Proclamation 8031—Establishment of the Northwestern Hawaiian Islands Marine National Monument

By the President of the United States of America

A Proclamation

In the Pacific Ocean northwest of the principal islands of Hawaii lies an approximately 1,200 nautical mile stretch of coral islands, seamounts, banks, and shoals. The area, including the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, the Midway National Wildlife Refuge, the Hawaiian Islands National Wildlife Refuge, and the Battle of Midway National Memorial, supports a dynamic reef ecosystem with more than 7,000 marine species, of which approximately half are unique to the Hawaiian Island chain. This 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 and a connection to early Polynesian culture worthy of protection and understanding.

Whereas Executive Order 13089 of June 11, 1998, Executive Order 13178 of December 4, 2000, and Executive Order 13196 of January 18, 2001, as well as the process for designation of a National Marine Sanctuary undertaken by the Secretary of Commerce, have identified objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States in the area of the Northwestern Hawaiian Islands;

Whereas section 2 of the Act of June 8, 1906 (34 Stat. 225, 16 U.S.C. 431) (the "Antiquities Act") authorizes the President, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon lands owned or controlled by the Government of the United States to be national monuments, and to reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected;

Whereas it would be in the public interest to 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,

Now, Therefore, I, George W. Bush, President of the United States of America, by the authority vested in me by section 2 of the Act of June 8, 1906 (34 Stat. 225, 16 U.S.C. 431), do proclaim that there are hereby set apart and reserved as the Northwestern Hawaiian Islands Marine National Monument (the "monument" or "national monument") for the purpose of protecting the objects described above, all lands and interests in lands owned or controlled by the Government of the United States within the boundaries described on the accompanying map entitled "Northwestern Hawaiian Islands Marine National Monument" attached to and forming a part of this proclamation. The Federal land and interests in land reserved includes approximately 139,793 square miles of emergent and submerged lands and waters of the Northwestern Hawaiian Islands, which is the smallest area compatible with the proper care and management of the objects to be protected.

All Federal lands and interests in lands within the boundaries of this monument are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, or leasing or other disposition under the public land laws, including, but not limited to, withdrawal from location, entry, and patent under mining laws, and from disposition under all laws relating to mineral and geothermal leasing.

The Secretary of Commerce, through the National Oceanic and Atmospheric Administration (NOAA), will have primary responsibility regarding management of the marine areas, in consultation with the Secretary of the Interior. The Secretary of the Interior, through the Fish and Wildlife Service (FWS), will have sole responsibility for management of the areas of the monument that overlay the Midway Atoll National Wildlife Refuge, the Battle of Midway National Memorial, and the Hawaiian Islands National Wildlife Refuge, in consultation with the Secretary of Commerce.

The Secretary of Commerce and the Secretary of the Interior (collectively, the "Secretaries") shall review and, as appropriate, modify the interagency agreement developed for coordinated management of the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, signed on May 19, 2006. To manage the monument, the Secretary of Commerce, in consultation with the Secretary of the Interior and the State of Hawaii, shall modify, as appropriate, the plan developed by NOAA's National Marine Sanctuary Program through the public sanctuary designation process, and will provide for public review of that plan. To the extent authorized by law, the Secretaries, acting through the FWS and NOAA, shall promulgate any additional regulations needed for the proper care and management of the objects identified above.

The Secretary of State, in consultation with the Secretaries, shall take appropriate action to enter into negotiations with other governments to make necessary arrangements for the protection of the monument and to promote the purposes for which the monument is established. The Secretary of State, in consultation with the Secretaries, shall seek the cooperation of other governments and international organizations in furtherance of the purposes of this proclamation and consistent with applicable regional and multilateral arrangements for the protection and management of special marine areas. Furthermore, this proclamation shall be applied in accordance with international law. No restrictions shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States (including foreign flag vessels) unless in accordance with international law.

Nothing in this proclamation shall be deemed to diminish or enlarge the jurisdiction of the State of Hawaii.

The establishment of this monument is subject to valid existing rights and use of the monument shall be administered as follows:

Access to the Monument

The Secretaries shall prohibit entering the monument except pursuant to permission granted by the Secretaries or their designees. Any person passing through the monument without interruption must notify an official designated by the Secretaries at least 72 hours, but no longer than 1 month, prior to the entry date. Notification of departure from the monument must be provided within 12 hours of leaving. A person providing notice must provide the following information, as applicable: (i) position when making report; (ii) vessel name and International Maritime Organization identification number; (iii) name, address, and telephone number of owner and operator; (iv) United States Coast Guard (USCG) documentation, State license, or registration number; (v) home port; (vi) intended and actual route through the monument; (vii) general categories of any hazardous cargo on board; and (viii) length of vessel and propulsion type (e.g., motor or sail).

Vessel Monitoring Systems

1. As soon as possible but not later than 30 days following the issuance of this proclamation, NOAA shall publish in the Federal Register a list of approved transmitting units and associated communications service providers for purposes of this proclamation. An owner or operator of a vessel that has been issued a permit for accessing the monument must ensure that such a vessel has an operating vessel monitoring system (VMS) on board, approved by the Office of Legal Enforcement in the National Oceanic and Atmospheric Administration in the Department of Commerce (OLE) when voyaging within the monument. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and OLE as provided by an OLE-approved communication service provider.

2. Only a VMS that has been approved by OLE may be used. When installing and activating the OLE-approved VMS, or when reinstalling and reactivating such VMS, the vessel owner or operator must:

a. Follow procedures indicated on an installation and activation checklist, which is available from OLE; and

b. Submit to OLE a statement certifying compliance with the checklist, as prescribed on the checklist.

3. No person may interfere with, tamper with, alter, damage, disable, or impede the operation of the VMS, or attempt any of the same.

4. When a vessel's VMS is not operating properly, the owner or operator must immediately contact OLE, and follow instructions from that office. If notified by OLE that a vessel's VMS is not operating properly, the owner and operator must follow instructions from that office. In either event, such instructions may include, but are not limited to, manually communicating to a location designated by OLE the vessel's positions or returning to port until the VMS is operable.

5. As a condition of authorized access to the monument, a vessel owner or operator subject to the requirements for a VMS in this section must allow OLE, the USCG, and their authorized officers and designees access to the vessels position data obtained from the VMS. Consistent with applicable law, including the limitations on access to, and use, of VMS data collected under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), the Secretaries may have access to, and use of, collected data for scientific, statistical, and management purposes.

6. OLE has authority over the installation and operation of the VMS unit. OLE may authorize the connection or order the disconnection of additional equipment, including a computer, to any VMS unit, when deemed appropriate by OLE.

7. The Secretaries shall prohibit any person from conducting or causing to be conducted:

a. Operating any vessel without an approved transmitting device within the monument area 45 days after the publication of the list of approved transmitting devices described in paragraph (1) above;

b. Failing to install, activate, repair, or replace a mobile transceiver unit prior to leaving port;

c. Failing to operate and maintain a mobile transceiver unit on board the vessel at all times;

d. Tampering with, damaging, destroying, altering, or in any way distorting, rendering useless, inoperative, ineffective, or inaccurate the VMS, mobile transceiver unit, or VMS signal required to be installed on or transmitted by a vessel;

e. Failing to contact OLE or follow OLE instructions when automatic position reporting has been interrupted;

f. Registering a VMS or mobile transceiver unit registered to more than one vessel at the same time;

g. Connecting or leaving connected additional equipment to a VMS unit or mobile transceiver unit without the prior approval of OLE;

h. Making a false statement, oral or written, to an authorized officer regarding the installation, use, operation, or maintenance of a VMS unit or mobile transceiver unit or communication service provider.

Restrictions

Prohibited Activities

The Secretaries shall prohibit persons from conducting or causing to be conducted the following activities:

1. Exploring for, developing, or producing oil, gas, or minerals within the monument;

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

3. Introducing or otherwise releasing an introduced species from within or into the monument; and

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

Regulated Activities

Except as otherwise provided in this proclamation, the Secretaries shall prohibit any person from conducting or causing to be conducted within the monument the following activities:

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

2. Drilling into, dredging, or otherwise altering the submerged lands other than by anchoring a vessel; or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands;

3. Anchoring a vessel;

4. Deserting a vessel aground, at anchor, or adrift;

5. Discharging or depositing any material or other matter into Special Preservation Areas or the Midway Atoll Special Management Area except vessel engine cooling water, weather deck runoff, and vessel engine exhaust;

6. Discharging or depositing any material or other matter into the monument, or discharging or depositing any material or other matter outside of the monument that subsequently enters the monument and injures any resources of the monument, except fish parts (i.e., chumming material or bait) used in and during authorized fishing operations, or discharges incidental to vessel use such as deck wash, approved marine sanitation device effluent, cooling water, and engine exhaust;

7. Touching coral, living or dead;

8. Possessing fishing gear except when stowed and not available for immediate use during passage without interruption through the monument;

9. Swimming, snorkeling, or closed or open circuit SCUBA diving within any Special Preservation Area or the Midway Atoll Special Management Area; and

10. Attracting any living monument resources.

Emergencies and Law Enforcement Activities

The prohibitions required by this proclamation shall not apply to activities necessary to respond to emergencies threatening life, property, or the environment, or to activities necessary for law enforcement purposes.

Armed Forces Actions

1. The prohibitions required by this proclamation shall not apply to activities and exercises of the Armed Forces (including those carried out by the United States Coast Guard) that are consistent with applicable laws.

2. Nothing in this proclamation 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.

3. All activities and exercises of the Armed Forces shall be carried out in a manner that avoids, to the extent practicable and consistent with operational requirements, adverse impacts on monument resources and qualities.

4. In the event of threatened or actual destruction of, loss of, or injury to a monument resource or quality resulting from an incident, including but not limited to spills and groundings, caused by a component of the Department of Defense or the USCG, the cognizant component shall promptly coordinate with the Secretaries for the purpose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the monument resource or quality.

Commercial Fishing

1. The Secretaries shall ensure that any commercial lobster fishing permit shall be subject to a zero annual harvest limit.

2. Fishing for bottomfish and pelagic species. The Secretaries shall ensure that:

a. Commercial fishing for bottomfish and associated pelagic species may continue within the monument for not longer than 5 years from the date of this proclamation provided that:

(i) The fishing is conducted in accordance with a valid commercial bottomfish permit issued by NOAA; and

(ii) Such permit is in effect on the date of this proclamation and is subsequently renewed pursuant to NOAA regulations at 50 CFR part 660 subpart E as necessary.

b. Total landings for each fishing year may not exceed the following amounts:

(i) 350,000 pounds for bottomfish species; and

(ii) 180,000 pounds for pelagic species.

c. Commercial fishing for bottomfish and associated pelagic species is prohibited in the monument after 5 years from the date of this proclamation.

General Requirements

The Secretaries shall ensure that any commercial fishing within the monument is conducted in accordance with the following restrictions and conditions:

1. A valid permit or facsimile of a valid permit is on board the fishing vessel and is available for inspection by an authorized officer;

2. No attempt is made to falsify or fail to make, keep, maintain, or submit any logbook or logbook form or other required record or report;

3. Only gear specifically authorized by the relevant permit issued under the Magnuson-Stevens Fishery Conservation and Management Act is allowed to be in the possession of a person conducting commercial fishing under this section;

4. Any person conducting commercial fishing notifies the Secretaries by telephone, facsimile, or electronic mail at least 72 hours before entering the monument and within 12 hours after leaving the monument;

5. All fishing vessels must carry an activated and functioning VMS unit on board at all times whenever the vessel is in the monument;

6. All fishing vessels must carry an observer when requested to do so by the Secretaries; and

7. The activity does not take place within any Ecological Reserve, any Special Preservation Area, or the Midway Atoll Special Management Area.

Permitting Procedures and Criteria

Subject to such terms and conditions as the Secretaries deem appropriate, a person may conduct an activity regulated by this proclamation if such activity is specifically authorized by a permit. The Secretaries, in their discretion, may issue a permit under this proclamation if the Secretaries find that the activity: (i) is research designed to further understanding of monument resources and qualities; (ii) will further the educational value of the monument; (iii) will assist in the conservation and management of the monument; (iv) will allow Native Hawaiian practices; (v) will allow a special ocean use; or (vi) will allow recreational activities.

Findings

1. The Secretaries may not issue any permit unless the Secretaries find:

a. The activity can be conducted with adequate safeguards for the resources and ecological integrity of the monument;

b. The activity will be conducted in a manner compatible with the management direction of this proclamation, considering the extent to which the conduct of the activity may diminish or enhance monument resources, qualities, and ecological integrity, any indirect, secondary, or cumulative effects of the activity, and the duration of such effects;

c. There is no practicable alternative to conducting the activity within the monument;

d. The end value of the activity outweighs its adverse impacts on monument resources, qualities, and ecological integrity;

e. The duration of the activity is no longer than necessary to achieve its stated purpose;

f. The applicant is qualified to conduct and complete the activity and mitigate any potential impacts resulting from its conduct;

g. The applicant has adequate financial resources available to conduct and complete the activity and mitigate any potential impacts resulting from its conduct;

h. The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity's goals in relation to their impacts to monument resources, qualities, and ecological integrity;

i. The applicant's vessel has been outfitted with a mobile transceiver unit approved by OLE and complies with the requirements of this proclamation; and

j. There are no other factors that would make the issuance of a permit for the activity inappropriate.

2. Additional Findings for Native Hawaiian Practice Permits. In addition to the findings listed above, the Secretaries shall not issue a permit to allow Native Hawaiian practices unless the Secretaries find:

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

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

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

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

e. Any monument resource harvested from the monument will be consumed in the monument.

3. Additional Findings, Criteria, and Requirements for Special Ocean Use Permits

a. In addition to the findings listed above, the following requirements apply to the issuance of a permit for a special ocean use:

(i) Any permit for a special ocean use issued under this section:

(A) Shall authorize the conduct of an activity only if that activity is compatible with the purposes for which the monument is designated and with protection of monument resources;

(B) Shall not authorize the conduct of any activity for a period of more than 5 years unless renewed by the Secretaries;

(C) Shall require that activities carried out under the permit be conducted in a manner that does not destroy, cause the loss of, or injure monument resources; and

(D) Shall require the permittee to purchase and maintain comprehensive general liability insurance, or post an equivalent bond, against claims arising out of activities conducted under the permit and to agree to hold the United States harmless against such claims; and

(ii) Each person issued a permit for a special ocean use under this section shall submit an annual report to the Secretaries not later than December 31 of each year that describes activities conducted under that permit and revenues derived from such activities during the year.

b. The Secretaries may not issue a permit for a special ocean use unless they determine that the proposed activity will be consistent with the findings listed above for the issuance of any permit.

c. Categories of special ocean use being permitted for the first time under this section will be restricted in duration and permitted as a special ocean use pilot project. Subsequent permits for any category of special ocean use may be issued only if a special ocean use pilot project for that category has been determined by the Secretaries to meet the criteria in this proclamation and any terms and conditions placed on the permit for the pilot project.

d. The Secretaries shall provide public notice prior to requiring a special ocean use permit for any category of activity not previously identified as a special ocean use.

e. The following requirements apply to permits for a special ocean use for an activity within the Midway Atoll Special Management Area.

(i) The Secretaries may issue a permit for a special ocean use for activities within the Midway Atoll Special Management Area provided:

(A) The Secretaries find the activity furthers the conservation and management of the monument; and

(B) The Director of the United States Fish and Wildlife Service or his or her designee has determined that the activity is compatible with the purposes for which the Midway Atoll National Wildlife Refuge was designated.

(ii) As part of a permit, the Secretaries may allow vessels to transit the monument as necessary to enter the Midway Atoll Special Management Area.

f. The Secretaries may issue a permit for a special ocean use for activities outside the Midway Atoll Special Management Area provided:

(i) The Secretaries find the activity will directly benefit the conservation and management of the monument;

(ii) The Secretaries determine the purpose of the activity is for research or education related to the resources or qualities of the monument;

(iii)The Secretaries provide public notice of the application and an opportunity to provide comments at least 30 days prior to issuing the permit; and

(iv) The activity does not involve the use of a commercial passenger vessel.

4. Additional Findings for Recreation Permits. The Secretaries may issue a permit only for recreational activities to be conducted within the Midway Atoll Special Management Area. In addition to the general findings listed above for any permit, the Secretaries may not issue such permit unless the Secretaries find:

a. The activity is for the purpose of recreation as defined in regulation;

b. The activity is not associated with any for-hire operation; and

c. The activity does not involve any extractive use.

Sustenance Fishing

Sustenance fishing means fishing for bottomfish or pelagic species that are consumed within the monument, and is incidental to an activity permitted under this proclamation. The Secretaries may permit sustenance fishing outside of any Special Preservation Area as a term or condition of any permit issued under this proclamation. The Secretaries may not permit sustenance fishing in the Midway Atoll Special Management Area unless the activity has been determined by the Director of the United States Fish and Wildlife Service or his or her designee to be compatible with the purposes for which the Midway Atoll National Wildlife Refuge was established. Sustenance fishing must be conducted in a manner compatible with this proclamation, including considering the extent to which the conduct of the activity may diminish monument resources, qualities, and ecological integrity, as well as any indirect, secondary, or cumulative effects of the activity and the duration of such effects. The Secretaries will develop procedures for systematic reporting of sustenance fishing.

Definitions For purposes of this proclamation:

Attract or Attracting means luring or attempting to lure a living resource by any means, except the mere presence of human beings (e.g., swimmers, divers, boaters).

Bottomfish Species means bottomfish management unit species as defined at 50 CFR 660.12.

Commercial Bottomfishing means commercial fishing for bottomfish species.

Commercial Passenger Vessel means a vessel that carries individuals who have paid for such carriage.

Commercial Pelagic Trolling means commercial fishing for pelagic species.

Deserting a vessel means:

1. Leaving a vessel aground or adrift:

(i) Without notifying the Secretaries of the vessel going aground or adrift within 12 hours of its discovery and developing and presenting to the Secretaries a preliminary salvage plan within 24 hours of such notification;

(ii) After expressing or manifesting intention to not undertake or to cease salvage efforts; or

(iii)When the Secretaries are unable, after reasonable efforts, to reach the owner/operator within 12 hours of the vessels condition being reported to authorities.

2. Leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner.

Ecological Reserve means an area of the monument consisting of contiguous, diverse habitats that provide natural spawning, nursery, and permanent residence areas for the replenishment and genetic protection of marine life, and also to protect and preserve natural assemblages of habitats and species within areas representing a broad diversity of resources and habitats found within the monument.

Ecological Integrity means a condition determined to be characteristic of an ecosystem that has the ability to maintain the function, structure, and abundance of natural biological communities, including rates of change in response to natural environmental variation.

Fishing Year means the year beginning at 0001 local time on January 1 and ending at 2400 local time on December 31.

Introduced Species means:

1. A species (including, but not limited to, any of its biological matter capable of propagation) that is non-native to the ecosystem(s) protected by the monument; or

2. Any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes.

Landing means offloading fish from a fishing vessel or causing fish to be offloaded from a fishing vessel.

Midway Atoll Special Management Area means the area of the monument surrounding Midway Atoll out to a distance of 12 nautical miles, established for the enhanced management, protection, and preservation of monument wildlife and historical resources.

Mobile Transceiver Unit means a vessel monitoring system or VMS device installed on board a vessel that is used for vessel monitoring and transmitting the vessel's position as required by this proclamation.

Native Hawaiian Practices means cultural activities conducted for the purposes of perpetuating traditional knowledge, caring for and protecting the environment, and strengthening cultural and spiritual connections to the Northwestern Hawaiian Islands that have demonstrable benefits to the Native Hawaiian community. This may include, but is not limited to, the non-commercial use of monument resources for direct personal consumption while in the monument.

Ocean-Based Ecotourism means a class of fee-for-service activities that involves visiting the monument for study, enjoyment, or volunteer assistance for purposes of conservation and management.

Pelagic Species means Pacific Pelagic Management Unit Species as defined at 50 CFR 660.12.

Pono means appropriate, correct, and deemed necessary by traditional standards in the Hawaiian culture.

Recreational Activity means an activity conducted for personal enjoyment that does not result in the extraction of monument resources and that does not involve a fee-for-service transaction. This includes, but is not limited to, wildlife viewing, SCUBA diving, snorkeling, and boating.

Special Preservation Area (SPA) means discrete, biologically important areas of the monument within which uses are subject to conditions, restrictions, and prohibitions, including but not limited to access restrictions. SPAs are used to avoid concentrations of uses that could result in declines in species populations or habitat, to reduce conflicts between uses, to protect areas that are critical for sustaining important marine species or habitats, or to provide opportunities for scientific research.

Special Ocean Use means an activity or use of the monument that is engaged in to generate revenue or profits for one or more of the persons associated with the activity or use, and does not destroy, cause the loss of, or injure monument resources. This includes ocean-based ecotourism and other activities such as educational and research activities that are engaged in to generate revenue, but does not include commercial fishing for bottomfish or pelagic species conducted pursuant to a valid permit issued by NOAA.

Stowed and Not Available for Immediate Use means not readily accessible for immediate use, e.g., by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, or partially disassembled (such as spear shafts being kept separate from spear guns).

Sustenance Fishing means fishing for bottomfish or pelagic species in which all catch is consumed within the monument, and that is incidental to an activity permitted under this proclamation.

Vessel Monitoring System or VMS means a vessel monitoring system or mobile transceiver unit approved by the Office for Law Enforcement for use on vessels permitted to access the monument, as required by this subpart.

Nothing in this proclamation shall be deemed to revoke any existing withdrawal, reservation, or appropriation; however, the national monument shall be the dominant reservation.

Warning is hereby given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of this monument and not to locate or settle upon any lands thereof.

In Witness Whereof, I have hereunto set my hand this fifteenth day of June, in the year of our Lord two thousand six, and of the Independence of the United States of America the two hundred and thirtieth.

GEORGE W. BUSH