51134 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Rules and Regulations 

S6.1.4.1 Vehicles manufactured on 

or after September 1, 1998 and before 

September 1, 2007 are not required to 

comply with the requirements specified 

in S7. 

S6.1.4.2 Vehicles manufactured on 

or after September 1, 2007 shall comply 

with the requirements specified in S7. 

* * * * * 

Issued on: August 22, 2006. 

Nicole R. Nason, 

Administrator. 

[FR Doc. E6–14259 Filed 8–28–06; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 404 

[Docket No. 060824225–6225–01] 

RIN 0648–AU82 

Northwestern Hawaiian Islands Marine 

National Monument 

AGENCIES: National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce (DOC); United 

States Fish and Wildlife Service 

(USFWS), Department of the Interior 

(DOI). 

ACTION: Final rule. 

SUMMARY: NOAA and the USFWS are 

issuing final regulations for the 

Northwestern Hawaiian Islands Marine 

National Monument. This action 

codifies the prohibitions and 

management measures set forth in 

Presidential Proclamation 8031 

establishing the Monument. The rule is 

effective immediately. 

DATES: Effective date: These regulations 

are effective August 25, 2006. Written 

comments on the information collection 

requirement must be received by 

October 30, 2006. 

ADDRESSES: Submit written comments 

regarding the burden-hour estimates or 

other aspects of the information 

collection requirements contained in 

this proposed rule by e-mail to Diana 

Hynek at dHynek@noaa.gov. 

Coordinates for the outer boundary of 

the Monument, the Special Preservation 

Areas, the Ecological Reserves, and the 

Midway Atoll Special Management Area 

can be found at: http:// 

hawaiireef.noaa.gov/management/. 

FOR FURTHER INFORMATION CONTACT: 

NOAA contact: T. Aulani Wilhelm, 

Monument Superintendent (NOAA); 

6600 Kalanianaole Highway, #300, 

Honolulu, HI 96825; (808) 397–2657. 

FWS contact: Barry Stieglitz, 

Monument Project Leader (USFWS); 

Hawaiian and Pacific Islands NWR 

Complex, 300 Ala Moana Boulevard, 

Box 50167, Honolulu, HI 96850–5000; 

808–792–9540. 

State of Hawaii contact: Athline 

Clark, Special Projects Manager, 

Department of Land and Natural 

Resources, Division of Aquatic 

Resources; 1151 Punchbowl Street, 

Room 330, Honolulu, HI 96813; (808) 

587–0099. 

SUPPLEMENTARY INFORMATION: On June 

15, 2006, President Bush established the 

Northwestern Hawaiian Islands Marine 

National Monument by issuing 

Presidential Proclamation 8031 (71 FR 

36443, June 26, 2006) under the 

authority of the Antiquities Act (Act) 

(16 U.S.C. 431). The Proclamation 

reserves all lands and interests in lands 

owned or controlled by the Government 

of the United States in the Northwestern 

Hawaiian Islands (NWHI), including 

emergent and submerged lands and 

waters, out to a distance of 

approximately 50 nautical miles (nmi) 

from the islands. The outer boundary of 

the Monument is approximately 100 

nmi wide and extends approximately 

1200 nmi around coral islands, 

seamounts, banks, and shoals. The area 

includes the Northwestern Hawaiian 

Islands Coral Reef Ecosystem Reserve, 

the Midway Atoll National Wildlife 

Refuge/Battle of Midway National 

Memorial, and the Hawaiian Islands 

National Wildlife Refuge. 

The Proclamation appropriated and 

withdrew the area from all forms of 

entry, location, selection, sale, or leasing 

or other disposition under the public 

land laws, including, but not limited to, 

withdrawal from location, entry, and 

patent under mining laws, and from 

disposition under all laws relating to 

mineral and geothermal leasing. 

The Proclamation provides that the 

Secretary of Commerce, through NOAA, 

has primary responsibility regarding the 

management of the marine areas of the 

Monument, in consultation with the 

Secretary of the Interior. The Secretary 

of the Interior, through the USFWS, has 

sole responsibility for management of 

the areas of the Monument that overlay 

the Midway Atoll National Wildlife 

Refuge, the Battle of Midway National 

Memorial, and the Hawaiian Islands 

National Wildlife Refuge, in 

consultation with the Secretary of 

Commerce. Further, the Proclamation 

provides that nothing in the 

Proclamation diminishes or enlarges the 

jurisdiction of the State of Hawaii. The 

Monument includes state waters, 

including the Northwestern Hawaiian 

Islands State Marine Refuge and Kure 

Atoll Wildlife Sanctuary. The State 

currently holds the submerged and 

ceded lands of the NWHI in trust. This 

public trust is overseen by the Office of 

Hawaiian Affairs through an 

amendment to the Constitution of the 

State of Hawaii. The State of Hawaii has 

primary responsibility for managing the 

State waters of the Monument. 

The three principal entities with 

responsibility for managing lands and 

waters of the Monument—NOAA, 

USFWS, and the State of Hawaii 

(collectively, the Co-Trustees)—are 

working cooperatively and will consult 

to administer the Monument. The CoTrustees have established a goal to 

provide unified management in the 

spirit of cooperative conservation. This 

relationship will be further described in 

a Memorandum of Agreement among 

the Co-Trustees. 

The Proclamation requires restrictions 

and prohibitions regarding activities in 

the Monument consistent with the 

authority provided by the Act. The 

Proclamation shall be applied in 

accordance with international law. No 

restrictions shall apply to or be enforced 

against a person who is not a citizen, 

national, or resident alien of the United 

States (including foreign flag vessels) 

unless in accordance with international 

law. NOAA and USFWS are 

promulgating as final regulations the 

management measures and prohibitions 

set forth in the Proclamation to codify 

them in the Code of Federal 

Regulations. This action will provide 

additional notice to the public and other 

interested parties of the terms of the 

Proclamation and activities that are 

prohibited or regulated and thereby 

facilitate improved compliance. 

Interested parties may view Hawaii 

Administrative Rules also applicable 

within the Monument at http:// 

www.hawaii.gov/dlnr/dar/fish_regs/ 

nwhi.htm. 

These regulations address the 

requirement in the Proclamation that 

the Secretaries shall ensure, in addition 

to other things, that commercial fishing 

for bottomfish and other associated 

pelagic species may continue in the 

Monument for no more than 5 years. 

Section 404.10 sets out the conditions 

under which such fishing may continue 

to be conducted. However, commercial 

fishing remains prohibited in areas of 

the Monument not open to such fishing 

prior to issuance of the Proclamation. 


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Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Rules and Regulations 51135 

Classification 

Administrative Procedure Act 

The Secretaries find good cause to 

waive notice and comment on these 

regulations, pursuant to 5 U.S.C. 

533(b)(B), and the 30-day delay in 

effective date pursuant to 5 U.S.C. 

553(d). Notice and comment are 

unnecessary and contrary to the public 

interest because these regulations do not 

expand on the action already taken by 

the President in the Proclamation. The 

Proclamation became effective upon 

issuance on June 15, 2006. These 

regulations codify the prohibitions and 

management measures set forth in the 

Proclamation. Therefore, these 

regulations are being published as final 

regulations and are effective August 25, 

2006. 

E.O. 12866 

This rule has been determined to be 

significant for purposes of E.O. 12866. 

Paperwork Reduction Act 

This rule contains a collection-ofinformation requirement that was 

submitted to OMB for emergency 

approval under the Paperwork 

Reduction Act (PRA). The collection-ofinformation requirement was approved 

by OMB and granted OMB control 

number 0648–0548 which expires on 

February 28, 2007. We are now 

requesting comment on this information 

collection requirement for OMB’s 

subsequent review and approval on a 

non-emergency basis. 

The public reporting burden for this 

information collection is described in 

the table below. The public reporting 

burden for permit applications and 

associated reporting requirements is 

estimated to average 1 hour per 

response. The public reporting burden 

for entry and exit notification is 

expected to average 15 minutes per 

response. The public reporting burden 

for VMS checklist certification is 

estimated to average 5 minutes per 

response. Each of these public reporting 

burdens includes the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

APPLICANT BURDEN

Permit type 

Permits and 

other reporting per year 

Responses 

per requirement 

Total 

responses Hours/response Total hours 

Annual recordkeeping/reporting 

cost per response 

(dollar) 

Total annual 

cost 

(dollar) 

(a) General ........................ 33 3 99 1 ......................... 99 1.00 .......................... 99.00 

(b) Special Ocean Use ..... 5 3 15 24 ....................... 360 1.00 .......................... 15.00 

(c) Native Hawaiian Practices.2 2 4 4 ......................... 16 1.00 .......................... 4.00 

(d) Recreation ................... 2 3 6 1 ......................... 6 1.00 .......................... 6.00 

(e) Entry & Exit Notice ...... 174 2 348 5 minutes ........... 29 0.00 .......................... 0.00 

(f) Purchase and installation of VMS.50 NA NA 4 hours ............... 50 899 (initial cost: 

$3595).

44,950.00 

(g) VMS maintenance ....... 50 NA NA 4 hours ............... 200 0 ............................... 0 

(h) VMS Certification ......... 50 0.25 12.5 5 minutes ........... 4 0.25 .......................... 13.00 

(i) Hourly VMS reports ...... 50 3805 190,224 5 seconds ........... 264 1.28/day ................... 10,145.00 

Total ........................... 124 .................... 190,709 ............................ 1028 .................................. 55,232.00 

Note: VMS installation and activation hours and purchase costs are annualized by dividing by 4 years, the expected service life. 

Public comment is sought regarding: 

whether this collection of information is 

necessary for the proper performance of 

the functions of the agency, including 

whether the information shall have 

practical utility; the accuracy of the 

burden estimate; ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and ways to 

minimize the burden of the collection of 

information, including through the use 

of automated collection techniques or 

other forms of information technology. 

Send comments on these or any other 

aspects of the collection of information 

to Diana Hynek, Departmental 

Paperwork Clearance Officer, 

Department of Commerce, Room 6625, 

14th and Constitution Avenue, NW, 

Washington, DC 20230, or via e-mail at 

dHynek@noaa.gov. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

List of Subjects in 50 CFR Part 404 

Administrative practice and 

procedure, Coastal zone, Fish, Fisheries, 

Historic preservation, Intergovernmental 

relations, Marine resources, Monuments 

and memorials, Natural resources, 

Reporting and recordkeeping 

requirements, Wildlife, Wildlife refuges. 

Dated: August 24, 2006. 

Conrad C. Lautenbacher Jr., 

Vice Admiral, U.S. Navy (Ret.), 

Undersecretary of Commerce for Oceans and 

Atmosphere. 

Dated: August 24, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

■ Accordingly, NOAA and USFWS add 

part 404, title 50 of the Code of Federal 

Regulations as follows: 

PART 404—NORTHWESTERN 

HAWAIIAN ISLANDS MARINE 

NATIONAL MONUMENT 

Sec. 

404.1 Scope and purpose. 

404.2 Boundary. 

404.3 Definitions. 

404.4 Access to the Monument. 

404.5 Requirements for a vessel monitoring 

system. 

404.6 Prohibited activities. 

404.7 Regulated activities. 

404.8 Emergencies and law enforcement 

activities. 

404.9 Armed Forces actions. 

404.10 Commercial fishing. 

404.11 Permitting procedures and criteria. 

404.12 International law. 

Appendix A to Part 404—Map of the 

Monument Outer Boundary and 

Ecological Reserves, Special Preservation 

Areas, and Midway Atoll Special 

Management Area 

Appendix B to Part 404—Approved Vessel 

Monitoring Systems 

Authority: 16 U.S.C. 431 et seq.; 16 U.S.C. 

460k–3; 16 U.S.C. 1801 et seq.; 16 U.S.C. 

742f, 16 U.S.C. 742l, and 16 U.S.C. 668dd–


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51136 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Rules and Regulations 

ee; 16 U.S.C. 1361 et seq.; 16 U.S.C. 1531 et 

seq., Pub. L. No. 106–513, § 6(g) (2000). 

§ 404.1 Scope and purpose. 

The regulations in this part codify the 

provisions of Presidential Proclamation 

8031, and govern the administration of 

the Northwestern Hawaiian Islands 

Marine National Monument. These 

regulations are jointly implemented by 

the Secretaries of the Interior, through 

the U.S. Fish and Wildlife Service 

(USFWS), and Commerce, through the 

National Oceanic and Atmospheric 

Administration (NOAA). Nothing in 

these regulations shall be deemed to 

diminish or enlarge the jurisdiction of 

the State of Hawaii. 

§ 404.2 Boundary. 

The Northwestern Hawaiian Islands 

Marine National Monument consists of 

all lands and interest in lands owned or 

controlled by the Government of the 

United States within the boundaries of 

the Monument, including emergent and 

submerged lands and waters of the 

Northwestern Hawaiian Islands. The 

map in Appendix A to this part 404 

depicts the outer boundary of the 

Monument, which consists of the 

geodetic lines connecting the 

coordinates specified in the 

Proclamation. 

§ 404.3 Definitions. 

The following definitions are 

applicable only to this Part. 

Attract or Attracting means luring or 

attempting to lure a living resource by 

any means, except the mere presence of 

human beings (e.g., swimmers, divers, 

boaters). 

Bottomfish Species means Bottomfish 

management unit species as defined at 

50 CFR 665.12. 

Commercial Bottomfishing means 

commercial fishing for bottomfish 

species. 

Commercial passenger vessel means a 

vessel that carries individuals who have 

paid for such carriage. 

Commercial pelagic trolling means 

commercial fishing for pelagic species. 

Deserting a vessel means: 

(1) Leaving a vessel aground or adrift: 

(i) Without notifying the Secretaries of 

the vessel going aground or adrift within 

12 hours of its discovery and developing 

and presenting to the Secretaries a 

preliminary salvage plan within 24 

hours of such notification; 

(ii) After expressing or manifesting 

intention to not undertake or to cease 

salvage efforts; or 

(iii) When the Secretaries are unable, 

after reasonable efforts, to reach the 

owner/operator within 12 hours of the 

vessel’s condition being reported to 

authorities. 

(2) Leaving a vessel at anchor when 

its condition creates potential for a 

grounding, discharge, or deposit and the 

owner/operator fails to secure the vessel 

in a timely manner. 

Ecological Reserve means the areas of 

the Monument, identified in the 

Proclamation, consisting of contiguous, 

diverse habitats that provide natural 

spawning, nursery, and permanent 

residence areas for the replenishment 

and genetic protection of marine life, 

and also to protect and preserve natural 

assemblages of habitats and species 

within areas representing a broad 

diversity of resources and habitats 

found within the Monument. Specific 

coordinates for Ecological Reserves 

within the Monument are found in the 

Proclamation, and the Ecological 

Reserves consist of the areas within the 

geodetic lines connecting these 

coordinates. The Ecological Reserves are 

depicted on the map in Appendix A to 

part 404. 

Ecological integrity means a condition 

determined to be characteristic of an 

ecosystem that has the ability to 

maintain the function, structure, and 

abundance of natural biological 

communities, including rates of change 

in response to natural environmental 

variation. 

Fishing year means the year beginning 

at 0001 local time on January 1 and 

ending at 2400 local time on December 

31. 

Introduced Species means: 

(1) A species (including, but not 

limited to, any of its biological matter 

capable of propagation) that is nonnative to the ecosystem(s) protected by 

the Monument; or 

(2) Any organism into which genetic 

matter from another species has been 

transferred in order that the host 

organism acquires the genetic traits of 

the transferred genes. 

Landing means offloading fish from a 

fishing vessel or causing fish to be 

offloaded from a fishing vessel. 

Midway Atoll Special Management 

Area means the area of the Monument 

surrounding Midway Atoll out to a 

distance of 12 nautical miles, 

established for the enhanced 

management, protection, and 

preservation of Monument wildlife and 

historical resources. The geographic 

coordinates of this area, which consists 

of the area within the geodetic lines 

connecting these coordinates, are found 

in the Proclamation. The Midway Atoll 

Special Management Area is depicted 

on the map in Appendix A to part 404. 

Mobile transceiver unit means a vessel 

monitoring system or VMS device, as 

described in Appendix E to this Part, 

installed on board a vessel that is used 

for vessel monitoring and transmitting 

the vessel’s position as required by this 

Part. 

Monument means the Northwestern 

Hawaiian Islands Marine National 

Monument. 

Native Hawaiian Practices means 

cultural activities conducted for the 

purposes of perpetuating traditional 

knowledge, caring for and protecting the 

environment and strengthening cultural 

and spiritual connections to the 

Northwestern Hawaiian Islands that 

have demonstrable benefits to the 

Native Hawaiian community. This may 

include, but is not limited to, the noncommercial use of Monument resources 

for direct personal consumption while 

in the Monument. 

Ocean-based ecotourism means a 

class of fee-for-service activities that 

involves visiting the Monument for 

study, enjoyment, or volunteer 

assistance for purposes of conservation 

and management. 

Office for Law Enforcement (OLE) 

refers to NOAA, National Marine 

Fisheries Service, Office for Law 

Enforcement. 

Pelagic Species means Pacific Pelagic 

Management Unit Species as defined at 

50 CFR 665.12. 

Pono means appropriate, correct, and 

deemed necessary by traditional 

standards in the Hawaiian culture. 

Proclamation means Presidential 

Proclamation 8031, dated June 15, 2006 

(71 FR 36443). 

Recreational activity means an 

activity conducted for personal 

enjoyment that does not result in the 

extraction of Monument resources and 

that does not involve a fee-for-service 

transaction. This includes, but is not 

limited to, wildlife viewing, SCUBA 

diving, snorkeling, and boating. 

Secretaries means the Secretary of 

Commerce and the Secretary of the 

Interior or their designees. 

Special Preservation Area (SPA) 

means discrete, biologically important 

areas of the Monument, identified in the 

Proclamation, within which uses are 

subject to conditions, restrictions, and 

prohibitions, including but not limited 

to access restrictions. SPAs are used to 

avoid concentrations of uses that could 

result in declines in species populations 

or habitat, to reduce conflicts between 

uses, to protect areas that are critical for 

sustaining important marine species or 

habitats, or to provide opportunities for 

scientific research. Specific coordinates 

for Special Preservation Areas within 

the Monument are found in the 

Proclamation, and the Special 

Preservation Areas consist of the areas 

within the geodetic lines connecting 

these coordinates. The Special 


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Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Rules and Regulations 51137 

Preservation Areas are depicted on the 

map in Appendix A to part 404. 

Special ocean use means an activity 

or use of the Monument that is engaged 

in to generate revenue or profits for one 

or more of the persons associated with 

the activity or use, and does not destroy, 

cause the loss of, or injure Monument 

resources. This includes ocean-based 

ecotourism and other activities such as 

educational and research activities that 

are engaged in to generate revenue, but 

does not include commercial fishing for 

bottomfish or pelagic species conducted 

pursuant to a valid permit issued by 

NOAA. 

Stowed and not available for 

immediate use means not readily 

accessible for immediate use, e.g., by 

being securely covered and lashed to a 

deck or bulkhead, tied down, unbaited, 

unloaded, or partially disassembled 

(such as spear shafts being kept separate 

from spear guns). 

Sustenance fishing means fishing for 

bottomfish or pelagic species in which 

all catch is consumed within the 

Monument, and that is incidental to an 

activity permitted under this part. 

Vessel monitoring system or VMS 

means a vessel monitoring system or 

mobile transceiver unit as described in 

§ 404.5 and approved by Office for Law 

Enforcement for use on vessels 

permitted to access the Monument, as 

required by this Part. 

§ 404.4 Access to the Monument. 

(a) Entering the Monument is 

prohibited and thus unlawful except: 

(1) As provided in §§ 404.8 and 404.9; 

(2) Pursuant to a permit issued under 

§§ 404.10 or 404.11; or 

(3) When conducting passage without 

interruption in accordance with 

paragraph (b) of this section. 

(b) Any person passing through the 

Monument without interruption is 

subject to the prohibitions in §§ 404.5, 

404.6, and 404.7 and must provide 

notification prior to entering and after 

leaving the Monument. Notification of 

entry must be provided at least 72 

hours, but no longer than 1 month, prior 

to the entry date. Notification of 

departure from the Monument must be 

provided within 12 hours of leaving. 

Notification under this paragraph may 

be made via e-mail, telephone or fax by 

contacting: 

(1) E-mail: 

nwhi.notifications@commat;noaa.gov; 

or 

(2) Telephone: 1–866–478–NWHI 

(6944); or (808) 395–NWHI (6944). 

(c) A person providing notice under 

this paragraph must provide the 

following information, as applicable: 

(1) Position when making report. 

(2) Vessel name and International 

Maritime Organization identification 

number. 

(3) Name, address, and telephone 

number of owner and operator. 

(4) USCG documentation, state 

license, or registration number. 

(5) Home port. 

(6) Intended and actual route through 

the Monument. 

(7) General categories of any 

hazardous cargo on board. 

(8) Length of vessel and propulsion 

type (e.g., motor or sail). 

§ 404.5 Requirements for a vessel 

monitoring system. 

(a) Requirement for use. Effective 

August 28, 2006, an owner or operator 

of a vessel that has been issued a permit 

for accessing the Monument must 

ensure that such vessel has an OLEapproved, operating VMS on board 

when voyaging within the Monument. 

An operating VMS includes an 

operating mobile transmitting unit on 

the vessel and a functioning 

communication link between the unit 

and OLE as provided by an OLEapproved communication service 

provider. Appendix B to this part 404 

provides information regarding OLEapproved transmitting units. 

(b) Installing and activating the VMS. 

Only a VMS that has been approved by 

OLE may be used. When installing and 

activating the OLE-approved VMS, or 

when reinstalling and reactivating such 

VMS, the vessel owner or operator must: 

(1) Follow procedures indicated on an 

installation and activation checklist, 

which is available from OLE; and 

(2) Submit to OLE a statement 

certifying compliance with the 

checklist, as prescribed on the checklist. 

(c) Interference with the VMS. No 

person may interfere with, tamper with, 

alter, damage, disable, or impede the 

operation of the VMS, or attempt any of 

the same. 

(d) Interruption of operation of the 

VMS. When a vessel’s VMS is not 

operating properly, the owner or 

operator must immediately contact OLE, 

and follow instructions from that office. 

If notified by OLE that a vessel’s VMS 

is not operating properly, the owner and 

operator must follow instructions from 

that office. In either event, such 

instructions may include, but are not 

limited to, manually communicating to 

a location designated by OLE the 

vessel’s positions or returning to port 

until the VMS is operable. 

(e) Access to position data. As a 

condition of authorized access to the 

Monument, a vessel owner or operator 

subject to the requirements for a VMS in 

this section must allow OLE, the USCG, 

and their authorized officers and 

designees access to the vessel’s position 

data obtained from the VMS. Consistent 

with other applicable laws, including 

the limitations on access to, and use of, 

VMS data collected under the 

Magnuson-Stevens Fishery 

Conservation and Management Act, the 

Secretaries may have access to, and use 

of, collected data for scientific, 

statistical, and management purposes. 

(f) Authority for installation and 

operation. OLE has authority over the 

installation and operation of the VMS 

unit. OLE may authorize the connection 

or order the disconnection of additional 

equipment, including a computer, to 

any VMS unit when deemed 

appropriate by OLE. 

(g) Activities Regarding Vessel 

Monitoring Systems. Effective August 

28, 2006, the following activities 

regarding vessel monitoring systems are 

prohibited and thus unlawful for any 

person to conduct or cause to be 

conducted: 

(1) Operating any vessel within the 

Monument without an OLE typeapproved mobile transceiver unit 

described in this section; 

(2) Failing to install, activate, repair, 

or replace a mobile transceiver unit 

prior to leaving port; 

(3) Failing to operate and maintain a 

mobile transceiver unit on board the 

vessel at all times as specified in this 

section; 

(4) Tampering with, damaging, 

destroying, altering, or in any way 

distorting, rendering useless, 

inoperative, ineffective, or inaccurate 

the VMS, mobile transceiver unit, or 

VMS signal required to be installed on 

or transmitted by a vessel as specified 

in this section; 

(5) Failing to contact OLE or follow 

OLE instructions when automatic 

position reporting has been interrupted 

as specified in this section; 

(6) Registering a VMS or mobile 

transceiver unit to more than one vessel 

at the same time; 

(7) Connecting or leaving connected 

additional equipment to a VMS unit or 

mobile transceiver unit without the 

prior approval of OLE; and 

(8) Making a false statement, oral or 

written, to an authorized officer 

regarding the installation, use, 

operation, or maintenance of a VMS 

unit or mobile transceiver unit or 

communication service provider. 

§ 404.6 Prohibited activities. 

The following activities are prohibited 

and thus unlawful for any person to 

conduct or cause to be conducted: 


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51138 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Rules and Regulations 

(a) Exploring for, developing, or 

producing oil, gas, or minerals within 

the Monument; 

(b) Using or attempting to use 

poisons, electrical charges, or explosives 

in the collection or harvest of a 

Monument resource; 

(c) Introducing or otherwise releasing 

an introduced species from within or 

into the Monument; and 

(d) Anchoring on or having a vessel 

anchored on any living or dead coral 

with an anchor, anchor chain, or anchor 

rope. 

§ 404.7 Regulated activities. 

Except as provided in §§ 404.8, 404.9 

and 404.10, the following activities are 

prohibited and thus unlawful for any 

person to conduct or cause to be 

conducted within the Monument 

without a valid permit as provided for 

in § 404.11: 

(a) Removing, moving, taking, 

harvesting, possessing, injuring, 

disturbing, or damaging; or attempting 

to remove, move, take, harvest, possess, 

injure, disturb, or damage any living or 

nonliving Monument resource; 

(b) Drilling into, dredging, or 

otherwise altering the submerged lands 

other than by anchoring a vessel; or 

constructing, placing, or abandoning 

any structure, material, or other matter 

on the submerged lands; 

(c) Anchoring a vessel; 

(d) Deserting a vessel aground, at 

anchor, or adrift; 

(e) Discharging or depositing any 

material or other matter into Special 

Preservation Areas or the Midway Atoll 

Special Management Area except vessel 

engine cooling water, weather deck 

runoff, and vessel engine exhaust; 

(f) Discharging or depositing any 

material or other matter into the 

Monument, or discharging or depositing 

any material or other matter outside the 

Monument that subsequently enters the 

Monument and injures any resources of 

the Monument, except fish parts (i.e., 

chumming material or bait) used in and 

during authorized fishing operations, or 

discharges incidental to vessel use such 

as deck wash, approved marine 

sanitation device effluent, cooling 

water, and engine exhaust; 

(g) Touching coral, living or dead; 

(h) Possessing fishing gear except 

when stowed and not available for 

immediate use during passage without 

interruption through the Monument; 

(i) Swimming, snorkeling, or closed or 

open circuit SCUBA diving within any 

Special Preservation Area or the 

Midway Atoll Special Management 

Area; and 

(j) Attracting any living Monument 

resource. 

§ 404.8 Emergencies and law enforcement 

activities. 

The prohibitions in this part do not 

apply to activities necessary to respond 

to emergencies threatening life, 

property, or the environment, or to 

activities necessary for law enforcement 

purposes. 

§ 404.9 Armed Forces actions. 

(a) The prohibitions in this part do 

not apply to activities and exercises of 

the Armed Forces (including those 

carried out by the United States Coast 

Guard) that are consistent with 

applicable laws. 

(b) These regulations shall not limit 

agency actions to respond to 

emergencies posing an unacceptable 

threat to human health or safety or to 

the marine environment and admitting 

of no other feasible solution. 

(c) All activities and exercises of the 

Armed Forces shall be carried out in a 

manner that avoids, to the extent 

practicable and consistent with 

operational requirements, adverse 

impacts on Monument resources and 

qualities. 

(d) In the event of threatened or actual 

destruction of, loss of, or injury to a 

Monument resource or quality resulting 

from an incident, including but not 

limited to spills and groundings, caused 

by a component of the Department of 

Defense or the United States Coast 

Guard, the cognizant component shall 

promptly coordinate with the 

Secretaries for the purpose of taking 

appropriate actions to respond to and 

mitigate the harm and, if possible, 

restore or replace the Monument 

resource or quality. 

§ 404.10 Commercial fishing. 

(a) Lobster fishing. Any commercial 

lobster fishing permit is subject to a zero 

annual harvest limit condition. 

(b) Fishing and bottomfish and 

pelagic species. (1) Notwithstanding the 

prohibitions in § 404.7(a) and (h), 

commercial fishing for bottomfish and 

associated pelagic species may continue 

within the Monument subject to 

paragraph (c) of this section, until 

June 15, 2011, provided that: 

(i) The fishing is conducted in 

accordance with a valid commercial 

bottomfish permit issued by NOAA; and 

(ii) Such permit was in effect on 

June 15, 2006, and is subsequently 

renewed pursuant to NOAA regulations 

at 50 CFR part 665, subpart E as 

necessary. 

(2) Total landings for each fishing 

year from fishing allowed under 

paragraph (b)(1) of this section may not 

exceed the following amounts: 

(i) 350,000 pounds for bottomfish 

species; and 

(ii) 180,000 pounds for pelagic 

species. 

(3) Commercial fishing for bottomfish 

and associated pelagic species is 

prohibited in the Monument after 

June 15, 2011. 

(c) General requirements. Any 

commercial fishing within the 

Monument shall be conducted in 

accordance with the following 

restrictions and conditions: 

(1) A valid permit or facsimile of a 

valid permit shall be on board the 

fishing vessel and available for 

inspection by an authorized officer; 

(2) No attempt is made to falsify or 

fail to make, keep, maintain, or submit 

any logbook or logbook form or other 

required record or report. 

(3) Only gear specifically authorized 

by the relevant permit issued under the 

Magnuson-Stevens Fishery 

Conservation and Management Act is 

allowed to be in the possession of a 

person conducting commercial fishing 

under this section; 

(4) Any person conducting 

commercial fishing notifies the 

Secretaries by telephone, facsimile, or 

electronic mail at least 72 hours before 

entering the Monument and within 12 

hours after leaving the Monument in 

accordance with § 404.4(b) and (c); 

(5) All fishing vessels must carry an 

activated and functioning VMS unit on 

board at all times whenever the vessel 

is in the Monument; 

(6) All fishing vessels must carry an 

observer when requested to do so by the 

Secretaries; 

(7) The activity does not take place 

within any Ecological Reserve, any 

Special Preservation Area, or the 

Midway Atoll Special Management 

Area. 

§ 404.11 Permitting procedures and 

criteria. 

(a) Issuance. Subject to such terms 

and conditions as the Secretaries deem 

appropriate, a person may conduct an 

activity prohibited by § 404.7 if such 

activity is specifically authorized by a 

permit issued under this section. 

(b) Application requirements. 

Applicants for permits under this 

section shall submit applications to: 

Northwestern Hawaiian Islands Marine 

National Monument, 6600 Kalanianaole 

Highway, Suite 300, Honolulu, HI 

96825. 

(c) Permit Types. A permit under this 

subpart may be issued if the Secretaries 

find that the activity: 

(1) Is research designed to further 

understanding of Monument resources 

and qualities; 

(2) Will further the educational value 

of the Monument; 


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(3) Will assist in the conservation and 

management of the Monument; 

(4) Will allow Native Hawaiian 

practices subject to paragraph (e) of this 

section; 

(5) Will allow a special ocean use 

subject to paragraph (f) of this section; 

or 

(6) Will allow recreational activities 

subject to paragraph (g) of this section. 

(d) Findings. A permit may not be 

issued under this section unless the 

Secretaries find: 

(1) The activity can be conducted 

with adequate safeguards for the 

resources and ecological integrity of the 

Monument; 

(2) The activity will be conducted in 

a manner compatible with the purposes 

of the Proclamation, considering the 

extent to which the conduct of the 

activity may diminish or enhance 

Monument resources, qualities, and 

ecological integrity, any indirect, 

secondary or cumulative effects of the 

activity, and the duration of such 

effects; 

(3) There is no practicable alternative 

to conducting the activity within the 

Monument; 

(4) The end value of the activity 

outweighs its adverse impacts on 

Monument resources, qualities, and 

ecological integrity; 

(5) The duration of the activity is no 

longer than necessary to achieve its 

stated purpose; 

(6) The applicant is qualified to 

conduct and complete the activity and 

mitigate any potential impacts resulting 

from its conduct; 

(7) The applicant has adequate 

financial resources available to conduct 

and complete the activity and mitigate 

any potential impacts resulting from its 

conduct; 

(8) The methods and procedures 

proposed by the applicant are 

appropriate to achieve the proposed 

activity’s goals in relation to their 

impacts to Monument resources, 

qualities, and ecological integrity; 

(9) The applicant’s vessel has been 

outfitted with a mobile transceiver unit 

approved by OLE and complies with the 

requirements of § 404.5; and 

(10) There are no other factors that 

would make the issuance of a permit for 

the activity inappropriate. 

(e) Additional findings for Native 

Hawaiian practice permits. In addition 

to the findings listed in paragraph (d) of 

this section, a permit to allow Native 

Hawaiian practices under paragraph 

(c)(4) of this section, may not be issued 

unless: 

(1) The activity is non-commercial 

and will not involve the sale of any 

organism or material collected; 

(2) The purpose and intent of the 

activity are appropriate and deemed 

necessary by traditional standards in the 

Native Hawaiian culture (pono), and 

demonstrate an understanding of, and 

background in, the traditional practice, 

and its associated values and protocols; 

(3) The activity benefits the resources 

of the Northwestern Hawaiian Islands 

and the Native Hawaiian community; 

(4) The activity supports or advances 

the perpetuation of traditional 

knowledge and ancestral connections of 

Native Hawaiians to the Northwestern 

Hawaiian Islands; and 

(5) Any Monument resource harvested 

from the Monument will be consumed 

in the Monument. 

(f) Additional findings, criteria, and 

requirements for special ocean use 

permits. (1) In addition to the findings 

listed in paragraph (d) of this section, 

the following requirements apply to the 

issuance of a permit for a special ocean 

use under paragraph (c)(5) of this 

section: 

(i) Any permit for a special ocean use 

issued under this section: 

(ii) Shall authorize the conduct of an 

activity only if that activity is 

compatible with the purposes for which 

the Monument is designated and with 

protection of Monument resources; 

(A) Shall not authorize the conduct of 

any activity for a period of more than 5 

years unless renewed; 

(B) Shall require that activities carried 

out under the permit be conducted in a 

manner that does not destroy, cause the 

loss of, or injure Monument resources; 

and 

(iii) Shall require the permittee to 

purchase and maintain comprehensive 

general liability insurance, or post an 

equivalent bond, against claims arising 

out of activities conducted under the 

permit and to agree to hold the United 

States harmless against such claims; 

(iv) Each person issued a permit for a 

special ocean use under this section 

shall submit an annual report to the 

Secretaries not later than December 31 

of each year which describes activities 

conducted under that permit and 

revenues derived from such activities 

during the year. 

(2) In addition to the findings listed 

in paragraph (d) of this section, a permit 

may not be issued for a special ocean 

use unless the activity has been 

determined to be consistent with the 

findings made pursuant to paragraph (f) 

of this section. 

(3) Categories of special ocean use 

being permitted for the first time under 

this section will be restricted in 

duration and permitted as a special 

ocean use pilot project. Subsequent 

permits for any category of special 

ocean use may only be issued if a 

special ocean use pilot project for that 

category meets the requirements of this 

section, and any terms and conditions 

placed on the permit for the pilot 

project. 

(4) Public notice shall be provided 

prior to requiring a special ocean use 

permit for any category of activity not 

previously identified as a special ocean 

use. 

(5) The following requirements apply 

to permits for a special ocean use for an 

activity within the Midway Atoll 

Special Management Area. 

(i) A permit for a special ocean use for 

activities within the Midway Atoll 

Special Management Area may be 

issued provided: 

(A) The activity furthers the 

conservation and management of the 

Monument; and 

(B) The Director of the United States 

Fish and Wildlife Service or his or her 

designee has determined that the 

activity is compatible with the purposes 

for which the Midway Atoll National 

Wildlife Refuge was designated. 

(ii) As part of a permit issued 

pursuant to this paragraph (f)(5), vessels 

may be allowed to transit the Monument 

as necessary to enter the Midway Atoll 

Special Management Area. 

(6) A permit for a special ocean use 

for activities outside the Midway Atoll 

Special Management Area may be 

issued provided: 

(i) The activity will directly benefit 

the conservation and management of the 

Monument; 

(ii) The purpose of the activity is for 

research or education related to the 

resources or qualities of the Monument; 

(iii) Public notice of the application 

and an opportunity to provide 

comments is given at least 30 days prior 

to issuing the permit; and 

(iv) The activity does not involve the 

use of a commercial passenger vessel. 

(g) Additional findings for recreation 

permits. A permit for recreational 

activities under paragraph (c)(6) of this 

section may be issued for activities to be 

conducted within the Midway Atoll 

Special Management area if, in addition 

to the findings listed in paragraph (d) of 

this section: 

(1) The activity is for the purpose of 

recreation as defined in section 404.3; 

(2) The activity is not associated with 

any for-hire operation; and 

(3) The activity does not involve any 

extractive use. 

(h) Sustenance fishing. Sustenance 

fishing, as defined in 404.3, may be 

allowed outside of any Special 

Preservation Area as a term or condition 

of any permit issued under this part. 

Sustenance fishing in the Midway Atoll 


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Special Management Area shall not be 

allowed unless the activity has been 

determined by the Director of the U.S. 

Fish and Wildlife Service or his or her 

designee to be compatible with the 

purposes for which the Midway Atoll 

National Wildlife Refuge was 

established. Sustenance fishing must be 

conducted in a manner compatible with 

the Proclamation and this part, 

including considering the extent to 

which the conduct of the activity may 

diminish Monument resources, 

qualities, and ecological integrity, as 

well as any indirect, secondary, or 

cumulative effects of the activity and 

the duration of such effects. Sustenance 

fishing is subject to systematic reporting 

requirements when developed by the 

Secretaries. 

§ 404.12 International law. 

These regulations shall be applied in 

accordance with international law. No 

restrictions shall apply to or be enforced 

against a person who is not a citizen, 

national, or resident alien of the United 

States (including foreign flag vessels) 

unless in accordance with international 

law. 

Appendix A to Part 404—Map of the 

Monument Outer Boundary and 

Ecological Reserves, Special 

Preservation Areas, and Midway Atoll 

Special Management Area 

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51142 Federal Register / Vol. 71, No. 167 / Tuesday, August 29, 2006 / Rules and Regulations 

Appendix B to Part 404—Approved 

VMS 

I. VMS Mobile Transceiver Unit 

Thrane & Thrane Sailor 3026D Gold VMS 

The Thrane & Thrane Sailor 3026D Gold 

VMS (TT–3026D) has been found to meet the 

minimum technical requirements for vessels 

issued permits to operate in the 

Northwestern Hawaiian Islands Marine 

National Monument. The address for the 

Thrane & Thrane distributor contact is 

provided in this notice under the heading 

VMS Provider Address. 

The TT–3026D Gold VMS features an 

integrated GPS/Inmarsat-C unit and a marine 

grade monitor with keyboard and integrated 

mouse. The unit is factory pre-configured for 

NMFS VMS operations (non-Global Maritime 

Distress & Safety System (non-GMDSS)). 

Satellite commissioning services are 

provided by Thrane & Thrane personnel. 

Automatic GPS position reporting starts 

after transceiver installation and power 

activation onboard the vessel. The unit is an 

integrated transceiver/antenna/GPS design 

using a floating 10 to 32 VDC power supply. 

The unit is configured for automatic reduced 

position transmissions when the vessel is 

stationary (i.e., in port). It allows for port 

stays without power drain or power shut 

down. The unit restarts normal position 

transmission automatically when the vessel 

goes to sea. 

The TT–3026D provides operation down to 

+/¥15 degree angles. The unit has the 

capability of two-way communications to 

send formatted forms and to receive e-mail 

and other messages. A configuration option 

is available to automatically send position 

reports to a private address, such as a fleet 

management company. 

A vessel owner may purchase this system 

by contacting the entity identified in this 

notice under the heading ‘‘VMS Provider 

Address’’. The owner should identify himself 

or herself as a vessel owner issued a permit 

to operate in the Northwestern Hawaiian 

Islands Marine National Monument, so the 

transceiver set can be properly configured. 

To use the TT–3026D the vessel owner will 

need to establish an Inmarsat-C system use 

contract with an approved Inmarsat-C 

communications service provider. The owner 

will be required to complete the Inmarsat-C 

‘‘Registration for Service Activation for 

Maritime Mobile Earth Station.’’ The owner 

should consult with Thrane & Thrane when 

completing this form. 

Thrane & Thrane personnel will perform 

the following services before shipment: (1) 

Configure the transceiver according to OLE 

specifications for vessels issued permits to 

operate in the Northwestern Hawaiian 

Islands Marine National Monument; (2) 

download the predetermined NMFS position 

reporting and broadcast command 

identification numbers into the unit; (3) test 

the unit to ensure operation when 

installation has been completed on the 

vessel; and (4) forward the Inmarsat service 

provider and the transceiver identifying 

information to OLE. 

II. Inmarsat-C Communications Providers 

It is recommended, for vendor warranty 

and customer service purposes, that the 

vessel owner keep for his or her records and 

that Telenor and Xantic have on record the 

following identifying information: (1) Signed 

and dated receipts and contracts; (2) 

transceiver serial number; (3) Telenor or 

Xantic customer number, user name and 

password; (4) e-mail address of transceiver; 

(5) Inmarsat identification number; (6) owner 

name; (7) vessel name; (8) vessel 

documentation or registration number; and 

(9) mobile earth station license (FCC license). 

The OLE will provide an installation and 

activation checklist that the vessel owner 

must follow. The vessel owner must sign a 

statement on the checklist certifying 

compliance with the installation procedures 

and return the checklist to OLE. Installation 

can be performed by an experienced crew or 

by an electronics specialist, and the 

installation cost is paid by the owner. 

The owner may confirm the TT–3026D 

operation and communications service to 

ensure that position reports are automatically 

sent to and received by OLE before leaving 

on a trip under VMS. The OLE does not 

regard the vessel as meeting requirements 

until position reports are automatically 

received. For confirmation purposes, contact 

the NOAA Fisheries Office for Law 

Enforcement, 8484 Georgia Ave., Suite 415, 

Silver Spring, MD 20910, phone 888–219–

9228, fax 301–427–0049. 

Telenor Satellite Services 

Inmarsat-C is a store-and-forward data 

messaging service. Inmarsat-C allows users to 

send and receive information virtually 

anywhere in the world, on land, at sea, and 

in the air. Inmarsat-C supports a wide variety 

of applications including Internet, e-mail, 

position and weather reporting, a free daily 

news service, and remote equipment 

monitoring and control. Mariners can use 

Inmarsat-C free of charge to send critical 

safety at sea messages as part of the U.S. 

Coast Guard’s Automated Mutual-Assistance 

Vessel Rescue system and of the NOAA 

Shipboard Environmental Acquisition 

System programs. Telenor Vessel Monitoring 

System Services is being sold through Thrane 

& Thrane, Inc. For the Thrane & Thrane and 

Telenor addresses, look inside this notice 

under the heading ‘‘VMS Provider Address’’. 

Xantic 

Xantic is a provider of Vessel Monitoring 

Services to the maritime industry. By 

installing an approved OLE Inmarsat-C 

transceiver on the vessel, vessels can send 

and receive e-mail, to and from land, while 

the transceiver automatically sends vessel 

position reports to OLE, and is fully 

compliant with the International Coast Guard 

Search and Rescue Centers. Xantic Vessel 

Monitoring System Services are being sold 

through Thrane & Thrane, Inc. For the 

Thrane & Thrane and Xantic addresses, look 

in this notice under the heading ‘‘VMS 

Provider Address’’. 

For Telenor and Xantic, Thrane & Thrane 

customer service supports the security and 

privacy of vessel accounts and messages with 

the following: (a) Password authentication for 

vessel owners or agents and for OLE to 

prevent unauthorized changes or inquiries; 

and (b) separation of private messages from 

OLE messages. (OLE requires VMS-related 

position reports, only.) 

Billing is separated between accounts for 

the vessel owner and the OLE. VMS position 

reports and vessel-initiated messaging are 

paid for by the vessel owner. Messaging 

initiated from OLE operations center is paid 

for by NOAA. 

Thrane & Thrane provides customer 

service for Telenor and Xantic users to 

support and establish two-way transmission 

of transceiver unit configuration commands 

between the transceiver and land-based 

control centers. This supports OLE’s message 

needs and, optionally, the crew’s private 

message needs. 

The vessel owner can configure automatic 

position reports to be sent to a private 

address, such as to a fleet management 

company. 

Vessel owners wishing to use Telenor or 

Xantic services will need to purchase an 

Inmarsat-C transceiver approved for vessels 

issued permits to operate in the 

Northwestern Hawaiian Islands Marine 

National Monument. The owner will need to 

complete an Inmarsat-C system use contract 

with Telenor or Xantic, including a mobile 

earth station license (FCC requirement). The 

transceiver will need to be commissioned 

with Inmarsat according to Telenor or 

Xantic’s instructions. The owner should refer 

to and follow the configuration, installation, 

and service activation procedures for the 

specific transceiver purchased. 

III. VMS Provider Address 

For TT–3026D, Telenor, or Xantic 

information, contact Ronald Lockerby, 

Marine Products, Thrane & Thrane, Inc., 509 

Viking Drive, Suite K, L & M, Virginia Beach, 

VA 23452; voice: 757–463–9557; fax: 757–

463–9581, e-mail: rdl@tt.dk.com; Web site: 

http://www.landseasystems.com. 

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

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