Proposed Rule2024-03820
Proposed Papahānaumokuākea National Marine Sanctuary
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 1, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NOAA proposes to designate marine portions of Papah[amacr]naumoku[amacr]kea Marine National Monument as Papah[amacr]naumoku[amacr]kea National Marine Sanctuary (proposed sanctuary) to protect nationally significant biological, cultural, and historical resources and to manage this special place as part of the National Marine Sanctuary System. The proposed sanctuary consists of an area of approximately 582,570 square statute miles (439,910 square nautical miles) of Pacific Ocean waters surrounding the Northwest Hawaiian Islands and the submerged lands thereunder. NOAA proposes to establish the terms of designation for the proposed sanctuary and proposes regulations to implement the designation of the national marine sanctuary. NOAA is also publishing a draft environmental impact statement (DEIS), prepared in coordination with the State of Hawai[revaps]i, and a draft management plan (DMP). NOAA is soliciting public comments on the proposed rule, the DEIS and the DMP.
Full Text
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[Federal Register Volume 89, Number 42 (Friday, March 1, 2024)]
[Proposed Rules]
[Pages 15272-15310]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-03820]
[[Page 15271]]
Vol. 89
Friday,
No. 42
March 1, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 922
Proposed Papah[amacr]naumoku[amacr]kea National Marine Sanctuary;
Proposed Rule
Federal Register / Vol. 89 , No. 42 / Friday, March 1, 2024 /
Proposed Rules
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 240213-0047]
RIN 0648-BL33
Proposed Papah[amacr]naumoku[amacr]kea National Marine Sanctuary
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Proposed rule; notification of availability of draft
environmental impact statement and draft management plan; request for
public comments.
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SUMMARY: NOAA proposes to designate marine portions of
Papah[amacr]naumoku[amacr]kea Marine National Monument as
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary (proposed
sanctuary) to protect nationally significant biological, cultural, and
historical resources and to manage this special place as part of the
National Marine Sanctuary System. The proposed sanctuary consists of an
area of approximately 582,570 square statute miles (439,910 square
nautical miles) of Pacific Ocean waters surrounding the Northwest
Hawaiian Islands and the submerged lands thereunder. NOAA proposes to
establish the terms of designation for the proposed sanctuary and
proposes regulations to implement the designation of the national
marine sanctuary. NOAA is also publishing a draft environmental impact
statement (DEIS), prepared in coordination with the State of
Hawai[revaps]i, and a draft management plan (DMP). NOAA is soliciting
public comments on the proposed rule, the DEIS and the DMP.
DATES: NOAA will consider all comments received by May 7, 2024. NOAA
will host public meetings and will allow for comments in both English
and Hawaiian ([revaps][Omacr]lelo Hawai[revaps]i) at the following
dates and times:
Meeting #1: Virtual Meeting--April 6, 2024, 9 a.m.-12 p.m. HST.
Meeting #2: Honolulu, O[revaps]ahu--April 8, 2024, 5 p.m.-8 p.m.
HST, Aloha Tower, Multipurpose Room 3, 1 Aloha Tower Drive, Honolulu,
Hawai[revaps]i 96813.
Meeting #3: K[amacr]ne[revaps]ohe, O[revaps]ahu--April 9, 2024, 5
p.m.-8 p.m. HST, He[revaps]eia State Park, 46-465 Kamehameha Hwy.,
K[amacr]ne[revaps]ohe, Hawai[revaps]i 96744.
Meeting #4: Wai[revaps]anae, O[revaps]ahu--April 10, 2024, 5 p.m.-8
p.m. HST, Wai[revaps]anae District Park Gym, 85-601 Farrington Highway,
Wai[revaps]anae, Hawai[revaps]i 96792.
Meeting #5: Waimea, Kaua[revaps]i--April 11, 2024, 5 p.m.-8 p.m.
HST, Waimea High School--Cafeteria, 9707 Tsuchiya Rd., Waimea,
Hawai[revaps]i 96796.
Meeting #6: Hanalei, Kaua[revaps]i--April 12, 2024, 5 p.m.-8 p.m.
HST, location address to be determined.
Meeting #7: Hilo, Hawai[revaps]i--April 15, 2024, 5 p.m.-8 p.m.
HST, Mokup[amacr]papa Discovery Center, 76 Kamehameha Ave., Hilo,
Hawai[revaps]i 96720.
Meeting #8: Kahalu[revaps]u Kona, Hawai[revaps]iApril 16, 2024, 5
p.m.-8 p.m. HST, Kahalu[revaps]u Ma Kai Site--Kamehameha Schools, 78-
6780 Ali[revaps]i Drive, Kailua-Kona, Hawai[revaps]i 96740.
Meeting #9: Kahului, Maui--April 17, 2024, 5 p.m.-8 p.m. HST, Maui
Community College Dining Room, 310 W Ka[revaps]ahumanu Avenue, Kahului,
Hawai[revaps]i 96732.
Meeting #10: Kaunakakai, Moloka[revaps]i--April 18, 2024, 5 p.m.-8
p.m. HST, location address to be determined.
Please check the website (<a href="https://sanctuaries.noaa.gov/papahanaumokuakea/">https://sanctuaries.noaa.gov/papahanaumokuakea/</a>) for the most up-to-date information on public
meetings, including meeting locations and the virtual meeting link.
NOAA may end a virtual or in-person meeting before the time noted above
if all participants have concluded their oral comments.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NOS-2021-0114, by any of the following methods:
<bullet> Electronic Submission: Submit all electronic comments via
the Federal eRulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
search for docket NOAA-NOS-2021-0114 (note: copying and pasting the
FDMS Docket Number directly from this document may not yield search
results). Click the ``Comment Now!'' icon, complete the required
fields, and enter or attach your comments.
<bullet> Mail: Send any hard copy public comments by mail to PMNM-
Sanctuary Designation, NOAA/ONMS, 1845 Wasp Blvd., Bldg. 176, Honolulu,
HI 96818.
<bullet> Public Meetings: Provide oral comments during public
meetings, as described under DATES. Details and additional information
about how to participate in these public meetings is available at
<a href="https://sanctuaries.noaa.gov/papahanaumokuakea/">https://sanctuaries.noaa.gov/papahanaumokuakea/</a>.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NOAA. All comments received are a part of the
public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (for example, name and address) voluntarily submitted by
the commenter will be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
NOAA will accept anonymous comments (enter N/A in the required fields
to remain anonymous).
Copies of the proposed rule, the DEIS, DMP, maps of the proposed
boundaries, and additional background materials can be downloaded or
viewed at <a href="http://www.regulations.gov">www.regulations.gov</a> (search for docket #NOAA-NOS-2021-0114).
Copies will also be available at <a href="https://sanctuaries.noaa.gov/papahanaumokuakea/">https://sanctuaries.noaa.gov/papahanaumokuakea/</a>.
FOR FURTHER INFORMATION CONTACT: Eric Roberts,
Papah[amacr]naumoku[amacr]kea Marine National Monument Superintendent,
at <a href="/cdn-cgi/l/email-protection#793c0b101a572b161b1c0b0d0a3917161818571e160f"><span class="__cf_email__" data-cfemail="3673445f551864595453444245765859575718515940">[email protected]</span></a> or 808-294-7470.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate and
protect as national marine sanctuaries areas of the marine environment
that are of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archaeological, educational, or aesthetic qualities. Day-to-day
management of national marine sanctuaries has been delegated by the
Secretary to NOAA. The primary objective of the NMSA is to protect the
resources of the National Marine Sanctuary System.
NOAA proposes to designate marine portions of the
Papah[amacr]naumoku[amacr]kea Marine National Monument as a national
marine sanctuary to provide comprehensive and coordinated management of
the marine areas of Papah[amacr]naumoku[amacr]kea to protect nationally
significant biological, cultural, and historical resources. The
original Papah[amacr]naumoku[amacr]kea Marine National Monument (PMNM,
0-50 nm), and the Monument Expansion Area (MEA, 50-200 nm),
(collectively ``Monument''), located around the Northwestern Hawaiian
Islands, were established under the Antiquities Act of 1906 (54 U.S.C.
320301 et seq.) through, respectively, Presidential Proclamation 8031
of June 15, 2006; as amended by Presidential Proclamation 8112 of
February 28, 2007; and Presidential Proclamation 9478 of August 26,
2016. The Monument is administered jointly by four Co-Trustees--the
Department of Commerce, the Department of the
[[Page 15273]]
Interior, the State of Hawai[revaps]i, and the Office of Hawaiian
Affairs.
In 2006, former President Bush established PMNM to protect and
preserve the marine area of the Northwestern Hawaiian Islands and
certain lands as necessary for the care and management of the historic
and scientific objects therein. The Federal land and interests in land
reserved included approximately 139,793 square miles of emergent and
submerged lands and waters of the Northwestern Hawaiian Islands. NOAA
and the United States Fish and Wildlife Service (USFWS) promulgated
implementing regulations at 50 CFR part 404 for PMNM.
In 2016, Presidential Proclamation 9478 expanded the Monument into
an adjacent area--the MEA--which includes the waters and submerged
lands to the extent of the seaward limit of the United States Exclusive
Economic Zone (U.S. EEZ) west of 163[deg] West Longitude and covers an
additional 442,781 square miles. Presidential Proclamation 9478 also
directed the Secretary of Commerce to consider initiating the process
to designate the MEA and PMNM seaward of the Hawaiian Islands National
Wildlife Refuge and Midway Atoll National Wildlife Refuge and Battle of
Midway National Memorial as a national marine sanctuary to supplement
and complement existing authorities. On December 27, 2020, the Joint
Explanatory Statement accompanying the Consolidated Appropriations Act,
2021, directed NOAA to initiate the process to designate the Monument
as a national marine sanctuary.
The proposed sanctuary consists of a total area of approximately
582,570 square miles (439,910 square nautical miles). The precise
boundary coordinates are defined in appendix A to the regulations at 15
CFR part 922, subpart W. The proposed sanctuary boundary encompasses
the submerged lands, seamounts, and Pacific Ocean waters from the
shoreline seaward to approximately 200 nautical miles west of 163[deg]
West Longitude surrounding the Northwest Hawaiian Islands which consist
of the islands, atolls, and emergent lands stretching from Nihoa in the
southeast to Kure Atoll in the northwest. The adjoining marine waters
east of 163[deg] West Longitude surrounding Nihoa extend seaward from
the shoreline to approximately 50 nautical miles. This boundary
reflects NOAA's preferred alternative, which is described in the DEIS
as Alternative 1.
The proposed sanctuary is a place of unique environmental resources
that provide large-scale ecosystem services for both the region and the
world. The marine habitat includes several interconnected ecosystems,
including coral islands surrounded by shallow reef, deeper reef habitat
characterized by seamounts, banks, and shoals, mesophotic reefs with
extensive algal beds, pelagic waters connected to the greater North
Pacific Ocean, and deep-water habitats such as abyssal plains 5,000
meters below sea level. These ecosystems are connected as essential
habitats for rare species such as the threatened green turtle and the
critically endangered Hawaiian monk seal, as well as over 14 million
seabirds that forage in the pelagic waters to nourish the chicks they
are raising on the tiny islets. These waters are home to 20 cetacean
species protected by the Marine Mammal Protection Act (MMPA), with some
listed as endangered under the Endangered Species Act (ESA). The
importance of these waters to the Hawaiian humpback whale is only
recently becoming understood. At least a quarter of the nearly 7,000
known marine species found in the region are found nowhere else on
Earth.
The area of the proposed sanctuary is also a sacred place to Native
Hawaiians, who regard the islands and wildlife as k[umacr]puna, or
ancestors. The region holds deep cosmological and traditional
significance for living Native Hawaiian culture.
Papah[amacr]naumoku[amacr]kea is as much a spiritual as well as a
physical geography, deeply rooted in Native Hawaiian creation and
settlement stories. Since Native Hawaiian culture considers nature and
culture to be one and the same, the protection of one of the last
nearly pristine, natural, marine ecosystems in the archipelago is seen
as being akin to preserving the living culture.
The area of the proposed sanctuary also includes the location of
the Battle of Midway, a turning point in World War II for the allies in
the Pacific Theater. Research indicates that there are 60-80 military
vessels and hundreds of aircraft on the seafloor. In addition to Navy
steamers and aircraft, there are whaling ships, Japanese junks,
Hawaiian fishing sampans, Pacific colliers, and other vessels from the
19th and 20th centuries. Of these, the locations of more than 30 vessel
wreck sites have been confirmed by diving or bathymetric surveys, with
only a handful of those identified by vessel name or otherwise
evaluated.
B. Purpose and Need for Action
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary to designate national marine sanctuaries to
meet the purposes and policies of the NMSA, including:
<bullet> ``to provide authority for comprehensive and coordinated
conservation and management of these marine areas, and activities
affecting them, in a manner which complements existing regulatory
authorities'' (16 U.S.C. 1431(b)(2));
<bullet> ``to maintain the natural biological communities in the
national marine sanctuaries, and to protect, and, where appropriate,
restore and enhance natural habitats, populations, and ecological
processes'' (16 U.S.C. 1431(b)(3));
<bullet> ``to enhance public awareness, understanding,
appreciation, and wise and sustainable use of the marine environment,
and the natural, historical, cultural, and archaeological resources of
the National Marine Sanctuary System'' (16 U.S.C. 1431(b)(4));
<bullet> ``to support, promote, and coordinate scientific research
on, and long-term monitoring of, the resources of these marine areas''
(16 U.S.C. 1431(b)(5));
<bullet> ``to facilitate to the extent compatible with the primary
objective of resource protection, all public and private uses of the
resources of these marine areas not prohibited pursuant to other
authorities'' (16 U.S.C. 1431(b)(6));
NOAA's proposed action is to designate marine areas of
Papahanaumokuakea as a national marine sanctuary. The purpose of this
action is to provide comprehensive and coordinated management of the
marine areas of Papahanaumokuakea to protect nationally significant
biological, cultural, and historical resources. Additionally, the
purpose of the designation is to implement the provisions of Executive
Order 13178, Presidential Proclamation 9478, and the Joint Explanatory
Statement accompanying the Consolidated Appropriations Act, 2021.
Accordingly, NOAA is proposing to designate this area as a national
marine sanctuary to:
<bullet> Develop objectives and actions that ensure lasting
protection consistent with the existing Monument proclamations;
<bullet> Safeguard natural and cultural values of the marine
environment;
<bullet> Apply additional regulatory and non-regulatory tools to
augment and strengthen existing protections for Papahanaumokuakea
ecosystems, wildlife, and cultural and maritime heritage resources;
<bullet> Authorize NOAA to assess civil penalties for violations of
provisions of the NMSA and regulations and permits
[[Page 15274]]
issued pursuant to the NMSA (16 U.S.C. 1437(d));
<bullet> Impose liability for destruction, loss of, or injury to
sanctuary resources and provide natural resource damage assessment
authorities for destruction, loss of, or injury to any sanctuary
resource (16 U.S.C. 1443); and
<bullet> Require interagency consultation for any Federal agency
action that is likely to destroy, cause the loss of, or injure any
sanctuary resource (16 U.S.C. 1434(d));
C. Designation Process
1. Notice of Intent To Designate a National Marine Sanctuary
On November 19, 2021, NOAA initiated the process to designate
marine portions of the Monument as a national marine sanctuary by
publishing a Notice of Intent to Conduct Scoping and to Prepare an
Environmental Impact Statement for the Proposed Designation of a
National Marine Sanctuary within Papahanaumokuakea Marine National
Monument (86 FR 64904). The notice of intent stated that NOAA would
prepare a DEIS per the requirements of the National Environmental
Policy Act (42 U.S.C. 4321 et seq.) and the NMSA. The notice of intent
(NOI) also announced NOAA's intent to fulfill its responsibilities
under the National Historic Preservation Act (NHPA; 54 U.S.C. 300101 et
seq.). The State of Hawai[revaps]i published its EIS preparation notice
on December 8, 2021. Following publication of these notices, NOAA
conducted four virtual public scoping meetings. During the 74-day
public comment period from November 19, 2021 through January 31, 2022,
73 individuals and organizations provided written input. An estimated
165 people attended the four scoping meetings, with 9 people providing
oral comments. The Summary of Scoping Input on the Notice of Intent and
EIS Preparation Notice and State of Hawai[revaps]i Responses to Public
Scoping Comments are included in the DEIS as appendix G.
2. Development of Proposed Terms of Designation and Proposed
Regulations
Section 304(a)(4) of the NMSA requires that the terms of
designation include: (1) the geographic area that is proposed to be
included within the sanctuary; (2) the characteristics of the area that
give it conservation, recreational, ecological, historical, research,
educational, or esthetic value; and (3) the types of activities that
would be subject to regulation by the Secretary to protect these
characteristics. Section 304(a)(4) of the NMSA also specifies that the
terms of designation may be modified only by the same procedures by
which the original designation was made.
The purpose and need for the sanctuary provide the overarching
basis for developing the proposed regulations. The designation of the
proposed sanctuary would not replace the area's current status as a
marine national monument. The proposed rule would supplement the
existing provisions for management of the Monument and further protect
resources in the Northwest Hawaiian Islands. To draft these
regulations, NOAA reviewed the following, which currently guide
Monument management:
<bullet> Executive Order 13178--Northwestern Hawaiian Islands Coral
Reef Ecosystem Reserve, December 4, 2000;
<bullet> Presidential Proclamation 8031--Establishment of the
Northwestern Hawaiian Islands Marine National Monument, June 15, 2006;
<bullet> Presidential Proclamation 8112, Amending Proclamation 8031
of June 15, 2006 to Read ``Establishment of the Papahanaumokuakea
Marine National Monument,'' February 29, 2007;
<bullet> Regulations implementing Presidential Proclamations 8031
and 8112 at 50 CFR part 404; and
<bullet> Presidential Proclamation 9478--
Papah[amacr]naumoku[amacr]kea Marine National Monument Expansion,
August 26, 2016.
These executive orders, presidential proclamations, and regulations
served as benchmarks for drafting the proposed rule for the proposed
sanctuary. The proposed rule would only add to, and would not diminish,
Monument management measures and protections. NOAA has adopted the
management measures from these benchmarks, and, in a few areas, added
onto those measures to allow for consistency in regulation and
management across the proposed sanctuary. The proposed rule unifies
management of the area by removing discrepancies and gaps in
prohibitions, regulated activities, and permit criteria, providing
clarity and comprehensive protection for the proposed sanctuary.
In developing this proposed rule and the proposed sanctuary terms
of designation, NOAA also considered: (1) information received through
public scoping comments, cooperating agency review, and coordination
with the Monument Co-Trustees through the seven-member Monument
Management Board (MMB), which consists of NOAA ONMS, NOAA National
Marine Fisheries Service, USFWS Ecological Services, USFWS Refuges,
Hawai[revaps]i Department of Land and Natural Resources (DLNR) Division
of Aquatic Resources, DLNR-Division of Forestry and Wildlife, and the
Office of Hawaiian Affairs (OHA); and (2) information from analysis of
issues in the DEIS, interagency coordination, and internal staff
analysis and expertise. NOAA also consulted with the Western Pacific
Regional Fishery Management Council as required under the NMSA.
A detailed discussion of the proposed rule is contained below in
section III, subsections A through M. The proposed terms of designation
are contained below in section II, and are incorporated as an annex to
the DMP.
3. Development of Draft Management Plan
A DMP has been prepared in accordance with NMSA section
304(a)(2)(C). Management plans are site-specific documents that ONMS
uses to manage individual sanctuaries. The DMP: (1) articulates the
sanctuary's vision, mission, goals, and objectives; (2) describes the
management activities and initiatives that NOAA proposes to conduct;
and (3) provides strategies and assessment measures to guide the
sanctuary's short and mid-range management. The DMP for the sanctuary
is included as appendix A to the DEIS.
4. Draft Environmental Impact Statement
In accordance with National Environmental Policy Act (NEPA) (42
U.S.C. 4321 et seq.), the NMSA, and the Hawai[revaps]i Environmental
Policy Act (HEPA, Chapter 343 HRS, HAR Chapter 11-200.1), NOAA is
releasing a DEIS for the proposed national marine sanctuary designation
in conjunction with the publication of this proposed rule. NOAA is the
lead Federal agency in the preparation of the environmental impact
statement. The USFWS, State of Hawai[revaps]i, and the Department of
the Navy are cooperating agencies for the NEPA process. The DEIS
(<a href="https://sanctuaries.noaa.gov/papahanaumokuakea/">https://sanctuaries.noaa.gov/papahanaumokuakea/</a>) describes the purpose
and need for the proposed action of designating a national marine
sanctuary, identifies a range of alternatives including the preferred
alternative, provides an assessment of resources and uses in the area,
and evaluates the potential environmental consequences of the proposed
designation including by comparing the beneficial and adverse impacts
among alternatives.
The DEIS analyzes four alternatives; including a ``no action''
alternative, in which the area would not be designated as a national
marine sanctuary; and three boundary alternatives:
[[Page 15275]]
<bullet> Alternative 1 is coextensive with the marine portions of
the Monument. The boundary includes the marine environment surrounding
the Northwestern Hawaiian Islands from the shoreline of the islands and
atolls seaward to 200 nautical miles, including all State waters and
waters of the Northwestern Hawaiian Islands Coral Reef Ecosystem
Reserve, Midway Atoll and Hawaiian Islands National Wildlife Refuges,
and State of Hawai[revaps]i Northwestern Hawaiian Islands Marine
Refuge. The area encompassed in Alternative 1 is approximately 582,570
square miles (439,910 square nautical miles).
<bullet> Alternative 2 includes the marine environment from the
shoreline of the islands and atolls seaward to 50 nautical miles. This
alternative includes all State waters and waters of the Reserve, Midway
Atoll and Hawaiian Islands National Wildlife Refuges, and State of
Hawai[revaps]i Northwestern Hawaiian Islands Marine Refuge. This
alternative does not include the MEA. The area encompassed in
Alternative 2 is approximately 139,782 square miles (105,552 square
nautical miles).
<bullet> Alternative 3 has the same boundaries as Alternative 1,
excluding waters within the Midway Atoll and Hawaiian Islands National
Wildlife Refuges. The area encompassed in Alternative 3 is
approximately 581,263 square miles (438,923 square nautical miles).
5. Agency-Preferred Alternative
NOAA is identifying Alternative 1 as the agency-preferred
alternative (preferred alternative) based on its comparative merits;
this alternative serves as the foundation of this proposed rule
(section 3.3 of the DEIS presents a map and an additional explanation
of the reasons for this selection). NOAA selected its preferred
alternative after considering input from the Monument Management Board,
the State of Hawai[revaps]i, cooperating agencies, and public scoping
meetings. Through the analysis in the DEIS, NOAA has found that the
preferred alternative would provide numerous beneficial impacts,
including increased protection and conservation of resources, and
improved coordination of conservation and management. NOAA has also
considered the potential adverse impacts of the preferred alternative
and anticipates that there would be no significant adverse impacts to
biological and physical resources, cultural and historic resources, or
socioeconomic resources.
NOAA's identification of Alternative 1 as the preferred alternative
is based on the need for additional resource protection, scientific
research, and public education in areas that would be excluded by
selecting the boundaries of Alternatives 2 or 3. Alternative 1 includes
the MEA, an area which would benefit from the establishment of a NOAA
permitting process, and the promulgation of sanctuary regulations to
protect resources. Alternative 1 also includes the waters of Midway
Atoll and Hawaiian Islands National Wildlife Refuges National Wildlife
Refuges, which are the areas of the proposed sanctuary subject to the
highest level of human activity.
Based on the public comments NOAA receives on the draft designation
documents and NOAA's experience administering the national marine
sanctuary program, pursuant to NEPA and the Administrative Procedure
Act, NOAA may choose to select a different alternative in the final
rule and final EIS that is within the geographic and regulatory scope
of the alternatives currently considered in the DEIS, and that is a
logical outgrowth of this proposed rule.
II. Proposed Sanctuary Terms of Designation
Section 304(a)(4) of the NMSA as amended, 16 U.S.C. 1434(a)(4),
requires that the terms of designation be described at the time a
sanctuary is designated, including: (1) the geographic area proposed to
be included within the sanctuary; (2) the characteristics of the area
that give it conservation, recreational, ecological, historical,
research, educational, or aesthetic value; and (3) the types of
activities that will be subject to regulation by the Secretary of
Commerce to protect these characteristics. The following represents the
proposed terms of designation:
Under the authority of the National Marine Sanctuaries Act, as
amended (the ``Act'' or ``NMSA''), 16 U.S.C. 1431 et seq.,
approximately 439,910 square nmi (582,570 square mi) of the waters of
the Pacific Ocean surrounding the Northwestern Hawaiian Islands are
hereby designated as a National Marine Sanctuary for the purpose of
providing long-term protection and management of the ecological,
cultural, and historical resources and the conservation, recreational,
scientific, educational, and aesthetic qualities of the area.
Article I: Effect of Designation
The NMSA authorizes the issuance of such regulations as are
necessary and reasonable to implement the designation, including
managing and protecting the ecological, cultural, and historical
resources and the conservation, recreational, scientific, educational,
and aesthetic qualities of Papah[amacr]naumoku[amacr]kea National
Marine Sanctuary (the ``Sanctuary''). Section 1 of Article IV of these
terms of designation lists those activities that may be regulated on
the effective date of designation, or at some later date, in order to
protect Sanctuary resources and qualities. Listing an activity does not
necessarily mean that it will be regulated. However, if an activity is
not listed it may not be regulated, except on an emergency basis,
unless section 1 of Article IV is amended by the same procedures by
which the original Sanctuary designation was made.
Article II: Description of the Area
The sanctuary encompasses the submerged lands, seamounts, and
Pacific Ocean waters from the shoreline seaward to approximately 200
nautical miles west of 163[deg] West Longitude surrounding the
Northwestern Hawaiian Islands which consist of the islands, atolls, and
emergent lands stretching from Nihoa in the southeast to
H[omacr]lanik[umacr] (Kure Atoll) in the northwest. The marine waters
east of 163[deg] West Longitude surrounding Nihoa extend seaward from
the shoreline to approximately 50 nautical miles. The total area of the
sanctuary comprises approximately 582,570 square miles (439,910 square
nautical miles). The precise boundary coordinates are defined in
appendix A to the regulations at 15 CFR part 922, subpart W.
Article III: Special Characteristics of the Area
Papah[amacr]naumoku[amacr]kea is a place of special national
significance that provides large-scale ecosystem services for the
region and the world. The marine habitat includes several
interconnected ecosystems, including coral islands surrounded by
shallow reef, deeper reef habitat characterized by seamounts, banks,
and shoals scattered across the area of the sanctuary, mesophotic reefs
with extensive algal beds, pelagic waters connected to the greater
North Pacific Ocean, and deep-water habitats and abyssal plains 5,000
meters below sea level. These connected ecosystems provide essential
habitats for rare species such as the threatened green sea turtle and
the critically endangered Hawaiian monk seal, as well as habitat for
more than 14 million seabirds that forage in the pelagic waters to
nourish the chicks they are raising on the tiny islets.
Papah[amacr]naumoku[amacr]kea is home to 20 cetacean species, protected
by the MMPA, with some listed as endangered under the ESA. At least a
[[Page 15276]]
quarter of the nearly 7,000 known marine species found in the region
are found nowhere else on Earth.
The area of the proposed sanctuary is also a place of historic and
cultural significance. The area of the proposed sanctuary includes the
location of the Battle of Midway, a turning point in World War II for
the allies in the Pacific Theater. Research indicates that 60-80
military vessels and hundreds of aircraft are scattered across the
seafloor. In addition to Navy steamers and aircraft, there are whaling
ships, Japanese junks, Hawaiian fishing sampans, Pacific colliers, and
other vessels from the 19th and 20th centuries.
Papah[amacr]naumoku[amacr]kea is also a sacred place to Native
Hawaiians, who regard the islands and wildlife as k[umacr]puna, or
ancestors. The region holds deep cosmological and traditional
significance to living Native Hawaiian culture and contains a host of
intact and significant archaeological sites found on the islands of
Nihoa and Mokumanamana, both of which are on the National Register of
Historic Places and Hawai[revaps]i Register of Historic Places.
Papah[amacr]naumoku[amacr]kea is as much a spiritual as a physical
geography, rooted deep in Native Hawaiian creation and settlement
stories.
Article IV: Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation, including
prohibition, as may be necessary to ensure the protection and effective
management of the ecological, cultural, historical, conservation,
recreational, scientific, educational, or aesthetic resources or
qualities of the area:
1. Access to the sanctuary;
2. Ship reporting;
3. Vessel monitoring;
4. Vessel discharge;
5. Exploring for, developing, or producing oil, gas, or minerals,
or any energy development activities;
6. Using or attempting to use poisons, electrical charges, or
explosives in the collection or harvest of a sanctuary resource;
7. Introducing or otherwise releasing an introduced species from
within or into the sanctuary;
8. Deserting a vessel;
9. Commercial fishing;
10. Non-commercial fishing;
11. Possessing fishing gear;
12. Anchoring on or having a vessel anchored on any living or dead
coral with an anchor, anchor chain, or anchor rope;
13. Drilling into, dredging, or otherwise altering the submerged
lands; or constructing, placing, or abandoning any structure, material,
or other matter on the submerged lands;
14. 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 sanctuary
resource;
15. Attracting any living sanctuary resource;
16. Touching coral, living or dead;
17. Swimming, snorkeling, or closed or open circuit SCUBA diving;
or
18. Discharging or depositing any material or other matter, or
discharging or depositing any material or other matter outside of the
sanctuary that subsequently enters the sanctuary and injures or has the
potential to injure any resources of the sanctuary;
19. Anchoring a vessel;
20. Native Hawaiian practices;
21. Research and scientific exploration;
22. Scientific research and development by Federal agencies;
23. Activities that will further the educational value of the
sanctuary or will assist in the conservation and management of the
sanctuary; and
24. Recreational activities.
Listing an activity here means that the Secretary of Commerce can
regulate the activity, after complying with all applicable laws,
without going through the designation procedures required by paragraphs
(a) and (b) of section 304 of the NMSA. No term of designation issued
under the authority of the NMSA may take effect in Hawaii State waters
within the Sanctuary if the Governor of Hawaii certifies to the
Secretary of Commerce that such term of designation is unacceptable
within the review period specified in the NMSA.
Section 2. Emergencies
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or to minimize the
imminent risk of such destruction, loss, or injury, any and all
activities, including those not listed in section 1, are subject to
immediate temporary regulation, including prohibition.
Article V: Alteration of This Designation
The terms of designation, as defined under section 304(a)(4) of the
NMSA, may be modified only by the same procedures by which the original
designation is made, including public hearings, consultations with
interested Federal, Tribal, State, regional, and local authorities and
agencies, review by the appropriate Congressional committees, and
approval by the Secretary of Commerce, or his or her designee.
III. Summary of Proposed Regulations
A. Adding New Subpart W
NOAA is proposing to amend 15 CFR part 922 by adding a new subpart
(subpart W) that contains site-specific regulations for the proposed
sanctuary. This subpart would include the proposed boundary, contain
definitions of common terms used in the new subpart, identify
prohibited activities and exceptions, and establish procedures for
permitting otherwise prohibited activities.
B. Proposed Sanctuary Boundary
NOAA proposes to designate the marine environment surrounding the
Northwestern Hawaiian Islands from the shoreline of the islands and
atolls seaward to 200 nautical miles, including all waters of the
Monument. NOAA estimates the area encompassed in the proposed
designation is approximately 582,570 square miles (439,910 square
nautical miles).
C. Definitions
This proposed rule incorporates and adopts common terms defined in
the national regulations at 15 CFR 922.11. In addition, NOAA proposes
to include 19 site-specific definitions. To the extent that a term
appears in Sec. 922.11 and the definitions section of the proposed
rule, the definition in the proposed rule would govern.
<bullet> The definitions for ``Bottomfish Species'' and ``Pelagic
Species'' are adopted from regulations for Fisheries in the Western
Pacific, 50 CFR 665.201 and 50 CFR 665.800.
<bullet> ``Ecological integrity'', ``Midway Atoll Special
Management Area'', ``Native Hawaiian practices'', ``Pono'',
``Recreational activity'', ``Special Preservation Area (SPA)'',
``Stowed and not available for immediate use'', ``Sustenance fishing'',
and ``Vessel monitoring system or VMS'', are adopted from Presidential
Proclamation 8031.
<bullet> ``Commercial fishing'' and ``Non-commercial fishing'' are
adopted from the MSA and, in part, from regulations for Fisheries in
the Western Pacific, 50 CFR 665.12.
<bullet> ``Particularly Sensitive Sea Area (PSSA)'' is adopted from
IMO Resolution A.982(24), December 1, 2005.
<bullet> ``Areas to be avoided (ATBA)'' and ``Office of Law
Enforcement'' are adopted from Papah[amacr]naumoku[amacr]kea Marine
National Monument regulations, 50 CFR 404.3.
<bullet> ``Outer Sanctuary Zone (OSZ)'' refers to the area of the
sanctuary that would extend from approximately 50
[[Page 15277]]
nautical miles from all the islands and emergent lands of the
Northwestern Hawaiian Islands to the extent of the seaward limit of the
United States Exclusive Economic Zone west of 163[deg] West Longitude.
This area of the proposed sanctuary would correspond with the area
designated as a marine national monument by Presidential Proclamation
9478, referred to as the ``Papah[amacr]naumoku[amacr]kea Marine
National Monument Expansion'' or MEA. NOAA is proposing this definition
to provide clarity to the public where there is a regulation that only
applies to this area of the sanctuary, and not the entire sanctuary.
The name ``OSZ'' is a placeholder, and NOAA is soliciting public
comment on possible names for this area of the proposed sanctuary.
<bullet> ``Reporting Area'' refers to the area of the proposed
sanctuary that extends outward ten nautical miles from the PSSA
boundary, as designated by the IMO, and excludes the ATBAs that fall
within the PSSA boundary. The reporting area is defined by the
coordinates set forth in appendix E to the proposed rule. NOAA is
proposing to define the ``reporting area'' to clarify in which areas of
the proposed sanctuary ship reporting requirements apply.
<bullet> ``Scientific instrument'' is a term used in Presidential
Proclamation 9478, but the term was not defined. Specifically,
Presidential Proclamation 9478 prohibits ``drilling into, dredging, or
otherwise altering the submerged lands, or constructing, placing, or
abandoning any structure, material, or other matter on the submerged
lands, except for scientific instruments''. NOAA proposes to define
``scientific instrument'' to clarify what may or may not be permitted.
NOAA proposes to define ``scientific instrument'' to mean ``a device,
vehicle, or tool used for scientific purposes and is inclusive of
structures, materials, or other matter incidental to proper use of such
device, vehicle, or tool.'' In defining ``scientific instruments,''
NOAA's definition provides for the inclusion of ``structures,
materials, or other matter incidental to proper use of such device,
vehicle, or tool'' because, based on the type of activities previously
permitted in the Monument, proper deployment and use of most scientific
instruments requires more than the instrument itself. For example,
there may be incidental ballast discharge associated with the use of a
scientific instrument like a remotely operated vehicle, or ROV. A
narrower definition of ``scientific instruments'' could unduly restrict
NOAA's ability to permit activities in the area of the proposed
sanctuary that overlaps with the MEA, the OSZ. NOAA believes a narrower
definition would be inconsistent with the intent of Presidential
Proclamation 9478, which states ``Undisturbed seamount communities in
the adjacent area are of significant scientific interest because they
provide opportunities to examine the impacts of physical, biological,
and geological processes on ecosystem diversity, including
understanding the impacts of climate change on these deep-sea
communities. These seamounts and ridges also provide the opportunity
for identification and discovery of many species not yet known to
humans, with possible implications for research, medicine, and other
important uses. Recent scientific research, utilizing new technology,
has shown that many species identified as objects in Proclamation 8031
inhabit previously unknown geographical ranges that span beyond the
existing Monument, and in some cases the adjacent area also provides
important foraging habitat for these species.'' These statements
clearly demonstrate the significant scientific value of the MEA and
underscore the opportunities for research and discovery to occur in
that area of the proposed sanctuary.
D. Co-Management of the Sanctuary
To enhance opportunities and build on existing protections, NOAA
and the State of Hawai[revaps]i would collaboratively manage the
sanctuary. NOAA would establish the framework for co-management in
section 922.242 of the proposed rule and may develop a Memorandum of
Agreement (MOA) with the State of Hawai[revaps]i to provide greater
details of the terms of co-management. NOAA and the State may develop
additional agreements as necessary to provide details on the execution
of sanctuary management, such as activities, programs, and permitting
that can be updated to adapt to changing conditions or threats to the
sanctuary resources. Any proposed changes to sanctuary regulations or
boundaries would be coordinated with the State and subject to public
review as mandated by the NMSA and other Federal statutes. Co-
management of the proposed sanctuary with the State of Hawaii would not
supplant the existing co-management structure for the Monument.
E. Access
In PMNM, pursuant to Presidential Proclamation 8031, access is
prohibited except under the following circumstances: (1) for emergency
response and law enforcement purposes; (2) for activities and exercises
of the Armed Forces; (3) for persons who have been issued Monument
permits; and (4) for passage without interruption. For consistency, and
to protect sanctuary resources, NOAA proposes extending the access
restrictions which apply to the area of the proposed sanctuary that
overlaps the PMNM to the area of the proposed sanctuary that overlaps
with the MEA as follows:
Access to the sanctuary would be prohibited and thus unlawful
except under the following circumstances: (1) for emergency response
actions, law enforcement activities, and activities and exercises of
the Armed Forces; (2) pursuant to a sanctuary permit; (3) when
conducting non-commercial fishing activities in the OSZ authorized
under the Magnuson-Stevens Fishery Conservation and Management Act
provided that no sale of harvested fish occurs; and (4) when passing
through the sanctuary without interruption.
A vessel may pass without interruption through the sanctuary
without requiring a permit as long as the vessel does not stop, anchor
or engage in prohibited activities within the sanctuary, and vessel
discharges are limited to the following:
<bullet> Vessel engine cooling water, weather deck runoff, and
vessel engine exhaust within a Special Preservation Areas or the Midway
Atoll Special Management Area; and
<bullet> Discharge incidental to vessel operations such as deck
wash, approved marine sanitation device effluent, cooling water, and
engine exhaust in areas other than Special Preservation Areas or the
Midway Atoll Special Management Area.
A vessel passing through the sanctuary without interruption may be
subject to the ship reporting system, as described below.
The proposed access restrictions would be applied in accordance
with generally recognized principles of international law, in
accordance with sections 305(a) and 307(k) of the NMSA and the NMSA's
Regulations of General Applicability at 15 CFR 922.1(b). No regulation
shall apply to or be enforced against a person who is not a citizen,
national, or resident alien of the United States vessels unless in
accordance with generally recognized principles of international law.
F. Ship Reporting
NOAA also proposes regulations to implement the ship reporting
system (CORAL SHIPREP) adopted by the International Maritime
Organization (IMO), which would require entrance and exit notifications
for vessels that
[[Page 15278]]
pass without interruption through the sanctuary areas contained within
a reporting area. NOAA proposes to establish this reporting area, which
would be defined as ``the area of the proposed sanctuary that extends
outward ten nautical miles from the PSSA [Particularly Sensitive Sea
Area] boundary, as designated by the IMO, and excludes the ATBAs [Areas
to be avoided] that fall within the PSSA boundary.'' The reporting area
would be further defined by the coordinates set forth in appendix E to
the proposed rule. Appendix E includes a coordinates table for the
``Reporting Area Outer Boundary,'' which contains the reporting area's
boundary surrounding the PSSA. Appendix E also includes coordinate
tables for the ``Inner Reporting Area Boundary'' for each of the four
ATBAs that fall within the PSSA, but which are not part of the
reporting area.
NOAA proposes exemptions for emergency response and law enforcement
purposes, and for activities and exercises of the Armed Forces.
Therefore, CORAL SHIPREP's requirements would not apply to vessels
covered by those exemptions. The proposed regulations do not apply to
vessels conducting activities pursuant to a sanctuary permit or vessels
conducting non-commercial fishing activities in the OSZ authorized
under the Magnuson-Stevens Fishery Conservation and Management Act. The
proposed regulations also do not apply to sovereign immune vessels.
This is consistent with sections 305(a) and 307(k) of the NMSA, and the
NMSA's Regulations of General Applicability at 15 CFR 922.1(b), which
state that sanctuary regulations shall be applied in accordance with
generally recognized principles of international law. No regulation
shall apply to or be enforced against a person who is not a citizen,
national, or resident alien of the United States vessels unless in
accordance with generally recognized principles of international law.
Requiring vessels to notify NOAA immediately upon entering the
reporting area, will help make the operators of these vessels aware
that they are traveling through a fragile area with potential
navigational hazards such as the extensive coral reefs found in many
shallow areas of the proposed sanctuary contained within the reporting
area. The reporting area for the proposed sanctuary would not include
the four voluntary ATBAs adopted by the IMO that are also within the
PSSA. An ATBA is an area within which either navigation is particularly
hazardous or it is exceptionally important to avoid casualties. While
ATBAs can be mandatory (i.e., vessels are required by applicable law to
avoid and operate outside of the area) most are voluntary and vessels
may travel through them. Because the four ATBAs in the PSSA are
voluntary, as adopted by the IMO and implemented by these proposed
regulations, the ATBAs are outside of the reporting area. Nonetheless,
by virtue of entering or exiting an ATBA, vessels would also be
departing or entering the reporting area, and, therefore be subject to
the reporting area's requirements four times: (1) once when it enters
the reporting area; (2) once when it leaves the reporting area to enter
the ATBA; (3) once when it exits the ATBA and enters the reporting area
on the other side of the ATBA; and (4) once when it once again leaves
the reporting area. The potential burden of reporting four times is
justified by the navigational hazards that exist within the ATBAs. The
reporting area also includes three large areas within the PSSA that are
not within the ATBAs. These breaks between the four ATBAs allow for
north-south passages through the sanctuary areas contained within the
reporting area that can be utilized for navigation to avoid ATBAs.
Vessels passing through the sanctuary in these areas would only send
email notification twice: once upon entering the reporting area, and
again upon leaving the reporting area.
NOAA is proposing to implement CORAL SHIPREP's requirements under
the NMSA in keeping with the United States' and IMO's long-standing
interest in providing additional protection to the natural, cultural,
and historic resources in PMNM through ship reporting requirements. In
June 2006, Presidential Proclamation 8031 directed the Secretary of
Commerce and Secretary of Interior to require notification from any
person passing through PMNM without interruption at least 72 hours, but
no longer than 1 month, prior to the entry date, and within 12 hours of
departure. Presidential Proclamation 8031 further indicated the
specific types of information that must be provided in the
notification. These notification requirements were subsequently
codified in 50 CFR 404.4. Presidential Proclamation 8031 also directed
the Secretary of State, in consultation with the Secretary of Commerce
and Secretary of Interior, to seek the cooperation of other governments
and international organizations in furtherance of the purposes of the
proclamation and consistent with applicable regional and multilateral
arrangements for the protection and management of special marine areas.
In accordance with Proclamation 8031, in April 2007, the United
States proposed to the IMO that PMNM be designated as a PSSA to protect
the attributes of the fragile and integrated coral reef ecosystem from
potential hazards associated with international shipping activities.
The U.S. noted in its proposal that the proposed PSSA and its
associated protective measures would result in a minimal burden to
international shipping, would significantly further increase maritime
safety, protection of the fragile environment, preservation of cultural
resources and areas of cultural importance significant to Native
Hawaiians, and would facilitate responses to developing maritime
emergencies. On April 3, 2008, the IMO designated the PMNM as a PSSA.
As part of the PSSA designation process, the IMO adopted U.S. proposals
for associated protective measures consisting of expanding and
consolidating the six existing recommendatory ATBAs in the PMNM into
four larger areas and enlarging the class of vessels to which they
apply and establishing a ship reporting area and system for vessels
transiting the PMNM, which is mandatory for ships 300 gross tons or
greater that are entering or departing a U.S. port or place and
recommended for other ships. The system requires that ships notify the
U.S. shore-based authority (i.e., the U.S. Coast Guard; NOAA will be
receiving all messages associated with this program on behalf of the
Coast Guard) at the time they begin transiting the reporting area and
again when they exit. In December 2008, NOAA and the USFWS published
final regulations to establish a ship reporting system for PMNM, that
implemented measures adopted by the IMO requiring notification by ships
passing through PMNM without interruption (73 FR 73592). These
regulations modified the previous notification requirements at 50 CFR
404.4.
NOAA is proposing to implement the ship reporting system as adopted
by the IMO and to establish the reporting area using the boundary
coordinates in appendix E to the proposed rule to provide additional
protection to the natural, cultural, and historic resources in the
proposed sanctuary. Accordingly, NOAA's proposed regulations build upon
the requirements outlined in Presidential Proclamation 8031, and
reflect additions made through the IMO's adoption of a ship reporting
system and the implementation of that system in 50 CFR 404.4. NOAA
[[Page 15279]]
proposes minor language changes from the process adopted by IMO
Resolution MEPC.171(57) and IMO Resolution MSC.279(85) to provide
clarity to the public on which vessels are required to participate in
ship reporting and the type of information that should be reported.
NOAA proposes one substantive addition to the types of reporting
information in the IMO Resolutions, that vessels report ``[a]ny
pollution incident or goods lost overboard within the PSSA, the
reporting area, or the U.S. EEZ.'' This addition was included in the
December 2008 final regulations to establish a ship reporting system
for PMNM.
The NMSA provides NOAA with the authority to designate a national
marine sanctuary and promulgate regulations implementing the
designation if NOAA determines, among other things, that the area is of
special national significance (see 16 U.S.C. 1433(a)(2)). NOAA's
determination of special national significance is to be based on (1)
the area's conservation, recreational, ecological, historical,
scientific, cultural, archaeological, educational, or aesthetic
qualities; (2) the communities of living marine resources it harbors;
or (3) its resource or human-use values. In designating PMNM as a PSSA,
the IMO expressly recognized the ecological, socio-economic, and
scientific attributes of the area--including, a ``unique, fragile, and
pristine coral reef ecosystem'' and ``significant cultural and
archaeological resources''--and their vulnerability to international
shipping activities (see IMO Resolution MEPC.171(57)). The IMO
highlighted PMNM's (1) more than 7,000 species of fish, mammals,
plants, coral, and other invertebrates; (2) critical habitat, spawning,
and breeding grounds; (3) cultural significance to Native Hawaiians,
rich underwater cultural heritage from the World War II Battle of
Midway; and (4) unparalleled opportunities in scientific research.
Given the IMO's findings in designating the PSSA and adopting a ship
reporting system as an associated protective measure, NOAA's proposed
regulations implementing CORAL SHIPREP are necessary and reasonable to
conserve and manage this area of special national and international
significance as part of the proposed sanctuary (see 16 U.S.C.
1434(a)(1)(A)).
G. Activities That Are Prohibited or Otherwise Regulated
NOAA is proposing to supplement and complement existing management
of this area by proposing prohibited or otherwise regulated activities
in section 922.244. Presidential Proclamations 8031, 8112, and 9478,
and regulations implementing Presidential Proclamations 8031 and 8112
at 50 CFR part 404 provide the foundation for the proposed
prohibitions. However, minor changes are made in the proposed rule to
remove discrepancies and gaps in prohibitions and regulated activities
between PMNM and the MEA in order to allow for consistency in
management across the proposed sanctuary.
Within PMNM, the proposed prohibitions are all currently in place
through 50 CFR part 404 except for prohibitions 1 and 4 (detailed
below). Minor changes are proposed to prohibitions 1 and 4 to remove
discrepancies across the two zones (PMNM and MEA). Regulations
implementing Presidential Proclamation 9478 have not yet been
promulgated for the MEA. Many of the prohibitions adopted in the
proposed rule are identified in Presidential Proclamation 9478, which
established the MEA. Any prohibitions proposed for the area of the
proposed sanctuary that overlaps with the MEA that are not adopted
directly from Presidential Proclamation 9478 are identified below.
1. Prohibition on Exploring for, Developing, or Producing Oil, Gas, or
Minerals, or Any Energy Development Activities
Consistent with the presidential proclamations establishing the
Monument, NOAA is proposing to prohibit exploring for, developing, or
producing oil, gas, or minerals to protect sanctuary resources and
create a seamless management area throughout the proposed sanctuary.
The addition of the prohibition on `any energy development activities'
would be new for PMNM, and was added to further the underlying intent
of the prohibition on oil, gas, and mineral development by accounting
for technological advances in other forms of energy development.
In addition to creating consistency across the two zones, this
prohibition will help advance the proposed sanctuary's draft goals and
objectives by protecting sensitive marine ecosystems such as fragile
coral reefs and deep-sea corals, benthic habitat, and seamounts.
Prohibiting oil, gas, and mineral development reduces the risk of
offshore spills, such as the Deepwater Horizon oil spill, that could
significantly harm sanctuary resources. Deep seabed mining, oil and gas
drilling, and other energy development activities, such as renewable
energy system installation, destroys fragile benthic habitat, releases
sequestered carbon, and spreads sediment plumes that can suffocate both
sensitive shallow and deep-sea coral reefs, which negatively impacts
nursery and foraging habitat for fish, and reduces the ecosystem's
overall resilience.
2. Prohibition on Using or Attempting To Use Poisons, Electrical
Charges, or Explosives in the Collection or Harvest of a Sanctuary
Resource
NOAA is proposing this prohibition to be consistent with
prohibitions identified in the presidential proclamations establishing
the Monument.
3. Prohibition on Introducing or Otherwise Releasing an Introduced
Species From Within or Into the Sanctuary
NOAA is proposing this prohibition to be consistent with
prohibitions identified in the presidential proclamations establishing
the Monument.
4. Prohibition on Deserting a Vessel
Deserting a vessel is currently a regulated activity (allowed only
with a permit) in PMNM pursuant to Presidential Proclamation 8031.
Deserting a vessel is a prohibited activity in the MEA pursuant to
Presidential Proclamation 9478. NOAA does not see a need to permit this
activity and is proposing this prohibition in part to create
consistency in management across the proposed sanctuary. Prohibiting
this activity would help to prevent desertion of a vessel following a
sinking, grounding, or other incident. Prevention is much less
expensive than responding to a deserted vessel and can optimally
prevent impacts and damage to sanctuary resources as well as to private
property.
5. Prohibition on Anchoring on or Having a Vessel Anchored on Any
Living or Dead Coral With an Anchor, Anchor Chain, or Anchor Rope
NOAA is proposing this prohibition to be consistent with
prohibitions identified in the presidential proclamations establishing
the Monument.
6. Prohibition on Commercial Fishing and Possessing Commercial Fishing
Gear Except When Stowed and Not Available for Immediate Use
Presidential Proclamation 8031 provided that commercial fishing for
bottomfish and pelagic fish in PMNM that was permitted by NOAA prior to
June 16, 2006 was allowed to continue for 5 years from the date of the
proclamation, until June 15, 2011. After that date, Presidential
Proclamation 8031 prohibited commercial fishing for
[[Page 15280]]
bottomfish and associated pelagic species in PMNM. Presidential
Proclamation 9478 also prohibits commercial fishing, as well as
possessing commercial fishing gear except when stowed and not available
for immediate use during passage without interruption in the MEA. NOAA
is proposing a sanctuary-wide prohibition on commercial fishing and
possessing commercial fishing gear except when stowed and not available
for immediate use to be consistent with the presidential proclamations
establishing the Monument.
7. Prohibition on Non-Commercial Fishing and Possessing Non-Commercial
Fishing Gear Except When Stowed and Not Available for Immediate Use
The presidential proclamations establishing the Monument broadly
restrict the harvest of fishery resources by prohibiting removing,
moving, taking, harvesting, possessing, injuring, disturbing, or
damaging any living or nonliving monument resource, as well as attempts
to do the same, except as may be allowed with a permit. As noted above,
Presidential Proclamations 8031 and 9478 further specify prohibitions
on commercial fishing and the possession of commercial fishing gear.
The presidential proclamations also identify certain types of non-
commercial fishing that may be regulated (i.e., allowed pursuant to a
permit or incidental to a permitted activity). Presidential
Proclamation 8031, for example, authorizes sustenance fishing
incidental to an activity permitted in PMNM. Presidential Proclamation
9478, for example, provides that non-commercial fishing is a regulated
activity (i.e., allowed only with a permit) in the MEA. In the
sanctuary, NOAA is proposing, for consistency with the proclamations,
that ``non-commercial fishing'' is prohibited unless conducted pursuant
to a sanctuary permit or, as discussed below, authorized under the
Magnuson-Stevens Fishery Conservation and Management Act (MSA) in the
OSZ. The proposed rule adopts the definition of ``non-commercial
fishing'' from the regulations for Fisheries in the Western Pacific,
which is defined as ``fishing that does not meet the definition of
commercial fishing in the Magnuson-Stevens Fishery Conservation and
Management Act, and includes, but is not limited to, sustenance,
subsistence, traditional indigenous, and recreational fishing.'' 50 CFR
665.12.
NOAA also proposes that ``possessing non-commercial fishing gear
except when stowed and not available for immediate use'' is prohibited
unless conducted pursuant to a sanctuary permit or, as discussed below,
authorized under the MSA in the OSZ. Presidential Proclamation 8031
includes ``possessing fishing gear,'' as a regulated activity (allowed
only with a permit) in PMNM. Presidential Proclamation 9478 prohibits
possessing commercial fishing gear. NOAA's proposal creates continuity
between the two areas, and aims to ensure that non-commercial gear is
not utilized in an unauthorized manner that could lead to injury to
sanctuary resources.
8. Prohibition on Drilling Into, Dredging, or Otherwise Altering the
Submerged Lands; or Constructing, Placing, or Abandoning Any Structure,
Material, or Other Matter on the Submerged Lands
This activity is a regulated activity (i.e., allowed only with a
permit) in PMNM under Presidential Proclamation 8031. In the MEA,
Presidential Proclamation 9478 prohibits this type of activity, except
for when conducted for the use of scientific instruments, which is
allowed only with a permit, subject to such terms and conditions as the
Secretaries deem appropriate. In the sanctuary, NOAA is proposing that
these activities are prohibited unless conducted pursuant to a
sanctuary permit. In the OSZ, such a permit may only be issued for
scientific instruments.
9. Prohibition on 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
Sanctuary Resource
NOAA is proposing that these activities are prohibited unless
conducted pursuant to a sanctuary permit, consistent with the
presidential proclamations establishing the Monument.
10. Prohibition on Attracting Any Living Sanctuary Resource
NOAA is proposing that these activities are prohibited unless
conducted pursuant to a sanctuary permit. NOAA is proposing this
prohibition to be consistent with a regulated activity identified in
Presidential Proclamation 8031 for PMNM. This prohibition would be new
in the area of sanctuary that overlaps with the MEA, the OSZ.
Prohibiting this activity is intended to address the potential for
harassment and disturbance from human interactions with living
sanctuary resources.
11. Prohibition on Touching Coral, Living or Dead
NOAA is proposing that this activity is prohibited unless conducted
pursuant to a sanctuary permit. NOAA is proposing this prohibition to
be consistent with a regulated activity (i.e., allowed only with a
permit) identified in Presidential Proclamation 8031 for PMNM. This
prohibition would be new for the area of sanctuary that overlaps with
the MEA, the OSZ. However, prohibition 9 effectively includes this
activity, as touching coral is considered a disturbance which may cause
injury or damage. Therefore, regulating this activity for the area of
the proposed sanctuary that overlaps with the MEA, the OSZ, is
primarily a technical addition which provides clarity to the public and
resource managers.
12. Prohibition on Swimming, Snorkeling, or Closed or Open Circuit
SCUBA Diving
NOAA is proposing that these activities are prohibited unless
conducted pursuant to a sanctuary permit. NOAA is proposing this
prohibition to be consistent with a regulated activity identified in
Presidential Proclamation 8031 for any Special Preservation Area or the
Midway Atoll Special Management Area. This prohibition would be new for
areas of PMNM that fall outside of any Special Preservation Area or the
Midway Atoll Special Management Area, and for the MEA. Expanding this
regulated activity to the entire area of the proposed sanctuary allows
NOAA to ensure that all in-water activities are done in compliance with
the permit findings criteria and requirements, and are consistent with
the care and management of sanctuary resources.
13. Prohibition on Discharging or Depositing Any Material or Other
Matter Into the Sanctuary, or Discharging or Depositing Any Material or
Other Matter Outside of the Sanctuary That Subsequently Enters the
Sanctuary and Injures or Has the Potential To Injure Any Resources of
the Sanctuary, Except as Described for Vessel Passage Without
Interruption
NOAA is proposing that these activities are prohibited unless
conducted pursuant to a sanctuary permit. NOAA is proposing this
prohibition to be consistent with regulated activities identified in
Presidential Proclamation 8031 for PMNM. NOAA proposes an exception to
this activity for vessel passage without interruption, so long as any
discharge is limited to ``vessel engine cooling water,
[[Page 15281]]
weather deck runoff, and vessel engine exhaust within Special
Preservation Areas or the Midway Atoll Special Management Area; and
discharge incidental to vessel operations such as deck wash, approved
marine sanitation device effluent, cooling water, and engine exhaust in
areas other than Special Preservation Areas or the Midway Atoll Special
Management Area.'' While this prohibition would technically be new for
the area of the proposed sanctuary that overlaps with the MEA, the OSZ,
Presidential Proclamation 9478 effectively includes this activity.
Regulating this activity for the OSZ provides clarity to the public and
resource managers. Further, the prohibition on discharges within or
into the sanctuary is proposed in recognition that various substances
can be discharged from vessels or from infrastructure or individuals
along the shoreline that can harm sanctuary resources or qualities.
Establishing a cohesive regulatory framework across the proposed
sanctuary would benefit sanctuary resources and sanctuary users.
14. Prohibition on Anchoring a Vessel
NOAA is proposing that this activity is prohibited unless conducted
pursuant to a sanctuary permit. While this activity may be permitted
via a sanctuary permit, anchoring on living or dead coral may never be
permitted, as noted above under prohibition 5. NOAA is proposing this
prohibition on anchoring a vessel, for consistency with a regulated
activity identified in Presidential Proclamation 8031 for PMNM and
because there is the potential for sanctuary resources, other than
corals, to be impacted by anchoring. This prohibition would be new for
the area of the proposed sanctuary that overlaps with the MEA, the OSZ.
As stated above in Section E, NOAA proposes that a vessel may pass
through the sanctuary without requiring a permit as long as the vessel
does not stop, anchor or engage in prohibited activities within the
sanctuary. Therefore, including this prohibition on anchoring a vessel
also provides clarity to the public, resource managers, and enforcement
personnel that all users of the proposed sanctuary--vessels conducting
passage without interruption and permittees--are subject to the same
prohibition on anchoring a vessel unless conducted pursuant to a
sanctuary permit.
H. Exemptions for Emergencies
Consistent with existing management of this area, the proposed
prohibitions for the proposed sanctuary would not apply to any activity
necessary to respond to emergencies that threaten life, property, or
the environment, or to activities necessary for law enforcement
purposes.
I. U.S. Armed Forces Exemption
Consistent with existing management of this area, NOAA proposes a
broad exemption to allow activities and exercises of the U.S. Armed
Forces, including those carried out by the U.S. Coast Guard. NOAA
recognizes that this broad exemption is necessary to ensure military
readiness for the Department of Defense to conduct existing training,
operations, and military readiness activities in the area proposed to
be designated as a national marine sanctuary. The United States
military has been able to maintain readiness and conduct training and
other operations in other national marine sanctuaries based on similar
broad exemptions.
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 sanctuary resources
and qualities. For any actions of the Armed Forces that are likely to
destroy, cause the loss of, or injure sanctuary resources, the Armed
Forces must comply with the Interagency Cooperation requirements
outlined in section 304(d) of the NMSA, regardless of whether those
actions are exempted from the proposed sanctuary's prohibitions.
J. Exemption for Non-Commercial Fishing
NOAA is proposing to exempt non-commercial fishing authorized under
the MSA in the area of the sanctuary that overlaps with the MEA, the
OSZ, from prohibitions 7 through 14 in the proposed rule, provided that
no sale of harvested fish occurs. NOAA has prepared a separate proposed
rule under the MSA which shall serve as the primary mechanism for
authorizing non-commercial fishing activities. NOAA would periodically
evaluate the effect of non-commercial fishing activities on sanctuary
resources. Such evaluations would take into consideration the best
scientific information available and evaluate whether additional
actions are necessary for the proper care and management of Sanctuary
resources, including fishery resources, consistent with goals and
objectives of the Sanctuary. This exemption would only apply to the
OSZ.
K. Sanctuary Permit Procedures and Criteria
1. Sanctuary General Permits
NOAA is proposing to include authority to issue sanctuary general
permits to allow certain activities that would otherwise violate
prohibitions 7 through 14. The proposed permitting system is modeled
after the existing Monument permitting system. The proposed permitting
system would not supplant the joint permitting system for PMNM, and was
developed to ensure a continued joint permitting system administered by
Monument co-managers. NOAA may develop Memorandum of Agreements in the
future to add further clarification on joint-permitting within portions
of the sanctuary that overlap with existing permitting programs for the
Monument.
National marine sanctuary program-wide regulations at 15 CFR 922.30
describe different purposes for which a sanctuary general permit can be
issued. Three of these which would apply to this proposed sanctuary
are:
<bullet> Research--activities that constitute scientific research
or scientific monitoring of a national marine sanctuary resource or
quality;
<bullet> Education--activities that enhance public awareness,
understanding, or appreciation of a national marine sanctuary or
national marine sanctuary resource or quality; and
<bullet> Management--activities that assist in managing a national
marine sanctuary.
NOAA is proposing to add two additional permit categories to 15 CFR
922.30 under which a sanctuary general permit could be issued in the
proposed sanctuary:
<bullet> Native Hawaiian Practices--activities that allow for
Native Hawaiian practices within the proposed sanctuary; and
<bullet> Recreation--recreational activities within the proposed
sanctuary limited to the Midway Atoll Special Management Area.
NOAA is proposing these two additional general permit categories to
be consistent with the types of activities permitted for the PMNM.
The general regulations in 15 CFR part 922, subpart D, relating to
the permit application process, review procedures, amendments, and
other permitting stipulations would apply. These national permitting
regulations include a list of factors NOAA considers in deciding
whether or not to issue the permit, such as whether the activity must
be conducted within the sanctuary, and whether the activity will be
compatible with the primary
[[Page 15282]]
objective of protection of sanctuary resources and qualities. NOAA
would be able to impose specific terms and conditions through a permit
as appropriate.
In addition to permit review procedures and evaluation criteria in
15 CFR 922.33, some additional permit review criteria would apply in
the proposed sanctuary, including additional criteria specific to
Native Hawaiian Practices permits and Recreation permits. NOAA is
proposing these additional permit criteria to be consistent with the
permit criteria for PMNM.
2. Special Use Permits
NOAA has the authority to issue special use permits (SUPs) in
national marine sanctuaries, as established by section 310 of the NMSA
(16 U.S.C. 1441) and by 15 CFR 922 subpart D. SUPs can be used to
authorize specific activities in a sanctuary if such authorization is
necessary to establish conditions of access to, and use of, any
sanctuary resource or to promote public use and understanding of a
sanctuary resource. Section 310 of the NMSA establishes four
requirements for SUPs: (1) activities must be compatible with the
purposes for which the sanctuary is designated and with protection of
sanctuary resources; (2) SUPs shall not authorize the conduct of any
activity for a period of more than five years unless otherwise renewed;
(3) activities carried out under the SUP must be conducted in a manner
that does not destroy, cause the loss of, or injure sanctuary
resources; and (4) permittees are required to purchase and maintain
comprehensive general liability insurance, or post an equivalent bond,
against claims arising out of activities conducted under the SUP and to
agree to hold the United States harmless against such claims. The NMSA
authorizes NOAA to assess and collect fees for the conduct of any
activity under an SUP, including costs incurred, or expected to be
incurred, in issuing the permit and the fair market value use of
sanctuary resources. Implementing regulations at 15 CFR 922.35 provide
additional detail on assessment of fees for SUPs. As is the case with
sanctuary general permits, NOAA can place conditions on SUPs specific
to the activity being permitted. NOAA shall provide appropriate public
notice before identifying any category of activity subject to a special
use permit.
NOAA is not proposing any new SUP category as part of this
designation. In evaluating applications for special use permits, NOAA
would consider all applicable permitting requirements, including
permitting procedures and criteria under the Monument's existing
management framework. For example, certain activities may be subject to
the requirements of special ocean use permits, as authorized by
Presidential Proclamation 8031, and issued by Monument managers in the
PMNM via 40 CFR 404.11. Special ocean use permit requirements were
modeled after SUPs, but also include a few additional requirements,
such as for activities within the Midway Atoll Special Management Area.
3. Sustenance Fishing
NOAA may authorize sustenance fishing outside of any Special
Preservation Area as a term or condition of any sanctuary permit.
Sustenance fishing is fishing for bottomfish or pelagic species in
which all catch is consumed within the sanctuary. Sustenance Fishing is
allowed incidental to an activity permitted in the PMNM under
Presidential Proclamation 8031, and in regulations at 50 CFR part 404.
Sustenance fishing was not specifically identified in Presidential
Proclamation 9478 governing the MEA but is allowable. For consistency
in management and permitting, NOAA proposes allowing for this activity
as a term or condition of a general permit or special use permit.
4. VMS
To complement existing management and provide consistency across
the entirety of the sanctuary, an owner or operator of a vessel that
has been issued a general permit or special use permit under 15 CFR
subpart D must ensure that such vessel has a NOAA Office of Law
Enforcement (OLE)-approved Vessel Monitoring System (VMS) on board when
operating within the sanctuary. Presidential Proclamation 8031 requires
an owner or operator of a vessel that has been issued a permit for
accessing the PMNM to have an OLE-approved VMS on board. Such a
requirement was not included in Presidential Proclamation 9478. For
consistency in permitting, and for the reasons identified below, NOAA
proposes to impose this requirement across the proposed sanctuary.
NOAA proposes this requirement to support permit compliance,
enforcement, and other incidental uses, consistent with the long-
standing history of considering and implementing the use of vessel
monitoring systems in the area of the proposed sanctuary, beginning
with Executive Order 13178 in 2000. In directing the Secretary to
manage the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve,
section 5(b) of Executive Order 13178 indicated that priority issues
and actions must include enforcement and surveillance, including the
use of new technologies, as well as the use of vessel monitoring
systems, if warranted. The 2005 Final Reserve Operations Plan included
an Enforcement Action Plan with strategies to investigate innovative
technology that would be effective for this large, remote area, as well
as to implement VMS. In 2006, Presidential Proclamation 8031, as noted
above, required an OLE-approved VMS on board of vessels with permits to
access the PMNM. VMS is currently being utilized in the PMNM and is
part of the Monument Management Plan's Enforcement Action Plan. The
Monument Management Plan highlights, as an example, that when the 85-
foot longliner Swordman I, carrying more than 6,000 gallons of diesel
fuel and hydraulic oil, ran aground at Pearl and Hermes Reef in 2000,
vessel monitoring system technology allowed agents to track the
disaster and quickly send out equipment for an extensive cleanup.
L. Scientific Exploration and Research by the Department of Commerce
and the Department of the Interior
Presidential Proclamation 9478 stipulates that the prohibitions
required by the proclamation ``shall not restrict scientific
exploration or research activities by or for the Secretaries and
nothing in this proclamation shall be construed to require a permit or
other authorization from the other Secretary for their respective
scientific activities.'' NOAA is proposing to exempt these activities
within the OSZ to be consistent with Presidential Proclamation 9478.
M. Other Conforming Amendments
The Regulations of General Applicability at 15 CFR part 922,
subpart A, and the regulations related to National Marine Sanctuary
Permitting, 15 CFR part 922, subpart D, would have to be amended so
that the regulations are accurate and up-to-date. The modified sections
to conform to adding a new sanctuary are as follows:
<bullet> Section 922.1 Purposes and applicability of the
regulations;
<bullet> Section 922.4 Boundaries;
<bullet> Section 922.6 Prohibited or otherwise regulated
activities;
<bullet> 922.30 National Marine Sanctuary general permits;
<bullet> 922.33 Review procedures and evaluation; and
<bullet> 922.37 Appeals of permitting decisions.
[[Page 15283]]
IV. Requests for Comments
NOAA is requesting comments on this proposed rule, including
comments on the terms of designation and the proposed regulations, the
DEIS, and the DMP for the proposed sanctuary. NOAA will publish the
final EIS and final management plan following public review and comment
on this proposed rule and following NOAA's consideration of substantive
comments received. NOAA also requests comments on the Regulatory
Flexibility Act certification and economic analysis. The preamble of
the final rule will include responses to substantive comments received
on the proposed rule. The full response to comments, which includes
responses to comments made on the proposed rule, the DEIS, and the
draft management plan, will be provided as an Appendix to the Final
EIS.
Sensitive personally identifiable information, such as account
numbers and Social Security numbers, should not be included with the
comment. Comments that are not related to designation of the proposed
sanctuary or that contain profanity, vulgarity, threats, or other
inappropriate language will not be considered.
V. Classification
A. National Marine Sanctuaries Act
NOAA consulted with the Western Pacific Regional Fishery Management
Council (Council) as required by section 304(a)(5) of the NMSA. Through
this consultation, NOAA provided the Council with the opportunity to
recommend any draft fishing regulations it deemed necessary to
implement the proposed sanctuary designation. NOAA initiated the
consultation on November 19, 2021. On March 22, 2022, the Council
agreed to develop draft fishing regulations for the proposed sanctuary.
NOAA participated in six public meetings hosted by the Council on
November 1st, 3rd, 4th, 5th, 8th, and 10th of 2022, which were focused
on the development of fishing regulations for the area of the proposed
sanctuary that overlaps with the MEA. At its 193rd meeting in December
of 2022, the Council provided a final recommendation. NOAA found that
the final recommendation, in part, did not fulfill the purposes and
policies of the NMSA and the goals and objectives of the proposed
designation. The Council amended their recommendation during their
194th meeting in March of 2023, and submitted a revised final
recommendation to NOAA on April 14, 2023.
In May of 2023, NOAA accepted the majority of the Council's
recommendation as it fulfilled the purposes and policies of the NMSA
and the goals and objectives of the proposed sanctuary designation.
However, the Council's recommendation for the disposition of Native
Hawaiian Subsistence Practices Fishing catch, which would provide
permit applicants the ability to request limited cost recovery by
selling their catch was rejected by NOAA via a decision letter dated
May 31, 2023. As NOAA explained in the letter, any recommendation for
the allowance of ``sale'' is inconsistent with the goals and objectives
of the proposed sanctuary designation. NOAA Fisheries has prepared a
proposed rule under the MSA and ONMS has prepared this proposed rule
under the NMSA to reflect the outcome of the NMSA section 304(a)(5)
process.
Pursuant to section 304(a)(1)(C) of the NMSA, the Committee on
Natural Resources of the House of Representatives, the Committee on
Commerce, Science, and Transportation of the Senate, and the Governor
of Hawai[revaps]i will have the opportunity to review this proposed
action.
B. National Environmental Policy Act
As described in section I above, NOAA and the State of
Hawai[revaps]i prepared a DEIS to evaluate the impacts of this proposed
action of designating a national marine sanctuary, which considers four
alternatives for the proposed designation of a national marine
sanctuary in marine portions of the Monument. Copies of the DEIS and
related draft management plan are available at the website listed in
the ADDRESSES section of this proposed rule. NOAA is also soliciting
public comments on the DEIS and DMP. The full response to comments,
which includes responses to comments made on the proposed rule, the
DEIS, and the draft management plan, will be provided as an Appendix to
the Final EIS.
C. Executive Orders 12866: Regulatory Impact, 13563 Improving
Regulation and Regulatory Review, and 14094: Modernizing Regulatory
Review
The Office of Management and Budget (OMB) has determined this
proposed rule to be not significant within the meaning of Executive
Order 12866, as supplemented by Executive Order 14094.
D. Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federalism implications sufficient to warrant preparation of a
federalism assessment under Executive Order 13132 because NOAA
supplements and complements State and local laws under the NMSA rather
than supersedes or conflicts with them. This proposed rule will not
have substantial direct effects on State or local governments. NOAA has
coordinated closely with State partners throughout the development of
this proposed rule and, where applicable and practicable, the proposed
rule aligns with existing State regulations. NOAA has aimed for
consistent regulations throughout sanctuary waters including those
within State and Federal jurisdiction.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) requires
Federal agencies to prepare an analysis of a rule's impact on small
entities whenever the agency is required to publish a notice of
proposed rulemaking, unless the agency certifies, pursuant to 5 U.S.C.
605, that the action will not have significant economic impact on a
substantial number of small entities. The RFA requires agencies to
consider, but not necessarily minimize, the effects of proposed rules
on small entities. The goal of the RFA is to inform the agency and
public of expected economic effects of the proposed rule and to ensure
the agency considers alternatives that minimize the expected economic
effects on small entities while meeting applicable goals and
objectives.
Pursuant to section 605(b) of the RFA, the Chief Counsel for
Regulation of the Department of Commerce certified to the Chief Counsel
for Advocacy of the Small Business Administration that this proposed
rule, if adopted, would not have a significant economic impact on a
substantial number of small entities. The purpose, context, and
statutory basis for this action is described above and not repeated
here. The analysis below discusses the potential effects of the
proposed designation of marine portions of
Papah[amacr]naumoku[amacr]kea Marine National Monument as a national
marine sanctuary and serves as the factual basis for the certification.
In summary, with this proposed rulemaking, small entities are not
expected to experience significant impacts.
[[Page 15284]]
1. Description and Estimate of the Number of Small Entities to Which
the Proposed Action Would Apply
Under the Monument's existing management framework, activities in
the Monument, with limited exceptions, require a permit. The same would
be true in the proposed sanctuary. Based on permitting data for the
Monument, there are six primary categories of regulated uses: (1)
research; (2) conservation and management; (3) education; (4) Native
Hawaiian practices; (5) recreation; and (6) special ocean use. Table 1
shows the number of permits issued by category from 2018 to 2022. Based
on permitting data, the types of entities applying for permits include,
government, non-profits, artists, film and entertainment entities,
education providers, and research organizations. Additionally, ship
reporting is required for vessels that transit through portions of the
Monument, and the types of entities impacted are identified as finfish
fishing or deep-sea freight transit (73 FR 38375 (July 7, 2008)).
Table 1--Permits Issued by Year and Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Conservation Native Hawaiian Special ocean
Research and management Education practices Recreation use Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018.................................. 7 3 4 4 0 3 21
2019.................................. 7 6 0 2 0 1 16
2020.................................. 1 5 0 0 0 2 8
2021.................................. 8 2 1 4 0 3 18
2022.................................. 5 3 0 0 0 1 9
-----------------------------------------------------------------------------------------------------------------
2018-2022 Total................... 28 19 5 10 0 10 72
2018-2022 Annual Average.............. 5.6 3.8 1 2 0 2 14.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: (NOAA Office of National Marine Sanctuaries, Papah[amacr]naumoku[amacr]kea Marine National Monument Permit Records, 2023).
The U.S. Small Business Administration establishes size standards
for determining whether a business entity qualifies as small. NOAA has
analyzed the types of entities that applied for permits by category and
identified the relevant industries impacted by the proposed rule as
colleges and universities, apprenticeship training, environment,
conservation and wildlife organizations, civic and social
organizations, television broadcasting stations, motion picture and
video production, geophysical surveying and mapping services,
independent artists, writers, performers, and museums. Each relevant
industry is shown in the table below with the most recent size
standards published by the U.S. Small Business Administration (2023).
Size standards are based upon the average annual receipts (all revenue)
or the average employment of a firm.
Table 2--Size Standard in Millions of Dollars by North American
Classification System (NAICS) Code and Industry Description for Selected
Industries
------------------------------------------------------------------------
Size standard
NAICS industry description NAICS code (millions of
dollars)
------------------------------------------------------------------------
Colleges, universities and professional 611310 $34.5
schools................................
Apprenticeship Training................. 611513 11.5
Environment, Conservation and Wildlife 813312 19.5
Organizations..........................
Civic and Social Organizations.......... 813410 9.5
Television Broadcasting Stations........ 516120 47.0
Motion Picture and Video Production..... 512110 40.0
Geophysical Surveying and Mapping 541360 28.5
Services...............................
Independent Artists, Writers, and 711510 9.0
Performers.............................
Museums................................. 712110 34.0
Finfish Fishing......................... 114111 25.0
Deep Sea Freight........................ 483111 * 1,050
------------------------------------------------------------------------
Source: 13 CFR part 121, 2023.
* Number of employees. A size standard is not identified in dollars.
Table 3 provides the approximate number of permits issued for each
corresponding industry. The Monument permit application itself does not
ask the applicant for their industry or if the applicant is a small
entity. Therefore, the data presented below is based on limited
information from the permit application, specifically the applicant's
name and stated purpose for the permit.
Table 3--Approximate Permits by Industry Description
----------------------------------------------------------------------------------------------------------------
NAICS industry description 2018 2019 2020 2021 2022
----------------------------------------------------------------------------------------------------------------
Colleges, universities and 7 2 1 9 4
professional schools...........
Apprenticeship Training......... 2 0 0 2 0
Environment, Conservation and 1 2 2 3 0
Wildlife Organizations.........
Civic and Social Organizations.. 2 1 0 2 0
Television Broadcasting Stations 2 0 0 0 0
Motion Picture and Video 1 0 1 4 1
Production.....................
[[Page 15285]]
Geophysical Surveying and 1 1 0 2 1
Mapping Services...............
Independent Artists, Writers, 0 1 1 0 0
and Performers.................
Museums......................... 1 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Source: (NOAA Office of National Marine Sanctuaries, Papah[amacr]naumoku[amacr]kea Marine National Monument
Permit Records, 2023).
Regarding ship reporting requirements, NOAA estimated there would
be approximately 200-250 vessels passing through reporting areas of the
proposed sanctuary without interruption that would be subject to
providing entry and exit notifications, based on vessel traffic
reported between 2017 and 2023.
The data provided in Tables 1, 2, and 3 provide information on the
type of permit applications, the industries that may be impacted, and
the number of permits by corresponding industry. NOAA does not have
economic data on whether the permittees within the corresponding
industries are small entities or not. Due to the lack of quantitative
data on the nature of businesses directly affected by the proposed rule
including their levels of revenues, costs, and profits from their
activities within the sanctuary, the analysis provided here is
qualitative. Based upon site interactions and working relationships
with permittees, the types of small entities that may be impacted by
this proposed rule include academic and government institutions, non-
profit organizations, and broadcast and video production entities. In
addition, U.S. fishing vessels are expected to be impacted by this
rulemaking, and all are considered to be small entities. U.S. freight
transport vessels are expected to be affected by this rulemaking,
though none are considered to be small entities.
2. Analysis of Small Entities
The proposed sanctuary regulations would largely mirror the
existing management framework for the Monument. There would be no
effective difference in the permitting process between the proposed
action and the status quo for permitting within PMNM. The proposed
regulatory action would establish new permitting requirements for
entities that seek access to areas of the proposed sanctuary that
overlap with the MEA, the OSZ. While access restrictions for portions
of the proposed sanctuary that overlap with the MEA would be new, the
activities that may be permitted would be consistent with Presidential
Proclamation 9478.
Therefore, the proposed regulatory action would establish new
reporting and recordkeeping requirements for entities that apply for
permits in the area of the proposed sanctuary that overlaps with the
MEA, the OSZ, but is not expected to have a significant economic impact
on a substantial number of small entities for the following reasons.
Based on the NOAA Monument manager's site knowledge and experience, the
proposed regulatory action is not expected to result in an increase in
the number of permit requests, as the majority of users operate in the
area of the proposed sanctuary that overlaps with PMNM, and do not
solely operate in the area of the proposed sanctuary that overlaps with
the MEA. Additionally, the area under consideration is coextensive with
the marine areas of the Monument, extremely remote (nearly 300 miles at
its closest point from the main Hawaiian Islands), and very few
entities operate there.
Through this proposed rule, NOAA does not expect a significant
reduction in profits for small entities. NOAA does not charge a fee for
review and issuance of general permits, and there are only minimal,
indirect costs associated with the time for an individual to complete a
permit application and respond to any follow-up questions from NOAA.
While NOAA may assess fees for the conduct of any activity authorized
under a special use permit, fees are not required, and decisions are
made on a case-by-case basis. No unique professional skills are
necessary to meet these reporting requirements. In addition, the
process by which all applicants apply for a permit, or complete entry
and exit notifications for passage without interruption through certain
areas within the proposed sanctuary, would not substantially differ
from the current process. Therefore, these additional permitting
requirements would not significantly reduce profits for a substantial
number of small entities. The public reporting burden for Monument
permits is provided in table 4. The public reporting burden differs by
permit category.
Table 4--Hourly Burden of the Information Collection for Papah[amacr]naumoku[amacr]kea Marine National Monument
Permits
----------------------------------------------------------------------------------------------------------------
Mean
occupational
Annual # of employment Annual wage
Information collection responses/ Burden hours/ hourly wage burden costs
respondent response rates (for per permit
type of
respondent)
----------------------------------------------------------------------------------------------------------------
General permit.................................. 3 5 $36.62 $549.30
Special Ocean Use permit........................ 3 10 40.83 1,224.9
Native Hawaiian Practices permit................ 3 8 36.62 878.88
Recreation permit............................... 3 6 24.98 449.64
----------------------------------------------------------------------------------------------------------------
Source: (NOAA Office of National Marine Sanctuaries, Papah[amacr]naumoku[amacr]kea Marine National Monument
Permit Records, 2023).
Under the existing Monument management framework, as a condition of
a permit, permittees are required to have a NOAA OLE type-approved VMS
on board when operating within the PMNM. The cost of a VMS unit is
$3,150. Annualized over 3 years (the life of the unit) the cost per
year is $1,050.00 per year with an additional
[[Page 15286]]
estimated $100.00 in annual maintenance costs, and $192.00 in VMS
report transmission costs ($1.28 daily cost based on a high estimate
that a permitted vessel may spend on average, 150 days per year in the
Monument), for a total annual VMS cost of $1,342. The proposed rule
includes this requirement for areas of the proposed sanctuary that
overlap with both the PMNM and MEA. However, the proposed rule is not
expected to result in an increase in the number of permit requests, as
the majority of users operate in the area of the proposed sanctuary
that overlaps with PMNM, and do not solely operate in the area of the
proposed sanctuary that overlaps with the MEA. Therefore, this
additional permit requirement is not expected to result in an increase
in the number of required VMS units, or a significant financial burden
to small entities.
Through this proposed rule, the process for ship reporting for
vessels transiting through areas of the proposed sanctuary would not
substantially differ from the current process. The proposed regulatory
action would not establish any new reporting or record-keeping
requirements related to ship reporting.
As described above, NOAA does not expect a significant reduction in
profits for small entities, as the expected costs are minimal, indirect
costs for permit applications, and does not expect an increase in
permit applications as users are already required to have a permit to
access PMNM. NOAA has concluded that the proposed rule would not have a
significant impact on a substantial number of small entities.
Therefore, an Initial Regulatory Flexibility Analysis is not required
and none was prepared.
F. Paperwork Reduction Act
Notwithstanding any other provisions 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 Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., unless that collection of information displays a currently valid
OMB control number.
NOAA has an OMB control number (0648-0548) for the collection of
public information related to the processing of PMNM permit
applications and reports for permits. In the most recent Information
Collection Request revision and approval for PMNM permits, NOAA
reported approximately 74 permit respondents per year. NOAA's proposal
to create a national marine sanctuary in the marine portions of the
Monument is not expected to result in an increase in the number of
requests for permits under this control number. Therefore, the annual
public reporting burden hours for permits under OMB control number
0648-0548 is not expected to increase. A large increase in the number
of permit requests would require a change to the reporting burden
certified for OMB control number 0648-0548. While not expected, if such
permit requests do increase, a revision to this control number for the
processing of permits would be requested.
Please send any comments regarding the burden estimate for this
data collection requirement or any other aspect of this data
collection, including suggestions for reducing the burden, to NOAA (see
ADDRESSES above). Comments can also be submitted to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Before an agency submits a collection of information
to OMB for approval, the agency shall provide 60-day notice in the
Federal Register, and otherwise consult with members of the public and
affected agencies concerning each proposed collection of information,
to solicit comments to:
<bullet> Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
<bullet> Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
<bullet> Enhance the quality, utility, and clarity of the
information to be collected; and
<bullet> Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology (e.g., permitting
electronic submission of responses).
G. National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA, 54
U.S.C. 306108) requires Federal agencies to take into account the
effects of their undertakings on historic properties and afford the
Advisory Council on Historic Preservation (ACHP) a reasonable
opportunity to comment with regard to the undertaking. ``Historic
property'' means any prehistoric or historic district, site, building,
structure, or object included in or eligible for inclusion in the
National Register of Historic Places maintained by the Secretary of the
Interior. This term includes artifacts, records, and material remains
that are related to and located within such properties, including
properties of traditional religious and cultural importance to an
Indigenous nation or Tribe or Native Hawaiian organization (see 36 CFR
800.16(l)).
The regulations implementing section 106 of the NHPA (36 CFR part
800) establish a process requiring Federal agencies to: (1) determine
whether the undertaking is a type of activity that could affect
historic properties; (2) identify historic properties in the area of
potential effects; (3) assess potential adverse effects; and (4)
resolve adverse effects. The regulations require that Federal agencies
consult with States, Tribes, and other interested parties when making
their effect determinations. NOAA has determined that the designation
of a national marine sanctuary and related rulemaking for sanctuary-
specific regulations meet the definition of an undertaking as defined
at Sec. 800.16(y).
In fulfilling its responsibilities under section 106 of the NHPA,
NOAA initiated the section 106 review process with the State Historic
Preservation Officer (SHPO) for the proposed sanctuary designation via
letter to the State Historic Preservation Division (SHPD) through the
Hawai[revaps]i Cultural Resource Information System on November 21,
2021. NOAA also provided notice to the Advisory Council on Historic
Preservation (ACHP) on November 21, 2021. These letters and supporting
documentation identified the proposed Area of Potential Effect (APE)
and began the process to identify consulting parties (CP). Invitations
were sent to over 500 families and organizations having lineal and
cultural connections to Papah[amacr]naumoku[amacr]kea, including
cultural practitioners, Native Hawaiian Organizations, fishers
(subsistence, recreational, commercial), and government agencies. As of
January 21, 2023, NOAA received 31 requests to be a CP for the proposed
sanctuary designation and NOAA has officially recognized the 31 CPs.
NOAA will complete the identification of historic properties in the
proposed APE and the assessment of the undertaking's potential to
affect historic properties in consultation with the recognized
consulting parties. To date, ONMS has conducted 6 meetings with
recognized consulting parties. The NHPA section 106 review is ongoing,
and additional consultations will be held following the release of the
DEIS and DMP. As the DEIS is a joint Federal-State action, the State is
also preparing a Cultural Impact Assessment (CIA) and Legal Analysis
pursuant to the Hawai[revaps]i Environmental Policy Act (HEPA),
Hawai[revaps]i Revised
[[Page 15287]]
Statutes (HRS) section 343, the corresponding Hawai[revaps]i
Administrative Rules (HAR) section 11-200.1, and the Environmental
Council's 1997 Guidelines for Assessing Cultural Impacts.
H. Sunken Military Craft Act
The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title
XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects
from unauthorized disturbance all sunken military craft that are owned
by the United States government, as well as foreign sunken military
craft that lie within United States waters, as defined in the SMCA.
Thousands of U.S. sunken military craft lie in waters around the world,
many accessible to looters, treasure hunters, and others who may cause
damage to them. These craft, and their associated contents, represent a
collection of non-renewable and significant historical resources that
often serve as war graves, carry unexploded ordnance, and contain oil
and other hazardous materials. By protecting sunken military craft, the
SMCA helps reduce the potential for irreversible harm to these
nationally important historical and cultural resources.
The 1942 Battle of Midway occurred both at Midway Atoll as well as
some 100-150 nautical miles north of the atoll in the northwestern
portion of Papah[amacr]naumoku[amacr]kea. Aircraft carriers from the
historic conflict have been located in the deep ocean, and multiple
aircraft and sunken military vessels have been surveyed within the
Midway Atoll Special Management Area. Yet, hundreds of aircraft, and
several other aircraft carriers and destroyers from the battle remain
to be discovered in Papah[amacr]naumoku[amacr]kea. Sunken military
craft fall under the jurisdiction of a number of Federal agencies such
as the U.S. Navy and the U.S. Coast Guard. NOAA and FWS coordinate very
closely with the U.S. Navy and any other applicable Federal agency,
foreign State, or State agency if found within State waters, regarding
activities directed at sunken military craft discovered within the
sanctuary.
K. Coastal Zone Management Act (CZMA)
Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C.
1456) requires Federal agencies to consult with a State's coastal
program on potential Federal agency activities that affect any land or
water use or natural resource of the coastal zone. Because the proposed
sanctuary lies partially within State waters, NOAA intends to submit a
copy of this proposed rule and supporting documents, including the
DEIS, to the State of Hawaii's Office of Planning and Sustainable
Development for evaluation of Federal consistency under the CZMA. NOAA
will publish the final rule and designation only after completion of
the Federal consistency process under the CZMA.
L. Executive Order 12898: Environmental Justice
Executive Order 12898 directs Federal agencies to identify and
address disproportionately high and adverse effects of their actions on
human health and the environment of minority or low-income populations.
The designation of national marine sanctuaries by NOAA helps to ensure
the enhancement of environmental quality for all populations in the
United States. The proposed sanctuary designation would not result in
disproportionate negative impacts on any minority or low-income
population. In addition, many of the potential impacts from designating
the proposed sanctuary would result in long-term or permanent
beneficial impacts by protecting resources, which may have a positive
impact on communities by providing employment and educational
opportunities, and potentially result in improved ecosystem services.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure; Coastal zone; Cultural
resources; Environmental; Protection; Fishing; Historic preservation;
Marine protected areas; Marine resources; Natural resources; National
marine sanctuaries; Penalties; Recreation and recreation areas;
Reporting and recordkeeping requirements; Shipwrecks; Wildlife.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service, National Oceanic and Atmospheric
Administration.
Regulatory Amendments and Additions
For the reasons set forth above, NOAA proposes to amend part 922,
title 15 of the Code of Federal Regulations as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
0
1. The authority citation for part 922 continues to read as follows:
Authority: 16 U.S.C. 1431 et seq.
0
2. Amend Sec. 922.1 by revising paragraph (a)(2) to read as follows:
Sec. 922.1 Purposes and applicability of the regulations.
(a) * * *
(2) To implement the designations of the national marine
sanctuaries, for which specific regulations appear in subpart F through
subsequent subparts, by regulating activities affecting them,
consistent with their respective terms of designation, in order to
protect, restore, preserve, manage, and thereby ensure the health,
integrity, and continued availability of the conservation,
recreational, ecological, historical, scientific, educational,
cultural, archaeological, and aesthetic resources and qualities of
these areas.
* * * * *
0
3. Revise Sec. 922.4 to read as follows:
Sec. 922.4 Boundaries.
Subpart F and subsequent subparts of this part set forth the
boundaries for all national marine sanctuaries.
0
4. Revise Sec. 922.6 to read as follows:
Sec. 922.6 Prohibited or otherwise regulated activities.
Subpart F and subsequent subparts of this part set forth site-
specific regulations applicable to the activities specified therein.
0
5. Amend Sec. 922.30 by:
0
a. Revising paragraph (a)(2);
0
b. Removing the word ``and'' at the end of paragraph (b)(5);
0
c. Removing the period at the end of paragraph (b)(6) and adding ``;
and'' in its place; and
0
d. Adding paragraphs (b)(7) and (8).
The additions read as follows:
Sec. 922.30 National Marine Sanctuary general permits
(a) * * *
(2) The permit procedures and criteria for all national marine
sanctuaries in which the proposed activity is to take place in
accordance with relevant site-specific regulations appearing in subpart
F and subsequent subparts of this part.
* * * * *
(b) * * *
(7) Native Hawaiian Practices--activities that allow for Native
Hawaiian practices within Papah[amacr]naumoku[amacr]kea and
(8) Recreation--recreational activities within
Papah[amacr]naumoku[amacr]kea limited to the Midway Atoll Special
Management Area.
0
6. Amend Sec. 922.33 by removing the word ``and'' at the end of
paragraph (a)(8), removing the period at the end of paragraph (a)(9)
and adding ``; and'' in
[[Page 15288]]
its place, and by adding paragraphs (a)(10), (11), and (12).
The additions read as follows:
Sec. 922.33 Review procedures and evaluation.
(a) * * *
(10) For Papah[amacr]naumoku[amacr]kea National Marine Sanctuary,
there is no practicable alternative to conducting the activity within
the sanctuary and the activity can be conducted with adequate
safeguards for the resources and ecological integrity of the sanctuary.
(11) For Native Hawaiian Practices within
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary:
(i) The activity is non-commercial and will not involve the sale of
any organism or material collected;
(ii) The purpose and intent of this activity is appropriate and
deemed necessary by traditional standards in the Native Hawaiian
culture (pono), and demonstrates an understanding of, and background
in, the traditional practice, and its associated values and protocols;
(iii) The activity benefits the resources of the Northwestern
Hawaiian Islands and the Native Hawaiian community; the activity
supports or advances the perpetuation of traditional knowledge and
ancestral connections of Native Hawaiians to the Northwestern Hawaiian
Islands; and
(iv) Any sanctuary resource harvested from the sanctuary will be
consumed in the sanctuary.
(12) For Recreation permits within Papah[amacr]naumoku[amacr]kea
National Marine Sanctuary:
(i) The activity is for the purpose of recreation within the Midway
Special Management Area;
(ii) The activity is not associated with any for-hire operation;
and
(iii) The activity does not involve any extractive use.
* * * * *
0
7. Amend 922.37 by revising paragraphs (a)(2) and (3) to read as
follows:
Sec. 922.37 Appeals of permitting decisions.
(a) * * *
(2) Except for Papah[amacr]naumoku[amacr]kea National Marine
Sanctuary, an applicant or a holder of a National Marine Sanctuary
permit issued pursuant to Sec. 922.30 or pursuant to site-specific
regulations appearing in subparts F through subsequent subparts of this
part;
(3) Except for Papah[amacr]naumoku[amacr]kea National Marine
Sanctuary, an applicant or a holder of a special use permit issued
pursuant to section 310 of the Act and Sec. 922.31;
* * * * *
0
8. Add subpart W to read as follows:
Subpart W--Papah[amacr]naumoku[amacr]kea National Marine Sanctuary
Sec.
922.240 Boundary.
922.241 Definitions.
922.242 Co-management.
922.243 Access.
922.244 Prohibited or otherwise regulated activities.
922.245 Permit procedures and criteria.
Appendix A to Subpart W of Part 922--Papah[amacr]naumoku[amacr]kea
National Marine Sanctuary Boundary Description and Coordinates
Appendix B to Subpart W of Part 922--Coordinates for the Outer
Sanctuary Zone
Appendix C to Subpart W of Part 922--Coordinates for the Midway
Atoll Special Management Area
Appendix D to Subpart W of Part 922--Coordinates for the Special
Preservation Areas (SPAs)
Appendix E to Subpart W of Part 922--Coordinates for the Ship
Reporting Area
Appendix F to Subpart W of Part 922--IMO Standard Reporting Format
and Data Syntax for Ship Reporting System
Subpart W--Papah[amacr]naumoku[amacr]kea National Marine Sanctuary
Sec. 922.240 Boundary.
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary consists of
an area of approximately 582,570 square miles (439,910 square nautical
miles) of Pacific Ocean waters surrounding the Northwest Hawaiian
Islands and the submerged lands thereunder. The precise boundary
coordinates are listed in appendix A to this subpart. The outer seaward
sanctuary boundary begins approximately 200 nautical miles SW of Kure
Atoll at Point 1 and continues from this point roughly north to each
successive point in numerical order to Point 232 which is approximately
204 nautical miles north of Kure Atoll. From Point 232 the sanctuary
boundary continues roughly ESE to each successive point in numerical
order to Point 609 which is approximately 200 nautical miles NE of
Necker Island. From Point 609 the sanctuary boundary continues south to
Point 610 which is approximately 90 nautical miles ENE of Necker
Island. From Point 610 the sanctuary boundary continues roughly east
and then SE and south to Point 635 which is approximately 50 nautical
miles east of Nihoa. From Point 635 the sanctuary boundary continues
roughly south and then SW and west to each successive point in
numerical order to Point 662 which is approximately 71 nautical miles
SW of Nihoa. From Point 662 the sanctuary boundary continues south to
Point 663 which is approximately 236 nautical miles SSW of Nihoa. From
Point 663 the sanctuary boundary continues roughly NW to each
successive point in numerical order to Point 703 which is approximately
200 nautical miles SSE of Necker Island. From Point 703 the boundary
continues roughly NW to each successive point in numerical order to
Point 1128 where it ends approximately 200 nautical miles SW of Kure
Atoll. The inner landward boundary of the sanctuary follows the
shoreline as defined by the State of Hawai[revaps]i (HAR Sec. 13-222).
Sec. 922.241 Definitions.
In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart. To the extent that a term
appears in Sec. 922.11 and this section, the definition in this
section governs.
Areas to be avoided (ATBA) means the four designated areas that
should be avoided by vessels that are conducting passage without
interruption through the sanctuary. The precise boundary coordinates
for the ATBAs are listed in appendix E to this subpart.
Bottomfish species means all species of bottomfish as defined at 50
CFR 665.201.
Commercial fishing means, as defined in the Magnuson-Stevens
Fishery Conservation and Management Act, fishing in which the fish
harvested, either in whole or in part, are intended to enter commerce
or enter commerce through sale, barter, or trade.
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.
Midway Atoll Special Management Area means the area of the
sanctuary surrounding Midway Atoll out to a distance of 12 nautical
miles. The coordinates are listed in appendix C to this subpart.
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 sanctuary resources for direct
personal consumption while in the sanctuary.
Non-commercial fishing means fishing that does not meet the
definition of commercial fishing in the Magnuson-Stevens Fishery
Conservation and
[[Page 15289]]
Management Act, and includes, but is not limited to, sustenance,
subsistence, traditional indigenous, and recreational fishing.
Office of Law Enforcement (OLE) means NOAA, National Marine
Fisheries, Office of Law Enforcement.
Outer Sanctuary Zone (OSZ) means the waters and submerged lands
extending from approximately 50 nautical miles from all islands and
emergent lands of the Northwestern Hawaiian Islands to the extent of
the seaward limit of the United States Exclusive Economic Zone (U.S.
EEZ) west of 163[deg] West Longitude. The precise boundary coordinates
for the OSZ are listed in appendix B to this subpart.
Particularly Sensitive Sea Area (PSSA) means an area that needs
special protection through action by IMO because of its significance
for recognized ecological, socio-economic, or scientific attributes
where such attributes may be vulnerable to damage by international
shipping activities.
Pelagic species means Western Pacific Pelagic Management Unit
Species as defined at 50 CFR 665.800.
Pono means appropriate, correct, and deemed necessary by
traditional standards in Hawaiian culture.
Recreational activity means an activity conducted for personal
enjoyment within the Midway Atoll Special Management Area that does not
result in the extraction of sanctuary 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.
Reporting area means the area of the proposed sanctuary that
extends outward ten nautical miles from the PSSA boundary, as
designated by the IMO, and excludes the ATBAs that fall within the PSSA
boundary. The precise boundary coordinates for the reporting area are
listed in appendix E to this subpart.
Scientific instrument means a device, vehicle, or tool used for
scientific purposes and is inclusive of structures, materials, or other
matter incidental to proper use of such device, vehicle, or tool.
Special Preservation Area (SPA) means discrete, biologically
important areas of the sanctuary within which uses are subject to
certain conditions, restrictions, and prohibitions, including but not
limited to access restrictions. The coordinates are listed in Appendix
D to this subpart.
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 (e.g., 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 sanctuary, and that is
incidental to an activity permitted under this part.
Vessel monitoring system (VMS) means a mobile transceiver unit that
is approved by NOAA's Office for Law Enforcement for use on vessels
permitted to access the sanctuary.
Sec. 922.242 Co-management.
NOAA's Office of National Marine Sanctuaries has primary
responsibility for the management of the sanctuary pursuant to the
National Marine Sanctuaries Act. However, as the sanctuary includes
State waters, NOAA will co-manage Papah[amacr]naumoku[amacr]kea
National Marine Sanctuary with the State of Hawai[revaps]i. The Office
of National Marine Sanctuaries may enter into a Memorandum of Agreement
with the State of Hawai[revaps]i regarding this collaboration that may
address, but not be limited to, sanctuary resource protection,
educational programs, permitting, research activities, development, and
threats to sanctuary resources.
Sec. 922.243 Access.
(a) Access to the Sanctuary is prohibited and thus unlawful except:
(1) When conducting emergency response actions, law enforcement
activities, and activities and exercises of the Armed Forces in
accordance with Sec. 922.244(b) and (c);
(2) Pursuant to a permit issued under Sec. 922.245;
(3) When conducting non-commercial fishing activities in the OSZ
authorized under the Magnuson-Stevens Fishery Conservation and
Management Act provided that no sale of harvested fish occurs;
(4) When conducting passage without interruption in accordance with
paragraphs (b), (c), and (d) of this section.
(b) A vessel may pass without interruption through the sanctuary
without requiring a permit as long as the vessel does not stop, anchor,
or engage in the prohibited activities listed in Sec. 922.244 within
the sanctuary;
(c) When conducting passage without interruption vessel discharges
are limited to the following:
(1) Vessel engine cooling water, weather deck runoff, and vessel
engine exhaust within Special Preservation Areas or the Midway Atoll
Special Management Area;
(2) Discharge incidental to vessel operations such as deck wash,
approved marine sanitation device effluent, cooling water, and engine
exhaust in areas other than Special Preservation Areas or the Midway
Atoll Special Management Area.
(d) For areas of the sanctuary that are contained within the
reporting area surrounding the PSSA designated by the International
Maritime Organization (IMO), a ship reporting system (CORAL SHIPREP)
specified below shall be in effect. The coordinates for the Reporting
Area are listed in appendix E to this subpart.
(1) The ship reporting system as specified in paragraphs (d)(3)
through (7) of this section does not apply to the following vessels:
(i) Vessels conducting emergency response actions, law enforcement
activities, and activities and exercises of the Armed Forces in
accordance with Sec. 922.244(b) and (c);
(ii) Vessels conducting activities pursuant to a permit issued
under Sec. 922.245;
(iii) Vessels conducting non-commercial fishing activities in the
OSZ authorized under the Magnuson-Stevens Fishery Conservation and
Management Act; and
(iv) Vessels entitled to sovereign immunity in accordance with
generally recognized principles of international law.
(2) The following vessels, passing through the reporting area of
the sanctuary without interruption must participate in the ship
reporting system as specified in paragraphs (d)(3) through (7) of this
section:
(i) Vessels of the United States of any size;
(ii) All other ships 300 gross tonnage or greater that are entering
or departing a United States port or place; and
(iv) All other ships of any size entering or departing a United
States port or place and experiencing an emergency while transiting
through the reporting area.
(3) All vessels passing through the reporting area of the sanctuary
without interruption other than those described in paragraph (d)(2) of
this section are encouraged to participate in the ship reporting system
set forth in paragraphs (d)(3) through (7) of this section.
(4) Immediately upon entering the reporting area, vessels described
in paragraph (d)(2) of this section must provide the following
information by email sent to <a href="/cdn-cgi/l/email-protection#bed0c9d6d790d0d1cad7d8d7dddfcad7d1d0cdfed0d1dfdf90d9d1c8"><span class="__cf_email__" data-cfemail="ec829b8485c2828398858a858f8d988583829fac82838d8dc28b839a">[email protected]</span></a> in the IMO
standard reporting format and data syntax shown in appendix F to this
subpart:
[[Page 15290]]
(i) Vessel name, call sign or ship station identity, flag, and IMO
identification number if applicable, and either Federal documentation
or State registration number if applicable;
(ii) Date, time (UTC) and month of entry;
(iii) Position;
(iv) True course;
(v) Speed in knots and tenths;
(vi) Destination and estimated time of arrival;
(vii) Intended route through the reporting area;
(viii) Vessel draft (in meters);
(ix) Categories of hazardous cargoes on board;
(x) Any vessel defects or deficiencies that restrict
maneuverability or impair normal navigation;
(xi) Any pollution incident or goods lost overboard within the
PSSA, the reporting area, or the U.S. EEZ;
(xii) Contact information for the vessel's agent or owner;
(xiii) Vessel size (length overall, gross tonnage) and type;
(xiv) Total number of persons on board;
(5) Immediately upon leaving the reporting area, vessels described
in paragraph (d)(2) of this section must provide the following
information by email sent to <a href="/cdn-cgi/l/email-protection#86e8f1eeefa8e8e9f2efe0efe5e7f2efe9e8f5c6e8e9e7e7a8e1e9f0"><span class="__cf_email__" data-cfemail="f59b829d9cdb9b9a819c939c9694819c9a9b86b59b9a9494db929a83">[email protected]</span></a> in the IMO
standard reporting format and data syntax shown in appendix F to this
subpart:
(i) Vessel name, call sign or ship station identity, flag, and IMO
identification number if applicable, and either Federal documentation
or State registration number if applicable;
(ii) Date, time (UTC), and month of exit;
(iii) Position; and
(iv) Any pollution incident or goods lost overboard within the
PSSA, the reporting area, or the U.S. EEZ.
(6) For vessels that are not equipped with on-board email
capability, advanced notice of entrance (as outlined in paragraph
(d)(4) of this section) shall be provided at least 72 hours, but not
more than one month, prior to entering the reporting area. Notification
of departure (as outlined in paragraph (d)(5) of this section) must be
provided within 12 hours of leaving. Notification under this paragraph
may be made by email, telephone, or fax, by contacting:
(i) Email: <a href="/cdn-cgi/l/email-protection#87e9f0efeea9e9e8f3eee1eee4e6f3eee8e9f4c7e9e8e6e6a9e0e8f1"><span class="__cf_email__" data-cfemail="b0dec7d8d99ededfc4d9d6d9d3d1c4d9dfdec3f0dedfd1d19ed7dfc6">[email protected]</span></a>;
(ii) Telephone: 1-808-395-6944 or 1-866-478-6944; or
(iii) Fax: 1-808-455-3093
(7) Further reports shall be made by the vessels described in
paragraph (d)(2) of this section, and are encouraged for the vessels
described in paragraph (d)(3) of this section, whenever there is a
change in navigation status or circumstances, particularly in relation
to the intended route, defects or deficiencies.
Sec. 922.244 Prohibited or otherwise regulated activities.
(a) The following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted within the
sanctuary, except as specified in paragraphs (b) through (f) of this
section:
(1) Exploring for, developing, or producing oil, gas, or minerals,
or any energy development activities;
(2) Using or attempting to use poisons, electrical charges, or
explosives in the collection or harvest of a sanctuary resource;
(3) Introducing or otherwise releasing an introduced species from
within or into the sanctuary;
(4) Deserting a vessel;
(5) Commercial fishing and possessing commercial fishing gear
except when stowed and not available for immediate use;
(6) Anchoring on or having a vessel anchored on any living or dead
coral with an anchor, anchor chain, or anchor rope;
(7) Non-commercial fishing and possessing non-commercial fishing
gear except when stowed and not available for immediate use;
(8) Drilling into, dredging, or otherwise altering the submerged
lands; or constructing, placing, or abandoning any structure, material,
or other matter on the submerged lands;
(9) 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 sanctuary
resource;
(10) Attracting any living sanctuary resource;
(11) Touching coral, living or dead;
(12) Swimming, snorkeling, or closed or open circuit SCUBA diving;
(13) Discharging or depositing any material or other matter into
the sanctuary, or discharging or depositing any material or other
matter outside of the sanctuary that subsequently enters the sanctuary
and injures or has the potential to injure any resources of the
sanctuary, except as described at Sec. 922.243 for vessel passage
without interruption; and
(14) Anchoring a vessel.
(b) The prohibitions in paragraph (a) of this section do not apply
to activities necessary to respond to emergencies threatening life,
property, or the environment, or to activities necessary for law
enforcement purposes.
(c) The prohibitions in paragraph (a) of this section do not apply
to activities and exercises of the U.S. Armed Forces (including those
carried out by the U.S. Coast Guard). This includes the U.S. Armed
Forces' response to emergencies posing an unacceptable threat to human
health or safety or to the marine environment and admitting of no other
feasible solution. All activities and exercises of the U.S. Armed
Forces shall be carried out in a manner that avoids, to the extent
practicable and consistent with operational requirements, adverse
impacts on sanctuary resources and qualities. These regulations shall
not limit or otherwise affect the U.S. Armed Forces discretion to use,
maintain, improve, manage, or control any property under their
administrative control or otherwise limit the availability of such
property for military mission purposes, including, but not limited to,
defensive areas and airspace reservations.
(d) The prohibitions in paragraphs (a)(7) through (14) of this
section do not apply to non-commercial fishing activities in the OSZ
authorized under the Magnuson-Stevens Fishery Conservation and
Management Act provided that no sale of harvested fish occurs.
(e) The prohibitions in paragraphs (a)(7) through (14) of this
section, do not apply to any activity conducted under and in accordance
with the scope, purpose, terms, and conditions of a sanctuary general
permit, or special use permit issued pursuant to subpart D of this
part. In no event, may the Director issue a National Marine Sanctuary
general permit or special use permit authorizing or otherwise approving
activities listed in paragraph (a)(8) of this section for anything
other than scientific instruments, when the activity occurs within the
OSZ.
(f) The prohibitions in paragraph (a) of this section shall not
restrict scientific exploration or research activities by or for the
Secretary of Commerce or the Secretary of the Interior when the
activity occurs within the OSZ.
Sec. 922.245 Permit procedures and criteria.
(a) A person may conduct an activity otherwise prohibited by Sec.
922.244(a)(7) through (14), if such activity is conducted in accordance
with the scope, purpose, terms, and conditions of, a permit issued
under this section and subpart D of this part.
(b) Applications for permits should be addressed to the NOAA Inouye
Regional Center, Office of National Marine Sanctuaries; ATT: Permit
Coordinator,
[[Page 15291]]
Papah[amacr]naumoku[amacr]kea, 1845 Wasp Blvd., Building 176, Honolulu,
HI 96818.
(c) The Secretary may authorize sustenance fishing outside of any
Special Preservation Area as a term or condition of any general permit
or special use permit issued under this section and subpart D of this
part. Sustenance fishing in the Midway Atoll 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 their 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 this part, including considering the extent
to which the conduct of the activity may diminish Sanctuary resources,
qualities, and ecological integrity, as well as any indirect,
secondary, or cumulative effects of the activity and the duration of
such effects. The Secretary will develop procedures for systematic
reporting of sustenance fishing.
(d) An owner or operator of a vessel that has been issued a general
permit or special use permit under this section and subpart D of this
part must ensure that such vessel has a NOAA OLE type-approved VMS on
board when operating within the sanctuary. OLE has authority over the
type of VMS used and 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. The owner or operator of a vessel must coordinate
with OLE to install and activate an approved VMS prior to departure.
(1) When a vessel's VMS is not operating properly at sea, 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:
(i) Manually communicating a vessel's location as directed by OLE;
or
(ii) Returning to port until the VMS is operable.
(2) The following activities regarding VMS are prohibited and thus
unlawful for any person to conduct or cause to be conducted:
(i) Operating any vessel within the sanctuary without an OLE type
approved VMS;
(ii) Failing to install, activate, repair, or replace a VMS prior
to leaving port;
(iii) Failing to operate and maintain a VMS on board the vessel at
all times;
(iv) Tampering with, damaging, destroying, altering, or in any way
distorting, rendering useless, inoperative, ineffective, or inaccurate
the VMS, or VMS signal;
(v) Failing to contact OLE or follow OLE instructions when
automatic position reporting has been interrupted;
(vi) Registering a VMS to more than one vessel at the same time;
(vii) Connecting or leaving connected additional equipment to a VMS
unit without the prior approval of OLE; and
(viii) Making a false statement, oral or written, to an authorized
officer regarding the installation, use, operation, or maintenance of a
VMS unit or communication service provider.
(3) As a condition of authorized access to the sanctuary, a vessel
owner or operator subject to the requirements for a VMS in this section
must allow OLE, the U.S. Coast Guard, 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 Secretary of Commerce and
the Secretary of the Interior may have access to, and use of, collected
data for scientific, statistical, and management purposes.
Appendix A to Subpart W of Part 922--Papah[amacr]naumoku[amacr]kea
National Marine Sanctuary Boundary Description and Coordinates
[Coordinates listed in this appendix are unprojected (Geographic)
and based on the North American Datum of 1983]
------------------------------------------------------------------------
Point No. Longitude Latitude
------------------------------------------------------------------------
1....................................... 180.00000 25.38976
2....................................... 179.99985 25.38982
3....................................... 179.96681 25.40451
4....................................... 179.93392 25.41950
5....................................... 179.90119 25.43478
6....................................... 179.86863 25.45034
7....................................... 179.83622 25.46619
8....................................... 179.78793 25.49050
9....................................... 179.75595 25.50707
10...................................... 179.72415 25.52391
11...................................... 179.69252 25.54104
12...................................... 179.66108 25.55844
13...................................... 179.62981 25.57612
14...................................... 179.59874 25.59408
15...................................... 179.56786 25.61231
16...................................... 179.53716 25.63081
17...................................... 179.50667 25.64959
18...................................... 179.47637 25.66863
19...................................... 179.44627 25.68794
20...................................... 179.41638 25.70751
21...................................... 179.38670 25.72735
22...................................... 179.35722 25.74745
23...................................... 179.32796 25.76781
24...................................... 179.28448 25.79883
25...................................... 179.25576 25.81983
26...................................... 179.22255 25.84463
27...................................... 179.18175 25.87583
28...................................... 179.15383 25.89770
29...................................... 179.12613 25.91982
30...................................... 179.09868 25.94218
31...................................... 179.07146 25.96479
32...................................... 179.03108 25.99915
33...................................... 179.00447 26.02235
34...................................... 178.97810 26.04578
35...................................... 178.93902 26.08137
36...................................... 178.91329 26.10537
37...................................... 178.88781 26.12961
38...................................... 178.86259 26.15407
39...................................... 178.82525 26.19117
40...................................... 178.80068 26.21618
41...................................... 178.77639 26.24141
42...................................... 178.75236 26.26685
43...................................... 178.71683 26.30540
44...................................... 178.69349 26.33136
45...................................... 178.65901 26.37068
46...................................... 178.63637 26.39715
47...................................... 178.61378 26.42409
48...................................... 178.59171 26.45096
49...................................... 178.56993 26.47801
50...................................... 178.54844 26.50526
51...................................... 178.52725 26.53270
52...................................... 178.49601 26.57420
53...................................... 178.46544 26.61611
54...................................... 178.44544 26.64427
55...................................... 178.41601 26.68685
56...................................... 178.39677 26.71544
57...................................... 178.37784 26.74421
58...................................... 178.35922 26.77314
59...................................... 178.34092 26.80223
60...................................... 178.30653 26.85803
61...................................... 178.28885 26.88744
62...................................... 178.26294 26.93185
63...................................... 178.24606 26.96164
64...................................... 178.22951 26.99158
65...................................... 178.21329 27.02166
66...................................... 178.19632 27.05394
67...................................... 178.17402 27.09774
68...................................... 178.15895 27.12831
69...................................... 178.14422 27.15901
70...................................... 178.12274 27.20529
71...................................... 178.10884 27.23631
72...................................... 178.08864 27.28305
73...................................... 178.06920 27.33006
74...................................... 178.05667 27.36154
75...................................... 178.03853 27.40896
76...................................... 178.02687 27.44071
77...................................... 178.01003 27.48851
78...................................... 177.99924 27.52051
79...................................... 177.98881 27.55259
80...................................... 177.97873 27.58477
81...................................... 177.96901 27.61703
82...................................... 177.95509 27.66559
83...................................... 177.94198 27.71432
84...................................... 177.93368 27.74690
85...................................... 177.92568 27.77984
86...................................... 177.91811 27.81256
87...................................... 177.90744 27.86176
88...................................... 177.90079 27.89464
89...................................... 177.89149 27.94406
90...................................... 177.88574 27.97707
91...................................... 177.88037 28.01014
92...................................... 177.87300 28.05982
93...................................... 177.86647 28.10959
94...................................... 177.86258 28.14281
95...................................... 177.85744 28.19271
96...................................... 177.85447 28.22601
[[Page 15292]]
97...................................... 177.85073 28.27600
98...................................... 177.84871 28.30936
99...................................... 177.84706 28.34273
100..................................... 177.84529 28.39281
101..................................... 177.84436 28.44291
102..................................... 177.84422 28.47631
103..................................... 177.84445 28.50971
104..................................... 177.84551 28.55981
105..................................... 177.84670 28.59348
106..................................... 177.84844 28.63098
107..................................... 177.85148 28.68101
108..................................... 177.85399 28.71434
109..................................... 177.85761 28.75561
110..................................... 177.86197 28.79830
111..................................... 177.86786 28.84813
112..................................... 177.87226 28.88131
113..................................... 177.87543 28.90360
114..................................... 177.87967 28.93173
115..................................... 177.88514 28.96554
116..................................... 177.89133 29.00123
117..................................... 177.90063 29.05066
118..................................... 177.90735 29.08379
119..................................... 177.91806 29.13300
120..................................... 177.92567 29.16572
121..................................... 177.93780 29.21468
122..................................... 177.94636 29.24722
123..................................... 177.95989 29.29590
124..................................... 177.96959 29.32896
125..................................... 177.97946 29.36122
126..................................... 177.98970 29.39340
127..................................... 178.00575 29.44148
128..................................... 178.01692 29.47341
129..................................... 178.03438 29.52113
130..................................... 178.04647 29.55280
131..................................... 178.06531 29.60012
132..................................... 178.08497 29.64717
133..................................... 178.09853 29.67840
134..................................... 178.11268 29.71000
135..................................... 178.13426 29.75642
136..................................... 178.15665 29.80255
137..................................... 178.17203 29.83313
138..................................... 178.19577 29.87875
139..................................... 178.21216 29.90921
140..................................... 178.22879 29.93930
141..................................... 178.25439 29.98416
142..................................... 178.27525 30.01949
143..................................... 178.29311 30.04905
144..................................... 178.31861 30.09001
145..................................... 178.34009 30.12350
146..................................... 178.35931 30.15271
147..................................... 178.38857 30.19588
148..................................... 178.41018 30.22681
149..................................... 178.43934 30.26737
150..................................... 178.47063 30.30946
151..................................... 178.49239 30.33792
152..................................... 178.51400 30.36556
153..................................... 178.54703 30.40666
154..................................... 178.57973 30.44608
155..................................... 178.60482 30.47552
156..................................... 178.62805 30.50216
157..................................... 178.65341 30.53061
158..................................... 178.68811 30.56854
159..................................... 178.71589 30.59815
160..................................... 178.75298 30.63662
161..................................... 178.77809 30.66199
162..................................... 178.80351 30.68713
163..................................... 178.84220 30.72443
164..................................... 178.88157 30.76121
165..................................... 178.90818 30.78543
166..................................... 178.94864 30.82133
167..................................... 178.97598 30.84496
168..................................... 179.00360 30.86835
169..................................... 179.04556 30.90297
170..................................... 179.07393 30.92578
171..................................... 179.11693 30.95947
172..................................... 179.14594 30.98161
173..................................... 179.18995 31.01433
174..................................... 179.21963 31.03582
175..................................... 179.26463 31.06757
176..................................... 179.29516 31.08855
177..................................... 179.34112 31.11928
178..................................... 179.38763 31.14941
179..................................... 179.41894 31.16915
180..................................... 179.45050 31.18861
181..................................... 179.49827 31.21728
182..................................... 179.54657 31.24532
183..................................... 179.57905 31.26365
184..................................... 179.61792 31.28512
185..................................... 179.65085 31.30287
186..................................... 179.70065 31.32895
187..................................... 179.73411 31.34598
188..................................... 179.77707 31.36728
189..................................... 179.81095 31.38371
190..................................... 179.86214 31.40779
191..................................... 179.89652 31.42346
192..................................... 179.94844 31.44640
193..................................... 179.98329 31.46131
194..................................... -180.00000 31.46823
195..................................... -179.96410 31.48309
196..................................... -179.92880 31.49722
197..................................... -179.89333 31.51105
198..................................... -179.83980 31.53119
199..................................... -179.78591 31.55062
200..................................... -179.74978 31.56318
201..................................... -179.71350 31.57542
202..................................... -179.65880 31.59317
203..................................... -179.62215 31.60460
204..................................... -179.56692 31.62114
205..................................... -179.51138 31.63695
206..................................... -179.47371 31.64721
207..................................... -179.41770 31.66179
208..................................... -179.38021 31.67109
209..................................... -179.33210 31.68252
210..................................... -179.28243 31.69383
211..................................... -179.23675 31.70369
212..................................... -179.19878 31.71149
213..................................... -179.16071 31.71896
214..................................... -179.10344 31.72953
215..................................... -179.06516 31.73615
216..................................... -179.00758 31.74546
217..................................... -178.94983 31.75399
218..................................... -178.90738 31.75980
219..................................... -178.86874 31.76473
220..................................... -178.82975 31.76934
221..................................... -178.79099 31.77358
222..................................... -178.75218 31.77748
223..................................... -178.71332 31.78104
224..................................... -178.67441 31.78425
225..................................... -178.63547 31.78712
226..................................... -178.59650 31.78964
227..................................... -178.55749 31.79182
228..................................... -178.51846 31.79366
229..................................... -178.47941 31.79515
230..................................... -178.43412 31.79649
231..................................... -178.39504 31.79729
232..................................... -178.35596 31.79775
233..................................... -178.32396 31.79786
234..................................... -178.28487 31.79769
235..................................... -178.24553 31.79717
236..................................... -178.20645 31.79631
237..................................... -178.16738 31.79510
238..................................... -178.12834 31.79354
239..................................... -178.08931 31.79165
240..................................... -178.05031 31.78940
241..................................... -178.01134 31.78682
242..................................... -177.97241 31.78389
243..................................... -177.93351 31.78061
244..................................... -177.89466 31.77699
245..................................... -177.85585 31.77303
246..................................... -177.81646 31.76865
247..................................... -177.77776 31.76401
248..................................... -177.73912 31.75902
249..................................... -177.70055 31.75369
250..................................... -177.66205 31.74802
251..................................... -177.62362 31.74202
252..................................... -177.58526 31.73567
253..................................... -177.54140 31.72800
254..................................... -177.50321 31.72097
255..................................... -177.46512 31.71361
256..................................... -177.42712 31.70592
257..................................... -177.38921 31.69789
258..................................... -177.35141 31.68952
259..................................... -177.31372 31.68082
260..................................... -177.27613 31.67179
261..................................... -177.23866 31.66242
262..................................... -177.20131 31.65273
263..................................... -177.16094 31.64185
264..................................... -177.12384 31.63149
265..................................... -177.08687 31.62082
266..................................... -177.04995 31.60978
267..................................... -176.99406 31.60543
268..................................... -176.95227 31.60174
269..................................... -176.91352 31.59795
270..................................... -176.87481 31.59382
271..................................... -176.83616 31.58934
272..................................... -176.79756 31.58453
273..................................... -176.73979 31.57666
274..................................... -176.70136 31.57100
275..................................... -176.66300 31.56499
276..................................... -176.60561 31.55534
277..................................... -176.56718 31.54844
278..................................... -176.52911 31.54125
279..................................... -176.49114 31.53372
280..................................... -176.45325 31.52586
281..................................... -176.41282 31.51708
282..................................... -176.37095 31.50759
283..................................... -176.33338 31.49873
284..................................... -176.29414 31.48910
285..................................... -176.23818 31.47469
286..................................... -176.20102 31.46467
287..................................... -176.14552 31.44902
288..................................... -176.10869 31.43818
289..................................... -176.07199 31.42701
290..................................... -176.03543 31.41553
291..................................... -175.99902 31.40371
292..................................... -175.94468 31.38539
293..................................... -175.90865 31.37278
294..................................... -175.87278 31.35985
295..................................... -175.83644 31.34637
296..................................... -175.80089 31.33281
297..................................... -175.76551 31.31893
298..................................... -175.72777 31.30370
299..................................... -175.67361 31.30264
300..................................... -175.62462 31.30118
301..................................... -175.58577 31.29962
302..................................... -175.56300 31.29856
303..................................... -175.50480 31.29533
304..................................... -175.44667 31.29132
305..................................... -175.38862 31.28654
306..................................... -175.33066 31.28099
307..................................... -175.27281 31.27467
308..................................... -175.21509 31.26757
309..................................... -175.15433 31.25928
310..................................... -175.10019 31.25117
311..................................... -175.05021 31.24316
312..................................... -174.99307 31.23327
313..................................... -174.93613 31.22261
314..................................... -174.87938 31.21120
315..................................... -174.82112 31.19865
316..................................... -174.78357 31.19012
317..................................... -174.74612 31.18126
318..................................... -174.69017 31.16735
[[Page 15293]]
319..................................... -174.65301 31.15766
320..................................... -174.61598 31.14764
321..................................... -174.57907 31.13730
322..................................... -174.54229 31.12663
323..................................... -174.48737 31.11001
324..................................... -174.43277 31.09266
325..................................... -174.39656 31.08069
326..................................... -174.36049 31.06840
327..................................... -174.32457 31.05579
328..................................... -174.28881 31.04287
329..................................... -174.25322 31.02962
330..................................... -174.21779 31.01607
331..................................... -174.16782 30.99630
332..................................... -174.12317 30.97807
333..................................... -174.08834 30.96342
334..................................... -174.03646 30.94087
335..................................... -174.00210 30.92545
336..................................... -173.95092 30.90176
337..................................... -173.91394 30.88410
338..................................... -173.88027 30.86763
339..................................... -173.83015 30.84236
340..................................... -173.79699 30.82515
341..................................... -173.74828 30.79912
342..................................... -173.71286 30.77965
343..................................... -173.67333 30.75735
344..................................... -173.63202 30.73339
345..................................... -173.60020 30.71444
346..................................... -173.56860 30.69522
347..................................... -173.52165 30.66586
348..................................... -173.49065 30.64594
349..................................... -173.45306 30.62120
350..................................... -173.40817 30.59091
351..................................... -173.37804 30.57004
352..................................... -173.34479 30.54651
353..................................... -173.30046 30.51431
354..................................... -173.25673 30.48153
355..................................... -173.22791 30.45935
356..................................... -173.19936 30.43692
357..................................... -173.15960 30.40490
358..................................... -173.12000 30.37227
359..................................... -173.09242 30.34897
360..................................... -173.06512 30.32542
361..................................... -173.02470 30.28965
362..................................... -172.98494 30.25335
363..................................... -172.95880 30.22886
364..................................... -172.93295 30.20413
365..................................... -172.89474 30.16662
366..................................... -172.85721 30.12860
367..................................... -172.83096 30.10131
368..................................... -172.79458 30.06247
369..................................... -172.77072 30.03631
370..................................... -172.74717 30.00995
371..................................... -172.71244 29.97001
372..................................... -172.67843 29.92961
373..................................... -172.65616 29.90243
374..................................... -172.62336 29.86129
375..................................... -172.60190 29.83362
376..................................... -172.57892 29.80334
377..................................... -172.55812 29.77530
378..................................... -172.52756 29.73290
379..................................... -172.50760 29.70441
380..................................... -172.48798 29.67574
381..................................... -172.46870 29.64690
382..................................... -172.44976 29.61789
383..................................... -172.42200 29.57406
384..................................... -172.40392 29.54464
385..................................... -172.37746 29.50021
386..................................... -172.35178 29.45544
387..................................... -172.33510 29.42540
388..................................... -172.31074 29.38007
389..................................... -172.29495 29.34967
390..................................... -172.27193 29.30382
391..................................... -172.25703 29.27308
392..................................... -172.23535 29.22673
393..................................... -172.22135 29.19567
394..................................... -172.20103 29.14885
395..................................... -172.18794 29.11749
396..................................... -172.18269 29.10461
397..................................... -172.14425 29.10857
398..................................... -172.10644 29.11211
399..................................... -172.06858 29.11531
400..................................... -172.01172 29.11947
401..................................... -171.95480 29.12286
402..................................... -171.91682 29.12469
403..................................... -171.87882 29.12618
404..................................... -171.82179 29.12776
405..................................... -171.78376 29.12839
406..................................... -171.73360 29.12869
407..................................... -171.67655 29.12830
408..................................... -171.63852 29.12761
409..................................... -171.60049 29.12658
410..................................... -171.54349 29.12439
411..................................... -171.50552 29.12249
412..................................... -171.45928 29.11977
413..................................... -171.42136 29.11719
414..................................... -171.38347 29.11427
415..................................... -171.32671 29.10925
416..................................... -171.28892 29.10547
417..................................... -171.25118 29.10135
418..................................... -171.21350 29.09689
419..................................... -171.17551 29.09204
420..................................... -171.13794 29.08690
421..................................... -171.10043 29.08142
422..................................... -171.04430 29.07256
423..................................... -171.00697 29.06623
424..................................... -170.96972 29.05956
425..................................... -170.93255 29.05256
426..................................... -170.89547 29.04522
427..................................... -170.85848 29.03755
428..................................... -170.82159 29.02954
429..................................... -170.78479 29.02120
430..................................... -170.74809 29.01253
431..................................... -170.69325 28.99890
432..................................... -170.65683 28.98940
433..................................... -170.60242 28.97453
434..................................... -170.56630 28.96421
435..................................... -170.53030 28.95356
436..................................... -170.49444 28.94259
437..................................... -170.44089 28.92552
438..................................... -170.40537 28.91374
439..................................... -170.36999 28.90164
440..................................... -170.33476 28.88922
441..................................... -170.29968 28.87648
442..................................... -170.24735 28.85678
443..................................... -170.21266 28.84325
444..................................... -170.16441 28.82380
445..................................... -170.11868 28.81843
446..................................... -170.06241 28.81110
447..................................... -170.00627 28.80301
448..................................... -169.95029 28.79415
449..................................... -169.89448 28.78454
450..................................... -169.85736 28.77770
451..................................... -169.80186 28.76683
452..................................... -169.74655 28.75519
453..................................... -169.69147 28.74281
454..................................... -169.63661 28.72968
455..................................... -169.60017 28.72051
456..................................... -169.54573 28.70614
457..................................... -169.49155 28.69103
458..................................... -169.45559 28.68055
459..................................... -169.40188 28.66422
460..................................... -169.34847 28.64716
461..................................... -169.29538 28.62937
462..................................... -169.24262 28.61087
463..................................... -169.19019 28.59165
464..................................... -169.13811 28.57172
465..................................... -169.08640 28.55108
466..................................... -169.03506 28.52974
467..................................... -169.00106 28.51513
468..................................... -168.95037 28.49263
469..................................... -168.90010 28.46945
470..................................... -168.85025 28.44559
471..................................... -168.81726 28.42931
472..................................... -168.76813 28.40432
473..................................... -168.71946 28.37867
474..................................... -168.67125 28.35237
475..................................... -168.62352 28.32541
476..................................... -168.58344 28.30203
477..................................... -168.53902 28.30813
478..................................... -168.48296 28.31510
479..................................... -168.42677 28.32131
480..................................... -168.37049 28.32675
481..................................... -168.33291 28.32995
482..................................... -168.27648 28.33411
483..................................... -168.21998 28.33750
484..................................... -168.16342 28.34011
485..................................... -168.10683 28.34195
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767..................................... -166.91453 20.36345
768..................................... -166.94911 2
[…truncated; see source link]Indexed from Federal Register on March 1, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.