Mallows Bay-Potomac River National Marine Sanctuary Designation, 32586-32606 [2019-14368]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Rules and Regulations]
[Pages 32586-32606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14368]



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Vol. 84

Monday,

No. 130

July 8, 2019

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 922





Mallows Bay-Potomac River National Marine Sanctuary Designation; Final 
Rule

Federal Register / Vol. 84, No. 130 / Monday, July 8, 2019 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 160907827-7832-02]
RIN 0648-BG02


Mallows Bay-Potomac River National Marine Sanctuary Designation

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

ACTION: Final rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
issues final regulations to implement the designation of the Mallows 
Bay-Potomac River National Marine Sanctuary (MPNMS or sanctuary). The 
area is 18 square miles of waters and submerged lands encompassing and 
surrounding the Mallows Bay area of the tidal Potomac River. The area 
is located entirely within Maryland state waters, adjacent to the 
Nanjemoy Peninsula of Charles County, Maryland. The sanctuary protects 
nationally-significant maritime cultural heritage resources, including 
the fragile, historic remains of more than 100 World War I (WWI)-era 
U.S. Emergency Fleet Corporation (USEFC) wooden steamships known as the 
``Ghost Fleet,'' vessels related to the historic ship-breaking 
operations, other non-USEFC vessels of historic significance, and 
related maritime debris fields. The area also includes Native American 
sites, remains of historic fisheries operations, and Revolutionary and 
Civil War battlescapes. The significance of the area is recognized 
through its listing on the National Register of Historic Places 
(National Register Listing Number 15000173, April 24, 2015). NOAA, the 
State of Maryland, and Charles County, Maryland, will jointly manage 
MPNMS.

DATES: Effective Date: Pursuant to section 304(b) of the National 
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and 
regulations shall take effect and become final after the close of a 
review period of forty-five days of continuous session of Congress, 
beginning on the date on which this document is published, unless the 
Governor of the State of Maryland certifies to the Secretary of 
Commerce during that same review period that the designation or any of 
its terms is unacceptable, in which case the designation or any 
unacceptable term shall not take effect. The public can track the days 
of Congressional session at the following website: https://www.congress.gov/days-in-session. After the close of the forty-five 
days of continuous session of Congress, NOAA will publish a document 
announcing the effective date of the final regulations in the Federal 
Register.

ADDRESSES: Copies of the final environmental impact statement and final 
management plan (FEIS/FMP) described in this rule and the record of 
decision (ROD) are available upon request to: Mallows Bay-Potomac River 
National Marine Sanctuary, c/o NOAA Office of National Marine 
Sanctuaries, 1305 East West Hwy., 11th Floor, Silver Spring, MD 20910, 
Attention: Paul Orlando, Regional Coordinator. The FEIS/FMP is also 
available for viewing and download at https://sanctuaries.noaa.gov/mallows- potomac/.

FOR FURTHER INFORMATION CONTACT: Paul Orlando, Regional Coordinator, 
Office of National Marine Sanctuaries at 240-460-1978, 
[email protected], or Mallows Bay-Potomac River National Marine 
Sanctuary, c/o NOAA Office of National Marine Sanctuaries, 1305 East 
West Hwy., 11th Floor, Silver Spring, MD 20910, Attention: Paul 
Orlando, Regional Coordinator.

SUPPLEMENTARY INFORMATION: 

I. Background

    The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce (Secretary) to designate and 
protect as national marine sanctuaries areas of the marine environment 
that are of special national significance due to their conservation, 
recreational, ecological, historical, scientific, cultural, 
archaeological, educational, or aesthetic qualities. Day-to-day 
management of national marine sanctuaries has been delegated by the 
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The 
primary objective of the NMSA is to protect the sanctuary system's 
biological and cultural resources, such as coral reefs, marine animals, 
historic shipwrecks, historic structures, and archaeological sites.

1. Mallows Bay-Potomac River National Marine Sanctuary

    The Mallows Bay-Potomac River National Marine Sanctuary is an 18-
square-mile area of the tidal Potomac River located 40 miles south of 
Washington, DC, off the Nanjemoy Peninsula of Charles County, Maryland. 
It is an area of national significance featuring unique historical, 
archaeological, cultural, ecological, and aesthetic resources and 
qualities, and offers 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 to the American Revolutionary War, totaling more than 100 
known vessels. Included among these vessels are the sunken remains of 
the largest ``Ghost Fleet'', wooden steamships built for the U.S. 
Emergency Fleet during World War I (WWI). The fleet was constructed at 
more than 40 shipyards in 17 states as part of a massive national 
wartime mobilization. The sanctuary's archaeological and cultural 
resources cover centuries of history dating back from the earliest 
American Indian presence in the region approximately 12,000 years ago 
to the Revolutionary, Civil and two World Wars, as well as successive 
regimes of Potomac fishing industries. The significance of this area is 
recognized through its listing on the National Register of Historic 
Places (National Register Listing Number 15000173, April 24, 2015).
    The Maryland Department of Natural Resources (DNR), Maryland 
Historical Trust (MHT), Maryland Department of Tourism, and Charles 
County, MD, collaborated with community partners to implement 
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 by a lease agreement to Charles County for 
the creation and management of Mallows Bay County Park, the main launch 
point for access to the historic shipwrecks. Pursuant to the National 
Historic Preservation Act (NHPA), the MHT has stewardship and oversight 
responsibility for the shipwrecks, along with hundreds of other 
historic non-shipwreck 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, Bureau of Land Management, and a private citizen.

2. Need for Action

    The designation would allow NOAA to complement current state-led 
efforts to conserve and manage the nationally significant maritime 
cultural heritage resources in the sanctuary while enhancing public 
awareness and appreciation. The designation would

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also facilitate, 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, both intentional and 
unintentional direct damage has occurred from breaking, relocation of 
artifacts, defacing and physical alteration, burning, and removal of 
historic artifacts from the area. Additionally, indirect damage to the 
resources has occurred from the accumulation and entanglement of marine 
debris and from weather-related processes such as wind, flood, and ice 
events.
    NOAA will 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 sanctuary regulations will focus only on the protection of the 
shipwrecks and associated maritime cultural heritage resources.
    Although the Maryland Submerged Archaeological 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 
sanctuary will allow NOAA's management under the NMSA to supplement and 
complement the existing authority and the current management framework 
in the area. The sanctuary will 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 of the resources in 
collaboration with the State of Maryland and Charles County. NOAA will 
also carry out education, science, and interpretative programs that 
describe the relationship between the shipwreck structures and the 
natural ecosystem.
3. Procedural History
a. Sanctuary Nomination and Public Scoping
    On September 16, 2014, pursuant to section 304 of the NMSA and the 
Sanctuary Nomination Process (SNP; 79 FR 33851), the former Governor of 
Maryland, Charles County, and a coalition of community groups submitted 
a nomination to NOAA seeking designation of Mallows Bay-Potomac River 
as a national marine sanctuary. The nomination cited conservation goals 
to protect and conserve the fragile, historic 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.
    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/.
    On October 7, 2015, NOAA initiated the public scoping process with 
the publication of a Notice of Intent in the Federal Register (NOI; 80 
FR 60634). The NOI solicited public input on the proposed designation 
and informing the public of the Agency's intentions to prepare a draft 
environmental impact statement (DEIS) evaluating alternatives related 
to the proposed designation of MPNMS under the NMSA. That announcement 
initiated a 90-day public comment period during which NOAA solicited 
additional input on the scale and scope of the proposed sanctuary, 
including ideas presented in the community nomination. The NOI also 
announced NOAA's intent to fulfill its responsibilities under the 
requirements of the National Historic Preservation Act (NHPA).
    In November 2015, NOAA held two public meetings and provided 
additional opportunities for public comments by mail and through a web 
portal (https://www.regulations.gov/docket?D=NOAA-NOS-2015-0111). The 
comment period closed on January 15, 2016. All comments received, 
through any of these methods, are posted on the www.regulations.gov web 
portal. These public scoping comments were used by NOAA in preparing 
the proposed sanctuary regulations and draft environmental impact 
statement and draft management plan (DEIS/DMP) associated with the 
proposed sanctuary designation.
b. Designation Process
    On January 9, 2017, NOAA published a document in the Federal 
Register announcing the proposed designation of approximately 52 square 
miles of waters of the tidal Potomac River as a national marine 
sanctuary (82 FR 2254). NOAA also provided public notice of the 
availability of the related DEIS/DMP (82 FR 2254; 82 FR 1733). All 
three documents (proposed rule, DEIS, and DMP) were prepared in close 
consultation with the State of Maryland and Charles County, Maryland. 
NOAA opened an 81-day public comment period on the proposed rule, DEIS, 
and DMP, which closed on March 31, 2017. During the comment period, 
NOAA also held two separate public meetings in La Plata, Maryland and 
in Arnold, Maryland.
    All written comments are available at https://www.regulations.gov/docket?D=NOAA-NOS-2016-0149. NOAA's responses to public comments are 
included in Appendix C of the final environmental impact statement 
(FEIS) and final management plan (FMP), which was made available on May 
31, 2019 (84 FR 25257), and in Section IV of this document.

II. Changes From Proposed to Final Regulations

    Based on public comments received between January and March 2017, 
internal deliberations, interagency consultations, discussions with 
state-recognized Indian tribes, consultation with the Department of 
Navy (DoN) (as a cooperating agency in the preparation of the 
environmental impact statement), meetings with constituent groups, and 
evaluation of this input with the State of Maryland and Charles County, 
NOAA has made the following changes to the proposed rule. NOAA has also 
made conforming changes to the FEIS/FMP.

1. Sanctuary Boundary

    In response to public comments and discussions with the State of 
Maryland, Charles County, Maryland, the DoN, NOAA decided to adopt 
Alternative B in the FEIS and designate 18 square miles of waters and 
submerged lands encompassing and surrounding the Mallows Bay area of 
the tidal Potomac River. The boundary begins at the mean high tide 
level on the Maryland side,

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extends across the Potomac River to the Virginia-Maryland state 
boundary lines, and follows the boundary of the Mallows Bay-Widewater 
Historic and Archeological District in the National Register of 
Historic Places. The area also closely matches the boundary submitted 
to NOAA by the Governor of Maryland in the sanctuary nomination 
package. The area contains a concentration of 142 historic USEFC 
vessels, vessels related to historic ship-breaking activities, other 
non-USEFC vessels of historic significance, and related maritime debris 
fields. The area also includes Native American sites, remains of 
historic fisheries operations such as sturgeon and caviar industries, 
and Revolutionary and Civil War battlescapes.

2. Department of Defense Activities

    NOAA, in consultation with the DoN, has established a framework for 
MPNMS and DoD to co-exist. In developing the proposed rules, NOAA did 
not anticipate that many, if any, current DoD activities would 
adversely impact sanctuary resources. However, following interagency 
consultation with DoD components (including DoN, the Marine Corps, and 
the U.S. Army), NOAA revised Sec. Sec.  922.203(c) and 922.204 and the 
terms of designation set forth in appendix B to the MPNMS regulations 
at 15 CFR part 922, subpart S. In the final regulations, NOAA: (a) 
Clarifies the extent to which the sanctuary prohibitions may apply to 
DoD activities; (b) clarifies the requirement for DoD to engage in NMSA 
section 304(d) consultation; and (c) exempts DoD from the application 
of emergency regulations issued by NOAA pursuant to Sec.  922.204.

III. Summary of Final Regulations for MPNMS

    With this final rule, NOAA is implementing the following 
regulations for MPNMS.

1. Add New Subpart S to Existing National Marine Sanctuary Program 
Regulations

    NOAA amends 15 CFR part 922 by adding a new subpart (subpart S) 
that contains site-specific regulations for MPNMS. This subpart 
includes the boundary, contains definitions of common terms used in the 
new subpart, provides a framework for joint management of the 
sanctuary, identifies prohibited activities and exceptions, and 
establishes procedures for certification of existing uses, permitting 
otherwise prohibited activities, and emergency regulations. Several 
conforming changes are also made to the national regulations as 
described in 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 (82 FR 2269). The regulations implementing 
the designation of Wisconsin--Lake Michigan National Marine Sanctuary 
would be published in subpart T.

2. Sanctuary Name

    The name of the sanctuary is ``Mallows Bay-Potomac River National 
Marine Sanctuary'' and is abbreviated as MPNMS. The name is based on 
the nomination submitted by the community.

3. Sanctuary Boundary

    The Mallows Bay-Potomac River National Marine Sanctuary consists of 
an area of approximately 18 square miles of waters of the State of 
Maryland and the submerged lands thereunder associated with the 
underwater cultural resources in the Potomac River. The 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 north of the mouth of 
Aquia Creek in Stafford County, Virginia, near Brent Point. From this 
point the boundary continues to the north approximating the border 
between Virginia and Maryland cutting across the mouths of streams and 
creeks passing through the points in numerical order until it reaches 
Point 40 north of Tank Creek. From this point the sanctuary boundary 
continues east across the Potomac River in a straight line towards 
Point 41 until it intersects the Maryland shoreline just north of Sandy 
Point in Charles County, MD. From this intersection the sanctuary 
boundary then follows the Maryland shoreline south around Mallows Bay, 
Blue Banks, and Wades Bay cutting across the mouths of creeks and 
streams along the eastern shoreline of the Potomac River until it 
intersects the line formed between Point 42 and Point 43 just south of 
Smith Point. Finally, from this intersection the sanctuary boundary 
crosses the Potomac River to the west in a straight line until it 
reaches Point 43 north of the mouth of Aquia Creek in Stafford County, 
Virginia, near Brent Point.
    The detailed legal boundary description is included in Sec.  
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 FEIS (Chapter 3.2), and 
can also be found at https://sanctuaries.noaa.gov/mallows-potomac/.

4. Definitions

    NOAA narrowly defines ``sanctuary resources'' for MPNMS to include 
only the maritime cultural heritage resources of the sanctuary in 
accordance with the purpose of the designation. The definition does not 
include biological and ecological resources of the area already managed 
by the State of Maryland. Creating this site-specific definition 
requires NOAA to modify the national definition of ``sanctuary 
resource'' in the national regulations at Sec.  922.3 to add an 
additional sentence that defines the site-specific definition for MPNMS 
at Sec.  922.201(a). This is similar to the approach taken for other 
national marine sanctuaries that do not share the full national 
``sanctuary resource'' definition, such as Thunder Bay National Marine 
Sanctuary.
    NOAA also adds a definition in the MPNMS regulations at Sec.  
922.201(a) for sanctuary resource that uses the national definition for 
``historical resources'' set forth in Sec.  922.3 and expands the site-
specific definition of sanctuary resource to specifically provide 
examples of the types of resources in MPNMS that fall within that 
definition. The national definition of ``historical resources'' at 
Sec.  922.3 includes 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 MPNMS definition of sanctuary resources is then defined in 
Sec.  922.201 to include historical resources as defined by Sec.  
922.3. This includes any sunken watercraft and any associated rigging, 
gear, fittings, trappings, and equipment. It also includes personal 
property of the officers, crew, and passengers, and any cargo, as well 
as 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 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.

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    This final rule incorporates and adopts other common terms defined 
in the existing national regulations at Sec.  922.3; some of those 
terms 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.
    Based on public comments and consultation with partners, the final 
rule adds a definition in the MPNMS regulations at Sec.  922.201 
providing that ``traditional fishing'' means those commercial, 
recreational, and subsistence fishing activities that were customarily 
conducted within the Sanctuary prior to its designation or expansion, 
as identified in the relevant Final Environmental Impact Statement and 
Management Plan for this Sanctuary.

5. Joint Management of the Sanctuary

    NOAA, the State of Maryland, and Charles County, Maryland, will 
jointly manage MPNMS. NOAA established the framework for joint 
management at Sec.  922.202 and memorialized the operational details to 
coordinate sanctuary management in a Memorandum of Agreement (MOA). Any 
significant changes to the regulations or management plan would be 
jointly coordinated. The draft MOA is found in Appendix D in the FEIS.

6. Prohibited and Regulated Activities

    NOAA will regulate three activities for MPNMS, found in Sec.  
922.203(a), and summarized below.
a. Damaging Sanctuary Resources
    MPNMS regulations prohibit any person from conducting or causing to 
be conducted the moving, removing, recovering, altering, destroying, 
possessing, or otherwise injuring, or attempting to move, remove, 
recover, alter, destroy, possess or otherwise injure a sanctuary 
resource, except as an incidental result of traditional fishing. This 
sanctuary prohibition on possessing sanctuary resources does not apply 
retroactively to historical resources removed from the sanctuary prior 
to designation.
    Maryland State regulations related to the limited removal of 
historical resources, which have been in effect since July 1, 1988, 
currently do not apply to these resources as limited removal is not 
allowed within the boundaries of National Register of Historic Places 
listed sites. Collection, excavation, or other comparable activities 
within the Mallows Bay-Widewater Archeological District, require 
permission through a permit from the state of Maryland. 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 
DoN would cooperate on protecting those resources using the policy and 
procedures described in the 2015 Memorandum of Agreement (MOA). A copy 
of the MOA is available at: www.gc.noaa.gov/moa-2014-navy-signed.pdf.
    Additionally, NOAA adopted the traditional fishing exemption to 
minimize or otherwise eliminate potentially adverse economic impacts of 
sanctuary designation experienced by the fishing industry and to 
address concerns raised by the Potomac River Fisheries Commission. The 
terms of designation (found in appendix B of subpart S) clarifies that 
fishing shall not be regulated as part of the Sanctuary management 
regime, but may be regulated by other Federal, State, Tribal and local 
authorities of competent jurisdiction. As an additional non-regulatory 
measure, NOAA, the State, and Charles County agreed to review, 
consider, and address measurable, negative impacts of sanctuary 
designation on fishing particularly during the 5- and 10-year periodic 
review conducted under the NMSA.
b. Damaging Sanctuary Signs and Infrastructure
    NOAA prohibits damage to sanctuary signs, notices, placards, 
monuments, stakes, posts, buoys, or boundary markers. These materials 
are Federal property and part of the education and outreach programs in 
support of sanctuary management. This regulation prohibits damage from 
marking, defacing or altering these materials in any way.
c. Interfering With Investigations
    NOAA prohibits 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 exempts from the three regulations activities that respond to 
emergencies that threaten lives, property or the environment, or are 
necessary for law enforcement purposes.
e. Department of Defense Activities
    NOAA and DoD agree that all military activities will be carried out 
in a manner that avoids, to the maximum extent practicable, any adverse 
impacts on sanctuary resources and qualities. Based on information 
provided by DoD on its activities in the area, and analyzed by NOAA in 
its FEIS, the three prohibitions will not apply to existing military 
activities as described in the FEIS, or to the following activities:
    (i) Low-level overflight of military aircraft operated by DoD;
    (ii) The designation of new units of special use airspace;
    (iii) The use or establishment of military flight training routes;
    (iv) Air or ground access to existing or new electronic tracking 
communications sites associated with special use airspace or military 
flight training routes; or
    (v) Activities to reduce or eliminate a threat to human life or 
property presented by unexploded ordnances or munitions.
    New military activities that do not violate the three prohibitions 
are allowed in the sanctuary. Any new military activity that is likely 
to violate sanctuary prohibitions may become exempt from the 
prohibitions through consultation between the Director and DoD pursuant 
to section 304(d) of the NMSA. The term ``new military activity'' 
includes but is not limited to, any existing military activity that is 
modified in any way (including change in location, frequency, duration, 
or technology used) that is likely to destroy, cause the loss of, or 
injure a sanctuary resource, or is likely to destroy, cause the loss 
of, or injure a sanctuary resource in a manner or to an extent that was 
not considered in a previous consultation under section 304(d) of the 
NMSA.

7. Emergency Regulations

    As part of this designation, NOAA will have the 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 on a specific activity 
would prevent the destruction or loss of those resources. Under the 
NMSA, NOAA only issues emergency regulations for a maximum of six 
months, and can only extend any single emergency regulation once. A 
full rulemaking process must be undertaken, including a public comment 
period, to consider making an emergency regulation permanent. NOAA 
modifies the national regulations at Sec.  922.44 to

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include MPNMS in the list of sanctuaries that have site-specific 
regulations related to emergency regulations, and adds detailed site-
specific emergency regulations to the MPNMS regulations at Sec.  
922.204. DoD activities are not subject to emergency regulations.

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

a. General Permits
    NOAA has authority to issue permits to allow certain activities 
that would otherwise violate the prohibitions in MPNMS regulations. 
Similar to other national marine sanctuaries, NOAA considers these 
permits for the purposes of education, research, or management.
    To include this permit authority for MPNMS, NOAA amends national 
regulations in part 922, subpart E, to add references to subpart S, as 
appropriate, and adds a new Sec.  922.205 in subpart S titled ``Permit 
procedures and review criteria'' that would address site-specific 
permit procedures for MPNMS.
b. Certifications
    NOAA adds language at Sec.  922.206 describing the process by which 
NOAA may certify pre-existing authorizations or rights within MPNMS. 
Here, the term ``pre-existing authorizations or rights'' refers to any 
leases, permits, licenses, or rights of subsistence use or access in 
existence on the date of sanctuary designation (see 16 U.S.C. 1434(c); 
15 CFR 922.47). Consistent with this, MPNMS regulations at Sec.  
922.206 states that certification is the process by which these pre-
existing authorizations or rights that violate sanctuary prohibitions 
may be allowed to continue, and the sanctuary may regulate the exercise 
of the pre-existing authorizations or rights consistent with the 
purposes for which the sanctuary was designated. Applications for 
certifying pre-existing authorizations or rights must be received by 
NOAA within 180 days of the Federal Register notification announcing of 
effective date of the designation.
c. Authorizations
    With this designation, NOAA also assumes authority to allow an 
otherwise prohibited activity to occur in MPNMS, 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 prohibitions at Sec.  922.203. As such, 
NOAA amends the regulatory text at Sec.  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 
amended through public notice and comment. NOAA will not apply SUP 
authority to activities in existence at the time of MPNMS designation.
    NOAA reviews SUP applications to ensure that a proposed activity is 
compatible with the purposes for which the sanctuary is designated and 
that the activities carried out under the SUP will 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, 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 
following 10 sections are updated to reflect the increased number of 
sanctuaries or to add subpart S to the list of sanctuaries:

 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

    NOAA intends to make additional system-wide regulation updates when 
NOAA finalizes elements of a national review of regulations that was 
proposed on January 28, 2013 (78 FR 5998). Of relevance to MPNMS, the 
final rule for the national review of regulations would consolidate 
general permit regulations and permitting procedures from site-specific 
subparts into the system-wide regulations. No substantive changes to 
MPNMS permit categories or permit requirements would be included as 
part of the national regulation review. NOAA will finalize elements of 
the national regulation review in a separate rulemaking action.

10. Terms of Designation

    Section 304(a)(4) of the NMSA requires that the terms of 
designation include: The geographic area of 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 may be subject to regulation by the 
Secretary of Commerce to protect these characteristics. Section 
304(a)(4) also specifies that the terms of designation may be modified 
only by the same procedures by which the original designation was made. 
NOAA is adding the terms of designation as appendix B to the MPNMS 
regulations at 15 CFR part 922, subpart S.

IV. Response to Comments

    When designating a national marine sanctuary, section 304 of the 
NMSA (16 U.S.C. 1434) requires the preparation of an environmental 
impact statement (EIS), as provided by the National Environmental 
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and that the EIS be 
made available to the public. In preparing the final EIS, the CEQ 
regulations further require that agencies respond to all 
``substantive'' comments on a draft EIS (40 CFR 1503.4).
    The MPNMS DMP, DEIS and proposed sanctuary regulations were 
released for public review on January 9, 2017 (82 FR 2256). The public 
comment period ended on March 31, 2017. During this period, NOAA 
received over 1,450 comments, including written comments,

[[Page 32591]]

oral comments, and group letters. Of those, 1120 comments were received 
through the eRulemaking Portal www.regulations.gov. NOAA also hosted 
two public hearings on March 7, 2017 in La Plata, MD, and March 9, 2017 
in Arnold, MD. Over 170 people attended the meetings with 73 people 
providing oral public comment. Additionally, through the National 
Marine Sanctuary Foundation (NMSF), NOAA received two letters signed on 
behalf of multiple organizations; one was signed by 133 individuals in 
support of designation of NOAA's preferred alternative and the second 
was signed by 128 organizations in support of designation for MPNMS and 
a separate action relating to the proposed designation of Wisconsin--
Lake Michigan National Marine Sanctuary.
    The majority of comments expressed support for the proposed 
sanctuary, several expressed opposition, and a few did not take a 
position. Of those people who spoke at the public meetings, more than 
half expressed support, several were opposed, and a few expressed 
conditional support. In addition, of the nearly 1000 comments that 
specified a boundary alternative, relatively few favored Alternative A 
(i.e., no action/no sanctuary), while most favored Alternative B (18 
square miles, which closely matches with the Mallows Bay-Widewater 
Historical and Archeological District on the National Register of 
Historic Places), Alternative C (52 square miles of the tidal Potomac 
River, which includes all of the known WWI-era historic vessel remains) 
or Alternative D (100 square miles of the tidal Potomac River which may 
contain other maritime cultural heritage assets and potentially expands 
recreational use opportunities). The majority of comments supported 
Alternative D for purposes of public access and protection for any 
potential additional maritime cultural assets. Supporters of this 
alternative also cited its increased protection of natural resources, 
although natural resource management is not proposed or being 
implemented for this sanctuary. Several comments supported NOAA's draft 
preferred alternative (Alternative C) as did those who signed a letter 
of support through the NMSF. Of the comments that did not specify a 
boundary alternative, the majority supported a sanctuary designation. 
Through the NMSF, many organizations expressed support for MPNMS and 
the separate Wisconsin designation without reference to a specific 
alternative.
    As a cooperating agency, the DoN provided NOAA with comments on 
behalf of four military installations adjacent to the proposed 
sanctuary boundary alternatives. DoN also submitted a public comment 
stating support for the proposed sanctuary designation and expressing a 
desire to work cooperatively with NOAA to ensure that the designation 
does not adversely impact military operations in the area.
    Additional input on the proposal were provided to NOAA through 
consultation with Federal and state agencies as well as discussions 
with three state-recognized Tribes: Piscataway Conoy Confederacy and 
Sub-Tribes (MD), Piscataway Indian Nation (MD), and the Patawomeck 
Indian Tribe of Virginia (VA).
    For the purposes of managing responses to public comments, NOAA 
grouped similar comments by theme. These themes align with the content 
of the proposed rule that identified the purposes and needs for a 
national marine sanctuary, and the draft management plan that 
identified the proposed non-regulatory programs and sanctuary 
operations. The themes are summarized below, followed by NOAA's 
response.

Comments on the Purposes and Need for the Sanctuary

Purpose and Need 1: Resource Protection for Maritime and Cultural 
Heritage Assets
    1. Comment: The majority of comments NOAA received expressed 
support for the sanctuary designation because it will have a positive 
impact on cultural resource protection of known and potential shipwreck 
sites through increased public awareness, education, interpretation and 
related programs.
    Response: NOAA agrees with these comments and, in partnership with 
the State of Maryland and Charles County, MD, is moving forward with 
the sanctuary designation process which cites protection and 
interpretation of nationally-significant maritime cultural heritage 
resources as one of two purposes and needs for the sanctuary.
    2. Comment: NOAA received many comments highlighting that the WWI-
era ship remains and related maritime assets are an important component 
of United States history and maritime cultural heritage.
    Response: NOAA agrees with these comments. These vessels were built 
at more than 40 shipyards throughout the coastal United States and 
helped to transform the United States shipbuilding capacity. In 
addition, the demand for workers, materials and industry services 
provided significant economic and social benefit to local economies and 
communities.
    3. Comment: NOAA received some comments stating that as the Nation 
commemorates the Centennial of United States' entry into WWI, sanctuary 
designation would be a fitting tribute to those citizens who served our 
country during that period.
    Response: NOAA agrees that the sanctuary could help to interpret 
the stories of sacrifice and commitment of those who served during WWI, 
including our war veterans, the expansion of the U.S. Merchant Marines, 
and communities associated with more than 40 shipyards in the 
construction of the Ghost Fleet vessels. NOAA will continue to 
participate alongside other local, state and federal programs and non-
profit organizations throughout the WWI Centennial Commemoration period 
and beyond.
    4. Comment: NOAA received several comments expressing opposition to 
the proposed designation because commenters expressed mistrust with the 
Federal Government, argued the proposed sanctuary is not needed, and 
felt designation would not be a good use of taxpayer money.
    Response: Through the NMSA, NOAA as a Federal agency carries out 
its mission through transparent public processes and community-based 
programs that involve extensive and continuous public engagement and 
input. This holds true for nominating and potentially designating new 
sanctuaries. The concept for this proposed sanctuary originated with a 
nomination from the Governor of Maryland to NOAA. That nomination also 
included the request for joint management with the State of Maryland 
and Charles County, MD. The designation process has included public 
scoping and public comment periods as well as numerous meetings with 
community organizations. Post-designation, NOAA and the joint managers 
of the sanctuary will continue their partnership and transparency with 
the community through sanctuary advisory councils, working groups, 
volunteer opportunities, and a diversity of partnerships.
    The justification for the sanctuary is addressed in the final 
environmental impact statement. Specifically, Section 3.2 ``Description 
of Alternatives'' describes Alternative B in terms of the Mallows Bay-
Widewater Historical Archeological District which codifies the national 
significance of the Ghost Fleet and related maritime assets and 
provides opportunity for Federal protection. Section 2.2 ``Purpose and 
Need for Action'' describes how the

[[Page 32592]]

NMSA would complement and supplement existing Federal and State 
authorities to enhance resource protection for maritime assets and 
facilitate public access and recreation through regulatory and non-
regulatory actions.
    In the final management plan for this sanctuary, NOAA describes 
sanctuary activities that could be completed at several funding levels 
(see FMP Appendix 3). As a federal agency, NOAA's budget is passed by 
Congress and is signed into law by the President. NOAA's budget 
includes an annual allocation for the management of all national marine 
sanctuaries under the NMSA. NOAA makes funding decisions for each 
sanctuary based on the Congressional appropriation to the Agency, 
Office of National Marine Sanctuaries priorities, and the particular 
needs of individual national marine sanctuaries. As a result, funding 
can vary from year to year, which may affect the level of activities 
completed in the management plan. NOAA also anticipates a varying level 
of in-kind contributions from joint managers from the State of Maryland 
and Charles County, MD, as well as other partners, will contribute to 
the overall sanctuary goals.
    5. Comment: NOAA received a few comments that sanctuary designation 
is unnecessary because the historic resources are managed by the State 
of Maryland already and the area was recently added to the National 
Register of Historic Places (NRHP).
    Response: NOAA disagrees that sanctuary designation is unnecessary. 
While the State of Maryland is the trustee and manager of the historic 
resources, there remain gaps in the State's authority to provide full 
protection, as defined in Section 2.4 of the FEIS. The listing of the 
Ghost Fleet on the National Register of Historic Places (NRHP) in 2015 
deemed their value as nationally significant due to its historical, 
cultural or archaeological qualities and, therefore, eligible for 
additional Federal protection.
    Section 2.4 of the FEIS defines the role of the NMSA to complement 
and supplement existing authorities. For example, the NHPA only applies 
to Federal undertakings and does not address actions taken by the 
public. As such, the NMSA would supplement existing state authorities 
by closing gaps related to the collection of historic artifacts, by 
strengthening the requirement for the public to report discovery of 
historic artifacts, by increasing enforcement capacity, and by 
increasing the penalty for violation of these prohibitions. 
Additionally, NOAA's non-regulatory programs (e.g., education, public 
outreach, citizen science) make significant contributions to the 
ongoing and long-term management of historic resources and are 
important tools to help raise public awareness and deter impacts to the 
historic and maritime cultural heritage resources of the area.
    6. Comment: NOAA received some comments expressing support for the 
proposed sanctuary designation because the sanctuary would help protect 
and interpret important Civil War heritage resources.
    Response: NOAA agrees with these comments. In addition to 
protecting and interpreting WWI-era assets, the waters of the Potomac 
River potentially include historic assets from other eras, including 
the Civil War, which would also be protected. Additionally, the 
surrounding maritime landscape is associated with Civil War-era 
history, including the Underground Railroad.
    NOAA expects that sanctuary research, education, and outreach 
efforts have potential to expand the understanding, protection and 
interpretation of these histories and resources.
    7. Comment: NOAA received several comments that the sanctuary would 
serve as an important and permanent memorial to those citizens who have 
served and sacrificed their lives to defend our country, from the 
Revolutionary War through modern times.
    Response: NOAA agrees that an opportunity may potentially exist. As 
these assets cannot reside in museums or other land-based venues, the 
resting place of the WWI-era Ghost Fleet and maritime assets from other 
war eras within sanctuary waters offer a unique opportunity to 
commemorate commitment and service. For example, NOAA and its partners 
have initiated preliminary dialog with the Maryland Veterans Museum at 
Patriot Park about the potential for the sanctuary's water-based 
perspective to complement the experience of visitors to their venue. 
NOAA intends to continue to work with a variety of organizations to 
promote and interpret histories and stories of personal commitment 
associated with the sanctuary.
    8. Comment: NOAA received several comments that the shipwrecks are 
not nationally significant and that NOAA did not provide adequate 
justification for designation.
    Response: NOAA disagrees with these comments. The WWI-era Ghost 
Fleet is a national asset that has been adequately documented and 
validated by nationally-recognized authorities. Specifically, in 2015, 
the Department of the Interior placed a section (called a ``district'') 
of the Potomac River containing the Ghost Fleet on the National 
Register of Historic Places. This district listing recognizes the area 
as ``nationally-significant'' and is consistent with the criteria 
described in the Federal Register notice for the Sanctuary Nomination 
Process to qualify the resources for consideration as a national marine 
sanctuary.
    9. Comment: NOAA received some comments that the sanctuary should 
recognize and interpret the historical fisheries of the region as well 
as the generations of local watermen.
    Response: NOAA agrees with these comments. While the WWI-era 
vessels and assets are the dominant maritime feature of the proposed 
sanctuary, NOAA recognizes that there are other significant cultural 
resources within and/or associated with the sanctuary (see Section 3.2 
of FEIS p.52), including the history of fishing and the heritage of 
local watermen. The sanctuary will work with partners to conduct 
research and to provide education and outreach materials to help 
document and interpret these histories (see FMP Action Plan 5, 
Research, Science and Technology).
    10. Comment: NOAA received a few comments that the sanctuary should 
include the history and heritage of the four DoD facilities that are 
within or nearby the proposed sanctuary alternatives.
    Response: NOAA agrees with these comments. The DoD mission, 
facilities, and assets are critical to national security. DoD heritage 
is an integral part of the history and heritage of this region. The 
sanctuary management plan includes strategies to partner with these 
facilities to develop education, outreach and interpretative materials.
    11. Comment: NOAA received several comments that the sanctuary 
should address Native American heritage.
    Response: NOAA agrees with these comments. In 2014, the community 
who developed the original sanctuary nomination recognized Tribal 
culture as integral to the history and heritage of the Potomac River. 
The Piscataway Conoy Confederacy and Sub-Tribes (MD) served as a member 
of the nominating group and helped to guide the information content. 
There are two state-recognized tribes in Maryland (Piscataway Conoy 
Confederacy and Sub-Tribes and Piscataway Indian Nation) and one in 
Virginia (Patawomeck Indian Tribe of VA) who claim this area as their 
aboriginal territory. NOAA anticipates working alongside partners to 
expand

[[Page 32593]]

understanding and interpretation of the heritage of all local Native 
American cultures.
    12. Comment: NOAA received a few comments that the sanctuary will 
provide an important opportunity to document African American culture 
and heritage in the area, including possible Underground Railroad sites 
as well as the contributions of African Americans to local shipbuilding 
and fisheries industries.
    Response: NOAA agrees with these comments. Limited information 
exists on the direct role of African Americans in shipbuilding and 
related services during WWI and their role in subsequent ship breaking 
operations. Thus, the management plan identifies significant 
opportunity to research, document and interpret this history.
    13. Comment: NOAA received a few comments questioning why the 
sanctuary boundary extends beyond the boundary of Mallows Bay Park 
since most of the ships are clustered in that area.
    Response: While many of the known WWI-era vessel remains reside in 
an area adjacent to Mallows Bay Park, other known vessel remains are 
located near Widewater, VA, as well as other locations in the middle 
Potomac River. In addition, research indicates that other maritime and 
cultural assets from several time periods have yet to be discovered. As 
such, the proposed sanctuary boundary (Alternative B) encompasses these 
assets and is purposefully aligned with an area defined on the National 
Register of Historic Places. This entire area contains important 
cultural and maritime resources, including the remains of the WWI-era 
Ghost Fleet, vessels and assets associated with the three shipbreaking 
periods, vessels from other historical periods, and other cultural 
features. In response to public comments and consultations associated 
with the proposed sanctuary, NOAA, alongside partners from the State of 
Maryland and Charles County, MD, chose to adopt Alternative B, a 
management area that would include these potential historic sites and 
facilitate resource management as potential new sites are discovered. 
This would ensure that newly discovered sites are protected and managed 
at the time of discovery.
    14. Comment: NOAA received a few comments that the sanctuary as 
proposed provides a good balance through its focus on maritime cultural 
heritage resources while continuing to leave the management of natural 
resources under existing state and local authorities.
    Response: NOAA agrees with this comment. For the purposes of this 
designation, sanctuary resource protection and management is exclusive 
to the maritime and cultural assets of the area. NOAA has developed a 
Memorandum of Agreement (MOA) with the State of Maryland and Charles 
County, MD, that, in part, reiterates the authority and responsibility 
for natural resource management within the sanctuary remains with the 
State of Maryland and the Potomac River Fisheries Commission. In 
addition, the terms of designation (found in appendix B of subpart S) 
clarifies that fishing shall not be regulated as part of the Sanctuary 
management regime, but may be regulated by other Federal, State, Tribal 
and local authorities of competent jurisdiction.
    15. Comment: NOAA received many comments regarding the probable 
existence of maritime artifacts throughout the areas identified in 
Alternatives C and D as rationale for expanding the sanctuary 
boundaries.
    Response: NOAA agrees that significant maritime assets exist 
outside of sanctuary boundaries. For example, the remains of two WWI-
era vessels, the remains of the steamship Wawaset, and the remains of a 
Civil War-era vessel are known to reside in the areas defined by 
Alternative C. As such, NOAA based Alternative C on the premise of 
including all of the known WWI-era vessels and other significant 
maritime assets in addition to those which research indicates have the 
potential to exist. Although NOAA is not aware of any documented 
vessels or maritime assets in Alternative D, NOAA agrees there is 
credible research to suggest they may exist and, therefore, the 
rationale for resource protection that was explored through Alternative 
D. NOAA believes there are substantial scientific and educational 
opportunities to explore and document additional assets and artifacts 
throughout the sanctuary and adjacent waters.
    16. Comment: NOAA received one comment regarding NOAA's inability 
to enact management strategies that protect the maritime resources from 
``sea level rise, marine debris, erosion and other impacts from the 
sea''.
    Response: NOAA agrees that management strategies to protect 
maritime resources from forces of nature cannot be developed or 
implemented. These forces will continue to influence the condition of 
the maritime cultural heritage resources and the extent to which they 
are being reclaimed by nature. The sanctuary management plan proposes 
science and research activities that monitor and document changes to 
the maritime resources over time and, as practical, to better 
understand the potential impacts associated with these natural events.
    NOAA also agrees that marine debris has potential to impact 
sanctuary resources. The management plan includes a number of non-
regulatory strategies that raise public awareness and promote 
responsible use of the sanctuary resources as important methods for 
mitigating human impacts such as marine debris. Additionally, since 
2014, NOAA and its partners have participated in an annual trash clean 
up at Mallows Bay Park hosted by the Alice Ferguson Foundation. Those 
events have attracted hundreds of community volunteers who have 
collected several tons of trash and marine debris in and around the 
historic and natural resources. Following designation, NOAA intends to 
expand partnerships with other programs in response to marine debris.
Purpose and Need 2: Public Access, Recreation and Heritage Tourism
    17. Comment: NOAA received several comments that the Mallows Bay 
sanctuary nomination and designation processes have already increased 
public awareness of and visitation to the area, which has resulted in 
overcrowding at Mallows Bay Park and conflicts among users, and which 
threatens the protection of sanctuary resources.
    Response: NOAA agrees that the designation process has increased 
awareness of Mallows Bay Park and adjacent maritime cultural heritage 
resources, but data are not available to interpret changes to 
visitation. As outlined in the proposed management plan, NOAA will work 
in cooperation with partners to understand visitor use, understand 
carrying capacity of the site and, if/as necessary, help mitigate 
overcrowding (see FMP Resource Protection Action Plan, Strategy RP-3) 
and reduce potential threats to sanctuary resources (see FMP Resource 
Protection Action Plan, Strategy RP-1 and RP-3). For example, proposed 
activities related to visitor information, signage, marketing, public 
outreach and water trails are expected to help disperse or separate 
visitors.
    18. Comment: NOAA received many comments that NOAA should work with 
partners to help facilitate additional public access, enhance capacity 
at existing access sites, and enhance visitor services.
    Response: NOAA agrees with this comment. Facilitating public access 
and recreational opportunity is one of two purposes and needs 
identified for the sanctuary. NOAA will continue to work

[[Page 32594]]

with partners in Maryland and Virginia to consider public use and 
demand and, as appropriate, to expand access and services that enhance 
visitor experiences.
    19. Comment: NOAA received several comments that sanctuary 
designation is an opportunity to network recreational opportunities 
among multiple public parks and access points in MD and VA, and one 
comment providing specific recommendations for the types of amenities 
at these locations.
    Response: NOAA agrees with this comment and recognizes the social 
and economic benefits associated with enhancing partnerships among 
these sites. Mallows Bay Park is one of several local, state and 
Federal parks in MD and VA along this stretch of the Potomac River. 
Additionally, these parks are adjacent to and provide public access to 
three national water trails in this portion of the river. The sanctuary 
management plan identifies activities to support recreational access, 
water trails and interpretation, as well as education and public 
outreach of the area on both sides of the Potomac River.
    20. Comment: NOAA received a few comments that NOAA should protect 
the areas of importance but keep the river open and available to all.
    Response: NOAA agrees with this comment. The purpose of the 
designation is to protect the nationally-significant maritime cultural 
heritage resources. In carrying out this purpose, NOAA has no plans to 
limit access to the Potomac River. Many of the action plans in the 
management plan encourage use of the river, including Resource 
Protection Strategy 3 (enhancing user access, developing trail maps, 
certification programs for local outfitters). Additionally, the 
Recreation and Tourism Action Plan (FMP Section 3) focuses on ways to 
increase sustainable use of the sanctuary and adjacent river, preparing 
and distributing outreach and education materials to visitors, and 
working with state and local governments to develop and/or enhance 
tourism infrastructure.
    21. Comment: NOAA received one comment expressing concern about the 
safety of bicyclists on local roads and objections to using local taxes 
to fund the activities of visitors.
    Response: Through the proposed designation, NOAA cannot manage or 
regulate local roads, vehicle traffic, or cyclist use of the roadways. 
Local land use planning, taxes and related infrastructure remain under 
the authority of County and State agencies. If or when changes to the 
use of local use of roadways is related to the sanctuary, any actions 
or amenities will be addressed by the County or State, as appropriate, 
and as a joint managers of the sanctuary.
    22. Comment: NOAA received one comment expressing concern that NOAA 
would charge a fee for commercial and recreational uses of the Potomac 
River.
    Response: Facilitating public access and recreational use of the 
Potomac River is one of the two purposes for establishing the 
sanctuary. The States and County may already charge fees for use of 
parks or recreational activities (i.e., fishing licenses), but those 
fees are not associated with nor are the fees imposed by the sanctuary. 
Generally, NOAA does not charge fees for public access to national 
marine sanctuaries. However, pursuant to Section 310 of the NMSA, NOAA 
may issue special use permits (SUPs) to establish conditions of access 
and use of sanctuary resources, or to promote public use and 
understanding of a sanctuary resources. Special use permits are 
generally issued for a narrow category of concessionary or commercial 
activities. Those activities are set forth in the Federal Register (78 
FR 25957; May 3, 2013 and 82 FR 42298; September 7, 2017), and include:
    1. The placement and recovery of objects associated with public or 
private events on non-living substrate of the submerged lands of any 
national marine sanctuary.
    2. The placement and recovery of objects related to commercial 
filming.
    3. The continued presence of commercial submarine cables on or 
within the submerged lands of any national marine sanctuary.
    4. The disposal of cremated human remains within or into any 
national marine sanctuary.
    5. Recreational diving near the USS Monitor.
    6. Fireworks displays.
    7. The operation of aircraft below the minimum altitude in 
restricted zones of national marine sanctuaries.
    8. The continued presence of a pipeline transporting seawater to or 
from a desalination facility.
    The NMSA allows NOAA to assess and collect fees for activities 
conducted under an SUP. The fees are collected in order 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. 
NOAA will not apply the SUP to activities in place at the time of the 
MPNMS designation.
    23. Comment: NOAA received one comment expressing concern that 
fossil hunting would be restricted.
    Response: NOAA does not propose to restrict casual collection of 
fossils along the shoreline. NOAA will continue to work with partners 
to develop public education and outreach materials that interpret the 
resources of the area, including fossils, to help encourage respect and 
stewardship of any artifacts which may have unique cultural 
significance. Some commercial methods of collection may require 
permitting under the NMSA and through other authorities, such as the 
U.S, Army Corps of Engineers, if the activity is expected to cause 
significant bottom disturbance or damage to the historic resources.
    24. Comment: NOAA received one comment that there should be an 
emphasis on encouraging recreational activity in the area, specifically 
related to recreational boating, and that the sanctuary must provide 
recreational access for boaters.
    Response: Facilitating public access and recreational use of the 
Potomac River is one of the two purposes for establishing the 
sanctuary. NOAA encourages a variety of responsible recreational uses 
within the sanctuary and will continue to work with partners to explore 
opportunities to enhance services important to all users, including 
recreational boating.
    25. Comment: NOAA received one comment asking NOAA to confirm that 
Alternatives C and D would not impact construction/maintenance of 
marinas and piers along the Prince William County, VA, shoreline or the 
operation of passenger ferry service and transport of commercial goods 
to ports on the Potomac River.
    Response: Because NOAA's preferred alternative (Alternative B) does 
not include the Prince William County, VA, shoreline, the facilities 
referenced in the comment are not included in the sanctuary boundaries 
and thus will not be impacted by sanctuary regulations. In the case of 
any future construction projects that may have the potential to 
indirectly impact the sanctuary, NOAA would consult with other Federal, 
state and local agencies to evaluate potential impacts. The sanctuary 
regulations do not prohibit or otherwise limit vessel traffic on the 
Potomac River, and thus NOAA does not expect that this action would 
affect the operation of passenger ferry service or other commercial 
uses of the river. NOAA is committed to ensuring that the creation of 
the sanctuary supports businesses and organizations that use the river 
and surrounding marinas, ports and other waterfront facilities and 
recognizes that commercial and recreational uses of the Potomac River 
are important activities that support the nation's economy.

[[Page 32595]]

Impact on Sovereignty and Rights

    26. Comment: NOAA received several comments concerned that 
sanctuary designation will result in the loss of State control of the 
Potomac River, and is a takeover of both management, regulation and 
permitting of the area by the Federal government.
    Response: NOAA disagrees with this comment. The NMSA recognizes the 
sovereignty of the State of Maryland. As stated in the NMSA (16 U.S.C. 
1431(b)(2)), one of the purposes and policies of sanctuary designation 
is ``to provide authority for comprehensive and coordinated 
conservation and management of these marine areas, and activities 
affecting them, in a manner which complements existing regulatory 
authorities.'' Similarly, section 1434 provides the Governor with 
authority to certify that the designation or terms thereof is 
unacceptable, and preclude the designation or terms thereof from taking 
effect in state waters.
    NOAA, the State of Maryland, and Charles County, MD, will enter 
into a Memorandum of Agreement (MOA) that specifies the terms of joint 
management of the sanctuary and reiterates that the State does not 
relinquish sovereignty or management control over any State-owned 
bottom lands and resources within the sanctuary boundaries. This 
document clearly lays out how sanctuary designation will supplement and 
complement, not replace, existing authorities. The draft MOA can be 
found in Appendix D of the FEIS.
    27. Comment: NOAA received a few comments that the Potomac River 
Fisheries Commission (PRFC) has sole authority to manage fisheries 
within the mainstem tidal reach of the Potomac River and that sanctuary 
designation and any associated regulations will infringe on the PRFC 
authority.
    Response: NOAA disagrees that the sanctuary will infringe on PRFC 
authority. NOAA narrowly defines sanctuary resources as ``historical 
resources'', which includes ``any resource possessing historical, 
cultural, archaeological or paleontological significance, including 
sites, contextual information, structures, districts, and objects 
significantly associated with or representative of earlier people, 
cultures, maritime cultural heritage, and human activities and 
events.'' The definition does not including living resources, such as 
fish, marine mammals or seabirds. Instead, the proposed regulations 
seek only to protect the maritime and cultural resources of Mallows 
Bay-Potomac River.
    In Article IV, Section 2, of the Terms of Designation (found in 
appendix B of part 922, subpart S), NOAA clarifies that ``NOAA will not 
exercise its authority under the NMSA to regulate fishing in the 
Sanctuary.'' NOAA has also added an exemption for traditional fishing 
in Sec.  922.203(a), and ``traditional fishing'' is defined in Sec.  
922.201 as those commercial, recreational, and subsistence fishing 
activities that were customarily conducted within the Sanctuary prior 
to its designation or expansion, as identified in the relevant Final 
Environmental Impact Statement and Management Plan for this Sanctuary.
    Furthermore, in Section VII of the Draft MOA (found in Appendix D 
of the FEIS/FMP), the parties intend to consider the potential impacts 
of sanctuary designation to commercial and recreational fishing 
activities during management plan review conducted under 304(e) of the 
NMSA. Specifically, within sixty days of the five- and ten-year 
anniversary date of the designation, the Governor of Maryland may 
submit findings demonstrating the manner and extent to which the 
designation of the sanctuary is having measurable negative impacts on 
the State's commercial and/or recreational fishing industry, and 
provide NOAA with an opportunity to address the concerns.
    Additionally and pursuant to the NMSA, any future changes to the 
activities subject to regulation would require public notice, a 
rulemaking process, and concurrence from the State of Maryland. As 
such, the authority and responsibility for natural resource management, 
including commercial and recreational fishing, remain with PRFC and MD 
Department of Natural Resources (DNR). In March 2017, Attorneys General 
from both Maryland and Virginia rendered opinions to PRFC and MD DNR 
which confirmed that the authorities of PRFC and DNR for natural 
resource management would not be impacted by sanctuary designation (See 
FEIS Appendix E).
    28. Comment: NOAA received a few comments concerned that sanctuary 
designation will infringe upon the rights of local tribes.
    Response: NOAA disagrees with this comment. Sanctuary designation 
and management will not infringe on Tribal rights. NOAA anticipates 
working alongside partners to expand understanding and interpretation 
of the heritage of all local Native American cultures. There are two 
state-recognized tribes in Maryland (Piscataway Conoy Confederacy and 
Sub-Tribes and Piscataway Indian Nation) and one in Virginia 
(Patawomeck Indian Tribe of VA) who claim this area as their aboriginal 
territory. Consistent with section 106 of the National Historic 
Preservation Act, NOAA invited the three state-recognized tribes to be 
consulting parties in the designation process. Interaction with local 
Tribes has been on-going.
    In 2014, the community who developed the original sanctuary 
nomination recognized Tribal culture as integral to the history and 
heritage of the Potomac River. The Piscataway Conoy Confederacy and 
Sub-Tribes (MD) served as a member of the nominating group and helped 
to guide the information content. Since then, members of the Piscataway 
Conoy Confederacy and Sub-Tribes participated in local community events 
related to Mallows Bay and, on March 7 and March 9, 2017, offered 
verbal comments related to the proposed sanctuary. One member 
questioned the historic value of the ships and expressed concern about 
increased taxes, while the Tribe's Chairman expressed support for the 
sanctuary and partnerships that share a common goal to protect the 
resources and ancestry of the Potomac River. On March 22, 2017, also as 
part of the public comment period, the Patawomeck Indian Tribe of VA 
submitted a written comment expressing concern for Tribal sovereignty 
and Federal involvement that could affect livelihoods.
    On March 2, 2017, NOAA sent letters to two Maryland Tribes--the 
Piscataway Conoy Confederacy and Sub-Tribes and Piscataway Indian 
Nation. The Piscataway Conoy Confederacy and Sub-Tribes provided oral 
comments during the public meetings on March 7 and March 9 as described 
above. On November 3, 2017, NOAA sent follow up emails to these same 
Tribes inviting them to discuss the proposed sanctuary and any concerns 
related to the Tribes. NOAA did not receive a reply from either.
    On October 16, 2017, and November 20, 2017, NOAA sent invitations 
for consultation to the Patawomeck Indian Tribe of VA. NOAA did not 
receive a response. On November 29, 2017, NOAA phoned Chief John 
Lightner. During that conversation, Chief Lightner offered no present-
day concerns relative to the proposed sanctuary, despite the initial 
concerns expressed during the public comment period in March 2017. 
Moreover, Chief Lightner expressed interest in learning more about 
opportunities to engage directly with the sanctuary on topics related 
to interpreting the heritage of the Patawomeck Tribe of VA.

[[Page 32596]]

    29. Comment: NOAA received one comment that the sanctuary would 
cause property owners along the shoreline to lose their properties.
    Response: As described in Section 3.2 of the FEIS, sanctuary 
resources are specific to the maritime and cultural resources within 
Maryland waters. The sanctuary boundary does not include land area, nor 
does it include private property. Following sanctuary designation, 
authority for local land use planning remains with local jurisdictions 
(e.g., Charles County, Maryland and VA counties). NOAA has been and 
will continue to work closely with state, county, and local authorities 
to understand land-based actions with the potential to negatively 
affect sanctuary resources.

Comments Related to Indirect Benefits

    30. Comment: NOAA received many comments that sanctuary designation 
will be important to protect existing populations and habitats for 
striped bass and sturgeon, and will improve water quality for 
recreational and commercial fishing.
    Response: The authority and responsibility for natural resource 
management, including commercial and recreational fishing, remains with 
the State of Maryland and the Potomac River Fisheries Commission. The 
management of the sanctuary is focused on protections of maritime 
heritage resources. As such, to the extent that fish or other species 
rely on the maritime heritage resources as habitat, the sanctuary may 
have beneficial effects. The sanctuary management plan identifies 
opportunities for science and monitoring of maritime heritage 
resources, including their relationship with the local ecosystem. 
NOAA's Office of National Marine Sanctuaries consulted with NOAA 
Fisheries pursuant to ESA section 7 for sturgeon and pursuant to the 
EFH provisions of the MSA for summer flounder and bluefish. In both 
consultations, NOAA found that sanctuary designation would not have an 
adverse effect.
    31. Comment: NOAA received many comments that the sub-estuaries 
represented by Alternative D are part of a connected ecosystem. As 
such, a sanctuary that includes this area could have additional benefit 
for species, habitat and water quality
    Response: NOAA's consideration of Alternative D was related 
directly to the protection and management of maritime cultural heritage 
resources and enhancing recreational access and interpretation related 
to these resources. As such, NOAA did not consider this area from the 
perspective of ecosystem connectivity. Following sanctuary designation, 
natural resource management will remain under the jurisdiction of other 
existing State and Federal authorities.
    32. Comment: NOAA received many comments that the proposed national 
marine sanctuary is an important component of the Chesapeake Bay and 
related programs
    Response: NOAA agrees with this comment. The Chesapeake Bay Program 
is a regional partnership that leads and directs Chesapeake Bay 
restoration and protection through partnerships with federal and state 
agencies, local governments, nonprofit organizations and academic 
institutions. NOAA is represented and actively engages in partnerships 
throughout the Chesapeake Bay and in the Potomac River. The sanctuary 
presents additional opportunities to expand local and regional 
partnerships for public engagement, education, science and outdoor 
experiences.
    33. Comment: NOAA received several comments that the proposed 
national marine sanctuary is an important component of the Potomac 
River and the Chesapeake Bay.
    Response: NOAA agrees with this comment. The Potomac River, which 
is part of the Chesapeake Bay watershed, is an important natural 
resource in the region. The cultural resources within the sanctuary are 
an important watershed component that reflects the human history of the 
region. Through the sanctuary management plan, NOAA intends to further 
explore and interpret the cultural and historic aspects of the greater 
Potomac River watershed and its relationship to the greater Chesapeake 
region.
    34. Comment: NOAA received one comment stating that ``Marine 
sanctuaries have been demonstrated to have huge net-positive benefits 
for economic growth. I think designation of Mallows Bay as a marine 
sanctuary would be a critical advancement for the region. I think this 
is so important to the long-term future of this region, that if I were 
asked, I would support market-based compensation for individuals that 
are financially harmed by the designation. This would be an important 
step in the restoration and strengthening of our bay.''
    Response: NOAA agrees that national marine sanctuaries have 
potential to provide net positive economic benefit to communities, as 
described in the FEIS, Sections 5.3.2 and 5.3.4. Increased awareness of 
the area and its maritime resources has potential to increase heritage 
and recreational tourism and drive demand for enhancing visitor 
services. NOAA's evaluation does not include consideration of market-
based compensation.

Concern for Future Expansion of NOAA Authorities

    35. Comment: NOAA received a few comments expressing concern that 
in 5 years when NOAA is required to revise the management plan, NOAA 
will change the rules, expand the boundaries, and put in stricter 
regulations.
    Response: Section 304(e) of the NMSA requires NOAA to evaluate a 
national marine sanctuary's management plan every five years. However, 
NOAA is not required to revise the management plan and/or the 
regulations during the management plan review process. Should any 
changes to the sanctuary's management approach be required, they would 
be made only after the agency has engaged in a robust public process.
    Additionally, any proposed changes to a national marine sanctuary 
boundary and its regulations are further subject to section 304(a)(4) 
of the NMSA, which identifies the sanctuary's ``terms of designation'' 
(i.e., its geographic boundaries, the characteristics that make it 
significant, and the broad types of activities that could be subject to 
regulation). These terms of designation may be modified only by the 
same procedures used for the original designation, meaning they must 
include public notice requirements. This provision also allows the 
Governor of any respective state within the sanctuary's boundaries to 
review any changes to the terms of designation, and to make a 
determination as to whether they are acceptable. Any term of 
designation the Governor determines as unacceptable shall not take 
effect in the state waters of the sanctuary.
    In the case when a regulatory change does not require changes to a 
sanctuary's terms of designation, NOAA would have to follow the 
procedures of the Administrative Procedure Act (5 U.S.C. 553), which 
requires adequate public notice and opportunity for public comment on 
any proposed new regulations. The State of Maryland and Charles County, 
as the sanctuary joint-managers, would be involved in all 
considerations regarding any proposed changes to the sanctuary's terms 
of designation and regulations.
    36. Comment: NOAA received a few comments expressing concern that, 
because NOAA has the authority to regulate fishing, once the sanctuary 
is designated NOAA is likely to begin regulating fishing within this 
sanctuary.

[[Page 32597]]

    Response: NOAA's purpose in designating this national marine 
sanctuary is to protect maritime cultural heritage assets located in 
the Potomac River. While NOAA Office of National Marine Sanctuaries has 
authority to regulate fishing activities pursuant to the NMSA, NOAA has 
not exercised that authority for this sanctuary. The sanctuary 
regulations for MPNMS only apply to historical resources. Additionally, 
the terms of designation for MPNMS do not identify fishing as one the 
activities subject to regulations. Moreover, since the waters of the 
sanctuary are located entirely within the jurisdiction of the State of 
Maryland, the PRFC (which includes commissioners from Maryland and 
Virginia) and the State of Maryland will retain the sole authority to 
publish and enforce rules, regulations and laws dealing with all 
fishing matters in the area. In the Article IV, Section 2 of the Terms 
of Designation (found in appendix B of part 922, subpart S), NOAA 
clarifies that ``NOAA will not exercise its authority under the NMSA to 
regulate fishing in the Sanctuary.''
    37. Comment: NOAA received a few comments that designation could 
impact hunting and the permitting process. In addition, there is no 
mention of hunting as a recreational activity; current hunting 
regulations, licenses, and permitting should remain as is.
    Response: NOAA's purpose in designating this national marine 
sanctuary is to protect maritime cultural heritage assets located in 
the Potomac River. The FEIS has been updated to include data on hunting 
activities in the area. NOAA's analysis of the resources has not found 
any threats from or impacts to these resources from hunting. Thus, the 
terms of designation does not identify hunting as one of the activities 
subject to regulation, so NOAA cannot impose restrictions on hunting 
unless new terms of designation are issued. All licensing and 
permitting for hunting will remain under the jurisdiction of the 
Maryland DNR.

Comments Related to the Draft Management Plan

    38. Comment: NOAA received many comments that the sanctuary would 
enhance student education (K-12 and higher education), particularly 
through increased opportunity for field-based programs.
    Response: NOAA agrees with this comment. The sanctuary offers 
students a unique experience in multi-disciplinary education. This area 
has recently become a magnet for educational field experiences at all 
levels, including several graduate studies from outside the local area. 
Additionally, through funding from NOAA, stewardship activities and 
outdoor educational opportunities have been expanded at two schools in 
Charles County, MD. The sanctuary will enable additional educational 
opportunities and partnerships, including those aimed at understanding 
and appreciation of both ecological characteristics and historic 
archaeological resources within the area. The site's proximity to 
Washington, DC, and several colleges and universities adds to the 
opportunities for learning and research at the highest level, often in 
conjunction with state and federal agencies, and private educational 
institutions.
    39. Comment: NOAA received comments that the sanctuary will be an 
important location for research, science and monitoring of historical 
resources as well as their interaction with the natural environment.
    Response: NOAA agrees with this comment. The sanctuary is an 
excellent site to act as a living laboratory to understand changes to 
natural conditions, shipwrecks, and the interaction between them. Many 
opportunities for scientific, archaeological and environmental research 
exist through partnerships with non-profit maritime organizations, and 
universities and colleges with maritime archaeology programs being 
invited to work with NOAA and the State to undertake research and to 
encourage students to seek thesis and dissertation topics at Mallows 
Bay. The College of Southern Maryland in particular has expressed 
interest in integrating various components of its current and planned 
curriculum, such as studies in robotics and remote sensing technology, 
to partner with the archaeological research of submerged sites in the 
transect.
    40. Comment: NOAA received many comments requesting that NOAA 
should consider a visitor center to support public awareness, 
education, and interpretation. In addition, the comments suggest NOAA 
should consider the location of the visitor center to support tourism 
and possibly to enhance the local economy through visitation.
    Response: NOAA agrees that connecting to the public through 
educational and interpretive programs, exhibits and interactive 
experiences, including visitor centers, is an important component of 
all national marine sanctuaries. Following sanctuary designation, NOAA 
will work with state and local partners to evaluate the types and 
locations of educational and interpretive programs and/or 
infrastructure (e.g., signs and exhibits) needed to support sanctuary 
management. Visitation and potential economic benefit are among 
numerous other considerations regarding the potential for a visitor 
center. If a visitor center is determined to be appropriate and 
feasible, NOAA will work in partnership the county, state and/or other 
local authorities with jurisdiction for land use planning and funding 
options.
    41. Comment: NOAA received some comments that sanctuary designation 
would increase tourism, which would benefit the local economy. 
Sanctuary designation would help to create or support jobs and small 
business opportunities especially those associated with visitor 
services.
    Response: NOAA agrees that the designation has potential to 
increase public interest and visitation to the area as described in the 
FEIS, Sections 5.3.2 and 5.3.4. No recent economic studies exist to 
document visitation, although the need for one is identified in the 
sanctuary management plan. Charles County initiated a method to track 
visitation to Mallows Bay Park in Spring 2017. However, public access 
also originates from other nearby sites. As such, the potential for 
visitation and demand for services is not known. Should it occur, this 
demand may aid the local economies of the surrounding area, 
particularly for small businesses that cater to nature-based tourism, 
heritage tourism, recreational fishing, wildlife viewing, kayaking and 
boating.
    42. Comment: NOAA received several comments that sanctuary 
designation will have negative economic impacts to local watermen.
    Response: NOAA disagrees with this comment. The principal purpose 
of the sanctuary is to protect, study, interpret and manage the 
extensive archaeological and historical resources of the area. Because 
the authorities for managing fishery resources will remain with the 
PRFC and MD DNR, sanctuary designation will not regulate, alter or 
negatively impact commercial or recreational fishing.
    43. Comment: NOAA received a few comments expressing concern that 
placing any new restrictions on the Potomac River will adversely impact 
the ability of DoD to carry out critical mission training and 
operations. In addition, MPNMS tourism will result in increased boat 
traffic on the river, which would interfere with military training and 
operations.
    Response: NOAA disagrees with this comment. In September 2016, the 
Department of Navy (DoN) signed on as a cooperating agency to 
participate in

[[Page 32598]]

the development of the sanctuary designation documents, including the 
sanctuary regulations, management plan, and environmental impact 
statement. DoN coordinated interactions and information exchange 
between NOAA, Marine Corps Base Quantico, Naval Support Facility Indian 
Head, Naval Support Facility Dahlgren, and Blossom Point Research 
Facility (collectively referred to as Department of Defense (DoD)). 
NOAA, in consultation with the DoN, has established a framework for 
MPNMS and DoD to co-exist. In developing the proposed rule, NOAA did 
not anticipate that many, if any, current DoD activities would 
adversely impact sanctuary resources. However, following interagency 
consultation with DoD components (including DoN, the Marine Corps, and 
the U.S. Army), NOAA revised Sec. Sec.  922.203(c) and 922.204 and the 
terms of designation set forth in appendix B to the MPNMS regulations 
at 15 CFR part 922, subpart S. In the final regulations, NOAA: (a) 
Clarifies the extent to which the sanctuary prohibitions may apply to 
DoD activities; (b) clarifies the requirement for DoD to engage in NMSA 
section 304(d) consultation; and (c) exempts DoD from the application 
of emergency regulations issued by NOAA pursuant to Sec.  922.204. 
Additionally, the discussions with DoD identified benefits that would 
be provided to DoD through sanctuary education, public outreach, 
interpretation and management.
    44. Comment: NOAA received a few comments expressing concern that 
sanctuary designation will have negative impacts to local businesses 
and will restrict local development opportunities.
    Response: As is the case at other national marine sanctuaries 
around the country, NOAA believes that the sanctuary will have a 
positive impact on local businesses and the economies of the 
surrounding area. No recent economic studies exist to document 
visitation, although the need for such studies is identified in the 
sanctuary management plan. Charles County initiated a method to track 
visitation to Mallows Bay Park in Spring 2017, however, public access 
also originates from other nearby sites. As such, the potential for 
visitation and demand for services is not known. Should it occur, this 
demand may aid the local economies of the surrounding area particularly 
for small businesses that cater to nature-based tourism, heritage 
tourism, recreational fishing, wildlife viewing, kayaking and boating.
    45. Comment: NOAA received a few comments that water quality 
conditions in the Potomac River may pose a risk to public health.
    Response: NOAA does not define water quality as a sanctuary 
resource and, as such, will not manage water quality conditions nor 
contributing factors. However, NOAA is interested in water quality as 
it may affect the wrecks. Therefore, NOAA may monitor water quality 
through deployment of monitoring buoys or other methods, and may 
participate in relevant community activities such as trash clean-ups.
    46. Comment: NOAA received one comment concerned that special 
conservation areas that are identified on aeronautical charts would 
restrict aviation primarily through altitude restrictions and landing 
requirements.
    Response: NOAA's purpose in designating this national marine 
sanctuary is to protect maritime cultural heritage assets located in 
the Potomac River. NOAA's analysis of the resources has not found any 
threats from or impacts to these resources from aircraft. Thus, air 
space/altitude of aircraft is not identified in the terms of 
designation as an activity that is subject to regulation. NOAA is 
precluded from regulating airspace unless change in the terms of 
designation is issued.
    47. Comment: NOAA received one comment expressing concern that NOAA 
would have insufficient capacity for day-to-day enforcement of the 
rules of the sanctuary.
    Response: Upon designation, NOAA will continue to work with agency 
co-managers and partners to evaluate the need for enforcement specific 
to the maritime and cultural assets defined as sanctuary resources. 
Enforcement of natural resources and other activities that are not 
related to sanctuary resources will remain with the existing 
authorities. NOAA often employs ``interpretative'' enforcement, through 
education, public outreach, docents and similar non-regulatory means, 
to help inform users and encourage stewardship of the resources.
    48. Comment: NOAA received a few comments related to the cost of 
designating a national marine sanctuary, including a question related 
to the source of funding for the sanctuary, a concern that Federal 
funds are insufficient for sanctuary enforcement and another asking 
about funding sources for a visitor center.
    Response: As a federal agency, NOAA's budget is passed by Congress 
and signed into law by the President. NOAA's budget includes an annual 
allocation for the management of all national marine sanctuaries. The 
NMSA directs NOAA to protect these nationally significant ecological 
and historic resources. NOAA makes funding decisions for each sanctuary 
based on the annual funding level, program priorities, and site needs. 
As a result, site funding can vary from year to year which may affect 
the level of activities completed in the management plan each year. As 
part of the management plan for this sanctuary, NOAA includes a table 
that described the sanctuary activities that could be completed at 
several funding levels. NOAA also anticipates a varying level of in-
kind contributions from co-managers and partners to help support 
sanctuary goals.
    49. Comment: NOAA received one comment from a non-governmental 
organization requesting opportunity to review the Memorandum of 
Agreement (MOA) for joint management of the sanctuary between NOAA, the 
State of Maryland and Charles County, MD.
    Response: NOAA, the State of Maryland, and Charles County, MD, have 
agreed to enter into a formal agreement, referred to as a MOA. This 
agreement establishes the framework for joint management and operation 
of Mallows Bay-Potomac River National Marine Sanctuary, and will be 
based on language contained in the draft MOA available in Appendix D of 
the FEIS/FMP.
    50. Comment: NOAA received a few comments from organizations 
requesting to have seats on the sanctuary advisory council (SAC).
    Response: NOAA appreciates the interest from members of the public 
who want to participate with the SAC. Following designation and 
pursuant to NMSA section 315, NOAA will establish and manage a SAC to 
advise and make recommendations regarding the management of the 
sanctuary. The SAC may be composed of up to fifteen (15) members and, 
per NMSA section 315, may include: (a) Persons employed by Federal and/
or state agencies with expertise in management of sanctuary resources 
and (b) representatives of local user groups (such local user groups 
may include, but are not limited to, local fishing interests), 
conservation and other public interest organizations, scientific 
organizations, educational organizations, or others interested in the 
protection and multiple use and management of sanctuary resources. In 
its establishment, NOAA will strive to achieve a balanced advisory 
council composition that best represents the primary sanctuary users 
and interests. In determining the composition of the advisory council, 
NOAA may consult with the State of Maryland and/or Charles County.

[[Page 32599]]

Comment on the Proposed Regulations
    51. Comment: NOAA received one comment expressing concern about 
giving the Sanctuary Superintendent the power to issue emergency 
regulations.
    Response: As part of the designation, NOAA will have the authority 
to issue emergency regulations. As described in the proposed rule (82 
FR 2254) and in this final rule, 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 regulations at 15 
CFR 922.204, 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. The emergency regulation also 
cannot take effect without the approval of the Governor of Maryland, or 
his/her designee. Moreover, a full rulemaking process must be 
undertaken, including a public comment period, to consider making an 
emergency regulation permanent.

Comments on the NEPA Process

    52. Comment: NOAA received two comments requesting NOAA to extend 
the public comment period beyond March 31, 2017.
    Response: NOAA considered these comments during the comment period 
and declined to extend the comment period. NOAA fully complied with the 
requirements of the NMSA (16 U.S.C. 1434(a)(1)) and Administrative 
Procedures Act (5 U.S.C. 553) to provide adequate opportunity for 
public comment. From January 9 to March 31, 2017, NOAA held an 81-day 
public comment period, which exceeds the 30-day comment period 
requirement under APA, to allow the public time to review the proposal 
and provide comments. NOAA also hosted two public meetings to discuss 
the proposal and gather comments. In addition to posting a Federal 
Register notice, NOAA broadcasted the proposed action through extensive 
national and local media and social media outlets and targeted 
communications to Congressional members and staff as well as 
stakeholders including local/regional conservation NGOs, local tourism 
agencies and other business interests, local/regional elected 
officials, university and academic researchers, recreational divers, 
commercial and recreational fishing interests, and federal/state/local 
partners.
    53. Comment: NOAA received one comment requesting that NOAA 
coordinate actions under the Endangered Species Act related to the 
Atlantic sturgeon critical habitat prior to sanctuary designation.
    Response: In compliance with requirements under NEPA and the 
Endangered Species Act (ESA; Section 7(c)), ONMS requested consultation 
with NOAA's National Marine Fisheries Service (NMFS) to assess whether 
sanctuary designation might have impacts to Atlantic sturgeon. NMFS 
determined that due to the lack of identifiable stressors, sanctuary 
designation would have no effect on any ESA-listed species or critical 
habitat; see section 6.1.1 of the FEIS for discussion.
    54. Comment: NOAA received a few comments that NOAA needs to 
conduct additional consultations.
    Response: NOAA conducted all required consultations during the 
preparation of the FEIS. Chapter 6 of the FEIS describes the required 
Federal, state, and other consultations with state-recognized tribes 
that NOAA undertook under the requirements of the NMSA, National 
Historic Preservation Act, Endangered Species Act, Magnuson-Stevens 
Fishery Management and Conservation Act, Coastal Zone Management Act, 
and relevant Executive Orders, and the results of those actions.

V. 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. NOAA also determined 
that the requirement to complete site characterizations has been met. 
The final findings for NMSA section 304(f) are published on the ONMS 
web page for the Mallows Bay-Potomac River designation at https://sanctuaries.noaa.gov/mallows- potomac/.

National Environmental Policy Act

    NOAA has prepared a final environmental impact statement to 
evaluate the environmental effects of the rulemaking and alternatives 
as required by NEPA (42 U.S.C. 4321 et seq.) and the NMSA. The Notice 
of Availability (84 FR 25257) is available at https://sanctuaries.noaa.gov/mallows- potomac/. NOAA has also prepared a Record 
of Decision (ROD). Copies of the ROD and FEIS are available at the 
address and website listed in the ADDRESSES section of this 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 provided a copy of the proposed rule and supporting 
documents to the Maryland Department of the Environment, (MDE) Coastal 
Zone Management (CZM) Program and Virginia Coastal Zone Management 
Program within the Department of Environmental Quality (DEQ) for 
evaluation of Federal consistency under the CZMA. On April 19, 2018, 
the MDE concurred with NOAA's consistency determination that the 
proposed action was consistent with the enforceable policies of the 
Maryland CZM program. That same day, DEQ sent a separate concurrence 
letter to NOAA concluding that the project is consistent to the maximum 
extent practicable with the enforceable policies of the Virginia CZM 
program, provided that all applicable permits and approvals are 
obtained, and the project is operated in accordance with all applicable 
federal, state, and local laws and regulations. No federal or state 
permits are required for sanctuary designation, and NOAA has consulted 
and obtained all other required approvals. MPNMS will be operated in 
accordance with applicable laws and regulations.

Executive Order 12866: Regulatory Impact

    This 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. These sanctuary 
regulations are intended only to supplement and complement existing 
state and local laws under the NMSA.

Executive Order 13795: Implementing an America-First Offshore Energy 
Strategy

    On April 28, 2017, Executive Order 13795--Implementing an America-
First Offshore Energy Strategy was signed by the President. Section 
4(a) of E.O. 13795 requires the Secretary of Commerce (acting through 
NOAA) to receive from the Department of the Interior (DOI) a

[[Page 32600]]

full accounting of the energy or mineral resource potential of any area 
proposed for sanctuary designation or expansion, including information 
on the potential impact the proposed designation or expansion will have 
on the development of those resources.
    On December 22, 2016, NOAA sent DOI a letter providing notice of 
the NOAA's proposal to designate two new national marine sanctuaries in 
Wisconsin and Maryland pursuant to the NMSA (16 U.S.C. 1431 et seq.). 
Although NOAA believed that neither of these proposed sanctuaries were 
within DOI's leasing authorities pursuant to the Outer Continental 
Shelf Lands Act, NOAA requested in a subsequent letter on April 11, 
2018 that DOI evaluate these designations pursuant to E.O. 13795 
(4)(b). On May 7, 2018, DOI responded to NOAA's letter confirming that 
lands underlying the proposed sanctuary are state lands and thus are 
not managed by DOI and that DOI has no plans for energy or mineral 
resource development in the area.

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 parts 800 through 812). In 
fulfilling its responsibilities under the NHPA, NOAA consulted with the 
Maryland State Historic Preservation Officer (SHPO), and completed the 
identification of historic properties and the assessment of the effects 
of the undertaking on such properties in scheduled consultations with 
those identified parties and the SHPO. Pursuant to 36 CFR 800.16(l)(1), 
historic properties includes any prehistoric or historic district, 
site, building, structure or object included in, or eligible for 
inclusion in, the National Register of Historic Places maintained by 
the Secretary of the Interior. The term includes artifacts, records, 
and remains that are related to and located within such properties. The 
term includes properties of traditional religious and cultural 
importance to an Indian tribe or Native Hawaiian organization and that 
meet the National Register criteria. NOAA does not believe this action 
will cause any adverse impacts to historic or cultural resources as a 
result of any of the alternatives presented in the FEIS. In March 2017, 
ONMS sent a letter to the SHPO requesting concurrence on that finding. 
In a June 19, 2017, letter to ONMS, the SHPO concurred that sanctuary 
designation would have no adverse effect on historic properties.
    NOAA invited state recognized tribes to be consulting parties under 
Section 106 of the NHPA (54 U.S.C. 306108), pursuant to 36 CFR 800.2. 
On January 3, 2017, NOAA sent a letter to the Piscataway Conoy 
Confederacy and Sub-Tribes and the Piscataway Indian Nation, both 
located in Maryland, inviting them to consult on the proposed 
designation. NOAA contacted each of the tribes again on March 2, 2017, 
and on November 3, 2017. Although NOAA received no written response to 
these communications, members of the Piscataway Conoy Confederacy and 
Sub-Tribes participated in local community events related to the 
proposed sanctuary and on March 7 and March 9, 2017, offered verbal 
comments related to the proposed sanctuary. On March 22, 2017, the 
secretary of the Patawomeck Tribe of Virginia submitted written 
comments on the proposed designation. On October 16, and November 20, 
2017, ONMS contacted the Patawomeck Tribe of Virginia and invited them 
to discuss their relationship to the proposed sanctuary. During a phone 
conversation on November 29, 2017, Chief John Lightner offered no 
present-day concerns relative to the proposed sanctuary and expressed 
interests in learning more about opportunities to engage directly with 
the sanctuary on topics related to interpreting the heritage of the 
Patawomeck Tribe of Virginia. ONMS contacted Chief Lightner again via 
email and phone on March 9, 2018, via email on April 17, 2018, and via 
phone on April 23, 2018, soliciting additional written comments. 
However, NOAA received no additional written response to these 
communications. ONMS looks forward to working with the Piscataway Conoy 
Confederacy and Sub-Tribes, the Piscataway Indian Nation, and the 
Patawomenck Tribe of Virginia.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended and codified at 5 
U.S.C. 601 et seq., requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553) or any other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Under section 605(b) of the RFA, if the head 
of an agency (or his or her designee) certifies that a rule will not 
have a significant impact on a substantial number of small entities, 
the agency is not required to prepare a regulatory flexibility 
analysis. Pursuant to section 605(b), the Chief Counsel for Regulation, 
Department of Commerce, submitted a memorandum to the Chief Counsel for 
Advocacy, Small Business Administration, certifying that original 
proposed rule would not have a significant impact on a substantial 
number of small entities. The rationale for that certification was set 
forth in the preamble of that rule (82 FR 2254).
    Although NOAA has made a few changes to the regulations from the 
proposed rule to the final rule, none of the changes alter the initial 
determination that this rule will not have an impact on small 
businesses included in the original analysis. NOAA also did not receive 
any comments on the certification or conclusions. Therefore, the 
determination that this rule will not have a significant economic 
impact on a substantial number small entities remains unchanged. As a 
result, a final regulatory flexibility analysis is not required and has 
not been prepared.

Paperwork Reduction Act

    ONMS has a valid Office of Management and Budget (OMB) control 
number (0648-0141) for the collection of public information related to 
the processing of ONMS permits across the National Marine Sanctuary 
System. NOAA's designation of 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.
    Nationwide, NOAA issues approximately 555 national marine sanctuary 
permits each year. MPNMS is expected to issue an additional 4 to 5 
permit requests per year. This is between 0.7% and 0.9% increase in 
number of permits annually. NOAA estimates there are on average three 
responses per permit each, averaging a

[[Page 32601]]

public reporting burden for national marine sanctuaries permits of 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. NOAA 
renewed the existing OMB control number for ONMS permits in July 2018 
(through 2021). Therefore, we estimate that the minimal amount of 
additional permits falls within the total estimated for the 2018 
renewal. The form and application process for Mallows Bay permits would 
be identical to the one approved in 2018.
    Comments on this determination were solicited in the proposed rule 
but no public comments were received. Notwithstanding any other 
provision of law, no person is required to respond to, nor shall any 
person be subject to a penalty for failure to comply with a collection 
of information subject to the requirements of the Paperwork Reduction 
Act, unless that collection of information displays a currently valid 
OMB control number.

List of Subjects in 15 CFR Part 922

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

Nicole R. LeBoeuf,
Acting Assistant Administrator, National Ocean Service.

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

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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


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


Sec.  922.1   Applicability of regulations in this part.

    Unless noted otherwise, the regulations in subparts A, D, and E of 
this part apply to all National Marine Sanctuaries and related site-
specific regulations set forth in this part. Subparts B and C of this 
part apply to the sanctuary nomination process and to the designation 
of future Sanctuaries.

0
3. Amend Sec.  922.3 by revising the definition of ``Sanctuary 
resource'' to read as follows:


Sec.  922.3   Definitions.

* * * * *
    Sanctuary resource means any living or non-living resource of a 
National Marine Sanctuary that contributes to the conservation, 
recreational, ecological, historical, research, educational, or 
aesthetic value of the Sanctuary, including, but not limited to, the 
substratum of the area of the Sanctuary, other submerged features and 
the surrounding seabed, carbonate rock, corals and other bottom 
formations, coralline algae and other marine plants and algae, marine 
invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, 
seabirds, sea turtles and other marine reptiles, marine mammals and 
historical resources. For Thunder Bay National Marine Sanctuary and 
Underwater Preserve, Sanctuary resource means an underwater cultural 
resource as defined at Sec.  922.191. For Mallows Bay-Potomac River 
National Marine Sanctuary, Sanctuary resource is defined at Sec.  
922.201(a).
* * * * *

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 in this part 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]


Sec.  922.47   [Amended]

0
9. Amend Sec.  922.47(b) by removing ``subparts F through P, and 
subpart R'' and adding ``subparts F through P and R through T of this 
part'' in its place.

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.

[[Page 32602]]

For the Florida Keys National Marine Sanctuary, a person may conduct an 
activity prohibited by subpart P of this part if conducted in 
accordance with the scope, purpose, terms and conditions of a permit 
issued under Sec.  922.166. For the Thunder Bay National Marine 
Sanctuary and Underwater Preserve, a person may conduct an activity 
prohibited by subpart R of this part in accordance with the scope, 
purpose, terms and conditions of a permit issued under Sec.  922.195.
    (b) Applications for permits to conduct activities otherwise 
prohibited by subparts F through O and S and T of this part, should be 
addressed to the Director and sent to the address specified in subparts 
F through O of this part, or subparts R through T of this part, as 
appropriate. An application must include:
    (1) A detailed description of the proposed activity including a 
timetable for completion;
    (2) The equipment, personnel and methodology to be employed;
    (3) The qualifications and experience of all personnel;
    (4) The potential effects of the activity, if any, on Sanctuary 
resources and qualities; and
    (5) Copies of all other required licenses, permits, approvals or 
other authorizations.
    (c) Upon receipt of an application, the Director may request such 
additional information from the applicant as he or she deems necessary 
to act on the application and may seek the views of any persons or 
entity, within or outside the Federal government, and may hold a public 
hearing, as deemed appropriate.
    (d) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct a prohibited activity, in accordance with the criteria found in 
subparts F through O of this part, or subparts R through T of this 
part, as appropriate. The Director shall further impose, at a minimum, 
the conditions set forth in the relevant subpart.
    (e) A permit granted pursuant to this section is nontransferable.
    (f) The Director may amend, suspend, or revoke a permit issued 
pursuant to this section for good cause. The Director may deny a permit 
application pursuant to this section, in whole or in part, if it is 
determined that the permittee or applicant has acted in violation of 
the terms and conditions of a permit or of the regulations set forth in 
this section or subparts F through O of this part, or subparts R 
through T of this part or for other good cause. Any such action shall 
be communicated in writing to the permittee or applicant by certified 
mail and shall set forth the reason(s) for the action taken. Procedures 
governing permit sanctions and denials for enforcement reasons are set 
forth in subpart D of 15 CFR part 904.

0
11. Amend Sec.  922.49 as follows:
0
a. In paragraph (a) introductory text, remove ``subparts L through P, 
or subpart R'' and add ``subparts L through P of this part, or subparts 
R through T of this part'' in its place;
0
b. Revise paragraphs (a)(2), (b), (c), and (g).
    The revisions 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) * * *
    (2) The applicant complies with the other provisions of this 
section;
* * * * *
    (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.
* * * * *
    (g) Any time limit prescribed in or established under this section 
may be extended by the Director for good cause.
* * * * *

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. Within 60 days after the record for the hearing 
closes, the hearing officer shall

[[Page 32603]]

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 18 square miles of waters of the state of 
Maryland 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 
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 north of the mouth of 
Aquia Creek in Stafford County, Virginia, near Brent Point. From this 
point the boundary continues to the north approximating the border 
between Virginia and Maryland cutting across the mouths of streams and 
creeks passing through the points in numerical order until it reaches 
Point 40 north of Tank Creek. From this point the sanctuary boundary 
continues east across the Potomac River in a straight line towards 
Point 41 until it intersects the Maryland shoreline just north of Sandy 
Point in Charles County, Maryland. From this intersection the sanctuary 
boundary then follows the Maryland shoreline south around Mallows Bay, 
Blue Banks, and Wades Bay cutting across the mouths of creeks and 
streams along the eastern shoreline of the Potomac River until it 
intersects the line formed between Point 42 and Point 43 just south of 
Smith Point. Finally, from this intersection the sanctuary boundary 
crosses the Potomac River to the west in a straight line until it 
reaches Point 43 north of the mouth of Aquia Creek in Stafford County, 
Virginia, near Brent Point.


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) Traditional fishing means those commercial, recreational, and 
subsistence fishing activities that were customarily conducted within 
the Sanctuary prior to its designation or expansion, as identified in 
the relevant Final Environmental Impact Statement and Management Plan 
for this Sanctuary.
    (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 Agreement 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, except as an 
incidental result of traditional fishing. 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 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) All military activities shall be carried out in a manner 
that avoids to the maximum extent practicable any adverse impact on 
sanctuary resources and qualities.
    (2) Any existing military activity conducted by DoD prior to the 
effective date of the regulations in this subpart and as specifically 
identified in the Final Environmental Impact Statement and Final 
Management Plan for the Sanctuary (FEIS/FMP) is allowed to continue in 
the Sanctuary. The prohibitions in paragraphs (a)(1) through (3) of 
this section do not apply to those existing military activities or to 
the following military activities conducted by DoD:

[[Page 32604]]

    (i) Low-level overflight of military aircraft operated by DoD;
    (ii) The designation of new units of special use airspace;
    (iii) The use or establishment of military flight training routes;
    (iv) Air or ground access to existing or new electronic tracking 
communications sites associated with special use airspace or military 
flight training routes; or
    (v) Activities to reduce or eliminate a threat to human life or 
property presented by unexploded ordnances or munitions.
    (3) New military activities that do not violate the prohibitions in 
paragraphs (a)(1) through (3) of this section are allowed. Any new 
military activity that is likely to violate sanctuary prohibitions may 
become exempt through consultation between the Director and DoD 
pursuant to section 304(d) of the NMSA. For purposes of this paragraph 
(c)(3), the term ``new military activity'' includes but is not limited 
to, any existing military activity that is modified in any way 
(including change in location, frequency, duration, or technology used) 
that is likely to destroy, cause the loss of, or injure a sanctuary 
resource, or is likely to destroy, cause the loss of, or injure a 
sanctuary resource in a manner or to an extent that was not considered 
in a previous consultation under section 304(d) of the NMSA.
    (4) In the event of destruction of, loss of, or injury to a 
sanctuary resource or quality resulting from an incident, including but 
not limited to spills and groundings caused by DoD, the cognizant 
component shall promptly coordinate with the Director for the purpose 
of taking appropriate actions to prevent, respond to or mitigate the 
harm and, if possible, restore or replace the sanctuary resource or 
quality.


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, other 
than DoD 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 Federal Register 
notification announcing of effective date of the Sanctuary designation, 
of the

[[Page 32605]]

existence of such authorization or right and requests certification of 
such authorization or right;
    (2) The holder complies with the other provisions of this section; 
and
    (3) The holder complies with any terms and conditions on the 
exercise of such authorization or right imposed as a condition of 
certification, by the Director, to achieve the purposes for which the 
Sanctuary was designated.
    (f) The holder of an authorization or right described in paragraph 
(a) of this section authorizing an activity prohibited by Sec.  922.203 
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 1--Coordinates for Sanctuary
------------------------------------------------------------------------
                Point ID                     Latitude        Longitude
------------------------------------------------------------------------
1.......................................        38.39731       -77.31008
2.......................................        38.39823       -77.31030
3.......................................        38.39856       -77.31059
4.......................................        38.39886       -77.31074
5.......................................        38.39917       -77.31067
6.......................................        38.40014       -77.31074
7.......................................        38.40090       -77.31145
8.......................................        38.40138       -77.31215
9.......................................        38.40197       -77.31236
10......................................        38.40314       -77.31278
11......................................        38.40658       -77.31377
12......................................        38.40984       -77.31465
13......................................        38.41388       -77.31692
14......................................        38.41831       -77.31913
15......................................        38.41974       -77.31930
16......................................        38.42352       -77.31971
17......................................        38.42548       -77.32030
18......................................        38.42737       -77.32081
19......................................        38.43091       -77.32240
20......................................        38.43163       -77.32242
21......................................        38.43350       -77.32263
22......................................        38.43384       -77.32269
23......................................        38.43430       -77.32265
24......................................        38.43461       -77.32229
25......................................        38.43498       -77.32146
26......................................        38.43526       -77.32057
27......................................        38.43522       -77.32040
28......................................        38.47321       -77.31845
29......................................        38.47434       -77.31874
30......................................        38.47560       -77.31752
31......................................        38.47655       -77.31686
32......................................        38.47748       -77.31666
33......................................        38.47821       -77.31604
34......................................        38.47871       -77.31554
35......................................        38.47885       -77.31563
36......................................        38.47905       -77.31559
37......................................        38.47921       -77.31578
38......................................        38.47943       -77.31592
39......................................        38.47985       -77.31592
40......................................        38.48493       -77.31335
41 *....................................        38.48554       -77.27298
42 *....................................        38.39793       -77.25704
43......................................        38.39731       -77.31008
------------------------------------------------------------------------


    Note 1 to table 1 of this appendix:  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 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 appendix 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 18 square miles of waters of the State 
of Maryland and the submerged lands thereunder, over, around, and 
under the underwater cultural resources in the Potomac River between 
Stafford County, Virginia, and Charles County, Maryland. The western 
boundary of the sanctuary approximates the border between the 
Commonwealth of Virginia and the State of Maryland for roughly 6 
miles along the Potomac River, beginning north of the mouth of Aquia 
Creek in Stafford County, Virginia, near Brent Point and continuing 
north past Widewater, VA, and Clifton Point to a point north of Tank 
Creek. From this point the sanctuary boundary crosses the Potomac to 
the east until it intersects the Maryland shoreline just north of 
Sandy Point in Charles County, MD. From this point the eastern 
boundary of the sanctuary, approximately 8 miles in total length, 
follows the Maryland shoreline south past Mallows Bay, Blue Banks, 
and Wades Bay to a point just south of Smith Point. From this 
location the sanctuary boundary crosses the Potomac River to the 
west back to its point of origin north of the mouth of Aquia Creek 
near Brent Point on the Virginia side of the river.

Article III: Special Characteristics of the Area

    Mallows Bay-Potomac River National Marine Sanctuary and its 
surrounding waters contain a diverse collection more than 100 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 
Confederacy and Sub-Tribes of Maryland. The area is most

[[Page 32606]]

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 WWI. 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 cultural 
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. Moving, removing, recovering, altering, destroying, 
possessing, or otherwise injuring, or attempting to move, remove, 
recover, alter, destroy, possess or otherwise injure a Sanctuary 
resource, except as an incidental result of traditional fishing (as 
defined in the regulations).
    b. Marking, defacing, or damaging in any way, or displacing or 
removing or 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.
    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. NOAA will not exercise its authority under the NMSA 
to regulate fishing in the Sanctuary.
    Section 3. 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 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. Department of Defense Activities. DoD activities 
shall be carried out in a manner that avoids to the maximum extent 
practicable any adverse impacts on sanctuary resources and 
qualities. Any existing military activity conducted by DoD prior to 
the effective date of the regulations in this subpart and as 
specifically identified in the Final Environmental Impact Statement 
and Final Management Plan for the Sanctuary (FEIS/FMP) is allowed to 
continue in the Sanctuary. The prohibitions in Sec.  922.203(a)(1) 
through (3) do not apply to those existing military activities 
listed in the FEIS/FMP or the military activities conducted by DoD 
listed in Sec.  922.203(c)(2). New military activities that do not 
violate the prohibitions in paragraphs (a)(1) through (3) of this 
section are allowed. Any new military activity that is likely to 
violate sanctuary prohibitions may become exempt through 
consultation between the Director and DoD pursuant to section 304(d) 
of the NMSA. The term ``new military activity'' includes but is not 
limited to, any existing military activity that is modified in any 
way (including change in location, frequency, duration, or 
technology used) that is likely to destroy, cause the loss of, or 
injure a sanctuary resource, or is likely to destroy, cause the loss 
of, or injure a sanctuary resource in a manner or to an extent that 
was not considered in a previous consultation under section 304(d) 
of the NMSA. In the event of destruction of, loss of, or injury to a 
sanctuary resource or quality resulting from an incident, including 
but not limited to spills and groundings caused by DoD, the 
cognizant component shall promptly coordinate with the Director for 
the purpose of taking appropriate actions to prevent, respond to or 
mitigate the harm and, if possible, restore or replace the sanctuary 
resource or quality.

Article VI. Alteration of This Designation

    The terms of designation may be modified only by the same 
procedures by which the original designation is made, including 
public meetings, consultation according to the NMSA.

[FR Doc. 2019-14368 Filed 7-5-19; 8:45 am]
 BILLING CODE 3510-NK-P