 2269]]

competent jurisdiction, regardless of when issued, conflicts with a 
Sanctuary regulation, the regulation deemed by the Director of the 
Office of National Marine Sanctuaries, National Oceanic and 
Atmospheric Administration, or designee, in consultation with the 
State of Maryland, to be more protective of Sanctuary resources and 
qualities shall govern. Pursuant to section 304(c)(1) of the Act, 16 
U.S.C. 1434(c)(1), no valid lease, permit, license, approval, or 
other authorization issued by any Federal, State, Tribal, or local 
authority of competent jurisdiction, or any right of subsistence use 
or access, may be terminated by the Secretary of Commerce, or 
designee, as a result of this designation, or as a result of any 
Sanctuary regulation, if such lease, permit, license, approval, or 
other authorization, or right of subsistence use or access was 
issued or in existence as of the effective date of this designation. 
However, the Secretary of Commerce or designee, in consultation with 
the State of Maryland, may regulate the exercise of such 
authorization or right consistent with the purposes for which the 
Sanctuary is designated.
    Section 3. Defense Activities. Department of Defense activities 
must be carried out in a manner that avoids to the maximum extent 
practicable any adverse impacts on Sanctuary resources and 
qualities.

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.

Subpart T--[Added and Reserved]

0
14. Add and reserve subpart T.

[FR Doc. 2016-31742 Filed 1-6-17; 8:45 am]
 BILLING CODE 3510-NK-P