[Federal Register: August 29, 2006 (Volume 71, Number 167)]
[Rules and Regulations]               
[Page 51134-51142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



National Oceanic and Atmospheric Administration


Fish and Wildlife Service

50 CFR Part 404

[Docket No. 060824225-6225-01]
RIN 0648-AU82

Northwestern Hawaiian Islands Marine National Monument

AGENCIES: National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC); United States Fish and Wildlife Service 
(USFWS), Department of the Interior (DOI).

ACTION: Final rule.


SUMMARY: NOAA and the USFWS are issuing final regulations for the 
Northwestern Hawaiian Islands Marine National Monument. This action 
codifies the prohibitions and management measures set forth in 
Presidential Proclamation 8031 establishing the Monument. The rule is 
effective immediately.

DATES: Effective date: These regulations are effective August 25, 2006. 
Written comments on the information collection requirement must be 
received by October 30, 2006.

ADDRESSES: Submit written comments regarding the burden-hour estimates 
or other aspects of the information collection requirements contained 
in this proposed rule by e-mail to Diana Hynek at dHynek@noaa.gov.
    Coordinates for the outer boundary of the Monument, the Special 
Preservation Areas, the Ecological Reserves, and the Midway Atoll 
Special Management Area can be found at: http://hawaiireef.noaa.gov/management/

Monument Superintendent (NOAA); 6600 Kalanianaole Highway, 
300, Honolulu, HI 96825; (808) 397-2657.
    FWS contact: Barry Stieglitz, Monument Project Leader (USFWS); 
Hawaiian and Pacific Islands NWR Complex, 300 Ala Moana Boulevard, Box 
50167, Honolulu, HI 96850-5000; 808-792-9540.
    State of Hawaii contact: Athline Clark, Special Projects Manager, 
Department of Land and Natural Resources, Division of Aquatic 
Resources; 1151 Punchbowl Street, Room 330, Honolulu, HI 96813; (808) 

SUPPLEMENTARY INFORMATION: On June 15, 2006, President Bush established 
the Northwestern Hawaiian Islands Marine National Monument by issuing 
Presidential Proclamation 8031 (71 FR 36443, June 26, 2006) under the 
authority of the Antiquities Act (Act) (16 U.S.C. 431). The 
Proclamation reserves all lands and interests in lands owned or 
controlled by the Government of the United States in the Northwestern 
Hawaiian Islands (NWHI), including emergent and submerged lands and 
waters, out to a distance of approximately 50 nautical miles (nmi) from 
the islands. The outer boundary of the Monument is approximately 100 
nmi wide and extends approximately 1200 nmi around coral islands, 
seamounts, banks, and shoals. The area includes the Northwestern 
Hawaiian Islands Coral Reef Ecosystem Reserve, the Midway Atoll 
National Wildlife Refuge/Battle of Midway National Memorial, and the 
Hawaiian Islands National Wildlife Refuge.
    The Proclamation appropriated and withdrew the area from all forms 
of entry, location, selection, sale, or leasing or other disposition 
under the public land laws, including, but not limited to, withdrawal 
from location, entry, and patent under mining laws, and from 
disposition under all laws relating to mineral and geothermal leasing.
    The Proclamation provides that the Secretary of Commerce, through 
NOAA, has primary responsibility regarding the management of the marine 
areas of the Monument, in consultation with the Secretary of the 
Interior. The Secretary of the Interior, through the USFWS, has sole 
responsibility for management of the areas of the Monument that overlay 
the Midway Atoll National Wildlife Refuge, the Battle of Midway 
National Memorial, and the Hawaiian Islands National Wildlife Refuge, 
in consultation with the Secretary of Commerce. Further, the 
Proclamation provides that nothing in the Proclamation diminishes or 
enlarges the jurisdiction of the State of Hawaii. The Monument includes 
state waters, including the Northwestern Hawaiian Islands State Marine 
Refuge and Kure Atoll Wildlife Sanctuary. The State currently holds the 
submerged and ceded lands of the NWHI in trust. This public trust is 
overseen by the Office of Hawaiian Affairs through an amendment to the 
Constitution of the State of Hawaii. The State of Hawaii has primary 
responsibility for managing the State waters of the Monument.
    The three principal entities with responsibility for managing lands 
and waters of the Monument--NOAA, USFWS, and the State of Hawaii 
(collectively, the Co-Trustees)--are working cooperatively and will 
consult to administer the Monument. The Co-Trustees have established a 
goal to provide unified management in the spirit of cooperative 
conservation. This relationship will be further described in a 
Memorandum of Agreement among the Co-Trustees.
    The Proclamation requires restrictions and prohibitions regarding 
activities in the Monument consistent with the authority provided by 
the Act. The Proclamation shall be applied in accordance with 
international law. No restrictions shall apply to or be enforced 
against a person who is not a citizen, national, or resident alien of 
the United States (including foreign flag vessels) unless in accordance 
with international law. NOAA and USFWS are promulgating as final 
regulations the management measures and prohibitions set forth in the 
Proclamation to codify them in the Code of Federal Regulations. This 
action will provide additional notice to the public and other 
interested parties of the terms of the Proclamation and activities that 
are prohibited or regulated and thereby facilitate improved compliance. 
Interested parties may view Hawaii Administrative Rules also applicable 
within the Monument at http://www.hawaii.gov/dlnr/dar/fish_regs/nwhi.htm

    These regulations address the requirement in the Proclamation that 
the Secretaries shall ensure, in addition to other things, that 
commercial fishing for bottomfish and other associated pelagic species 
may continue in the Monument for no more than 5 years. Section 404.10 
sets out the conditions under which such fishing may continue to be 
conducted. However, commercial fishing remains prohibited in areas of 
the Monument not open to such fishing prior to issuance of the 

[[Page 51135]]


Administrative Procedure Act

    The Secretaries find good cause to waive notice and comment on 
these regulations, pursuant to 5 U.S.C. 533(b)(B), and the 30-day delay 
in effective date pursuant to 5 U.S.C. 553(d). Notice and comment are 
unnecessary and contrary to the public interest because these 
regulations do not expand on the action already taken by the President 
in the Proclamation. The Proclamation became effective upon issuance on 
June 15, 2006. These regulations codify the prohibitions and management 
measures set forth in the Proclamation. Therefore, these regulations 
are being published as final regulations and are effective August 25, 

E.O. 12866

    This rule has been determined to be significant for purposes of 
E.O. 12866.

Paperwork Reduction Act

    This rule contains a collection-of-information requirement that was 
submitted to OMB for emergency approval under the Paperwork Reduction 
Act (PRA). The collection-of-information requirement was approved by 
OMB and granted OMB control number 0648-0548 which expires on February 
28, 2007. We are now requesting comment on this information collection 
requirement for OMB's subsequent review and approval on a non-emergency 
    The public reporting burden for this information collection is 
described in the table below. The public reporting burden for permit 
applications and associated reporting requirements is estimated to 
average 1 hour per response. The public reporting burden for entry and 
exit notification is expected to average 15 minutes per response. The 
public reporting burden for VMS checklist certification is estimated to 
average 5 minutes per response. Each of these public reporting burdens 
includes the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.

                                                                    Applicant Burden
                                 Permits and
                                    other      Responses      Total                                                Annual recordkeeping/        Total
          Permit type             reporting       per       responses        Hours/response       Total hours   reporting cost per response  annual cost
                                   per year   requirement                                                                (dollar)              (dollar)
(a) General....................           33            3           99  1.......................           99  1.00........................        99.00
(b) Special Ocean Use..........            5            3           15  24......................          360  1.00........................        15.00
(c) Native Hawaiian Practices..            2            2            4  4.......................           16  1.00........................         4.00
(d) Recreation.................            2            3            6  1.......................            6  1.00........................         6.00
(e) Entry & Exit Notice........          174            2          348  5 minutes...............           29  0.00........................         0.00
(f) Purchase and installation             50           NA           NA  4 hours.................           50  899 (initial cost: $3595)...    44,950.00
 of VMS.
(g) VMS maintenance............           50           NA           NA  4 hours.................          200  0...........................            0
(h) VMS Certification..........           50         0.25         12.5  5 minutes...............            4  0.25........................        13.00
(i) Hourly VMS reports.........           50         3805      190,224  5 seconds...............          264  1.28/day....................    10,145.00
    Total......................          124  ...........      190,709  ........................         1028  ............................   55,232.00
Note: VMS installation and activation hours and purchase costs are annualized by dividing by 4 years, the expected service life.

    Public comment is sought regarding: whether this collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection of information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to Diana Hynek, Departmental Paperwork 
Clearance Officer, Department of Commerce, Room 6625, 14th and 
Constitution Avenue, NW, Washington, DC 20230, or via e-mail at 

    Notwithstanding any other provision of the 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 PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 404

    Administrative practice and procedure, Coastal zone, Fish, 
Fisheries, Historic preservation, Intergovernmental relations, Marine 
resources, Monuments and memorials, Natural resources, Reporting and 
recordkeeping requirements, Wildlife, Wildlife refuges.

    Dated: August 24, 2006.
Conrad C. Lautenbacher Jr.,
Vice Admiral, U.S. Navy (Ret.), Undersecretary of Commerce for Oceans 
and Atmosphere.
    Dated: August 24, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.

Accordingly, NOAA and USFWS add part 404, title 50 of the Code of 
Federal Regulations as follows:


404.1 Scope and purpose.
404.2 Boundary.
404.3 Definitions.
404.4 Access to the Monument.
404.5 Requirements for a vessel monitoring system.
404.6 Prohibited activities.
404.7 Regulated activities.
404.8 Emergencies and law enforcement activities.
404.9 Armed Forces actions.
404.10 Commercial fishing.
404.11 Permitting procedures and criteria.
404.12 International law.
Appendix A to Part 404--Map of the Monument Outer Boundary and 
Ecological Reserves, Special Preservation Areas, and Midway Atoll 
Special Management Area
Appendix B to Part 404--Approved Vessel Monitoring Systems

    Authority: 16 U.S.C. 431 et seq.; 16 U.S.C. 460k-3; 16 U.S.C. 
1801 et seq.; 16 U.S.C. 742f, 16 U.S.C. 742l, and 16 U.S.C. 668dd-

[[Page 51136]]

ee; 16 U.S.C. 1361 et seq.; 16 U.S.C. 1531 et seq., Pub. L. No. 106-
513, Sec.  6(g) (2000).

Sec.  404.1  Scope and purpose.

    The regulations in this part codify the provisions of Presidential 
Proclamation 8031, and govern the administration of the Northwestern 
Hawaiian Islands Marine National Monument. These regulations are 
jointly implemented by the Secretaries of the Interior, through the 
U.S. Fish and Wildlife Service (USFWS), and Commerce, through the 
National Oceanic and Atmospheric Administration (NOAA). Nothing in 
these regulations shall be deemed to diminish or enlarge the 
jurisdiction of the State of Hawaii.

Sec.  404.2  Boundary.

    The Northwestern Hawaiian Islands Marine National Monument consists 
of all lands and interest in lands owned or controlled by the 
Government of the United States within the boundaries of the Monument, 
including emergent and submerged lands and waters of the Northwestern 
Hawaiian Islands. The map in Appendix A to this part 404 depicts the 
outer boundary of the Monument, which consists of the geodetic lines 
connecting the coordinates specified in the Proclamation.

Sec.  404.3  Definitions.

    The following definitions are applicable only to this Part.
    Attract or Attracting means luring or attempting to lure a living 
resource by any means, except the mere presence of human beings (e.g., 
swimmers, divers, boaters).
    Bottomfish Species means Bottomfish management unit species as 
defined at 50 CFR 665.12.
    Commercial Bottomfishing means commercial fishing for bottomfish 
    Commercial passenger vessel means a vessel that carries individuals 
who have paid for such carriage.
    Commercial pelagic trolling means commercial fishing for pelagic 
    Deserting a vessel means:
    (1) Leaving a vessel aground or adrift:
    (i) Without notifying the Secretaries of the vessel going aground 
or adrift within 12 hours of its discovery and developing and 
presenting to the Secretaries a preliminary salvage plan within 24 
hours of such notification;
    (ii) After expressing or manifesting intention to not undertake or 
to cease salvage efforts; or
    (iii) When the Secretaries are unable, after reasonable efforts, to 
reach the owner/operator within 12 hours of the vessel's condition 
being reported to authorities.
    (2) Leaving a vessel at anchor when its condition creates potential 
for a grounding, discharge, or deposit and the owner/operator fails to 
secure the vessel in a timely manner.
    Ecological Reserve means the areas of the Monument, identified in 
the Proclamation, consisting of contiguous, diverse habitats that 
provide natural spawning, nursery, and permanent residence areas for 
the replenishment and genetic protection of marine life, and also to 
protect and preserve natural assemblages of habitats and species within 
areas representing a broad diversity of resources and habitats found 
within the Monument. Specific coordinates for Ecological Reserves 
within the Monument are found in the Proclamation, and the Ecological 
Reserves consist of the areas within the geodetic lines connecting 
these coordinates. The Ecological Reserves are depicted on the map in 
Appendix A to part 404.
    Ecological integrity means a condition determined to be 
characteristic of an ecosystem that has the ability to maintain the 
function, structure, and abundance of natural biological communities, 
including rates of change in response to natural environmental 
    Fishing year means the year beginning at 0001 local time on January 
1 and ending at 2400 local time on December 31.
    Introduced Species means:
    (1) A species (including, but not limited to, any of its biological 
matter capable of propagation) that is non-native to the ecosystem(s) 
protected by the Monument; or
    (2) Any organism into which genetic matter from another species has 
been transferred in order that the host organism acquires the genetic 
traits of the transferred genes.
    Landing means offloading fish from a fishing vessel or causing fish 
to be offloaded from a fishing vessel.
    Midway Atoll Special Management Area means the area of the Monument 
surrounding Midway Atoll out to a distance of 12 nautical miles, 
established for the enhanced management, protection, and preservation 
of Monument wildlife and historical resources. The geographic 
coordinates of this area, which consists of the area within the 
geodetic lines connecting these coordinates, are found in the 
Proclamation. The Midway Atoll Special Management Area is depicted on 
the map in Appendix A to part 404.
    Mobile transceiver unit means a vessel monitoring system or VMS 
device, as described in Appendix E to this Part, installed on board a 
vessel that is used for vessel monitoring and transmitting the vessel's 
position as required by this Part.
    Monument means the Northwestern Hawaiian Islands Marine National 
    Native Hawaiian Practices means cultural activities conducted for 
the purposes of perpetuating traditional knowledge, caring for and 
protecting the environment and strengthening cultural and spiritual 
connections to the Northwestern Hawaiian Islands that have demonstrable 
benefits to the Native Hawaiian community. This may include, but is not 
limited to, the non-commercial use of Monument resources for direct 
personal consumption while in the Monument.
    Ocean-based ecotourism means a class of fee-for-service activities 
that involves visiting the Monument for study, enjoyment, or volunteer 
assistance for purposes of conservation and management.
    Office for Law Enforcement (OLE) refers to NOAA, National Marine 
Fisheries Service, Office for Law Enforcement.
    Pelagic Species means Pacific Pelagic Management Unit Species as 
defined at 50 CFR 665.12.
    Pono means appropriate, correct, and deemed necessary by 
traditional standards in the Hawaiian culture.
    Proclamation means Presidential Proclamation 8031, dated June 15, 
2006 (71 FR 36443).
    Recreational activity means an activity conducted for personal 
enjoyment that does not result in the extraction of Monument resources 
and that does not involve a fee-for-service transaction. This includes, 
but is not limited to, wildlife viewing, SCUBA diving, snorkeling, and 
    Secretaries means the Secretary of Commerce and the Secretary of 
the Interior or their designees.
    Special Preservation Area (SPA) means discrete, biologically 
important areas of the Monument, identified in the Proclamation, within 
which uses are subject to conditions, restrictions, and prohibitions, 
including but not limited to access restrictions. SPAs are used to 
avoid concentrations of uses that could result in declines in species 
populations or habitat, to reduce conflicts between uses, to protect 
areas that are critical for sustaining important marine species or 
habitats, or to provide opportunities for scientific research. Specific 
coordinates for Special Preservation Areas within the Monument are 
found in the Proclamation, and the Special Preservation Areas consist 
of the areas within the geodetic lines connecting these coordinates. 
The Special

[[Page 51137]]

Preservation Areas are depicted on the map in Appendix A to part 404.
    Special ocean use means an activity or use of the Monument that is 
engaged in to generate revenue or profits for one or more of the 
persons associated with the activity or use, and does not destroy, 
cause the loss of, or injure Monument resources. This includes ocean-
based ecotourism and other activities such as educational and research 
activities that are engaged in to generate revenue, but does not 
include commercial fishing for bottomfish or pelagic species conducted 
pursuant to a valid permit issued by NOAA.
    Stowed and not available for immediate use means not readily 
accessible for immediate use, e.g., by being securely covered and 
lashed to a deck or bulkhead, tied down, unbaited, unloaded, or 
partially disassembled (such as spear shafts being kept separate from 
spear guns).
    Sustenance fishing means fishing for bottomfish or pelagic species 
in which all catch is consumed within the Monument, and that is 
incidental to an activity permitted under this part.
    Vessel monitoring system or VMS means a vessel monitoring system or 
mobile transceiver unit as described in Sec.  404.5 and approved by 
Office for Law Enforcement for use on vessels permitted to access the 
Monument, as required by this Part.

Sec.  404.4   Access to the Monument.

    (a) Entering the Monument is prohibited and thus unlawful except:
    (1) As provided in Sec. Sec.  404.8 and 404.9;
    (2) Pursuant to a permit issued under Sec. Sec.  404.10 or 404.11; 
    (3) When conducting passage without interruption in accordance with 
paragraph (b) of this section.
    (b) Any person passing through the Monument without interruption is 
subject to the prohibitions in Sec. Sec.  404.5, 404.6, and 404.7 and 
must provide notification prior to entering and after leaving the 
Monument. Notification of entry must be provided at least 72 hours, but 
no longer than 1 month, prior to the entry date. Notification of 
departure from the Monument must be provided within 12 hours of 
leaving. Notification under this paragraph may be made via e-mail, 
telephone or fax by contacting:
    (1) E-mail: nwhi.notifications@commat;noaa.gov; or
    (2) Telephone: 1-866-478-NWHI (6944); or (808) 395-NWHI (6944).
    (c) A person providing notice under this paragraph must provide the 
following information, as applicable:
    (1) Position when making report.
    (2) Vessel name and International Maritime Organization 
identification number.
    (3) Name, address, and telephone number of owner and operator.
    (4) USCG documentation, state license, or registration number.
    (5) Home port.
    (6) Intended and actual route through the Monument.
    (7) General categories of any hazardous cargo on board.
    (8) Length of vessel and propulsion type (e.g., motor or sail).

Sec.  404.5   Requirements for a vessel monitoring system.

    (a) Requirement for use. Effective August 28, 2006, an owner or 
operator of a vessel that has been issued a permit for accessing the 
Monument must ensure that such vessel has an OLE-approved, operating 
VMS on board when voyaging within the Monument. An operating VMS 
includes an operating mobile transmitting unit on the vessel and a 
functioning communication link between the unit and OLE as provided by 
an OLE-approved communication service provider. Appendix B to this part 
404 provides information regarding OLE-approved transmitting units.
    (b) Installing and activating the VMS. Only a VMS that has been 
approved by OLE may be used. When installing and activating the OLE-
approved VMS, or when reinstalling and reactivating such VMS, the 
vessel owner or operator must:
    (1) Follow procedures indicated on an installation and activation 
checklist, which is available from OLE; and
    (2) Submit to OLE a statement certifying compliance with the 
checklist, as prescribed on the checklist.
    (c) Interference with the VMS. No person may interfere with, tamper 
with, alter, damage, disable, or impede the operation of the VMS, or 
attempt any of the same.
    (d) Interruption of operation of the VMS. When a vessel's VMS is 
not operating properly, the owner or operator must immediately contact 
OLE, and follow instructions from that office. If notified by OLE that 
a vessel's VMS is not operating properly, the owner and operator must 
follow instructions from that office. In either event, such 
instructions may include, but are not limited to, manually 
communicating to a location designated by OLE the vessel's positions or 
returning to port until the VMS is operable.
    (e) Access to position data. As a condition of authorized access to 
the Monument, a vessel owner or operator subject to the requirements 
for a VMS in this section must allow OLE, the USCG, and their 
authorized officers and designees access to the vessel's position data 
obtained from the VMS. Consistent with other applicable laws, including 
the limitations on access to, and use of, VMS data collected under the 
Magnuson-Stevens Fishery Conservation and Management Act, the 
Secretaries may have access to, and use of, collected data for 
scientific, statistical, and management purposes.
    (f) Authority for installation and operation. OLE has authority 
over the installation and operation of the VMS unit. OLE may authorize 
the connection or order the disconnection of additional equipment, 
including a computer, to any VMS unit when deemed appropriate by OLE.
    (g) Activities Regarding Vessel Monitoring Systems. Effective 
August 28, 2006, the following activities regarding vessel monitoring 
systems are prohibited and thus unlawful for any person to conduct or 
cause to be conducted:
    (1) Operating any vessel within the Monument without an OLE type-
approved mobile transceiver unit described in this section;
    (2) Failing to install, activate, repair, or replace a mobile 
transceiver unit prior to leaving port;
    (3) Failing to operate and maintain a mobile transceiver unit on 
board the vessel at all times as specified in this section;
    (4) Tampering with, damaging, destroying, altering, or in any way 
distorting, rendering useless, inoperative, ineffective, or inaccurate 
the VMS, mobile transceiver unit, or VMS signal required to be 
installed on or transmitted by a vessel as specified in this section;
    (5) Failing to contact OLE or follow OLE instructions when 
automatic position reporting has been interrupted as specified in this 
    (6) Registering a VMS or mobile transceiver unit to more than one 
vessel at the same time;
    (7) Connecting or leaving connected additional equipment to a VMS 
unit or mobile transceiver unit without the prior approval of OLE; and
    (8) Making a false statement, oral or written, to an authorized 
officer regarding the installation, use, operation, or maintenance of a 
VMS unit or mobile transceiver unit or communication service provider.

Sec.  404.6   Prohibited activities.

    The following activities are prohibited and thus unlawful for any 
person to conduct or cause to be conducted:

[[Page 51138]]

    (a) Exploring for, developing, or producing oil, gas, or minerals 
within the Monument;
    (b) Using or attempting to use poisons, electrical charges, or 
explosives in the collection or harvest of a Monument resource;
    (c) Introducing or otherwise releasing an introduced species from 
within or into the Monument; and
    (d) Anchoring on or having a vessel anchored on any living or dead 
coral with an anchor, anchor chain, or anchor rope.

Sec.  404.7   Regulated activities.

    Except as provided in Sec. Sec.  404.8, 404.9 and 404.10, the 
following activities are prohibited and thus unlawful for any person to 
conduct or cause to be conducted within the Monument without a valid 
permit as provided for in Sec.  404.11:
    (a) Removing, moving, taking, harvesting, possessing, injuring, 
disturbing, or damaging; or attempting to remove, move, take, harvest, 
possess, injure, disturb, or damage any living or nonliving Monument 
    (b) Drilling into, dredging, or otherwise altering the submerged 
lands other than by anchoring a vessel; or constructing, placing, or 
abandoning any structure, material, or other matter on the submerged 
    (c) Anchoring a vessel;
    (d) Deserting a vessel aground, at anchor, or adrift;
    (e) Discharging or depositing any material or other matter into 
Special Preservation Areas or the Midway Atoll Special Management Area 
except vessel engine cooling water, weather deck runoff, and vessel 
engine exhaust;
    (f) Discharging or depositing any material or other matter into the 
Monument, or discharging or depositing any material or other matter 
outside the Monument that subsequently enters the Monument and injures 
any resources of the Monument, except fish parts (i.e., chumming 
material or bait) used in and during authorized fishing operations, or 
discharges incidental to vessel use such as deck wash, approved marine 
sanitation device effluent, cooling water, and engine exhaust;
    (g) Touching coral, living or dead;
    (h) Possessing fishing gear except when stowed and not available 
for immediate use during passage without interruption through the 
    (i) Swimming, snorkeling, or closed or open circuit SCUBA diving 
within any Special Preservation Area or the Midway Atoll Special 
Management Area; and
    (j) Attracting any living Monument resource.

Sec.  404.8   Emergencies and law enforcement activities.

    The prohibitions in this part do not apply to activities necessary 
to respond to emergencies threatening life, property, or the 
environment, or to activities necessary for law enforcement purposes.

Sec.  404.9   Armed Forces actions.

    (a) The prohibitions in this part do not apply to activities and 
exercises of the Armed Forces (including those carried out by the 
United States Coast Guard) that are consistent with applicable laws.
    (b) These regulations shall not limit agency actions to respond to 
emergencies posing an unacceptable threat to human health or safety or 
to the marine environment and admitting of no other feasible solution.
     (c) All activities and exercises of the Armed Forces shall be 
carried out in a manner that avoids, to the extent practicable and 
consistent with operational requirements, adverse impacts on Monument 
resources and qualities.
     (d) In the event of threatened or actual destruction of, loss of, 
or injury to a Monument resource or quality resulting from an incident, 
including but not limited to spills and groundings, caused by a 
component of the Department of Defense or the United States Coast 
Guard, the cognizant component shall promptly coordinate with the 
Secretaries for the purpose of taking appropriate actions to respond to 
and mitigate the harm and, if possible, restore or replace the Monument 
resource or quality.

Sec.  404.10  Commercial fishing.

     (a) Lobster fishing. Any commercial lobster fishing permit is 
subject to a zero annual harvest limit condition.
     (b) Fishing and bottomfish and pelagic species. (1) 
Notwithstanding the prohibitions in Sec.  404.7(a) and (h), commercial 
fishing for bottomfish and associated pelagic species may continue 
within the Monument subject to paragraph (c) of this section, until 
June 15, 2011, provided that:
     (i) The fishing is conducted in accordance with a valid commercial 
bottomfish permit issued by NOAA; and
     (ii) Such permit was in effect on June 15, 2006, and is 
subsequently renewed pursuant to NOAA regulations at 50 CFR part 665, 
subpart E as necessary.
    (2) Total landings for each fishing year from fishing allowed under 
paragraph (b)(1) of this section may not exceed the following amounts:
    (i) 350,000 pounds for bottomfish species; and
     (ii) 180,000 pounds for pelagic species.
    (3) Commercial fishing for bottomfish and associated pelagic 
species is prohibited in the Monument after June 15, 2011.
    (c) General requirements. Any commercial fishing within the 
Monument shall be conducted in accordance with the following 
restrictions and conditions:
    (1) A valid permit or facsimile of a valid permit shall be on board 
the fishing vessel and available for inspection by an authorized 
    (2) No attempt is made to falsify or fail to make, keep, maintain, 
or submit any logbook or logbook form or other required record or 
    (3) Only gear specifically authorized by the relevant permit issued 
under the Magnuson-Stevens Fishery Conservation and Management Act is 
allowed to be in the possession of a person conducting commercial 
fishing under this section;
    (4) Any person conducting commercial fishing notifies the 
Secretaries by telephone, facsimile, or electronic mail at least 72 
hours before entering the Monument and within 12 hours after leaving 
the Monument in accordance with Sec.  404.4(b) and (c);
    (5) All fishing vessels must carry an activated and functioning VMS 
unit on board at all times whenever the vessel is in the Monument;
    (6) All fishing vessels must carry an observer when requested to do 
so by the Secretaries;
    (7) The activity does not take place within any Ecological Reserve, 
any Special Preservation Area, or the Midway Atoll Special Management 

Sec.  404.11  Permitting procedures and criteria.

    (a) Issuance. Subject to such terms and conditions as the 
Secretaries deem appropriate, a person may conduct an activity 
prohibited by Sec.  404.7 if such activity is specifically authorized 
by a permit issued under this section.
     (b) Application requirements. Applicants for permits under this 
section shall submit applications to: Northwestern Hawaiian Islands 
Marine National Monument, 6600 Kalanianaole Highway, Suite 300, 
Honolulu, HI 96825.
    (c) Permit Types. A permit under this subpart may be issued if the 
Secretaries find that the activity:
     (1) Is research designed to further understanding of Monument 
resources and qualities;
    (2) Will further the educational value of the Monument;

[[Page 51139]]

    (3) Will assist in the conservation and management of the Monument;
    (4) Will allow Native Hawaiian practices subject to paragraph (e) 
of this section;
     (5) Will allow a special ocean use subject to paragraph (f) of 
this section; or
    (6) Will allow recreational activities subject to paragraph (g) of 
this section.
     (d) Findings. A permit may not be issued under this section unless 
the Secretaries find:
     (1) The activity can be conducted with adequate safeguards for the 
resources and ecological integrity of the Monument;
    (2) The activity will be conducted in a manner compatible with the 
purposes of the Proclamation, considering the extent to which the 
conduct of the activity may diminish or enhance Monument resources, 
qualities, and ecological integrity, any indirect, secondary or 
cumulative effects of the activity, and the duration of such effects;
    (3) There is no practicable alternative to conducting the activity 
within the Monument;
    (4) The end value of the activity outweighs its adverse impacts on 
Monument resources, qualities, and ecological integrity;
     (5) The duration of the activity is no longer than necessary to 
achieve its stated purpose;
    (6) The applicant is qualified to conduct and complete the activity 
and mitigate any potential impacts resulting from its conduct;
    (7) The applicant has adequate financial resources available to 
conduct and complete the activity and mitigate any potential impacts 
resulting from its conduct;
     (8) The methods and procedures proposed by the applicant are 
appropriate to achieve the proposed activity's goals in relation to 
their impacts to Monument resources, qualities, and ecological 
     (9) The applicant's vessel has been outfitted with a mobile 
transceiver unit approved by OLE and complies with the requirements of 
Sec.  404.5; and
    (10) There are no other factors that would make the issuance of a 
permit for the activity inappropriate.
    (e) Additional findings for Native Hawaiian practice permits. In 
addition to the findings listed in paragraph (d) of this section, a 
permit to allow Native Hawaiian practices under paragraph (c)(4) of 
this section, may not be issued unless:
     (1) The activity is non-commercial and will not involve the sale 
of any organism or material collected;
     (2) The purpose and intent of the activity are appropriate and 
deemed necessary by traditional standards in the Native Hawaiian 
culture (pono), and demonstrate an understanding of, and background in, 
the traditional practice, and its associated values and protocols;
    (3) The activity benefits the resources of the Northwestern 
Hawaiian Islands and the Native Hawaiian community;
    (4) The activity supports or advances the perpetuation of 
traditional knowledge and ancestral connections of Native Hawaiians to 
the Northwestern Hawaiian Islands; and
    (5) Any Monument resource harvested from the Monument will be 
consumed in the Monument.
     (f) Additional findings, criteria, and requirements for special 
ocean use permits. (1) In addition to the findings listed in paragraph 
(d) of this section, the following requirements apply to the issuance 
of a permit for a special ocean use under paragraph (c)(5) of this 
     (i) Any permit for a special ocean use issued under this section:
    (ii) Shall authorize the conduct of an activity only if that 
activity is compatible with the purposes for which the Monument is 
designated and with protection of Monument resources;
    (A) Shall not authorize the conduct of any activity for a period of 
more than 5 years unless renewed;
    (B) Shall require that activities carried out under the permit be 
conducted in a manner that does not destroy, cause the loss of, or 
injure Monument resources; and
    (iii) Shall require the permittee to purchase and maintain 
comprehensive general liability insurance, or post an equivalent bond, 
against claims arising out of activities conducted under the permit and 
to agree to hold the United States harmless against such claims;
    (iv) Each person issued a permit for a special ocean use under this 
section shall submit an annual report to the Secretaries not later than 
December 31 of each year which describes activities conducted under 
that permit and revenues derived from such activities during the year.
    (2) In addition to the findings listed in paragraph (d) of this 
section, a permit may not be issued for a special ocean use unless the 
activity has been determined to be consistent with the findings made 
pursuant to paragraph (f) of this section.
    (3) Categories of special ocean use being permitted for the first 
time under this section will be restricted in duration and permitted as 
a special ocean use pilot project. Subsequent permits for any category 
of special ocean use may only be issued if a special ocean use pilot 
project for that category meets the requirements of this section, and 
any terms and conditions placed on the permit for the pilot project.
    (4) Public notice shall be provided prior to requiring a special 
ocean use permit for any category of activity not previously identified 
as a special ocean use.
    (5) The following requirements apply to permits for a special ocean 
use for an activity within the Midway Atoll Special Management Area.
    (i) A permit for a special ocean use for activities within the 
Midway Atoll Special Management Area may be issued provided:
    (A) The activity furthers the conservation and management of the 
Monument; and
    (B) The Director of the United States Fish and Wildlife Service or 
his or her designee has determined that the activity is compatible with 
the purposes for which the Midway Atoll National Wildlife Refuge was 
    (ii) As part of a permit issued pursuant to this paragraph (f)(5), 
vessels may be allowed to transit the Monument as necessary to enter 
the Midway Atoll Special Management Area.
    (6) A permit for a special ocean use for activities outside the 
Midway Atoll Special Management Area may be issued provided:
    (i) The activity will directly benefit the conservation and 
management of the Monument;
    (ii) The purpose of the activity is for research or education 
related to the resources or qualities of the Monument;
    (iii) Public notice of the application and an opportunity to 
provide comments is given at least 30 days prior to issuing the permit; 
    (iv) The activity does not involve the use of a commercial 
passenger vessel.
    (g) Additional findings for recreation permits. A permit for 
recreational activities under paragraph (c)(6) of this section may be 
issued for activities to be conducted within the Midway Atoll Special 
Management area if, in addition to the findings listed in paragraph (d) 
of this section:
    (1) The activity is for the purpose of recreation as defined in 
section 404.3;
    (2) The activity is not associated with any for-hire operation; and
    (3) The activity does not involve any extractive use.
    (h) Sustenance fishing. Sustenance fishing, as defined in 404.3, 
may be allowed outside of any Special Preservation Area as a term or 
condition of any permit issued under this part. Sustenance fishing in 
the Midway Atoll

[[Page 51140]]

Special Management Area shall not be allowed unless the activity has 
been determined by the Director of the U.S. Fish and Wildlife Service 
or his or her designee to be compatible with the purposes for which the 
Midway Atoll National Wildlife Refuge was established. Sustenance 
fishing must be conducted in a manner compatible with the Proclamation 
and this part, including considering the extent to which the conduct of 
the activity may diminish Monument resources, qualities, and ecological 
integrity, as well as any indirect, secondary, or cumulative effects of 
the activity and the duration of such effects. Sustenance fishing is 
subject to systematic reporting requirements when developed by the 

Sec.  404.12  International law.

    These regulations shall be applied in accordance with international 
law. No restrictions shall apply to or be enforced against a person who 
is not a citizen, national, or resident alien of the United States 
(including foreign flag vessels) unless in accordance with 
international law.

Appendix A to Part 404--Map of the Monument Outer Boundary and 
Ecological Reserves, Special Preservation Areas, and Midway Atoll 
Special Management Area


[[Page 51141]]



[[Page 51142]]

Appendix B to Part 404--Approved VMS

I. VMS Mobile Transceiver Unit

Thrane & Thrane Sailor 3026D Gold VMS

    The Thrane & Thrane Sailor 3026D Gold VMS (TT-3026D) has been 
found to meet the minimum technical requirements for vessels issued 
permits to operate in the Northwestern Hawaiian Islands Marine 
National Monument. The address for the Thrane & Thrane distributor 
contact is provided in this notice under the heading VMS Provider 
    The TT-3026D Gold VMS features an integrated GPS/Inmarsat-C unit 
and a marine grade monitor with keyboard and integrated mouse. The 
unit is factory pre-configured for NMFS VMS operations (non-Global 
Maritime Distress & Safety System (non-GMDSS)). Satellite 
commissioning services are provided by Thrane & Thrane personnel.
    Automatic GPS position reporting starts after transceiver 
installation and power activation onboard the vessel. The unit is an 
integrated transceiver/antenna/GPS design using a floating 10 to 32 
VDC power supply. The unit is configured for automatic reduced 
position transmissions when the vessel is stationary (i.e., in 
port). It allows for port stays without power drain or power shut 
down. The unit restarts normal position transmission automatically 
when the vessel goes to sea.
    The TT-3026D provides operation down to +/-15 degree angles. The 
unit has the capability of two-way communications to send formatted 
forms and to receive e-mail and other messages. A configuration 
option is available to automatically send position reports to a 
private address, such as a fleet management company.
    A vessel owner may purchase this system by contacting the entity 
identified in this notice under the heading ``VMS Provider 
Address''. The owner should identify himself or herself as a vessel 
owner issued a permit to operate in the Northwestern Hawaiian 
Islands Marine National Monument, so the transceiver set can be 
properly configured. To use the TT-3026D the vessel owner will need 
to establish an Inmarsat-C system use contract with an approved 
Inmarsat-C communications service provider. The owner will be 
required to complete the Inmarsat-C ``Registration for Service 
Activation for Maritime Mobile Earth Station.'' The owner should 
consult with Thrane & Thrane when completing this form.
    Thrane & Thrane personnel will perform the following services 
before shipment: (1) Configure the transceiver according to OLE 
specifications for vessels issued permits to operate in the 
Northwestern Hawaiian Islands Marine National Monument; (2) download 
the predetermined NMFS position reporting and broadcast command 
identification numbers into the unit; (3) test the unit to ensure 
operation when installation has been completed on the vessel; and 
(4) forward the Inmarsat service provider and the transceiver 
identifying information to OLE.

II. Inmarsat-C Communications Providers

    It is recommended, for vendor warranty and customer service 
purposes, that the vessel owner keep for his or her records and that 
Telenor and Xantic have on record the following identifying 
information: (1) Signed and dated receipts and contracts; (2) 
transceiver serial number; (3) Telenor or Xantic customer number, 
user name and password; (4) e-mail address of transceiver; (5) 
Inmarsat identification number; (6) owner name; (7) vessel name; (8) 
vessel documentation or registration number; and (9) mobile earth 
station license (FCC license).
    The OLE will provide an installation and activation checklist 
that the vessel owner must follow. The vessel owner must sign a 
statement on the checklist certifying compliance with the 
installation procedures and return the checklist to OLE. 
Installation can be performed by an experienced crew or by an 
electronics specialist, and the installation cost is paid by the 
    The owner may confirm the TT-3026D operation and communications 
service to ensure that position reports are automatically sent to 
and received by OLE before leaving on a trip under VMS. The OLE does 
not regard the vessel as meeting requirements until position reports 
are automatically received. For confirmation purposes, contact the 
NOAA Fisheries Office for Law Enforcement, 8484 Georgia Ave., Suite 
415, Silver Spring, MD 20910, phone 888-219-9228, fax 301-427-0049.

Telenor Satellite Services

    Inmarsat-C is a store-and-forward data messaging service. 
Inmarsat-C allows users to send and receive information virtually 
anywhere in the world, on land, at sea, and in the air. Inmarsat-C 
supports a wide variety of applications including Internet, e-mail, 
position and weather reporting, a free daily news service, and 
remote equipment monitoring and control. Mariners can use Inmarsat-C 
free of charge to send critical safety at sea messages as part of 
the U.S. Coast Guard's Automated Mutual-Assistance Vessel Rescue 
system and of the NOAA Shipboard Environmental Acquisition System 
programs. Telenor Vessel Monitoring System Services is being sold 
through Thrane & Thrane, Inc. For the Thrane & Thrane and Telenor 
addresses, look inside this notice under the heading ``VMS Provider 


    Xantic is a provider of Vessel Monitoring Services to the 
maritime industry. By installing an approved OLE Inmarsat-C 
transceiver on the vessel, vessels can send and receive e-mail, to 
and from land, while the transceiver automatically sends vessel 
position reports to OLE, and is fully compliant with the 
International Coast Guard Search and Rescue Centers. Xantic Vessel 
Monitoring System Services are being sold through Thrane & Thrane, 
Inc. For the Thrane & Thrane and Xantic addresses, look in this 
notice under the heading ``VMS Provider Address''.
    For Telenor and Xantic, Thrane & Thrane customer service 
supports the security and privacy of vessel accounts and messages 
with the following: (a) Password authentication for vessel owners or 
agents and for OLE to prevent unauthorized changes or inquiries; and 
(b) separation of private messages from OLE messages. (OLE requires 
VMS-related position reports, only.)
    Billing is separated between accounts for the vessel owner and 
the OLE. VMS position reports and vessel-initiated messaging are 
paid for by the vessel owner. Messaging initiated from OLE 
operations center is paid for by NOAA.
    Thrane & Thrane provides customer service for Telenor and Xantic 
users to support and establish two-way transmission of transceiver 
unit configuration commands between the transceiver and land-based 
control centers. This supports OLE's message needs and, optionally, 
the crew's private message needs.
    The vessel owner can configure automatic position reports to be 
sent to a private address, such as to a fleet management company.
    Vessel owners wishing to use Telenor or Xantic services will 
need to purchase an Inmarsat-C transceiver approved for vessels 
issued permits to operate in the Northwestern Hawaiian Islands 
Marine National Monument. The owner will need to complete an 
Inmarsat-C system use contract with Telenor or Xantic, including a 
mobile earth station license (FCC requirement). The transceiver will 
need to be commissioned with Inmarsat according to Telenor or 
Xantic's instructions. The owner should refer to and follow the 
configuration, installation, and service activation procedures for 
the specific transceiver purchased.

III. VMS Provider Address

    For TT-3026D, Telenor, or Xantic information, contact Ronald 
Lockerby, Marine Products, Thrane & Thrane, Inc., 509 Viking Drive, 
Suite K, L & M, Virginia Beach, VA 23452; voice: 757-463-9557; fax: 
757-463-9581, e-mail: rdl@tt.dk.com; Web site: http://www.landseasystems.com

[FR Doc. 06-7235 Filed 8-25-06; 12:24 pm]