Papahānaumokuākea National Marine Sanctuary; Final Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 240213-0047]

RIN 0648-BL33

Papahānaumokuākea National Marine Sanctuary; Final Regulations

AGENCY:

Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION:

Final rule; notification of availability of final management plan and Record of Decision.

SUMMARY:

NOAA is designating Papahānaumokuākea National Marine Sanctuary (sanctuary) to protect nationally significant biological, cultural, and historical resources and to manage this special place as part of the National Marine Sanctuary System. The sanctuary consists of an area of approximately 582,570 square statute miles (439,910 square nautical miles) of Pacific Ocean waters surrounding the Northwestern Hawaiian Islands and the submerged lands thereunder. NOAA is establishing the terms of designation for the sanctuary and the regulations to implement the national marine sanctuary designation. NOAA has also published a final environmental impact statement (final EIS) in coordination with the State of Hawai'i, final management plan, and Record of Decision.

DATES:

Effective Date:

Pursuant to section 304(b) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and regulations shall take effect and become final after the close of a review period of forty-five days of continuous session of Congress, beginning on the date on which this Federal rulemaking is published, which is January 16, 2025. During that review period, the Governor of the State of Hawai'i may certify to the Secretary of Commerce that the designation or any of its terms is unacceptable, in which case the designation or any unacceptable term shall not take effect in State waters of the sanctuary. The public can track days of Congressional session at the following website:

https://www.congress.gov/days-in-session.

NOAA will publish an announcement of the effective date of the final regulations in the

Federal Register

.

ADDRESSES:

Copies of the final environmental impact statement (EIS) and management plan described in this rule and the record of decision (ROD) are available at

https://sanctuaries.noaa.gov/papahanaumokuakea/.

FOR FURTHER INFORMATION CONTACT:

Eric Roberts, Papahānaumokuākea Marine National Monument Superintendent, at

Eric.Roberts@noaa.gov

or 808-294-7470.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Background

The NMSA (16 U.S.C. 1431

et seq.

) authorizes the Secretary of Commerce to designate and protect as national marine sanctuaries areas of the marine environment that are of special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archaeological, educational, or esthetic qualities. Day-to-day management of national marine sanctuaries has been delegated by the Secretary of Commerce to NOAA. The primary objective of the NMSA is to protect the resources of the National Marine Sanctuary System. NOAA is designating marine portions of the 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 (DOC), the Department of the Interior (DOI), the State of Hawai'i, and the Office of Hawaiian Affairs (OHA).

The 2000 Amendments to the NMSA authorized designation of a Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (Reserve) to be managed by the Secretary of Commerce. In December 2000, President Clinton issued Executive Order 13178 that began the public process to establish the Reserve, and directed the Secretary of Commerce to initiate the process to designate the Reserve as a national marine sanctuary. In January 2001, President Clinton issued Executive Order 13196 finalizing the establishment of the Reserve.

In 2006, President Bush established PMNM through Proclamation 8031 to protect and preserve the marine area of the Northwestern Hawaiian Islands and certain lands as necessary for the care and management of the historic and scientific objects therein. The Federal land and interests in land reserved included approximately 139,793 square miles of emergent and submerged lands and waters of the Northwestern Hawaiian Islands. NOAA and the United States Fish and Wildlife Service (USFWS) promulgated implementing regulations at 50 CFR part 404 for PMNM.

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

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

The sanctuary is a place of unique environmental resources that provide large-scale ecosystem services for both

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

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

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

B. Purpose and Need for Action

The NMSA (16 U.S.C. 1431

et seq.

) authorizes the Secretary of Commerce to designate national marine sanctuaries to meet the purposes and policies of the NMSA, including:

• 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;

• 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;

• 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)); and

• “to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities” (16 U.S.C. 1431(b)(6)).

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

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

• 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 Papahānaumokuākea ecosystems, wildlife, and cultural and maritime heritage resources;

• Authorize NOAA to exercise enforcement authorities, including the assessment of civil penalties for violations of provisions of the NMSA and regulations and permits issued pursuant to the NMSA (16 U.S.C. 1437);

• impose liability for destruction, loss of, or injury to sanctuary resources and provide natural resource damage assessment authorities for destruction, loss of, or injury to any sanctuary resource; and

• require interagency consultation for any Federal agency action that is likely to destroy, cause the loss of, or injure any sanctuary resource.

C. Designation Process

1. Notice of Intent To Designate a National Marine Sanctuary

On November 19, 2021, NOAA initiated the process to designate marine portions of the Monument as a national marine sanctuary by publishing a Notice of Intent to Conduct Scoping and to Prepare an Environmental Impact Statement for the Proposed Designation of a National Marine Sanctuary within Papahānaumokuākea Marine National Monument (86 FR 64904). The notice of intent stated that NOAA would prepare a draft EIS per the requirements of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321

et seq.

) and the NMSA. The notice of intent also announced NOAA's intent to fulfill its responsibilities under the National Historic Preservation Act (NHPA; 54 U.S.C. 300101

et seq.

). The State of Hawai'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 final EIS as Appendix F.

2. Public Comment on Draft Designation Materials

On March 1, 2024, NOAA published a notice of proposed rulemaking and a notice of availability of the draft EIS (89 FR 15272) to release a proposed rule, draft EIS, and draft sanctuary management plan; and to request public comments on the proposed sanctuary designation documents. On March 8, 2024, the State of Hawai'i also informed the public about the availability of the draft EIS through an announcement in

its bulletin, The Environmental Notice, per the Hawai'i Environmental Policy Act (HEPA), Hawai'i Revised Statutes (HRS) Chapter 343-3(c). The USFWS, the State of Hawai'i, and the Department of the Navy served as cooperating agencies in reviewing and assisting with the development of the draft EIS.

The public comment period took place over the course of 68 days from March 1 to May 7, 2024. Public meetings were held to provide additional information and to receive public input in the form of oral and written comments. Comments were accepted in both English and 'ōlelo Hawai'i during 11 public meetings, held between April 6-18, 2024, including two virtual and nine in-person public meetings on O'ahu, Kaua'i, Hawai'i Island, Maui, and Moloka'i. Comments were also accepted through the Federal eRulemaking portal and by traditional mail through May 7, 2024, both in English and 'ōlelo Hawai'i. An estimated 237 people attended the 11 public meetings and 61 individuals provided oral comments. During the public comment period, 488 written comments and 13,385 form letters were received from individuals, organizations, and agencies. A total of 13,934 comments were received, with the overwhelming majority in support of sanctuary designation.

Major themes of comments included sanctuary access, permitting, prohibitions, enforcement, Native Hawaiian indigenous rights and cultural integration, fishing, co-management, resource protection, education and outreach, partnerships, and community participation. After the public comment period closed, the comments were carefully reviewed and cataloged by substantive issues contained in the comments. In preparing the final EIS, final sanctuary management plan, and final rule, NOAA and the State of Hawai'i considered comments received on the draft designation documents, identified substantive comments, and provided responses to these comments. A summary of these comments and the corresponding responses from NOAA are provided in the final EIS Appendix K and in Section V of this rulemaking. In response to these substantive comments, NOAA clarified information and made changes to this final rule, the final EIS, and the final sanctuary management plan, as described further below.

3. Development of Terms of Designation and Regulations

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

The purpose and need for the sanctuary provide the overarching basis for developing the regulations. The designation of the sanctuary will not replace the area's current status as a marine national monument. Existing authorities, including management authorities of all Monument co-trustees, will remain in effect. Sanctuary designation will supplement the existing provisions for management of the Monument and protect resources in the Northwestern Hawaiian Islands. To develop these regulations, NOAA reviewed the following, which currently guide Monument management:

• 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 Papahānaumokuākea Marine National Monument,” February 29, 2007;

• Regulations implementing Presidential Proclamations 8031 and 8112 at 50 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 rule for the sanctuary. Sanctuary designation will only add to, and will not diminish, Monument management measures and protections. NOAA has adopted the management measures from these benchmarks, and, in a few areas, added onto those measures to achieve consistency in regulation and management across the sanctuary. The final rule unifies management of the area by removing discrepancies and gaps in prohibitions, regulated activities, and permit criteria, providing clarity and comprehensive protection for the sanctuary.

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

Following publication of the proposed rule, in consideration of public comments and further review, NOAA made minor changes to the terms of designation and the regulations which are described in detail in Section III of this final rule. NOAA provides a detailed discussion of the final regulations in Section IV, subsection A through O, of this rule. The text of the final regulations is presented at the end of this rule.

4. Development of Final Management Plan

A final sanctuary management plan has been prepared in accordance with NMSA section 304(a)(2)(C). Management plans are site-specific documents that ONMS uses to manage individual sanctuaries. The final sanctuary management plan: (1) articulates the sanctuary's vision, mission, goals, and objectives; (2) describes the management activities and initiatives that NOAA will conduct; and (3) provides strategies and assessment measures to guide the sanctuary's short- and mid-range management. In response to public comments, NOAA made minor changes to the final sanctuary management plan, which is included as Appendix A to the final EIS.

5. Final Environmental Impact Statement

In accordance with NEPA (42 U.S.C. 4321

et seq.

), the NMSA, and HEPA (HRS Chapter 343, HAR Chapter 11-200.1), NOAA and the State of Hawai'i released a final EIS for the national marine sanctuary designation in advance of the publication of this final rule. NOAA is the lead Federal agency in the preparation of the final EIS. The USFWS, State of Hawai'i, the Department of the Navy, and OHA were cooperating agencies for the final EIS. The final EIS describes the purpose and need for the proposed action of

designating a national marine sanctuary, identifies a range of alternatives including the preferred alternative, provides an assessment of resources and uses in the area, and evaluates the potential environmental consequences of the designation including by comparing the beneficial and adverse impacts among alternatives. NOAA has provided a section in the final EIS (see Section 1.5) to outline the substantive changes made between the draft EIS and final EIS.

The final EIS analyzes four alternatives; including a “no action” alternative, in which the area would not be designated as a national marine sanctuary; and three boundary alternatives:

• Alternative 1 is coextensive with the marine portions of the Monument. The boundary includes the marine environment surrounding the Northwestern Hawaiian Islands from the shoreline of the islands and atolls seaward to 200 nautical miles, including all State waters and waters of the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, Midway Atoll and Hawaiian Islands National Wildlife Refuges, the Battle of Midway National Memorial, and State of Hawai'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 Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, Midway Atoll and Hawaiian Islands National Wildlife Refuges, the Battle of Midway National Memorial, and State of Hawai'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, but excludes waters within the Midway Atoll and Hawaiian Islands National Wildlife Refuges and the Battle of Midway National Memorial. These excluded waters include portions of the State of Hawai'i Northwestern Hawaiian Islands Marine Refuge and the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve that overlap with national wildlife refuge waters. The area encompassed in Alternative 3 is approximately 581,263 square miles (438,923 square nautical miles).

5. Final Preferred Alternative

In accordance with NEPA (42 U.S.C. 4321

et seq.

) and based on public comments on the draft designation materials and further review, NOAA has maintained Alternative 1 as the agency-preferred alternative (preferred alternative) based on its comparative merits; this alternative serves as the foundation of this final rule (Section 3.4 of the final EIS presents a map and details of this alternative). NOAA selected its final preferred alternative after considering input from the Monument Management Board, the State of Hawai'i, cooperating agencies, other agencies consulted, and public comments provided on the draft designation documents. Through the analysis in the final EIS, NOAA has determined that the final preferred alternative would provide numerous beneficial impacts, including increased protection and conservation of resources, and improved coordination of conservation and management. NOAA has also considered the potential adverse impacts of the final preferred alternative and anticipates that there would be no significant adverse impacts to biological and physical resources, cultural and historic resources, or socioeconomic resources.

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

II. Terms of Designation for Papahānaumokuākea National Marine Sanctuary

Section 304(a)(4) of NMSA as amended, 16 U.S.C. 1434(a)(4), requires that the terms of designation be described at the time a new sanctuary is designated, including the geographic area to be included within the sanctuary, the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value, and the types of activities that will be subject to regulation to protect those characteristics.

The following represents the terms of designation:

Preamble

Under the authority of the National Marine Sanctuaries Act, as amended (the “Act” or “NMSA”), 16 U.S.C. 1431

et seq.,

approximately 582,570 square mi (439,910 square nmi) of the waters of the Pacific Ocean surrounding the Northwestern Hawaiian Islands are hereby designated as a national marine sanctuary for the purpose of providing long-term protection and management of the ecological, cultural, and historical resources and the conservation, recreational, scientific, educational, and esthetic qualities of the area.

Article I: Effect of Designation

The NMSA authorizes the issuance of such regulations as are necessary and reasonable to implement the designation, including managing and protecting the ecological, cultural, and historical resources and the conservation, recreational, scientific, educational, and esthetic qualities of 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 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 Marine Mammal Protection Act, with some listed as endangered under the Endangered Species Act. At least a quarter of the nearly 7,000 known marine species in the region are found nowhere else on Earth.

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

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 the people of Hawai'i and the Native Hawaiian culture, and contains a host of intact and significant archaeological sites found on the islands of Nihoa and Mokumanamana, both of which are on the National Register of Historic Places and Hawai'i Register of Historic Places. Papahānaumokuākea is as much a spiritual space as it is a physical geographical area, rooted deep in Native Hawaiian creation and settlement stories.

Article IV: Scope of Regulations

Section 1. Activities Subject to Regulation

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

1. Access to the sanctuary;

2. Ship reporting, ship routeing, and other shipping activities;

3. Vessel monitoring;

4. Vessel discharge;

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

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

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

8. Deserting a vessel;

9. Commercial fishing;

10. Non-commercial fishing;

11. Possessing fishing gear;

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

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

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

15. Attracting any living sanctuary resource;

16. Touching coral, living or dead;

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

18. Discharging or depositing any material or other matter, or discharging or depositing any material or other matter outside of the sanctuary that subsequently enters the sanctuary;

19. Anchoring a vessel;

20. Native Hawaiian practices;

21. Research and scientific exploration;

22. Scientific research and development by Federal agencies;

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

24. Recreational activities; and

25. Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the NMSA or any regulation or permit issued under the NMSA.

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

Section 2. Emergencies

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

Article V: Alteration of This Designation

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

III. Changes from Proposed to Final Regulations

Based on public comments received between March 1 and May 7, 2024, internal deliberations, consultations, engagement with cooperating agencies, and meetings with constituents, NOAA has made the following changes to the proposed rule and corresponding changes to the final EIS and sanctuary management plan.

A. Definitions

NOAA added the term “categories of hazardous cargoes” to 15 CFR 922.24, the site-specific definitions. “Categories of hazardous cargoes” is defined in PMNM regulations, 50 CFR 404.3, and is added to the final regulations for consistency with existing regulations for ship reporting. Defining “categories of hazardous cargoes” provides clarity to the public on what information must be reported when conducting passage without interruption to comply with the

ship reporting requirements, as specified in the sanctuary regulations at 15 CFR 922.243.

NOAA has made a minor revision to the term “recreational activity,” by striking “within the Midway Atoll Special Management Area” from the definition, making it consistent with the definition provided in Presidential Proclamation 8031 establishing the Monument.

B. Cooperative Management

In response to public comments, NOAA has clarified how the sanctuary will be managed in partnership with other Federal and State agencies. In the proposed rule, NOAA proposed that the sanctuary would be co-managed with the State of Hawai'i. In the proposed regulations, NOAA identified the role that states may have in co-managing a sanctuary pursuant to the National Marine Sanctuaries Act, if all or part of the proposed sanctuary is within the territorial limits of any state. Recognition of the State of Hawai'i as a sanctuary co-manager was not meant to exclude the other Monument co-trustees, DOI and OHA. To the contrary, partnerships with other Federal and State agencies with overlapping jurisdiction are critical to the success of the National Marine Sanctuary System and the protection of marine areas of special national significance.

In the final regulations, NOAA has renamed 15 CFR 922.242 “Cooperative Management” and added new text regarding how NOAA will manage the sanctuary in partnership with USFWS and OHA in addition to the State of Hawai'i. In doing so, NOAA reaffirms that the existing co-management structure of the Monument is critical to the success of the sanctuary. NOAA will work in cooperation with Monument co-trustees to update the Memorandum of Agreement for Promoting Coordinated Management of Papahānaumokuākea Marine National Monument with the State of Hawai'i, DOI, and OHA that reflects the addition of the sanctuary, and specifically addresses how the addition of a sanctuary will supplement and complement, and not supplant, the existing Monument management framework.

In the final regulations, NOAA recognizes USFWS's management authority over Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge. NOAA also clarifies that nothing in the regulations or establishment of the national marine sanctuary shall diminish USFWS's authority to administer Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge under the National Wildlife Refuge System Administration Act, as amended, and other USFWS authorities. Where Papahānaumokuākea National Marine Sanctuary overlays Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge, NOAA will implement the NMSA to provide supplemental authority to protect resources. NOAA and USFWS are developing an agreement to provide details on the execution of sanctuary management where the national marine sanctuary overlaps with Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge.

C. Access

In the proposed regulations, NOAA stated that a vessel may pass without interruption through the sanctuary without requiring a permit as long as the vessel does not stop, anchor, or engage in any prohibited activities. In the final regulations, NOAA has made a minor revision to 15 CFR 922.243(a)(5)(b), removing the word “anchor” from this statement. The removal of “anchor” is a technical revision because anchoring a vessel is already listed as a prohibited or otherwise regulated activity. In 15 CFR 922.243(c)(7), NOAA has added clarification on the events that would trigger “further reports,” including “pollution incidents and goods lost overboard.” This addition will help address potential threats and impacts to sanctuary resources in a timely manner from vessels transiting within the reporting area.

In the proposed regulations, NOAA stated that access is prohibited except under certain circumstances. NOAA has clarified that the prohibition on access does not restrict scientific exploration or research activities by or for the Secretary of Commerce or the Secretary of the Interior when the activity occurs within the Outer Sanctuary Zone, consistent with the exception provided in 15 CFR 922.244(f).

Finally, in 15 CFR 922.243(c), NOAA has also made technical revisions, removing the list of vessels for which the ship reporting requirements do not apply. This information is redundant of the exceptions provided in 15 CFR 922.243(a)(1) through (a)(4).

D. Prohibited or Otherwise Regulated Activities

NOAA has added a prohibition on failing to comply with vessel monitoring systems requirements in violation of 15 CFR 922.246; and a prohibition on failing to comply with ship reporting requirements in violation of 15 CFR 922.243. NOAA made these technical revisions to clarify for the public the full scope of activities listed that are prohibited or otherwise regulated within the sanctuary.

NOAA has also made technical revisions and clarifications to the prohibition on discharging or depositing any material or other matter into the sanctuary, or discharging or depositing any material or other matter outside of the sanctuary that subsequently enters the sanctuary and injures or has the potential to injure any resources of the sanctuary. Specifically, NOAA has clarified the list of exceptions to this prohibition for consistency with Presidential Proclamation 8031, the implementing regulations at 50 CFR part 404, and other applicable law such as the Clean Water Act. For example, consistent with existing law in the Monument, NOAA has clarified that this prohibition does not apply to fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activities, provided that such discharge or deposit is during the conduct of lawful fishing activities within the Sanctuary. In addition, NOAA has clarified that the exceptions for “discharge incidental to vessel operations,” and the discharges within Special Preservation Areas or the Midway Atoll Special Management Area may only be conducted in accordance with other applicable law, such as the Clean Water Act and its implementing regulations.

In the proposed rule, NOAA provided exceptions to vessel discharge when conducting passage without interruption under 15 CFR 922.243, but did not clarify that this exception also applies to the discharge prohibition under 15 CFR 922.244. NOAA has made these revisions in 15 CFR 922.244 to provide clarity to resource managers and the public, and consistency with existing Monument management. NOAA has made corresponding changes to the regulations at 15 CFR 922.243, removing the list of vessel discharge exceptions from this section. This revision is not substantive.

E. Exemption for Non-Commercial Fishing

In the proposed rule, NOAA proposed that eight prohibited or otherwise regulated activities in 15 CFR 922.244 would not apply to non-commercial fishing activities in the Outer Sanctuary Zone authorized by regulations promulgated pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), provided that no sale of harvested fish occurs. In response to comments of concern for this exemption, NOAA has made changes to ensure that a non-

commercial fishing permit authorized pursuant to the MSA is only exempt from a limited subset of prohibited or otherwise regulated activities in the Outer Sanctuary Zone, which may only be conducted as incidental to and necessary to conduct lawful non-commercial fishing activity.

First, NOAA has removed the exemption for “touching coral, living or dead,” as this activity is not expected to occur as incidental to a lawful non-commercial fishing activity.

Second, NOAA has removed the exemption for “discharging or depositing any material or other matter into the sanctuary, or discharging or depositing any material or other matter outside of the sanctuary that subsequently enters the sanctuary and injures or has the potential to injure any resources of the sanctuary, with exceptions.” NOAA has determined that non-commercial fishing activities authorized under the MSA do not require a broad exemption for discharge, and should be held to similar standards as other vessels. As described above, NOAA has also clarified the types of discharge that would not be regulated, including “fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary.” This exception is consistent with Presidential Proclamation 8031, and the existing regulations for PMNM at 50 CFR 404.7.

Third, NOAA has removed the exemption for anchoring a vessel. NOAA has concluded that this activity should not occur as incidental to a lawful non-commercial fishing activity in the Outer Sanctuary Zone. Anchoring a vessel in the Outer Sanctuary Zone would not be practical given the average ocean depths within this area of the sanctuary.

NOAA has also clarified that this exemption from the sanctuary's permitting requirements is only applicable provided that the fish harvested, either in whole or in part, are neither intended to enter commerce nor enter commerce through sale, barter, or trade, and that the resource is managed sustainably, consistent with Presidential Proclamation 9478. Moreover, consistent with the outcome of the NMSA Section 304(a)(5) process, for the exemption to apply, the fish harvested, either in whole or in part, are not intended to be sold and shall not be sold for any purposes, including, but not limited to, cost-recovery. Finally, NOAA has clarified that the activities under paragraph (a)(9) through (12), and (a)(14) may only be conducted as incidental and necessary to conduct lawful non-commercial fishing activities.

F. Permit Procedures and Criteria

In the proposed regulations, NOAA proposed two new general permit categories specific to the sanctuary: (i) Native Hawaiian Practices; and (ii) Recreation. In the final regulations, NOAA maintains these two general permit categories in 15 CFR 922.30. For ease of reference, NOAA has moved the additional permit issuance criteria and requirements to the site-specific regulations for the proposed sanctuary at 15 CFR 922.245. This revision is not substantive. NOAA has also made a revision to the additional permit issuance criteria for Recreation permits. NOAA has amended the permitting criteria at 15 CFR 922.245 to clarify that a “recreational activity” may only be permitted within the Midway Atoll Special Management Area, consistent with existing regulations for the Monument.

Finally, as described below, NOAA moved the Vessel Monitoring System (VMS) requirements from 15 CFR 922.245 to a standalone section at 15 CFR 922.246. NOAA retained, with minor edits, the requirement to outfit a vessel with a NOAA Office of Law Enforcement (OLE) type-approved VMS unit, as a condition of a permit. This is consistent with the regulations implementing Presidential Proclamation 8031 at 50 CFR part 404, and specifically, the permitting findings that must be made under 50 CFR 404.11(d).

G. Vessel Monitoring System

In the proposed rule, NOAA proposed, as a part of the permit procedures and criteria under 15 CFR 922.245, that an owner or operator of a vessel that has been issued a sanctuary general permit or special use permit must ensure that such vessel has a NOAA OLE type-approved VMS on board when operating within the sanctuary. In the final regulations, NOAA has moved the VMS requirements to a standalone section at 15 CFR 922.246 for consistency with the regulations implementing Presidential Proclamation 8031 at 50 CFR part 404. NOAA also made non-substantive technical changes to the VMS requirements to more closely align with the Monument's implementing regulations, specifically 50 CFR 404.5.

H. Sunken Military Craft

NOAA has added new text regarding the Sunken Military Craft Act acknowledging that sunken military craft in the sanctuary will continue to be administered by the respective Secretary concerned pursuant to the Sunken Military Craft Act. NOAA will enter into a Memorandum of Agreement with the appropriate agencies regarding collaboration on implementing the Sunken Military Craft Act.

I. Emergency Regulations

NOAA has added information to Section IV of this final rule describing emergency regulations. This is a technical clarification of a regulatory provision that applies to all national marine sanctuaries, pursuant to the National Marine Sanctuary Program Regulations at 15 CFR 922 subpart A—Regulations of General Applicability. Adding this to the final rule provides clarity to the public on a supplemental authority that is provided through sanctuary designation.

J. Technical Edits

In addition to the changes discussed above, NOAA has made technical edits throughout this final rule. Many of these technical edits are necessary to conform with revisions to 15 CFR part 922 that became effective on October 16, 2024. These technical edits are not substantive. NOAA has also made two minor changes to the terms of designation that were included in the proposed rule. First, NOAA has added more detail to one sentence describing the special characteristics of the area. Second, NOAA has added “ship reporting, ship routeing, and other shipping activities” to the list of activities subject to regulation in Article IV of the terms of designation to reflect the full scope of activities that may be regulated. In the draft terms of designation, NOAA only included “ship reporting.”

IV. Summary of Final Regulations

A. Adding New Subpart W

NOAA is amending 15 CFR part 922 by adding a new subpart (subpart W) that contains site-specific regulations for the sanctuary. This subpart will include the boundary, contain definitions of common terms used in the new subpart, identify prohibited activities and exceptions, and establish procedures for permitting otherwise prohibited activities. The regulations will be applied in accordance with generally recognized principles of international law and in accordance with treaties, conventions, and other agreements to which the United States is a party, consistent with sections 305(a) and 307(k) of the NMSA and the NMSA's Regulations of General Applicability at 15 CFR 922.1(b). No regulation shall

apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States unless in accordance with generally recognized principles of international law, or applicable treaties, conventions, and other agreements.

B. Sanctuary Boundary

NOAA's designation of Papahānaumokuākea National Marine Sanctuary consists of the marine environment surrounding the Northwestern Hawaiian Islands from the shoreline of the islands and atolls seaward to 200 nautical miles, including all waters of the Monument. NOAA estimates the area encompassed in the designation is approximately 582,570 square miles (439,910 square nautical miles).

C. Definitions

This rule incorporates and adopts common terms defined in the national regulations at 15 CFR 922.11. In addition, NOAA is including 20 site-specific definitions. To the extent that a term appears at 15 CFR 922.11 and the definitions section of the final rule, the definition in the final rule would govern.

• 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 International Maritime Organization (IMO) Resolution A.982(24), December 1, 2005.

• “Areas to be avoided (ATBA)”, “Categories of hazardous cargoes” and “Office of Law Enforcement” are adopted from Papahānaumokuākea Marine National Monument regulations, 50 CFR 404.3.

• “Outer Sanctuary Zone” refers to the area of the sanctuary that would extend from approximately 50 nautical miles from all the islands and emergent lands of the Northwestern Hawaiian Islands to the extent of the seaward limit of the United States Exclusive Economic Zone west of 163° West Longitude. This area of the sanctuary would correspond with the area designated as a marine national monument by Presidential Proclamation 9478, referred to as the “Papahānaumokuākea Marine National Monument Expansion” or MEA. NOAA provides this definition to provide clarity to the public where there is a regulation that only applies to this area of the sanctuary, and not the entire sanctuary. Note that the MEA and the Outer Sanctuary Zone are coextensive. In this final rule, when describing the sanctuary regulations, the term “Outer Sanctuary Zone” is used, and when describing the directives of Presidential Proclamation 9478, the term “MEA” is used.

• “Reporting Area” refers to the area of the sanctuary that extends outward ten nautical miles from the PSSA boundary, as designated by the IMO, and excludes the ATBAs that fall within the PSSA boundary. The reporting area is defined by the coordinates set forth in Appendix E to the final rule. NOAA defines the “reporting area” to clarify which areas of the sanctuary apply to ship reporting requirements.

• “Scientific instrument” is a term used in Presidential Proclamation 9478, but the term was not defined. Specifically, Presidential Proclamation 9478 prohibits “drilling into, dredging, or otherwise altering the submerged lands, or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands, except for scientific instruments”. NOAA defines “scientific instrument” to clarify what activities may be conducted pursuant to a permit. NOAA defines “scientific instrument” to mean “a device, vehicle, or tool used for scientific purposes and is inclusive of structures, materials, or other matter incidental to proper use of such device, vehicle, or tool.” In defining “scientific instrument,” NOAA's definition provides for the inclusion of “structures, materials, or other matter incidental to proper use of such device, vehicle, or tool” because, based on the type of activities previously permitted in the Monument, proper deployment and use of most scientific instruments requires more than the instrument itself. For example, there may be incidental ballast discharge associated with the use of a scientific instrument like a remotely operated vehicle, or ROV. A narrower definition of “scientific instrument” could unduly restrict NOAA's ability to permit activities in the area of the sanctuary that overlaps with the MEA. NOAA believes a narrower definition would be inconsistent with the intent of Presidential Proclamation 9478, which states “Undisturbed seamount communities in the adjacent area are of significant scientific interest because they provide opportunities to examine the impacts of physical, biological, and geological processes on ecosystem diversity, including understanding the impacts of climate change on these deep-sea communities. These seamounts and ridges also provide the opportunity for identification and discovery of many species not yet known to humans, with possible implications for research, medicine, and other important uses. Recent scientific research, utilizing new technology, has shown that many species identified as objects in Proclamation 8031 inhabit previously unknown geographical ranges that span beyond the existing Monument, and in some cases the adjacent area also provides important foraging habitat for these species.” These statements clearly demonstrate the significant scientific value of the MEA and underscore the opportunities for research and discovery to occur in the sanctuary.

D. Cooperative Management of the Sanctuary

Pursuant to the NMSA, states may choose to have a role in co-managing a sanctuary if all or part of the sanctuary is within the territorial limits of any state. As the sanctuary includes state waters, NOAA will co-manage the sanctuary with the State of Hawai'i. NOAA establishes the framework for co-management in section 922.242 of the final regulations NOAA and the State of Hawai'i may update existing agreements or develop additional agreements as necessary to provide details on the execution of sanctuary management, such as activities, programs, and permitting that can be updated to adapt to changing conditions or threats to the sanctuary resources.

NOAA and the State of Hawai'i will manage the sanctuary in partnership with the USFWS and OHA consistent with the management of the Monument. The existing co-management structure of the Monument will be critical to the success of the sanctuary. NOAA will work in cooperation with the Monument co-trustees to update the Memorandum of Agreement for Promoting Coordinated Management of Papahānaumokuākea Marine National Monument with the State of Hawai'i, DOI, and OHA that reflects the addition of the sanctuary, and specifically addresses how the addition of a sanctuary will supplement and complement, and not supplant, existing Monument management. This is

consistent with the existing Memorandum of Agreement, which includes a provision that states that “in the event of the designation of the Monument or any portion of the Monument as a National Marine Sanctuary under the National Marine Sanctuaries Act, nothing herein shall be construed as automatically terminating or otherwise amending this Agreement.” NOAA may enter into additional Memorandums of Agreement with the Monument co-trustees regarding this collaboration that may address, but not be limited to, sanctuary resource protection, educational programs, permitting, enforcement, research activities, development, and threats to resources. Any future proposed changes to sanctuary regulations or boundaries would be coordinated with the State and other Monument co-trustees and subject to public review as mandated by the NMSA and other Federal statutes.

The Secretary of the Interior, through the USFWS, has sole responsibility for management of the areas of the Monument that overlay the Midway Atoll National Wildlife Refuge, the Battle of Midway National Memorial, and the Hawaiian Islands National Wildlife Refuge, and exercises that responsibility in consultation with the Secretary of Commerce. Nothing in these regulations or establishment of the national marine sanctuary shall diminish USFWS's authority to administer Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge under the National Wildlife Refuge System Administration Act as amended, and other USFWS authorities. Where Papahānaumokuākea National Marine Sanctuary overlays Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge, NOAA will implement the NMSA to provide supplemental authority to protect resources.

NOAA, in exercising its management authority under National Marine Sanctuaries Act Section 304(d), recognizes USFWS' management authority over Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge under the National Wildlife Refuge System Administration Act.

The Director of the USFWS has agreed that Papahānaumokuākea National Marine Sanctuary will provide supplemental authorities where the sanctuary overlays the Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge. NOAA and USFWS are developing an agreement to memorialize this decision, and to provide details on the execution of sanctuary management where the national marine sanctuary overlaps with Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge, consistent with the spirit of cooperative management of the area and recognizing USFWS has sole authority in Midway Atoll National Wildlife Refuge and Hawaiian Islands National Wildlife Refuge pursuant to the National Wildlife Refuge System Administration Act.

Implementation of NOAA and USFWS authorities shall not enlarge or diminish the jurisdiction of the State of Hawai'i, including the State's responsibilities and requirements to manage Kure Atoll Wildlife Sanctuary and the State of Hawai'i Northwestern Hawaiian Islands Marine Refuge.

E. Access

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

Access to the sanctuary is prohibited and thus unlawful except under the following circumstances: (1) for emergency response actions, law enforcement activities, and activities and exercises of the Armed Forces; (2) pursuant to a sanctuary permit; (3) when conducting non-commercial fishing activities in the Outer Sanctuary Zone authorized under the MSA in accordance with 15 CFR 922.244 (d); (4) when conducting scientific exploration or research activities by or for the Secretary of Commerce or the Secretary of the Interior when the activity occurs within the Outer Sanctuary Zone); and (5) when passing through the sanctuary without interruption.

A vessel may pass without interruption through the sanctuary without requiring a permit as long as the vessel does not stop or engage in prohibited activities within the sanctuary. A vessel passing through the sanctuary without interruption may be subject to the ship reporting system, as described below.

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

F. Ship Reporting

The final rule includes regulations to implement the ship reporting system (CORAL SHIPREP) adopted by the IMO, which require entrance and exit notifications for vessels that pass without interruption through the sanctuary areas contained within a reporting area. Requiring vessels to notify NOAA immediately upon entering the reporting area will help make the vessel operators aware that they are traveling through a fragile area with potential navigational hazards, such as the extensive coral reefs found in many shallow areas of the sanctuary contained within the reporting area.

The ship reporting requirements apply to vessels that pass through the sanctuary without interruption. Conversely, the ship reporting requirements do not apply to vessels covered by an exemption at 15 CFR 922.243(a)(1) through (a)(4), or to sovereign immune vessels, which are specifically exempted from the reporting requirement in the ship reporting system adopted by the IMO. Furthermore, the ship reporting requirements will be applied in accordance with generally recognized principles of international law and in accordance with treaties, conventions, and other agreements to which the United States is a party, consistent with sections 305(a) and 307(k) of the NMSA and the NMSA's Regulations of General Applicability at 15 CFR 922.1(b). No regulation shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States unless in accordance with generally recognized principles of international law, or applicable treaties, conventions, and other agreements.

NOAA defines the reporting area as “the area of the sanctuary that extends outward ten nautical miles from the PSSA [Particularly Sensitive Sea Area] boundary, as designated by the IMO, and excludes the ATBAs [Areas to be avoided] that fall within the PSSA boundary.” The reporting area is further defined by the coordinates set forth in Appendix E to the final rule. Appendix E includes a coordinates table for the

“Reporting Area Outer Boundary,” which contains the reporting area's boundary surrounding the PSSA. Appendix E also includes coordinate tables for the “Inner Reporting Area Boundary” for each of the four ATBAs that fall within the PSSA, but which are not part of the reporting area.

The reporting area for the sanctuary will not include the four voluntary ATBAs adopted by the IMO that are also within the PSSA. An ATBA is an area within which either navigation is particularly hazardous or it is exceptionally important to avoid casualties. While ATBAs can be mandatory (

i.e.,

vessels are required by applicable law to avoid and operate outside of the area) most are voluntary and vessels may travel through them. Because the four ATBAs in the PSSA are voluntary, as adopted by the IMO and implemented by these regulations, the ATBAs are outside of the reporting area. Nonetheless, by virtue of entering or exiting an ATBA, vessels would also be departing or entering the reporting area, and, therefore be subject to the reporting area's requirements four times: (1) once when it enters the reporting area; (2) once when it leaves the reporting area to enter the ATBA; (3) once when it exits the ATBA and enters the reporting area on the other side of the ATBA; and (4) once when it again leaves the reporting area. The potential burden of reporting four times is justified by the navigational hazards that exist within the ATBAs. The reporting area also includes three large areas within the PSSA that are not within the ATBAs. These breaks between the four ATBAs allow for north-south passages through the sanctuary areas contained within the reporting area that can be utilized for navigation to avoid ATBAs. Vessels passing through the sanctuary in these areas would only send email notification twice: once upon entering the reporting area, and again upon leaving the reporting area.

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

Following Executive Order 13178 and Presidential Proclamation 8031, in April 2007 the United States proposed to the IMO that PMNM be designated as a PSSA to protect the attributes of the fragile and integrated coral reef ecosystem from potential hazards associated with international shipping activities. The U.S. noted in its proposal that the proposed PSSA and its associated protective measures would result in a minimal burden to international shipping, would significantly further increase maritime safety, would protect of the fragile environment, would preserve cultural resources and areas of cultural importance significant to Native Hawaiians, and would facilitate responses to developing maritime emergencies. On April 3, 2008, the IMO designated the PMNM as a PSSA. As part of the PSSA designation process, the IMO adopted U.S. proposals for associated protective measures. These measures included expanding and consolidating the six existing recommendatory ATBAs in the PMNM into four larger areas and enlarging the class of vessels to which they apply. In addition, the IMO adopted a ship reporting system for vessels transiting the PMNM, which is mandatory for ships 300 gross tons or greater that are entering or departing a U.S. port or place and recommended for other ships. The system requires that ships notify the U.S. shore-based authority (

i.e.,

the U.S. Coast Guard; NOAA will be receiving all messages associated with this program on behalf of the Coast Guard) at the time they begin transiting the reporting area and again when they exit. In December 2008, NOAA and the USFWS published final regulations to establish a ship reporting system for PMNM, which implemented measures adopted by the IMO requiring notification by ships passing through PMNM without interruption (73 FR 73592). These regulations modified the previous notification requirements at 50 CFR 404.4.

NOAA will implement the ship reporting system as adopted by the IMO and establish the reporting area using the boundary coordinates in Appendix E to this final rule to provide additional protection to the natural, cultural, and historic resources in the sanctuary. Accordingly, NOAA's regulations build upon the requirements outlined in Presidential Proclamation 8031, and reflect additions made through the IMO's adoption of a ship reporting system and the implementation of that system in 50 CFR 404.4. NOAA provides minor language changes from the process adopted by IMO Resolution MEPC.171(57) and IMO Resolution MSC.279(85) to provide clarity to the public on which vessels are required to participate in ship reporting and the type of information that should be reported.

G. Activities That Are Prohibited or Otherwise Regulated

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

Within PMNM, the prohibitions in section 922.244 are already effectively in place under 50 CFR part 404, except for prohibitions 1 and 4 (detailed below). Minor changes are made to prohibitions 1 and 4 to remove discrepancies across the two zones (PMNM and MEA). Regulations implementing Presidential Proclamation 9478 have not been promulgated for the MEA. Many of the prohibitions adopted in the rule are identified in Presidential Proclamation 9478, which established the MEA. Any prohibitions for the area of the sanctuary that overlaps with the MEA that are not adopted directly from Presidential Proclamation 9478 are identified below.

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

Consistent with the presidential proclamations establishing the Monument, NOAA prohibits exploring for, developing, or producing oil, gas, or minerals to protect sanctuary resources and create a seamless management area

throughout the sanctuary. The addition of the prohibition on “any energy development activities” would be new for PMNM, and was added to further the underlying intent of the prohibition on oil, gas, and mineral development by accounting for technological advances in other forms of energy development.

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

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

This prohibition is consistent with prohibitions identified in the presidential proclamations establishing the Monument.

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

This prohibition is consistent with prohibitions identified in the presidential proclamations establishing the Monument.

4. Prohibition on Deserting a Vessel

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

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

This prohibition is consistent with prohibitions identified in the presidential proclamations establishing the Monument.

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

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

7. Prohibition on Failing To Comply With Vessel Monitoring Systems Requirements in Violation of § 922.246

This prohibition is consistent with requirements identified in Presidential Proclamation 8031. The VMS requirement for permittees operating within the areas of the sanctuary that overlap with the MEA would be a new requirement. Further discussion of the VMS requirements is included within Section IV. L. of this final rule.

8. Prohibition on Failing To Comply With Ship Reporting Requirements in Violation of § 922.243

This prohibition is consistent with the requirements of the ship reporting system (CORAL SHIPREP), as adopted by the IMO and implemented in PMNM under 50 CFR 404.4. Further discussion of the ship reporting system requirements is included within Section IV.F of this final rule.

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

The presidential proclamations establishing the Monument broadly restrict the harvest of fishery resources by prohibiting removing, moving, taking, harvesting, possessing, injuring, disturbing, or damaging any living or nonliving monument resource, as well as attempts to do the same, except as may be allowed with a permit. As noted above, Presidential Proclamations 8031 and 9478 further specify prohibitions on commercial fishing and the possession of commercial fishing gear. The presidential proclamations also identify certain types of non-commercial fishing that may be regulated (

i.e.,

allowed pursuant to a permit or incidental to a permitted activity). Presidential Proclamation 8031, for example, authorizes sustenance fishing incidental to an activity permitted in PMNM. Presidential Proclamation 9478, for example, provides that non-commercial fishing is a regulated activity (

i.e.,

allowed only with a permit) in the MEA. In the sanctuary, for consistency with the proclamations, NOAA will prohibit “non-commercial fishing” unless conducted pursuant to a sanctuary permit or, as discussed below, authorized under the MSA in the Outer Sanctuary Zone. The final rule adopts the definition of “non-commercial fishing” from the regulations for Fisheries in the Western Pacific, which is defined as “fishing that does not meet the definition of commercial fishing in the MSA, and includes, but is not limited to, sustenance, subsistence, traditional indigenous, and recreational fishing.” 50 CFR 665.12.

The final rule also provides that “possessing non-commercial fishing gear except when stowed and not available for immediate use” is prohibited unless conducted pursuant to a sanctuary permit or, as discussed below, authorized under the MSA in the Outer Sanctuary Zone. Presidential Proclamation 8031 includes “possessing fishing gear,” as a regulated activity (allowed only with a permit) in PMNM. Presidential Proclamation 9478 prohibits possessing commercial fishing gear. The final rule creates continuity between the two areas, and aims to prevent non-commercial gear from being utilized in an unauthorized manner that could lead to injury to sanctuary resources.

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

This activity is a regulated activity (

i.e.,

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

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

These activities are prohibited unless conducted pursuant to a sanctuary permit, consistent with the presidential proclamations establishing the Monument.

12. Prohibition on Attracting Any Living Sanctuary Resource

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

13. Prohibition on Touching Coral, Living or Dead

This activity is prohibited unless conducted pursuant to a sanctuary permit. This prohibition is consistent with a regulated activity (

i.e.,

allowed only with a permit) identified in Presidential Proclamation 8031 for PMNM. This prohibition would be new for the area of sanctuary that overlaps with the MEA. However, prohibition 10 (above) effectively includes this activity, as touching coral is considered a disturbance which may cause injury or damage. Therefore, regulating this activity in the Outer Sanctuary Zone is primarily a technical addition which provides clarity to the public and resource managers.

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

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

15. Prohibition on Discharging or Depositing Any Material or Other Matter Into the Sanctuary, or Discharging or Depositing Any Material or Other Matter Outside of the Sanctuary That Subsequently Enters the Sanctuary and Injures or Has the Potential To Injure Any Resources of the Sanctuary, With Exceptions

These activities are prohibited unless conducted pursuant to a sanctuary permit. This prohibition is consistent with regulated activities identified in Presidential Proclamation 8031 for PMNM. The sanctuary regulations provide an exception to this activity, for “discharge incidental to vessel operations such as approved marine sanitation device effluent, cooling water, and engine exhaust”. Within Special Preservation Areas or the Midway Atoll Special Management Area, discharge is limited to “vessel engine cooling water, weather deck runoff, and vessel engine exhaust”. The exceptions to this otherwise regulated activity must be conducted in accordance with other Federal statutes and regulations, such as section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1321

et seq.

In addition, and consistent with exceptions identified in Presidential Proclamation 8031 for PMNM, the sanctuary regulations provide an exception for “fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity, provided that such discharge or deposit is during the conduct of lawful fishing activity within the sanctuary”.

While this prohibition is technically new for the area of the sanctuary that overlaps with the MEA, Presidential Proclamation 9478 effectively includes this activity. Regulating this activity for the Outer Sanctuary Zone provides clarity to the public and resource managers. Further, the prohibition on discharges within or into the sanctuary is provided in recognition that various substances can be discharged from vessels or from infrastructure or individuals along the shoreline that can harm sanctuary resources or qualities. Establishing a cohesive regulatory framework across the sanctuary would benefit sanctuary resources and sanctuary users.

16. Prohibition on Anchoring a Vessel

This activity is prohibited unless conducted pursuant to a sanctuary permit. While this activity may be permitted via a sanctuary permit, anchoring on living or dead coral may never be permitted, as noted above under prohibition 5. NOAA is regulating anchoring a vessel for consistency with a regulated activity identified in Presidential Proclamation 8031 for PMNM and because there is the potential for sanctuary resources, other than corals, to be impacted by anchoring. This prohibition is new for the area of the sanctuary that overlaps with the MEA. NOAA is including this prohibition on anchoring a vessel throughout the sanctuary to provide clarity to the public, resource managers, and enforcement personnel that all users of the sanctuary are subject to the same prohibition on anchoring a vessel unless conducted pursuant to a sanctuary permit.

H. Exemptions for Emergencies

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

I. U.S. Armed Forces Exemption

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

All activities and exercises of the Armed Forces shall be carried out in a

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

J. Exemption for Non-Commercial Fishing

NOAA exempts non-commercial fishing authorized under the MSA in the Outer Sanctuary Zone from needing a sanctuary permit for certain regulated activities provided under paragraph (a)(9) through (12), and (a)(14) in the final rule, provided that certain requirements are satisfied. Those requirements are that the fish harvested, either in whole or in part: (1) are not intended to enter commerce and shall not enter commerce through sale, barter, or trade, and that the resource is managed sustainably; and (2) are not intended to be sold and shall not be sold for any purposes, including, but not limited to, cost-recovery.

In addition, the exempted activities under paragraph (a)(9) through (12), and (a)(14) must only be conducted as incidental to and necessary to conduct lawful non-commercial fishing activity. NOAA will prepare a separate proposed rule under the MSA, which shall serve as the primary mechanism for authorizing non-commercial fishing activities in the Outer Sanctuary Zone. NOAA will periodically evaluate the effect of non-commercial fishing activities on sanctuary resources. Such evaluations would take into consideration the best scientific information available and evaluate whether additional actions are necessary for the proper care and management of sanctuary resources, including fishery resources, consistent with goals and objectives of the sanctuary. This exemption only applies to the Outer Sanctuary Zone.

K. Sanctuary Permit Procedures and Criteria

1. Sanctuary General Permits

NOAA provides the authority to issue sanctuary general permits to allow certain activities that would otherwise violate prohibitions in paragraphs (a)(9) through (15). The sanctuary permitting system was developed to allow for integration with the Monument permitting system, to ensure a continued joint permitting system administered by Monument co-managers. NOAA may, in cooperation with the Monument co-trustees, modify the existing memorandum of agreement or develop a new memorandum of agreement to add further clarification on joint permitting.

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

• 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 adds two additional permit categories to 15 CFR 922.30 under which a sanctuary general permit could be issued in the sanctuary:

• Native Hawaiian Practices—activities that allow for Native Hawaiian practices within the sanctuary; and

• Recreation—recreational activities within the sanctuary, but limited to the Midway Atoll Special Management Area.

The Native Hawaiian Practices general permit category is consistent with the types of activities permitted for the PMNM. Presidential Proclamation 9478 provided Native Hawaiian practices as a regulated activity. For consistency in management across the proposed sanctuary, and to protect sanctuary resources while facilitating responsible user access, NOAA would apply this general permit category across the sanctuary.

The Recreation general permit category is consistent with the types of activities permitted for PMNM, specifically within the Midway Atoll Special Management Area. For consistency with existing Monument management, this general permit category would continue to be limited to recreational activities within the Midway Atoll Special Management Area.

The general regulations in 15 CFR part 922, subpart D relating to the permit application process, review procedures, amendments, and other permitting stipulations would apply. These national permitting regulations include a list of factors NOAA considers in deciding whether or not to issue the permit, such as whether the activity must be conducted within the sanctuary, and whether the activity will be compatible with the primary objective of protection of sanctuary resources and qualities. NOAA will be able to impose specific terms and conditions through a permit as appropriate. The general regulations' permitting review criteria is largely consistent with the permitting findings established by Presidential Proclamation 8031 for PMNM, and implemented through 50 CFR 404.11.

In addition to permit review procedures and evaluation criteria in 15 CFR 922.33, some additional permit review criteria apply in the sanctuary, including additional criteria specific to Native Hawaiian Practices permits and Recreation permits. NOAA is providing these additional permit criteria in 15 CFR 922.245 to be consistent with the permit criteria for PMNM.

2. Special Use Permits

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

identifying any category of activity subject to a special use permit.

NOAA is not adding any new SUP category as part of this designation. In evaluating applications for special use permits, NOAA will consider all applicable permitting requirements, including permitting procedures and criteria under the Monument's existing management framework. For example, certain activities may be subject to the requirements of special ocean use permits, as authorized by Presidential Proclamation 8031, and issued by Monument managers in the PMNM via 50 CFR 404.11. Special ocean use permit requirements were modeled after the NMSA's authority for SUPs, but also include a few additional requirements. For example, one of the requirements for special use permits outside Midway Atoll National Wildlife Refuge is that the activity does not involve the use of a commercial passenger vessel. For special use permits in Midway Atoll National Wildlife Refuge, an additional requirement is that the Director of the USFWS or their designee determines that the activity is compatible with the purposes for which the Midway Atoll National Wildlife Refuge was designated.

3. Sustenance Fishing

NOAA may authorize sustenance fishing outside of any Special Preservation Area as a term or condition of any sanctuary permit. Sustenance fishing in the Midway Atoll Special Management Area shall not be allowed unless the activity has been determined by the Director of the USFWS or their designee to be compatible with the purposes for which the Midway Atoll National Wildlife Refuge was established. Sustenance fishing is fishing for bottomfish or pelagic species in which all catch is consumed within the sanctuary. Sustenance Fishing is allowed incidental to an activity permitted in the PMNM under Presidential Proclamation 8031, and in regulations at 50 CFR part 404. Sustenance fishing was not specifically identified in Presidential Proclamation 9478 governing the MEA, but is allowable, consistent with proper care and management of monument objects. For consistency in management and permitting, NOAA is allowing for this activity as a term or condition of a general permit or special use permit.

L. Vessel Monitoring System

To complement existing management and provide consistency across the entirety of the sanctuary, an owner or operator of a vessel that has been issued a general permit or special use permit under 15 CFR part 922 subpart D must ensure that such vessel has a NOAA Office of Law Enforcement (OLE)—approved Vessel Monitoring System (VMS) on board when operating within the sanctuary. Presidential Proclamation 8031 requires an owner or operator of a vessel that has been issued a permit for accessing the PMNM to have an OLE—approved VMS on board. Such a requirement was not included in Presidential Proclamation 9478. For consistency in permitting, and for the reasons identified below, NOAA implements this requirement across the sanctuary.

This requirement supports monitoring and surveillance, enforcement, and other incidental uses, consistent with the long-standing history of using vessel monitoring systems in the remote and vast area of the sanctuary, beginning with Executive Order 13178 in 2000. In directing the Secretary of Commerce to manage the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, section 5(b) of Executive Order 13178, indicated that priority management issues and actions must include enforcement and surveillance, including the use of new technologies, as well as the use of vessel monitoring systems, if warranted. The 2005 Final Reserve Operations Plan included an Enforcement Action Plan with strategies to investigate innovative technology that would be effective for enforcement and surveillance activities within this large, remote area, as well as to implement VMS.

In 2006, Presidential Proclamation 8031, as noted above, required an OLE-approved VMS on vessels with permits to access the PMNM. VMS is currently being used in the PMNM and is part of the Monument Management Plan's Enforcement Action Plan. The Monument Management Plan highlights, as an example, that when the 85-foot longliner

Swordman I,

carrying more than 6,000 gallons of diesel fuel and hydraulic oil, ran aground at Pearl and Hermes Reef in 2000, vessel monitoring system technology allowed agents to track the disaster and quickly send out equipment for an extensive cleanup. Further, the Monument Management Plan recognizes that the Monument's remote location presents unique surveillance and enforcement challenges, which a mandatory vessel monitoring system is critical to addressing.

In designating a sanctuary in the remote and vast area of the Monument and Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, NOAA recognizes the need to overcome these natural barriers to surveillance and enforcement through the use of VMS.

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

Presidential Proclamation 9478, which designated the MEA, stipulates that the prohibitions required by the proclamation “shall not restrict scientific exploration or research activities by or for the Secretaries and nothing in this proclamation shall be construed to require a permit or other authorization from the other Secretary for their respective scientific activities.” Presidential Proclamation 9478 further highlights the significant scientific value of the MEA and underscores the opportunities for research and discovery to occur in that area, including understanding the impacts of climate change on deep-sea communities and identifying new species. NOAA exempts the Department of Commerce's and Department of the Interior's scientific exploration or research activities from the sanctuary's prohibitions and permitting requirements within the Outer Sanctuary Zone to be consistent with Presidential Proclamation 9478. However, such activities must still comply with other Federal laws such as the NEPA, the Endangered Species Act, the National Marine Sanctuaries Act section 304(d), and the Marine Mammal Protection Act.

N. Sunken Military Craft

NOAA is also adding language regarding the Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title XIV, sections 1401 to 1408; 10 U.S.C. 113 note) that acknowledges that sunken military craft in the sanctuary will continue to be administered by the respective Secretary concerned pursuant to the SMCA. NOAA will enter into a Memorandum of Agreement with the appropriate agencies regarding collaboration on implementing the SMCA. See section

VI.H

for more information.

O. Emergency Regulations

NOAA is not including any sanctuary-specific regulation to allow for development of emergency regulations to address urgent threats to sanctuary resources. Rather, the emergency regulation provision included in the regulations of general applicability, which apply to all national marine sanctuaries (see 15 CFR 922.7), would also apply to Papahānaumokuākea National Marine Sanctuary. Emergency regulations are used when there is an imminent risk to sanctuary resources and a temporary regulation or

prohibition is necessary to prevent or minimize the destruction or loss of those resources, or otherwise minimize the imminent risk of such destruction, loss, or injury.

P. Other Conforming Amendments

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

• Section 922.30 National Marine Sanctuary general permits;

• Section 922.33 Review procedures and evaluation; and

• Section 922.37 Appeals of permitting decisions.

Notably, NOAA amends 15 CFR 922.37 “Appeals of permitting decisions,” to reflect that the general appeals process for sanctuary permits will not apply to permit applications for the sanctuary. Consistent with the current interagency permitting system that has been in place for the Monument, there would be no appeals process for the sanctuary. Should a permit applicant want NOAA and the other agencies to reconsider a permitting decision, they would need to file a new permit application.

V. Response to Comments

All comments were considered by NOAA and the State and, where appropriate, modifications were made to the final EIS, sanctuary management plan, and sanctuary rule. NOAA and the State's responses to comments address significant issues and concerns raised by members of the public, government agencies, stakeholder groups, non-profit organizations, and Kānaka 'Ōiwi community groups. For a full scope of all of the comments received on the draft designation documents, including the draft EIS and the draft management plan, and their responses, please review the final EIS Appendix K. This final rule includes NOAA's responses to comments that address the significant issues raised in public comments within the scope of the proposed rule specifically, and offer additional information about why certain changes were made to the rule, the terms of designation, or the regulations. The final rule retains the numbering/naming of the comment from the final EIS Appendix K so readers can track the comments that have been included in this preamble and more efficiently find other related comments/responses in the Appendix K that have not been included in this preamble. As such, cross-references have been retained here for completeness.

1. A-1 Comment:

The majority of comments NOAA received supported the proposed sanctuary designation, including Alternative 1 (NOAA's Preferred Alternative), and encouraged NOAA to proceed with the designation process. Commenters who support the designation cited reasons including:

• Additional regulations, protections, enforcement, and programmatic and legal benefits for Papahānaumokuākea under the National Marine Sanctuaries Act;

• Enhancing long-term protections for biological, cultural, and historical resources;

• Comprehensive and coordinated management of the marine areas of Papahānaumokuākea;

• Preserving Native Hawaiian culture, traditional practices, sacredness of waters, and connections to place for current and future generations;

• Safeguarding marine biodiversity; coral reefs, pelagic, and deep-ocean ecosystems; and endemic, threatened, and endangered species;

• Regulating, mitigating, or preventing threats such as invasive species, overfishing, illegal fishing, deep-sea mining, military activities, pollution, oil spills, marine debris, erosion, and climate change;

• Additional sources of funding to support operations, research, emergency response, citizen science, education, and outreach; and

• Opportunities for recreation and tourism;

Response:

NOAA agrees that these are some of the main benefits of designating the marine areas of the Monument as a national marine sanctuary. NOAA notes that many of these comments specifically indicate a preference for Alternative 1, and NOAA has considered this in carrying Alternative 1 forward in the final EIS as the Final Agency-Preferred Alternative.

2. A-2 Comment:

A minority of commenters expressed opposition to sanctuary designation, citing concerns that designating a sanctuary:

• Is an overreach by the Federal government;

• Is an act of colonialism and/or infringes on the rights of Indigenous peoples;

• Would come at a cost to Native Hawaiian, American Samoan, and/or Pacific Islander well-being, including loss of the ability to practice cultural traditions and connections to ocean resources;

• Would limit access to the ocean and resources for food, livelihood, and cultural sustenance, and limit Indigenous rights and their ability to freely fish in local waters;

• Would decrease the amount of fishing waters across the Pacific;

• Would lead to overfishing;

• Adds unnecessary layers of bureaucracy, as the existing Monument management and protections are extensive and sufficient for the area, and that if new protections/management is needed, these should be enacted through the Monument;

• Would relinquish the Monument title and co-management framework;

• Would weaken current protections, and allow the Department of Commerce to violate protections, opening the doors to deep-sea mining and recreational tourism, and taking away human and financial resources needed to manage the area; and

• Would be redundant of current management of the Monument, and therefore unnecessary. Some commenters also expressed that they felt current Monument management to be poor, or that current management capacity is lacking; and that a sanctuary would not improve this.

Response:

Through the public sanctuary designation process, and from public input received during scoping and the proposed designation stage, NOAA has determined that this action responds to the need to address threats to and discrepancies in management of nationally significant resources. NOAA has also determined that the current management regime will benefit from additional regulatory tools, as well as the first set of implementing regulations for the MEA. Chapter 2 of the final EIS and Section I.B of the final rule preamble describes the purpose and need for the sanctuary.

NOAA respects the views of the commenters, including those who expressed concern that sanctuary designation is an overreach by the Federal government; is an act of colonialism; would impact the livelihood of Pacific Islanders and/or limit Indigenous rights. NOAA seeks to support the rights of Kānaka 'Ōiwi and Pacific Islanders, and to support biocultural conservation and restoration work by growing collective kuleana and affirming respect and reciprocity for the place and people. The sanctuary management plan (final EIS Appendix A) objectives include managing the area as a sacred site consistent with Kānaka 'Ōiwi traditional knowledge, management concepts, and principles articulated within

Mai Ka Pō Mai.

Kānaka 'Ōiwi culture is foundational in the co-management legacy of Papahānaumokuākea (see final EIS, sections 1.2.4 and 4.5.1), and the

designation aims to ensure ecological integrity and achieve strong, long-term protection and perpetuation of Northwestern Hawaiian Island ecosystems, Kānaka 'Ōiwi culture, and maritime heritage resources for current and future generations. Native Hawaiian access will continue under sanctuary designation. See also the responses to comments C.1, C.2, and E.7.

Regarding commenters who expressed concerns with the impact of sanctuary designation on the existing Monument, existing regulations, and or existing management of the area, see also the responses to E.1 and E.2. Regarding commenters who expressed concerns with the impact of sanctuary designation on fishing, see also the comments D.1, D.3, and D.5. NOAA also recognizes that some comments raise concerns that are outside the scope of this designation, including the ongoing process to designate a proposed national marine sanctuary in the Pacific Remote Islands. The underlying concerns of these comments were still considered in the context of Papahānaumokuākea National Marine Sanctuary. Detailed responses to specific points of concern and opposition are addressed in the subsequent responses.

3. B-1 Comment:

Commenters expressed opposition to for-profit activities in the sanctuary. One commenter recommended that no human activity should be allowed in the sanctuary.

Response:

The sanctuary regulations were drafted to supplement and complement existing management of the area. The existing Monument management regime allows for some for-profit activities such as professional film-making, and activities such as wildlife management, research, and Native Hawaiian practices. All are subject to permitting requirements. Consistent with the existing management of the area, NOAA will allow for regulated access to the sanctuary for these types of activities. As in the Monument, in order to receive a permit for a regulated activity, a number of findings criteria need to be met, including that the proposed activity is conducted consistent with the primary objective of protection of sanctuary resources.

4. B-2 Comment:

Commenters expressed concern regarding access to Papahānaumokuākea, noting that the area can currently only be experienced by a select group of scientists, Native Hawaiian cultural practitioners, and wealthy individuals.

Response:

The sanctuary regulations and permit categories were drafted to supplement and complement existing management of the area. Consistent with the presidential proclamations designating the PMNM and MEA, and the Monument implementing regulations at 50 CFR part 404, NOAA will allow for regulated access. Anyone may apply for a permit to access the sanctuary. There are six categories of permitted activities: research, recreation, education, Native Hawaiian practices, conservation and management, and special use. In addition, a vessel may pass without interruption through the sanctuary without requiring a permit as long as the vessel does not stop or engage in prohibited activities within the sanctuary.

Additionally, the sanctuary management plan describes strategies to engage and support diverse communities who care for Papahānaumokuākea, including Indigenous and underserved communities. NOAA recognizes the constraints imposed by the vastness and remote nature of the proposed sanctuary (nearly 300 miles at its closest point from the main Hawaiian Islands), and therefore strives to provide education and outreach that brings the place to the people. Through the Mokupāpapa Discovery Center and collaborations with other interpretive centers, organizations, business agencies, and others, NOAA has expanded a network serving both local, regional, and international audiences.

5. B-3 Comment:

Commenters provided recommendations that permits be easy to acquire through a streamlined process to minimize barriers and reduce redundant reviews under various authorities and regulations. One commenter suggested that the process to acquire a sanctuary or Monument Native Hawaiian practices permit, specifically, should be prioritized and streamlined.

Response:

The Monument joint permitting process has been in place and permits have been issued by the co-trustees since 2007. The sanctuary includes a permitting system modeled after the existing Monument permitting system, and was developed to allow for integration with the Monument permitting system, to ensure continued joint permitting administered by Monument co-trustees. See final EIS Section 3.3.1 for an updated description of the permitting process. Through sanctuary designation, NOAA strives to conduct seamless, integrated management, such that sanctuary permits, including Native Hawaiian practices permits, will go through the same streamlined process as currently exists for the Monument.

6. B-4 Comment:

Commenters expressed concerns regarding activities that take place in the Northwestern Hawaiian Islands under claims of innocent passage, and requested that all activities in the area of the proposed sanctuary comply with the United Nations Convention on the Law of the Sea, which the U.S. recognizes as customary international law, and applicable international treaties.

Response:

In the preamble of the proposed rule, NOAA specified that the proposed access and ship reporting regulations would be applied in accordance with generally recognized principles of international law, in accordance with sections 305(a) and 307(k) of the NMSA and the NMSA Regulations of General Applicability at 15 CFR 922.1(b). That is, no regulation shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States unless in accordance with generally recognized principles of international law. In accordance with 15 CFR 922.1(b), NOAA has long interpreted the text of NMSA Section 305(a) as encompassing international law, including customary international law.

In the preamble of this final rule, NOAA has clarified its intention that all regulations will be applied in accordance with generally recognized principles of international law, as well as in accordance with treaties, conventions, and other agreements to which the United States is a party.

7. B-5 Comment:

A commenter provided a recommendation that the IMO's designation of the Monument as a PSSA apply to the MEA. The commenter also recommended that NOAA should determine, as part of the sanctuary designation process, if additional regulatory and management controls are necessary.

Response:

The IMO process for designating an area as a PSSA is outside the scope of this action. If the U.S. Government determines at a future time that designation of some or all of the Monument as a PSSA is warranted, the IMO process would remain available. Through sanctuary designation, NOAA will implement the ship reporting system (CORAL SHIPREP), which was adopted by the IMO as an associated protective measure to the designation of the Monument as a PSSA. The ship reporting system's reporting area extends outward 10 nautical miles from the PSSA boundary, as designated by the IMO, and therefore includes some portions of the MEA waters. After thorough analysis, NOAA concluded that additional regulatory measures are not necessary at this time, beyond the

sanctuary regulations for ship reporting, access, and prohibited or otherwise regulated activities. Section IV.F of this final rule preamble provides details of the ship reporting system.

8. B-6 Comment:

Commenters expressed support for access for recreational activities, including snorkeling and scuba diving; and allowing opportunities for the public to interact with Papahānaumokuākea in a safe and responsible manner. Commenters stated that allowing access for recreational activities may lead to increased awareness and support for the National Marine Sanctuary System. Commenters also provided recommendations for regulating recreational activities.

Other commenters expressed concern for the potential negative impacts to resources from allowing visitation, recreation, and tourism activities in the sanctuary, specifically Midway Atoll. A few commenters opposed recreational access to the sanctuary, noting that access should be limited to research and conservation activities and/or to the Midway Atoll Special Management Area.

Response:

For the sanctuary, consistent with existing regulations for PMNM, recreational activity will be defined as activities conducted for personal enjoyment that do not result in the extraction of sanctuary resources and that do not involve a fee-for-service transaction. This includes, but is not limited to, wildlife viewing, scuba diving, snorkeling, and boating. Recreation can provide significant educational opportunities, build constituencies, and provide assistance to natural resource managers. However, these activities can also lead to wildlife disturbance, habitat degradation, and pollution. It is a goal of the Monument to prevent, avoid, or minimize negative human impacts associated with recreation by allowing access only for those activities that do not threaten the natural character or biological integrity of the Monument or Native Hawaiian cultural, historic, or maritime heritage resources.

Midway Atoll Special Management Area is the only area of the Monument where recreational activities are permitted. Thus, while the sanctuary will allow for recreational activities via a permit, permits will only be issued for the Midway Atoll Special Management Area within the sanctuary, in coordination with the Monument Management Board and consistent with permitting for the existing Monument. Consistent with permit criteria for recreational activities within the Monument, recreation permits will not be issued for activities associated with any for-hire operation or for activities that involve extractive use.

9. B-7 Comment:

Commenters expressed support for allowing a fee-for-service transaction for public visitation and recreational activities at Midway Atoll National Wildlife Refuge, and pointed out the existing authority of the USFWS to charge fees for public visitation. Commenters requested that the EIS recognize the authority of the USFWS to charge fees for services.

Response:

Consistent with existing permit criteria and regulations for recreational activities within the Monument, recreation permits will not be issued for activities associated with any for-hire operation, and recreational activities are defined as activities conducted for personal enjoyment that do not result in the extraction of sanctuary resources and that do not involve a fee-for-service transaction. However, NOAA acknowledges that the USFWS has the authority to charge fees for services including public visitation (50 CFR part 25 Subpart E;

Refuge Rules and Policies

). Sanctuary designation will not change this authority, and the USFWS will still be able to charge fees for services, including public visitation to Midway Atoll. See also the response to E.3.

The EIS has been revised to acknowledge that the USFWS has the authority to charge fees for services including public visitation. See sections 3.2 and 4.6.2 of the final EIS.

10. B-8 Comment:

Commenters requested that the USFWS consider a visitation program at Midway Atoll; and/or expressed support for recreation and visitation to Midway Atoll. Comments also requested that the final EIS describe the sanctuary permit process for public visitation and recreational activities at Midway Atoll National Wildlife Refuge.

Response:

A visitation program to Midway Atoll is outside the scope of this action. NOAA will share these comments with the USFWS, a cooperating agency for this action, who has operated a Visitor Services Program for Midway Atoll. The USFWS' Midway Atoll Comprehensive Master Plan (2022) affirms the goals, objectives, and strategies of the previous 2008 Midway Atoll Visitor Services Plan, and USFWS' intent to implement a Visitor Services Program.

11. B-9 Comment:

A commenter suggested that standards for permitting should be strengthened significantly, prioritizing Native Hawaiian practices without opening the door to other types of activities.

Response:

Consistent with the presidential proclamations designating PMNM and the MEA, and PMNM implementing regulations at 50 CFR part 404, NOAA will allow for regulated access to the sanctuary. The sanctuary regulations include a permitting system modeled after the existing Monument permitting system, which was developed to allow for integration with the Monument permitting system to ensure continued joint permitting administered by the Monument Management Board (MMB). The final rule adopts the same permit criteria as currently required for Monument permits, including the additional criteria for Native Hawaiian practices and recreation permits. For additional information regarding Native Hawaiian practices permitting, see the responses to B.14 and C.1.

12. B-10 Comment:

Commenters recommended that NOAA hold mandatory public hearings for all permit applications, that there should be a permanent public record for all permits granted, and that there should be no multiple-year permits allowed.

Response:

The sanctuary regulations include a permitting system modeled after the existing Monument permitting system, and was developed to allow for integration with the Monument permitting system to ensure continued joint permitting administered by MMB. Therefore, NOAA intends to continue with the existing public notification process for the Monument, which does not include mandatory public hearings for all permit applicants. Instead, the existing permit system for the Monument includes a

Permit Application Unified Public Notification Policy

to engage and inform the public of activities proposed to occur within the Monument. Posting of a permit application does not equate to permit approval. After posting, each application is thoroughly reviewed by the MMB. Final permitted activities may differ from the proposed activities. Some of the public notification practices for the existing Monument include:

• Within 10 calendar days of receipt of an application, a summary of an applicant's proposed activities is posted for public viewing.

• Within 40 calendar days of receipt of an application, a full permit application is posted for public viewing.

• Permit applications that include proposed activities within the Northwestern Hawaiian Islands State Marine Refuge are also posted to the Board of Land and Natural Resources (BLNR) website for seven days prior to the scheduled BLNR meeting as part of the overall BLNR submittal process. The

BLNR hearings and review process are open to the public.

All information provided in the application is reviewed by the Monument co-trustees to evaluate the potential benefits of the activity, determine whether the proposed methods will achieve the proposed results, evaluate any possible detrimental environmental impacts, and determine if issuance of a permit is appropriate. Factored in is a consideration of whether the timeframe of the proposed action is appropriate. Actions occurring within State waters are subject to a maximum permit duration of one year, while multi-year permits may only be issued outside of State waters. Therefore, consistent with existing management, multi-year permits may be granted in areas of the sanctuary that do not overlap with state waters.

Additionally, permits granted are documented within an annual permitted activities report, published by the Monument. Reports for previous years may be viewed on the Permitted Activities Annual Reports

website.

13. B-11 Comment:

Commenters recommended that independent cumulative impact assessments be required for all permit applications.

Response:

Permit decisions are Federal actions which are subject to NEPA, 42 U.S.C. 4321

et seq.

In accordance with NEPA, NOAA considers possible cumulative environmental impacts when considering Federal actions, including a decision of whether to issue a permit.

14. B-12 Comment:

Commenters expressed concern that a special use permit would introduce commercial activities.

Response:

In the Monument, some forms of commercial activity are currently permitted under special ocean use permits. The existing regulations at 50 CFR 404 for PMNM include permit criteria and regulations for special ocean use, which means an activity or use of the Monument that is engaged in to generate revenue or profits for one or more of the persons associated with the activity or use, and does not destroy, cause the loss of, or injure Monument resources. This includes ocean-based ecotourism and other activities such as educational and research activities that are engaged in to generate revenue, but does not include commercial fishing.

Likewise, before issuing a SUP in the sanctuary, NOAA will also ensure, among other things, that the requested activity is compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources, and is conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources (16 U.S.C. 1441(c)). NOAA can place conditions on SUPs specific to the activity being permitted. Individual permit applications that would require a SUP are also reviewed with respect to all other pertinent regulations and statutes, including NEPA (42 U.S.C. 4321

et seq.

), and any required consultations, permits, or authorizations. Accordingly, there are sufficient safeguards in place for any activity proposed for a SUP in the sanctuary, whether of a commercial or non-commercial nature.

In addition, NOAA is not proposing any new SUP categories as part of this designation. In order to do so, NOAA would be required to provide appropriate public notice before identifying a new category of activity subject to a SUP (16 U.S.C. 1441(b)).

15. B-13 Comment:

Commenters asked why the sanctuary permit would not allow for appeals of permit decisions.

Response:

The permitting system for the sanctuary is modeled after the existing Monument permitting system. The permitting system would not supplant the joint permitting system for the Monument, and was developed to ensure a continued joint permitting system administered by the MMB. The existing permit system for the Monument does not include a process to appeal a permit decision. Instead, a permit applicant may seek reconsideration of a permitting decision by filing a new permit application that redresses the issue(s) in the initial application that caused the denial. To ensure consistency with the existing permit system for the Monument, the National Marine Sanctuary Program regulations at 15 CFR 922.37 for appeals of permitting decisions will not apply to Papahānaumokuākea National Marine Sanctuary. This will ensure that permit decisions are not made solely by NOAA, but in consideration with the other Monument co-trustees. See the final EIS, Section 3.3.1 and Section IV.P of this final rule for discussion of appeals of permitting decisions.

16. B-14 Comment:

A commenter stated that the proposed rule's definition of “Native Hawaiian Practices” provides a solid foundation, but is concerned that “Native Hawaiian” is not defined. The commenter requested that the definition should narrowly reference indigenous practices and only those practices of the kānaka maoli, who lived and thrived in Hawai'i prior to European and American arrival.

Response:

NOAA will not define “Native Hawaiian” in the sanctuary regulations because the issuance of Native Hawaiian practices permit is based on evaluating the activity against the permit criteria. To be consistent with the types of activities permitted for the Monument, and allow for an integrated permit process, NOAA will issue Native Hawaiian practices permits based on the same permit review procedures and additional evaluation criteria as those used for the Monument:

• The activity is non-commercial and will not involve the sale of any organism or material collected;

• The purpose and intent of the activity is appropriate and deemed necessary by traditional standards in the Native Hawaiian culture (pono), and demonstrates an understanding of, and background in, the traditional practice and its associated values and protocols;

• The activity benefits the resources of the Northwestern Hawaiian Islands and the Native Hawaiian community;

• The activity supports or advances the perpetuation of traditional knowledge and ancestral connections of Native Hawaiians to the Northwestern Hawaiian Islands; and

• Any living sanctuary resource harvested under this permit will be consumed or utilized in the sanctuary.

The permitting system for the sanctuary is modeled after the existing Monument permitting system. The permitting system will not supplant the joint permitting system for the Monument, and was developed to ensure a continued joint permitting system administered by the MMB. The existing permit system for the Monument does not define Native Hawaiian, and instead provides a specific set of findings criteria for a Native Hawaiian practice permit. The criteria for the Monument Native Hawaiian practice permit were developed following a workshop in 2004 facilitated by Kia'i Kai, a graduate program at the Kamakakūokalani Center for Hawaiian Studies at the University of Hawai'i at Mānoa, collecting input from Native Hawaiian cultural practitioners, fishermen, and others to create criteria for culturally-appropriate activities in Papahānaumokuākea. Presidential Proclamation 8031 subsequently applied these criteria in providing for additional findings for Native Hawaiian practice permits, as did the Monument's implementing regulations at 50 CFR part 404.

However, while Native Hawaiian is not defined in the regulations, the final EIS, recognizes a definition for the term Native Hawaiian per existing Federal law as important background information for the reader. See also the response to C.8.

17. B-15 Comment:

Commenters requested that wind turbine activity, in addition to mining and exploratory activities related to energy development, be prohibited.

Response:

Consistent with the presidential proclamations establishing the Monument, NOAA will prohibit exploring for, developing, or producing oil, gas, or minerals to protect sanctuary resources. NOAA will also prohibit “any energy development activities” to further the underlying intent of the prohibition on oil, gas, and mineral development by accounting for technological advances in other forms of energy development. This includes, but is not limited to, wind turbines and exploratory mining activity.

18. B-16 Comment:

Commenters requested that submarine activity be prohibited, with several comments specifically requesting prohibitions on military submarine use.

Response

: Access to the sanctuary, and therefore submarine use within the sanctuary, would be prohibited and thus unlawful except under the following circumstances: for emergency response actions, law enforcement activities, and activities and exercises of the Armed Forces; pursuant to a sanctuary permit; when conducting scientific exploration or research activities by or for the Secretary of Commerce and/or the Secretary of the Interior in the Outer Sanctuary Zone; and when passing through the sanctuary without interruption. Further, all regulations will be applied in accordance with generally recognized principles of international law, as well as in accordance with treaties, conventions, and other agreements to which the United States is a party. No regulation shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States (including foreign flag vessels) unless in accordance with international law, or applicable treaties, conventions, and other agreements.

The sanctuary regulations allow activities and exercises of the U.S. Armed Forces. This is consistent with the existing management of the Monument, as both Presidential Proclamation 8031 and Presidential Proclamation 9478 provided broad exemptions for activities of the U.S. Armed Forces. However, all activities and exercises of the Armed Forces must be carried out in a manner that avoids, to the extent practicable and consistent with operational requirements, adverse impacts on sanctuary resources and qualities.

19. B-17 Comment:

Commenters expressed concern regarding the potential spread of invasive species and diseases from vessel transit and biofouling, and requests that the prohibition on introducing invasive species apply to all vessels, including those passing without interruption.

Response:

The sanctuary regulations will prohibit introducing or otherwise releasing an introduced species from within or into the sanctuary. The sanctuary regulations would also prohibit discharging or depositing any material or other matter into the sanctuary. These prohibitions are consistent with prohibitions identified in the presidential proclamations establishing the Monument. These prohibitions would apply to all vessels, including those passing without interruption. A vessel may only pass without interruption through the sanctuary without requiring a permit, as long as the vessel does not stop or engage in prohibited activities within the sanctuary.

20. B-18 Comment:

Commenters stated that the provisions of Presidential Proclamation 8031, 50 CFR 404, Executive Order 13178 for the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, and the State of Hawai`i Northwestern Islands Marine Refuge should be applied to the sanctuary regulations for the Monument Expansion Area and the full sanctuary, and specifically the prohibitions regarding fishing. Commenters also stated that Presidential Proclamation 9478 is too weak and provides “loopholes.”

Response:

In drafting the sanctuary regulations, NOAA reviewed the executive orders, presidential proclamations, and regulations that currently guide Monument management. NOAA adopted the management measures from these benchmarks, and, in a few areas, added to those measures to allow for consistency in regulation and management across the sanctuary. The sanctuary regulations are largely consistent with Executive Order 13178, establishing the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (Reserve). Where the sanctuary regulations do not align with Executive Order 13178, the regulations comply with other applicable law including Presidential Proclamations 8031 and 9478 establishing PMNM and MEA, respectively, which succeeded the 2000 executive order establishing the Reserve. For example, while Executive Order 13178 sets caps on commercial fishing, the sanctuary regulations prohibit commercial fishing across the sanctuary, consistent with the presidential proclamations. In addition, the MEA's location outside the reserve, and other applicable law for that area such as Presidential Proclamation 9478, account for differences in management, including for non-commercial fishing.

NOAA also considered that while the Monument is managed as a unit, several State and Federal conservation areas exist within it, where specific authorities apply. For example, the State of Hawai'i has primary responsibility for managing the State waters of the Monument, including the State of Hawai'i Northwestern Islands Marine Refuge. These existing authorities will still remain in effect. The State of Hawai'i also served as a cooperating agency for the EIS, allowing consideration and input into the draft documents. Further, as the sanctuary overlaps with State waters, the State will co-manage the sanctuary with NOAA, and the governor of Hawai'i will also review NOAA's designation documents before the sanctuary designation is final.

21. B-19 Comment:

A commenter expressed support for the prohibition on altering the seabed by modification or placement of materials, except for scientific instruments, providing new protections for the limited and sensitive habitats of the Outer Sanctuary Zone. The commenter noted that access through permitting would allow managers to review methodologies and monitor permittees, and that while minimal user contact with the seafloor occurs or is anticipated in the Outer Sanctuary Zone, these resources are rare and extremely vulnerable to disturbance.

Response:

NOAA agrees. In the MEA, Presidential Proclamation 9478 prohibits this type of activity, except for when conducted for the use of scientific instruments, which is allowed only with a permit, subject to such terms and conditions as the Secretaries of Commerce and Interior deem appropriate. Therefore, in the sanctuary, these activities are prohibited unless conducted pursuant to a sanctuary permit, and in the Outer Sanctuary Zone, such a permit may only be issued for scientific instruments.

22. B-20 Comment:

A commenter expressed concern for the prohibition on anchoring a vessel, noting that for safety reasons, there are some scenarios when a vessel should be able to anchor.

Response:

Anchoring a vessel is prohibited unless conducted pursuant to a sanctuary permit. While this activity may be permitted via a sanctuary permit, anchoring on living or dead coral may never be permitted. NOAA will regulate anchoring a vessel for consistency with a regulated activity

identified in Presidential Proclamation 8031 for PMNM and because there is the potential for sanctuary resources, other than corals, to be impacted by anchoring. This prohibition is new for the area of the sanctuary that overlaps with the MEA. NOAA recognizes that there may be scenarios where anchoring a vessel is necessary for safety. Consistent with existing management of this area, the prohibitions for the sanctuary, including the prohibitions on anchoring, will not apply to any activity necessary to respond to emergencies that threaten life, property, or the environment, or to activities necessary for law enforcement purposes.

23. B-21 Comment:

Commenters expressed concerns regarding the sufficiency of enforcement in the sanctuary and the need for improved monitoring and enforcement to protect sanctuary resources. Some commenters specifically pointed out the need for increased monitoring of pollution to prevent entanglement of marine life. Suggestions and recommendations included improved or expanded monitoring and surveillance, use of technology to aid enforcement including Automatic Information Service and satellite monitoring, promulgation of strict regulations, dedicated funding, a risk assessment framework for vulnerable ecosystems, and increased collaboration with the National Environmental Satellite, Data, and Information Service and the State of Hawai'i for satellite management. Commenters also requested that enforcement be conducted by traditional vessels or new technologies to eliminate noise pollution that may impact marine life.

Response:

With sanctuary designation, the NMSA provides various regulatory tools and authorities for the protection of sanctuary resources. This includes the authority to conduct enforcement activities; assess civil penalties for violations of sanctuary regulations or permits; impose liability for destruction, loss of, or injury to sanctuary resources and provide natural resource damage assessment authorities for destruction, loss of, or injury to any sanctuary resource; and issue emergency response regulations. In addition, consistent with the existing management of the Monument, the sanctuary implements regulations requiring VMS units for an owner or operator of a vessel that has been issued a permit, as well as a ship reporting system for vessels that pass without interruption through the reporting areas. Both regulatory tools are intended to increase monitoring, in order to assist enforcement activities by the U.S. Coast Guard and NOAA's Office of Law Enforcement and further the protection of sanctuary resources. Additionally, as described in the sanctuary management plan (final EIS, Appendix A), NOAA will continue to monitor ecosystems and seek out and develop new tools and technologies for resource protection and monitoring (Strategy 1.2, Strategy 2.2, Strategy 2.3); and to work with the existing interagency Law Enforcement Coordination Team to enhance communication and coordination among enforcement personnel in order to facilitate responses to incidents and uphold sanctuary regulations and policies (Strategy 1.9).

NOAA will continue to actively work and advocate inside the ecosystem protection framework established for the Monument to minimize risks and damages to sanctuary resources. For example, ongoing research aims to identify derelict fishing gear and other marine debris through unique spectral signatures that can be visualized from space to record locations and provide that information back to partners for removal. This technology has the potential to greatly reduce the effort to locate these hazards so that they can be removed from the environment. Some broad risk assessment investigations have been conducted by the Monument co-trustees (

e.g.,

the Papahānaumokuākea Marine National Monument Climate Change Vulnerability Analysis (2014)), however, much more remains to be done. Challenges include the vast geographic extent of ecosystems and seasonal access limitations. Conducting such assessments will require substantial time, as well as the participation of all Monument co-trustee agencies.

Regarding reducing noise pollution from vessels to minimize wildlife disturbances, uncrewed surface vehicle (USV) technology is constantly improving and NOAA is exploring ways to utilize sail drones and other vessel systems in order to maintain a physical presence in sanctuary waters without having to dedicate staffed assets. These uncrewed platforms can utilize satellites to transmit location, vessel identification, and photographic evidence back to law enforcement officials in order to expand the geographic capacity of their limited resources.

24. B-22 Comment:

Commenters recommended harsh penalties for those who violate the regulations, including requests for permit violators to be banned from receiving future permits.

Response:

The NMSA authorizes NOAA to assess civil penalties for violations of provisions of the NMSA, including sanctuary regulations and permits. Each violation of the NMSA, any NMSA regulation, or any permit issued pursuant thereto, is subject to a civil penalty. Each day of a continuing violation constitutes a separate violation. The NMSA has a statutory maximum of $216,972 per violation, per the December 27, 2023 annual adjustment for inflation (see 88

Federal Register

89300).

Additionally, the NMSA regulations provide a list of findings, in addition to site-specific permit review criteria, which must be made before issuing a permit, such as whether the activity will be compatible with the primary objective of protection of sanctuary resources and qualities. The NMSA regulations also provide for the denial of a permit application based on various determinations, including that the applicant has acted in violation of the terms and conditions of a permit in a sanctuary in which the proposed activity is to take place, or has acted in violation of any sanctuary regulation, or for other good cause.

25. C-1 Comment:

Commenters expressed support for Native Hawaiian rights, including statements that access to the sanctuary should be allowed for Native Hawaiians to connect with ancestors and 'āina and to perpetuate cultural practices based on pilina (relationships), kuleana (responsibilities), and genealogical connections to Papahānaumokuākea. This includes voyaging, which is vital for health, well-being, and in keeping Hawaiian culture and language alive. Commenters also stated that the allowance of Native Hawaiian traditional and customary practices should not be diminished or limited through sanctuary designation.

Response:

NOAA recognizes the importance of Native Hawaiians' access to the sanctuary. Consistent with the presidential proclamations designating the Monument, NOAA will allow for regulated access to the sanctuary. Access will continue through a permit process. The sanctuary includes a permitting system modeled after the existing Monument permitting system, and was developed to allow for integration with the Monument permitting system, to ensure continued joint permitting administered by the MMB. The sanctuary has adopted the same permit criteria as currently required for the Monument, including for Native Hawaiian practices permits. See also the response to B.14.

The criteria for the Monument Native Hawaiian practices permit were developed following a workshop in 2004 facilitated by Kia'i Kai, a graduate

program at the Kamakakūokalani Center for Hawaiian Studies at the University of Hawai'i at Mānoa, collecting input from Kānaka 'Ōiwi cultural practitioners, fishermen, and others to create criteria for culturally-appropriate activities in Papahānaumokuākea. For more than 20 years, the Papahānaumokuākea Native Hawaiian Cultural Working Group (CWG) has provided guidance and advice. The CWG is a group of Kānaka 'Ōiwi kūpuna (elders), researchers, cultural practitioners, educators, and community members that have deep connections and historical ties to Papahānaumokuākea through a living pilina (relationship), bound by genealogy, cultural protocols, and values building contemporary multi-disciplinary research and practice. Although the group is not a formalized advisory body, the CWG and many of its members have been involved for over two decades since the establishment of the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve in 2000, and provide an important Kānaka 'Ōiwi perspective that continues to inform Monument management. Since 2007, there have been 34 Native Hawaiian practices permits issued to perpetuate cultural practices ranging from traditional voyaging navigator apprenticeship and training, Hawaiian-led archaeological and cultural resource research, integrated cultural and scientific ecosystem monitoring, resource gathering including bird feathers/bones, and subsistence harvesting of fish, algae, and invertebrates. The growing number of Native Hawaiian permits submitted and issued provides significant support for and interest in conducting Hawaiian cultural practices, with at least eight ongoing cultural initiatives occurring on 27 separate expeditions.

26. C-7 Comment:

A commenter expressed concern that the findings of the Cultural Impact Assessment

E Hoi I Ke Au A Kanaloa

were not integrated in the draft EIS and the Western Pacific Regional Fishery Management Council's (WPRFMC) draft fishing regulations.

Response:

Findings of the Cultural Impact Assessment

E Hoi I Ke Au A Kanaloa

relating to the sanctuary proposal were addressed in Section 2.3.2, and more extensively in Chapter 5, of the draft EIS. NOAA is preparing a separate proposed rule for regulations governing fishing in the MEA under the authority of the MSA. Therefore, development and analysis of non-commercial fishing regulations for the MEA is not part of this action and was not analyzed in the draft or final EIS. NOAA and the State encourage commenters to participate in the future public review process for non-commercial fishing regulations in the MEA under the authority of the MSA, and any associated NEPA and/or other environmental compliance documentation.

27. C-8 Comment:

A commenter expressed concern that “Native Hawaiian” is not defined. The commenter recommended the following language and definition be adopted and integrated into the final EIS: Native Hawaiian is defined as “any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawai'i.” The commenter also recommended the incorporation of other self-identification names, including but not limited to Kānaka Maoli, Kānaka 'Ōiwi, and indigenous peoples or indigenous Native Hawaiians.

Response:

In the final EIS, NOAA recognizes a definition for the term Native Hawaiian as it is commonly defined per existing Federal law as any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawai'i. See Section 1.2.4. Throughout the EIS, NOAA also uses Kānaka 'Ōiwi and/or Kānaka Maoli as terms that refer to Native Hawaiians.

28. D-1 Comment:

Commenters expressed opposition to any new fishing closures, citing reasons that included:

• Fishing becomes more difficult and expensive for fishermen, including the Hawai'i longline fishery. The small boat fishing industry will slowly go away;

• No scientific evidence that large marine reserves provide conservation benefits to fish stocks;

• Fishing areas should be managed under Magnuson-Stevens Fishery Conservation and Management Act (MSA), and closures do not support MSA Standard 1: Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry;

• Fishing closures do not meet the administration's mandate for equity and justice for underserved communities;

• Fishing closures affect food security and well-being of Native Hawaiians;

• Intergenerational transmission of fishing traditions will be impeded or lost;

• Native Hawaiians should be able to fish for food; and

• Sanctuaries and fishing should be able to coexist.

Response:

NOAA is not establishing any new fishing closures through sanctuary designation. The sanctuary regulations regarding commercial and non-commercial fishing are consistent with the existing Monument and its management of the area. The presidential proclamations establishing the Monument broadly restrict the harvest of fishery resources by prohibiting removing, moving, taking, harvesting, possessing, injuring, disturbing, or damaging any living or nonliving Monument resource, as well as attempts to do the same, except as may be allowed with a permit. Presidential Proclamations 8031 and 9478 further specify prohibitions on commercial fishing and the possession of commercial fishing gear. The presidential proclamations also identify certain types of non-commercial fishing that may be regulated (

i.e.,

allowed pursuant to a permit or incidental to a permitted activity). Presidential Proclamation 8031, for example, authorizes sustenance fishing incidental to an activity permitted in PMNM. Presidential Proclamation 9478, for example, provides that non-commercial fishing is a regulated activity (

i.e.,

allowed only with a permit) in the MEA.

In the sanctuary, the fishing regulations included in the final rule are consistent with Presidential Proclamation 9478 and the existing management of the area. This includes prohibiting commercial fishing and regulating non-commercial fishing pursuant to a sanctuary permit or authorized under the MSA in the Outer Sanctuary Zone. The final rule provides the first set of implementing regulation consistent with directives in Presidential Proclamation 9478, which has the force of law.

29. D-2 Comment:

Commenters provided suggestions and recommendations that appropriately regulated and monitored commercial fishing, including longline fishing and trolling, should be allowed in the sanctuary, as well as the “small boat community.” One commenter stated that regulated traditional small boat fisheries should have a place. One commenter also inquired whether opportunities/mechanisms for future re-evaluation and allowance of commercial fishing in the sanctuary exist. One commenter also stated that there should be fishing line limits to reduce overfishing.

Response:

In the sanctuary, fishing regulations are consistent with existing applicable law in the Monument. Existing applicable law in the area of the sanctuary prohibits commercial fishing. Presidential Proclamation 8031,

and its implementing regulations at 50 CFR part 404, prohibits commercial fishing for bottomfish and associated pelagic species in the Monument after June 15, 2011. Presidential Proclamation 9478 also prohibits commercial fishing in the MEA. Therefore, any consideration of regulations allowing commercial fishing in the sanctuary would not alter existing fishing prohibitions in the area. See the response to D.1 for more detail.

30. D-3 Comment:

Commenters expressed opposition to allowing commercial fishing in Papahānaumokuākea.

Response:

For consistency with existing regulations and the presidential proclamations establishing the Monument, regulations include a sanctuary-wide prohibition on commercial fishing. See also the responses to D.1 and D.2.

31. D-4 Comment:

Commenters requested increased support for monitoring and enforcing fishing prohibitions, and requesting that international fishing vessels be prohibited.

Response:

Existing applicable law in the area of the sanctuary prohibits commercial fishing. NOAA and the State agree that monitoring and enforcement of fishing prohibitions is critical to protecting sanctuary resources. NOAA's Office of Law Enforcement and the U.S. Coast Guard support enforcement efforts across the National Marine Sanctuary System. To assist in this coordinated effort for Monument enforcement, ONMS facilitates a Monument Law Enforcement Coordination Team which is composed of law enforcement representatives from NOAA, USFWS, U.S. Coast Guard, and Hawai'i Division of Conservation and Resource Enforcement. This group meets regularly to coordinate joint enforcement efforts in the Monument.

The designation of a national marine sanctuary provides the first set of implementing regulations for the directives in Presidential Proclamation 9478, including the prohibition on commercial fishing and regulation on non-commercial fishing. By establishing these new implementing regulations, NOAA will have new tools for enforcement, including the enforcement of fishing regulations. Sanctuary designation imparts a specific set of new benefits afforded by the NMSA, including the authorization to assess civil penalties for violations of the NMSA, including sanctuary regulations and permits.

Additionally, foreign fishing has remained prohibited in U.S. waters since the introduction of the Magnuson-Stevens Fishery Conservation and Management Act of 1976. This prohibition was enacted on February 28, 1977 and remains in effect today with limited exceptions related to international fishery agreements that predated the MSA. There are no such allowances for foreign fishing activities within the U.S. EEZ that surrounds Hawai'i.

Regarding monitoring, see also the responses to B.21 and K.2.

32. D-5 Comment:

Commenters expressed opposition to allowing non-commercial fishing and to the exemption (for non-commercial fishing in the MEA) in the proposed sanctuary rule, based upon biological, cultural, or co-management considerations. Out of concern for the proposed exemption of non-commercial fishing permits, one commenter suggested that non-commercial fishing permits should only be rarely granted, and carry strict catch limits.

Response:

The presidential proclamations that established the Monument (8031 and 9478) served as benchmarks for drafting regulations for the sanctuary. The presidential proclamations identify certain types of non-commercial fishing that may be regulated (

i.e.,

allowed pursuant to a permit or incidental to a permitted activity). Presidential Proclamation 8031 authorizes sustenance fishing incidental to an activity permitted in PMNM. Presidential Proclamation 9478 provides that non-commercial fishing is a regulated activity (

i.e.,

allowed only with a permit) in the MEA, provided that the fish harvested, either in whole or in part, cannot enter commerce through sale, barter, or trade, and that the resource is managed sustainably. In the sanctuary, for consistency with the proclamations, “non-commercial fishing” is prohibited unless conducted pursuant to a sanctuary permit or through an exemption for non-commercial fishing authorized under the MSA in the Outer Sanctuary Zone (the area that overlaps with the MEA).

In response to comments of concern for this exemption, NOAA has made changes to the exemption for non-commercial fishing to ensure that a non-commercial fishing permit authorized under the MSA is only exempt from a limited subset of prohibited or otherwise regulated activities, and that these exempted activities are only conducted as incidental to and necessary to a lawful non-commercial fishing activity. NOAA has also clarified that this narrow exemption from the sanctuary's permitting requirements is only applicable provided that the fish harvested, either in whole or in part, are neither intended to enter commerce nor enter commerce through sale, barter, or trade and that the resource is managed sustainably, consistent with Presidential Proclamation 9478. Moreover, for the exemption to apply, the fish harvested, either in whole or in part, must not be intended to be sold and shall not be sold for any purposes, including, but not limited to, cost-recovery. Corresponding changes have been made in the final EIS Section 3.3.1.

NOAA is preparing a separate proposed rule for regulations governing fishing in the MEA under the authority of the MSA, and will invite the public to provide comments on the proposed non-commercial fishing regulations for the MEA. NOAA and the State encourage commenters to participate in the future public review process for non-commercial fishing regulations in the MEA under the authority of the MSA, including on the issuance of permits and catch limits, as those are outside the scope of this action.

33. D-6 Comment:

Some commenters stated that fishing should not be restricted for Native Hawaiians and Indigenous populations and/or cultural practices. One commenter emphasized that it is culturally important to be able to bring fish home to share with family.

Response:

Consistent with the existing management of the Monument and the proclamations that established the Monument, NOAA would continue to allow for regulated access to the sanctuary. Kānaka 'Ōiwi and Indigenous communities may apply for a permit to fish within the sanctuary. For consistency with the proclamations that established the Monument, “non-commercial fishing” is prohibited in the Sanctuary unless conducted pursuant to a sanctuary permit or authorized under the MSA in the Outer Sanctuary Zone. See the response to D.5. In the Outer Sanctuary Zone, the sanctuary regulations will not restrict the sharing of fish from non-commercial fishing activities authorized under the MSA.

34. D-7 Comment:

A commenter requested that sustenance fishing be the only form of fishing allowed in the proposed sanctuary; and that there be a requirement that fish caught be consumed within the sanctuary, and not taken outside of the sanctuary. Others requested that sustenance fishing be allowed conditionally. Suggested conditions include by location; by permit type, and by sustainability criteria: (1) the activity must be “pono;” (2) the activity must benefit the resources of the Northwestern Hawaiian Islands and the Native Hawaiian community; and (3) any resource

harvested from the Monument must be consumed in the Monument. Finally, one commenter supported defining sustenance fishing as a Native Hawaiian practice.

Response:

Sustenance fishing is currently allowed incidental to an activity permitted in PMNM, pursuant to Presidential Proclamation 8031, and the implementing regulations at 50 CFR part 404. Sustenance fishing was not specifically identified in Presidential Proclamation 9478 governing the MEA, but is considered a form of non-commercial fishing which may be regulated. For consistency in management and permitting, NOAA will manage this activity as a term or condition of a general permit or special use permit for the sanctuary, outside of any special preservation area. NOAA's sanctuary permit will follow the conditions of the existing Monument permitting system, including the considerations that sustenance fishing must be conducted only for the purpose of providing sustenance in support of activities otherwise allowed under an established permit and that the harvested resource must be consumed within the Monument.

In the Outer Sanctuary Zone, other types of non-commercial fishing may be allowed, consistent with the proper care and management of sanctuary resources and monument objects. Sanctuary designation provides the first set of implementing regulations for many of the directives in Presidential Proclamation 9478, including the regulation of non-commercial fishing in the MEA. Presidential Proclamation 9478 stated that non-commercial fishing may be regulated “provided that the fish harvested, either in whole or in part, cannot enter commerce through sale, barter, or trade, and that the resource is managed sustainably.” Consistent with this proclamation, some forms of non-commercial fishing beyond sustenance fishing may be allowed in the MEA/Outer Sanctuary Zone.

NOAA is preparing a separate proposed rule for regulations governing fishing in the MEA under the authority of the MSA, and will invite the public to provide comments on the proposed non-commercial fishing regulations for the MEA. NOAA and the Sta

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