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This document is scheduled to be published in theFederal Register on 07/08/2019 and available online athttps://federalregister.gov/d/2019-14368, and on govinfo.govBilling Code 3510–NK–PDEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration15 CFR Part 922[Docket No. 160907827-7832-02]RIN 0648-BG02Mallows Bay-Potomac River National Marine Sanctuary DesignationAGENCY: Office of National Marine Sanctuaries (ONMS), NationalOcean Service (NOS), National Oceanic and AtmosphericAdministration (NOAA), Department of Commerce (DOC).ACTION: Final rule.SUMMARY: The National Oceanic and Atmospheric Administration(NOAA) issues final regulations to implement the designation ofthe Mallows Bay-Potomac River National Marine Sanctuary (MPNMSor sanctuary). The area is 18 square miles of waters andsubmerged lands encompassing and surrounding the Mallows Bayarea of the tidal Potomac River.The area is located entirelywithin Maryland state waters, adjacent to the Nanjemoy Peninsulaof Charles County, Maryland. The sanctuary protects nationallysignificant maritime cultural heritage resources, including the1
fragile, historic remains of more than 100 World War I (WWI) -eraU.S. Emergency Fleet Corporation (USEFC) wooden steamships knownas the “Ghost Fleet,” vessels related to the historic ship breaking operations, other non-USEFC vessels of historicsignificance, and related maritime debris fields. The area alsoincludes Native American sites, remains of historic fisheriesoperations, and Revolutionary and Civil War battlescapes.The significance of the area is recognized through its listingon the National Register of Historic Places (National RegisterListing Number 15000173, April 24, 2015).NOAA, the State ofMaryland, and Charles County, Maryland, will jointly manageMPNMS.DATES: Effective Date: Pursuant to section 304(b) of theNational Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), thedesignation and regulations shall take effect and become finalafter the close of a review period of forty-five days ofcontinuous session of Congress, beginning on the date on whichthis document is published, unless the Governor of the State ofMaryland certifies to the Secretary of Commerce during that samereview period that the designation or any of its terms isunacceptable, in which case the designation or any un acceptableterm shall not take effect. The public can track the days ofCongressional session at the following website:2
https://www.congress.gov/days-in-session. After the close of theforty-five days of continuous session of Congress, NOAA willpublish a document announcing the effective date of the finalregulations in the Federal Register.ADDRESSES: Copies of the final environmental impact statementand final management plan (FEIS/FMP) described in this rule andthe record of decision (ROD) are available upon request to:Mallows Bay-Potomac River National Marine Sanctuary, c/o NOAAOffice of National Marine Sanctuaries, 1305 East West Hwy., 11thFloor, Silver Spring, MD 20910., Attention: Paul Orlando,Regional Coordinator. The FEIS/FMP is also availabl e for viewingand download at https://sanctuaries.noaa.gov/mallows-potomac/.FOR FURTHER INFORMATION CONTACT: Paul Orlando, RegionalCoordinator, Office of National Marine Sanctuaries at 240-4601978, paul.orlando@noaa.gov, or Mallows Bay-Potomac RiverNational Marine Sanctuary, c/o NOAA Office of National MarineSanctuaries, 1305 East West Hwy., 11th Floor, Silver Spring, MD20910., Attention: Paul Orlando, Regional Coordinator.SUPPLEMENTARY INFORMATION:I. BACKGROUND3
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 etseq.) authorizes the Secretary of Commerce (Secretary) todesignate and protect as national marine sanctuaries areas ofthe marine environment that are of special national significancedue to their conservation, recreational, ecological, historical,scientific, cultural, archaeological, educational, or aestheticqualities. Day-to-day management of national marine sanctuarieshas been delegated by the Secretary to NOAA's Office of NationalMarine Sanctuaries (ONMS). The primary objective of the NMSA isto protect the sanctuary system's biological and culturalresources, such as coral reefs, marine animals, historicshipwrecks, historic structures, and archaeological sites.1.Mallows Bay-Potomac River National Marine SanctuaryThe Mallows Bay-Potomac River National Marine Sanctuary is an18-square-mile area of the tidal Potomac River located 40 milessouth of Washington, D.C., off the Nanjemoy Peninsula of CharlesCounty, Maryland. It is an area of national significancefeaturing unique historical, archaeological, cultural,ecological, and aesthetic resources and qualities, and offersopportunities for conservation, education, recreation, andresearch. Its maritime landscape is home to a diverse collectionof historic shipwrecks that date back to the Civil War, andpotentially to the American Revolutionary War, totaling more4
than 100 known vessels.Included among these vessels are thesunken remains of the largest “Ghost Fleet”, wooden steamshipsbuilt for the U.S. Emergency Fleet during World War I (WWI). Thefleet was constructed at more than 40 shipyards in 17 states aspart of a massive national wartime mobilization. The sanctuary’sarchaeological and cultural resources cover centuries of historydating back from the earliest American Indian presence in theregion approximately 12,000 years ago to the Revolutionary,Civil and two World Wars, as well as successive regimes ofPotomac fishing industries. The significance of this area isrecognized through its listing on the National Register ofHistoric Places (National Register Listing Number 15000173,April 24, 2015).The Maryland Department of Natural Resources (DNR), MarylandHistorical Trust (MHT), Maryland Department of Tourism, andCharles County, MD, collaborated with community partners toimplement conservation and compatible public access strategiesin and around Mallows Bay, consistent with numerous planning andimplementation documents. In 2010, DNR purchased a portion ofland adjacent to Mallows Bay and made it available by a leaseagreement to Charles County for the creation and management ofMallows Bay County Park, the main launch point for access to thehistoric shipwrecks. Pursuant to the National Historic5
Preservation Act (NHPA), the MHT has stewardship and oversightresponsibility for the shipwrecks, along with hundreds of otherhistoric non-shipwreck sites around the state. DNR manages thewaterbody and associated ecosystem resources, including landuse, resource conservation and extraction activities. The landson either side of Mallows Bay County Park are held by the U.S.Department of Interior, Bureau of Land Management, and a privatecitizen.2. Need for ActionThe designation would allow NOAA to complement current state -ledefforts to conserve and manage the nationally significantmaritime cultural heritage resources in the sanctuary whileenhancing public awareness and appreciation. The designationwould also facilitate, to the extent compatible with the primaryobjective of resource protection, all public and private uses(including recreation and tourism), as directed by the NMSA. Thethreats to these resources are related to actions or conditionsthat result in the damage or loss of the historic resources.Over time, both intentional and unintentional direct damage hasoccurred from breaking, relocation of artifacts, defacing andphysical alteration, burning, and removal of historic artifactsfrom the area. Additionally, indirect damage to the resourceshas occurred from the accumulation and entanglement of marine6
debris and from weather-related processes such as wind, flood,and ice events.NOAA will concentrate on the protection, access andinterpretation of the maritime cultural features of the area,including the Ghost Fleet, other vessels of historicsignificance, and related maritime infrastructure. The State ofMaryland currently has a comprehensive set of managementmeasures for the protection of the natural environment,including wildlife, fish, birds, water quality, and habitat. Assuch, NOAA's sanctuary regulations will focus only on theprotection of the shipwrecks and associated maritime culturalheritage resources.Although the Maryland Submerged Archaeological Historic PropertyAct (Md. Code Ann., State Fin. & Proc. sections 5A-333 et seq.)provides a basic level of protection for maritime culturalheritage resources in Mallows Bay and adjacent areas of thePotomac River, the sanctuary will allow NOAA's management underthe NMSA to supplement and complement the existing authority andthe current management framework in the area. The sanctuary willaddress ongoing threats to the maritime cultural heritageresources while providing opportunities for research, education,recreation, and tourism through coordinated and comprehensive7
management and conservation of the resources in collaborationwith the State of Maryland and Charles County. NOAA will alsocarry out education, science, and interpretative programs thatdescribe the relationship between the shipwreck structures andthe natural ecosystem.3. Procedural Historya. Sanctuary Nomination and Public ScopingOn September 16, 2014, pursuant to section 304 of the NMSA andthe Sanctuary Nomination Process (SNP; 79 FR 33851), the formerGovernor of Maryland, Charles County, and a coalition ofcommunity groups submitted a nomination to NOAA seekingdesignation of Mallows Bay-Potomac River as a national marinesanctuary. The nomination cited conservation goals to protectand conserve the fragile, historic remains of the Nation'scultural heritage as well as the opportunities to expand publicaccess, recreation, tourism, research, and education to thearea. The nomination was endorsed by a diverse coalition oforganizations and individuals at local, state, regional, andnational levels including elected officials, businesses, NativeAmerican, 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,8
including by building on existing local, county, an d State ofMaryland efforts to manage the area for the protection ofshipwrecks. NOAA's review of the nomination against the criteriaand considerations of the SNP, including the requirement forbroad-based community support indicated strong merit inproposing 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 areeligible for designation. All nominations submitted to NOAA canbe found at: https://www.nominate.noaa.gov/nominations/.On October 7, 2015, NOAA initiated the public scoping processwith the publication of a Notice of Intent in the FederalRegister (NOI; 80 FR 60634).The NOI solicited public input onthe proposed designation and informing the public of theAgency’s intentions to prepare a draft environmental impactstatement (DEIS) evaluating alternatives related to the proposeddesignation of MPNMS under the NMSA. That announcement initiateda 90-day public comment period during which NOAA solicitedadditional input on the scale and scope of the proposedsanctuary, including ideas presented in the communitynomination. The NOI also announced NOAA's intent to fulfill its9
responsibilities under the requirements of the National HistoricPreservation Act (NHPA).In November 2015, NOAA held two public meetings and providedadditional opportunities for public comments by mail and througha web portal (https://www.regulations.gov/docket?D NOAA-NOS2015-0111).The comment period closed on January 15, 2016.Allcomments received, through any of these methods, are posted onthe www.regulations.gov web portal.These public scopingcomments were used by NOAA in preparing the proposed sanctuaryregulations and draft environmental impact statement and draftmanagement plan (DEIS/DMP) associated with the proposedsanctuary designation.b. Designation ProcessOn January 9, 2017, NOAA published a document in the FederalRegister announcing the proposed designation of approximately 52square miles of waters of the tidal Potomac River as a nationalmarine sanctuary (82 FR 2254).NOAA also provided public noticeof the availability of the related DEIS/DMP (82 FR 2254; 82 FR1733).All three documents (proposed rule, DEIS, and DMP) wereprepared in close consultation with the State of Maryland andCharles County, Maryland.NOAA opened an 81-day public commentperiod on the proposed rule, DEIS, and DMP, which closed on10
March 31, 2017.During the comment period, NOAA also held twoseparate public meetings in La Plata, Maryland and in Arnold ,Maryland.All written comments are available athttps://www.regulations.gov/docket?D NOAA-NOS-2016-0149.NOAA’sresponses to public comments are included in Appendix C of thefinal environmental impact statement (FEIS) and final managementplan (FMP), which was made available on May 31, 2019 (84 FR25257), and in Section IV of this document.II. CHANGES FROM PROPOSED TO FINAL REGULATIONSBased on public comments received between January and March2017, internal deliberations, interagency consultations,discussions with state-recognized Indian tribes, consultationwith the Department of Navy (DoN) (as a cooperating agency inthe preparation of the environmental impact statement), meetingswith constituent groups, and evaluation of this input with theState of Maryland and Charles County, NOAA has made thefollowing changes to the proposed rule. NOAA has also madeconforming changes to the FEIS/FMP.1. Sanctuary Boundary11
In response to public comments and discussions with the State ofMaryland, Charles County, Maryland, the DoN, NOAA decided toadopt Alternative B in the FEIS and designate 18 square miles ofwaters and submerged lands encompassing and surrounding theMallows Bay area of the tidal Potomac River.The boundarybegins at the mean high tide level on the Maryland side, extendsacross the Potomac River to the Virginia-Maryland state boundarylines, and follows the boundary of the Mallows Bay-WidewaterHistoric and Archeological District in the National Register ofHistoric Places.The area also closely matches the boundarysubmitted to NOAA by the Governor of Maryland in the sanctuarynomination package.The area contains a concentration of 142historic USEFC vessels, vessels related to historic shipbreaking activities, other non-USEFC vessels of historicsignificance, and related maritime debris fields.The area alsoincludes Native American sites, remains of historic fisheriesoperations such as sturgeon and caviar industries, andRevolutionary and Civil War battlescapes.2.Department of Defense ActivitiesNOAA, in consultation with the DoN, has established a frameworkfor MPNMS and DoD to co-exist.In developing the proposedrules, NOAA did not anticipate that many, if any, current DoDactivities would adversely impact sanctuary resources. However,12
following interagency consultation with DoD components(including DoN, the Marine Corps, and the U.S. Army), NOAArevised §§ 922.203(c) and 922.204 and the terms of designationset forth in appendix B to the MPNMS regulations at 15 CFR part922, subpart S.In the final regulations, NOAA: a) clarifiesthe extent to which the sanctuary prohibitions may apply to DoDactivities; b) clarifies the requirement for DoD to engage inNMSA section 304(d) consultation; and c) exempts DoD from theapplication of emergency regulations issued by NOAA pursuant to§ 922.204.III. SUMMARY OF FINAL REGULATIONS FOR MPNMSWith this final rule, NOAA is implementing the followingregulations for MPNMS.1. Add New Subpart S to Existing National Marine SanctuaryProgram RegulationsNOAA amends 15 CFR part 922 by adding a new subpart (subpart S)that contains site-specific regulations for MPNMS. This subpartincludes the boundary, contains definitions of common terms usedin the new subpart, provides a framework for joint management ofthe sanctuary, identifies prohibited activities and exceptions,and establishes procedures for certification of existing uses,13
permitting otherwise prohibited activities, and emergencyregulations. Several conforming changes are also made to thenational regulations as described in detail below.NOAA is concurrently working on designating a separate newnational marine sanctuary in Wisconsin's Lake Michigan waters aspart of a separate rulemaking process (82 FR 2269).Theregulations implementing the designation of Wisconsin – LakeMichigan National Marine Sanctuary would be published in subpartT.2. Sanctuary NameThe name of the sanctuary is “Mallows Bay-Potomac River NationalMarine Sanctuary” and is abbreviated as MPNMS. The name is basedon the nomination submitted by the community.3. Sanctuary BoundaryThe Mallows Bay-Potomac River National Marine Sanctuary consistsof an area of approximately 18 square miles of waters of theState of Maryland and the submerged lands thereunder associatedwith the underwater cultural resources in the Potomac River. Thewestern boundary of the sanctuary approximates the borderbetween the Commonwealth of Virginia and the State of Marylandalong the western side of the Potomac River and begins at Point14
1 north of the mouth of Aquia Creek in Stafford County,Virginia, near Brent Point. From this point the boundarycontinues to the north approximating the border between Virginiaand Maryland cutting across the mouths of streams and creekspassing through the points in numerical order until it reachesPoint 40 north of Tank Creek. From this point the sanctuaryboundary continues east across the Potomac River in a straightline towards Point 41 until it intersects the Maryland shorelinejust north of Sandy Point in Charles County, MD. From thisintersection the sanctuary boundary then follows the Marylandshoreline south around Mallows Bay, Blue Banks, and Wades Baycutting across the mouths of creeks and streams along theeastern shoreline of the Potomac River until it intersects theline formed between Point 42 and Point 43 just south of SmithPoint. Finally, from this intersection the sanctuary boundarycrosses the Potomac River to the west in a straight line untilit reaches Point 43 north of the mouth of Aquia Creek inStafford County, Virginia, near Brent Point.The detailed legal boundary description is included in § 922.200and the coordinates are located in 15 CFR part 922, subpart S,appendix A. A map of the area is shown in the FEIS (Chapter3.2), and can also be found athttps://sanctuaries.noaa.gov/mallows-potomac/.15
4. DefinitionsNOAA narrowly defines “sanctuary resources” for MPNMS to includeonly the maritime cultural heritage resources of the sanctuaryin accordance with the purpose of the designation. Thedefinition does not include biological and ecological resourcesof the area already managed by the State of Maryland. Creatingthis site-specific definition requires NOAA to modify thenational definition of “sanctuary resource” in the nationalregulations at § 922.3 to add an additional sentence thatdefines the site-specific definition for MPNMS at § 922.201(a).This is similar to the approach taken for other national marinesanctuaries that do not share the full national “sanctuaryresource” definition, such as Thunder Bay National MarineSanctuary.NOAA also adds a definition in the MPNMS regulations at §922.201(a) for sanctuary resource that uses the nationaldefinition for “historical resources” set forth in § 922.3 andexpands the site-specific definition of sanctuary resource tospecifically provide examples of the types of resources in MPNMSthat fall within that definition. The national definition of“historical resources” at § 922.3 includes resources thatpossess historical, cultural, archaeological or paleontological16
significance, such as sites, contextual information, structures,districts, and objects significantly associated with orrepre
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).
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