§ 6401. — Purposes.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC6401]
TITLE 16--CONSERVATION
CHAPTER 83--CORAL REEF CONSERVATION
Sec. 6401. Purposes
The purposes of this chapter are--
(1) to preserve, sustain, and restore the condition of coral
reef ecosystems;
(2) to promote the wise management and sustainable use of coral
reef ecosystems to benefit local communities and the Nation;
(3) to develop sound scientific information on the condition of
coral reef ecosystems and the threats to such ecosystems;
(4) to assist in the preservation of coral reefs by supporting
conservation programs, including projects that involve affected
local communities and nongovernmental organizations;
(5) to provide financial resources for those programs and
projects; and
(6) to establish a formal mechanism for collecting and
allocating monetary donations from the private sector to be used for
coral reef conservation projects.
(Pub. L. 106-562, title II, Sec. 202, Dec. 23, 2000, 114 Stat. 2800.)
Short Title
Pub. L. 106-562, title II, Sec. 201, Dec. 23, 2000, 114 Stat. 2800,
provided that: ``This title [enacting this chapter] may be cited as the
`Coral Reef Conservation Act of 2000'.''
Northwestern Hawaiian Islands Coral Reef Reserve
Pub. L. 106-554, Sec. 1(a)(4) [div. B, title I, Sec. 144(f)], Dec.
21, 2000, 114 Stat. 2763, 2763A-249, provided that:
``(1) The President, after consultation with the Governor of the
State of Hawaii, may designate any Northwestern Hawaiian Islands coral
reef or coral reef ecosystem as a coral reef reserve to be managed by
the Secretary of Commerce.
``(2) Upon the designation of a reserve under paragraph (1) by the
President, the Secretary shall--
``(A) take action to initiate the designation of the reserve as
a National Marine Sanctuary under sections 303 and 304 of the
National Marine Sanctuaries Act (16 U.S.C. 1433[, 1434]);
``(B) establish a Northwestern Hawaiian Islands Reserve Advisory
Council under section 315 of that Act (16 U.S.C. 1445a), the
membership of which shall include at least one representative from
Native Hawaiian groups; and
``(C) until the reserve is designated as a National Marine
Sanctuary, manage the reserve in a manner consistent with the
purposes and policies of that Act [16 U.S.C. 1431 et seq.].
``(3) Notwithstanding any other provision of law, no closure areas
around the Northwestern Hawaiian Islands shall become permanent without
adequate review and comment.
``(4) The Secretary shall work with other Federal agencies and the
Director of the National Science Foundation, to develop a coordinated
plan to make vessels and other resources available for conservation or
research activities for the reserve.
``(5) If the Secretary has not designated a national marine
sanctuary in the Northwestern Hawaiian Islands under sections 303 and
304 of the National Marine Sanctuaries Act (16 U.S.C. 1433, 1434) before
October 1, 2005, the Secretary shall conduct a review of the management
of the reserve under section 304(e) of that Act (16 U.S.C. 1434(e)).
``(6) No later than 6 months after the date of enactment of this Act
[Dec. 21, 2000], the Secretary shall submit a report to the Senate
Committee on Commerce, Science, and Transportation and the House of
Representatives Committee on Resources, describing actions taken to
implement this subsection, including costs of monitoring, enforcing, and
addressing marine debris, and the extent to which the fiscal or other
resources necessary to carry out this subsection are reflected in the
Budget of the United States Government submitted by the President under
section 1104 of title 31, United States Code.
``(7) There are authorized to be appropriated to the Secretary of
Commerce to carry out the provisions of this subsection such sums, not
exceeding $4,000,000 for each of fiscal years 2001, 2002, 2003, 2004,
and 2005, as are reported under paragraph (5) [(6)] to be reflected in
the Budget of the United States Government.''
Substantially identical provisions were contained in Pub. L. 106-
513, Sec. 6(g), Dec. 21, 2000, 114 Stat. 2385.
Ex. Ord. No. 13089. Coral Reef Protection
Ex. Ord. No. 13089, June 11, 1998, 63 F.R. 32701, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America and in furtherance of the
purposes of the Clean Water Act of 1977, as amended (33 U.S.C. 1251, et
seq.) [see Short title of 1977 Amendment note, set out under section
1451 of this title], Coastal Zone Management Act [of 1972] (16 U.S.C.
1451, et seq.), Magnuson-Stevens Fishery Conservation and Management Act
(16 U.S.C. 1801, et seq.), National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321, et seq.), National Marine Sanctuaries Act, (16
U.S.C. 1431, et seq.), National Park Service Organic Act (16 U.S.C. 1,
et seq.), National Wildlife Refuge System Administration Act (16 U.S.C.
668dd-ee) [16 U.S.C. 668dd-668ee], and other pertinent statutes, to
preserve and protect the biodiversity, health, heritage, and social and
economic value of U.S. coral reef ecosystems and the marine environment,
it is hereby ordered as follows:
Section 1. Definitions. (a) ``U.S. coral reef ecosystems'' means
those species, habitats, and other natural resources associated with
coral reefs in all maritime areas and zones subject to the jurisdiction
or control of the United States (e.g., Federal, State, territorial, or
commonwealth waters), including reef systems in the south Atlantic,
Caribbean, Gulf of Mexico, and Pacific Ocean. (b) ``U.S. Coral Reef
Initiative'' is an existing partnership between Federal agencies and
State, territorial, commonwealth, and local governments, nongovernmental
organizations, and commercial interests to design and implement
additional management, education, monitoring, research, and restoration
efforts to conserve coral reef ecosystems for the use and enjoyment of
future generations. The existing U.S. Islands Coral Reef Initiative
strategy covers approximately 95 percent of U.S. coral reef ecosystems
and is a key element of the overall U.S. Coral Reef Initiative. (c)
``International Coral Reef Initiative'' is an existing partnership,
founded by the United States in 1994, of governments, intergovernmental
organizations, multilateral development banks, nongovernmental
organizations, scientists, and the private sector whose purpose is to
mobilize governments and other interested parties whose coordinated,
vigorous, and effective actions are required to address the threats to
the world's coral reefs.
Sec. 2. Policy. (a) All Federal agencies whose actions may affect
U.S. coral reef ecosystems shall: (a) identify their actions that may
affect U.S. coral reef ecosystems; (b) utilize their programs and
authorities to protect and enhance the conditions of such ecosystems;
and (c) to the extent permitted by law, ensure that any actions they
authorize, fund, or carry out will not degrade the conditions of such
ecosystems.
(b) Exceptions to this section may be allowed under terms prescribed
by the heads of Federal agencies:
(1) during time of war or national emergency;
(2) when necessary for reasons of national security, as determined
by the President;
(3) during emergencies posing an unacceptable threat to human health
or safety or to the marine environment and admitting of no other
feasible solution; or
(4) in any case that constitutes a danger to human life or a real
threat to vessels, aircraft, platforms, or other man-made structures at
sea, such as cases of force majeure caused by stress of weather or other
act of God.
Sec. 3. Federal Agency Responsibilities. In furtherance of section 2
of this order, Federal agencies whose actions affect U.S. coral reef
ecosystems, shall, subject to the availability of appropriations,
provide for implementation of measures needed to research, monitor,
manage, and restore affected ecosystems, including, but not limited to,
measures reducing impacts from pollution, sedimentation, and fishing. To
the extent not inconsistent with statutory responsibilities and
procedures, these measures shall be developed in cooperation with the
U.S. Coral Reef Task Force and fishery management councils and in
consultation with affected States, territorial, commonwealth, tribal,
and local government agencies, nongovernmental organizations, the
scientific community, and commercial interests.
Sec. 4. U.S. Coral Reef Task Force. The Secretary of the Interior
and the Secretary of Commerce, through the Administrator of the National
Oceanic and Atmospheric Administration, shall co-chair a U.S. Coral Reef
Task Force (``Task Force''), whose members shall include, but not be
limited to, the Administrator of the Environmental Protection Agency,
the Attorney General, the Secretary of the Interior, the Secretary of
Agriculture, the Secretary of Commerce, the Secretary of Defense, the
Secretary of State, the Secretary of Transportation, the Director of the
National Science Foundation, the Administrator of the Agency for
International Development, and the Administrator of the National
Aeronautics and Space Administration. The Task Force shall oversee
implementation of the policy and Federal agency responsibilities set
forth in this order, and shall guide and support activities under the
U.S. Coral Reef Initiative (``CRI''). All Federal agencies whose actions
may affect U.S. coral reef ecosystems shall review their participation
in the CRI and the strategies developed under it, including strategies
and plans of State, territorial, commonwealth, and local governments,
and, to the extent feasible, shall enhance Federal participation and
support of such strategies and plans. The Task Force shall work in
cooperation with State, territorial, commonwealth, and local government
agencies, nongovernmental organizations, the scientific community, and
commercial interests.
Sec. 5. Duties of the U.S. Coral Reef Task Force. (a) Coral Reef
Mapping and Monitoring. The Task Force, in cooperation with State,
territory, commonwealth, and local government partners, shall coordinate
a comprehensive program to map and monitor U.S. coral reefs. Such
programs shall include, but not be limited to, territories and
commonwealths, special marine protected areas such as National Marine
Sanctuaries, National Estuarine Research Reserves, National Parks,
National Wildlife Refuges, and other entities having significant coral
reef resources. To the extent feasible, remote sensing capabilities
shall be developed and applied to this program and local communities
should be engaged in the design and conduct of programs.
(b) Research. The Task Force shall develop and implement, with the
scientific community, research aimed at identifying the major causes and
consequences of degradation of coral reef ecosystems. This research
shall include fundamental scientific research to provide a sound
framework for the restoration and conservation of coral reef ecosystems
worldwide. To the extent feasible, existing and planned environmental
monitoring and mapping programs should be linked with scientific
research activities. This Executive order shall not interfere with the
normal conduct of scientific studies on coral reef ecosystems.
(c) Conservation, Mitigation, and Restoration. The Task Force, in
cooperation with State, territorial, commonwealth, and local government
agencies, nongovernmental organizations, the scientific community and
commercial interests, shall develop, recommend, and seek or secure
implementation of measures necessary to reduce and mitigate coral reef
ecosystem degradation and to restore damaged coral reefs. These measures
shall include solutions to problems such as land-based sources of water
pollution, sedimentation, detrimental alteration of salinity or
temperature, over-fishing, over-use, collection of coral reef species,
and direct destruction caused by activities such as recreational and
commercial vessel traffic and treasure salvage. In developing these
measures, the Task Force shall review existing legislation to determine
whether additional legislation is necessary to complement the policy
objectives of this order and shall recommend such legislation if
appropriate. The Task Force shall further evaluate existing navigational
aids, including charts, maps, day markers, and beacons to determine if
the designation of the location of specific coral reefs should be
enhanced through the use, revision, or improvement of such aids.
(d) International Cooperation. The Secretary of State and the
Administrator of the Agency for International Development, in
cooperation with other members of the Coral Reef Task Force and drawing
upon their expertise, shall assess the U.S. role in international trade
and protection of coral reef species and implement appropriate
strategies and actions to promote conservation and sustainable use of
coral reef resources worldwide. Such actions shall include expanded
collaboration with other International Coral Reef Initiative (``ICRI'')
partners, especially governments, to implement the ICRI through its
Framework for Action and the Global Coral Reef Monitoring Network at
regional, national, and local levels.
Sec. 6. This order does not create any right or benefit, substantive
or procedural, enforceable in law or equity by a party against the
United States, its agencies, its officers, or any person.
William J. Clinton.
Ex. Ord. No. 13178. Northwestern Hawaiian Islands Coral Reef Ecosystem
Reserve
Ex. Ord. No. 13178, Dec. 4, 2000, 65 F.R. 76903, as amended by Ex.
Ord. No. 13196, Secs. 3, 4, Jan. 18, 2001, 66 F.R. 7395, 7396, provided:
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 [see Short Title
of 2000 Amendment note set out under section 1431 of this title], 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 [of 1972] (33 U.S.C. 1401 et seq. [16
U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801 et
seq.]), Coastal Zone Management Act (16 U.S.C. 1451 et seq.), Endangered
Species Act [of 1973] (16 U.S.C. 1531 et seq.), Marine Mammal Protection
Act [of 1972] (16 U.S.C. 1362 [1361] 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.
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. 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 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 semi-circles 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 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, which
also includes the non-permitted level of trolling for pelagic species by
currently permitted bottom fishers, as determined by the Secretary and
pursuant to regulations in effect on December 4, 2000, 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 as follows:
(1) Bottomfishing--the annual aggregate level for each permitted
bottomfisher shall be that permittee's individual average taken over the
5 years preceding December 4, 2000, as determined by the Secretary,
provided that the Secretary, in furtherance of the principles of the
reserve, may make a one-time reasonable increase to the total aggregate
to allow for the use of two Native Hawaiian bottomfishing permits;
(2) All other commercial fishing--the annual aggregate level shall
be the permittee's individual take in the year preceding December 4,
2000, as determined by the Secretary.
(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.
(F) Trolling for pelagic species shall be capped based on reported
landings for the year preceding December 4, 2000.
(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:
(A) fish parts (i.e., chumming materia [sic] or bait) used in and
during fishing operations authorized under this order;
(B) biodegradable effluent incident to vessel use and generated by a
marine sanitation device in accordance with section 312 of the Federal
Water Pollution Control Act, as amended [33 U.S.C. 1322];
(C) water generated by routine vessel operations (e.g., deck wash
down and graywater as defined in section 312 of the Federal Water
Pollution Control Act), excluding oily wastes from bilge pumping; or
(D) cooling water from vessels or engine exhaust; and
(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 commercial bottomfishing and
commercial and recreational trolling for pelagic species in accordance
with the requirements of sections 7(a)(1) and 7(a)(2) of this order,
respectively, of this order [sic] shall be allowed to continue seaward
of a mean depth of 25 fm, unless and until the Secretary determines
otherwise after adequate public review and comment;
(B) Necker Island, provided that commercial bottomfishing and
commercial and recreational trolling for pelagic species in accordance
with the requirements of sections 7(a)(1) and 7(a)(2) of this order,
respectively, of this order [sic] shall be allowed to continue seaward
of a mean depth of 25 fm, unless and until the Secretary determines
otherwise after adequate public review and comment;
(C) French Frigate Shoals;
(D) Gardner Pinnacles, provided that commercial bottomfishing and
commercial and recreational trolling for pelagic species in accordance
with the requirements of sections 7(a)(1) and 7(a)(2) of this order,
respectively, of this order [sic] shall be allowed to continue seaward
of a mean depth of 25 fm, unless and until the Secretary determines
otherwise after adequate public review and comment;
(E) Maro Reef, provided that commercial bottomfishing and commercial
and recreational trolling for pelagic species in accordance with the
requirements of sections 7(a)(1) and 7(a)(2) of this order,
respectively, of this order [sic] shall be allowed to continue seaward
of a mean depth of 25 fm, unless and until the Secretary determines
otherwise after adequate public review and comment;
(F) Laysan Island, provided that commercial bottomfishing and
commercial and recreational trolling for pelagic species in accordance
with the requirements of sections 7(a)(1) and 7(a)(2) of this order,
respectively, of this order [sic] shall be allowed to continue seaward
of a mean depth of 50 fm, unless and until the Secretary determines
otherwise after adequate public review and comment;
(G) Lisianski Island, provided that commercial bottomfishing and
commercial and recreational trolling for pelagic species in accordance
with the requirements of sections 7(a)(1) and 7(a)(2) of this order,
respectively, of this order [sic] shall be allowed to continue seaward
of a mean depth of 25 fm, unless and until the Secretary determines
otherwise after adequate public review and comment;
(H) Pearl and Hermes Atoll; and
(I) Kure Atoll.
(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), (E) [Revoked. Ex. Ord. No. 13196, Sec. 4, Jan. 18, 2001, 66
F.R. 7396]
(F) Pioneer Bank, provided that commercial bottomfishing and
commercial and recreational trolling for pelagic species in accordance
with the requirements of sections 7(a)(1) and 7(a)(2) of this order,
respectively, of this order [sic] shall be allowed to continue, unless
and until the Secretary determines otherwise after adequate public
review and comment.
(3) Twelve nautical miles around the approximate geographical
centers of
(A) The first bank west of St. Rogation Bank, east of Gardner
Pinnacles, provided that commercial bottomfishing and commercial and
recreational trolling for pelagic species in accordance with the
requirements of sections 7(a)(1) and 7(a)(2) of this order, shall be
allowed to continue for a period of 5 years from the date of this order;
and
(B) Raita Bank, provided that commercial bottomfishing and
commercial and recreational trolling for pelagic species in accordance
with the requirements of sections 7(a)(1) and 7(a)(2) of this order,
shall be allowed to continue for a period of 5 years from the date of
this order; and
(C) Provided that both banks described above in (3)(A) and (3)(B)
shall only continue to allow commercial bottomfishing and commercial and
recreational trolling for pelagic species after the 5-year time period
if it is determined that continuation of such activities will have no
adverse impact on the resources of these banks.
(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 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 [Proc. No. 5030, 16 U.S.C. 1453 note], the 1988
Presidential Proclamation on the Territorial Sea [Proc. No. 5928, 43
U.S.C. 1331 note], and the 1999 Presidential Proclamation on Contiguous
Zone [Proc. No. 7219, 43 U.S.C. 1331 note] 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 [set out above], and
13158 of May 26, 2000 [16 U.S.C. 1431 note].
(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 United States, its agencies, its officers, or any
person.
William J. Clinton.
Ex. Ord. No. 13196. Final Northwestern Hawaiian Islands Coral Reef
Ecosystem Reserve
Ex. Ord. No. 13196, Jan. 18, 2001, 66 F.R. 7395, provided:
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 [see Short Title
of 2000 Amendment note set out under section 1431 of this title], 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 [of 1972] (33 U.S.C. 1401 et seq. [16
U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801 et
seq.]), Coastal Zone Management Act (16 U.S.C. 1451 et seq.), Endangered
Species Act [of 1973] (16 U.S.C. 1531 et seq.), Marine Mammal Protection
Act [of 1972] (16 U.S.C. 1362 [1361] 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-e.e. [16 U.S.C. 668dd-668ee]), and other pertinent statutes, it is
ordered as follows:
Sec. 1. Preamble. On December 4, 2000, I issued Executive Order
13178 [set out above] establishing the Northwestern Hawaiian Islands
Coral Reef Ecosystem Reserve (Reserve) pursuant to my authority under
the National Marine Sanctuaries Act, as amended by the National Marine
Sanctuary Amendments Act of 2000 (Act). In establishing the Reserve, I
set forth a number of conservation measures and created specific Reserve
Preservation Areas to protect the coral reef ecosystem and related
marine resources and species (resources) of the Reserve. The Act
provides that no closure areas can become permanent without adequate
notice and comment. Accordingly, I proposed to make permanent the
Reserve Preservation Areas and initiated a 30-day comment period on this
proposal. I also sought comment on the conservation measures for the
Reserve. On my behalf, the Secretary of Commerce received the public
comments and held seven public hearings, including six throughout
Hawaii. After considering the comments expressed at the hearings and
received in writing, I have determined to make permanent the Reserve
Preservation Areas with certain modifications set forth below. Further,
I have modified certain conservation measures to address concerns
raised, particularly regarding commercial and recreational fishing
within the Reserve. With this action, the establishment of the Reserve
under the Act, including the conservation measures and permanent Reserve
Preservation Areas, is complete. The Secretary of Commerce will manage
the Reserve pursuant to Executive Order 13178, as modified by this
order, under the Act. The Secretary shall also initiate the process to
designate the Reserve as a National Marine Sanctuary, as required by the
Act.
Sec. 2. Purpose. The purpose of this order is to amend Executive
Order 13178 [set out above], and to make permanent Reserve Preservation
Areas, as modified below, to ensure the comprehensive, strong, and
lasting protection of the resources of the Northwestern Hawaiian
Islands.
[Secs. 3, 4. Amended Ex. Ord. No. 13178, set out above.]
Sec. 5. Reserve Preservation Areas. The Reserve Preservation Areas,
as modified in sections 3 and 4 of this order, are hereby made permanent
in accordance with the Act.
Sec. 6. Judicial Review. This order does not create any right or
benefit, substantive or procedural, enforceable in law or equity by a
party against the United States, its agencies, its officers, or any
person.
William J. Clinton.
