SUPPLEMENTARY INFORMATION:

I. Introduction

A. Background

The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.) authorizes the Secretary of Commerce (Secretary) to designate and protect as national marine sanctuaries areas of the marine environment that are of special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archaeological, educational, or aesthetic qualities. Day-to-day management of national marine sanctuaries has been delegated by the Secretary to NOAA. The primary objective of the NMSA is to protect the resources of the National Marine Sanctuary System.

NOAA proposes to designate marine portions of the Papahānaumokuākea Marine National Monument as a national marine sanctuary to provide comprehensive and coordinated management of the marine areas of Papahānaumokuākea to protect nationally significant biological, cultural, and historical resources. The original Papahānaumokuākea Marine National Monument (PMNM, 0-50 nm), and the Monument Expansion Area (MEA, 50-200 nm), (collectively “Monument”), located around the Northwestern Hawaiian Islands, were established under the Antiquities Act of 1906 (54 U.S.C. 320301 et seq.) through, respectively, Presidential Proclamation 8031 of June 15, 2006; as amended by Presidential Proclamation 8112 of February 28, 2007; and Presidential Proclamation 9478 of August 26, 2016. The Monument is administered jointly by four Co-Trustees—the Department of Commerce, the Department of the ( printed page 15273) Interior, the State of Hawai'i, and the Office of Hawaiian Affairs.

In 2006, former President Bush established PMNM to protect and preserve the marine area of the Northwestern Hawaiian Islands and certain lands as necessary for the care and management of the historic and scientific objects therein. The Federal land and interests in land reserved included approximately 139,793 square miles of emergent and submerged lands and waters of the Northwestern Hawaiian Islands. NOAA and the United States Fish and Wildlife Service (USFWS) promulgated implementing regulations at 50 CFR part 404 for PMNM.

In 2016, Presidential Proclamation 9478 expanded the Monument into an adjacent area—the MEA—which includes the waters and submerged lands to the extent of the seaward limit of the United States Exclusive Economic Zone (U.S. EEZ) west of 163° West Longitude and covers an additional 442,781 square miles. Presidential Proclamation 9478 also directed the Secretary of Commerce to consider initiating the process to designate the MEA and PMNM seaward of the Hawaiian Islands National Wildlife Refuge and Midway Atoll National Wildlife Refuge and Battle of Midway National Memorial as a national marine sanctuary to supplement and complement existing authorities. On December 27, 2020, the Joint Explanatory Statement accompanying the Consolidated Appropriations Act, 2021, directed NOAA to initiate the process to designate the Monument as a national marine sanctuary.

The proposed sanctuary consists of a total area of approximately 582,570 square miles (439,910 square nautical miles). The precise boundary coordinates are defined in appendix A to the regulations at 15 CFR part 922, subpart W. The proposed sanctuary boundary encompasses the submerged lands, seamounts, and Pacific Ocean waters from the shoreline seaward to approximately 200 nautical miles west of 163° West Longitude surrounding the Northwest Hawaiian Islands which consist of the islands, atolls, and emergent lands stretching from Nihoa in the southeast to Kure Atoll in the northwest. The adjoining marine waters east of 163° West Longitude surrounding Nihoa extend seaward from the shoreline to approximately 50 nautical miles. This boundary reflects NOAA's preferred alternative, which is described in the DEIS as Alternative 1.

The proposed sanctuary is a place of unique environmental resources that provide large-scale ecosystem services for both the region and the world. The marine habitat includes several interconnected ecosystems, including coral islands surrounded by shallow reef, deeper reef habitat characterized by seamounts, banks, and shoals, mesophotic reefs with extensive algal beds, pelagic waters connected to the greater North Pacific Ocean, and deep-water habitats such as abyssal plains 5,000 meters below sea level. These ecosystems are connected as essential habitats for rare species such as the threatened green turtle and the critically endangered Hawaiian monk seal, as well as over 14 million seabirds that forage in the pelagic waters to nourish the chicks they are raising on the tiny islets. These waters are home to 20 cetacean species protected by the Marine Mammal Protection Act (MMPA), with some listed as endangered under the Endangered Species Act (ESA). The importance of these waters to the Hawaiian humpback whale is only recently becoming understood. At least a quarter of the nearly 7,000 known marine species found in the region are found nowhere else on Earth.

The area of the proposed sanctuary is also a sacred place to Native Hawaiians, who regard the islands and wildlife as kūpuna, or ancestors. The region holds deep cosmological and traditional significance for living Native Hawaiian culture. Papahānaumokuākea is as much a spiritual as well as a physical geography, deeply rooted in Native Hawaiian creation and settlement stories. Since Native Hawaiian culture considers nature and culture to be one and the same, the protection of one of the last nearly pristine, natural, marine ecosystems in the archipelago is seen as being akin to preserving the living culture.

The area of the proposed sanctuary also includes the location of the Battle of Midway, a turning point in World War II for the allies in the Pacific Theater. Research indicates that there are 60-80 military vessels and hundreds of aircraft on the seafloor. In addition to Navy steamers and aircraft, there are whaling ships, Japanese junks, Hawaiian fishing sampans, Pacific colliers, and other vessels from the 19th and 20th centuries. Of these, the locations of more than 30 vessel wreck sites have been confirmed by diving or bathymetric surveys, with only a handful of those identified by vessel name or otherwise evaluated.

B. Purpose and Need for Action

The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.) authorizes the Secretary to designate national marine sanctuaries to meet the purposes and policies of the NMSA, including:

• “to provide authority for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities” (16 U.S.C. 1431(b)(2));
• “to maintain the natural biological communities in the national marine sanctuaries, and to protect, and, where appropriate, restore and enhance natural habitats, populations, and ecological processes” (16 U.S.C. 1431(b)(3));
• “to enhance public awareness, understanding, appreciation, and wise and sustainable use of the marine environment, and the natural, historical, cultural, and archaeological resources of the National Marine Sanctuary System” (16 U.S.C. 1431(b)(4));
• “to support, promote, and coordinate scientific research on, and long-term monitoring of, the resources of these marine areas” (16 U.S.C. 1431(b)(5));
• “to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities” (16 U.S.C. 1431(b)(6));

NOAA's proposed action is to designate marine areas of Papaha ̄ naumokua ̄ kea as a national marine sanctuary. The purpose of this action is to provide comprehensive and coordinated management of the marine areas of Papaha ̄ naumokua ̄ kea to protect nationally significant biological, cultural, and historical resources. Additionally, the purpose of the designation is to implement the provisions of Executive Order 13178, Presidential Proclamation 9478, and the Joint Explanatory Statement accompanying the Consolidated Appropriations Act, 2021.

Accordingly, NOAA is proposing to designate this area as a national marine sanctuary to:

• Develop objectives and actions that ensure lasting protection consistent with the existing Monument proclamations;
• Safeguard natural and cultural values of the marine environment;
• Apply additional regulatory and non-regulatory tools to augment and strengthen existing protections for Papahā naumokua ̄ kea ecosystems, wildlife, and cultural and maritime heritage resources;
• Authorize NOAA to assess civil penalties for violations of provisions of the NMSA and regulations and permits ( printed page 15274) issued pursuant to the NMSA (16 U.S.C. 1437(d));
• Impose liability for destruction, loss of, or injury to sanctuary resources and provide natural resource damage assessment authorities for destruction, loss of, or injury to any sanctuary resource (16 U.S.C. 1443); and
• Require interagency consultation for any Federal agency action that is likely to destroy, cause the loss of, or injure any sanctuary resource (16 U.S.C. 1434(d));

C. Designation Process

1. Notice of Intent To Designate a National Marine Sanctuary

On November 19, 2021, NOAA initiated the process to designate marine portions of the Monument as a national marine sanctuary by publishing a Notice of Intent to Conduct Scoping and to Prepare an Environmental Impact Statement for the Proposed Designation of a National Marine Sanctuary within Papaha ̄ naumokua ̄ kea Marine National Monument (86 FR 64904). The notice of intent stated that NOAA would prepare a DEIS per the requirements of the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and the NMSA. The notice of intent (NOI) also announced NOAA's intent to fulfill its responsibilities under the National Historic Preservation Act (NHPA; 54 U.S.C. 300101 et seq.). The State of Hawai'i published its EIS preparation notice on December 8, 2021. Following publication of these notices, NOAA conducted four virtual public scoping meetings. During the 74-day public comment period from November 19, 2021 through January 31, 2022, 73 individuals and organizations provided written input. An estimated 165 people attended the four scoping meetings, with 9 people providing oral comments. The Summary of Scoping Input on the Notice of Intent and EIS Preparation Notice and State of Hawai'i Responses to Public Scoping Comments are included in the DEIS as appendix G.

2. Development of Proposed Terms of Designation and Proposed Regulations

Section 304(a)(4) of the NMSA requires that the terms of designation include: (1) the geographic area that is proposed to be included within the sanctuary; (2) the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value; and (3) the types of activities that would be subject to regulation by the Secretary to protect these characteristics. Section 304(a)(4) of the NMSA also specifies that the terms of designation may be modified only by the same procedures by which the original designation was made.

The purpose and need for the sanctuary provide the overarching basis for developing the proposed regulations. The designation of the proposed sanctuary would not replace the area's current status as a marine national monument. The proposed rule would supplement the existing provisions for management of the Monument and further protect resources in the Northwest Hawaiian Islands. To draft these regulations, NOAA reviewed the following, which currently guide Monument management:

• Executive Order 13178—Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, December 4, 2000;
• Presidential Proclamation 8031—Establishment of the Northwestern Hawaiian Islands Marine National Monument, June 15, 2006;
• Presidential Proclamation 8112, Amending Proclamation 8031 of June 15, 2006 to Read “Establishment of the Papahā naumokua ̄ kea Marine National Monument,” February 29, 2007;
• Regulations implementing Presidential Proclamations 8031 and 8112 at50 CFR part 404; and
• Presidential Proclamation 9478—Papahānaumokuākea Marine National Monument Expansion, August 26, 2016.

These executive orders, presidential proclamations, and regulations served as benchmarks for drafting the proposed rule for the proposed sanctuary. The proposed rule would only add to, and would not diminish, Monument management measures and protections. NOAA has adopted the management measures from these benchmarks, and, in a few areas, added onto those measures to allow for consistency in regulation and management across the proposed sanctuary. The proposed rule unifies management of the area by removing discrepancies and gaps in prohibitions, regulated activities, and permit criteria, providing clarity and comprehensive protection for the proposed sanctuary.

In developing this proposed rule and the proposed sanctuary terms of designation, NOAA also considered: (1) information received through public scoping comments, cooperating agency review, and coordination with the Monument Co-Trustees through the seven-member Monument Management Board (MMB), which consists of NOAA ONMS, NOAA National Marine Fisheries Service, USFWS Ecological Services, USFWS Refuges, Hawai'i Department of Land and Natural Resources (DLNR) Division of Aquatic Resources, DLNR-Division of Forestry and Wildlife, and the Office of Hawaiian Affairs (OHA); and (2) information from analysis of issues in the DEIS, interagency coordination, and internal staff analysis and expertise. NOAA also consulted with the Western Pacific Regional Fishery Management Council as required under the NMSA.

A detailed discussion of the proposed rule is contained below in section III, subsections A through M. The proposed terms of designation are contained below in section II, and are incorporated as an annex to the DMP.

3. Development of Draft Management Plan

A DMP has been prepared in accordance with NMSA section 304(a)(2)(C). Management plans are site-specific documents that ONMS uses to manage individual sanctuaries. The DMP: (1) articulates the sanctuary's vision, mission, goals, and objectives; (2) describes the management activities and initiatives that NOAA proposes to conduct; and (3) provides strategies and assessment measures to guide the sanctuary's short and mid-range management. The DMP for the sanctuary is included as appendix A to the DEIS.

4. Draft Environmental Impact Statement

In accordance with National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), the NMSA, and the Hawai'i Environmental Policy Act (HEPA, Chapter 343 HRS, HAR Chapter 11-200.1), NOAA is releasing a DEIS for the proposed national marine sanctuary designation in conjunction with the publication of this proposed rule. NOAA is the lead Federal agency in the preparation of the environmental impact statement. The USFWS, State of Hawai'i, and the Department of the Navy are cooperating agencies for the NEPA process. The DEIS ( https://sanctuaries.noaa.gov/​papahanaumokuakea/​) describes the purpose and need for the proposed action of designating a national marine sanctuary, identifies a range of alternatives including the preferred alternative, provides an assessment of resources and uses in the area, and evaluates the potential environmental consequences of the proposed designation including by comparing the beneficial and adverse impacts among alternatives.

The DEIS analyzes four alternatives; including a “no action” alternative, in which the area would not be designated as a national marine sanctuary; and three boundary alternatives: ( printed page 15275)

• Alternative 1 is coextensive with the marine portions of the Monument. The boundary includes the marine environment surrounding the Northwestern Hawaiian Islands from the shoreline of the islands and atolls seaward to 200 nautical miles, including all State waters and waters of the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, Midway Atoll and Hawaiian Islands National Wildlife Refuges, and State of Hawai'i Northwestern Hawaiian Islands Marine Refuge. The area encompassed in Alternative 1 is approximately 582,570 square miles (439,910 square nautical miles).
• Alternative 2 includes the marine environment from the shoreline of the islands and atolls seaward to 50 nautical miles. This alternative includes all State waters and waters of the Reserve, Midway Atoll and Hawaiian Islands National Wildlife Refuges, and State of Hawai'i Northwestern Hawaiian Islands Marine Refuge. This alternative does not include the MEA. The area encompassed in Alternative 2 is approximately 139,782 square miles (105,552 square nautical miles).
• Alternative 3 has the same boundaries as Alternative 1, excluding waters within the Midway Atoll and Hawaiian Islands National Wildlife Refuges. The area encompassed in Alternative 3 is approximately 581,263 square miles (438,923 square nautical miles).

5. Agency-Preferred Alternative

NOAA is identifying Alternative 1 as the agency-preferred alternative (preferred alternative) based on its comparative merits; this alternative serves as the foundation of this proposed rule (section 3.3 of the DEIS presents a map and an additional explanation of the reasons for this selection). NOAA selected its preferred alternative after considering input from the Monument Management Board, the State of Hawai'i, cooperating agencies, and public scoping meetings. Through the analysis in the DEIS, NOAA has found that the preferred alternative would provide numerous beneficial impacts, including increased protection and conservation of resources, and improved coordination of conservation and management. NOAA has also considered the potential adverse impacts of the preferred alternative and anticipates that there would be no significant adverse impacts to biological and physical resources, cultural and historic resources, or socioeconomic resources.

NOAA's identification of Alternative 1 as the preferred alternative is based on the need for additional resource protection, scientific research, and public education in areas that would be excluded by selecting the boundaries of Alternatives 2 or 3. Alternative 1 includes the MEA, an area which would benefit from the establishment of a NOAA permitting process, and the promulgation of sanctuary regulations to protect resources. Alternative 1 also includes the waters of Midway Atoll and Hawaiian Islands National Wildlife Refuges National Wildlife Refuges, which are the areas of the proposed sanctuary subject to the highest level of human activity.

Based on the public comments NOAA receives on the draft designation documents and NOAA's experience administering the national marine sanctuary program, pursuant to NEPA and the Administrative Procedure Act, NOAA may choose to select a different alternative in the final rule and final EIS that is within the geographic and regulatory scope of the alternatives currently considered in the DEIS, and that is a logical outgrowth of this proposed rule.

II. Proposed Sanctuary Terms of Designation

Section 304(a)(4) of the NMSA as amended, 16 U.S.C. 1434(a)(4), requires that the terms of designation be described at the time a sanctuary is designated, including: (1) the geographic area proposed to be included within the sanctuary; (2) the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or aesthetic value; and (3) the types of activities that will be subject to regulation by the Secretary of Commerce to protect these characteristics. The following represents the proposed terms of designation:

Under the authority of the National Marine Sanctuaries Act, as amended (the “Act” or “NMSA”), 16 U.S.C. 1431 et seq., approximately 439,910 square nmi (582,570 square mi) of the waters of the Pacific Ocean surrounding the Northwestern Hawaiian Islands are hereby designated as a National Marine Sanctuary for the purpose of providing long-term protection and management of the ecological, cultural, and historical resources and the conservation, recreational, scientific, educational, and aesthetic qualities of the area.

Article I: Effect of Designation

The NMSA authorizes the issuance of such regulations as are necessary and reasonable to implement the designation, including managing and protecting the ecological, cultural, and historical resources and the conservation, recreational, scientific, educational, and aesthetic qualities of Papahānaumokuākea National Marine Sanctuary (the “Sanctuary”). Section 1 of Article IV of these terms of designation lists those activities that may be regulated on the effective date of designation, or at some later date, in order to protect Sanctuary resources and qualities. Listing an activity does not necessarily mean that it will be regulated. However, if an activity is not listed it may not be regulated, except on an emergency basis, unless section 1 of Article IV is amended by the same procedures by which the original Sanctuary designation was made.

Article II: Description of the Area

The sanctuary encompasses the submerged lands, seamounts, and Pacific Ocean waters from the shoreline seaward to approximately 200 nautical miles west of 163° West Longitude surrounding the Northwestern Hawaiian Islands which consist of the islands, atolls, and emergent lands stretching from Nihoa in the southeast to Hōlanikū (Kure Atoll) in the northwest. The marine waters east of 163° West Longitude surrounding Nihoa extend seaward from the shoreline to approximately 50 nautical miles. The total area of the sanctuary comprises approximately 582,570 square miles (439,910 square nautical miles). The precise boundary coordinates are defined in appendix A to the regulations at 15 CFR part 922, subpart W.

Article III: Special Characteristics of the Area

Papahānaumokuākea is a place of special national significance that provides large-scale ecosystem services for the region and the world. The marine habitat includes several interconnected ecosystems, including coral islands surrounded by shallow reef, deeper reef habitat characterized by seamounts, banks, and shoals scattered across the area of the sanctuary, mesophotic reefs with extensive algal beds, pelagic waters connected to the greater North Pacific Ocean, and deep-water habitats and abyssal plains 5,000 meters below sea level. These connected ecosystems provide essential habitats for rare species such as the threatened green sea turtle and the critically endangered Hawaiian monk seal, as well as habitat for more than 14 million seabirds that forage in the pelagic waters to nourish the chicks they are raising on the tiny islets. Papahānaumokuākea is home to 20 cetacean species, protected by the MMPA, with some listed as endangered under the ESA. At least a ( printed page 15276) quarter of the nearly 7,000 known marine species found in the region are found nowhere else on Earth.

The area of the proposed sanctuary is also a place of historic and cultural significance. The area of the proposed sanctuary includes the location of the Battle of Midway, a turning point in World War II for the allies in the Pacific Theater. Research indicates that 60-80 military vessels and hundreds of aircraft are scattered across the seafloor. In addition to Navy steamers and aircraft, there are whaling ships, Japanese junks, Hawaiian fishing sampans, Pacific colliers, and other vessels from the 19th and 20th centuries.

Papahānaumokuākea is also a sacred place to Native Hawaiians, who regard the islands and wildlife as kūpuna, or ancestors. The region holds deep cosmological and traditional significance to living Native Hawaiian culture and contains a host of intact and significant archaeological sites found on the islands of Nihoa and Mokumanamana, both of which are on the National Register of Historic Places and Hawai'i Register of Historic Places. Papahānaumokuākea is as much a spiritual as a physical geography, rooted deep in Native Hawaiian creation and settlement stories.

Article IV: Scope of Regulations

Section 1. Activities Subject to Regulation

The following activities are subject to regulation, including prohibition, as may be necessary to ensure the protection and effective management of the ecological, cultural, historical, conservation, recreational, scientific, educational, or aesthetic resources or qualities of the area:

1. Access to the sanctuary;

2. Ship reporting;

3. Vessel monitoring;

4. Vessel discharge;

5. Exploring for, developing, or producing oil, gas, or minerals, or any energy development activities;

6. Using or attempting to use poisons, electrical charges, or explosives in the collection or harvest of a sanctuary resource;

7. Introducing or otherwise releasing an introduced species from within or into the sanctuary;

8. Deserting a vessel;

9. Commercial fishing;

10. Non-commercial fishing;

11. Possessing fishing gear;

12. Anchoring on or having a vessel anchored on any living or dead coral with an anchor, anchor chain, or anchor rope;

13. Drilling into, dredging, or otherwise altering the submerged lands; or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands;

14. Removing, moving, taking, harvesting, possessing, injuring, disturbing, or damaging; or attempting to remove, move, take, harvest, possess, injure, disturb, or damage any living or nonliving sanctuary resource;

15. Attracting any living sanctuary resource;

16. Touching coral, living or dead;

17. Swimming, snorkeling, or closed or open circuit SCUBA diving; or

18. Discharging or depositing any material or other matter, or discharging or depositing any material or other matter outside of the sanctuary that subsequently enters the sanctuary and injures or has the potential to injure any resources of the sanctuary;

19. Anchoring a vessel;

20. Native Hawaiian practices;

21. Research and scientific exploration;

22. Scientific research and development by Federal agencies;

23. Activities that will further the educational value of the sanctuary or will assist in the conservation and management of the sanctuary; and

24. Recreational activities.

Listing an activity here means that the Secretary of Commerce can regulate the activity, after complying with all applicable laws, without going through the designation procedures required by paragraphs (a) and (b) of section 304 of the NMSA. No term of designation issued under the authority of the NMSA may take effect in Hawaii State waters within the Sanctuary if the Governor of Hawaii certifies to the Secretary of Commerce that such term of designation is unacceptable within the review period specified in the NMSA.

Section 2. Emergencies

Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or to minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in section 1, are subject to immediate temporary regulation, including prohibition.

Article V: Alteration of This Designation

The terms of designation, as defined under section 304(a)(4) of the NMSA, may be modified only by the same procedures by which the original designation is made, including public hearings, consultations with interested Federal, Tribal, State, regional, and local authorities and agencies, review by the appropriate Congressional committees, and approval by the Secretary of Commerce, or his or her designee.

III. Summary of Proposed Regulations

A. Adding New Subpart W

NOAA is proposing to amend 15 CFR part 922 by adding a new subpart (subpart W) that contains site-specific regulations for the proposed sanctuary. This subpart would include the proposed boundary, contain definitions of common terms used in the new subpart, identify prohibited activities and exceptions, and establish procedures for permitting otherwise prohibited activities.

B. Proposed Sanctuary Boundary

NOAA proposes to designate the marine environment surrounding the Northwestern Hawaiian Islands from the shoreline of the islands and atolls seaward to 200 nautical miles, including all waters of the Monument. NOAA estimates the area encompassed in the proposed designation is approximately 582,570 square miles (439,910 square nautical miles).

C. Definitions

This proposed rule incorporates and adopts common terms defined in the national regulations at 15 CFR 922.11. In addition, NOAA proposes to include 19 site-specific definitions. To the extent that a term appears in § 922.11 and the definitions section of the proposed rule, the definition in the proposed rule would govern.

• The definitions for “Bottomfish Species” and “Pelagic Species” are adopted from regulations for Fisheries in the Western Pacific,50 CFR 665.201 and 50 CFR 665.800.
• “Ecological integrity”, “Midway Atoll Special Management Area”, “Native Hawaiian practices”, “Pono”, “Recreational activity”, “Special Preservation Area (SPA)”, “Stowed and not available for immediate use”, “Sustenance fishing”, and “Vessel monitoring system or VMS”, are adopted from Presidential Proclamation 8031.
• “Commercial fishing” and “Non-commercial fishing” are adopted from the MSA and, in part, from regulations for Fisheries in the Western Pacific,50 CFR 665.12.
• “Particularly Sensitive Sea Area (PSSA)” is adopted from IMO Resolution A.982(24), December 1, 2005.
• “Areas to be avoided (ATBA)” and “Office of Law Enforcement” are adopted from Papahānaumokuākea Marine National Monument regulations,50 CFR 404.3.
• “Outer Sanctuary Zone (OSZ)” refers to the area of the sanctuary that would extend from approximately 50 ( printed page 15277) nautical miles from all the islands and emergent lands of the Northwestern Hawaiian Islands to the extent of the seaward limit of the United States Exclusive Economic Zone west of 163° West Longitude. This area of the proposed sanctuary would correspond with the area designated as a marine national monument by Presidential Proclamation 9478, referred to as the “Papahānaumokuākea Marine National Monument Expansion” or MEA. NOAA is proposing this definition to provide clarity to the public where there is a regulation that only applies to this area of the sanctuary, and not the entire sanctuary. The name “OSZ” is a placeholder, and NOAA is soliciting public comment on possible names for this area of the proposed sanctuary.
• “Reporting Area” refers to the area of the proposed sanctuary that extends outward ten nautical miles from the PSSA boundary, as designated by the IMO, and excludes the ATBAs that fall within the PSSA boundary. The reporting area is defined by the coordinates set forth in appendix E to the proposed rule. NOAA is proposing to define the “reporting area” to clarify in which areas of the proposed sanctuary ship reporting requirements apply.
• “Scientific instrument” is a term used in Presidential Proclamation 9478, but the term was not defined. Specifically, Presidential Proclamation 9478 prohibits “drilling into, dredging, or otherwise altering the submerged lands, or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands, except for scientific instruments”. NOAA proposes to define “scientific instrument” to clarify what may or may not be permitted. NOAA proposes to define “scientific instrument” to mean “a device, vehicle, or tool used for scientific purposes and is inclusive of structures, materials, or other matter incidental to proper use of such device, vehicle, or tool.” In defining “scientific instruments,” NOAA's definition provides for the inclusion of “structures, materials, or other matter incidental to proper use of such device, vehicle, or tool” because, based on the type of activities previously permitted in the Monument, proper deployment and use of most scientific instruments requires more than the instrument itself. For example, there may be incidental ballast discharge associated with the use of a scientific instrument like a remotely operated vehicle, or ROV. A narrower definition of “scientific instruments” could unduly restrict NOAA's ability to permit activities in the area of the proposed sanctuary that overlaps with the MEA, the OSZ. NOAA believes a narrower definition would be inconsistent with the intent of Presidential Proclamation 9478, which states “Undisturbed seamount communities in the adjacent area are of significant scientific interest because they provide opportunities to examine the impacts of physical, biological, and geological processes on ecosystem diversity, including understanding the impacts of climate change on these deep-sea communities. These seamounts and ridges also provide the opportunity for identification and discovery of many species not yet known to humans, with possible implications for research, medicine, and other important uses. Recent scientific research, utilizing new technology, has shown that many species identified as objects in Proclamation 8031 inhabit previously unknown geographical ranges that span beyond the existing Monument, and in some cases the adjacent area also provides important foraging habitat for these species.” These statements clearly demonstrate the significant scientific value of the MEA and underscore the opportunities for research and discovery to occur in that area of the proposed sanctuary.

D. Co-Management of the Sanctuary

To enhance opportunities and build on existing protections, NOAA and the State of Hawai'i would collaboratively manage the sanctuary. NOAA would establish the framework for co-management in section 922.242 of the proposed rule and may develop a Memorandum of Agreement (MOA) with the State of Hawai'i to provide greater details of the terms of co-management. NOAA and the State may develop additional agreements as necessary to provide details on the execution of sanctuary management, such as activities, programs, and permitting that can be updated to adapt to changing conditions or threats to the sanctuary resources. Any proposed changes to sanctuary regulations or boundaries would be coordinated with the State and subject to public review as mandated by the NMSA and other Federal statutes. Co-management of the proposed sanctuary with the State of Hawaii would not supplant the existing co-management structure for the Monument.

E. Access

In PMNM, pursuant to Presidential Proclamation 8031, access is prohibited except under the following circumstances: (1) for emergency response and law enforcement purposes; (2) for activities and exercises of the Armed Forces; (3) for persons who have been issued Monument permits; and (4) for passage without interruption. For consistency, and to protect sanctuary resources, NOAA proposes extending the access restrictions which apply to the area of the proposed sanctuary that overlaps the PMNM to the area of the proposed sanctuary that overlaps with the MEA as follows:

Access to the sanctuary would be prohibited and thus unlawful except under the following circumstances: (1) for emergency response actions, law enforcement activities, and activities and exercises of the Armed Forces; (2) pursuant to a sanctuary permit; (3) when conducting non-commercial fishing activities in the OSZ authorized under the Magnuson-Stevens Fishery Conservation and Management Act provided that no sale of harvested fish occurs; and (4) when passing through the sanctuary without interruption.

A vessel may pass without interruption through the sanctuary without requiring a permit as long as the vessel does not stop, anchor or engage in prohibited activities within the sanctuary, and vessel discharges are limited to the following:

• Vessel engine cooling water, weather deck runoff, and vessel engine exhaust within a Special Preservation Areas or the Midway Atoll Special Management Area; and
• Discharge incidental to vessel operations such as deck wash, approved marine sanitation device effluent, cooling water, and engine exhaust in areas other than Special Preservation Areas or the Midway Atoll Special Management Area.

A vessel passing through the sanctuary without interruption may be subject to the ship reporting system, as described below.

The proposed access restrictions would be applied in accordance with generally recognized principles of international law, in accordance with sections 305(a) and 307(k) of the NMSA and the NMSA's Regulations of General Applicability at 15 CFR 922.1(b). No regulation shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States vessels unless in accordance with generally recognized principles of international law.

F. Ship Reporting

NOAA also proposes regulations to implement the ship reporting system (CORAL SHIPREP) adopted by the International Maritime Organization (IMO), which would require entrance and exit notifications for vessels that ( printed page 15278) pass without interruption through the sanctuary areas contained within a reporting area. NOAA proposes to establish this reporting area, which would be defined as “the area of the proposed sanctuary that extends outward ten nautical miles from the PSSA [Particularly Sensitive Sea Area] boundary, as designated by the IMO, and excludes the ATBAs [Areas to be avoided] that fall within the PSSA boundary.” The reporting area would be further defined by the coordinates set forth in appendix E to the proposed rule. Appendix E includes a coordinates table for the “Reporting Area Outer Boundary,” which contains the reporting area's boundary surrounding the PSSA. Appendix E also includes coordinate tables for the “Inner Reporting Area Boundary” for each of the four ATBAs that fall within the PSSA, but which are not part of the reporting area.

NOAA proposes exemptions for emergency response and law enforcement purposes, and for activities and exercises of the Armed Forces. Therefore, CORAL SHIPREP's requirements would not apply to vessels covered by those exemptions. The proposed regulations do not apply to vessels conducting activities pursuant to a sanctuary permit or vessels conducting non-commercial fishing activities in the OSZ authorized under the Magnuson-Stevens Fishery Conservation and Management Act. The proposed regulations also do not apply to sovereign immune vessels. This is consistent with sections 305(a) and 307(k) of the NMSA, and the NMSA's Regulations of General Applicability at 15 CFR 922.1(b), which state that sanctuary regulations shall be applied in accordance with generally recognized principles of international law. No regulation shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States vessels unless in accordance with generally recognized principles of international law.

Requiring vessels to notify NOAA immediately upon entering the reporting area, will help make the operators of these vessels aware that they are traveling through a fragile area with potential navigational hazards such as the extensive coral reefs found in many shallow areas of the proposed sanctuary contained within the reporting area. The reporting area for the proposed sanctuary would not include the four voluntary ATBAs adopted by the IMO that are also within the PSSA. An ATBA is an area within which either navigation is particularly hazardous or it is exceptionally important to avoid casualties. While ATBAs can be mandatory ( i.e., vessels are required by applicable law to avoid and operate outside of the area) most are voluntary and vessels may travel through them. Because the four ATBAs in the PSSA are voluntary, as adopted by the IMO and implemented by these proposed regulations, the ATBAs are outside of the reporting area. Nonetheless, by virtue of entering or exiting an ATBA, vessels would also be departing or entering the reporting area, and, therefore be subject to the reporting area's requirements four times: (1) once when it enters the reporting area; (2) once when it leaves the reporting area to enter the ATBA; (3) once when it exits the ATBA and enters the reporting area on the other side of the ATBA; and (4) once when it once again leaves the reporting area. The potential burden of reporting four times is justified by the navigational hazards that exist within the ATBAs. The reporting area also includes three large areas within the PSSA that are not within the ATBAs. These breaks between the four ATBAs allow for north-south passages through the sanctuary areas contained within the reporting area that can be utilized for navigation to avoid ATBAs. Vessels passing through the sanctuary in these areas would only send email notification twice: once upon entering the reporting area, and again upon leaving the reporting area.

NOAA is proposing to implement CORAL SHIPREP's requirements under the NMSA in keeping with the United States' and IMO's long-standing interest in providing additional protection to the natural, cultural, and historic resources in PMNM through ship reporting requirements. In June 2006, Presidential Proclamation 8031 directed the Secretary of Commerce and Secretary of Interior to require notification from any person passing through PMNM without interruption at least 72 hours, but no longer than 1 month, prior to the entry date, and within 12 hours of departure. Presidential Proclamation 8031 further indicated the specific types of information that must be provided in the notification. These notification requirements were subsequently codified in 50 CFR 404.4. Presidential Proclamation 8031 also directed the Secretary of State, in consultation with the Secretary of Commerce and Secretary of Interior, to seek the cooperation of other governments and international organizations in furtherance of the purposes of the proclamation and consistent with applicable regional and multilateral arrangements for the protection and management of special marine areas.

In accordance with Proclamation 8031, in April 2007, the United States proposed to the IMO that PMNM be designated as a PSSA to protect the attributes of the fragile and integrated coral reef ecosystem from potential hazards associated with international shipping activities. The U.S. noted in its proposal that the proposed PSSA and its associated protective measures would result in a minimal burden to international shipping, would significantly further increase maritime safety, protection of the fragile environment, preservation of cultural resources and areas of cultural importance significant to Native Hawaiians, and would facilitate responses to developing maritime emergencies. On April 3, 2008, the IMO designated the PMNM as a PSSA. As part of the PSSA designation process, the IMO adopted U.S. proposals for associated protective measures consisting of expanding and consolidating the six existing recommendatory ATBAs in the PMNM into four larger areas and enlarging the class of vessels to which they apply and establishing a ship reporting area and system for vessels transiting the PMNM, which is mandatory for ships 300 gross tons or greater that are entering or departing a U.S. port or place and recommended for other ships. The system requires that ships notify the U.S. shore-based authority ( i.e., the U.S. Coast Guard; NOAA will be receiving all messages associated with this program on behalf of the Coast Guard) at the time they begin transiting the reporting area and again when they exit. In December 2008, NOAA and the USFWS published final regulations to establish a ship reporting system for PMNM, that implemented measures adopted by the IMO requiring notification by ships passing through PMNM without interruption (73 FR 73592). These regulations modified the previous notification requirements at 50 CFR 404.4.

NOAA is proposing to implement the ship reporting system as adopted by the IMO and to establish the reporting area using the boundary coordinates in appendix E to the proposed rule to provide additional protection to the natural, cultural, and historic resources in the proposed sanctuary. Accordingly, NOAA's proposed regulations build upon the requirements outlined in Presidential Proclamation 8031, and reflect additions made through the IMO's adoption of a ship reporting system and the implementation of that system in 50 CFR 404.4. NOAA ( printed page 15279) proposes minor language changes from the process adopted by IMO Resolution MEPC.171(57) and IMO Resolution MSC.279(85) to provide clarity to the public on which vessels are required to participate in ship reporting and the type of information that should be reported. NOAA proposes one substantive addition to the types of reporting information in the IMO Resolutions, that vessels report “[a]ny pollution incident or goods lost overboard within the PSSA, the reporting area, or the U.S. EEZ.” This addition was included in the December 2008 final regulations to establish a ship reporting system for PMNM.

The NMSA provides NOAA with the authority to designate a national marine sanctuary and promulgate regulations implementing the designation if NOAA determines, among other things, that the area is of special national significance (see 16 U.S.C. 1433(a)(2)). NOAA's determination of special national significance is to be based on (1) the area's conservation, recreational, ecological, historical, scientific, cultural, archaeological, educational, or aesthetic qualities; (2) the communities of living marine resources it harbors; or (3) its resource or human-use values. In designating PMNM as a PSSA, the IMO expressly recognized the ecological, socio-economic, and scientific attributes of the area—including, a “unique, fragile, and pristine coral reef ecosystem” and “significant cultural and archaeological resources”—and their vulnerability to international shipping activities (see IMO Resolution MEPC.171(57)). The IMO highlighted PMNM's (1) more than 7,000 species of fish, mammals, plants, coral, and other invertebrates; (2) critical habitat, spawning, and breeding grounds; (3) cultural significance to Native Hawaiians, rich underwater cultural heritage from the World War II Battle of Midway; and (4) unparalleled opportunities in scientific research. Given the IMO's findings in designating the PSSA and adopting a ship reporting system as an associated protective measure, NOAA's proposed regulations implementing CORAL SHIPREP are necessary and reasonable to conserve and manage this area of special national and international significance as part of the proposed sanctuary (see 16 U.S.C. 1434(a)(1)(A)).

G. Activities That Are Prohibited or Otherwise Regulated

NOAA is proposing to supplement and complement existing management of this area by proposing prohibited or otherwise regulated activities in section 922.244. Presidential Proclamations 8031, 8112, and 9478, and regulations implementing Presidential Proclamations 8031 and 8112 at 50 CFR part 404 provide the foundation for the proposed prohibitions. However, minor changes are made in the proposed rule to remove discrepancies and gaps in prohibitions and regulated activities between PMNM and the MEA in order to allow for consistency in management across the proposed sanctuary.

Within PMNM, the proposed prohibitions are all currently in place through 50 CFR part 404 except for prohibitions 1 and 4 (detailed below). Minor changes are proposed to prohibitions 1 and 4 to remove discrepancies across the two zones (PMNM and MEA). Regulations implementing Presidential Proclamation 9478 have not yet been promulgated for the MEA. Many of the prohibitions adopted in the proposed rule are identified in Presidential Proclamation 9478, which established the MEA. Any prohibitions proposed for the area of the proposed sanctuary that overlaps with the MEA that are not adopted directly from Presidential Proclamation 9478 are identified below.

1. Prohibition on Exploring for, Developing, or Producing Oil, Gas, or Minerals, or Any Energy Development Activities

Consistent with the presidential proclamations establishing the Monument, NOAA is proposing to prohibit exploring for, developing, or producing oil, gas, or minerals to protect sanctuary resources and create a seamless management area throughout the proposed sanctuary. The addition of the prohibition on `any energy development activities' would be new for PMNM, and was added to further the underlying intent of the prohibition on oil, gas, and mineral development by accounting for technological advances in other forms of energy development.

In addition to creating consistency across the two zones, this prohibition will help advance the proposed sanctuary's draft goals and objectives by protecting sensitive marine ecosystems such as fragile coral reefs and deep-sea corals, benthic habitat, and seamounts. Prohibiting oil, gas, and mineral development reduces the risk of offshore spills, such as the Deepwater Horizon oil spill, that could significantly harm sanctuary resources. Deep seabed mining, oil and gas drilling, and other energy development activities, such as renewable energy system installation, destroys fragile benthic habitat, releases sequestered carbon, and spreads sediment plumes that can suffocate both sensitive shallow and deep-sea coral reefs, which negatively impacts nursery and foraging habitat for fish, and reduces the ecosystem's overall resilience.

2. Prohibition on Using or Attempting To Use Poisons, Electrical Charges, or Explosives in the Collection or Harvest of a Sanctuary Resource

NOAA is proposing this prohibition to be consistent with prohibitions identified in the presidential proclamations establishing the Monument.

3. Prohibition on Introducing or Otherwise Releasing an Introduced Species From Within or Into the Sanctuary

NOAA is proposing this prohibition to be consistent with prohibitions identified in the presidential proclamations establishing the Monument.

4. Prohibition on Deserting a Vessel

Deserting a vessel is currently a regulated activity (allowed only with a permit) in PMNM pursuant to Presidential Proclamation 8031. Deserting a vessel is a prohibited activity in the MEA pursuant to Presidential Proclamation 9478. NOAA does not see a need to permit this activity and is proposing this prohibition in part to create consistency in management across the proposed sanctuary. Prohibiting this activity would help to prevent desertion of a vessel following a sinking, grounding, or other incident. Prevention is much less expensive than responding to a deserted vessel and can optimally prevent impacts and damage to sanctuary resources as well as to private property.

5. Prohibition on Anchoring on or Having a Vessel Anchored on Any Living or Dead Coral With an Anchor, Anchor Chain, or Anchor Rope

NOAA is proposing this prohibition to be consistent with prohibitions identified in the presidential proclamations establishing the Monument.

6. Prohibition on Commercial Fishing and Possessing Commercial Fishing Gear Except When Stowed and Not Available for Immediate Use

Presidential Proclamation 8031 provided that commercial fishing for bottomfish and pelagic fish in PMNM that was permitted by NOAA prior to June 16, 2006 was allowed to continue for 5 years from the date of the proclamation, until June 15, 2011. After that date, Presidential Proclamation 8031 prohibited commercial fishing for ( printed page 15280) bottomfish and associated pelagic species in PMNM. Presidential Proclamation 9478 also prohibits commercial fishing, as well as possessing commercial fishing gear except when stowed and not available for immediate use during passage without interruption in the MEA. NOAA is proposing a sanctuary-wide prohibition on commercial fishing and possessing commercial fishing gear except when stowed and not available for immediate use to be consistent with the presidential proclamations establishing the Monument.

7. Prohibition on Non-Commercial Fishing and Possessing Non-Commercial Fishing Gear Except When Stowed and Not Available for Immediate Use

The presidential proclamations establishing the Monument broadly restrict the harvest of fishery resources by prohibiting removing, moving, taking, harvesting, possessing, injuring, disturbing, or damaging any living or nonliving monument resource, as well as attempts to do the same, except as may be allowed with a permit. As noted above, Presidential Proclamations 8031 and 9478 further specify prohibitions on commercial fishing and the possession of commercial fishing gear. The presidential proclamations also identify certain types of non-commercial fishing that may be regulated ( i.e., allowed pursuant to a permit or incidental to a permitted activity). Presidential Proclamation 8031, for example, authorizes sustenance fishing incidental to an activity permitted in PMNM. Presidential Proclamation 9478, for example, provides that non-commercial fishing is a regulated activity ( i.e., allowed only with a permit) in the MEA. In the sanctuary, NOAA is proposing, for consistency with the proclamations, that “non-commercial fishing” is prohibited unless conducted pursuant to a sanctuary permit or, as discussed below, authorized under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) in the OSZ. The proposed rule adopts the definition of “non-commercial fishing” from the regulations for Fisheries in the Western Pacific, which is defined as “fishing that does not meet the definition of commercial fishing in the Magnuson-Stevens Fishery Conservation and Management Act, and includes, but is not limited to, sustenance, subsistence, traditional indigenous, and recreational fishing.” 50 CFR 665.12.

NOAA also proposes that “possessing non-commercial fishing gear except when stowed and not available for immediate use” is prohibited unless conducted pursuant to a sanctuary permit or, as discussed below, authorized under the MSA in the OSZ. Presidential Proclamation 8031 includes “possessing fishing gear,” as a regulated activity (allowed only with a permit) in PMNM. Presidential Proclamation 9478 prohibits possessing commercial fishing gear. NOAA's proposal creates continuity between the two areas, and aims to ensure that non-commercial gear is not utilized in an unauthorized manner that could lead to injury to sanctuary resources.

8. Prohibition on Drilling Into, Dredging, or Otherwise Altering the Submerged Lands; or Constructing, Placing, or Abandoning Any Structure, Material, or Other Matter on the Submerged Lands

This activity is a regulated activity ( i.e., allowed only with a permit) in PMNM under Presidential Proclamation 8031. In the MEA, Presidential Proclamation 9478 prohibits this type of activity, except for when conducted for the use of scientific instruments, which is allowed only with a permit, subject to such terms and conditions as the Secretaries deem appropriate. In the sanctuary, NOAA is proposing that these activities are prohibited unless conducted pursuant to a sanctuary permit. In the OSZ, such a permit may only be issued for scientific instruments.

9. Prohibition on Removing, Moving, Taking, Harvesting, Possessing, Injuring, Disturbing, or Damaging; or Attempting To Remove, Move, Take, Harvest, Possess, Injure, Disturb, or Damage Any Living or Nonliving Sanctuary Resource

NOAA is proposing that these activities are prohibited unless conducted pursuant to a sanctuary permit, consistent with the presidential proclamations establishing the Monument.

10. Prohibition on Attracting Any Living Sanctuary Resource

NOAA is proposing that these activities are prohibited unless conducted pursuant to a sanctuary permit. NOAA is proposing this prohibition to be consistent with a regulated activity identified in Presidential Proclamation 8031 for PMNM. This prohibition would be new in the area of sanctuary that overlaps with the MEA, the OSZ. Prohibiting this activity is intended to address the potential for harassment and disturbance from human interactions with living sanctuary resources.

11. Prohibition on Touching Coral, Living or Dead

NOAA is proposing that this activity is prohibited unless conducted pursuant to a sanctuary permit. NOAA is proposing this prohibition to be consistent with a regulated activity ( i.e., allowed only with a permit) identified in Presidential Proclamation 8031 for PMNM. This prohibition would be new for the area of sanctuary that overlaps with the MEA, the OSZ. However, prohibition 9 effectively includes this activity, as touching coral is considered a disturbance which may cause injury or damage. Therefore, regulating this activity for the area of the proposed sanctuary that overlaps with the MEA, the OSZ, is primarily a technical addition which provides clarity to the public and resource managers.

12. Prohibition on Swimming, Snorkeling, or Closed or Open Circuit SCUBA Diving

NOAA is proposing that these activities are prohibited unless conducted pursuant to a sanctuary permit. NOAA is proposing this prohibition to be consistent with a regulated activity identified in Presidential Proclamation 8031 for any Special Preservation Area or the Midway Atoll Special Management Area. This prohibition would be new for areas of PMNM that fall outside of any Special Preservation Area or the Midway Atoll Special Management Area, and for the MEA. Expanding this regulated activity to the entire area of the proposed sanctuary allows NOAA to ensure that all in-water activities are done in compliance with the permit findings criteria and requirements, and are consistent with the care and management of sanctuary resources.

13. Prohibition on Discharging or Depositing Any Material or Other Matter Into the Sanctuary, or Discharging or Depositing Any Material or Other Matter Outside of the Sanctuary That Subsequently Enters the Sanctuary and Injures or Has the Potential To Injure Any Resources of the Sanctuary, Except as Described for Vessel Passage Without Interruption

NOAA is proposing that these activities are prohibited unless conducted pursuant to a sanctuary permit. NOAA is proposing this prohibition to be consistent with regulated activities identified in Presidential Proclamation 8031 for PMNM. NOAA proposes an exception to this activity for vessel passage without interruption, so long as any discharge is limited to “vessel engine cooling water, ( printed page 15281) weather deck runoff, and vessel engine exhaust within Special Preservation Areas or the Midway Atoll Special Management Area; and discharge incidental to vessel operations such as deck wash, approved marine sanitation device effluent, cooling water, and engine exhaust in areas other than Special Preservation Areas or the Midway Atoll Special Management Area.” While this prohibition would technically be new for the area of the proposed sanctuary that overlaps with the MEA, the OSZ, Presidential Proclamation 9478 effectively includes this activity. Regulating this activity for the OSZ provides clarity to the public and resource managers. Further, the prohibition on discharges within or into the sanctuary is proposed in recognition that various substances can be discharged from vessels or from infrastructure or individuals along the shoreline that can harm sanctuary resources or qualities. Establishing a cohesive regulatory framework across the proposed sanctuary would benefit sanctuary resources and sanctuary users.

14. Prohibition on Anchoring a Vessel

NOAA is proposing that this activity is prohibited unless conducted pursuant to a sanctuary permit. While this activity may be permitted via a sanctuary permit, anchoring on living or dead coral may never be permitted, as noted above under prohibition 5. NOAA is proposing this prohibition on anchoring a vessel, for consistency with a regulated activity identified in Presidential Proclamation 8031 for PMNM and because there is the potential for sanctuary resources, other than corals, to be impacted by anchoring. This prohibition would be new for the area of the proposed sanctuary that overlaps with the MEA, the OSZ. As stated above in Section E, NOAA proposes that a vessel may pass through the sanctuary without requiring a permit as long as the vessel does not stop, anchor or engage in prohibited activities within the sanctuary. Therefore, including this prohibition on anchoring a vessel also provides clarity to the public, resource managers, and enforcement personnel that all users of the proposed sanctuary—vessels conducting passage without interruption and permittees—are subject to the same prohibition on anchoring a vessel unless conducted pursuant to a sanctuary permit.

H. Exemptions for Emergencies

Consistent with existing management of this area, the proposed prohibitions for the proposed sanctuary would not apply to any activity necessary to respond to emergencies that threaten life, property, or the environment, or to activities necessary for law enforcement purposes.

I. U.S. Armed Forces Exemption

Consistent with existing management of this area, NOAA proposes a broad exemption to allow activities and exercises of the U.S. Armed Forces, including those carried out by the U.S. Coast Guard. NOAA recognizes that this broad exemption is necessary to ensure military readiness for the Department of Defense to conduct existing training, operations, and military readiness activities in the area proposed to be designated as a national marine sanctuary. The United States military has been able to maintain readiness and conduct training and other operations in other national marine sanctuaries based on similar broad exemptions.

All activities and exercises of the Armed Forces shall be carried out in a manner that avoids, to the extent practicable and consistent with operational requirements, adverse impacts on sanctuary resources and qualities. For any actions of the Armed Forces that are likely to destroy, cause the loss of, or injure sanctuary resources, the Armed Forces must comply with the Interagency Cooperation requirements outlined in section 304(d) of the NMSA, regardless of whether those actions are exempted from the proposed sanctuary's prohibitions.

J. Exemption for Non-Commercial Fishing

NOAA is proposing to exempt non-commercial fishing authorized under the MSA in the area of the sanctuary that overlaps with the MEA, the OSZ, from prohibitions 7 through 14 in the proposed rule, provided that no sale of harvested fish occurs. NOAA has prepared a separate proposed rule under the MSA which shall serve as the primary mechanism for authorizing non-commercial fishing activities. NOAA would periodically evaluate the effect of non-commercial fishing activities on sanctuary resources. Such evaluations would take into consideration the best scientific information available and evaluate whether additional actions are necessary for the proper care and management of Sanctuary resources, including fishery resources, consistent with goals and objectives of the Sanctuary. This exemption would only apply to the OSZ.

K. Sanctuary Permit Procedures and Criteria

1. Sanctuary General Permits

NOAA is proposing to include authority to issue sanctuary general permits to allow certain activities that would otherwise violate prohibitions 7 through 14. The proposed permitting system is modeled after the existing Monument permitting system. The proposed permitting system would not supplant the joint permitting system for PMNM, and was developed to ensure a continued joint permitting system administered by Monument co-managers. NOAA may develop Memorandum of Agreements in the future to add further clarification on joint-permitting within portions of the sanctuary that overlap with existing permitting programs for the Monument.

National marine sanctuary program-wide regulations at 15 CFR 922.30 describe different purposes for which a sanctuary general permit can be issued. Three of these which would apply to this proposed sanctuary are:

• Research—activities that constitute scientific research or scientific monitoring of a national marine sanctuary resource or quality;
• Education—activities that enhance public awareness, understanding, or appreciation of a national marine sanctuary or national marine sanctuary resource or quality; and
• Management—activities that assist in managing a national marine sanctuary.

NOAA is proposing to add two additional permit categories to 15 CFR 922.30 under which a sanctuary general permit could be issued in the proposed sanctuary:

• Native Hawaiian Practices— activities that allow for Native Hawaiian practices within the proposed sanctuary; and
• Recreation— recreational activities within the proposed sanctuary limited to the Midway Atoll Special Management Area.

NOAA is proposing these two additional general permit categories to be consistent with the types of activities permitted for the PMNM.

The general regulations in 15 CFR part 922, subpart D, relating to the permit application process, review procedures, amendments, and other permitting stipulations would apply. These national permitting regulations include a list of factors NOAA considers in deciding whether or not to issue the permit, such as whether the activity must be conducted within the sanctuary, and whether the activity will be compatible with the primary ( printed page 15282) objective of protection of sanctuary resources and qualities. NOAA would be able to impose specific terms and conditions through a permit as appropriate.

In addition to permit review procedures and evaluation criteria in 15 CFR 922.33, some additional permit review criteria would apply in the proposed sanctuary, including additional criteria specific to Native Hawaiian Practices permits and Recreation permits. NOAA is proposing these additional permit criteria to be consistent with the permit criteria for PMNM.

2. Special Use Permits

NOAA has the authority to issue special use permits (SUPs) in national marine sanctuaries, as established by section 310 of the NMSA (16 U.S.C. 1441) and by 15 CFR 922 subpart D. SUPs can be used to authorize specific activities in a sanctuary if such authorization is necessary to establish conditions of access to, and use of, any sanctuary resource or to promote public use and understanding of a sanctuary resource. Section 310 of the NMSA establishes four requirements for SUPs: (1) activities must be compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources; (2) SUPs shall not authorize the conduct of any activity for a period of more than five years unless otherwise renewed; (3) activities carried out under the SUP must be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources; and (4) permittees are required to purchase and maintain comprehensive general liability insurance, or post an equivalent bond, against claims arising out of activities conducted under the SUP and to agree to hold the United States harmless against such claims. The NMSA authorizes NOAA to assess and collect fees for the conduct of any activity under an SUP, including costs incurred, or expected to be incurred, in issuing the permit and the fair market value use of sanctuary resources. Implementing regulations at 15 CFR 922.35 provide additional detail on assessment of fees for SUPs. As is the case with sanctuary general permits, NOAA can place conditions on SUPs specific to the activity being permitted. NOAA shall provide appropriate public notice before identifying any category of activity subject to a special use permit.

NOAA is not proposing any new SUP category as part of this designation. In evaluating applications for special use permits, NOAA would consider all applicable permitting requirements, including permitting procedures and criteria under the Monument's existing management framework. For example, certain activities may be subject to the requirements of special ocean use permits, as authorized by Presidential Proclamation 8031, and issued by Monument managers in the PMNM via 40 CFR 404.11. Special ocean use permit requirements were modeled after SUPs, but also include a few additional requirements, such as for activities within the Midway Atoll Special Management Area.

3. Sustenance Fishing

NOAA may authorize sustenance fishing outside of any Special Preservation Area as a term or condition of any sanctuary permit. Sustenance fishing is fishing for bottomfish or pelagic species in which all catch is consumed within the sanctuary. Sustenance Fishing is allowed incidental to an activity permitted in the PMNM under Presidential Proclamation 8031, and in regulations at 50 CFR part 404. Sustenance fishing was not specifically identified in Presidential Proclamation 9478 governing the MEA but is allowable. For consistency in management and permitting, NOAA proposes allowing for this activity as a term or condition of a general permit or special use permit.

4. VMS

To complement existing management and provide consistency across the entirety of the sanctuary, an owner or operator of a vessel that has been issued a general permit or special use permit under 15 CFR subpart D must ensure that such vessel has a NOAA Office of Law Enforcement (OLE)-approved Vessel Monitoring System (VMS) on board when operating within the sanctuary. Presidential Proclamation 8031 requires an owner or operator of a vessel that has been issued a permit for accessing the PMNM to have an OLE-approved VMS on board. Such a requirement was not included in Presidential Proclamation 9478. For consistency in permitting, and for the reasons identified below, NOAA proposes to impose this requirement across the proposed sanctuary.

NOAA proposes this requirement to support permit compliance, enforcement, and other incidental uses, consistent with the long-standing history of considering and implementing the use of vessel monitoring systems in the area of the proposed sanctuary, beginning with Executive Order 13178 in 2000. In directing the Secretary to manage the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, section 5(b) of Executive Order 13178 indicated that priority issues and actions must include enforcement and surveillance, including the use of new technologies, as well as the use of vessel monitoring systems, if warranted. The 2005 Final Reserve Operations Plan included an Enforcement Action Plan with strategies to investigate innovative technology that would be effective for this large, remote area, as well as to implement VMS. In 2006, Presidential Proclamation 8031, as noted above, required an OLE-approved VMS on board of vessels with permits to access the PMNM. VMS is currently being utilized in the PMNM and is part of the Monument Management Plan's Enforcement Action Plan. The Monument Management Plan highlights, as an example, that when the 85-foot longliner Swordman I, carrying more than 6,000 gallons of diesel fuel and hydraulic oil, ran aground at Pearl and Hermes Reef in 2000, vessel monitoring system technology allowed agents to track the disaster and quickly send out equipment for an extensive cleanup.

L. Scientific Exploration and Research by the Department of Commerce and the Department of the Interior

Presidential Proclamation 9478 stipulates that the prohibitions required by the proclamation “shall not restrict scientific exploration or research activities by or for the Secretaries and nothing in this proclamation shall be construed to require a permit or other authorization from the other Secretary for their respective scientific activities.” NOAA is proposing to exempt these activities within the OSZ to be consistent with Presidential Proclamation 9478.

M. Other Conforming Amendments

The Regulations of General Applicability at 15 CFR part 922, subpart A, and the regulations related to National Marine Sanctuary Permitting, 15 CFR part 922, subpart D, would have to be amended so that the regulations are accurate and up-to-date. The modified sections to conform to adding a new sanctuary are as follows:

• Section 922.1 Purposes and applicability of the regulations;
• Section 922.4 Boundaries;
• Section 922.6 Prohibited or otherwise regulated activities;
• 922.30 National Marine Sanctuary general permits;
• 922.33 Review procedures and evaluation; and
• 922.37 Appeals of permitting decisions. ( printed page 15283)

IV. Requests for Comments

NOAA is requesting comments on this proposed rule, including comments on the terms of designation and the proposed regulations, the DEIS, and the DMP for the proposed sanctuary. NOAA will publish the final EIS and final management plan following public review and comment on this proposed rule and following NOAA's consideration of substantive comments received. NOAA also requests comments on the Regulatory Flexibility Act certification and economic analysis. The preamble of the final rule will include responses to substantive comments received on the proposed rule. The full response to comments, which includes responses to comments made on the proposed rule, the DEIS, and the draft management plan, will be provided as an Appendix to the Final EIS.

Sensitive personally identifiable information, such as account numbers and Social Security numbers, should not be included with the comment. Comments that are not related to designation of the proposed sanctuary or that contain profanity, vulgarity, threats, or other inappropriate language will not be considered.

V. Classification

A. National Marine Sanctuaries Act

NOAA consulted with the Western Pacific Regional Fishery Management Council (Council) as required by section 304(a)(5) of the NMSA. Through this consultation, NOAA provided the Council with the opportunity to recommend any draft fishing regulations it deemed necessary to implement the proposed sanctuary designation. NOAA initiated the consultation on November 19, 2021. On March 22, 2022, the Council agreed to develop draft fishing regulations for the proposed sanctuary. NOAA participated in six public meetings hosted by the Council on November 1st, 3rd, 4th, 5th, 8th, and 10th of 2022, which were focused on the development of fishing regulations for the area of the proposed sanctuary that overlaps with the MEA. At its 193rd meeting in December of 2022, the Council provided a final recommendation. NOAA found that the final recommendation, in part, did not fulfill the purposes and policies of the NMSA and the goals and objectives of the proposed designation. The Council amended their recommendation during their 194th meeting in March of 2023, and submitted a revised final recommendation to NOAA on April 14, 2023.

In May of 2023, NOAA accepted the majority of the Council's recommendation as it fulfilled the purposes and policies of the NMSA and the goals and objectives of the proposed sanctuary designation. However, the Council's recommendation for the disposition of Native Hawaiian Subsistence Practices Fishing catch, which would provide permit applicants the ability to request limited cost recovery by selling their catch was rejected by NOAA via a decision letter dated May 31, 2023. As NOAA explained in the letter, any recommendation for the allowance of “sale” is inconsistent with the goals and objectives of the proposed sanctuary designation. NOAA Fisheries has prepared a proposed rule under the MSA and ONMS has prepared this proposed rule under the NMSA to reflect the outcome of the NMSA section 304(a)(5) process.

Pursuant to section 304(a)(1)(C) of the NMSA, the Committee on Natural Resources of the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, and the Governor of Hawai'i will have the opportunity to review this proposed action.

B. National Environmental Policy Act

As described in section I above, NOAA and the State of Hawai'i prepared a DEIS to evaluate the impacts of this proposed action of designating a national marine sanctuary, which considers four alternatives for the proposed designation of a national marine sanctuary in marine portions of the Monument. Copies of the DEIS and related draft management plan are available at the website listed in the ADDRESSES section of this proposed rule. NOAA is also soliciting public comments on the DEIS and DMP. The full response to comments, which includes responses to comments made on the proposed rule, the DEIS, and the draft management plan, will be provided as an Appendix to the Final EIS.

C. Executive Orders 12866: Regulatory Impact, 13563 Improving Regulation and Regulatory Review, and 14094: Modernizing Regulatory Review

The Office of Management and Budget (OMB) has determined this proposed rule to be not significant within the meaning of Executive Order 12866, as supplemented by Executive Order 14094.

D. Executive Order 13132: Federalism Assessment

NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132 because NOAA supplements and complements State and local laws under the NMSA rather than supersedes or conflicts with them. This proposed rule will not have substantial direct effects on State or local governments. NOAA has coordinated closely with State partners throughout the development of this proposed rule and, where applicable and practicable, the proposed rule aligns with existing State regulations. NOAA has aimed for consistent regulations throughout sanctuary waters including those within State and Federal jurisdiction.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) requires Federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking, unless the agency certifies, pursuant to 5 U.S.C. 605, that the action will not have significant economic impact on a substantial number of small entities. The RFA requires agencies to consider, but not necessarily minimize, the effects of proposed rules on small entities. The goal of the RFA is to inform the agency and public of expected economic effects of the proposed rule and to ensure the agency considers alternatives that minimize the expected economic effects on small entities while meeting applicable goals and objectives.

Pursuant to section 605(b) of the RFA, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The purpose, context, and statutory basis for this action is described above and not repeated here. The analysis below discusses the potential effects of the proposed designation of marine portions of Papahānaumokuākea Marine National Monument as a national marine sanctuary and serves as the factual basis for the certification. In summary, with this proposed rulemaking, small entities are not expected to experience significant impacts. ( printed page 15284)

1. Description and Estimate of the Number of Small Entities to Which the Proposed Action Would Apply

Under the Monument's existing management framework, activities in the Monument, with limited exceptions, require a permit. The same would be true in the proposed sanctuary. Based on permitting data for the Monument, there are six primary categories of regulated uses: (1) research; (2) conservation and management; (3) education; (4) Native Hawaiian practices; (5) recreation; and (6) special ocean use. Table 1 shows the number of permits issued by category from 2018 to 2022. Based on permitting data, the types of entities applying for permits include, government, non-profits, artists, film and entertainment entities, education providers, and research organizations. Additionally, ship reporting is required for vessels that transit through portions of the Monument, and the types of entities impacted are identified as finfish fishing or deep-sea freight transit (73 FR 38375 (July 7, 2008)).

The U.S. Small Business Administration establishes size standards for determining whether a business entity qualifies as small. NOAA has analyzed the types of entities that applied for permits by category and identified the relevant industries impacted by the proposed rule as colleges and universities, apprenticeship training, environment, conservation and wildlife organizations, civic and social organizations, television broadcasting stations, motion picture and video production, geophysical surveying and mapping services, independent artists, writers, performers, and museums. Each relevant industry is shown in the table below with the most recent size standards published by the U.S. Small Business Administration (2023). Size standards are based upon the average annual receipts (all revenue) or the average employment of a firm.

Table 3 provides the approximate number of permits issued for each corresponding industry. The Monument permit application itself does not ask the applicant for their industry or if the applicant is a small entity. Therefore, the data presented below is based on limited information from the permit application, specifically the applicant's name and stated purpose for the permit.

Regarding ship reporting requirements, NOAA estimated there would be approximately 200-250 vessels passing through reporting areas of the proposed sanctuary without interruption that would be subject to providing entry and exit notifications, based on vessel traffic reported between 2017 and 2023.

The data provided in Tables 1, 2, and 3 provide information on the type of permit applications, the industries that may be impacted, and the number of permits by corresponding industry. NOAA does not have economic data on whether the permittees within the corresponding industries are small entities or not. Due to the lack of quantitative data on the nature of businesses directly affected by the proposed rule including their levels of revenues, costs, and profits from their activities within the sanctuary, the analysis provided here is qualitative. Based upon site interactions and working relationships with permittees, the types of small entities that may be impacted by this proposed rule include academic and government institutions, non-profit organizations, and broadcast and video production entities. In addition, U.S. fishing vessels are expected to be impacted by this rulemaking, and all are considered to be small entities. U.S. freight transport vessels are expected to be affected by this rulemaking, though none are considered to be small entities.

2. Analysis of Small Entities

The proposed sanctuary regulations would largely mirror the existing management framework for the Monument. There would be no effective difference in the permitting process between the proposed action and the status quo for permitting within PMNM. The proposed regulatory action would establish new permitting requirements for entities that seek access to areas of the proposed sanctuary that overlap with the MEA, the OSZ. While access restrictions for portions of the proposed sanctuary that overlap with the MEA would be new, the activities that may be permitted would be consistent with Presidential Proclamation 9478.

Therefore, the proposed regulatory action would establish new reporting and recordkeeping requirements for entities that apply for permits in the area of the proposed sanctuary that overlaps with the MEA, the OSZ, but is not expected to have a significant economic impact on a substantial number of small entities for the following reasons. Based on the NOAA Monument manager's site knowledge and experience, the proposed regulatory action is not expected to result in an increase in the number of permit requests, as the majority of users operate in the area of the proposed sanctuary that overlaps with PMNM, and do not solely operate in the area of the proposed sanctuary that overlaps with the MEA. Additionally, the area under consideration is coextensive with the marine areas of the Monument, extremely remote (nearly 300 miles at its closest point from the main Hawaiian Islands), and very few entities operate there.

Through this proposed rule, NOAA does not expect a significant reduction in profits for small entities. NOAA does not charge a fee for review and issuance of general permits, and there are only minimal, indirect costs associated with the time for an individual to complete a permit application and respond to any follow-up questions from NOAA. While NOAA may assess fees for the conduct of any activity authorized under a special use permit, fees are not required, and decisions are made on a case-by-case basis. No unique professional skills are necessary to meet these reporting requirements. In addition, the process by which all applicants apply for a permit, or complete entry and exit notifications for passage without interruption through certain areas within the proposed sanctuary, would not substantially differ from the current process. Therefore, these additional permitting requirements would not significantly reduce profits for a substantial number of small entities. The public reporting burden for Monument permits is provided in table 4. The public reporting burden differs by permit category.

Under the existing Monument management framework, as a condition of a permit, permittees are required to have a NOAA OLE type-approved VMS on board when operating within the PMNM. The cost of a VMS unit is $3,150. Annualized over 3 years (the life of the unit) the cost per year is $1,050.00 per year with an additional ( printed page 15286) estimated $100.00 in annual maintenance costs, and $192.00 in VMS report transmission costs ($1.28 daily cost based on a high estimate that a permitted vessel may spend on average, 150 days per year in the Monument), for a total annual VMS cost of $1,342. The proposed rule includes this requirement for areas of the proposed sanctuary that overlap with both the PMNM and MEA. However, the proposed rule is not expected to result in an increase in the number of permit requests, as the majority of users operate in the area of the proposed sanctuary that overlaps with PMNM, and do not solely operate in the area of the proposed sanctuary that overlaps with the MEA. Therefore, this additional permit requirement is not expected to result in an increase in the number of required VMS units, or a significant financial burden to small entities.

Through this proposed rule, the process for ship reporting for vessels transiting through areas of the proposed sanctuary would not substantially differ from the current process. The proposed regulatory action would not establish any new reporting or record-keeping requirements related to ship reporting.

As described above, NOAA does not expect a significant reduction in profits for small entities, as the expected costs are minimal, indirect costs for permit applications, and does not expect an increase in permit applications as users are already required to have a permit to access PMNM. NOAA has concluded that the proposed rule would not have a significant impact on a substantial number of small entities. Therefore, an Initial Regulatory Flexibility Analysis is not required and none was prepared.

F. Paperwork Reduction Act

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., unless that collection of information displays a currently valid OMB control number.

NOAA has an OMB control number (0648-0548) for the collection of public information related to the processing of PMNM permit applications and reports for permits. In the most recent Information Collection Request revision and approval for PMNM permits, NOAA reported approximately 74 permit respondents per year. NOAA's proposal to create a national marine sanctuary in the marine portions of the Monument is not expected to result in an increase in the number of requests for permits under this control number. Therefore, the annual public reporting burden hours for permits under OMB control number 0648-0548 is not expected to increase. A large increase in the number of permit requests would require a change to the reporting burden certified for OMB control number 0648-0548. While not expected, if such permit requests do increase, a revision to this control number for the processing of permits would be requested.

Please send any comments regarding the burden estimate for this data collection requirement or any other aspect of this data collection, including suggestions for reducing the burden, to NOAA (see ADDRESSES above). Comments can also be submitted to www.reginfo.gov/​public/​do/​PRAMain. Before an agency submits a collection of information to OMB for approval, the agency shall provide 60-day notice in the Federal Register , and otherwise consult with members of the public and affected agencies concerning each proposed collection of information, to solicit comments to:

• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submission of responses).

G. National Historic Preservation Act

Section 106 of the National Historic Preservation Act (NHPA, 54 U.S.C. 306108) requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to the undertaking. “Historic property” means any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and material remains that are related to and located within such properties, including properties of traditional religious and cultural importance to an Indigenous nation or Tribe or Native Hawaiian organization (see 36 CFR 800.16(l)).

The regulations implementing section 106 of the NHPA (36 CFR part 800) establish a process requiring Federal agencies to: (1) determine whether the undertaking is a type of activity that could affect historic properties; (2) identify historic properties in the area of potential effects; (3) assess potential adverse effects; and (4) resolve adverse effects. The regulations require that Federal agencies consult with States, Tribes, and other interested parties when making their effect determinations. NOAA has determined that the designation of a national marine sanctuary and related rulemaking for sanctuary-specific regulations meet the definition of an undertaking as defined at § 800.16(y).

In fulfilling its responsibilities under section 106 of the NHPA, NOAA initiated the section 106 review process with the State Historic Preservation Officer (SHPO) for the proposed sanctuary designation via letter to the State Historic Preservation Division (SHPD) through the Hawai'i Cultural Resource Information System on November 21, 2021. NOAA also provided notice to the Advisory Council on Historic Preservation (ACHP) on November 21, 2021. These letters and supporting documentation identified the proposed Area of Potential Effect (APE) and began the process to identify consulting parties (CP). Invitations were sent to over 500 families and organizations having lineal and cultural connections to Papahānaumokuākea, including cultural practitioners, Native Hawaiian Organizations, fishers (subsistence, recreational, commercial), and government agencies. As of January 21, 2023, NOAA received 31 requests to be a CP for the proposed sanctuary designation and NOAA has officially recognized the 31 CPs. NOAA will complete the identification of historic properties in the proposed APE and the assessment of the undertaking's potential to affect historic properties in consultation with the recognized consulting parties. To date, ONMS has conducted 6 meetings with recognized consulting parties. The NHPA section 106 review is ongoing, and additional consultations will be held following the release of the DEIS and DMP. As the DEIS is a joint Federal-State action, the State is also preparing a Cultural Impact Assessment (CIA) and Legal Analysis pursuant to the Hawai'i Environmental Policy Act (HEPA), Hawai'i Revised ( printed page 15287) Statutes (HRS) section 343, the corresponding Hawai'i Administrative Rules (HAR) section 11-200.1, and the Environmental Council's 1997 Guidelines for Assessing Cultural Impacts.

H. Sunken Military Craft Act

The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects from unauthorized disturbance all sunken military craft that are owned by the United States government, as well as foreign sunken military craft that lie within United States waters, as defined in the SMCA. Thousands of U.S. sunken military craft lie in waters around the world, many accessible to looters, treasure hunters, and others who may cause damage to them. These craft, and their associated contents, represent a collection of non-renewable and significant historical resources that often serve as war graves, carry unexploded ordnance, and contain oil and other hazardous materials. By protecting sunken military craft, the SMCA helps reduce the potential for irreversible harm to these nationally important historical and cultural resources.

The 1942 Battle of Midway occurred both at Midway Atoll as well as some 100-150 nautical miles north of the atoll in the northwestern portion of Papahānaumokuākea. Aircraft carriers from the historic conflict have been located in the deep ocean, and multiple aircraft and sunken military vessels have been surveyed within the Midway Atoll Special Management Area. Yet, hundreds of aircraft, and several other aircraft carriers and destroyers from the battle remain to be discovered in Papahānaumokuākea. Sunken military craft fall under the jurisdiction of a number of Federal agencies such as the U.S. Navy and the U.S. Coast Guard. NOAA and FWS coordinate very closely with the U.S. Navy and any other applicable Federal agency, foreign State, or State agency if found within State waters, regarding activities directed at sunken military craft discovered within the sanctuary.

K. Coastal Zone Management Act (CZMA)

Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 1456) requires Federal agencies to consult with a State's coastal program on potential Federal agency activities that affect any land or water use or natural resource of the coastal zone. Because the proposed sanctuary lies partially within State waters, NOAA intends to submit a copy of this proposed rule and supporting documents, including the DEIS, to the State of Hawaii's Office of Planning and Sustainable Development for evaluation of Federal consistency under the CZMA. NOAA will publish the final rule and designation only after completion of the Federal consistency process under the CZMA.

L. Executive Order 12898: Environmental Justice

Executive Order 12898 directs Federal agencies to identify and address disproportionately high and adverse effects of their actions on human health and the environment of minority or low-income populations. The designation of national marine sanctuaries by NOAA helps to ensure the enhancement of environmental quality for all populations in the United States. The proposed sanctuary designation would not result in disproportionate negative impacts on any minority or low-income population. In addition, many of the potential impacts from designating the proposed sanctuary would result in long-term or permanent beneficial impacts by protecting resources, which may have a positive impact on communities by providing employment and educational opportunities, and potentially result in improved ecosystem services.

Regulatory Amendments and Additions

For the reasons set forth above, NOAA proposes to amend part 922, title 15 of the Code of Federal Regulations as follows:

1. The authority citation for part 922 continues to read as follows:

Authority: 16 U.S.C. 1431 et seq.

2. Amend § 922.1 by revising paragraph (a)(2) to read as follows:

3. Revise § 922.4 to read as follows:

4. Revise §  922.6 to read as follows:

5. Amend § 922.30 by:

a. Revising paragraph (a)(2);

b. Removing the word “and” at the end of paragraph (b)(5);

c. Removing the period at the end of paragraph (b)(6) and adding “; and” in its place; and

d. Adding paragraphs (b)(7) and (8).

The additions read as follows:

6. Amend § 922.33 by removing the word “and” at the end of paragraph (a)(8), removing the period at the end of paragraph (a)(9) and adding “; and” in ( printed page 15288) its place, and by adding paragraphs (a)(10), (11), and (12).

The additions read as follows:

7. Amend 922.37 by revising paragraphs (a)(2) and (3) to read as follows:

8. Add subpart W to read as follows: