Presidential Documents

76903

Federal Register

Vol. 65, No. 236

Thursday, December 7, 2000

Title 3—

The President

Executive Order 13178 of December 4, 2000

Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve

By the authority vested in me as President by the Constitution and the

laws of the United States of America, including the National Marine Sanctuaries Act, (16 U.S.C. 1431 et seq.), and the National Marine Sanctuaries

Amendments Act of 2000, Public Law 106-513, and in furtherance of the

purposes of the Magnuson-Stevens Fishery Conservation and Management

Act (16 U.S.C. 1801 et seq.), Marine Protection, Research, and Sanctuaries

Act (33 U.S.C. 1401 et seq.), Coastal Zone Management Act (16 U.S.C.

1451 et seq.), Endangered Species Act (16 U.S.C. 1531 et seq.), Marine

Mammal Protection Act (16 U.S.C. 1362 et seq.), Clean Water Act (33 U.S.C.

1251 et seq.), National Historic Preservation Act (16 U.S.C. 470 et seq.),

National Wildlife Refuge System Administration Act (16 U.S.C. 668dd-ee),

and other pertinent statutes, it is ordered as follows:

Section 1. Preamble. The world’s coral reefs—the rain forests of the sea—

are in serious decline. These important and sensitive areas of biodiversity

warrant special protection. While United States waters contain approximately

3 percent of the world’s coral reefs, approximately 70 percent of U.S. coral

reefs are in the Northwestern Hawaiian Islands. The 3.5 million acres of

coral reefs around the remote, mostly uninhabited Northwestern Hawaiian

Islands are spectacular and almost undisturbed by humans. The approximately 1,200 mile stretch of coral islands, seamounts, banks, and shoals

are unquestionably some of the healthiest and most extensive coral reefs

in the United States. In their own right, the spectacular coral reefs and

lands provide an amazing geological record of volcanic and erosive powers

that have shaped this area. This vast area supports a dynamic reef ecosystem

that supports more than 7,000 marine species, of which approximately half

are unique to the Hawaiian Island chain. This incredibly diverse ecosystem

is home to many species of coral, fish, birds, marine mammals, and other

flora and fauna including the endangered Hawaiian monk seal, the threatened

green sea turtle, and the endangered leatherback and hawksbill sea turtles.

In addition, this area has great cultural significance to Native Hawaiians

as well as linkages to early Polynesian culture—making it additionally worthy

of protection and understanding. This is truly a unique and special place,

a coral reef ecosystem like no place on earth, and a source of pride, inspiration, and satisfaction for all Americans, especially the people of Hawaii.

It is fully worthy of our best efforts to preserve a legacy of America’s

natural wonders for future generations. Due to the special significance of

this area, I have determined that it is in the best interest of our Nation,

and of future generations, to provide strong and lasting protection for the

coral reef ecosystem of the Northwestern Hawaiian Islands.

On May 26, 2000, I directed the Secretaries of Commerce and the Interior,

working cooperatively with the State of Hawaii and consulting with the

Western Pacific Fishery Management Council, to develop recommendations

for a new, coordinated management regime to increase protection of the

coral reef ecosystem of the Northwestern Hawaiian Islands and provide

for sustainable use of the area. Upon consideration of their recommendations

and comments received during the public visioning process on this initiative,

and based on the statutory authorities set forth above, I am issuing this

Executive Order.

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Sec. 2. Purpose. The purpose of this Executive Order is to ensure the

comprehensive, strong, and lasting protection of the coral reef ecosystem

and related marine resources and species (resources) of the Northwestern

Hawaiian Islands.

Sec. 3. Establishment of Coral Reef Ecosystem Reserve. There is hereby

established in the Northwestern Hawaiian Islands a coral reef ecosystem

reserve to be known as the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (Reserve). The Reserve shall include submerged lands and

waters of the Northwestern Hawaiian Islands, extending approximately 1,200

nautical miles (nm) long and 100nm wide. The Reserve shall be adjacent

to and seaward of the seaward boundaries of the State of Hawaii and

the Midway Atoll National Wildlife Refuge, and shall overlay the Hawaiian

Islands National Wildlife Refuge to the extent that it extends beyond the

seaward boundaries of the State of Hawaii. The boundaries of the Reserve

are described in section 6 of this order.

Sec. 4. Management Principles. The Secretary of Commerce, or his designee,

(hereafter ‘‘Secretary’’) shall, subject to section 10(b) of this order, manage

the Reserve in accordance with the following principles:

(a) The principal purpose of the Reserve is the long-term conservation

and protection of the coral reef ecosystem and related marine resources

and species of the Northwestern Hawaiian Islands in their natural character;

(b) The Reserve shall be managed using available science and applying

a precautionary approach with resource protection favored when there is

a lack of information regarding any given activity, to the extent not contrary

to law;

(c) Culturally significant, noncommercial subsistence, cultural, and religious uses by Native Hawaiians should be allowed within the Reserve,

consistent with applicable law and the long-term conservation and protection

of Reserve resources;

(d) The Reserve shall be managed using, when appropriate, geographical

zoning and innovative management techniques to ensure that the Reserve

resources are protected from degradation or harm;

(e) To the extent consistent with the primary purpose of the Reserve,

the Reserve shall be managed to support, promote, and coordinate appropriate

scientific research and assessment, and long-term monitoring of Reserve

resources, and the impacts or threats thereto from human and other activities,

to help better understand, protect, and conserve these resources and species

for future generations;

(f) To the extent consistent with the primary purpose of the Reserve,

the Reserve shall be managed to enhance public awareness, understanding,

and appreciation of Reserve resources, and the impacts or threats thereto

from human and other activities;

(g) The Reserve shall be managed to further restoration and remediation

of degraded or injured Reserve resources; and

(h) The Reserve shall be managed to facilitate coordinated management

among Federal and State agencies and other entities, as appropriate, to

provide comprehensive (looking beyond jurisdictional boundaries) conservation of the coral reef ecosystem and related marine resources and species

throughout the Northwestern Hawaiian Islands, consistent with applicable

authorities and the Management Principles of this section.

Sec. 5. Implementation. (a) Management of the Reserve. The Secretary shall

manage the Reserve under the National Marine Sanctuaries Act and in

accordance with this order.

(b) Reserve Operations Plan. The Secretary, in consultation with the Secretary of the Interior and the Governor of Hawaii, shall develop an operations

plan to govern the management of the Reserve. In developing the Reserve

Operations Plan the Secretary shall consider the advice and recommendations

of the Reserve Council established pursuant to paragraph (c) of this section.

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The Reserve Operations Plan shall be directed at priority issues and actions

that, at a minimum, provide for:

(1) Coordinated management among the Reserve, Hawaiian Islands National

Wildlife Refuge, Midway Atoll National Wildlife Refuge, and the State of

Hawaii, consistent with relevant authorities;

(2) Coordination among Federal agencies and the Director of the National

Science Foundation to make vessels and other resources available for conservation and research activities for the Reserve;

(3) The cleanup and prevention of marine debris in the Reserve;

(4) The restoration or remediation of any degraded or injured resources

of the Reserve;

(5) Research, monitoring, and assessment of the Reserve;

(6) Education and outreach about the Reserve and its resources and efforts

to conserve them;

(7) Enforcement and surveillance for the Reserve, including the use of new

technologies and coordination with the United States Coast Guard and other

relevant agencies;

(8) Identification and coordination with Native Hawaiian interests, regarding

culturally significant, noncommercial subsistence, cultural, and religious uses

and locations within the Reserve;

(9) Identification of potential tourism, recreational, and commercial activities

within the Reserve and actions necessary to ensure that these activities

do not degrade the Reserve’s resources or diminish the Reserve’s natural

character;

(10) Use of vessel monitoring systems for any vessel entering or transiting

the Reserve, if warranted. To this end, the Secretary in consultation with

the Department of State, United States Coast Guard, and the Department

of Defense, shall evaluate the need for the establishment of vessel monitoring

systems and, if warranted, shall initiate the steps necessary to have the

appropriate domestic agencies, and request that the International Maritime

Organization, adopt a vessel monitoring system requirement for the Reserve;

(11) Any regulations, in addition to the conservation measures and Reserve

Preservation Areas established under this order, that the Secretary determines

are necessary to manage the Reserve in accordance with this order; and

(12) Coordination of all relevant activities with the process to designate

the Reserve as a National Marine Sanctuary, as provided under paragraph

(f) of this section.

(c) Conservation Measures. The Reserve Operations Plan shall also include

the conservation measures in section 7 of this order and the Reserve Preservation Areas in section 8 of this order.

(d) Memorandum of Agreement. To further paragraph (b)(1) of this section,

and subject to section 10(b) of this order, and in particular to promote

coordinated management of the entirety of the shallow areas of the coral

reef ecosystem throughout the Northwestern Hawaiian Islands, the Secretary

shall work with the Secretary of the Interior and Governor of the State

of Hawaii to enter into one or more memoranda of agreement for the coordinated conservation and management of the Reserve, Midway Atoll and Hawaiian Islands National Wildlife Refuges, and State of Hawaii submerged

lands and waters within the Northwestern Hawaiian Islands.

(e) National Marine Sanctuary. The Secretary shall initiate the process

to designate the Reserve as a national marine sanctuary pursuant to sections

303 and 304 of the National Marine Sanctuaries Act (16 U.S.C. 1433, 1434).

In doing so the Secretary shall supplement or complement the existing

Reserve. The Secretary shall, in consultation with the Governor of the State

of Hawaii, determine whether State submerged lands and waters should

be included as part of the sanctuary. In designating and managing the

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sanctuary, the Secretary shall consider the advice and recommendations

of the Reserve Council established pursuant to paragraph (f) of this section.

(f) Council. After considering input from the Secretary of the Interior

and Governor of the State of Hawaii, the Secretary shall establish a Coral

Reef Ecosystem Reserve Council pursuant to section 315 of the National

Marine Sanctuaries Act (16 U.S.C. 1445a) to provide advice and recommendations on the Reserve Operations Plan and designation and management

of any sanctuary. The Council shall include:

(1) Three Native Hawaiian representatives, including one Native Hawaiian

elder, with experience or knowledge regarding Native Hawaiian subsistence,

cultural, religious, or other activities in the Northwestern Hawaiian Islands.

(2) Three representatives from the non-Federal science community with

experience specific to the Northwestern Hawaiian Islands and with expertise

in at least one of the following areas:

(A) Marine mammal science.

(B) Coral reef ecology.

(C) Native marine flora and fauna of the Hawaiian Islands.

(D) Oceanography.

(E) Any other scientific discipline the Secretary determines to be appropriate.

(3) Three representatives from nongovernmental wildlife/marine life, environmental, and/or conservation organizations.

(4) One representative from the commercial fishing industry that conducts

activities in the Northwestern Hawaiian Islands.

(5) One representative from the recreational fishing industry that conducts

activities in the Northwestern Hawaiian Islands.

(6) One representative from the ocean-related tourism industry.

(7) One representative from the non-Federal community with experience

in education and outreach regarding marine conservation issues.

(8) One citizen-at-large representative.

(9) One representative from the State of Hawaii as appointed by the Governor.

(10) One representative each, as nonvoting, ex officio members, from the

Department of the Interior, United States Coast Guard, Department of Defense,

Department of State, the National Marine Fisheries Service, the Hawaiian

Islands Humpback Whale National Marine Sanctuary, National Science Foundation, Marine Mammal Commission, and Western Pacific Regional Fishery

Management Council.

(g) Report. The Secretary shall provide a progress report on the implementation of this order to the Chair of the Council on Environmental Quality

within 1 year from the date of this order.

Sec. 6. Area of the Reserve. The Reserve includes the waters and submerged

lands of the Northwestern Hawaiian Islands as follows:

(a) The seaward boundary of the Reserve is 50nm from the approximate

center geographical positions of Nihoa Island, Necker Island, French Frigate

Shoals, Gardner Pinnacles, Maro Reef, Laysan Island, Lisianski Island, Pearl

and Hermes Reef, Midway Atoll, and Kure Island. Where the areas are

not contiguous, parallel lines drawn tangent to and connecting those semicircles of the 50nm areas that lie around such areas shall delimit the remainder of the Reserve.

(b) The inland boundary of the Reserve around each of the areas named

in subparagraph (a) of this section is the seaward boundary of Hawaii

State waters and submerged lands, and the seaward boundary of the Midway

Atoll National Wildlife Refuge, as appropriate.

(c) The Reserve boundary is generally depicted on the map attached to

this order. The Secretary, after consultation with the Governor of the State

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of Hawaii, may make technical modifications to the boundary of the Reserve,

including providing straight-line boundaries for the Reserve for clarity and

ease of identification, as appropriate.

Sec. 7. Protection and Conservation Measures. The conservation measures

in this section apply throughout the Reserve.

(a) (1) Commercial Fishing. All currently existing commercial Federal

fishing permits and current levels of fishing effort and take, as determined

by the Secretary and pursuant to regulations in effect on the date of this

order, shall be capped as follows:

(A) No commercial fishing may occur in Reserve Preservation Areas pursuant

to section 8 of this order;

(B) There shall be no increase in the number of permits of any particular

type of fishing (such as for bottomfishing) beyond the number of permits

of that type in effect the year preceding the date of this order;

(C) The annual level of aggregate take under all permits of any particular

type of fishing may not exceed the aggregate level of take under all permits

of that type of fishing in the years preceding the date of this order, as

determined by the Secretary, provided that the Secretary shall equitably

divide the aggregate level into individual levels per permit, and further

provided that the Secretary may make a one-time reasonable increase to

the total aggregate to allow for the use of two Native Hawaiian bottomfishing

permits;

(D) There shall be no permits issued for any particular type of fishing

for which there were no permits issued in the year preceding the date

of this order; and

(E) The type of fishing gear used by any permit holder may not be changed

except with the permission of the Secretary, as provided under paragraph

3 of this section.

(2) Recreational Fishing. All currently existing (preceding the date of

this order) levels of recreational fishing effort, as determined by the Secretary

and pursuant to regulations in effect on the day of this order, shall be

capped (i.e., no increase of take levels or levels of fishing effort, species

targeted, or change in gear types) throughout the Reserve. However, fishing

is further restricted as provided in section 8 of this order.

(3) The Secretary, after consultation with the Secretary of the Interior

and Governor of the State of Hawaii, and after public review and comment

and consideration of any advice or recommendations of the Reserve Council

and Western Pacific Regional Fishery Management Council, may further

restrict the fishing activities under subparagraphs (a)(1) and (a)(2) of this

section if necessary to protect Reserve resources, or may authorize or require

alternate gear types if such gear would offer equal or greater protection

for Reserve resources.

(b) In addition to the conservation measures in paragraph (a) of this

section, the following activities are prohibited throughout the Reserve:

(1) Exploring for, developing, or producing oil, gas, or minerals;

(2) Having a vessel anchored on any living or dead coral with an anchor,

an anchor chain, or an anchor rope when visibility is such that the seabed

can be seen;

(3) Drilling into, dredging, or otherwise altering the seabed; or constructing,

placing, or abandoning any structure, material, or other matter on the seabed,

except as an incidental result of anchoring vessels;

(4) Discharging or depositing any material or other matter into the Reserve,

or discharging or depositing any material or other matter outside the Reserve

that subsequently enters the Reserve and injures any resource of the Reserve,

except fish parts (i.e., chumming material or bait) used in and during authorized fishing operations, or discharges incidental to vessel use such as deck

wash, approved marine sanitation device effluent, cooling water, and engine

exhaust; and

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(5) Removal, moving, taking, harvesting, or damaging any living or nonliving

Reserve resources, except as provided under paragraph (a) of this section

and sections 8(a) and 9 of this order.

(c) The Secretary may conduct, or authorize by permit the activities listed

in subparagraphs (b)(3)-(5) of this section to the extent that they are necessary

for research, monitoring, education, or management activities that further

the Management Principles of section 4 of this order.

Sec. 8. Reserve Preservation Areas.

(a) To further protect Reserve resources, the following areas are hereby

established as Reserve Preservation Areas until some or all are made permanent after adequate public review and comment, within which all activities

referred to in paragraph (b) of this section are prohibited.

(1) From the seaward boundary of Hawaii State waters and submerged

lands to a mean depth of 100 fathoms (fm) around:

(A) Nihoa Island, provided that bottomfishing in accordance with the requirements of section 7(a)(1) of this order shall be allowed to continue seaward

of a mean depth of 10fm, unless and until the Secretary determines otherwise

after adequate public review and comment;

(B) Necker Island, provided that bottomfishing in accordance with the requirements of section 7(a)(1) of this order shall be allowed to continue

seaward of a mean depth of 20fm, unless and until the Secretary determines

otherwise after adequate public review and comment;

(C) French Frigate Shoals;

(D) Gardner Pinnacles, provided that bottomfishing in accordance with the

requirements of section 7(a)(1) of this order shall be allowed to continue

seaward of a mean depth of 10fm, unless and until the Secretary determines

otherwise after adequate public review and comment;

(E) Maro Reef, provided that bottomfishing in accordance with the requirements of section 7(a)(1) of this order shall be allowed to continue seaward

of a mean depth of 20fm, unless and until the Secretary determines otherwise

after adequate public review and comment;

(F) Laysan Island, provided that bottomfishing in accordance with the requirements of section 7(a)(1) of this order shall be allowed to continue seaward

of a mean depth of 50fm, unless and until the Secretary determines otherwise

after adequate public review and comment;

(G) Lisianski Island, provided that bottomfishing in accordance with the

requirements of section 7(a)(1) of this order shall be allowed to continue

seaward of a mean depth of 50fm, unless and until the Secretary determines

otherwise after adequate public review and comment;

(H) Pearl and Hermes Atoll; and

(I) Kure Island.

(2) Twelve nautical miles around the approximate geographical centers

of:

(A) The first bank immediately east of French Frigate Shoals;

(B) Southeast Brooks Bank, which is the first bank immediately west of

French Frigate Shoals, provided that the closure area shall not be closer

than approximately 3nm of the next bank immediately west;

(C) St. Rogatien Bank, provided that the closure area shall not be closer

than approximately 3nm of the next bank immediately east, provided further

that bottomfishing in accordance with the requirements of section 7(a)(1)

of this order shall be allowed to continue, unless and until the Secretary

determines otherwise after adequate public review and comment;

(D) The first bank west of St. Rogatien Bank, east of Gardner Pinnacles;

(E) Raita Bank; and

(F) Pioneer Bank, provided that bottomfishing in accordance with the requirements of section 7(a)(1) of this order shall be allowed to continue, unless

Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Presidential Documents 76909

and until the Secretary determines otherwise after adequate public review

and comment.

(b) Activities Prohibited Within Reserve Preservation Areas.

(1) In addition to the conservation measures in section 7 of this order,

which are applicable to the entire Reserve, the following activities are prohibited within the Reserve Preservation Areas listed in paragraph (a) of this

section, except as expressly otherwise stated in this paragraph and sections

(8)(a) and 9 of this order:

(A) Commercial and recreational fishing;

(B) Anchoring in any area that contains available mooring buoys, or anchoring

outside an available anchoring area when such area has been designated

by the Secretary;

(C) Any type of touching or taking of living or dead coral;

(D) Discharging or depositing any material or other matter except cooling

water or engine exhaust; and

(E) Such other activities that the Secretary identifies after adequate public

review and comment, and after consideration of any advice and recommendations of the Reserve Council.

(2) Notwithstanding the prohibitions in this paragraph, the Secretary may

conduct, or authorize by permit, research, monitoring, education, or management activities within any Reserve Preservation Area that further the Management Principles of section 4 of this order.

(3) The Reserve Preservation Areas in this section are approximated using

fathoms. The Secretary will develop straight line boundaries based on longitude and latitude coordinates to encompass each Reserve Preservation

Area, to provide for clarity and ease of identification. The Secretary may

make technical modifications to any such boundaries.

Sec. 9. Native Hawaiian Uses. Native Hawaiian noncommercial subsistence,

cultural, or religious uses may continue, to the extent consistent with existing

law, within the Reserve and Reserve Preservation Areas identified under

section 8 of this order. The Secretary shall work with Native Hawaiian

interests to identify those areas where such Native Hawaiian uses of the

Reserve’s resources may be conducted without injury to the Reserve’s coral

reef ecosystem and related marine resources and species, and may revise

the areas where such activities may occur after public review and comment,

and consideration of any advice and recommendations of the Reserve Council.

Sec. 10. National Wildlife Refuges.

(a) The Secretary of the Interior, in managing, through the U.S. Fish

and Wildlife Service the Hawaiian Islands and Midway Atoll National Wildlife Refuges pursuant to the National Wildlife Refuge System Administration

Act (16 U.S.C. 668dd-668ee) and other applicable laws, shall follow the

Management Principles of section 4 of this order, to the extent consistent

with applicable law.

(b) Wherever the Reserve overlaps the Hawaiian Islands National Wildlife

Refuge, the Reserve shall be managed to supplement and complement management of the Refuge to ensure coordinated conservation and management

of the Reserve and the Refuge, consistent with the purposes and policies

of the National Marine Sanctuaries Act, the National Marine Sanctuaries

Amendments Act of 2000, and this order, and the authorities of the U.S.

Fish and Wildlife Service under the National Wildlife Refuge System Administration Act (16 U.S.C. 668dd-668ee) and other laws with respect to management of the Refuge. Nothing in this order shall enlarge or diminish the

jurisdiction or authority of the Secretary or Secretary of the Interior in

managing the Reserve or Refuge, respectively.

(c) The Secretary of the Interior, through the U.S. Fish and Wildlife

Service, shall coordinate with the Secretary and the Governor of the State

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of Hawaii, as provided under section 5(b) of this order, to ensure coordinated

protection and management among the Reserve, Refuges, and State, consistent

with relevant authorities.

Sec. 11. Administration and Judicial Review.

(a) International Law. Management of the Reserve and any regulations

issued pursuant thereto and all other provisions of this order shall be applied

consistently with the 1983 Presidential Proclamation on the Exclusive Economic Zone, the 1988 Presidential Proclamation on the Territorial Sea, and

the 1999 Presidential Proclamation on Contiguous Zone and in accordance

with generally recognized principles of international law, and with the treaties, conventions, and other agreements to which the United States is a

party. The Secretary shall consult with the Department of State in implementing this order.

(b) Agency Responsibilities. All Federal agencies whose actions may affect

the Reserve and any National Marine Sanctuary established by the Secretary

pursuant to this order shall carry out such actions in accordance with

applicable laws, regulations and Executive Orders, including Executive Orders 13089 of June 11, 1998, and 13158 of May 26, 2000.

(c) National Security and Emergency Actions. Consistent with applicable

law, nothing in this order is intended to apply to military activities (including

those carried out by the United States Coast Guard), including military

exercises, conducted within or in the vicinity of the Reserve, consistent

with the requirements of Executive Orders 13089 of June 11, 1998, and

13158 of May 26, 2000. Further, nothing in this order is intended to restrict

the Department of Defense from conducting activities necessary during time

of war or national emergency, or when necessary for reasons of national

security as determined by the Secretary of Defense, consistent with applicable

law. In addition, consistent with applicable law, nothing in this order shall

limit agency actions to respond to emergencies posing an unacceptable threat

to human health or safety or to the marine environment and admitting

of no other feasible solution.

(d) United States Coast Guard. Nothing in this order is intended to limit

the authority of the United States Coast Guard to enforce any Federal law,

or install or maintain aids to navigation.

(e) Funding. This order shall be carried out subject to the availability

of appropriated funds and to the extent permitted by law.

(f) Territorial Waters. Nothing in this order shall enlarge or diminish

the jurisdiction or authority of the State of Hawaii or the United States

over submerged or other lands within the territorial waters off the coast

of Hawaii.

(g) Judicial Review. This order does not create any right or benefit, substantive or procedural, enforceable in law or equity by a party against

THE WHITE HOUSE,

December 4, 2000.

the United States, its agencies, its officers, or any person.

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[FR Doc. 00–31313

Filed 12–6–00; 8:45 am]

Billing code 3195–01–P