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 Department of Commerce National Oceanic and Atmospheric Administration Department of the Interior Fish and Wildlife Service 50 CFR Part 404
[Docket No. 060824225-6225-01]
RIN 0648-AU82
 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 Co-Trustees have established a goal to provide unified management in the spirit of cooperative conservation. This relationship will be further described in a Memorandum of Agreement among the Co-Trustees. The Proclamation requires restrictions and prohibitions regarding activities in the Monument consistent with the authority provided by the Act. The Proclamation shall be applied in accordance with international law. No restrictions shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States (including foreign flag vessels) unless in accordance with international law. NOAA and USFWS are promulgating as final regulations the management measures and prohibitions set forth in the Proclamation to codify them in the Code of Federal Regulations. This action will provide additional notice to the public and other interested parties of the terms of the Proclamation and activities that are prohibited or regulated and thereby facilitate improved compliance. Interested parties may view Hawaii Administrative Rules also applicable within the Monument at 
                    *http://www.hawaii.gov/​dlnr/​dar/​fish_​regs/​nwhi.htm.* These regulations address the requirement in the Proclamation that the Secretaries shall ensure, in addition to other things, that commercial fishing for bottomfish and other associated pelagic species may continue in the Monument for no more than 5 years. Section 404.10 sets out the conditions under which such fishing may continue to be conducted. However, commercial fishing remains prohibited in areas of the Monument not open to such fishing prior to issuance of the Proclamation.
                    ( print page 51135) Classification Administrative Procedure Act The Secretaries find good cause to waive notice and comment on these regulations, pursuant to 5 U.S.C. 533(b)(B), and the 30-day delay in effective date pursuant to 5 U.S.C. 553(d). Notice and comment are unnecessary and contrary to the public interest because these regulations do not expand on the action already taken by the President in the Proclamation. The Proclamation became effective upon issuance on June 15, 2006. These regulations codify the prohibitions and management measures set forth in the Proclamation. Therefore, these regulations are being published as final regulations and are effective August 25, 2006. E.O. 12866 This rule has been determined to be significant for purposes of E.O. 12866. Paperwork Reduction Act This rule contains a collection-of-information requirement that was submitted to OMB for emergency approval under the Paperwork Reduction Act (PRA). The collection-of-information requirement was approved by OMB and granted OMB control number 0648-0548 which expires on February 28, 2007. We are now requesting comment on this information collection requirement for OMB's subsequent review and approval on a non-emergency basis. The public reporting burden for this information collection is described in the table below. The public reporting burden for permit applications and associated reporting requirements is estimated to average 1 hour per response. The public reporting burden for entry and exit notification is expected to average 15 minutes per response. The public reporting burden for VMS checklist certification is estimated to average 5 minutes per response. Each of these public reporting burdens includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Applicant Burden
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
10,145.00Total
124

190,709

1028

55,232.00Note: 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 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. 742
                                *l*, and 16 U.S.C. 668dd-
                                ( print page 51136)
                                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
  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
  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
  The following definitions are applicable only to this Part. *Attract or Attracting*
                                 means luring or attempting to lure a living resource by any means, except the mere presence of human beings (e.g., swimmers, divers, boaters). *Bottomfish Species*
                                 means Bottomfish management unit species as defined at 50 CFR 665.12. *Commercial Bottomfishing*
                                 means commercial fishing for bottomfish species. *Commercial passenger vessel*
                                 means a vessel that carries individuals who have paid for such carriage. *Commercial pelagic trolling*
                                 means commercial fishing for pelagic species. *Deserting*
                                 a vessel means: (1) Leaving a vessel aground or adrift: (i) Without notifying the Secretaries of the vessel going aground or adrift within 12 hours of its discovery and developing and presenting to the Secretaries a preliminary salvage plan within 24 hours of such notification; (ii) After expressing or manifesting intention to not undertake or to cease salvage efforts; or (iii) When the Secretaries are unable, after reasonable efforts, to reach the owner/operator within 12 hours of the vessel's condition being reported to authorities. (2) Leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner. *Ecological Reserve*
                                 means the areas of the Monument, identified in the Proclamation, consisting of contiguous, diverse habitats that provide natural spawning, nursery, and permanent residence areas for the replenishment and genetic protection of marine life, and also to protect and preserve natural assemblages of habitats and species within areas representing a broad diversity of resources and habitats found within the Monument. Specific coordinates for Ecological Reserves within the Monument are found in the Proclamation, and the Ecological Reserves consist of the areas within the geodetic lines connecting these coordinates. The Ecological Reserves are depicted on the map in Appendix A to part 404. *Ecological integrity*
                                 means a condition determined to be characteristic of an ecosystem that has the ability to maintain the function, structure, and abundance of natural biological communities, including rates of change in response to natural environmental variation. *Fishing year*
                                 means the year beginning at 0001 local time on January 1 and ending at 2400 local time on December 31. *Introduced Species*
                                 means: (1) A species (including, but not limited to, any of its biological matter capable of propagation) that is non-native to the ecosystem(s) protected by the Monument; or (2) Any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. *Landing*
                                 means offloading fish from a fishing vessel or causing fish to be offloaded from a fishing vessel. *Midway Atoll Special Management Area*
                                 means the area of the Monument surrounding Midway Atoll out to a distance of 12 nautical miles, established for the enhanced management, protection, and preservation of Monument wildlife and historical resources. The geographic coordinates of this area, which consists of the area within the geodetic lines connecting these coordinates, are found in the Proclamation. The Midway Atoll Special Management Area is depicted on the map in Appendix A to part 404. *Mobile transceiver unit*
                                 means a vessel monitoring system or VMS device, as described in Appendix E to this Part, installed on board a vessel that is used for vessel monitoring and transmitting the vessel's position as required by this Part. *Monument*
                                 means the Northwestern Hawaiian Islands Marine National Monument. *Native Hawaiian Practices*
                                 means cultural activities conducted for the purposes of perpetuating traditional knowledge, caring for and protecting the environment and strengthening cultural and spiritual connections to the Northwestern Hawaiian Islands that have demonstrable benefits to the Native Hawaiian community. This may include, but is not limited to, the non-commercial use of Monument resources for direct personal consumption while in the Monument. *Ocean-based ecotourism*
                                 means a class of fee-for-service activities that involves visiting the Monument for study, enjoyment, or volunteer assistance for purposes of conservation and management. *Office for Law Enforcement (OLE)*
                                 refers to NOAA, National Marine Fisheries Service, Office for Law Enforcement. *Pelagic Species*
                                 means Pacific Pelagic Management Unit Species as defined at 50 CFR 665.12. *Pono*
                                 means appropriate, correct, and deemed necessary by traditional standards in the Hawaiian culture. *Proclamation*
                                 means Presidential Proclamation 8031, dated June 15, 2006 (71 FR 36443). *Recreational activity*
                                 means an activity conducted for personal enjoyment that does not result in the extraction of Monument resources and that does not involve a fee-for-service transaction. This includes, but is not limited to, wildlife viewing, SCUBA diving, snorkeling, and boating. *Secretaries*
                                 means the Secretary of Commerce and the Secretary of the Interior or their designees. *Special Preservation Area (SPA)*
                                 means discrete, biologically important areas of the Monument, identified in the Proclamation, within which uses are subject to conditions, restrictions, and prohibitions, including but not limited to access restrictions. SPAs are used to avoid concentrations of uses that could result in declines in species populations or habitat, to reduce conflicts between uses, to protect areas that are critical for sustaining important marine species or habitats, or to provide opportunities for scientific research. Specific coordinates for Special Preservation Areas within the Monument are found in the Proclamation, and the Special Preservation Areas consist of the areas within the geodetic lines connecting these coordinates. The Special 
                                ( print page 51137)
                                Preservation Areas are depicted on the map in Appendix A to part 404. *Special ocean use*
                                 means an activity or use of the Monument that is engaged in to generate revenue or profits for one or more of the persons associated with the activity or use, and does not destroy, cause the loss of, or injure Monument resources. This includes ocean-based ecotourism and other activities such as educational and research activities that are engaged in to generate revenue, but does not include commercial fishing for bottomfish or pelagic species conducted pursuant to a valid permit issued by NOAA. *Stowed and not available for immediate use*
                                 means not readily accessible for immediate use, 
                                *e.g.,*
                                 by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, or partially disassembled (such as spear shafts being kept separate from spear guns). *Sustenance fishing*
                                 means fishing for bottomfish or pelagic species in which all catch is consumed within the Monument, and that is incidental to an activity permitted under this part. *Vessel monitoring system or VMS*
                                 means a vessel monitoring system or mobile transceiver unit as described in § 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
  (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
  (a) 
                                *Requirement for use.*
                                 Effective August 28, 2006, an owner or operator of a vessel that has been issued a permit for accessing the Monument must ensure that such vessel has an OLE-approved, operating VMS on board when voyaging within the Monument. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and OLE as provided by an OLE-approved communication service provider. Appendix B to this part 404 provides information regarding OLE-approved transmitting units. (b) 
                                *Installing and activating the VMS.*
                                 Only a VMS that has been approved by OLE may be used. When installing and activating the OLE-approved VMS, or when reinstalling and reactivating such VMS, the vessel owner or operator must: (1) Follow procedures indicated on an installation and activation checklist, which is available from OLE; and (2) Submit to OLE a statement certifying compliance with the checklist, as prescribed on the checklist. (c) 
                                *Interference with the VMS.*
                                 No person may interfere with, tamper with, alter, damage, disable, or impede the operation of the VMS, or attempt any of the same. (d) 
                                *Interruption of operation of the VMS.*
                                 When a vessel's VMS is not operating properly, the owner or operator must immediately contact OLE, and follow instructions from that office. If notified by OLE that a vessel's VMS is not operating properly, the owner and operator must follow instructions from that office. In either event, such instructions may include, but are not limited to, manually communicating to a location designated by OLE the vessel's positions or returning to port until the VMS is operable. (e) 
                                *Access to position data.*
                                 As a condition of authorized access to the Monument, a vessel owner or operator subject to the requirements for a VMS in this section must allow OLE, the USCG, and their authorized officers and designees access to the vessel's position data obtained from the VMS. Consistent with other applicable laws, including the limitations on access to, and use of, VMS data collected under the Magnuson-Stevens Fishery Conservation and Management Act, the Secretaries may have access to, and use of, collected data for scientific, statistical, and management purposes. (f) 
                                *Authority for installation and operation.*
                                 OLE has authority over the installation and operation of the VMS unit. OLE may authorize the connection or order the disconnection of additional equipment, including a computer, to any VMS unit when deemed appropriate by OLE. (g) 
                                *Activities Regarding Vessel Monitoring Systems.*
                                 Effective August 28, 2006, the following activities regarding vessel monitoring systems are prohibited and thus unlawful for any person to conduct or cause to be conducted: (1) Operating any vessel within the Monument without an OLE type-approved mobile transceiver unit described in this section; (2) Failing to install, activate, repair, or replace a mobile transceiver unit prior to leaving port; (3) Failing to operate and maintain a mobile transceiver unit on board the vessel at all times as specified in this section; (4) Tampering with, damaging, destroying, altering, or in any way distorting, rendering useless, inoperative, ineffective, or inaccurate the VMS, mobile transceiver unit, or VMS signal required to be installed on or transmitted by a vessel as specified in this section; (5) Failing to contact OLE or follow OLE instructions when automatic position reporting has been interrupted as specified in this section; (6) Registering a VMS or mobile transceiver unit to more than one vessel at the same time; (7) Connecting or leaving connected additional equipment to a VMS unit or mobile transceiver unit without the prior approval of OLE; and (8) Making a false statement, oral or written, to an authorized officer regarding the installation, use, operation, or maintenance of a VMS unit or mobile transceiver unit or communication service provider.
 § 404.6
  The following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted:
                                ( print page 51138) (a) Exploring for, developing, or producing oil, gas, or minerals within the Monument; (b) Using or attempting to use poisons, electrical charges, or explosives in the collection or harvest of a Monument resource; (c) Introducing or otherwise releasing an introduced species from within or into the Monument; and (d) Anchoring on or having a vessel anchored on any living or dead coral with an anchor, anchor chain, or anchor rope.
 § 404.7
  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
  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
  (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
  (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
  (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;  
                                ( print page 51139) (3) Will assist in the conservation and management of the Monument; (4) Will allow Native Hawaiian practices subject to paragraph (e) of this section; (5) Will allow a special ocean use subject to paragraph (f) of this section; or (6) Will allow recreational activities subject to paragraph (g) of this section. (d) 
                                *Findings.*
                                 A permit may not be issued under this section unless the Secretaries find: (1) The activity can be conducted with adequate safeguards for the resources and ecological integrity of the Monument; (2) The activity will be conducted in a manner compatible with the purposes of the Proclamation, considering the extent to which the conduct of the activity may diminish or enhance Monument resources, qualities, and ecological integrity, any indirect, secondary or cumulative effects of the activity, and the duration of such effects; (3) There is no practicable alternative to conducting the activity within the Monument; (4) The end value of the activity outweighs its adverse impacts on Monument resources, qualities, and ecological integrity; (5) The duration of the activity is no longer than necessary to achieve its stated purpose; (6) The applicant is qualified to conduct and complete the activity and mitigate any potential impacts resulting from its conduct; (7) The applicant has adequate financial resources available to conduct and complete the activity and mitigate any potential impacts resulting from its conduct; (8) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity's goals in relation to their impacts to Monument resources, qualities, and ecological integrity; (9) The applicant's vessel has been outfitted with a mobile transceiver unit approved by OLE and complies with the requirements of § 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 
                                ( print page 51140)
                                Special Management Area shall not be allowed unless the activity has been determined by the Director of the U.S. Fish and Wildlife Service or his or her designee to be compatible with the purposes for which the Midway Atoll National Wildlife Refuge was established. Sustenance fishing must be conducted in a manner compatible with the Proclamation and this part, including considering the extent to which the conduct of the activity may diminish Monument resources, qualities, and ecological integrity, as well as any indirect, secondary, or cumulative effects of the activity and the duration of such effects. Sustenance fishing is subject to systematic reporting requirements when developed by the Secretaries.
 § 404.12
  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 
 
  
 
 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*.


BILLING CODE 3510-NK-P BILLING CODE 3510-NK-C [FR Doc. 06-7235 Filed 8-25-06; 12:24 pm]