[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]
[DOCID:fr29au06-13]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
DEPARTMENT OF THE INTERIOR
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.
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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/
.
FOR FURTHER INFORMATION CONTACT: NOAA contact: T. Aulani Wilhelm,
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)
587-0099.
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
Proclamation.
[[Page 51135]]
Classification
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,
2006.
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
basis.
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
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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)
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(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
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Total...................... 124 ........... 190,709 ........................ 1028 ............................ 55,232.00
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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
dHynek@noaa.gov.
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.
0
Accordingly, NOAA and USFWS add part 404, title 50 of the Code of
Federal Regulations as follows:
PART 404--NORTHWESTERN HAWAIIAN ISLANDS MARINE NATIONAL MONUMENT
Sec.
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
species.
Commercial passenger vessel means a vessel that carries individuals
who have paid for such carriage.
Commercial pelagic trolling means commercial fishing for pelagic
species.
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
variation.
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
Monument.
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
boating.
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;
or
(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
section;
(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
resource;
(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
lands;
(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
Monument;
(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
officer;
(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
report.
(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
Area.
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
integrity;
(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
section:
(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
designated.
(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;
and
(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
Secretaries.
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
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[GRAPHIC] [TIFF OMITTED] TR29AU06.000
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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
Address.
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
owner.
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
Address''.
Xantic
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]
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