Rule2024-30576
Papahānaumokuākea National Marine Sanctuary; Final Regulations
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
January 16, 2025
Effective
January 16, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NOAA is designating Papah[amacr]naumoku[amacr]kea National Marine Sanctuary (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 sanctuary consists of an area of approximately 582,570 square statute miles (439,910 square nautical miles) of Pacific Ocean waters surrounding the Northwestern Hawaiian Islands and the submerged lands thereunder. NOAA is establishing the terms of designation for the sanctuary and the regulations to implement the national marine sanctuary designation. NOAA has also published a final environmental impact statement (final EIS) in coordination with the State of Hawai[revaps]i, final management plan, and Record of Decision.
Full Text
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<title>Federal Register, Volume 90 Issue 10 (Thursday, January 16, 2025)</title>
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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Rules and Regulations]
[Pages 4856-4913]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30576]
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Vol. 90
Thursday,
No. 10
January 16, 2025
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 922
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary; Final
Regulations; Final Rule
Federal Register / Vol. 90 , No. 10 / Thursday, January 16, 2025 /
Rules and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 240213-0047]
RIN 0648-BL33
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary; Final
Regulations
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Final rule; notification of availability of final management
plan and Record of Decision.
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SUMMARY: NOAA is designating Papah[amacr]naumoku[amacr]kea National
Marine Sanctuary (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
sanctuary consists of an area of approximately 582,570 square statute
miles (439,910 square nautical miles) of Pacific Ocean waters
surrounding the Northwestern Hawaiian Islands and the submerged lands
thereunder. NOAA is establishing the terms of designation for the
sanctuary and the regulations to implement the national marine
sanctuary designation. NOAA has also published a final environmental
impact statement (final EIS) in coordination with the State of
Hawai[revaps]i, final management plan, and Record of Decision.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and
regulations shall take effect and become final after the close of a
review period of forty-five days of continuous session of Congress,
beginning on the date on which this Federal rulemaking is published,
which is January 16, 2025. During that review period, the Governor of
the State of Hawai[revaps]i may certify to the Secretary of Commerce
that the designation or any of its terms is unacceptable, in which case
the designation or any unacceptable term shall not take effect in State
waters of the sanctuary. The public can track days of Congressional
session at the following website: <a href="https://www.congress.gov/days-in-session">https://www.congress.gov/days-in-session</a>. NOAA will publish an announcement of the effective date of the
final regulations in the Federal Register.
ADDRESSES: Copies of the final environmental impact statement (EIS) and
management plan described in this rule and the record of decision (ROD)
are 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#eda89f848ec3bf828f889f999ead83828c8cc38a829b"><span class="__cf_email__" data-cfemail="0742756e642955686562757374476968666629606871">[email protected]</span></a> or 808-294-7470.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
The NMSA (16 U.S.C. 1431 et seq.) authorizes the Secretary of
Commerce 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 esthetic
qualities. Day-to-day management of national marine sanctuaries has
been delegated by the Secretary of Commerce to NOAA. The primary
objective of the NMSA is to protect the resources of the National
Marine Sanctuary System. NOAA is designating 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 (DOC), the Department of the Interior (DOI), the
State of Hawai[revaps]i, and the Office of Hawaiian Affairs (OHA).
The 2000 Amendments to the NMSA authorized designation of a
Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (Reserve) to
be managed by the Secretary of Commerce. In December 2000, President
Clinton issued Executive Order 13178 that began the public process to
establish the Reserve, and directed the Secretary of Commerce to
initiate the process to designate the Reserve as a national marine
sanctuary. In January 2001, President Clinton issued Executive Order
13196 finalizing the establishment of the Reserve.
In 2006, President Bush established PMNM through Proclamation 8031
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, President Obama established the MEA through Proclamation
9478, which included the waters and submerged lands seaward of the PMNM
to the extent of the seaward limit of the United States Exclusive
Economic Zone (U.S. EEZ) west of 163[deg] West Longitude. The MEA
includes 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, further directed NOAA to initiate the process
to designate the Monument as a national marine sanctuary.
The 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 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 Northwestern 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.
The sanctuary is a place of unique environmental resources that
provide large-scale ecosystem services for both
[[Page 4857]]
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 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, with some listed as endangered under the Endangered
Species Act. 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 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 the people of Hawai[revaps]i and the Native Hawaiian
culture. Papah[amacr]naumoku[amacr]kea is as much a spiritual space as
it is a physical geographical area, 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 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 sunken
military vessels and hundreds of sunken military aircraft on the
seafloor. In addition to Navy steamers and aircraft, there are whaling
ships, ancient Japanese sailing ships known as junks, motorized East
Asian style fishing vessels known as 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 NMSA (16 U.S.C. 1431 et seq.) authorizes the Secretary of
Commerce 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;
<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;
<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)); and
<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 is designating the marine areas of the Monument as a national
marine sanctuary. The purpose of this action is to provide
comprehensive and coordinated conservation and management of the marine
areas of Papah[amacr]naumoku[amacr]kea 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 designating 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
Papah[amacr]naumoku[amacr]kea ecosystems, wildlife, and cultural and
maritime heritage resources;
<bullet> Authorize NOAA to exercise enforcement authorities,
including the assessment of civil penalties for violations of
provisions of the NMSA and regulations and permits issued pursuant to
the NMSA (16 U.S.C. 1437);
<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; and
<bullet> require interagency consultation for any Federal agency
action that is likely to destroy, cause the loss of, or injure any
sanctuary resource.
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 Papah[amacr]naumoku[amacr]kea Marine
National Monument (86 FR 64904). The notice of intent stated that NOAA
would prepare a draft EIS per the requirements of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and the NMSA.
The notice of intent 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 final EIS as Appendix F.
2. Public Comment on Draft Designation Materials
On March 1, 2024, NOAA published a notice of proposed rulemaking
and a notice of availability of the draft EIS (89 FR 15272) to release
a proposed rule, draft EIS, and draft sanctuary management plan; and to
request public comments on the proposed sanctuary designation
documents. On March 8, 2024, the State of Hawai[revaps]i also informed
the public about the availability of the draft EIS through an
announcement in
[[Page 4858]]
its bulletin, The Environmental Notice, per the Hawai[revaps]i
Environmental Policy Act (HEPA), Hawai[revaps]i Revised Statutes (HRS)
Chapter 343-3(c). The USFWS, the State of Hawai[revaps]i, and the
Department of the Navy served as cooperating agencies in reviewing and
assisting with the development of the draft EIS.
The public comment period took place over the course of 68 days
from March 1 to May 7, 2024. Public meetings were held to provide
additional information and to receive public input in the form of oral
and written comments. Comments were accepted in both English and
[revaps][omacr]lelo Hawai[revaps]i during 11 public meetings, held
between April 6-18, 2024, including two virtual and nine in-person
public meetings on O[revaps]ahu, Kaua[revaps]i, Hawai[revaps]i Island,
Maui, and Moloka[revaps]i. Comments were also accepted through the
Federal eRulemaking portal and by traditional mail through May 7, 2024,
both in English and [revaps][omacr]lelo Hawai[revaps]i. An estimated
237 people attended the 11 public meetings and 61 individuals provided
oral comments. During the public comment period, 488 written comments
and 13,385 form letters were received from individuals, organizations,
and agencies. A total of 13,934 comments were received, with the
overwhelming majority in support of sanctuary designation.
Major themes of comments included sanctuary access, permitting,
prohibitions, enforcement, Native Hawaiian indigenous rights and
cultural integration, fishing, co-management, resource protection,
education and outreach, partnerships, and community participation.
After the public comment period closed, the comments were carefully
reviewed and cataloged by substantive issues contained in the comments.
In preparing the final EIS, final sanctuary management plan, and final
rule, NOAA and the State of Hawai[revaps]i considered comments received
on the draft designation documents, identified substantive comments,
and provided responses to these comments. A summary of these comments
and the corresponding responses from NOAA are provided in the final EIS
Appendix K and in Section V of this rulemaking. In response to these
substantive comments, NOAA clarified information and made changes to
this final rule, the final EIS, and the final sanctuary management
plan, as described further below.
3. Development of Terms of Designation and Regulations
Section 304(a)(4) of the NMSA requires that the terms of
designation include: (1) the geographic area that is 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 regulations. The designation of the sanctuary
will not replace the area's current status as a marine national
monument. Existing authorities, including management authorities of all
Monument co-trustees, will remain in effect. Sanctuary designation will
supplement the existing provisions for management of the Monument and
protect resources in the Northwestern Hawaiian Islands. To develop
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
Papah[amacr]naumoku[amacr]kea 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 rule for the sanctuary. Sanctuary
designation will only add to, and will 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 achieve consistency in regulation and management across the
sanctuary. The final 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
sanctuary.
In developing this final rule and the sanctuary terms of
designation, NOAA also considered: (1) information received through
public scoping and public review of the draft designation documents,
cooperating agency review, and coordination with the Monument co-
trustees through the seven-member Monument Management Board, which
consists of NOAA ONMS, NOAA Fisheries, 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 OHA; and (2) information from analysis of issues in the EIS,
interagency coordination, and internal staff analysis and expertise.
NOAA also consulted with the Western Pacific Regional Fishery
Management Council as required under the NMSA.
Following publication of the proposed rule, in consideration of
public comments and further review, NOAA made minor changes to the
terms of designation and the regulations which are described in detail
in Section III of this final rule. NOAA provides a detailed discussion
of the final regulations in Section IV, subsection A through O, of this
rule. The text of the final regulations is presented at the end of this
rule.
4. Development of Final Management Plan
A final sanctuary management plan 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 final
sanctuary management plan: (1) articulates the sanctuary's vision,
mission, goals, and objectives; (2) describes the management activities
and initiatives that NOAA will conduct; and (3) provides strategies and
assessment measures to guide the sanctuary's short- and mid-range
management. In response to public comments, NOAA made minor changes to
the final sanctuary management plan, which is included as Appendix A to
the final EIS.
5. Final Environmental Impact Statement
In accordance with NEPA (42 U.S.C. 4321 et seq.), the NMSA, and
HEPA (HRS Chapter 343, HAR Chapter 11-200.1), NOAA and the State of
Hawai[revaps]i released a final EIS for the national marine sanctuary
designation in advance of the publication of this final rule. NOAA is
the lead Federal agency in the preparation of the final EIS. The USFWS,
State of Hawai[revaps]i, the Department of the Navy, and OHA were
cooperating agencies for the final EIS. The final EIS describes the
purpose and need for the proposed action of
[[Page 4859]]
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 designation including by
comparing the beneficial and adverse impacts among alternatives. NOAA
has provided a section in the final EIS (see Section 1.5) to outline
the substantive changes made between the draft EIS and final EIS.
The final EIS 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:
<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,
the Battle of Midway National Memorial, 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 Northwestern
Hawaiian Islands Coral Reef Ecosystem Reserve, Midway Atoll and
Hawaiian Islands National Wildlife Refuges, the Battle of Midway
National Memorial, 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,
but excludes waters within the Midway Atoll and Hawaiian Islands
National Wildlife Refuges and the Battle of Midway National Memorial.
These excluded waters include portions of the State of Hawai[revaps]i
Northwestern Hawaiian Islands Marine Refuge and the Northwestern
Hawaiian Islands Coral Reef Ecosystem Reserve that overlap with
national wildlife refuge waters. The area encompassed in Alternative 3
is approximately 581,263 square miles (438,923 square nautical miles).
5. Final Preferred Alternative
In accordance with NEPA (42 U.S.C. 4321 et seq.) and based on
public comments on the draft designation materials and further review,
NOAA has maintained Alternative 1 as the agency-preferred alternative
(preferred alternative) based on its comparative merits; this
alternative serves as the foundation of this final rule (Section 3.4 of
the final EIS presents a map and details of this alternative). NOAA
selected its final preferred alternative after considering input from
the Monument Management Board, the State of Hawai[revaps]i, cooperating
agencies, other agencies consulted, and public comments provided on the
draft designation documents. Through the analysis in the final EIS,
NOAA has determined that the final 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 final 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 final 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 National Wildlife Refuge and Hawaiian
Islands National Wildlife Refuge, which are the areas of the sanctuary
subject to the highest level of human activity.
II. Terms of Designation for Papah[amacr]naumoku[amacr]kea National
Marine Sanctuary
Section 304(a)(4) of NMSA as amended, 16 U.S.C. 1434(a)(4),
requires that the terms of designation be described at the time a new
sanctuary is designated, including the geographic area to be included
within the sanctuary, the characteristics of the area that give it
conservation, recreational, ecological, historical, research,
educational, or esthetic value, and the types of activities that will
be subject to regulation to protect those characteristics.
The following represents the terms of designation:
Preamble
Under the authority of the National Marine Sanctuaries Act, as
amended (the ``Act'' or ``NMSA''), 16 U.S.C. 1431 et seq.,
approximately 582,570 square mi (439,910 square nmi) 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 esthetic 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 esthetic 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.
[[Page 4860]]
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 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 Marine Mammal Protection Act, with some listed as endangered
under the Endangered Species Act. At least a quarter of the nearly
7,000 known marine species in the region are found nowhere else on
Earth.
The area of the sanctuary is also a place of historical and
cultural significance. The area of the 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 sunken military
vessels and hundreds of sunken military aircraft are scattered across
the seafloor. In addition to Navy steamers and aircraft, there are
whaling ships, ancient Japanese sailing ships known as junks, motorized
East Asian style fishing vessels known as 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 the people of Hawai[revaps]i and the 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 space as it is a physical geographical area, 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 esthetic resources or
qualities of the area:
1. Access to the sanctuary;
2. Ship reporting, ship routeing, and other shipping activities;
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;
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;
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;
24. Recreational activities; and
25. Interfering with, obstructing, delaying, or preventing an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the NMSA or any regulation or permit
issued under the NMSA.
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 Hawai[revaps]i state
waters within the sanctuary if the Governor of Hawai[revaps]i 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. Changes from Proposed to Final Regulations
Based on public comments received between March 1 and May 7, 2024,
internal deliberations, consultations, engagement with cooperating
agencies, and meetings with constituents, NOAA has made the following
changes to the proposed rule and corresponding changes to the final EIS
and sanctuary management plan.
A. Definitions
NOAA added the term ``categories of hazardous cargoes'' to 15 CFR
922.24, the site-specific definitions. ``Categories of hazardous
cargoes'' is defined in PMNM regulations, 50 CFR 404.3, and is added to
the final regulations for consistency with existing regulations for
ship reporting. Defining ``categories of hazardous cargoes'' provides
clarity to the public on what information must be reported when
conducting passage without interruption to comply with the
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ship reporting requirements, as specified in the sanctuary regulations
at 15 CFR 922.243.
NOAA has made a minor revision to the term ``recreational
activity,'' by striking ``within the Midway Atoll Special Management
Area'' from the definition, making it consistent with the definition
provided in Presidential Proclamation 8031 establishing the Monument.
B. Cooperative Management
In response to public comments, NOAA has clarified how the
sanctuary will be managed in partnership with other Federal and State
agencies. In the proposed rule, NOAA proposed that the sanctuary would
be co-managed with the State of Hawai[revaps]i. In the proposed
regulations, NOAA identified the role that states may have in co-
managing a sanctuary pursuant to the National Marine Sanctuaries Act,
if all or part of the proposed sanctuary is within the territorial
limits of any state. Recognition of the State of Hawai[revaps]i as a
sanctuary co-manager was not meant to exclude the other Monument co-
trustees, DOI and OHA. To the contrary, partnerships with other Federal
and State agencies with overlapping jurisdiction are critical to the
success of the National Marine Sanctuary System and the protection of
marine areas of special national significance.
In the final regulations, NOAA has renamed 15 CFR 922.242
``Cooperative Management'' and added new text regarding how NOAA will
manage the sanctuary in partnership with USFWS and OHA in addition to
the State of Hawai[revaps]i. In doing so, NOAA reaffirms that the
existing co-management structure of the Monument is critical to the
success of the sanctuary. NOAA will work in cooperation with Monument
co-trustees to update the Memorandum of Agreement for Promoting
Coordinated Management of Papah[amacr]naumoku[amacr]kea Marine National
Monument with the State of Hawai[revaps]i, DOI, and OHA that reflects
the addition of the sanctuary, and specifically addresses how the
addition of a sanctuary will supplement and complement, and not
supplant, the existing Monument management framework.
In the final regulations, NOAA recognizes USFWS's management
authority over Midway Atoll National Wildlife Refuge and Hawaiian
Islands National Wildlife Refuge. NOAA also clarifies that nothing in
the regulations or establishment of the national marine sanctuary shall
diminish USFWS's authority to administer Midway Atoll National Wildlife
Refuge and Hawaiian Islands National Wildlife Refuge under the National
Wildlife Refuge System Administration Act, as amended, and other USFWS
authorities. Where Papah[amacr]naumoku[amacr]kea National Marine
Sanctuary overlays Midway Atoll National Wildlife Refuge and Hawaiian
Islands National Wildlife Refuge, NOAA will implement the NMSA to
provide supplemental authority to protect resources. NOAA and USFWS are
developing an agreement to provide details on the execution of
sanctuary management where the national marine sanctuary overlaps with
Midway Atoll National Wildlife Refuge and Hawaiian Islands National
Wildlife Refuge.
C. Access
In the proposed regulations, NOAA stated that 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 any
prohibited activities. In the final regulations, NOAA has made a minor
revision to 15 CFR 922.243(a)(5)(b), removing the word ``anchor'' from
this statement. The removal of ``anchor'' is a technical revision
because anchoring a vessel is already listed as a prohibited or
otherwise regulated activity. In 15 CFR 922.243(c)(7), NOAA has added
clarification on the events that would trigger ``further reports,''
including ``pollution incidents and goods lost overboard.'' This
addition will help address potential threats and impacts to sanctuary
resources in a timely manner from vessels transiting within the
reporting area.
In the proposed regulations, NOAA stated that access is prohibited
except under certain circumstances. NOAA has clarified that the
prohibition on access does 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 Outer
Sanctuary Zone, consistent with the exception provided in 15 CFR
922.244(f).
Finally, in 15 CFR 922.243(c), NOAA has also made technical
revisions, removing the list of vessels for which the ship reporting
requirements do not apply. This information is redundant of the
exceptions provided in 15 CFR 922.243(a)(1) through (a)(4).
D. Prohibited or Otherwise Regulated Activities
NOAA has added a prohibition on failing to comply with vessel
monitoring systems requirements in violation of 15 CFR 922.246; and a
prohibition on failing to comply with ship reporting requirements in
violation of 15 CFR 922.243. NOAA made these technical revisions to
clarify for the public the full scope of activities listed that are
prohibited or otherwise regulated within the sanctuary.
NOAA has also made technical revisions and clarifications to the
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. Specifically, NOAA has clarified the list of exceptions to
this prohibition for consistency with Presidential Proclamation 8031,
the implementing regulations at 50 CFR part 404, and other applicable
law such as the Clean Water Act. For example, consistent with existing
law in the Monument, NOAA has clarified that this prohibition does not
apply to fish, fish parts, or chumming materials (bait) used in or
resulting from lawful fishing activities, provided that such discharge
or deposit is during the conduct of lawful fishing activities within
the Sanctuary. In addition, NOAA has clarified that the exceptions for
``discharge incidental to vessel operations,'' and the discharges
within Special Preservation Areas or the Midway Atoll Special
Management Area may only be conducted in accordance with other
applicable law, such as the Clean Water Act and its implementing
regulations.
In the proposed rule, NOAA provided exceptions to vessel discharge
when conducting passage without interruption under 15 CFR 922.243, but
did not clarify that this exception also applies to the discharge
prohibition under 15 CFR 922.244. NOAA has made these revisions in 15
CFR 922.244 to provide clarity to resource managers and the public, and
consistency with existing Monument management. NOAA has made
corresponding changes to the regulations at 15 CFR 922.243, removing
the list of vessel discharge exceptions from this section. This
revision is not substantive.
E. Exemption for Non-Commercial Fishing
In the proposed rule, NOAA proposed that eight prohibited or
otherwise regulated activities in 15 CFR 922.244 would not apply to
non-commercial fishing activities in the Outer Sanctuary Zone
authorized by regulations promulgated pursuant to the Magnuson-Stevens
Fishery Conservation and Management Act (MSA), provided that no sale of
harvested fish occurs. In response to comments of concern for this
exemption, NOAA has made changes to ensure that a non-
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commercial fishing permit authorized pursuant to the MSA is only exempt
from a limited subset of prohibited or otherwise regulated activities
in the Outer Sanctuary Zone, which may only be conducted as incidental
to and necessary to conduct lawful non-commercial fishing activity.
First, NOAA has removed the exemption for ``touching coral, living
or dead,'' as this activity is not expected to occur as incidental to a
lawful non-commercial fishing activity.
Second, NOAA has removed the exemption for ``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, with exceptions.''
NOAA has determined that non-commercial fishing activities authorized
under the MSA do not require a broad exemption for discharge, and
should be held to similar standards as other vessels. As described
above, NOAA has also clarified the types of discharge that would not be
regulated, including ``fish, fish parts, or chumming materials (bait)
used in or resulting from lawful fishing activity, provided that such
discharge or deposit is during the conduct of lawful fishing activity
within the Sanctuary.'' This exception is consistent with Presidential
Proclamation 8031, and the existing regulations for PMNM at 50 CFR
404.7.
Third, NOAA has removed the exemption for anchoring a vessel. NOAA
has concluded that this activity should not occur as incidental to a
lawful non-commercial fishing activity in the Outer Sanctuary Zone.
Anchoring a vessel in the Outer Sanctuary Zone would not be practical
given the average ocean depths within this area of the sanctuary.
NOAA has also clarified that this exemption from the sanctuary's
permitting requirements is only applicable provided that the fish
harvested, either in whole or in part, are neither intended to enter
commerce nor enter commerce through sale, barter, or trade, and that
the resource is managed sustainably, consistent with Presidential
Proclamation 9478. Moreover, consistent with the outcome of the NMSA
Section 304(a)(5) process, for the exemption to apply, the fish
harvested, either in whole or in part, are not intended to be sold and
shall not be sold for any purposes, including, but not limited to,
cost-recovery. Finally, NOAA has clarified that the activities under
paragraph (a)(9) through (12), and (a)(14) may only be conducted as
incidental and necessary to conduct lawful non-commercial fishing
activities.
F. Permit Procedures and Criteria
In the proposed regulations, NOAA proposed two new general permit
categories specific to the sanctuary: (i) Native Hawaiian Practices;
and (ii) Recreation. In the final regulations, NOAA maintains these two
general permit categories in 15 CFR 922.30. For ease of reference, NOAA
has moved the additional permit issuance criteria and requirements to
the site-specific regulations for the proposed sanctuary at 15 CFR
922.245. This revision is not substantive. NOAA has also made a
revision to the additional permit issuance criteria for Recreation
permits. NOAA has amended the permitting criteria at 15 CFR 922.245 to
clarify that a ``recreational activity'' may only be permitted within
the Midway Atoll Special Management Area, consistent with existing
regulations for the Monument.
Finally, as described below, NOAA moved the Vessel Monitoring
System (VMS) requirements from 15 CFR 922.245 to a standalone section
at 15 CFR 922.246. NOAA retained, with minor edits, the requirement to
outfit a vessel with a NOAA Office of Law Enforcement (OLE) type-
approved VMS unit, as a condition of a permit. This is consistent with
the regulations implementing Presidential Proclamation 8031 at 50 CFR
part 404, and specifically, the permitting findings that must be made
under 50 CFR 404.11(d).
G. Vessel Monitoring System
In the proposed rule, NOAA proposed, as a part of the permit
procedures and criteria under 15 CFR 922.245, that an owner or operator
of a vessel that has been issued a sanctuary general permit or special
use permit must ensure that such vessel has a NOAA OLE type-approved
VMS on board when operating within the sanctuary. In the final
regulations, NOAA has moved the VMS requirements to a standalone
section at 15 CFR 922.246 for consistency with the regulations
implementing Presidential Proclamation 8031 at 50 CFR part 404. NOAA
also made non-substantive technical changes to the VMS requirements to
more closely align with the Monument's implementing regulations,
specifically 50 CFR 404.5.
H. Sunken Military Craft
NOAA has added new text regarding the Sunken Military Craft Act
acknowledging that sunken military craft in the sanctuary will continue
to be administered by the respective Secretary concerned pursuant to
the Sunken Military Craft Act. NOAA will enter into a Memorandum of
Agreement with the appropriate agencies regarding collaboration on
implementing the Sunken Military Craft Act.
I. Emergency Regulations
NOAA has added information to Section IV of this final rule
describing emergency regulations. This is a technical clarification of
a regulatory provision that applies to all national marine sanctuaries,
pursuant to the National Marine Sanctuary Program Regulations at 15 CFR
922 subpart A--Regulations of General Applicability. Adding this to the
final rule provides clarity to the public on a supplemental authority
that is provided through sanctuary designation.
J. Technical Edits
In addition to the changes discussed above, NOAA has made technical
edits throughout this final rule. Many of these technical edits are
necessary to conform with revisions to 15 CFR part 922 that became
effective on October 16, 2024. These technical edits are not
substantive. NOAA has also made two minor changes to the terms of
designation that were included in the proposed rule. First, NOAA has
added more detail to one sentence describing the special
characteristics of the area. Second, NOAA has added ``ship reporting,
ship routeing, and other shipping activities'' to the list of
activities subject to regulation in Article IV of the terms of
designation to reflect the full scope of activities that may be
regulated. In the draft terms of designation, NOAA only included ``ship
reporting.''
IV. Summary of Final Regulations
A. Adding New Subpart W
NOAA is amending 15 CFR part 922 by adding a new subpart (subpart
W) that contains site-specific regulations for the sanctuary. This
subpart will include the boundary, contain definitions of common terms
used in the new subpart, identify prohibited activities and exceptions,
and establish procedures for permitting otherwise prohibited
activities. The regulations will be applied in accordance with
generally recognized principles of international law and in accordance
with treaties, conventions, and other agreements to which the United
States is a party, 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). No regulation shall
[[Page 4863]]
apply to or be enforced against a person who is not a citizen,
national, or resident alien of the United States unless in accordance
with generally recognized principles of international law, or
applicable treaties, conventions, and other agreements.
B. Sanctuary Boundary
NOAA's designation of Papah[amacr]naumoku[amacr]kea National Marine
Sanctuary consists of 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 designation is
approximately 582,570 square miles (439,910 square nautical miles).
C. Definitions
This rule incorporates and adopts common terms defined in the
national regulations at 15 CFR 922.11. In addition, NOAA is including
20 site-specific definitions. To the extent that a term appears at 15
CFR 922.11 and the definitions section of the final rule, the
definition in the final 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
International Maritime Organization (IMO) Resolution A.982(24),
December 1, 2005.
<bullet> ``Areas to be avoided (ATBA)'', ``Categories of hazardous
cargoes'' 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'' refers to the area of the
sanctuary that would extend from approximately 50 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
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 provides 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. Note that the MEA and the
Outer Sanctuary Zone are coextensive. In this final rule, when
describing the sanctuary regulations, the term ``Outer Sanctuary Zone''
is used, and when describing the directives of Presidential
Proclamation 9478, the term ``MEA'' is used.
<bullet> ``Reporting Area'' refers to the area of the 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 final rule. NOAA defines the ``reporting area'' to
clarify which areas of the sanctuary apply to ship reporting
requirements.
<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 defines ``scientific
instrument'' to clarify what activities may be conducted pursuant to a
permit. NOAA defines ``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 instrument,''
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 instrument'' could unduly restrict
NOAA's ability to permit activities in the area of the sanctuary that
overlaps with the MEA. 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 the sanctuary.
D. Cooperative Management of the Sanctuary
Pursuant to the NMSA, states may choose to have a role in co-
managing a sanctuary if all or part of the sanctuary is within the
territorial limits of any state. As the sanctuary includes state
waters, NOAA will co-manage the sanctuary with the State of
Hawai[revaps]i. NOAA establishes the framework for co-management in
section 922.242 of the final regulations NOAA and the State of
Hawai[revaps]i may update existing agreements or 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.
NOAA and the State of Hawai[revaps]i will manage the sanctuary in
partnership with the USFWS and OHA consistent with the management of
the Monument. The existing co-management structure of the Monument will
be critical to the success of the sanctuary. NOAA will work in
cooperation with the Monument co-trustees to update the Memorandum of
Agreement for Promoting Coordinated Management of
Papah[amacr]naumoku[amacr]kea Marine National Monument with the State
of Hawai[revaps]i, DOI, and OHA that reflects the addition of the
sanctuary, and specifically addresses how the addition of a sanctuary
will supplement and complement, and not supplant, existing Monument
management. This is
[[Page 4864]]
consistent with the existing Memorandum of Agreement, which includes a
provision that states that ``in the event of the designation of the
Monument or any portion of the Monument as a National Marine Sanctuary
under the National Marine Sanctuaries Act, nothing herein shall be
construed as automatically terminating or otherwise amending this
Agreement.'' NOAA may enter into additional Memorandums of Agreement
with the Monument co-trustees regarding this collaboration that may
address, but not be limited to, sanctuary resource protection,
educational programs, permitting, enforcement, research activities,
development, and threats to resources. Any future proposed changes to
sanctuary regulations or boundaries would be coordinated with the State
and other Monument co-trustees and subject to public review as mandated
by the NMSA and other Federal statutes.
The Secretary of the Interior, through the USFWS, has sole
responsibility for management of the areas of the Monument that overlay
the Midway Atoll National Wildlife Refuge, the Battle of Midway
National Memorial, and the Hawaiian Islands National Wildlife Refuge,
and exercises that responsibility in consultation with the Secretary of
Commerce. Nothing in these regulations or establishment of the national
marine sanctuary shall diminish USFWS's authority to administer Midway
Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife
Refuge under the National Wildlife Refuge System Administration Act as
amended, and other USFWS authorities. Where
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary overlays Midway
Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife
Refuge, NOAA will implement the NMSA to provide supplemental authority
to protect resources.
NOAA, in exercising its management authority under National Marine
Sanctuaries Act Section 304(d), recognizes USFWS' management authority
over Midway Atoll National Wildlife Refuge and Hawaiian Islands
National Wildlife Refuge under the National Wildlife Refuge System
Administration Act.
The Director of the USFWS has agreed that
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary will provide
supplemental authorities where the sanctuary overlays the Midway Atoll
National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge.
NOAA and USFWS are developing an agreement to memorialize this
decision, and to provide details on the execution of sanctuary
management where the national marine sanctuary overlaps with Midway
Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife
Refuge, consistent with the spirit of cooperative management of the
area and recognizing USFWS has sole authority in Midway Atoll National
Wildlife Refuge and Hawaiian Islands National Wildlife Refuge pursuant
to the National Wildlife Refuge System Administration Act.
Implementation of NOAA and USFWS authorities shall not enlarge or
diminish the jurisdiction of the State of Hawai[revaps]i, including the
State's responsibilities and requirements to manage Kure Atoll Wildlife
Sanctuary and the State of Hawai[revaps]i Northwestern Hawaiian Islands
Marine Refuge.
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 extends the access restrictions
which apply to the area of the sanctuary that overlaps the PMNM to the
area of the sanctuary that overlaps with the MEA as follows:
Access to the sanctuary is 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 Outer Sanctuary Zone authorized
under the MSA in accordance with 15 CFR 922.244 (d); (4) when
conducting scientific exploration or research activities by or for the
Secretary of Commerce or the Secretary of the Interior when the
activity occurs within the Outer Sanctuary Zone); and (5) 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 or
engage in prohibited activities within the sanctuary. A vessel passing
through the sanctuary without interruption may be subject to the ship
reporting system, as described below.
The access restrictions will be applied in accordance with
generally recognized principles of international law and in accordance
with treaties, conventions, and other agreements to which the United
States is a party, 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). No regulation shall apply to or be enforced against a person
who is not a citizen, national, or resident alien of the United States
unless in accordance with generally recognized principles of
international law, or applicable treaties, conventions, and other
agreements.
F. Ship Reporting
The final rule includes regulations to implement the ship reporting
system (CORAL SHIPREP) adopted by the IMO, which require entrance and
exit notifications for vessels that pass without interruption through
the sanctuary areas contained within a reporting area. Requiring
vessels to notify NOAA immediately upon entering the reporting area
will help make the vessel operators 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 sanctuary
contained within the reporting area.
The ship reporting requirements apply to vessels that pass through
the sanctuary without interruption. Conversely, the ship reporting
requirements do not apply to vessels covered by an exemption at 15 CFR
922.243(a)(1) through (a)(4), or to sovereign immune vessels, which are
specifically exempted from the reporting requirement in the ship
reporting system adopted by the IMO. Furthermore, the ship reporting
requirements will be applied in accordance with generally recognized
principles of international law and in accordance with treaties,
conventions, and other agreements to which the United States is a
party, 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). No
regulation shall apply to or be enforced against a person who is not a
citizen, national, or resident alien of the United States unless in
accordance with generally recognized principles of international law,
or applicable treaties, conventions, and other agreements.
NOAA defines the reporting area as ``the area of the 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 is further defined by the coordinates set forth in
Appendix E to the final rule. Appendix E includes a coordinates table
for the
[[Page 4865]]
``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.
The reporting area for the sanctuary will 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 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 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 will 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.
Following Executive Order 13178 and Presidential 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, would protect of the fragile
environment, would preserve 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.
These measures included 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. In addition, the IMO adopted
a ship reporting 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, which 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 will implement the ship reporting system as adopted by the IMO
and establish the reporting area using the boundary coordinates in
Appendix E to this final rule to provide additional protection to the
natural, cultural, and historic resources in the sanctuary.
Accordingly, NOAA's 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 provides 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.
G. Activities That Are Prohibited or Otherwise Regulated
NOAA will supplement and complement existing management of this
area through 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 prohibitions. However,
minor changes are made 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 sanctuary.
Within PMNM, the prohibitions in section 922.244 are already
effectively in place under 50 CFR part 404, except for prohibitions 1
and 4 (detailed below). Minor changes are made to prohibitions 1 and 4
to remove discrepancies across the two zones (PMNM and MEA).
Regulations implementing Presidential Proclamation 9478 have not been
promulgated for the MEA. Many of the prohibitions adopted in the rule
are identified in Presidential Proclamation 9478, which established the
MEA. Any prohibitions for the area of the 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 prohibits exploring for, developing, or producing oil,
gas, or minerals to protect sanctuary resources and create a seamless
management area
[[Page 4866]]
throughout the 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 sanctuary's 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
This prohibition is 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
This prohibition is 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. Based on NOAA's experience in managing
national marine sanctuaries, NOAA does not see a need to permit this
activity. Prohibiting this activity will create consistency in
management across the sanctuary and 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
This prohibition is consistent with prohibitions identified in the
presidential proclamations establishing the Monument.
6. Prohibition on Commercial Fishing or 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 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. With these sanctuary
regulations, NOAA provides a sanctuary-wide prohibition on commercial
fishing or 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 Failing To Comply With Vessel Monitoring Systems
Requirements in Violation of Sec. 922.246
This prohibition is consistent with requirements identified in
Presidential Proclamation 8031. The VMS requirement for permittees
operating within the areas of the sanctuary that overlap with the MEA
would be a new requirement. Further discussion of the VMS requirements
is included within Section IV. L. of this final rule.
8. Prohibition on Failing To Comply With Ship Reporting Requirements in
Violation of Sec. 922.243
This prohibition is consistent with the requirements of the ship
reporting system (CORAL SHIPREP), as adopted by the IMO and implemented
in PMNM under 50 CFR 404.4. Further discussion of the ship reporting
system requirements is included within Section IV.F of this final rule.
9. Prohibition on Non-Commercial Fishing or 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, for consistency with the proclamations, NOAA will prohibit
``non-commercial fishing'' unless conducted pursuant to a sanctuary
permit or, as discussed below, authorized under the MSA in the Outer
Sanctuary Zone. The final 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 MSA, and includes, but is not
limited to, sustenance, subsistence, traditional indigenous, and
recreational fishing.'' 50 CFR 665.12.
The final rule also provides 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 Outer Sanctuary Zone.
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. The
final rule creates continuity between the two areas, and aims to
prevent non-commercial gear from being utilized in an unauthorized
manner that could lead to injury to sanctuary resources.
[[Page 4867]]
10. 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
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, these activities are
prohibited unless conducted pursuant to a sanctuary permit. In the
Outer Sanctuary Zone, such a permit may only be issued for scientific
instruments.
11. 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
These activities are prohibited unless conducted pursuant to a
sanctuary permit, consistent with the presidential proclamations
establishing the Monument.
12. Prohibition on Attracting Any Living Sanctuary Resource
This activity is prohibited unless conducted pursuant to a
sanctuary permit. This prohibition is consistent with a regulated
activity identified in Presidential Proclamation 8031 for PMNM. This
prohibition is new in the area of sanctuary that overlaps with the MEA.
Prohibiting this activity is intended to address the potential for
harassment and disturbance from human interactions with living
sanctuary resources.
13. Prohibition on Touching Coral, Living or Dead
This activity is prohibited unless conducted pursuant to a
sanctuary permit. This prohibition is 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. However, prohibition 10
(above) effectively includes this activity, as touching coral is
considered a disturbance which may cause injury or damage. Therefore,
regulating this activity in the Outer Sanctuary Zone is primarily a
technical addition which provides clarity to the public and resource
managers.
14. Prohibition on Swimming, Snorkeling, or Closed or Open Circuit
SCUBA Diving
These activities are prohibited unless conducted pursuant to a
sanctuary permit. This prohibition is 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.
15. 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, With Exceptions
These activities are prohibited unless conducted pursuant to a
sanctuary permit. This prohibition is consistent with regulated
activities identified in Presidential Proclamation 8031 for PMNM. The
sanctuary regulations provide an exception to this activity, for
``discharge incidental to vessel operations such as approved marine
sanitation device effluent, cooling water, and engine exhaust''. Within
Special Preservation Areas or the Midway Atoll Special Management Area,
discharge is limited to ``vessel engine cooling water, weather deck
runoff, and vessel engine exhaust''. The exceptions to this otherwise
regulated activity must be conducted in accordance with other Federal
statutes and regulations, such as section 312 of the Federal Water
Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1321 et seq. In
addition, and consistent with exceptions identified in Presidential
Proclamation 8031 for PMNM, the sanctuary regulations provide an
exception for ``fish, fish parts, or chumming materials (bait) used in
or resulting from lawful fishing activity, provided that such discharge
or deposit is during the conduct of lawful fishing activity within the
sanctuary''.
While this prohibition is technically new for the area of the
sanctuary that overlaps with the MEA, Presidential Proclamation 9478
effectively includes this activity. Regulating this activity for the
Outer Sanctuary Zone provides clarity to the public and resource
managers. Further, the prohibition on discharges within or into the
sanctuary is provided 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 sanctuary would benefit
sanctuary resources and sanctuary users.
16. Prohibition on Anchoring a Vessel
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 regulating 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 is new for the area of the sanctuary that overlaps
with the MEA. NOAA is including this prohibition on anchoring a vessel
throughout the sanctuary to provide clarity to the public, resource
managers, and enforcement personnel that all users of the sanctuary 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 prohibitions
for the 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 provides 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 of the
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
[[Page 4868]]
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 sanctuary's prohibitions.
J. Exemption for Non-Commercial Fishing
NOAA exempts non-commercial fishing authorized under the MSA in the
Outer Sanctuary Zone from needing a sanctuary permit for certain
regulated activities provided under paragraph (a)(9) through (12), and
(a)(14) in the final rule, provided that certain requirements are
satisfied. Those requirements are that the fish harvested, either in
whole or in part: (1) are not intended to enter commerce and shall not
enter commerce through sale, barter, or trade, and that the resource is
managed sustainably; and (2) are not intended to be sold and shall not
be sold for any purposes, including, but not limited to, cost-recovery.
In addition, the exempted activities under paragraph (a)(9) through
(12), and (a)(14) must only be conducted as incidental to and necessary
to conduct lawful non-commercial fishing activity. NOAA will prepare a
separate proposed rule under the MSA, which shall serve as the primary
mechanism for authorizing non-commercial fishing activities in the
Outer Sanctuary Zone. NOAA will 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 only applies to the Outer Sanctuary Zone.
K. Sanctuary Permit Procedures and Criteria
1. Sanctuary General Permits
NOAA provides the authority to issue sanctuary general permits to
allow certain activities that would otherwise violate prohibitions in
paragraphs (a)(9) through (15). The sanctuary permitting system was
developed to allow for integration with the Monument permitting system,
to ensure a continued joint permitting system administered by Monument
co-managers. NOAA may, in cooperation with the Monument co-trustees,
modify the existing memorandum of agreement or develop a new memorandum
of agreement to add further clarification on joint permitting.
National marine sanctuary program-wide regulations at 15 CFR 922.30
describe various purposes for which a sanctuary general permit can be
issued. Three of these which would apply to this 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 adds two additional permit categories to 15 CFR 922.30 under
which a sanctuary general permit could be issued in the sanctuary:
<bullet> Native Hawaiian Practices--activities that allow for
Native Hawaiian practices within the sanctuary; and
<bullet> Recreation--recreational activities within the sanctuary,
but limited to the Midway Atoll Special Management Area.
The Native Hawaiian Practices general permit category is consistent
with the types of activities permitted for the PMNM. Presidential
Proclamation 9478 provided Native Hawaiian practices as a regulated
activity. For consistency in management across the proposed sanctuary,
and to protect sanctuary resources while facilitating responsible user
access, NOAA would apply this general permit category across the
sanctuary.
The Recreation general permit category is consistent with the types
of activities permitted for PMNM, specifically within the Midway Atoll
Special Management Area. For consistency with existing Monument
management, this general permit category would continue to be limited
to recreational activities within the Midway Atoll Special Management
Area.
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 objective of protection of sanctuary
resources and qualities. NOAA will be able to impose specific terms and
conditions through a permit as appropriate. The general regulations'
permitting review criteria is largely consistent with the permitting
findings established by Presidential Proclamation 8031 for PMNM, and
implemented through 50 CFR 404.11.
In addition to permit review procedures and evaluation criteria in
15 CFR 922.33, some additional permit review criteria apply in the
sanctuary, including additional criteria specific to Native Hawaiian
Practices permits and Recreation permits. NOAA is providing these
additional permit criteria in 15 CFR 922.245 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 a 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. Like with sanctuary
general permits, NOAA can place conditions on SUPs specific to the
activity being permitted. NOAA shall provide appropriate public notice
before
[[Page 4869]]
identifying any category of activity subject to a special use permit.
NOAA is not adding any new SUP category as part of this
designation. In evaluating applications for special use permits, NOAA
will 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 50 CFR 404.11. Special ocean use permit requirements were
modeled after the NMSA's authority for SUPs, but also include a few
additional requirements. For example, one of the requirements for
special use permits outside Midway Atoll National Wildlife Refuge is
that the activity does not involve the use of a commercial passenger
vessel. For special use permits in Midway Atoll National Wildlife
Refuge, an additional requirement is that the Director of the USFWS or
their designee determines that the activity is compatible with the
purposes for which the Midway Atoll National Wildlife Refuge was
designated.
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 in the Midway Atoll Special Management Area shall
not be allowed unless the activity has been determined by the Director
of the USFWS or their designee to be compatible with the purposes for
which the Midway Atoll National Wildlife Refuge was established.
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, consistent with
proper care and management of monument objects. For consistency in
management and permitting, NOAA is allowing for this activity as a term
or condition of a general permit or special use permit.
L. Vessel Monitoring System
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
part 922 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
implements this requirement across the sanctuary.
This requirement supports monitoring and surveillance, enforcement,
and other incidental uses, consistent with the long-standing history of
using vessel monitoring systems in the remote and vast area of the
sanctuary, beginning with Executive Order 13178 in 2000. In directing
the Secretary of Commerce to manage the Northwestern Hawaiian Islands
Coral Reef Ecosystem Reserve, section 5(b) of Executive Order 13178,
indicated that priority management 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 enforcement and surveillance activities within this large, remote
area, as well as to implement VMS.
In 2006, Presidential Proclamation 8031, as noted above, required
an OLE-approved VMS on vessels with permits to access the PMNM. VMS is
currently being used 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. Further, the Monument Management
Plan recognizes that the Monument's remote location presents unique
surveillance and enforcement challenges, which a mandatory vessel
monitoring system is critical to addressing.
In designating a sanctuary in the remote and vast area of the
Monument and Northwestern Hawaiian Islands Coral Reef Ecosystem
Reserve, NOAA recognizes the need to overcome these natural barriers to
surveillance and enforcement through the use of VMS.
M. Scientific Exploration and Research by the Department of Commerce
and the Department of the Interior
Presidential Proclamation 9478, which designated the MEA,
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.'' Presidential Proclamation
9478 further highlights the significant scientific value of the MEA and
underscores the opportunities for research and discovery to occur in
that area, including understanding the impacts of climate change on
deep-sea communities and identifying new species. NOAA exempts the
Department of Commerce's and Department of the Interior's scientific
exploration or research activities from the sanctuary's prohibitions
and permitting requirements within the Outer Sanctuary Zone to be
consistent with Presidential Proclamation 9478. However, such
activities must still comply with other Federal laws such as the NEPA,
the Endangered Species Act, the National Marine Sanctuaries Act section
304(d), and the Marine Mammal Protection Act.
N. Sunken Military Craft
NOAA is also adding language regarding the Sunken Military Craft
Act of 2004 (SMCA; Pub. L. 108-375, Title XIV, sections 1401 to 1408;
10 U.S.C. 113 note) that acknowledges that sunken military craft in the
sanctuary will continue to be administered by the respective Secretary
concerned pursuant to the SMCA. NOAA will enter into a Memorandum of
Agreement with the appropriate agencies regarding collaboration on
implementing the SMCA. See section VI.H for more information.
O. Emergency Regulations
NOAA is not including any sanctuary-specific regulation to allow
for development of emergency regulations to address urgent threats to
sanctuary resources. Rather, the emergency regulation provision
included in the regulations of general applicability, which apply to
all national marine sanctuaries (see 15 CFR 922.7), would also apply to
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary. Emergency
regulations are used when there is an imminent risk to sanctuary
resources and a temporary regulation or
[[Page 4870]]
prohibition is necessary to prevent or minimize the destruction or loss
of those resources, or otherwise minimize the imminent risk of such
destruction, loss, or injury.
P. Other Conforming Amendments
The regulations related to National Marine Sanctuary Permitting, 15
CFR part 922, subpart D, are 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 922.30 National Marine Sanctuary general permits;
<bullet> Section 922.33 Review procedures and evaluation; and
<bullet> Section 922.37 Appeals of permitting decisions.
Notably, NOAA amends 15 CFR 922.37 ``Appeals of permitting
decisions,'' to reflect that the general appeals process for sanctuary
permits will not apply to permit applications for the sanctuary.
Consistent with the current interagency permitting system that has been
in place for the Monument, there would be no appeals process for the
sanctuary. Should a permit applicant want NOAA and the other agencies
to reconsider a permitting decision, they would need to file a new
permit application.
V. Response to Comments
All comments were considered by NOAA and the State and, where
appropriate, modifications were made to the final EIS, sanctuary
management plan, and sanctuary rule. NOAA and the State's responses to
comments address significant issues and concerns raised by members of
the public, government agencies, stakeholder groups, non-profit
organizations, and K[amacr]naka [revaps][Omacr]iwi community groups.
For a full scope of all of the comments received on the draft
designation documents, including the draft EIS and the draft management
plan, and their responses, please review the final EIS Appendix K. This
final rule includes NOAA's responses to comments that address the
significant issues raised in public comments within the scope of the
proposed rule specifically, and offer additional information about why
certain changes were made to the rule, the terms of designation, or the
regulations. The final rule retains the numbering/naming of the comment
from the final EIS Appendix K so readers can track the comments that
have been included in this preamble and more efficiently find other
related comments/responses in the Appendix K that have not been
included in this preamble. As such, cross-references have been retained
here for completeness.
1. A-1 Comment: The majority of comments NOAA received supported
the proposed sanctuary designation, including Alternative 1 (NOAA's
Preferred Alternative), and encouraged NOAA to proceed with the
designation process. Commenters who support the designation cited
reasons including:
<bullet> Additional regulations, protections, enforcement, and
programmatic and legal benefits for Papah[amacr]naumoku[amacr]kea under
the National Marine Sanctuaries Act;
<bullet> Enhancing long-term protections for biological, cultural,
and historical resources;
<bullet> Comprehensive and coordinated management of the marine
areas of Papah[amacr]naumoku[amacr]kea;
<bullet> Preserving Native Hawaiian culture, traditional practices,
sacredness of waters, and connections to place for current and future
generations;
<bullet> Safeguarding marine biodiversity; coral reefs, pelagic,
and deep-ocean ecosystems; and endemic, threatened, and endangered
species;
<bullet> Regulating, mitigating, or preventing threats such as
invasive species, overfishing, illegal fishing, deep-sea mining,
military activities, pollution, oil spills, marine debris, erosion, and
climate change;
<bullet> Additional sources of funding to support operations,
research, emergency response, citizen science, education, and outreach;
and
<bullet> Opportunities for recreation and tourism;
Response: NOAA agrees that these are some of the main benefits of
designating the marine areas of the Monument as a national marine
sanctuary. NOAA notes that many of these comments specifically indicate
a preference for Alternative 1, and NOAA has considered this in
carrying Alternative 1 forward in the final EIS as the Final Agency-
Preferred Alternative.
2. A-2 Comment: A minority of commenters expressed opposition to
sanctuary designation, citing concerns that designating a sanctuary:
<bullet> Is an overreach by the Federal government;
<bullet> Is an act of colonialism and/or infringes on the rights of
Indigenous peoples;
<bullet> Would come at a cost to Native Hawaiian, American Samoan,
and/or Pacific Islander well-being, including loss of the ability to
practice cultural traditions and connections to ocean resources;
<bullet> Would limit access to the ocean and resources for food,
livelihood, and cultural sustenance, and limit Indigenous rights and
their ability to freely fish in local waters;
<bullet> Would decrease the amount of fishing waters across the
Pacific;
<bullet> Would lead to overfishing;
<bullet> Adds unnecessary layers of bureaucracy, as the existing
Monument management and protections are extensive and sufficient for
the area, and that if new protections/management is needed, these
should be enacted through the Monument;
<bullet> Would relinquish the Monument title and co-management
framework;
<bullet> Would weaken current protections, and allow the Department
of Commerce to violate protections, opening the doors to deep-sea
mining and recreational tourism, and taking away human and financial
resources needed to manage the area; and
<bullet> Would be redundant of current management of the Monument,
and therefore unnecessary. Some commenters also expressed that they
felt current Monument management to be poor, or that current management
capacity is lacking; and that a sanctuary would not improve this.
Response: Through the public sanctuary designation process, and
from public input received during scoping and the proposed designation
stage, NOAA has determined that this action responds to the need to
address threats to and discrepancies in management of nationally
significant resources. NOAA has also determined that the current
management regime will benefit from additional regulatory tools, as
well as the first set of implementing regulations for the MEA. Chapter
2 of the final EIS and Section I.B of the final rule preamble describes
the purpose and need for the sanctuary.
NOAA respects the views of the commenters, including those who
expressed concern that sanctuary designation is an overreach by the
Federal government; is an act of colonialism; would impact the
livelihood of Pacific Islanders and/or limit Indigenous rights. NOAA
seeks to support the rights of K[amacr]naka [revaps][Omacr]iwi and
Pacific Islanders, and to support biocultural conservation and
restoration work by growing collective kuleana and affirming respect
and reciprocity for the place and people. The sanctuary management plan
(final EIS Appendix A) objectives include managing the area as a sacred
site consistent with K[amacr]naka [revaps][Omacr]iwi traditional
knowledge, management concepts, and principles articulated within Mai
Ka P[omacr] Mai. K[amacr]naka [revaps][Omacr]iwi culture is
foundational in the co-management legacy of
Papah[amacr]naumoku[amacr]kea (see final EIS, sections 1.2.4 and
4.5.1), and the
[[Page 4871]]
designation aims to ensure ecological integrity and achieve strong,
long-term protection and perpetuation of Northwestern Hawaiian Island
ecosystems, K[amacr]naka [revaps][Omacr]iwi culture, and maritime
heritage resources for current and future generations. Native Hawaiian
access will continue under sanctuary designation. See also the
responses to comments C.1, C.2, and E.7.
Regarding commenters who expressed concerns with the impact of
sanctuary designation on the existing Monument, existing regulations,
and or existing management of the area, see also the responses to E.1
and E.2. Regarding commenters who expressed concerns with the impact of
sanctuary designation on fishing, see also the comments D.1, D.3, and
D.5. NOAA also recognizes that some comments raise concerns that are
outside the scope of this designation, including the ongoing process to
designate a proposed national marine sanctuary in the Pacific Remote
Islands. The underlying concerns of these comments were still
considered in the context of Papah[amacr]naumoku[amacr]kea National
Marine Sanctuary. Detailed responses to specific points of concern and
opposition are addressed in the subsequent responses.
3. B-1 Comment: Commenters expressed opposition to for-profit
activities in the sanctuary. One commenter recommended that no human
activity should be allowed in the sanctuary.
Response: The sanctuary regulations were drafted to supplement and
complement existing management of the area. The existing Monument
management regime allows for some for-profit activities such as
professional film-making, and activities such as wildlife management,
research, and Native Hawaiian practices. All are subject to permitting
requirements. Consistent with the existing management of the area, NOAA
will allow for regulated access to the sanctuary for these types of
activities. As in the Monument, in order to receive a permit for a
regulated activity, a number of findings criteria need to be met,
including that the proposed activity is conducted consistent with the
primary objective of protection of sanctuary resources.
4. B-2 Comment: Commenters expressed concern regarding access to
Papah[amacr]naumoku[amacr]kea, noting that the area can currently only
be experienced by a select group of scientists, Native Hawaiian
cultural practitioners, and wealthy individuals.
Response: The sanctuary regulations and permit categories were
drafted to supplement and complement existing management of the area.
Consistent with the presidential proclamations designating the PMNM and
MEA, and the Monument implementing regulations at 50 CFR part 404, NOAA
will allow for regulated access. Anyone may apply for a permit to
access the sanctuary. There are six categories of permitted activities:
research, recreation, education, Native Hawaiian practices,
conservation and management, and special use. In addition, a vessel may
pass without interruption through the sanctuary without requiring a
permit as long as the vessel does not stop or engage in prohibited
activities within the sanctuary.
Additionally, the sanctuary management plan describes strategies to
engage and support diverse communities who care for
Papah[amacr]naumoku[amacr]kea, including Indigenous and underserved
communities. NOAA recognizes the constraints imposed by the vastness
and remote nature of the proposed sanctuary (nearly 300 miles at its
closest point from the main Hawaiian Islands), and therefore strives to
provide education and outreach that brings the place to the people.
Through the Mokup[amacr]papa Discovery Center and collaborations with
other interpretive centers, organizations, business agencies, and
others, NOAA has expanded a network serving both local, regional, and
international audiences.
5. B-3 Comment: Commenters provided recommendations that permits be
easy to acquire through a streamlined process to minimize barriers and
reduce redundant reviews under various authorities and regulations. One
commenter suggested that the process to acquire a sanctuary or Monument
Native Hawaiian practices permit, specifically, should be prioritized
and streamlined.
Response: The Monument joint permitting process has been in place
and permits have been issued by the co-trustees since 2007. The
sanctuary includes a permitting system modeled after the existing
Monument permitting system, and was developed to allow for integration
with the Monument permitting system, to ensure continued joint
permitting administered by Monument co-trustees. See final EIS Section
3.3.1 for an updated description of the permitting process. Through
sanctuary designation, NOAA strives to conduct seamless, integrated
management, such that sanctuary permits, including Native Hawaiian
practices permits, will go through the same streamlined process as
currently exists for the Monument.
6. B-4 Comment: Commenters expressed concerns regarding activities
that take place in the Northwestern Hawaiian Islands under claims of
innocent passage, and requested that all activities in the area of the
proposed sanctuary comply with the United Nations Convention on the Law
of the Sea, which the U.S. recognizes as customary international law,
and applicable international treaties.
Response: In the preamble of the proposed rule, NOAA specified that
the proposed access and ship reporting regulations 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
Regulations of General Applicability at 15 CFR 922.1(b). That is, no
regulation shall apply to or be enforced against a person who is not a
citizen, national, or resident alien of the United States unless in
accordance with generally recognized principles of international law.
In accordance with 15 CFR 922.1(b), NOAA has long interpreted the text
of NMSA Section 305(a) as encompassing international law, including
customary international law.
In the preamble of this final rule, NOAA has clarified its
intention that all regulations will be applied in accordance with
generally recognized principles of international law, as well as in
accordance with treaties, conventions, and other agreements to which
the United States is a party.
7. B-5 Comment: A commenter provided a recommendation that the
IMO's designation of the Monument as a PSSA apply to the MEA. The
commenter also recommended that NOAA should determine, as part of the
sanctuary designation process, if additional regulatory and management
controls are necessary.
Response: The IMO process for designating an area as a PSSA is
outside the scope of this action. If the U.S. Government determines at
a future time that designation of some or all of the Monument as a PSSA
is warranted, the IMO process would remain available. Through sanctuary
designation, NOAA will implement the ship reporting system (CORAL
SHIPREP), which was adopted by the IMO as an associated protective
measure to the designation of the Monument as a PSSA. The ship
reporting system's reporting area extends outward 10 nautical miles
from the PSSA boundary, as designated by the IMO, and therefore
includes some portions of the MEA waters. After thorough analysis, NOAA
concluded that additional regulatory measures are not necessary at this
time, beyond the
[[Page 4872]]
sanctuary regulations for ship reporting, access, and prohibited or
otherwise regulated activities. Section IV.F of this final rule
preamble provides details of the ship reporting system.
8. B-6 Comment: Commenters expressed support for access for
recreational activities, including snorkeling and scuba diving; and
allowing opportunities for the public to interact with
Papah[amacr]naumoku[amacr]kea in a safe and responsible manner.
Commenters stated that allowing access for recreational activities may
lead to increased awareness and support for the National Marine
Sanctuary System. Commenters also provided recommendations for
regulating recreational activities.
Other commenters expressed concern for the potential negative
impacts to resources from allowing visitation, recreation, and tourism
activities in the sanctuary, specifically Midway Atoll. A few
commenters opposed recreational access to the sanctuary, noting that
access should be limited to research and conservation activities and/or
to the Midway Atoll Special Management Area.
Response: For the sanctuary, consistent with existing regulations
for PMNM, recreational activity will be defined as activities conducted
for personal enjoyment that do not result in the extraction of
sanctuary resources and that do not involve a fee-for-service
transaction. This includes, but is not limited to, wildlife viewing,
scuba diving, snorkeling, and boating. Recreation can provide
significant educational opportunities, build constituencies, and
provide assistance to natural resource managers. However, these
activities can also lead to wildlife disturbance, habitat degradation,
and pollution. It is a goal of the Monument to prevent, avoid, or
minimize negative human impacts associated with recreation by allowing
access only for those activities that do not threaten the natural
character or biological integrity of the Monument or Native Hawaiian
cultural, historic, or maritime heritage resources.
Midway Atoll Special Management Area is the only area of the
Monument where recreational activities are permitted. Thus, while the
sanctuary will allow for recreational activities via a permit, permits
will only be issued for the Midway Atoll Special Management Area within
the sanctuary, in coordination with the Monument Management Board and
consistent with permitting for the existing Monument. Consistent with
permit criteria for recreational activities within the Monument,
recreation permits will not be issued for activities associated with
any for-hire operation or for activities that involve extractive use.
9. B-7 Comment: Commenters expressed support for allowing a fee-
for-service transaction for public visitation and recreational
activities at Midway Atoll National Wildlife Refuge, and pointed out
the existing authority of the USFWS to charge fees for public
visitation. Commenters requested that the EIS recognize the authority
of the USFWS to charge fees for services.
Response: Consistent with existing permit criteria and regulations
for recreational activities within the Monument, recreation permits
will not be issued for activities associated with any for-hire
operation, and recreational activities are defined as activities
conducted for personal enjoyment that do not result in the extraction
of sanctuary resources and that do not involve a fee-for-service
transaction. However, NOAA acknowledges that the USFWS has the
authority to charge fees for services including public visitation (50
CFR part 25 Subpart E; Refuge Rules and Policies). Sanctuary
designation will not change this authority, and the USFWS will still be
able to charge fees for services, including public visitation to Midway
Atoll. See also the response to E.3.
The EIS has been revised to acknowledge that the USFWS has the
authority to charge fees for services including public visitation. See
sections 3.2 and 4.6.2 of the final EIS.
10. B-8 Comment: Commenters requested that the USFWS consider a
visitation program at Midway Atoll; and/or expressed support for
recreation and visitation to Midway Atoll. Comments also requested that
the final EIS describe the sanctuary permit process for public
visitation and recreational activities at Midway Atoll National
Wildlife Refuge.
Response: A visitation program to Midway Atoll is outside the scope
of this action. NOAA will share these comments with the USFWS, a
cooperating agency for this action, who has operated a Visitor Services
Program for Midway Atoll. The USFWS' Midway Atoll Comprehensive Master
Plan (2022) affirms the goals, objectives, and strategies of the
previous 2008 Midway Atoll Visitor Services Plan, and USFWS' intent to
implement a Visitor Services Program.
11. B-9 Comment: A commenter suggested that standards for
permitting should be strengthened significantly, prioritizing Native
Hawaiian practices without opening the door to other types of
activities.
Response: Consistent with the presidential proclamations
designating PMNM and the MEA, and PMNM implementing regulations at 50
CFR part 404, NOAA will allow for regulated access to the sanctuary.
The sanctuary regulations include a permitting system modeled after the
existing Monument permitting system, which was developed to allow for
integration with the Monument permitting system to ensure continued
joint permitting administered by the Monument Management Board (MMB).
The final rule adopts the same permit criteria as currently required
for Monument permits, including the additional criteria for Native
Hawaiian practices and recreation permits. For additional information
regarding Native Hawaiian practices permitting, see the responses to
B.14 and C.1.
12. B-10 Comment: Commenters recommended that NOAA hold mandatory
public hearings for all permit applications, that there should be a
permanent public record for all permits granted, and that there should
be no multiple-year permits allowed.
Response: The sanctuary regulations include a permitting system
modeled after the existing Monument permitting system, and was
developed to allow for integration with the Monument permitting system
to ensure continued joint permitting administered by MMB. Therefore,
NOAA intends to continue with the existing public notification process
for the Monument, which does not include mandatory public hearings for
all permit applicants. Instead, the existing permit system for the
Monument includes a Permit Application Unified Public Notification
Policy to engage and inform the public of activities proposed to occur
within the Monument. Posting of a permit application does not equate to
permit approval. After posting, each application is thoroughly reviewed
by the MMB. Final permitted activities may differ from the proposed
activities. Some of the public notification practices for the existing
Monument include:
<bullet> Within 10 calendar days of receipt of an application, a
summary of an applicant's proposed activities is posted for public
viewing.
<bullet> Within 40 calendar days of receipt of an application, a
full permit application is posted for public viewing.
<bullet> Permit applications that include proposed activities
within the Northwestern Hawaiian Islands State Marine Refuge are also
posted to the Board of Land and Natural Resources (BLNR) website for
seven days prior to the scheduled BLNR meeting as part of the overall
BLNR submittal process. The
[[Page 4873]]
BLNR hearings and review process are open to the public.
All information provided in the application is reviewed by the
Monument co-trustees to evaluate the potential benefits of the
activity, determine whether the proposed methods will achieve the
proposed results, evaluate any possible detrimental environmental
impacts, and determine if issuance of a permit is appropriate. Factored
in is a consideration of whether the timeframe of the proposed action
is appropriate. Actions occurring within State waters are subject to a
maximum permit duration of one year, while multi-year permits may only
be issued outside of State waters. Therefore, consistent with existing
management, multi-year permits may be granted in areas of the sanctuary
that do not overlap with state waters.
Additionally, permits granted are documented within an annual
permitted activities report, published by the Monument. Reports for
previous years may be viewed on the Permitted Activities Annual Reports
website.
13. B-11 Comment: Commenters recommended that independent
cumulative impact assessments be required for all permit applications.
Response: Permit decisions are Federal actions which are subject to
NEPA, 42 U.S.C. 4321 et seq. In accordance with NEPA, NOAA considers
possible cumulative environmental impacts when considering Federal
actions, including a decision of whether to issue a permit.
14. B-12 Comment: Commenters expressed concern that a special use
permit would introduce commercial activities.
Response: In the Monument, some forms of commercial activity are
currently permitted under special ocean use permits. The existing
regulations at 50 CFR 404 for PMNM include permit criteria and
regulations for special ocean use, which means an activity or use of
the Monument that is engaged in to generate revenue or profits for one
or more of the persons associated with the activity or use, and does
not destroy, cause the loss of, or injure Monument resources. This
includes ocean-based ecotourism and other activities such as
educational and research activities that are engaged in to generate
revenue, but does not include commercial fishing.
Likewise, before issuing a SUP in the sanctuary, NOAA will also
ensure, among other things, that the requested activity is compatible
with the purposes for which the sanctuary is designated and with
protection of sanctuary resources, and is conducted in a manner that
does not destroy, cause the loss of, or injure sanctuary resources (16
U.S.C. 1441(c)). NOAA can place conditions on SUPs specific to the
activity being permitted. Individual permit applications that would
require a SUP are also reviewed with respect to all other pertinent
regulations and statutes, including NEPA (42 U.S.C. 4321 et seq.), and
any required consultations, permits, or authorizations. Accordingly,
there are sufficient safeguards in place for any activity proposed for
a SUP in the sanctuary, whether of a commercial or non-commercial
nature.
In addition, NOAA is not proposing any new SUP categories as part
of this designation. In order to do so, NOAA would be required to
provide appropriate public notice before identifying a new category of
activity subject to a SUP (16 U.S.C. 1441(b)).
15. B-13 Comment: Commenters asked why the sanctuary permit would
not allow for appeals of permit decisions.
Response: The permitting system for the sanctuary is modeled after
the existing Monument permitting system. The permitting system would
not supplant the joint permitting system for the Monument, and was
developed to ensure a continued joint permitting system administered by
the MMB. The existing permit system for the Monument does not include a
process to appeal a permit decision. Instead, a permit applicant may
seek reconsideration of a permitting decision by filing a new permit
application that redresses the issue(s) in the initial application that
caused the denial. To ensure consistency with the existing permit
system for the Monument, the National Marine Sanctuary Program
regulations at 15 CFR 922.37 for appeals of permitting decisions will
not apply to Papah[amacr]naumoku[amacr]kea National Marine Sanctuary.
This will ensure that permit decisions are not made solely by NOAA, but
in consideration with the other Monument co-trustees. See the final
EIS, Section 3.3.1 and Section IV.P of this final rule for discussion
of appeals of permitting decisions.
16. B-14 Comment: A commenter stated that the proposed rule's
definition of ``Native Hawaiian Practices'' provides a solid
foundation, but is concerned that ``Native Hawaiian'' is not defined.
The commenter requested that the definition should narrowly reference
indigenous practices and only those practices of the k[amacr]naka
maoli, who lived and thrived in Hawai[revaps]i prior to European and
American arrival.
Response: NOAA will not define ``Native Hawaiian'' in the sanctuary
regulations because the issuance of Native Hawaiian practices permit is
based on evaluating the activity against the permit criteria. To be
consistent with the types of activities permitted for the Monument, and
allow for an integrated permit process, NOAA will issue Native Hawaiian
practices permits based on the same permit review procedures and
additional evaluation criteria as those used for the Monument:
<bullet> The activity is non-commercial and will not involve the
sale of any organism or material collected;
<bullet> The purpose and intent of the 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;
<bullet> The activity benefits the resources of the Northwestern
Hawaiian Islands and the Native Hawaiian community;
<bullet> The activity supports or advances the perpetuation of
traditional knowledge and ancestral connections of Native Hawaiians to
the Northwestern Hawaiian Islands; and
<bullet> Any living sanctuary resource harvested under this permit
will be consumed or utilized in the sanctuary.
The permitting system for the sanctuary is modeled after the
existing Monument permitting system. The permitting system will not
supplant the joint permitting system for the Monument, and was
developed to ensure a continued joint permitting system administered by
the MMB. The existing permit system for the Monument does not define
Native Hawaiian, and instead provides a specific set of findings
criteria for a Native Hawaiian practice permit. The criteria for the
Monument Native Hawaiian practice permit were developed following a
workshop in 2004 facilitated by Kia[revaps]i Kai, a graduate program at
the Kamakak[umacr]okalani Center for Hawaiian Studies at the University
of Hawai[revaps]i at M[amacr]noa, collecting input from Native Hawaiian
cultural practitioners, fishermen, and others to create criteria for
culturally-appropriate activities in Papah[amacr]naumoku[amacr]kea.
Presidential Proclamation 8031 subsequently applied these criteria in
providing for additional findings for Native Hawaiian practice permits,
as did the Monument's implementing regulations at 50 CFR part 404.
However, while Native Hawaiian is not defined in the regulations,
the final EIS, recognizes a definition for the term Native Hawaiian per
existing Federal law as important background information for the
reader. See also the response to C.8.
[[Page 4874]]
17. B-15 Comment: Commenters requested that wind turbine activity,
in addition to mining and exploratory activities related to energy
development, be prohibited.
Response: Consistent with the presidential proclamations
establishing the Monument, NOAA will prohibit exploring for,
developing, or producing oil, gas, or minerals to protect sanctuary
resources. NOAA will also prohibit ``any energy development
activities'' 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. This includes, but is
not limited to, wind turbines and exploratory mining activity.
18. B-16 Comment: Commenters requested that submarine activity be
prohibited, with several comments specifically requesting prohibitions
on military submarine use.
Response: Access to the sanctuary, and therefore submarine use
within the sanctuary, would be prohibited and thus unlawful except
under the following circumstances: for emergency response actions, law
enforcement activities, and activities and exercises of the Armed
Forces; pursuant to a sanctuary permit; when conducting scientific
exploration or research activities by or for the Secretary of Commerce
and/or the Secretary of the Interior in the Outer Sanctuary Zone; and
when passing through the sanctuary without interruption. Further, all
regulations will be applied in accordance with generally recognized
principles of international law, as well as in accordance with
treaties, conventions, and other agreements to which the United States
is a party. No regulation shall apply to or be enforced against a
person who is not a citizen, national, or resident alien of the United
States (including foreign flag vessels) unless in accordance with
international law, or applicable treaties, conventions, and other
agreements.
The sanctuary regulations allow activities and exercises of the
U.S. Armed Forces. This is consistent with the existing management of
the Monument, as both Presidential Proclamation 8031 and Presidential
Proclamation 9478 provided broad exemptions for activities of the U.S.
Armed Forces. However, all activities and exercises of the Armed Forces
must be carried out in a manner that avoids, to the extent practicable
and consistent with operational requirements, adverse impacts on
sanctuary resources and qualities.
19. B-17 Comment: Commenters expressed concern regarding the
potential spread of invasive species and diseases from vessel transit
and biofouling, and requests that the prohibition on introducing
invasive species apply to all vessels, including those passing without
interruption.
Response: The sanctuary regulations will prohibit introducing or
otherwise releasing an introduced species from within or into the
sanctuary. The sanctuary regulations would also prohibit discharging or
depositing any material or other matter into the sanctuary. These
prohibitions are consistent with prohibitions identified in the
presidential proclamations establishing the Monument. These
prohibitions would apply to all vessels, including those passing
without interruption. A vessel may only pass without interruption
through the sanctuary without requiring a permit, as long as the vessel
does not stop or engage in prohibited activities within the sanctuary.
20. B-18 Comment: Commenters stated that the provisions of
Presidential Proclamation 8031, 50 CFR 404, Executive Order 13178 for
the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, and the
State of Hawai`i Northwestern Islands Marine Refuge should be applied
to the sanctuary regulations for the Monument Expansion Area and the
full sanctuary, and specifically the prohibitions regarding fishing.
Commenters also stated that Presidential Proclamation 9478 is too weak
and provides ``loopholes.''
Response: In drafting the sanctuary regulations, NOAA reviewed the
executive orders, presidential proclamations, and regulations that
currently guide Monument management. NOAA adopted the management
measures from these benchmarks, and, in a few areas, added to those
measures to allow for consistency in regulation and management across
the sanctuary. The sanctuary regulations are largely consistent with
Executive Order 13178, establishing the Northwestern Hawaiian Islands
Coral Reef Ecosystem Reserve (Reserve). Where the sanctuary regulations
do not align with Executive Order 13178, the regulations comply with
other applicable law including Presidential Proclamations 8031 and 9478
establishing PMNM and MEA, respectively, which succeeded the 2000
executive order establishing the Reserve. For example, while Executive
Order 13178 sets caps on commercial fishing, the sanctuary regulations
prohibit commercial fishing across the sanctuary, consistent with the
presidential proclamations. In addition, the MEA's location outside the
reserve, and other applicable law for that area such as Presidential
Proclamation 9478, account for differences in management, including for
non-commercial fishing.
NOAA also considered that while the Monument is managed as a unit,
several State and Federal conservation areas exist within it, where
specific authorities apply. For example, the State of Hawai[revaps]i
has primary responsibility for managing the State waters of the
Monument, including the State of Hawai[revaps]i Northwestern Islands
Marine Refuge. These existing authorities will still remain in effect.
The State of Hawai[revaps]i also served as a cooperating agency for the
EIS, allowing consideration and input into the draft documents.
Further, as the sanctuary overlaps with State waters, the State will
co-manage the sanctuary with NOAA, and the governor of Hawai[revaps]i
will also review NOAA's designation documents before the sanctuary
designation is final.
21. B-19 Comment: A commenter expressed support for the prohibition
on altering the seabed by modification or placement of materials,
except for scientific instruments, providing new protections for the
limited and sensitive habitats of the Outer Sanctuary Zone. The
commenter noted that access through permitting would allow managers to
review methodologies and monitor permittees, and that while minimal
user contact with the seafloor occurs or is anticipated in the Outer
Sanctuary Zone, these resources are rare and extremely vulnerable to
disturbance.
Response: NOAA agrees. 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 of Commerce and
Interior deem appropriate. Therefore, in the sanctuary, these
activities are prohibited unless conducted pursuant to a sanctuary
permit, and in the Outer Sanctuary Zone, such a permit may only be
issued for scientific instruments.
22. B-20 Comment: A commenter expressed concern for the prohibition
on anchoring a vessel, noting that for safety reasons, there are some
scenarios when a vessel should be able to anchor.
Response: Anchoring a vessel 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. NOAA will regulate anchoring a vessel for consistency with a
regulated activity
[[Page 4875]]
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 is new for the area of the
sanctuary that overlaps with the MEA. NOAA recognizes that there may be
scenarios where anchoring a vessel is necessary for safety. Consistent
with existing management of this area, the prohibitions for the
sanctuary, including the prohibitions on anchoring, will 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.
23. B-21 Comment: Commenters expressed concerns regarding the
sufficiency of enforcement in the sanctuary and the need for improved
monitoring and enforcement to protect sanctuary resources. Some
commenters specifically pointed out the need for increased monitoring
of pollution to prevent entanglement of marine life. Suggestions and
recommendations included improved or expanded monitoring and
surveillance, use of technology to aid enforcement including Automatic
Information Service and satellite monitoring, promulgation of strict
regulations, dedicated funding, a risk assessment framework for
vulnerable ecosystems, and increased collaboration with the National
Environmental Satellite, Data, and Information Service and the State of
Hawai[revaps]i for satellite management. Commenters also requested that
enforcement be conducted by traditional vessels or new technologies to
eliminate noise pollution that may impact marine life.
Response: With sanctuary designation, the NMSA provides various
regulatory tools and authorities for the protection of sanctuary
resources. This includes the authority to conduct enforcement
activities; assess civil penalties for violations of sanctuary
regulations or permits; 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; and issue emergency response regulations. In
addition, consistent with the existing management of the Monument, the
sanctuary implements regulations requiring VMS units for an owner or
operator of a vessel that has been issued a permit, as well as a ship
reporting system for vessels that pass without interruption through the
reporting areas. Both regulatory tools are intended to increase
monitoring, in order to assist enforcement activities by the U.S. Coast
Guard and NOAA's Office of Law Enforcement and further the protection
of sanctuary resources. Additionally, as described in the sanctuary
management plan (final EIS, Appendix A), NOAA will continue to monitor
ecosystems and seek out and develop new tools and technologies for
resource protection and monitoring (Strategy 1.2, Strategy 2.2,
Strategy 2.3); and to work with the existing interagency Law
Enforcement Coordination Team to enhance communication and coordination
among enforcement personnel in order to facilitate responses to
incidents and uphold sanctuary regulations and policies (Strategy 1.9).
NOAA will continue to actively work and advocate inside the
ecosystem protection framework established for the Monument to minimize
risks and damages to sanctuary resources. For example, ongoing research
aims to identify derelict fishing gear and other marine debris through
unique spectral signatures that can be visualized from space to record
locations and provide that information back to partners for removal.
This technology has the potential to greatly reduce the effort to
locate these hazards so that they can be removed from the environment.
Some broad risk assessment investigations have been conducted by the
Monument co-trustees (e.g., the Papah[amacr]naumoku[amacr]kea Marine
National Monument Climate Change Vulnerability Analysis (2014)),
however, much more remains to be done. Challenges include the vast
geographic extent of ecosystems and seasonal access limitations.
Conducting such assessments will require substantial time, as well as
the participation of all Monument co-trustee agencies.
Regarding reducing noise pollution from vessels to minimize
wildlife disturbances, uncrewed surface vehicle (USV) technology is
constantly improving and NOAA is exploring ways to utilize sail drones
and other vessel systems in order to maintain a physical presence in
sanctuary waters without having to dedicate staffed assets. These
uncrewed platforms can utilize satellites to transmit location, vessel
identification, and photographic evidence back to law enforcement
officials in order to expand the geographic capacity of their limited
resources.
24. B-22 Comment: Commenters recommended harsh penalties for those
who violate the regulations, including requests for permit violators to
be banned from receiving future permits.
Response: The NMSA authorizes NOAA to assess civil penalties for
violations of provisions of the NMSA, including sanctuary regulations
and permits. Each violation of the NMSA, any NMSA regulation, or any
permit issued pursuant thereto, is subject to a civil penalty. Each day
of a continuing violation constitutes a separate violation. The NMSA
has a statutory maximum of $216,972 per violation, per the December 27,
2023 annual adjustment for inflation (see 88 Federal Register 89300).
Additionally, the NMSA regulations provide a list of findings, in
addition to site-specific permit review criteria, which must be made
before issuing a permit, such as whether the activity will be
compatible with the primary objective of protection of sanctuary
resources and qualities. The NMSA regulations also provide for the
denial of a permit application based on various determinations,
including that the applicant has acted in violation of the terms and
conditions of a permit in a sanctuary in which the proposed activity is
to take place, or has acted in violation of any sanctuary regulation,
or for other good cause.
25. C-1 Comment: Commenters expressed support for Native Hawaiian
rights, including statements that access to the sanctuary should be
allowed for Native Hawaiians to connect with ancestors and
[revaps][amacr]ina and to perpetuate cultural practices based on pilina
(relationships), kuleana (responsibilities), and genealogical
connections to Papah[amacr]naumoku[amacr]kea. This includes voyaging,
which is vital for health, well-being, and in keeping Hawaiian culture
and language alive. Commenters also stated that the allowance of Native
Hawaiian traditional and customary practices should not be diminished
or limited through sanctuary designation.
Response: NOAA recognizes the importance of Native Hawaiians'
access to the sanctuary. Consistent with the presidential proclamations
designating the Monument, NOAA will allow for regulated access to the
sanctuary. Access will continue through a permit process. The sanctuary
includes a permitting system modeled after the existing Monument
permitting system, and was developed to allow for integration with the
Monument permitting system, to ensure continued joint permitting
administered by the MMB. The sanctuary has adopted the same permit
criteria as currently required for the Monument, including for Native
Hawaiian practices permits. See also the response to B.14.
The criteria for the Monument Native Hawaiian practices permit were
developed following a workshop in 2004 facilitated by Kia[revaps]i Kai,
a graduate
[[Page 4876]]
program at the Kamakak[umacr]okalani Center for Hawaiian Studies at the
University of Hawai[revaps]i at M[amacr]noa, collecting input from
K[amacr]naka [revaps][Omacr]iwi cultural practitioners, fishermen, and
others to create criteria for culturally-appropriate activities in
Papah[amacr]naumoku[amacr]kea. For more than 20 years, the
Papah[amacr]naumoku[amacr]kea Native Hawaiian Cultural Working Group
(CWG) has provided guidance and advice. The CWG is a group of
K[amacr]naka [revaps][Omacr]iwi k[umacr]puna (elders), researchers,
cultural practitioners, educators, and community members that have deep
connections and historical ties to Papah[amacr]naumoku[amacr]kea
through a living pilina (relationship), bound by genealogy, cultural
protocols, and values building contemporary multi-disciplinary research
and practice. Although the group is not a formalized advisory body, the
CWG and many of its members have been involved for over two decades
since the establishment of the Northwestern Hawaiian Islands Coral Reef
Ecosystem Reserve in 2000, and provide an important K[amacr]naka
[revaps][Omacr]iwi perspective that continues to inform Monument
management. Since 2007, there have been 34 Native Hawaiian practices
permits issued to perpetuate cultural practices ranging from
traditional voyaging navigator apprenticeship and training, Hawaiian-
led archaeological and cultural resource research, integrated cultural
and scientific ecosystem monitoring, resource gathering including bird
feathers/bones, and subsistence harvesting of fish, algae, and
invertebrates. The growing number of Native Hawaiian permits submitted
and issued provides significant support for and interest in conducting
Hawaiian cultural practices, with at least eight ongoing cultural
initiatives occurring on 27 separate expeditions.
26. C-7 Comment: A commenter expressed concern that the findings of
the Cultural Impact Assessment E Hoi I Ke Au A Kanaloa were not
integrated in the draft EIS and the Western Pacific Regional Fishery
Management Council's (WPRFMC) draft fishing regulations.
Response: Findings of the Cultural Impact Assessment E Hoi I Ke Au
A Kanaloa relating to the sanctuary proposal were addressed in Section
2.3.2, and more extensively in Chapter 5, of the draft EIS. NOAA is
preparing a separate proposed rule for regulations governing fishing in
the MEA under the authority of the MSA. Therefore, development and
analysis of non-commercial fishing regulations for the MEA is not part
of this action and was not analyzed in the draft or final EIS. NOAA and
the State encourage commenters to participate in the future public
review process for non-commercial fishing regulations in the MEA under
the authority of the MSA, and any associated NEPA and/or other
environmental compliance documentation.
27. C-8 Comment: A commenter expressed concern that ``Native
Hawaiian'' is not defined. The commenter recommended the following
language and definition be adopted and integrated into the final EIS:
Native Hawaiian is defined as ``any individual who is a descendant of
the aboriginal people who, prior to 1778, occupied and exercised
sovereignty in the area that now constitutes the State of
Hawai[revaps]i.'' The commenter also recommended the incorporation of
other self-identification names, including but not limited to
K[amacr]naka Maoli, K[amacr]naka [revaps][Omacr]iwi, and indigenous
peoples or indigenous Native Hawaiians.
Response: In the final EIS, NOAA recognizes a definition for the
term Native Hawaiian as it is commonly defined per existing Federal law
as any individual who is a descendant of the aboriginal people who,
prior to 1778, occupied and exercised sovereignty in the area that now
constitutes the State of Hawai[revaps]i. See Section 1.2.4. Throughout
the EIS, NOAA also uses K[amacr]naka [revaps][Omacr]iwi and/or
K[amacr]naka Maoli as terms that refer to Native Hawaiians.
28. D-1 Comment: Commenters expressed opposition to any new fishing
closures, citing reasons that included:
<bullet> Fishing becomes more difficult and expensive for
fishermen, including the Hawai[revaps]i longline fishery. The small
boat fishing industry will slowly go away;
<bullet> No scientific evidence that large marine reserves provide
conservation benefits to fish stocks;
<bullet> Fishing areas should be managed under Magnuson-Stevens
Fishery Conservation and Management Act (MSA), and closures do not
support MSA Standard 1: Conservation and management measures shall
prevent overfishing while achieving, on a continuing basis, the optimum
yield from each fishery for the United States fishing industry;
<bullet> Fishing closures do not meet the administration's mandate
for equity and justice for underserved communities;
<bullet> Fishing closures affect food security and well-being of
Native Hawaiians;
<bullet> Intergenerational transmission of fishing traditions will
be impeded or lost;
<bullet> Native Hawaiians should be able to fish for food; and
<bullet> Sanctuaries and fishing should be able to coexist.
Response: NOAA is not establishing any new fishing closures through
sanctuary designation. The sanctuary regulations regarding commercial
and non-commercial fishing are consistent with the existing Monument
and its management of the area. 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. 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, the fishing regulations included in the final
rule are consistent with Presidential Proclamation 9478 and the
existing management of the area. This includes prohibiting commercial
fishing and regulating non-commercial fishing pursuant to a sanctuary
permit or authorized under the MSA in the Outer Sanctuary Zone. The
final rule provides the first set of implementing regulation consistent
with directives in Presidential Proclamation 9478, which has the force
of law.
29. D-2 Comment: Commenters provided suggestions and
recommendations that appropriately regulated and monitored commercial
fishing, including longline fishing and trolling, should be allowed in
the sanctuary, as well as the ``small boat community.'' One commenter
stated that regulated traditional small boat fisheries should have a
place. One commenter also inquired whether opportunities/mechanisms for
future re-evaluation and allowance of commercial fishing in the
sanctuary exist. One commenter also stated that there should be fishing
line limits to reduce overfishing.
Response: In the sanctuary, fishing regulations are consistent with
existing applicable law in the Monument. Existing applicable law in the
area of the sanctuary prohibits commercial fishing. Presidential
Proclamation 8031,
[[Page 4877]]
and its implementing regulations at 50 CFR part 404, prohibits
commercial fishing for bottomfish and associated pelagic species in the
Monument after June 15, 2011. Presidential Proclamation 9478 also
prohibits commercial fishing in the MEA. Therefore, any consideration
of regulations allowing commercial fishing in the sanctuary would not
alter existing fishing prohibitions in the area. See the response to
D.1 for more detail.
30. D-3 Comment: Commenters expressed opposition to allowing
commercial fishing in Papah[amacr]naumoku[amacr]kea.
Response: For consistency with existing regulations and the
presidential proclamations establishing the Monument, regulations
include a sanctuary-wide prohibition on commercial fishing. See also
the responses to D.1 and D.2.
31. D-4 Comment: Commenters requested increased support for
monitoring and enforcing fishing prohibitions, and requesting that
international fishing vessels be prohibited.
Response: Existing applicable law in the area of the sanctuary
prohibits commercial fishing. NOAA and the State agree that monitoring
and enforcement of fishing prohibitions is critical to protecting
sanctuary resources. NOAA's Office of Law Enforcement and the U.S.
Coast Guard support enforcement efforts across the National Marine
Sanctuary System. To assist in this coordinated effort for Monument
enforcement, ONMS facilitates a Monument Law Enforcement Coordination
Team which is composed of law enforcement representatives from NOAA,
USFWS, U.S. Coast Guard, and Hawai[revaps]i Division of Conservation
and Resource Enforcement. This group meets regularly to coordinate
joint enforcement efforts in the Monument.
The designation of a national marine sanctuary provides the first
set of implementing regulations for the directives in Presidential
Proclamation 9478, including the prohibition on commercial fishing and
regulation on non-commercial fishing. By establishing these new
implementing regulations, NOAA will have new tools for enforcement,
including the enforcement of fishing regulations. Sanctuary designation
imparts a specific set of new benefits afforded by the NMSA, including
the authorization to assess civil penalties for violations of the NMSA,
including sanctuary regulations and permits.
Additionally, foreign fishing has remained prohibited in U.S.
waters since the introduction of the Magnuson-Stevens Fishery
Conservation and Management Act of 1976. This prohibition was enacted
on February 28, 1977 and remains in effect today with limited
exceptions related to international fishery agreements that predated
the MSA. There are no such allowances for foreign fishing activities
within the U.S. EEZ that surrounds Hawai[revaps]i.
Regarding monitoring, see also the responses to B.21 and K.2.
32. D-5 Comment: Commenters expressed opposition to allowing non-
commercial fishing and to the exemption (for non-commercial fishing in
the MEA) in the proposed sanctuary rule, based upon biological,
cultural, or co-management considerations. Out of concern for the
proposed exemption of non-commercial fishing permits, one commenter
suggested that non-commercial fishing permits should only be rarely
granted, and carry strict catch limits.
Response: The presidential proclamations that established the
Monument (8031 and 9478) served as benchmarks for drafting regulations
for the sanctuary. The presidential proclamations 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 authorizes sustenance fishing incidental
to an activity permitted in PMNM. Presidential Proclamation 9478
provides that non-commercial fishing is a regulated activity (i.e.,
allowed only with a permit) in the MEA, provided that the fish
harvested, either in whole or in part, cannot enter commerce through
sale, barter, or trade, and that the resource is managed sustainably.
In the sanctuary, for consistency with the proclamations, ``non-
commercial fishing'' is prohibited unless conducted pursuant to a
sanctuary permit or through an exemption for non-commercial fishing
authorized under the MSA in the Outer Sanctuary Zone (the area that
overlaps with the MEA).
In response to comments of concern for this exemption, NOAA has
made changes to the exemption for non-commercial fishing to ensure that
a non-commercial fishing permit authorized under the MSA is only exempt
from a limited subset of prohibited or otherwise regulated activities,
and that these exempted activities are only conducted as incidental to
and necessary to a lawful non-commercial fishing activity. NOAA has
also clarified that this narrow exemption from the sanctuary's
permitting requirements is only applicable provided that the fish
harvested, either in whole or in part, are neither intended to enter
commerce nor enter commerce through sale, barter, or trade and that the
resource is managed sustainably, consistent with Presidential
Proclamation 9478. Moreover, for the exemption to apply, the fish
harvested, either in whole or in part, must not be intended to be sold
and shall not be sold for any purposes, including, but not limited to,
cost-recovery. Corresponding changes have been made in the final EIS
Section 3.3.1.
NOAA is preparing a separate proposed rule for regulations
governing fishing in the MEA under the authority of the MSA, and will
invite the public to provide comments on the proposed non-commercial
fishing regulations for the MEA. NOAA and the State encourage
commenters to participate in the future public review process for non-
commercial fishing regulations in the MEA under the authority of the
MSA, including on the issuance of permits and catch limits, as those
are outside the scope of this action.
33. D-6 Comment: Some commenters stated that fishing should not be
restricted for Native Hawaiians and Indigenous populations and/or
cultural practices. One commenter emphasized that it is culturally
important to be able to bring fish home to share with family.
Response: Consistent with the existing management of the Monument
and the proclamations that established the Monument, NOAA would
continue to allow for regulated access to the sanctuary. K[amacr]naka
[revaps][Omacr]iwi and Indigenous communities may apply for a permit to
fish within the sanctuary. For consistency with the proclamations that
established the Monument, ``non-commercial fishing'' is prohibited in
the Sanctuary unless conducted pursuant to a sanctuary permit or
authorized under the MSA in the Outer Sanctuary Zone. See the response
to D.5. In the Outer Sanctuary Zone, the sanctuary regulations will not
restrict the sharing of fish from non-commercial fishing activities
authorized under the MSA.
34. D-7 Comment: A commenter requested that sustenance fishing be
the only form of fishing allowed in the proposed sanctuary; and that
there be a requirement that fish caught be consumed within the
sanctuary, and not taken outside of the sanctuary. Others requested
that sustenance fishing be allowed conditionally. Suggested conditions
include by location; by permit type, and by sustainability criteria:
(1) the activity must be ``pono;'' (2) the activity must benefit the
resources of the Northwestern Hawaiian Islands and the Native Hawaiian
community; and (3) any resource
[[Page 4878]]
harvested from the Monument must be consumed in the Monument. Finally,
one commenter supported defining sustenance fishing as a Native
Hawaiian practice.
Response: Sustenance fishing is currently allowed incidental to an
activity permitted in PMNM, pursuant to Presidential Proclamation 8031,
and the implementing regulations at 50 CFR part 404. Sustenance fishing
was not specifically identified in Presidential Proclamation 9478
governing the MEA, but is considered a form of non-commercial fishing
which may be regulated. For consistency in management and permitting,
NOAA will manage this activity as a term or condition of a general
permit or special use permit for the sanctuary, outside of any special
preservation area. NOAA's sanctuary permit will follow the conditions
of the existing Monument permitting system, including the
considerations that sustenance fishing must be conducted only for the
purpose of providing sustenance in support of activities otherwise
allowed under an established permit and that the harvested resource
must be consumed within the Monument.
In the Outer Sanctuary Zone, other types of non-commercial fishing
may be allowed, consistent with the proper care and management of
sanctuary resources and monument objects. Sanctuary designation
provides the first set of implementing regulations for many of the
directives in Presidential Proclamation 9478, including the regulation
of non-commercial fishing in the MEA. Presidential Proclamation 9478
stated that non-commercial fishing may be regulated ``provided that the
fish harvested, either in whole or in part, cannot enter commerce
through sale, barter, or trade, and that the resource is managed
sustainably.'' Consistent with this proclamation, some forms of non-
commercial fishing beyond sustenance fishing may be allowed in the MEA/
Outer Sanctuary Zone.
NOAA is preparing a separate proposed rule for regulations
governing fishing in the MEA under the authority of the MSA, and will
invite the public to provide comments on the proposed non-commercial
fishing regulations for the MEA. NOAA and the State encourage
commenters to participate during that process.
35. D-8 Comment: Some commenters suggested that only subsistence
fishing be allowed in the proposed sanctuary.
Response: In State of Hawai[revaps]i waters, extending three miles
seaward of any coastline (excluding Midway Atoll), Native Hawaiian
subsistence fishing, as defined by the State of Hawai[revaps]i, may be
allowed. NOAA acknowledges that the Monument's managing agencies define
sustenance and/or subsistence fishing in different ways. Regardless, in
PMNM, all fish caught shall be consumed within the Monument. Within the
sanctuary, sustenance fishing would continue to be allowed (outside of
the special preservation areas) to provide sustenance in support of
activities otherwise allowed under an established permit.
36. D-9 Comment: Commenters asked why regulations have not been
issued for the MEA to manage non-commercial fishing.
Response: President Obama issued Presidential Proclamation 9478 on
August 31, 2016, which established the MEA. On September 23, 2016, NOAA
Fisheries requested that the Western Pacific Regional Fishery
Management Council (WPRFMC) develop recommendations to establish
fishing regulations under the MSA, including the prohibition on
commercial fishing and the regulation of non-commercial fishing within
the MEA. However, no further action was taken by the WPRFMC in response
to Presidential Proclamation 9478 at that time. NOAA cannot speculate
as to why WPRFMC decided not to take action at that time.
NOAA is preparing a separate proposed rule for regulations
governing fishing in the MEA under the authority of the MSA to reflect
the outcome of the WPRFMC recommendation and the NMSA Section 304(a)(5)
process. Appendix C to the final EIS provides further details of this
consultation process.
37. D-10 Comment: Commenters expressed concern regarding the
exemption of non-commercial fishing in the MEA, and that the issuance
of non-commercial fishing permits will open the door to other types of
fishing in Papah[amacr]naumoku[amacr]kea. Commenters also expressed
concern that a sanctuary designation would remove existing protections
that prohibit various forms of fishing. One commenter recommended
removing the exemption of non-commercial fishing to allow for more
dialogue with the Native Hawaiian community.
Response: See the responses to D.5 and F.4. Sanctuary designation
does not remove any existing protections that prohibit fishing. For
consistency with the presidential proclamations establishing the
Monument and the regulations at 50 CFR part 404, the sanctuary
regulations will authorize limited forms of fishing.
38. D-11 Comment: Commenters expressed support for allowing
recreational fishing, to sustain the community and to allow for
cultural and traditional practices. One commenter recommended that
recreational fishing be monitored and regulated; that recreational
fishers be required to attend courses to receive permits; and that NOAA
and the State of Hawai[revaps]i update methods of data collection for
recreational fishing. Another commenter suggested imposing fees for
recreational fishing. Other commenters requested that NOAA implement
measures to prevent recreational fishers from targeting ``trophy''
fish, and to limit fishing in general, to stem overfishing.
Response: For consistency with the proclamations, ``non-commercial
fishing'' is prohibited in the Sanctuary unless conducted pursuant to a
sanctuary permit or, as discussed below, through an exemption for non-
commercial fishing authorized under the MSA in the Outer Sanctuary
Zone. The final 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 will 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.
Any requirements for non-commercial fishing permits authorized by
NOAA Fisheries under the MSA are outside the scope of this action. NOAA
is preparing a separate proposed rule for regulations governing fishing
in the MEA under the authority of the MSA, and will invite the public
to provide comments on the proposed non-commercial fishing regulations.
NOAA and the State encourage commenters to provide input during the
public review process for non-commercial fishing in the MEA.
39. D-12 Comment: A commenter expressed opposition to the issuance
of permits for recreational fishing in the MEA.
Response: Please see the response to D.11. As required by Section
304(a)(5) of the NMSA, NOAA consulted with the WPRFMC to recommend any
draft fishing regulations it deemed necessary to implement the
sanctuary designation.
[[Page 4879]]
The WPRFMC determined it was necessary to develop non-commercial
fishing regulations, including for recreational fishing, for the area
of the proposed sanctuary that overlaps with the MEA
40. D-13 Comment: Commenters expressed support for non-commercial
fishing in the MEA proposed by WPRFMC, including allowing sale and/or
cost recovery.
Response: In accordance with Section 304(a)(5) of the NMSA, NOAA
provided the WPRFMC with the opportunity to recommend any draft fishing
regulations it deemed necessary to implement the proposed sanctuary
designation. NOAA accepted the majority of the WPRFMC's recommendation,
including those parts that were found to fulfill the purposes and
policies of the NMSA and the goals and objectives of the proposed
sanctuary designation. However, the WPRFMC's recommendation providing
Native Hawaiian subsistence practices fishing permit applicants the
ability to request limited cost recovery by selling their catch failed
to fulfill the purposes and policies of the NMSA and the goals and
objectives of the proposed sanctuary designation (see NOAA Response
Letter dated on May 31, 2023, in the final EIS Appendix C.1). NOAA is
preparing a separate proposed rule under the MSA to reflect the outcome
of the NMSA Section 304(a)(5) consultation process. Appendix C to the
final EIS provides further details on this consultation process.
41. D-14 Comment: Commenters expressed opposition to the annual
catch limits proposed by WPRFMC. Several comments expressed concern
that it does not align with Native Hawaiian cultural or subsistence
practices. One commenter suggested additional involvement from the
Native Hawaiian community and the Office of Hawaiian Affairs (OHA) on
this matter.
Response: Any requirements and conditions for non-commercial
fishing permits authorized by the MSA are outside the scope of this
action. NOAA is preparing a separate proposed rule for regulations
governing fishing in the MEA under the authority of the MSA, and will
invite the public to provide comments on the proposed non-commercial
fishing regulations, including the catch limits. NOAA and the State
encourage commenters to participate in the future public review process
for non-commercial fishing in the MEA.
42. D-15 Comment: Commenters expressed opposition to any sale,
barter, or trade and the cost recovery mechanism proposed by WPRFMC.
Comments also expressed concern regarding WPRFMC's definition of
``customary exchange'' and that it does not align with Native Hawaiian
cultural or subsistence practices.
Response: NOAA agrees with some aspects of this comment. See the
response to D.13 for information on NOAA's consideration of the
WPRFMC's recommended fishing regulations, and the response to D.5 for
details of the exemption for non-commercial fishing. NOAA has narrowed
this exemption, making it only applicable provided that the fish
harvested, either in whole or in part, are neither intended to enter
commerce nor enter commerce through sale, barter, or trade and that the
resource is managed sustainably, consistent with Presidential
Proclamation 9478. Moreover, for the exemption to apply, the fish
harvested, either in whole or in part, are not intended to be sold and
shall not be sold for any purposes, including, but not limited to,
cost-recovery. See the final EIS, Section 3.3.1. The WPRFMC's final
recommendation (April 23, 2023) did not include a definition of
``customary exchange'', and NOAA ONMS has not included a definition of
customary exchange in the sanctuary regulations.
43. D-16 Comment: Commenters requested that NOAA reject the
proposed non-commercial fishing regulations by NOAA Fisheries and
WPRFMC.
Response: NOAA accepted the majority of the WPRFMC's recommendation
as it was found to fulfill the purposes and policies of the NMSA and
the goals and objectives of the proposed sanctuary designation.
However, NOAA did reject a portion of the WPRFMC's recommendation that
would have allowed sale of catch under a Native Hawaiian subsistence
fishing practices permit, as it was not found to fulfill the goals and
objectives of the sanctuary designation. See the response to D.13, as
well as Appendix C to the final EIS, for further details of this
consultation process.
44. D-17 Comment: Commenters expressed concern for a portion of the
WPRFMC's recommendation on ``research fishing,'' and definition that
would include ``research fishing'' as a form of non-commercial fishing.
Response: NOAA is preparing a separate proposed rule for
regulations governing fishing in the MEA under the authority of the
MSA, based on the WPRFMC's recommendations. NOAA and the State
encourage commenters to provide additional input, including on research
fishing, to the future public review process for non-commercial fishing
regulations in the MEA.
45. D-18 Comment: A commenter expressed concern that while
resources in the Monument are a co-management trust responsibility, the
proposed fishing regulations for the MEA have been developed without
adequate inclusion of the perspectives of the Monument co-managers.
Response: NMSA Section 304(a)(5) required NOAA to consult with the
WPRFMC to recommend any draft fishing regulations it deemed necessary
to implement the sanctuary designation. The State of Hawai[revaps]i
maintains voting seats, and the USFWS maintains non-voting seats on the
WPRFMC. The WPRFMC determined it was necessary to develop non-
commercial fishing regulations under the MSA, for the area of the
proposed sanctuary that overlaps with the MEA. In accordance with the
Section 304(a)(5) process, NOAA accepted those parts of the WPRFMC's
recommendation that fulfilled the purposes and policies of the NMSA and
the goals and objectives of the proposed sanctuary designation, and
rejected those parts that did not. Under the MSA's rulemaking process,
the WPRFMC will transmit its recommendation to NOAA Fisheries, who will
then prepare a proposed rule for non-commercial fishing regulations in
the MEA under the MSA.
46. D-19 Comment: Commenters expressed concern regarding the
separation of the NOAA Fisheries fishing regulations from the sanctuary
designation process, which lacks transparency and thorough analysis of
potential impacts. Commenters also requested an additional EIS and a
public review of the proposed fishing regulations for the MEA.
Commenters expressed concern that the proposed fishing regulations were
developed in an improper sequence and there was no timeline included.
Commenters also stated that impacts of WPRFMC's proposed non-commercial
fishing regulations should have been analyzed within the draft EIS.
Response: NOAA acknowledges the confusion regarding the timeline of
proposed fishing regulations for the MEA. NOAA Fisheries is responsible
for fisheries management under the MSA and is preparing a separate
proposed rule for regulations governing fishing in the MEA under the
authority of the MSA. NOAA Fisheries will analyze the environmental
impacts of the non-commercial fishing regulations in the MEA under the
authority of the MSA in a manner consistent with NEPA. NOAA has made
revisions in sections 1.4 and 3.7.2 of the final EIS to clarify this.
NOAA and the State encourage commenters to participate in the future
[[Page 4880]]
public review process for non-commercial fishing regulations in the MEA
under the authority of the MSA.
47. D-23 Comment: A commenter recommended that any activity
relating to the extraction of fish be led by Native Hawaiians.
Response: The permitting system and regulations for the sanctuary
is modeled after the existing Monument regulations and permitting
system. The permitting system would not supplant the joint permitting
system for the Monument, and was developed to ensure a continued joint
permitting system administered by the MMB. While the presidential
proclamations establishing the Monument broadly restrict the harvest of
fishery resources, and identify certain types of non-commercial fishing
that may be regulated (i.e., allowed pursuant to a permit or incidental
to a permitted activity), there are no restrictions as to who may apply
for a permit. Sanctuary designation will not change this.
48. D-24 Comment: Commenters expressed opposition to allowing any
form of fishing in the proposed sanctuary. Some associated comments
stated opposition to the removal of any wildlife from the proposed
sanctuary.
Response: See the response to D.1. The presidential proclamations
establishing the Monument broadly restrict the harvest of fishery
resources and further specify prohibitions on commercial fishing and
identify certain types of non-commercial fishing that may be regulated.
In the sanctuary, regulations for fishing are consistent with the
proclamations and existing management of the area.
49. D-25 Comment: A commenter requested that, in the event of a
natural disaster occurring with severe impacts to the food supply of
Hawai[revaps]i, the proposed sanctuary should allow for sustenance
fishing and sharing of fish with community.
Response: NOAA cannot speculate about how the NMSA and other
authorities may or may not be used in the future scenario described by
the commenter. However, in the Outer Sanctuary Zone (MEA), the
sanctuary regulations will not restrict the sharing of fish from non-
commercial fishing activities authorized under the MSA.
50. D-26 Comment: A commenter emphasized that new sanctuary
regulations should be limited to those relating to the seafloor and
islands within the MEA, as the MSA already provides for the management
of fisheries in all U.S. waters.
Response: NOAA may regulate fishing under the MSA and the NMSA. See
also the response to D.9. While NOAA may regulate fishing under NMSA,
and regulates fishing in the sanctuary consistent with the existing
management of the area, per section 304(a)(5) of the NMSA, NOAA also
provided the WPRFMC with the opportunity to recommend any draft fishing
regulations it deemed necessary to implement the proposed sanctuary
designation. NOAA is preparing a separate proposed rule for regulations
governing fishing in the MEA under the authority of the MSA to reflect
the outcome of the NMSA section 304(a)(5) process.
51. D-27 Comment: A commenter expressed opposition to any
prohibitions that may affect existing community-based subsistence
fishery areas, and requested that NOAA incorporate language that
explicitly includes community- and cultural-based subsistence-based
fishing practices as part of protected Native Hawaiian customs and
practices.
Response: Community-based subsistence fishery areas are locally
based, legally designated areas in the Main Hawaiian Islands where
communities and the state government work together to protect and
support traditional Hawaiian fishing practices. To date, there have
been no community-based subsistence fishery areas established within
Papah[amacr]naumoku[amacr]kea. Since these areas are typically
initiated at the local level by communities seeking enhanced protection
of their nearshore resources, the future establishment of a community-
based subsistence fishery area within Papah[amacr]naumoku[amacr]kea is
unlikely. As such, a discussion of such areas is beyond the scope of
this action. For a description of how culturally-based subsistence
fishing practices are addressed within the sanctuary, please see the
response to D.8.
52. E-1 Comment: Commenters asked how a proposed sanctuary would
modify the existing co-management structure for the Monument.
Commenters requested articulation of roles of OHA, USFWS, and the State
of Hawai[revaps]i, specifically who has jurisdiction in which areas, as
well as requested that the EIS provide a detailed governance framework
and a dispute resolution process for the proposed sanctuary. Commenters
also stated that the draft EIS and/or draft sanctuary management plan
did not clearly articulate how the sanctuary would function in
coordination with the existing Monument, nor articulate how the
Monument co-trustee's authorities could be used to supplement and
complement NOAA authorities. One commenter suggested that NOAA provide
a graphic depicting the relationship of the proposed sanctuary with
existing Monument management. Finally, some commenters questioned if
there are deficiencies in the existing Monument management framework,
while one commenter stated that the proposed sanctuary rule has led to
confusion over the legitimacy of the Monument co-management framework.
Response: The existing Monument is jointly administered by the four
co-trustees (DOC, DOI, State of Hawai[revaps]i, and OHA) through the
seven-member MMB. ONMS and NOAA Fisheries collaborate to fulfill DOC's
co-trustee responsibilities under the Monument, and ONMS serves on the
seven-member MMB. A graphic of the existing management structure is
described in the final EIS Section 3.2. Sanctuary designation will not
change the existing management structure, and ONMS' role within the
management framework will remain, with the added authority provided by
the NMSA. Additional information has been added to the sanctuary
management plan in sections 1 (About This Document) and 2 (Cooperative
and Coordinated Management) and Acknowledgements to clarify this. NOAA
has also made revisions to the description of the No Action Alternative
in Section 3.2 of the final EIS to better articulate the existing roles
of each Monument co-trustee, including their jurisdiction and
authorities that guide their role in managing the Monument. Existing
authorities, including management authorities of all Monument co-
trustees, will remain in effect under all action alternatives.
As a result of the existing Monument management framework, of which
ONMS is a critical part, the final rule and sanctuary management plan
have been specifically designed to be consistent with the current
management framework, and to allow for seamless operations between the
Monument and sanctuary. The sanctuary will supplement and complement
existing management of the Monument, and not replace or diminish the
existing management of the Monument. In accordance with the NMSA, in
designating a sanctuary, NOAA determines if existing authorities should
be supplemented to ensure coordinated and comprehensive conservation
and management of the area.
NOAA has provided additional details clarifying consistency with
the management framework in Section 3.3.1 of the final EIS.
Specifically, NOAA will work in cooperation with the Monument co-
trustees to update the existing MOA for the Monument with
[[Page 4881]]
the State of Hawai[revaps]i, DOI/USFWS, and OHA to reflect the addition
of the sanctuary. Further, the existing Monument MOA includes a
provision that states that ``in the event of the designation of the
Monument or any portion of the Monument as a National Marine Sanctuary
under the National Marine Sanctuaries Act, nothing herein shall be
construed as automatically terminating or otherwise amending this
Agreement.''
53. E-2 Comment: Commenters expressed concerns regarding the
exclusion of some of the Monument co-trustee agencies from co-
management of the sanctuary. Commenters requested that NOAA co-manage
the sanctuary with all of the Monument co-trustees (DOI, OHA, and the
State of Hawai[revaps]i), and that NOAA should receive approval from
and/or collaborate with the other co-trustees regarding decision making
for the sanctuary. Commenters also requested that a MOA be developed to
articulate the governance framework for the sanctuary, and any co-
management agreement.
Response: NOAA has clarified in the final rule and the final EIS
(see final EIS Section 3.3.1, final rule Section IV.D, and sanctuary
management plan Section 2) how the sanctuary will be managed in
partnership with USFWS and OHA. In the proposed rule, NOAA proposed
that the sanctuary would be co-managed with the State of Hawai`i.
Recognition of the State of Hawai`i as a co-manager was not meant to
exclude the other Monument co-trustees, USFWS and OHA. To the contrary,
partnerships with other Federal and State agencies with overlapping
jurisdiction are critical to the success of the National Marine
Sanctuary System. In the proposed regulations, NOAA was trying to
explain the role that states may have in co-managing a sanctuary under
the NMSA if all or part of the proposed sanctuary is within the
territorial limits of any state. In the final regulations and
management plan, NOAA has added new text regarding how NOAA will manage
the sanctuary in partnership with the other Monument co-trustees, DOI/
USFWS and OHA, as the existing co-management structure of
Papah[amacr]naumoku[amacr]kea Marine National Monument is critical to
the success of the sanctuary.
NOAA intends to, in cooperation with the Monument co-trustees,
update the existing MOA for the Monument between the State of
Hawai[revaps]i, DOI/USFWS, and OHA to reflect the addition of the
sanctuary. NOAA is developing an MOU with the USFWS to provide details
on using supplemental authority under the NMSA to protect resources
where the sanctuary overlaps with national wildlife refuges. Finally,
the sanctuary management plan was developed in consultation with the
State, USFWS, and OHA to explicitly ensure concurrence of plans between
the sanctuary and the Monument. Additional language has been added to
the sanctuary management plan (Appendix A) to better reflect the goal
of cooperative management with the Monument co-trustees.
54. E-3 Comment: Commenters requested that the final EIS should
include a clear description of the permitting system for the proposed
sanctuary and how it would relate to the existing Monument permitting
system, including how sanctuary permits would be reviewed, approved,
and conditioned. Commenters expressed that NOAA should not have sole
authority over permitting for activities in the area of the sanctuary
and Monument; that only one permitting system should apply to the area;
that permits should be approved by all Monument co-trustees; and that
the Monument permit process should be amended to include sanctuary
permitting. One commenter expressed concern regarding the proposed
special use permit, which allows for fee collection for permit
processing. The commenter questioned how this would work alongside the
Monument permit process, and asked if NOAA would keep fees internally,
or divide fees received equitably amongst Monument co-managers.
Response: The Monument's joint permitting system has been in place
and permits have been issued by the co-trustees since 2007. The unified
Monument permitting process includes a unified Monument permit
application, instructions, and template (see final EIS Section 3.2).
All permitted activities in PMNM are authorized under the issuance of a
single Monument permit signed by the USFWS, NOAA, and the State of
Hawai[revaps]i, in cooperation with OHA. The sanctuary permitting
system would complement the existing Monument permitting system, and
was developed to allow for integration with the Monument permitting
system, to ensure continued joint permitting administered by the MMB,
which includes ONMS. The sanctuary permitting system would not supplant
the joint permitting system for PMNM. The sanctuary permit categories
were designed to provide the same management function and permittee
interface as the current Monument permit categories. The sanctuary
adopts the same permit criteria as currently required for Monument
permits, including the additional criteria for Native Hawaiian
practices and recreation permits. To provide more clarity, NOAA has
updated its description of the sanctuary permitting process in the
final EIS, Section 3.3.1.
Prior to sanctuary designation, regulations to issue permits in the
MEA had not been established and activities in the MEA have been
approved via a Letter of Authorization signed by USFWS. The co-trustees
agreed to implement this USFWS process as an interim measure. Sanctuary
designation provides the first set of implementing regulations
consistent with directives in Presidential Proclamation 9478, including
regulations for permitting, in addition to governing the sanctuary.
Regarding special use permits, NOAA intends for any issuance of
special use permits to be done so in coordination with the existing
permit process. NOAA points out that while the Monument is jointly
administered, some areas are also guided by other specific authorities.
For example, USFWS has the authority to charge fees for services
including public visitation (50 CFR part 25 Subpart E) in areas of the
Monument that also fall within a national wildlife refuge. NOAA's
authority to collect fees for special use permits provides Monument
managers with a larger area, beyond the national wildlife refuges, for
which permit fees may be collected for specific activities. In
accordance with the NMSA, NOAA may recover administrative costs for
staff time to review and take action on the permit, and for a fair
market value for use of the sanctuary. While this authority may be
used, the collection of fees is not required. Further, NOAA is not
proposing any new category of activity subject to a special use permit
as part of this designation, and due to the existing regulations for
the Monument and the sanctuary, the issuance of special use permits is
expected to be limited.
55. E-4 Comment: Commenters expressed concern regarding the
proposed process for permitting non-commercial fishing in the MEA.
Commenters specifically stated that any fishing permits should also
require a consistency review by the Monument co-managers. Some
commenters suggested that non-commercial fishing in the MEA should be
part of a single permitting process for the sanctuary and/or Monument,
and not done through a separate process, noting that any permits that
authorize resource extraction should be reviewed by the MMB.
Response: NOAA's ONMS will not issue non-commercial fishing permits
as part of the sanctuary regulations, but
[[Page 4882]]
will allow sustenance fishing as a term or condition of a permit,
consistent with existing management of the Monument. In response to a
recommendation for fishing regulations in the MEA by the WPRFMC, NOAA
Fisheries is preparing a separate proposed rule for regulations
governing fishing in the MEA under the authority of the MSA, will
complete the environmental compliance requirements, and will accept
public comment on the proposal. NOAA and the State of Hawai[revaps]i
encourage the commenter to review and participate in the future public
review process for the proposed rule and any associated NEPA and/or
other environmental compliance documentation for non-commercial fishing
regulations in the MEA.
56. E-5 Comment: Commenters expressed concern regarding potential
conflicts between the proposed sanctuary permitting process and
permitting authorized by the USFWS for the Midway Atoll and Hawaiian
Islands National Wildlife Refuges. One commenter stated that the USFWS
has an existing process to review and issue permits to regulate use of
the national wildlife refuges for research, education, management, and
recreation. A commenter suggested the development of a MOU among USFWS,
NOAA, and the State of Hawai[revaps]i to clarify the permit process,
which should include provisions for dispute resolution and for
emergency situations when actions are necessary to protect human health
and safety on Midway Atoll. Commenters also expressed concern regarding
the permitting of activities in the MEA, including questioning why NOAA
does not recognize DOI's authority to issue permits in the MEA, and
requested that any new permitting in the MEA should be done following
agreement with the MMB. Finally, one commenter questioned if the USFWS
would need to acquire permits from NOAA for management activities in
the national wildlife refuge waters.
Response: NOAA has added additional clarification in the final rule
and the final EIS (see Section 3.3.1 and Section IV.D in the preamble
of the final rule) regarding how the sanctuary will be managed in
partnership with other agencies. In addition to co-management with the
State, NOAA will manage the sanctuary in partnership with the USFWS and
OHA consistent with the management of the Monument. NOAA will work in
cooperation with Monument co-trustees to update the memorandum of
agreement for the Monument with the State of Hawai`i, DOI/USFWS, and
OHA that reflects the addition of the sanctuary, and specifically
addresses how the addition of a sanctuary will supplement and
complement, and not supplant, the existing Monument management
framework. NOAA and USFWS are developing an agreement to provide
details on the execution of sanctuary management where the national
marine sanctuary overlaps with Midway Atoll National Wildlife Refuge
and Hawaiian Islands National Wildlife Refuge, and will consider if
provisions are needed for dispute resolution and for emergency
situations when actions are necessary to protect human health and
safety on Midway Atoll.
Management of the MEA is governed by Presidential Proclamation
9478. Prior to sanctuary designation, regulations to issue permits in
the MEA had not yet been established and activities in the MEA have
been approved via a Letter of Authorization signed by USFWS. The co-
trustees agreed to implement this USFWS process as an interim measure.
Sanctuary designation provides the first set of implementing
regulations, including regulations for permitting, in the MEA.
57. E-6 Comment: Commenters requested that NOAA co-manage the
sanctuary specifically with the USFWS, and/or that NOAA consult with
USFWS for decision making and environmental analysis in the proposed
sanctuary. Some commenters also requested that NOAA recognize the
authority of the USFWS, that NOAA not supersede the authority of the
USFWS, and that NOAA acknowledge that the USFWS has sole authority for
certain decisions in the national wildlife refuges. Some commenters
expressed concern that the proposed sanctuary would give NOAA and the
State of Hawai[revaps]i precedence over USFWS management of refuge
waters. One commenter recommended that a MOA be developed and signed by
the Secretaries of Interior and Commerce, and that a 3rd party neutral
facilitator be selected to oversee implementation of the MOA. The
commenter specified that the MOA should be reviewed and updated, as
needed, every five years.
Response: NOAA will manage the sanctuary in partnership with the
USFWS. Nothing in the establishment of the national marine sanctuary
will diminish USFWS's authority to administer Midway Atoll National
Wildlife Refuge and Hawaiian Islands National Wildlife Refuge under the
National Wildlife Refuge System Administration Act. Where
Papah[amacr]naumoku[amacr]kea National Marine Sanctuary overlays Midway
Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife
Refuge, NOAA will implement the National Marine Sanctuaries Act to
provide supplemental authority to protect resources.
In other sanctuary sites, when there is jurisdictional overlap
between NOAA and USFWS, the agencies have worked to implement their
respective authorities in a manner that complements, but does not
diminish or interfere with, existing authorities and strengthens
existing protections and management. NOAA and USFWS are developing an
agreement to provide details on the execution of sanctuary management
where the national marine sanctuary overlaps with Midway Atoll National
Wildlife Refuge and Hawaiian Islands National Wildlife Refuge. Any
agreement developed between NOAA and the USFWS will be updated as
needed, as determined by the agencies.
58. E-7 Comment: Commenters requested that NOAA co-manage the
sanctuary specifically with OHA. Commenters emphasized that excluding
OHA would be akin to suppressing Native Hawaiian voices and/or usurping
the sovereignty of OHA. Commenters requested that NOAA consider
temporarily halting sanctuary designation until Federal law allows for
explicit co-management structures that include native governing bodies
as equal decision-makers, and requested that NOAA work with OHA and the
Native Hawaiian community to achieve the ability for Indigenous
governing bodies to be eli
[…truncated; see source link]Indexed from Federal Register on January 16, 2025.
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.