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Title 15 – Commerce and Foreign Trade–Volume 3

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Title 15 – Commerce and Foreign Trade–Volume 3



SUBTITLE B – Regulations Relating to Commerce and Foreign Trade (Continued)

Part


chapter viii – Bureau of Economic Analysis, Department of Commerce

801


chapter ix – National Oceanic and Atmospheric Administration, Department of Commerce

902


chapter xi – National Technical Information Service, Department of Commerce

1180


chapter xiii – East-West Foreign Trade Board

1300


chapter xiv – Minority Business Development Agency

1400


chapter xv – Office of the Under-Secretary for Economic Affairs, Department of Commerce

1500



SUBTITLE C – Regulations Relating to Foreign Trade Agreements


chapter xx – Office of the United States Trade Representative

2001


SUBTITLE D – Regulations Relating to Telecommunications and Information


chapter xxiii – National Telecommunications and Information Administration, Department of Commerce

2301


Subtitle B – Regulations Relating to Commerce and Foreign Trade (Continued)

CHAPTER VIII – BUREAU OF ECONOMIC ANALYSIS, DEPARTMENT OF COMMERCE

PART 800 [RESERVED]

PART 801 – SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S. AND FOREIGN PERSONS AND SURVEYS OF DIRECT INVESTMENT


Authority:5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; E.O. 11961 (3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981 Comp. p. 173); and E.O. 12518 (3 CFR, 1985 Comp. p. 348).


Source:77 FR 24374, Apr. 24, 2012, unless otherwise noted.

§ 801.1 Purpose.

The purpose of this part is to provide general information on international trade in services and direct investment data collection programs and analyses under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101 to 3108, as amended) (the Act). The purpose of the Act is to provide for the collection of comprehensive and reliable information pertaining to international investment, including international trade in services and direct investment, and to do so with a minimum of burden on respondents and with no unnecessary duplication of effort.


§ 801.2 Definitions.

For purposes of the Act and for reporting requirements under this part:


(a) United States, when used in a geographic sense, means the several States, the District of Columbia, the Commonwealth of Puerto Rico, and all territories and possessions of the United States.


(b) Foreign, when used in a geographic sense, means that which is situated outside the United States or which belongs to or is characteristic of a country other than the United States.


(c) Person means any individual, branch, partnership, associated group, association, estate, trust, corporation, or other organization (whether or not organized under the laws of any State), and any government (including a foreign government, the United States Government, a State or local government, and any agency, corporation, financial institution, or other entity or instrumentality thereof, including a government-sponsored agency).


(d) United States person means any person resident in the United States or subject to the jurisdiction of the United States.


(e) Foreign person means any person resident outside the United States or subject to the jurisdiction of a country other than the United States.


(f) Business enterprise means any organization, association, branch, or venture which exists for profit-making purposes or to otherwise secure economic advantage, and any ownership of any real estate.


(g) Services are economic activities whose outputs are other than tangible goods. This term includes, but is not limited to, banking, other financial services, insurance, transportation, communications and data processing, retail and wholesale trade, advertising, accounting, construction, design, engineering, management consulting, real estate, professional services, entertainment, education, and health care.


(h) International investment means:


(1) The ownership or control, directly or indirectly, by contractual commitment or otherwise, by foreign persons of any interest in property in the United States, or of stock, other securities, or short- and long-term debt obligations of a United States person; and


(2) The ownership or control, directly or indirectly, by contractual commitment or otherwise, by United States persons of any interest in property outside the United States, or of stock, other securities, or short- and long-term debt obligations of a foreign person.


(i) Direct investment means the ownership or control, directly or indirectly, by one person of 10 percent or more of the voting securities of an incorporated business enterprise or an equivalent interest in an unincorporated business enterprise.


§ 801.3 Reporting requirements.

Link to an amendment published at 87 FR 54887, Sept. 8, 2022.

Except for surveys subject to rulemaking in §§ 801.7, 801.8, 801.9, 801.10, 801.11, 801.12, and 801.13, reporting requirements for all other surveys conducted by the Bureau of Economic Analysis shall be as follows:


(a) Notice of specific reporting requirements, including who is required to report, the information to be reported, the manner of reporting, and the time and place of filing reports, will be published by the Director of the Bureau of Economic Analysis in the Federal Register prior to the implementation of a survey;


(b) In accordance with section 3104(b)(2) of title 22 of the United States Code, persons notified of these surveys and subject to the jurisdiction of the United States shall furnish, under oath, any report containing information which is determined to be necessary to carry out the surveys and studies provided for by the Act; and


(c) Persons not notified in writing of their filing obligation by the Bureau of Economic Analysis are not required to complete the survey.


[85 FR 31052, May 22, 2020]


§ 801.4 Recordkeeping requirements.

In accordance with section 3104(b)(1) of title 22 of the United States Code, persons subject to the jurisdiction of the United States shall maintain any information essential for carrying out the surveys and studies provided for by the Act.


[79 FR 47575, Aug. 14, 2014, as amended at 79 FR 53291, Sept. 9, 2014; 79 FR 69759, Nov. 24, 2014]


§ 801.5 Confidentiality.

Information collected pursuant to 3104(c) of title 22 of the United States Code is confidential.


(a) Access to this information shall be available only to officials and employees (including consultants and contractors and their employees) of agencies designated by the President to perform functions under the Act.


(b) Subject to paragraph (d) of this section, the President may authorize the exchange of information between agencies or officials designated to perform functions under the Act.


(c) Nothing in this part shall be construed to require any Federal agency to disclose information otherwise protected by law.


(d) This information shall be used solely for analytical or statistical purposes or for a proceeding under § 801.6.


(e) No official or employee (including consultants and contractors and their employees) shall publish or make available to any other person any information collected under the Act in such a manner that the person to whom the information relates can be specifically identified.


(f) Reports and copies of reports prepared pursuant to the Act are confidential and their submission or disclosure shall not be compelled by any person without the prior written permission of the person filing the report and the customer of such person where the information supplied is identifiable as being derived from the records of such customer.


§ 801.6 Penalties specified by law.

(a) Civil penalties. Whoever fails to furnish any information required by the Act or to comply with any rule, regulation, order or instruction promulgated under the Act shall be subject to a civil penalty of not less than $2,500, and not more than $25,000, and to injunctive relief commanding such person to comply, or both (see 22 U.S.C. 3105(a) and (b)). These civil penalties are subject to inflationary adjustments (15 CFR 6.4.).


(b) Criminal penalties. Whoever willfully fails to submit any information required by the Act or willfully violates any rule, regulation, order or instruction promulgated under the Act, upon conviction, shall be fined not more than $10,000 and, if an individual, may be imprisoned for not more than one year, or both. Any officer, director, employee, or agent of any corporation who knowingly participates in such violations, upon conviction, may be punished by a like fine, imprisonment or both (see 22 U.S.C. 3105(c)).


§ 801.7 Rules and regulations for the BE-13, Survey of New Foreign Direct Investment in the United States.

Link to an amendment published at 87 FR 58956, Sept. 29, 2022.

The BE-13, Survey of New Foreign Direct Investment in the United States, is conducted to collect data on the acquisition or establishment of U.S. business enterprises by foreign investors and the expansion of existing U.S. affiliates of foreign companies to establish new facilities where business is conducted. Foreign direct investment is defined as the ownership or control by one foreign person (foreign parent) of 10 percent or more of the voting securities of an incorporated U.S. business enterprise, or an equivalent interest of an unincorporated U.S. business enterprise, including a branch. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-13 survey are given in paragraphs (a) through (d) of this section. More detailed instructions are given on the report forms and instructions.


(a) Response required. A response is required from persons subject to the reporting requirements of the BE-13, Survey of New Foreign Direct Investment in the United States, contained herein, whether or not they are contacted by BEA. Also, persons, or their agents, that are contacted by BEA about reporting in this survey, either by sending them a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by filing the properly completed BE-13 report (BE-13A, BE-13B, BE-13D, BE-13E, or BE-13 Claim for Exemption).


(b) Who must report. A BE-13 report is required of any U.S. business enterprise, except certain private funds, see exception in paragraph (b)(4) of this section, in which:


(1) A foreign direct investment in the United States relationship is created;


(2) An existing U.S. affiliate of a foreign parent establishes a new U.S. business enterprise, expands its U.S. operations, or acquires a U.S. business enterprise, or;


(3) BEA requests a cost update (Form BE-13E) for a U.S. business enterprise that previously filed Form BE-13B or BE-13D.


(4) Certain private funds are exempt from reporting on the BE-13 survey. If a U.S. business enterprise is a private fund and its foreign parent does not own through the private fund 10 percent or more of the voting interest of a business enterprise that is not also a private fund or a holding company, the private fund is not required to file any BE-13 report except to indicate exemption from the survey if contacted by BEA.


(c) Forms to be filed. Depending on the type of investment transaction, U.S. affiliates shall report their information on one of five forms – BE-13A, BE-13B, BE-13D, BE-13E, or BE-13 Claim for Exemption.


(1) Form BE-13A – Report for a U.S. business enterprise when a foreign entity acquires a voting interest (directly, or indirectly through an existing U.S. affiliate) in that U.S. business enterprise including segments, operating units, or real estate; and


(i) The total cost of the acquisition is greater than $3 million; and


(ii) By this acquisition, the foreign entity now owns at least 10 percent of the voting interest (directly, or indirectly through an existing U.S. affiliate) in the acquired U.S. business enterprise.


(2) Form BE-13B – Report for a U.S. business enterprise when it is established by a foreign entity or by an existing U.S. affiliate of a foreign parent; and


(i) The expected total cost to establish the new U.S. business enterprise is greater than $3 million; and


(ii) The foreign entity owns at least 10 percent of the voting interest (directly, or indirectly through an existing U.S. affiliate) in the new U.S. business enterprise.


(3) Form BE-13D – Report for an existing U.S. affiliate of a foreign parent when it expands its operations to include a new facility where business is conducted and the expected total cost of the expansion is greater than $3 million.


(4) Form BE-13E – Report for a U.S. business enterprise that previously filed Form BE-13B or BE-13D. Form BE-13E collects updated cost information and will be collected annually until the establishment or expansion of the U.S. business enterprise is complete.


(5) Form BE-13 Claim for Exemption – Report for a U.S. business enterprise that:


(i) Was contacted by BEA but does not meet the requirements for filing Forms BE-13A, BE-13B, or BE-13D; or


(ii) Whether or not contacted by BEA, met all requirements for filing Forms BE-13A, BE-13B, or BE-13D except the $3 million reporting threshold.


(d) Due date. The BE-13 forms are due no later than 45 calendar days after the acquisition is completed, the new U.S. business enterprise is established, the expansion is begun, the cost update is requested, or a notification letter is received from BEA by a U.S. business enterprise that does not meet the filing requirements for the survey.


[81 FR 72521, Oct. 20, 2016]


§ 801.8 Rules and regulations for the BE-10, Benchmark Survey of U.S. Direct Investment Abroad.

A BE-10, Benchmark Survey of U.S. Direct Investment Abroad, will be conducted every five years and covers years ending in 4 and 9. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 and 801.2 and 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-10 survey are given in paragraphs (a) through (d) of this section. More detailed instructions are given on the report forms and instructions.


(a) Response required. A response is required from persons subject to the reporting requirements of the BE-10, Benchmark Survey of U.S. Direct Investment Abroad, contained in this section, whether or not they are contacted by BEA. Also, a person, or their agent, contacted in writing by BEA about reporting in this survey must respond by filing a properly completed BE-10 report (BE-10A and BE-10B, BE-10C, BE-10D, and/or BE-10 Claim for Not Filing).


(b) Who must report. A BE-10 report is required of any U.S. person that had a foreign affiliate – that is, that had direct or indirect ownership or control of at least 10 percent of the voting stock of an incorporated foreign business enterprise, or an equivalent interest in an unincorporated foreign business enterprise, including a branch – at the end of the U.S. person’s fiscal year that ended in the calendar year covered by the survey. Foreign affiliates that are private funds and meet certain criteria are exempt from the BE-10 survey. Specifically, if a foreign affiliate meets all of the criteria in paragraphs (b)(1) though (3) of this section, the U.S. reporter is not required to file a BE-10 form for that affiliate except to indicate exemption from the survey if contacted by BEA:


(1) The foreign affiliate is a private fund; and


(2) The private fund foreign affiliate does not own, directly or indirectly through another business enterprise, an “operating company” – i.e., a business enterprise that is not a private fund or a holding company – in which the consolidated U.S. reporter owns at least 10 percent of the voting interest; and


(3) If the U.S. reporter owns the private fund indirectly (through one or more other business enterprises), there are no “operating companies” between the consolidated U.S. reporter and the indirectly-owned foreign private fund.


(c) Forms to be filed. (1) Form BE-10A must be completed by a U.S. reporter. Form BE-10A is required to cover the fully consolidated U.S. domestic business enterprise. It must also file Form(s) BE-10B, BE-10C, and/or BE-10D for its foreign affiliates, whether held directly or indirectly.


(2) Form BE-10B must be filed for each majority-owned foreign affiliate (for purposes of this survey, a “majority-owned” foreign affiliate is one in which the combined direct and indirect ownership interest of all U.S. parents of the foreign affiliate exceeds 50 percent) for which any of the items in paragraph (c)(2)(i) through (iii) of this section (not just the U.S. reporter’s share) was greater than $80 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey:


(i) Total assets (without netting liabilities);


(ii) Sales or gross operating revenues, excluding sales taxes; or


(iii) Net income after provision for foreign income taxes.


(3) Form BE-10C must be filed:


(i) For each majority-owned foreign affiliate for which any one of the three items listed in paragraph (c)(2) of this section was greater than $25 million but for which none of these items was greater than $80 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey; and


(ii) For each minority-owned foreign affiliate (for purposes of this survey, a “minority-owned” foreign affiliate is one in which the combined direct and indirect ownership interest of all U.S. parents of the foreign affiliate is 50 percent or less) for which any one of the three items listed in paragraph (c)(2) of this section was greater than $25 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey.


(4) Form BE-10D must be filed for majority- or minority-owned foreign affiliates for which none of the three items listed in paragraph (c)(2) of this section was greater than $25 million (positive or negative) at the end of, or for, its fiscal year that ended in the calendar year covered by the survey. Form BE-10D is a schedule; a U.S. reporter would submit one or more pages of the form depending on the number of affiliates that are required to be filed on this form.


(5) BE-10 Claim for Not Filing will be provided for response by:


(i) Persons that are not subject to the reporting requirements of the BE-10 survey but have been contacted by BEA concerning their reporting status; or


(ii) U.S. reporters that have been contacted by BEA concerning their reporting status for foreign affiliates that are no longer subject to the reporting requirements of the BE-10 survey.


(d) Due date. A fully completed and certified BE-10 report comprising Form BE-10A and Form(s) BE-10B, BE-10C, BE-10D, and/or BE-10 Claim for Not Filing (as required) is due to be filed with BEA not later than May 31 of the year after the year covered by the survey, for those U.S. reporters filing fewer than 50, and June 30, for those U.S. reporters filing 50 or more, foreign affiliate Forms BE-10B, BE-10C, and/or BE-10D.


[84 FR 60915, Nov. 12, 2019]


§ 801.9 Rules and regulations for the BE-180, Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons – 2014.

Link to an amendment published at 87 FR 54887, Sept. 8, 2022.

A BE-180, Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons will be conducted covering 2014. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-180 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report forms and in instructions accompanying the report forms.


(a) Response required. A response is required from persons subject to the reporting requirements of the BE-180, Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons – 2014, contained herein, whether or not they are contacted by BEA to ensure complete coverage of financial services transactions between U.S. financial services providers and foreign persons. Also, a person, or its agent, that is contacted by BEA about reporting in this survey, either by sending a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by:


(1) Completing and returning the BE-180 survey by the due date; or,


(2) If exempt, by completing pages one through five of the BE-180 survey and returning them to BEA.


(b) Who must report. (1) A BE-180 report is required of each U.S. person that is a financial services provider or intermediary, or whose consolidated U.S. enterprise includes a separately organized subsidiary, or part, that is a financial services provider or intermediary, and that had transactions (either sales or purchases) directly with foreign persons in all financial services combined in excess of $3,000,000 during its fiscal year covered by the survey on an accrual basis. The $3,000,000 threshold should be applied to financial services transactions with foreign persons by all parts of the consolidated U.S. enterprise combined that are financial services providers or intermediaries. Because the $3,000,000 threshold applies separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both.


(i) The determination of whether a U.S. financial services provider or intermediary is subject to this mandatory reporting requirement may be based on the judgment of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed manual records search.


(ii) Reporters that file pursuant to this mandatory reporting requirement must provide data on total sales and/or purchases of each of the covered types of financial services transactions and must disaggregate the totals by country and by relationship to the foreign transactor (foreign affiliate, foreign parent group, or unaffiliated).


(2) Voluntary reporting. If, during the fiscal year covered, sales or purchases of financial services by a firm that is a financial services provider or intermediary, or by a firm’s subsidiaries, or parts, combined that are financial services providers or intermediaries, are $3,000,000 or less, the U.S. person is requested to provide an estimate of the total for each type of service. Provision of this information is voluntary. The estimates may be judgmental, that is, based on recall, without conducting a detailed records search. Because the $3,000,000 threshold applies separately to sales and purchases, this voluntary reporting option may apply only to sales, only to purchases, or to both.


(3) Exemption claims. Any U.S. person that receives the BE-180 survey form from BEA, but is not subject to the mandatory reporting requirements and chooses not to report voluntarily, must file an exemption claim by completing pages one through five of the BE-180 survey and returning it to BEA. This requirement is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary follow-up contact.


(c) BE-180 definition of financial services provider. The definition of financial services provider used for this survey is identical to the definition of the term as used in the North American Industry Classification System, United States, 2012, Sector 52 – Finance and Insurance, and holding companies that own or influence, and are principally engaged in making management decisions for these firms (part of Sector 55 – Management of Companies and Enterprises). For example, companies and/or subsidiaries and other separable parts of companies in the following industries are defined as financial services providers: Depository credit intermediation and related activities (including commercial banking, savings institutions, credit unions, and other depository credit intermediation); non-depository credit intermediation (including credit card issuing, sales financing, and other non-depository credit intermediation); activities related to credit intermediation (including mortgage and nonmortgage loan brokers, financial transactions processing, reserve, and clearinghouse activities, and other activities related to credit intermediation); securities and commodity contracts intermediation and brokerage (including investment banking and securities dealing, securities brokerage, commodity contracts and dealing, and commodity contracts brokerage); securities and commodity exchanges; other financial investment activities (including miscellaneous intermediation, portfolio management, investment advice, and all other financial investment activities); insurance carriers; insurance agencies, brokerages, and other insurance related activities; insurance and employee benefit funds (including pension funds, health and welfare funds, and other insurance funds); other investment pools and finds (including open-end investment funds, trusts, estates, and agency accounts, real estate investment trusts, and other financial vehicles); and holding companies that own, or influence the management decisions of, firms principally engaged in the aforementioned activities.


(d) Covered types of services. The BE-180 survey covers the following types of financial services transactions (sales or purchases) between U.S. financial services companies and foreign persons: brokerage services related to equity transactions; other brokerage services; underwriting and private placement services; financial management service (including fees for mutual funds, pension funds, exchange-traded funds, private equity funds, corporate portfolio, individual portfolio, hedge funds, trusts, and other); credit related services, except credit card services; credit card services; financial advisory and custody services; securities lending services; electronic funds transfer services; and other financial services.


(e) Due date. A fully completed and certified BE-180 report, or qualifying exemption claim with pages one through five completed, is due to be filed with BEA not later than October 1, 2015.


[80 FR 28820, May 20, 2015]


§ 801.10 Rules and regulations for BE-12, Benchmark Survey of Foreign Direct Investment in the United States – 2017.

Link to an amendment published at 87 FR 58954, Sept. 29, 2022.

A BE-12, Benchmark Survey of Foreign Direct Investment in the United States, will be conducted covering 2017. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-12 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report forms and instructions.


(a) Response required. A response is required from persons subject to the reporting requirements of the BE-12, Benchmark Survey of Foreign Direct Investment in the United States – 2017, contained in this section, whether or not they are contacted by BEA. Also, a person, or their agent, contacted by BEA about reporting in this survey, either by sending them a report form or a written inquiry, must respond in writing pursuant to this section. This may be accomplished by filing a properly completed BE-12 report (BE-12A, BE-12B, BE-12C, or BE-12 Claim for Not Filing);


(b) Who must report. A BE-12 report is required for each U.S. affiliate (except certain private funds as described below), that is, for each U.S. business enterprise in which a foreign person (foreign parent) owned or controlled, directly or indirectly, 10 percent or more of the voting securities in an incorporated U.S. business enterprise, or an equivalent interest in an unincorporated U.S. business enterprise, at the end of the business enterprise’s fiscal year that ended in calendar year 2017. Certain private funds are exempt from reporting on the BE-12 survey. If a U.S. business meets ALL of the following 3 criteria, it is not required to file any BE-12 report except to indicate exemption from the survey if contacted by BEA: (1) The U.S. business enterprise is a private fund; (2) the private fund does not own, directly or indirectly through another business enterprise, an “operating company” – i.e., a business enterprise that is not a private fund or a holding company – in which the foreign parent owns at least 10 percent of the voting interest; AND (3) if the foreign parent owns the private fund indirectly (through one or more other U.S. business enterprises), there are no U.S. “operating companies” between the foreign parent and the indirectly-owned private fund.


(c) Forms to be filed. (1) Form BE-12A must be completed by a U.S. affiliate that was majority-owned by one or more foreign parents (for purposes of this survey, a “majority-owned” U.S. affiliate is one in which the combined direct and indirect ownership interest of all foreign parents of the U.S. affiliate exceeds 50 percent) if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the following three items for the U.S. affiliate (not just the foreign parent’s share) was greater than $300 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017:


(i) Total assets (do not net out liabilities);


(ii) Sales or gross operating revenues, excluding sales taxes; or


(iii) Net income after provision for U.S. income taxes.


(2) Form BE-12B must be completed by:


(i) A majority-owned U.S. affiliate if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the three items listed in paragraph (c)(1) of this section (not just the foreign parent’s share), was greater than $60 million (positive or negative) but none of these items was greater than $300 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017.


(ii) A minority-owned U.S. affiliate (for purposes of this survey, a “minority-owned” U.S. affiliate is one in which the combined direct and indirect ownership interest of all foreign parents of the U.S. affiliate is 50 percent or less) if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, any one of the three items listed in paragraph (c)(1) of this section (not just the foreign parent’s share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017.


(3) Form BE-12C must be completed by a U.S. affiliate if, on a fully consolidated basis, or, in the case of real estate investment, on an aggregated basis, none of the three items listed in paragraph (c)(1) of this section for a U.S. affiliate (not just the foreign parent’s share), was greater than $60 million (positive or negative) at the end of, or for, its fiscal year that ended in calendar year 2017.


(4) BE-12 Claim for Not Filing will be provided for response by persons that are not subject to the reporting requirements of the BE-12 survey but have been contacted by BEA concerning their reporting status.


(d) Aggregation of real estate investments. All real estate investments of a foreign person must be aggregated for the purpose of applying the reporting criteria. A single report form must be filed to report the aggregate holdings, unless written permission has been received from BEA to do otherwise. Those holdings not aggregated must be reported separately on the same type of report that would have been required if the real estate holdings were aggregated.


(e) Due date. A fully completed and certified Form BE-12A, BE-12B, BE-12C, or BE-12 Claim for Not Filing is due to be filed with BEA not later than May 31, 2018 (or by June 30, 2018 for reporting companies that use BEA’s eFile system).


[82 FR 58553, Dec. 13, 2017]


§ 801.11 Rules and regulations for the BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons – 2017.

Link to an amendment published at 87 FR 54887, Sept. 8, 2022.

The BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons will be conducted covering fiscal year 2017. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 and 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-120 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report form and in instructions accompanying the report form.


(a) Response required. A response is required from persons subject to the reporting requirements of the BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons – 2017, contained in this section, whether or not they are contacted by BEA. Also, a person, or its agent, that is contacted by BEA about reporting on this survey, either by sending them a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by:


(1) Completing and returning the BE-120 by the due date of the survey; or


(2) If exempt, by completing the determination of reporting status section of the BE-120 survey and returning it to BEA by the due date of the survey.


(b) Who must report. A BE-120 report is required of each U.S. person that had sales to foreign persons or purchases from foreign persons in the services and intellectual property categories covered by the survey during its 2017 fiscal year.


(c) What must be reported. (1) A U.S. person that had combined sales to foreign persons that exceeded $2 million or combined purchases from foreign persons that exceeded $1 million in the services and intellectual property categories covered by the survey during its 2017 fiscal year, on an accrual basis, is required to provide data on total sales and/or purchases of each of the covered types of services and intellectual property transactions and must disaggregate the totals by country and by relationship to the foreign transactor (foreign affiliate, foreign parent group, or unaffiliated). The $2 million threshold for sales and the $1 million threshold for purchases should be applied to services and intellectual property transactions with foreign persons by all parts of the consolidated domestic U.S. Reporter. Because the $2 million threshold for sales and $1 million threshold for purchases apply separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both. The determination of whether a U.S. company is subject to this reporting requirement may be based on the judgment of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed manual records search.


(2) A U.S. person that had combined sales to foreign persons that were $2 million or less or combined purchases from foreign persons that were $1 million or less in the intellectual property or services categories covered by the survey during its 2017 fiscal year, on an accrual basis, is required to provide the total sales and/or purchases for each type of transaction in which they engaged. The $2 million threshold for sales and the $1 million threshold for purchases should be applied to services and intellectual property transactions with foreign persons by all parts of the consolidated domestic U.S. Reporter. Because the $2 million threshold for sales and $1 million threshold for purchases apply separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both.


(i) Voluntary reporting: If, during fiscal year 2017, combined sales were $2 million or less, on an accrual basis, the U.S. person may, in addition to providing the required total for each type of transaction, report sales at a country and affiliation level of detail on the applicable mandatory schedule(s). Provision of this additional detail is voluntary. The estimates may be judgmental, that is, based on recall, without conducting a detailed records search.


(ii) If, during fiscal year 2017, combined purchases were $1 million or less, on an accrual basis, the U.S. person may, in addition to providing the required total for each type of transaction, report purchases at a country and affiliation level of detail on the applicable mandatory schedule(s). Provision of this additional detail is voluntary. The estimates may be judgmental, that is, based on recall, without conducting a detailed records search.


(3) Exemption claims: Any U.S. person that receives the BE-120 survey form from BEA, but is not subject to the reporting requirements, must file an exemption claim by completing the determination of reporting status section of the BE-120 survey and returning it to BEA by the due date of the survey. This requirement is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary follow-up contact.


(d) Covered types of services. Services transactions covered by this survey consist of sales and purchases related to certain intellectual property rights (see paragraphs (d)(1) through (18) of this section for a list of intellectual property-related transactions covered by this survey) and sales and purchases of selected services (see paragraphs (d)(19) through (59) of this section for a list of services covered by this survey). The transactions (sales or purchases) between U.S. companies and foreign persons covered by the BE-120 survey are:


(1) Rights related to the use of a patent, process, or trade secret to produce and/or distribute a product or service;


(2) Outright sales of proprietary rights related to patents, processes, and trade secrets;


(3) Rights to use books, music, etc., including end-user rights related to digital content;


(4) Rights to reproduce and/or distribute books, music, etc.;


(5) Outright sales of proprietary rights related to books, music, etc.;


(6) Rights to use trademarks;


(7) Outright sales of proprietary rights related to trademarks;


(8) Rights to use recorded performances and events, including end-user rights related to digital content;


(9) Rights to reproduce and/or distribute recorded performances and events;


(10) Outright sales of proprietary rights related to recorded performances and events;


(11) Rights to broadcast and record live performances and events;


(12) Rights to reproduce and/or distribute general use computer software;


(13) Outright sales of proprietary rights related to general use computer software;


(14) Fees associated with business format franchising;


(15) Outright sales of proprietary rights related to business format franchising;


(16) Rights to use other intellectual property;


(17) Rights to reproduce and/or distribute other intellectual property;


(18) Outright sales of proprietary rights related to other intellectual property;


(19) Accounting, auditing, and bookkeeping services;


(20) Advertising services;


(21) Auxiliary insurance services;


(22) Computer software, including end-user licenses and customization services;


(23) Cloud computing and data storage services;


(24) Other computer services;


(25) Construction services;


(26) News agency services (excludes production costs related to news broadcasters);


(27) Other information services;


(28) Education services;


(29) Architectural services;


(30) Engineering services;


(31) Surveying, cartography, certification, testing and technical inspection services;


(32) Financial services;


(33) Maintenance services;


(34) Installation, alteration, and training services;


(35) Legal services;


(36) Market research services;


(37) Public opinion polling services;


(38) Other management, consulting, and public relations services;


(39) Merchanting services (net receipts);


(40) Mining services;


(41) Operational leasing;


(42) Trade-related services, other than merchanting services;


(43) Artistic-related services;


(44) Premiums paid on primary insurance;


(45) Losses recovered on primary insurance;


(46) Provision of customized and non-customized research and development services;


(47) Other research and development services;


(48) Telecommunications services;


(49) Health services;


(50) Heritage and recreational services;


(51) Audiovisual and production services;


(52) Contract manufacturing services;


(53) Disbursements for sales promotion and representation;


(54) Photographic services (including satellite photography services);


(55) Space transport services;


(56) Trade exhibition and sales convention services;


(57) Agricultural services;


(58) Waste treatment and depollution services; and


(59) Other selected services n.i.e. (not included elsewhere).


(e) Types of transactions excluded from the scope of this survey. (1) Sales and purchases of goods. Trade in goods involves products that have a physical form, and includes payments or receipts for electricity.


(2) Sales and purchases of financial instruments, including stocks, bonds, financial derivatives, loans, mutual fund shares, and negotiable CDs. (However, securities brokerage is a service).


(3) Income on financial instruments (interest, dividends, capital gain distributions, etc).


(4) Compensation paid to, or received by, employees.


(5) Penalties and fines and gifts or grants in the form of goods and cash (sometimes called “transfers”).


(f) Due date. A fully completed and certified BE-120 report, or qualifying exemption claim with the determination of reporting status section completed, is due to be filed with BEA not later than June 29, 2018 (or by July 30, 2018 for respondents that use BEA’s eFile system).


[83 FR 4836, Feb. 2, 2018]


§ 801.12 Rules and regulations for the BE-140 Benchmark Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons – 2018.

Link to an amendment published at 87 FR 54888, Sept. 8, 2022.

The BE-140 Benchmark Survey of Insurance Transactions by Insurance Companies with Foreign Persons will be conducted covering calendar year 2018. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 through 801.2 and §§ 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-140 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report form and in instructions accompanying the report form.


(a) Response required. A response is required from U.S. insurance companies subject to the reporting requirements of the BE-140 Benchmark Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons – 2018, contained in this section, whether or not they are contacted by BEA. Also, a U.S. insurance company, or its agent, that is contacted by BEA about reporting on this survey, either by sending a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by:


(1) Completing and returning the BE-140 by the due date of the survey; or


(2) If exempt, by completing the determination of reporting status section of the BE-140 survey and returning it to BEA by the due date of the survey.


(b) Who must report. A BE-140 report is required of each U.S. insurance company that had insurance transactions with foreign persons in the categories covered by the survey during its 2018 calendar year.


(c) What must be reported – (1) Transactions exceeding $2 million. A U.S. insurance company that had transactions with foreign persons that exceeded $2 million in at least one of the insurance categories covered by the survey during its 2018 calendar year, on an accrual basis, is required to provide data on the total transactions of each of the covered types of insurance transactions and must disaggregate the totals by country and by relationship to the foreign counterparty (foreign affiliate, foreign parent group, or unaffiliated). The determination of whether a U.S. insurance company is subject to this reporting requirement may be based on the judgment of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed manual records search.


(2) Transactions $2 million or below. A U.S. insurance company that had transactions with foreign persons that were $2 million or less in each of the insurance categories covered by the survey during its 2018 calendar year, on an accrual basis, is required to provide the total for each type of transaction in which they engaged.


(i) Voluntary reporting of insurance transactions. If, during calendar year 2018, total transactions were $2 million or less in each of the insurance categories covered by the survey, on an accrual basis, the U.S. insurance company may, in addition to providing the required total for each type of transaction, voluntarily report transactions at a country and affiliation level of detail on the applicable mandatory schedule(s).


(ii) [Reserved]


(3) Exemption claims. Any U.S. person that receives the BE-140 survey form from BEA, but is not subject to the reporting requirements, must file an exemption claim by completing the determination of reporting status section of the BE-140 survey and returning it to BEA by the due date of the survey. The requirement in this paragraph (b)(3) is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary follow-up contact.


(d) Covered types of insurance services. Insurance services covered by the BE-140 survey consist of transactions between U.S. insurance companies and foreign persons for:


(1) Premiums earned on reinsurance assumed from companies resident abroad;


(2) Losses incurred on reinsurance assumed from companies resident abroad;


(3) Premiums paid for reinsurance ceded to companies resident abroad;


(4) Losses recovered on reinsurance ceded to companies resident abroad;


(5) Premiums earned from direct insurance sold to foreign persons;


(6) Losses incurred on direct insurance sold to foreign persons;


(7) Receipts for auxiliary insurance services provided to foreign persons; and


(8) Payments for auxiliary insurance services provided by foreign persons.


(e) Types of transactions excluded from the scope of this survey. Premiums paid to, or losses received from, foreign insurance companies on direct insurance.


(f) Due date. A fully completed and certified BE-140 report, or qualifying exemption claim with the determination of reporting status section completed, is due to be filed with BEA not later than September 30, 2019.


[84 FR 27199, June 12, 2019]


§ 801.13 Rules and regulations for the BE-180 Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons – 2019.

Link to an amendment published at 87 FR 54889, Sept. 8, 2022.

The BE-180 Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons will be conducted covering fiscal year 2019. All legal authorities, provisions, definitions, and requirements contained in §§ 801.1 and 801.2 and 801.4 through 801.6 are applicable to this survey. Specific additional rules and regulations for the BE-180 survey are given in paragraphs (a) through (e) of this section. More detailed instructions are given on the report form and in instructions accompanying the report form.


(a) Response required. A response is required from persons subject to the reporting requirements of the BE-180 Benchmark Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons – 2019, contained herein, whether or not they are contacted by BEA. Also, a person, or its agent, that is contacted by BEA about reporting on this survey, either by sending a report form or by written inquiry, must respond in writing pursuant to this section. This may be accomplished by:


(1) Completing and returning the BE-180 by the due date of the survey; or


(2) If exempt, by completing the determination of reporting status section of the BE-180 survey and returning it to BEA by the due date of the survey.


(b) Who must report. A BE-180 report is required of each U.S. person that is a financial services provider or intermediary, or whose consolidated U.S. enterprise includes a separately organized subsidiary, or part, that is a financial services provider or intermediary, and that had financial services transactions with foreign persons in the categories covered by the survey during its 2019 fiscal year.


(c) BE-180 definition of financial services provider. The definition of financial services provider used for this survey is identical to the definition of the term as used in the North American Industry Classification System, United States, 2012, Sector 52-Finance and Insurance, and holding companies that own or influence, and are principally engaged in making management decisions for these firms (part of Sector 55-Management of Companies and Enterprises). For example, companies and/or subsidiaries and other separable parts of companies in the following industries are defined as financial services providers: Depository credit intermediation and related activities (including commercial banking, savings institutions, credit unions, and other depository credit intermediation); non-depository credit intermediation (including credit card issuing, sales financing, and other non-depository credit intermediation); activities related to credit intermediation (including mortgage and nonmortgage loan brokers, financial transactions processing, reserve, and clearinghouse activities, and other activities related to credit intermediation); securities and commodity contracts intermediation and brokerage (including investment banking and securities dealing, securities brokerage, commodity contracts and dealing, and commodity contracts brokerage); securities and commodity exchanges; other financial investment activities (including miscellaneous intermediation, portfolio management, investment advice, and all other financial investment activities); insurance carriers; insurance agencies, brokerages, and other insurance related activities; insurance and employee benefit funds (including pension funds, health and welfare funds, and other insurance funds); other investment pools and funds (including open-end investment funds, trusts, estates, and agency accounts, real estate investment trusts, and other financial vehicles); and holding companies that own, or influence the management decisions of, firms principally engaged in the aforementioned activities.


(d) What must be reported. (1) A U.S. person that had combined sales to, or purchases from, foreign persons that exceeded $3 million in the financial services categories covered by the survey during its 2019 fiscal year, on an accrual basis, is required to provide data on total sales and/or purchases of each of the covered types of financial services and must disaggregate the totals by country and by relationship to the foreign transactor (foreign affiliate, foreign parent group, or unaffiliated). The determination of whether a U.S. financial services provider is subject to this reporting requirement can be based on the judgment of knowledgeable persons in a company who can identify reportable transactions on a recall basis, with a reasonable degree of certainty, without conducting a detailed manual records search.


(2) A U.S. person that had combined sales to, or purchases from, foreign persons that were $3 million or less in the financial services categories covered by the survey during its 2019 fiscal year, on an accrual basis, is required to provide the total sales and/or purchases for each type of transaction in which they engaged. The $3 million threshold for sales and purchases should be applied to financial services transactions with foreign persons by all parts of the consolidated domestic U.S. Reporter. Because the $3 million threshold applies separately to sales and purchases, the mandatory reporting requirement may apply only to sales, only to purchases, or to both.


(e) Voluntary reporting of financial services transactions. If, during fiscal year 2019, combined sales and purchases were $3 million or less, on an accrual basis, the U.S. person may, in addition to providing the required total for each type of transaction, report sales at a country and affiliation level of detail on the applicable mandatory schedule(s). The estimates can be judgmental, that is, based on recall, without conducting a detailed records search.


(f) Exemption claims. Any U.S. person that receives the BE-180 survey form from BEA, but is not subject to the reporting requirements, must file an exemption claim by completing the determination of reporting status section of the BE-180 survey and returning it to BEA by the due date of the survey. This requirement is necessary to ensure compliance with reporting requirements and efficient administration of the Act by eliminating unnecessary follow-up contact.


(g) Covered types of financial services. Financial services covered by the BE-180 survey consist of transactions between U.S. financial services companies and foreign persons for:


(1) Brokerage services related to equity transactions;


(2) Other brokerage services;


(3) Underwriting and private placement services related to equity transactions;


(4) Underwriting and private placement services related to debt transactions;


(5) Financial management services;


(6) Credit-related services, except credit card services;


(7) Credit card services;


(8) Financial advisory and custody services;


(9) Securities lending services;


(10) Electronic funds transfer services; and


(11) Other financial services.


(h) Due date. A fully completed and certified BE-180 report, or qualifying exemption claim with the determination of reporting status section completed, is due to be filed with BEA not later than September 30, 2020 (or by October 30, 2020 for respondents that use BEA’s eFile system).


[85 FR 31052, May 22, 2020]


PARTS 806-899 [RESERVED]

CHAPTER IX – NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

SUBCHAPTER A – GENERAL REGULATIONS

PARTS 900-901 [RESERVED]

PART 902 – NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS


Authority:44 U.S.C. 3501 et seq.

§ 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.

(a) Purpose. This part collects and displays the control numbers assigned to information collection requirements of the National Oceanic and Atmospheric Administration (NOAA) by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act (PRA). NOAA intends that this part comply with the requirements of section 3507(c)(B)(i) of the PRA, which requires that agencies inventory and display a current control number assigned by the Director of OMB for each agency information collection requirement.


(b) Display.


CFR part or section where the information collection requirement is located
Current OMB control number (all numbers begin with 0648-)
15 CFR
Part 908-0025
Part 911-0157
917.11-0008, -0019, and -0034
917.22-0008, -0019, and -0034
917.30(b)-0008, -0019, and -0034
917.41-0008, -0019, and -0034
917.43(c)-0119
918.7-0147
Part 921, subpart B-0121
Part 923-0119
924.6-0141
928.3-0119
929.10-0141
935.9-0141
936.8-0141
937.8-0141
938.8-0141
941.11-0141
942.8-0141
943.10-0141
944.9-0141
Part 960, subpart B-0174
Part 970-0145
Part 971-0170
Part 981-0144

50 CFR
216.22-0178
216.23-0179
216.24(f)(2)-0387
216.24(h)(9)(iii)-0651
216.26-0084
216.27-0084
216.33-0084
216.37-0084
216.38-0084
216.39-0084
216.41-0084
216.45-0084
216.72-0699
216.74-0699
216.104-0151
216.106-0151
216.108-0151
216.145-0151
222.301(i)-0084
222.307-0230
222.308-0084
223.203(b)-0399
223.206(a)-0230
223.206(b) and (c)-0178
223.207(e)-0309
223.210-0613
224.105(c)-0580
229.4-0293
229.5-0292
229.6-0292
230.8-0311
253.15-0012
259.30-0090
259.35-0041
260.15-0266
260.36-0266
260.37-0266
260.96-0266
260.97-0266
260.103-0266
270.3-0556
270.6-0556
270.8-0556
270.10-0556
270.12-0556
270.13-0556
270.14-0556
270.15-0556
270.19-0556
270.20-0556
270.23-0556
296.5-0082
300.22-0148
300.22(b)(3)-0387
300.24-0202
300.25-0239
300.26-0690
300.26(c)-0239
300.26(d)-0239
300.27-0040
300.32-0218
300.34-0218
300.35-0361
300.45-0218
300.65(c)(5)-0575, -0592, -0665
300.65(d)-0575, -0592
300.65(h) through (l)-0512
300.67(a) through (j)-0592
300.67(k) and (l)-0592 and -0665
300.103(b) and (c)-0194
300.104-0194
300.105-0194
300.106-0194
300.107(c) and (l)-0194
300.107(k)-0724
300.108-0194
300.109(c)-0194
300.110(e)-0194
300.111-0194
300.112-0194
300.113(a)-0194
300.123-0205
300.124(b)-0016
300.125-0358
300.152-0228
300.153(b)-0228
300.154(b)-0228
300.154(c)-0228
300.154(d)-0228
300.206(b)(2)-0651
300.207(c)-0651
300.208(c)-0651
300.209(c)-0651
300.212-0595
300.213-0595
300.215-0649
300.217-0595
300.218-0649
300.219-0596
300.225-0649
300.322-0732
300.323-0732
300.324-0739
300.333-0304
300.336-0304
300.337-0304
300.338-0304
300.339-0304
300.341-0304

600.205-0314

600.215-0314
600.235-0192

600.501-0089
600.502-0075
600.503-0354 and -0356
600.504-0075
600.506-0075
600.507-0075
600.508-0329
600.510-0075
600.512-0309
600.520-0075
600.630-0314
600.725-0346
600.745-0309
600.747-0346
600.1001-0376
600.1003-0376
600.1005-0376
600.1006-0376
600.1009-0376
600.1010-0376 and -0413
600.1011-0376
600.1012-0376
600.1013-0376
600.1014-0376
622.4-0013 and -0205
622.5-0016
622.5(a)(1)(vii)-0591
622.6-0358
622.8-0205 and -0593
622.9-0205
622.15-0013 and -0262
622.16-0551
622.18-0205 and -0593
622.19-0205
622.20-0205
622.21-0551
622.22-0551
622.26-0013 and -0016
622.27-0593
622.28-0544
622.40(a)(2)-0205
622.40(d)(2)-0013
622.41-0345
622.41(a)-0016 and -0305
622.41(g)(3)-0345
622.45-0365
622.45(a)-0013
622.50-0205
622.51-0016
622.51(a)(2)-0543
622.51(a)(3)-0542
622.51(b)-0013
622.52-0593
622.53-0345
622.70-0205
622.71-0016
622.75-0205
622.90(a)-0013
622.170-0205
622.170(c)-0013
622.171-0205
622.172-0013 and -0551
622.176-0016
622.176(a)(2)-0593
622.176(b)(2)-0593
622.176(c)-0013
622.176(d)-0593
622.177-0359
622.178-0603
622.192(h)-0365
622.200-0205
622.200(c)-0013
622.201-0205
622.203-0016
622.203(a)-0591
622.203(b)-0013
622.204-0593
622.205-0544
622.207-0345
622.220-0205
622.221-0016
622.225-0205
622.240-0205
622.240(b)-0013
622.241-0205
622.242-0016
622.242(b)-0013
622.243-0359
622.244-0593
622.270-0205
622.270(d)-0013
622.271-0016
622.271(c)-0013
622.300-0593
622.370-0205
622.371-0205
622.372-0205
622.373-0205
622.374-0016
622.374(c)-0013
622.376-0359
622.400-0205
622.402-0358 and -0359
622.430-0359
622.450-0359
622.470-0205
622.473-0013

635.2-0327

635.4(b)-0327
635.4(c)-0327

635.4(d)-0327
635.4(e)(4)-0205
635.4(g)-0202 and -0205
635.4(j)-0327

635.5(a)-0371, -0328, and -0452
635.5(a)(4)-0328
635.5(b)-0013 and -0239
635.5(c)-0328
635.5(d)-0323
635.5(f)-0380
635.6(c)-0373
635.7(c)-0374
635.9(e)-0328
635.14(d)-0677
635.15(a)(2), (c)(2) and (k)(4)-0677
635.21(d)-0202
635.26-0247
635.31(b)-0216
635.32-0309
635.33-0338
635.42-0040
635.43-0040
635.44-0040
635.46-0363
635.69(a) and (e)(4)-0372
648.4-0202, -0212, -0529, and -0679
648.5-0202
648.6-0202 and -0555
648.7-0018, -0202, -0212, -0229, -0590, and -0605
648.8-0350
648.9-0202, -0404, and -0529
648.10-0202, -0529, and -0605
648.11-0202, -0546, -0555, and -0679
648.13-0391 and -0481
648.14-0202, -0212, -0469, -0602, and -0605
648.15-0202
648.15(b)-0558
648.17-0202
648.26-0601
648.53-0202 and -0491
648.54-0202
648.56-0321
648.58-0202 and -0416
648.60-0491 and -0541
648.70-0238
648.74-0240
648.76-0202
648.80-0202, -0422, and -0602
648.81-0202, -0412, and -0605
648.82-0202 and -0605
648.84-0202 and -0351
648.85-0202, -0212, and -0605
648.86-0202, -0391, and -0605
648.87-0202 and -0605
648.88-0202 and -0605
648.89-0202, -0412, and -0605
648.90-0202 and -0605
648.91-0202
648.92-0202 and -0561
648.93-0202
648.94-0202 and -0489
648.95-0202
648.96-0202
648.100-0202
648.106-0202
648.122-0469
648.123-0305
648.144-0305
648.160-0202
648.205-0404
648.207-0348-0043, 0348-0044, 0348-0040, and 0348-0046
648.262-0202
648.264-0351
648.291-0590
648.322-0480 and -0489
654.6-0358 and -0359
660.13-0573, -0619, and -0738
660.14-0573
660.15-0619 and -0738
660.16-0593
660.17-0619 and -0738
660.20-0355
660.25-0203, -0620, and -0737
660.113-0271, -0573, -0618, -0619, -0737, and -0794
660.114-0618
660.140-0593, -0619, -0620, and -0737
660.150-0593 and -0620
660.160-0593 and -0620
660.216-0593
660.219-0352
660.316-0593
660.319-0352
660.404-0433
660.408-0433
660.504-0361
660.512-0204
660.704-0361
660.705(l), (o), and (p)-0498
660.707-0204
660.708-0498
660.712(d) and (f)-0498
660.713(f)(2) through (g)(5)-0498
663.4-0271
663.10-0203
663.11-0203
663.22-0305
663.33-0203
665.13-0463, -0490, -0577, -0584, -0586, -0589, and -0664
665.14-0214, -0462, -0577, -0584, -0586, -0589, and -0664
665.16-0361, -0584, -0586, -0589, and -0664
665.17-0214 and -0490
665.19-0441, -0519, and -0584
665.20-0612
665.105-0214
665.124-0463
665.126-0462
665.128-0360
665.142-0490 and -0586
665.144-0214
665.145-0214
665.162-0490
665.203-0490 and -0577
665.205-0214
665.207-0214
665.224-0463
665.226-0462
665.228-0360
665.242-0490 and -0586
665.244-0214
665.246-0360
665.247-0214
665.262-0490
665.404-0490 and -0584
665.407-0214
665.424-0463
665.426-0462
665.428-0360
665.442-0490 and -0586
665.444-0214
665.445-0214
665.462-0490
665.603-0490
665.606-0214
665.624-0463
665.628-0360
665.642-0490 and -0586
665.644-0214
665.445-0214
665.662-0490
665.801-0490 and -0589
665.803-0214
665.804-0360
665.807-0490
665.808-0214
665.815-0456
665.819-0689
665.905-0664
665.935-0664
665.965-0664
679.4-0206, -0272, -0334, -0393, -0513, -0545, -0565, -0665, and -0766
679.5(a)-0213, -0269, and -0272
679.5(b), (h), and (k)-0213
679.5(c), (e), and (f)-0213, -0272, -0330, -0513, and -0515
679.5(e) and (f)-0401
679.5(g)-0213, -0272, and -0330
679.5(l)(1) through (l)(5)-0272
679.5(l)(7)-0711
679.5(l)(8)-0665
679.5(n)-0269
679.5(p)-0428
679.5(q)-0513
679.5(r)-0213, -0445, and -0545
679.5(s)-0213, -0445, and -0565
679.5(t)-0665
679.5(u)-0206 and -0711
679.5(v)-0272
679.5(w)-0272
679.6-0206
679.7-0206, -0269, -0272, -0316, -0318, -0330, -0334, -0393, -0445, -0513, -0514, -0545, -0565
679.7(a)(7)(i)-0206
679.7(a)(7)(vii) through (ix)-0334
679.7(b)(6) and (7) and (c)(3) and (c)(4)-0206 and -0334
679.7(f)(1) through (f)(7) and (f)(9) through (16)-0269 and -0272
679.7(f)(8)-0206 and -0334
679.7(k)-0393 and -0330
679.7(n)(1)-0334
679.7(n)(2) and (n)(4) through (8)-0545
679.7(n)(3)-0445
679.20(a)(7)(viii)-0743
679.20(a)(8)(iii)-0206
679.21(f) and (g)-0393 and -0401
679.22(a)-0206
679.24-0353

679.26-0316
679.28(a)-0213 and -0330
679.28(b) through (e) and (i)-0330
679.28(f)-0206 and -0445
679.28(h)-0213 and -0515
679.28(j) and (k)-0515
679.28(l)-0330
679.31(c)-0269
679.32(c)(1) through (3)-0269
679.32(c)(3)-0269 and -0318
679.32(d)-0269, -0318, and -0330
679.32(e)-0269
679.33-0711
679.40-0272
679.41(a)-0272, -0592
679.41(b), (c)(1) through (9), (d) through (f), (g)(1) through (4), (h) through (k), (m), and (n)-0272
679.41(c)(10), (g)(5) through (8), and (l)-0272 and -0665
679.42(a), and (c) through (j)-0272 and -0665
679.42(b), (k)(2), and (l)-0353
679.42(f)(1)-0272, -0592
679.42(f)(6)-0272, -0592, -0665
679.42(k)-0445
679.43-0272, -0318, -0334, -0401, -0545, -0565, -0569, and -0711
679.45-0272, -0592, and -0711
679.50(a)-0206, -0269, and -0272
679.51-0206, -0269, -0272, -0318, -0401, -0513, -0545, and -0565
679.52-0318
679.53-0318
679.54-0318
679.55-0206, -0272, and -0711
679.61(a) through (f)-0393 and -0401
679.62-0393
679.63-0213 and -0330
679.65-0213, -0515, and -0633
679.66-0711
679.67-0711
679.80-0545
679.81-0545
679.82-0545
679.83-0545
679.84-0213, -0330, and -0545
679.84(c)(7)-0318
679.85-0545
679.90-0565
679.91-0565
679.93-0213, -0330, and -0565
679.93(c)(7)-0318
679.94-0564
679.95-0711
679.100(a)-0330 and -0515.
679.100(b)-0318, -0330, and -0515.
679.100(c)-0515
679.100(d)-0330
679.110(a) through (f)-0206, -0334, -0564, -0700
679.120(b)-0330
679.120(c), (d), and (e)-0318
680.4(a) through (q)-0514
680.5(a) and (h) through (l)-0514
680.5(b)-0515
680.5(f), (g), (m)-0711.
680.6-0518
680.20-0516
680.21-0514
680.22-0334
680.23(d)(1) and (d)(2)-0445
680.23(e), (f), and (g)-0330
680.40(f), (g), (h), (i), (j), (k), (l), and (m)-0514
680.41-0514
680.42(a) and (b)-0514
680.43-0514
680.44-0514
697.4(a), (d) and (e)-0202
697.5-0202
697.6-0202
697.7-0202
697.8-0350
697.12-0202
697.21-0351
697.22-0309


1 And -0305.


[60 FR 39248, Aug. 2, 1995]


Editorial Note:For Federal Register citations affecting § 902.1, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.


Editorial Note 2:At 79 FR 10010, Feb. 24, 2014, § 902.1 was amended by removing entries for 679.7(a)(7)(vii) through (ix), 679.7(n)(1)(x), 679.7(f), 679.7(f)(8)(ii), 679.7(k), 679.7(n)(4)(ii), and 679.20(a)(8)(ii) from the table in paragraph (b); however, the amendment could not be incorporated because none of these entries were in the table.

PART 903 – PUBLIC INFORMATION


Authority:5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; Reorg. Plan No. 2 of 1965, 15 U.S.C. 311 note; 32 FR 9734, 31 FR 10752.

§ 903.1 Access to information.

The rules and procedures regarding public access to the records of the National Oceanic and Atmospheric Administration are found at 15 CFR part 4.


[57 FR 35749, Aug. 11, 1992]


PART 904 – CIVIL PROCEDURES


Authority:16 U.S.C. 1801 et seq., 16 U.S.C. 1531 et seq., 16 U.S.C. 1361 et seq., 16 U.S.C. 3371 et seq., 16 U.S.C. 1431 et seq., 16 U.S.C. 6901 et seq., 16 U.S.C. 773 et seq., 16 U.S.C. 951 et seq., 16 U.S.C. 5001 et seq., 16 U.S.C. 3631 et seq., 42 U.S.C. 9101 et seq., 30 U.S.C. 1401 et seq., 16 U.S.C. 971 et seq., 16 U.S.C. 781 et seq., 16 U.S.C. 2431 et seq., 16 U.S.C. 972 et seq., 16 U.S.C. 916 et seq., 16 U.S.C. 1151 et seq., 16 U.S.C. 3601 et seq., 16 U.S.C. 1851 note; 15 U.S.C. 330 et seq., 16 U.S.C. 2461 et seq., 16 U.S.C. 5101 et seq., 16 U.S.C. 1371 et seq., 16 U.S.C. 3601 et seq., 16 U.S.C. 1822 note, 16 U.S.C. 4001 et seq., 16 U.S.C. 5501 et seq., 16 U.S.C. 5601 et seq., 16 U.S.C. 973 et seq., 16 U.S.C. 1827a, 16 U.S.C. 7701 et seq., 16 U.S.C. 7801 et seq., 16 U.S.C. 1826g, 51 U.S.C. 60101 et seq., 16 U.S.C. 7001 et seq., 16 U.S.C. 7401 et seq., 16 U.S.C. 2401 et seq., 16 U.S.C. 1826k note, 1857 note, 22 U.S.C. 1980, Pub. L. 116-340, 134 Stat. 5128.



Source:71 FR 12448, Mar. 10, 2006, unless otherwise noted.

Subpart A – General

§ 904.1 Purpose and scope.

(a) This part sets forth the procedures governing NOAA’s administrative proceedings for assessment of civil penalties, suspension, revocation, modification, or denial of permits, issuance and use of written warnings, and release or forfeiture of seized property.


(b) This subpart defines terms appearing in this part and sets forth rules for the filing and service of documents in administrative proceedings covered by this part.


(c) The following statutes authorize NOAA to assess civil penalties, impose permit sanctions, issue written warnings, and/or seize and forfeit property in response to violations of those statutes:


(1) Anadromous Fish Products Act, 16 U.S.C. 1822 note;


(2) Antarctic Conservation Act of 1978, 16 U.S.C. 2401 et seq.;


(3) Antarctic Marine Living Resources Convention Act of 1984, 16 U.S.C. 2431 et seq.;


(4) Antarctic Mineral Resources Protection Act of 1990, 16 U.S.C. 2461 et seq.;


(5) Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. 5101 et seq.;


(6) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601 et seq.;


(7) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;


(8) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971 et seq.;


(9) Billfish Conservation Act of 2012, 16 U.S.C. 1827a;


(10) DESCEND Act of 2020, Public Law 116-340, 134 Stat. 5128;


(11) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et seq.;


(12) Dolphin Protection Consumer Information Act, 16 U.S.C. 1371 et seq.;


(13) Driftnet Impact Monitoring, Assessment, and Control Act, 16 U.S.C. 1822 note;


(14) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972 et seq.;


(15) Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.;


(16) Ensuring Access to Pacific Fisheries Act, 16 U.S.C. 7701 et seq. (North Pacific), 16 U.S.C. 7801 et seq. (South Pacific);


(17) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001 et seq.;


(18) Fisherman’s Protective Act of 1967, 22 U.S.C. 1980;


(19) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151 et seq.;


(20) High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C. 1826g;


(21) High Seas Fishing Compliance Act, 16 U.S.C. 5501 et seq.;


(22) Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.;


(23) Land Remote Sensing Policy Act of 1992, as amended, 51 U.S.C. 60101 et seq.;


(24) Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.;


(25) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq.;


(26) National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.;


(27) North Pacific Anadromous Stocks Convention Act of 1992, 16 U.S.C. 5001 et seq.;


(28) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773 et seq.;


(29) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C. 5601 et seq.;


(30) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et seq.;


(31) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631 et seq.;


(32) Pacific Whiting Act of 2006, 16 U.S.C. 7001 et seq.;


(33) Port State Measures Agreement Act of 2015, 16 U.S.C. 7401 et seq.;


(34) Shark Conservation Act of 2010, 16 U.S.C. 1826k note, 1857 note;


(35) South Pacific Tuna Act of 1988, 16 U.S.C. 973 et seq.;


(36) Sponge Act, 16 U.S.C. 781 et seq.;


(37) Tuna Conventions Act of 1950, 16 U.S.C. 951 et seq.;


(38) Weather Modification Reporting Act, 15 U.S.C. 330 et seq.;


(39) Western and Central Pacific Fisheries Convention Implementation Act, 16 U.S.C. 6901 et seq.; and


(40) Whaling Convention Act of 1949, 16 U.S.C. 916 et seq.


(d) The procedures set forth in this part are intended to apply to administrative proceedings under these and any other statutes or authorities administered by NOAA.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38935, June 30, 2022]


§ 904.2 Definitions and acronyms.

Unless the context otherwise requires, or as otherwise noted, terms in this Part have the meanings prescribed in the applicable statute or regulation. In addition, the following definitions apply:


Administrator means the Administrator of NOAA or a designee.


Agency means the National Oceanic and Atmospheric Administration (NOAA).


Applicable statute means a statute cited in § 904.1(c), and any regulations issued by NOAA to implement it.


Authorized officer means:


(1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG);


(2) Any special agent or fishery enforcement officer of NMFS;


(3) Any officer designated by the head of any Federal or state agency that has entered into an agreement with the Secretary of Commerce to enforce the provisions of any statute administered by NOAA; or


(4) Any USCG personnel accompanying and/or acting under the direction of any person described in paragraph (1), (2), or (3) of this definition.


Citation means a written warning (see section 311(c) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1861(c), and section 11(c) of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773i(c)).


Civil penalty means a civil administrative monetary penalty assessed under the civil administrative process described in this part.


Decision means an initial or final administrative decision of the Judge.


Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but does not include inquiries regarding procedures, scheduling, and status.


Final administrative decision means an order or decision of NOAA assessing a civil penalty, permit sanction, or written warning, which is not subject to further Agency review under this part, and which is subject to collection proceedings or judicial review in an appropriate Federal district court as authorized by law.


Forfeiture includes, but is not limited to, surrender or relinquishment of any claim to an item by written agreement, or otherwise; or extinguishment of any claim to, and transfer of title to an item to the U.S. Government by court order or by order of the Administrator under a statute.


Hearing means a civil administrative hearing on a NOVA, NOPS and/or NIDP.


Initial decision means a decision of the Judge that, under applicable statute and regulation, is subject to review by the Administrator.


Judge means Administrative Law Judge.


NIDP means Notice of Intent to Deny Permit.


NMFS means the National Marine Fisheries Service.


NOAA (see Agency) means either the Administrator or a designee acting on behalf of the Administrator.


NOPS means Notice of Permit Sanction.


NOVA means Notice of Violation and Assessment of civil penalty.


Party means the respondent and the Agency; a joint and several respondent, vessel owner, or permit holder, if they enter an appearance; and any other person allowed to participate under § 904.204(b).


Permit means any license, permit, certificate, or other approval issued by NOAA under an applicable statute.


Permit holder means the holder of a permit or any agent or employee of the holder, and includes the owner and operator of a vessel for which the permit was issued.


Permit sanction means suspension, revocation, or modification of a permit (see § 904.320).


Respondent means a person issued a written warning, NOVA, NOPS, NIDP or other notice.


Settlement agreement means any agreement resolving all or part of an administrative or judicial action. The terms of such an agreement may include, but are not limited to, payment of a civil penalty, and/or imposition of a permit sanction.


USCG means the U.S. Coast Guard.


Vessel owner means the owner of any vessel that may be liable in rem for any civil penalty, or whose permit may be subject to sanction in proceedings under this part.


Written warning means a notice in writing to a person that a violation has been documented against the person or against the vessel which is owned or operated by the person, where no civil penalty or permit sanction is imposed or assessed.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38936, June 30, 2022]


§ 904.3 Filing and service.

(a) Service of a NOVA (§ 904.101), NOPS (§ 904.302), NIDP (§ 904.303), Notice of Proposed Forfeiture (§ 904.504), Notice of Seizure (§ 904.501), Notice of Summary Sale (§ 904.505), Written Warning (§ 904.402), or Initial Decision (§ 904.271) may be made by certified mail (return receipt requested), electronic transmission, or third party commercial carrier to an addressee’s last known address or by personal delivery. Service of a notice under this subpart will be considered effective upon receipt.


(b) Service of documents and papers, other than those described in paragraph (a) of this section, may be made by first class mail (postage prepaid), electronic transmission, or third party commercial carrier, to an addressee’s last known address or by personal delivery. Service of documents and papers will be considered effective upon the date of postmark (or as otherwise shown for government-franked mail), delivery to third party commercial carrier, electronic transmission, or upon personal delivery.


(c) Whenever this part requires service of a document or other paper referred to in paragraph (a) or (b) of this section, such service may effectively be made on the agent for service of process, on the attorney for the person to be served, or other representative. Refusal by the person to be served (including an agent, attorney, or representative) of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal. In cases where a document or paper described in paragraph (a) of this section is returned unclaimed, service will be considered effective if the U.S. Postal Service provides an affidavit stating that the party was receiving mail at the same address during the period when certified service was attempted.


(d) Any documents and other papers filed or served must be signed:


(1) By the person or persons filing the same;


(2) By an officer thereof if a corporation;


(3) By an officer or authorized employee if a government instrumentality; or


(4) By an attorney or other person having authority to sign.


[87 FR 38936, June 30, 2022]


§ 904.4 Computation of time periods.

For a NOVA, NOPS or NIDP, the 30-day response period begins to run on the date the notice is received. All other time periods begin to run on the day following the service date of the document, paper, or event that begins the time period. Saturdays, Sundays, and Federal holidays will be included in computing such time, except that when such time expires on a Saturday, Sunday, or Federal holiday, in which event such period will be extended to include the next business day. This method of computing time periods also applies to any act, such as paying a civil penalty, required by this part to take place within a specified period of time. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays will be excluded in the computation.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38936, June 30, 2022]


§ 904.5 Appearances.

(a) A party may appear in person or by or with counsel or other representative.


(b) Whenever an attorney or other representative contacts the Agency on behalf of another person with regard to any matter that has resulted in, or may result in, a written warning, a NOVA, NOPS, NIDP, or a forfeiture proceeding, that attorney or other representative shall file a Notice of Appearance with the Agency. Such notice shall indicate the name of the person on whose behalf the appearance is made.


(c) Each attorney or other representative who represents a party in any hearing shall file a written Notice of Appearance with the Judge. Such notice shall indicate the name of the case, the docket number, and the party on whose behalf the appearance is made.


Subpart B – Civil Penalties

§ 904.100 General.

This subpart sets forth the procedures governing NOAA administrative proceedings for the assessment of civil penalties under the statutes cited in § 904.1(c).


§ 904.101 Notice of violation and assessment (NOVA).

(a) A NOVA will be issued by NOAA and served on the respondent(s). The NOVA will contain:


(1) A concise statement of the facts believed to show a violation;


(2) A specific reference to the provisions of the Act, regulation, license, permit, agreement, or order allegedly violated;


(3) The findings and conclusions upon which NOAA bases the assessment;


(4) The amount of the civil penalty assessed; and


(5) Information concerning the respondent’s rights upon receipt of the NOVA, and will be accompanied by a copy of the regulations in this part governing the proceedings.


(b) In assessing a civil penalty, NOAA will take into account information available to the Agency concerning any factor to be considered under the applicable statute, and any other information that justice or the purposes of the statute require.


(c) The NOVA may also contain a proposal for compromise or settlement of the case. NOAA may also attach documents that illuminate the facts believed to show a violation.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022]


§ 904.102 Procedures upon receipt of a NOVA.

(a) The respondent has 30 days from receipt of the NOVA in which to respond. During this time the respondent may:


(1) Accept the penalty or compromise penalty, if any, by taking the actions specified in the NOVA;


(2) Seek to have the NOVA amended, modified, or rescinded under paragraph (b) of this section;


(3) Request a hearing under § 904.201(a);


(4) Request an extension of time to respond under paragraph (c) of this section; or


(5) Take no action, in which case the NOVA becomes a final administrative decision in accordance with § 904.104.


(b) The respondent may seek amendment or modification of the NOVA to conform to the facts or law as that person sees them by notifying Agency counsel at the telephone number or address specified in the NOVA. If amendment or modification is sought, Agency counsel will either amend the NOVA or decline to amend it, and so notify the respondent.


(c) The respondent may, within the 30-day period specified in paragraph (a) of this section, request an extension of time to respond. Agency counsel may grant an extension of up to 30 days unless he or she determines that the requester could, exercising reasonable diligence, respond within the 30-day period. If Agency counsel does not respond to the request within 48 hours of its receipt, the request is granted automatically for the extension requested, up to a maximum of 30 days. A telephonic response to the request within the 48-hour period is considered an effective response, and will be followed by written confirmation.


(d) Agency counsel may, for good cause, grant an additional extension beyond the 30-day period specified in paragraph (c) of this section.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022]


§ 904.103 [Reserved]

§ 904.104 Final administrative decision.

(a) If no request for hearing is timely filed as provided in § 904.201(a), the NOVA becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOVA or on the last day of any delay period granted.


(b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative decision is as provided in subpart C of this part.


§ 904.105 Payment of final civil penalty.

(a) Respondent must make full payment of the civil penalty within 30 days of the date upon which the NOVA becomes effective as the final administrative decision and order of NOAA under § 904.104 or the date of the final administrative decision as provided in subpart C of this part, as directed by NOAA. Payment must be made in accordance with the bill and instructions provided by NOAA.


(b) Upon any failure to pay the civil penalty assessed, NOAA may request the U.S. Department of Justice to recover the amount assessed in any appropriate district court of the United States, may act under § 904.106, or may commence any other lawful action.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022]


§ 904.106 Compromise of civil penalty.

(a) NOAA, in its sole discretion, may compromise, modify, remit, or mitigate, with or without conditions, any civil penalty assessed, or which is subject to assessment, except as stated in paragraph (d) of this section.


(b) The compromise authority of NOAA under this section may be exercised either upon the initiative of NOAA or in response to a request by the respondent or a representative subject to the requirements of § 904.5. Any such request should be sent to Agency counsel at the address specified in the NOVA.


(c) Neither the existence of the compromise authority of NOAA under this section nor NOAA’s exercise thereof at any time changes the date upon which a NOVA becomes final.


(d) NOAA will not compromise, modify, or remit a civil penalty assessed, or subject to assessment, under the Deep Seabed Hard Mineral Resources Act while an action to review or recover the civil penalty is pending in a court of the United States.


§ 904.107 Joint and several respondents.

(a) A NOVA may assess a civil penalty against two or more respondents jointly and severally. Each joint and several respondent is liable for the entire penalty but, in total, no more than the amount finally assessed may be collected from the respondents.


(b) A hearing request by one joint and several respondent is considered a request by the other joint and several respondent(s). Agency counsel, having received a hearing request from one joint and several respondent, will send a copy of it to the other joint and several respondent(s) in the case. However, if the requesting joint and several respondent settles with the Agency prior to the hearing, upon notification by the Agency, any remaining joint and several respondent(s) must affirmatively request a hearing within the time period specified or the case will be removed from the hearing docket as provided in § 904.213.


(c) A final administrative decision by the Judge or the Administrator after a hearing requested by one joint and several respondent is binding on all parties including all other joint and several respondent(s), whether or not they entered an appearance unless they have otherwise resolved the matter through settlement with the Agency.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 20222]


§ 904.108 Factors considered in assessing civil penalties.

(a) Factors to be taken into account in assessing a civil penalty, depending upon the statute in question, may include the nature, circumstances, extent, and gravity of the alleged violation; the respondent’s degree of culpability, any history of prior violations, and ability to pay; and such other matters as justice may require.


(b) NOAA may, in consideration of a respondent’s ability to pay, increase or decrease a civil penalty from an amount that would otherwise be warranted by the other relevant factors. A civil penalty may be increased if a respondent’s ability to pay is such that a higher civil penalty is necessary to deter future violations, or for commercial violators, to make a civil penalty more than a cost of doing business. A civil penalty may be decreased if the respondent establishes that he or she is unable to pay an otherwise appropriate civil penalty amount.


(c) Except as provided in paragraph (g) of this section, if a respondent asserts that a civil penalty should be reduced because of an inability to pay, the respondent has the burden of proving such inability by providing verifiable, complete, and accurate financial information to NOAA. NOAA will not consider a respondent’s inability to pay unless the respondent, upon request, submits such financial information as Agency counsel determines is adequate to evaluate the respondent’s financial condition. Depending on the circumstances of the case, Agency counsel may require the respondent to complete a financial information request form, answer written interrogatories, or submit independent verification of his or her financial information. If the respondent does not submit the requested financial information, he or she will be presumed to have the ability to pay the civil penalty.


(d) Financial information relevant to a respondent’s ability to pay includes but is not limited to, the value of respondent’s cash and liquid assets; ability to borrow; net worth; liabilities; income tax returns; past, present, and future income; prior and anticipated profits; expected cash flow; and the respondent’s ability to pay in installments over time. A respondent will be considered able to pay a civil penalty even if he or she must take such actions as pay in installments over time, borrow money, liquidate assets, or reorganize his or her business. NOAA’s consideration of a respondent’s ability to pay does not preclude an assessment of a civil penalty in an amount that would cause or contribute to the bankruptcy or other discontinuation of the respondent’s business.


(e) Financial information regarding respondent’s ability to pay should be submitted to Agency counsel as soon as possible after the receipt of the NOVA. If a respondent has requested a hearing on the violation alleged in the NOVA and wants the Initial Decision of the Judge to consider his or her inability to pay, verifiable, complete, and accurate financial information must be submitted to Agency counsel at least 30 days in advance of the hearing, except where the applicable statute expressly provides for a different time period. No information regarding the respondent’s ability to pay submitted by the respondent less than 30 days in advance of the hearing will be admitted at the hearing or considered in the Initial Decision of the Judge, unless the Judge rules otherwise. If the Judge decides to admit any information related to the respondent’s ability to pay submitted less than 30 days in advance of the hearing, Agency counsel will have 30 days to respond to the submission from the date of admission. In deciding whether to submit such information, the respondent should keep in mind that the Judge may assess a civil penalty either greater or smaller than that assessed in the NOVA.


(f) Issues regarding ability to pay will not be considered in an administrative review of an Initial Decision if the financial information was not previously presented by the respondent to the Judge prior to or at the hearing.


(g) Whenever a statute requires NOAA to take into consideration a respondent’s ability to pay when assessing a civil penalty, NOAA will take into consideration information available to it concerning a respondent’s ability to pay. In all cases, the NOVA will advise, in accordance with § 904.102, that the respondent may seek to have the civil penalty amount modified by Agency counsel on the basis that he or she does not have the ability to pay the civil penalty assessed. A request to have the civil penalty amount modified on this basis must be made in accordance with § 904.102 and should be accompanied by supporting financial information. Agency counsel may request that the respondent submit such additional verifiable, complete and accurate financial information as Agency counsel determines is necessary to evaluate the respondent’s financial condition (such as by responding to a financial information request form or written interrogatories, or by authorizing independent verification of respondent’s financial condition). A respondent’s failure to provide the requested information may serve as the basis for inferring that such information would not have supported the respondent’s assertion of inability to pay the civil penalty assessed in the NOVA.


(h) Whenever a statute requires NOAA to take into consideration a respondent’s ability to pay when assessing a civil penalty and the respondent has requested a hearing on the violation alleged in the NOVA, the Agency must submit information on the respondent’s financial condition so that the Judge may consider that information, along with any other factors required to be considered, in the Judge’s assessment of a civil penalty. Agency counsel may obtain such financial information through discovery procedures under § 904.240, or otherwise. A respondent’s refusal or failure to respond to such discovery requests may serve as the basis for inferring that such information would have been adverse to any claim by respondent of inability to pay the assessed civil penalty, or result in respondent being barred from asserting financial hardship.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022]


Subpart C – Hearing and Appeal Procedures

General

§ 904.200 Scope and applicability.

(a) This subpart sets forth the procedures governing the conduct of hearings and the issuance of initial and final administrative decisions of NOAA involving alleged violations of the laws cited in § 904.1(c) and any other laws or authorities administered by NOAA and regulations implementing these laws, including civil penalty assessments and permit sanctions and denials. By separate regulation, these rules may be applied to other proceedings.


(b) The Judge is delegated authority to make the initial or final administrative decision of the Agency in proceedings subject to the provisions of this subpart, and to take actions to promote the efficient and fair conduct of hearings as set out in this subpart. The Judge has no authority to rule on constitutional issues or challenges to the validity of regulations promulgated by the Agency or statutes administered by NOAA.


(c) This subpart is not an independent basis for claiming the right to a hearing but, instead, prescribes procedures for the conduct of hearings, the right to which is provided by other authority.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022]


§ 904.201 Hearing requests and case docketing.

(a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the request must be dated and in writing, and must be served in conformance with § 904.3 on the Agency counsel specified in the notice. The respondent must either attach a copy of the NOVA, NOPS or NIDP or refer to the relevant NOAA case number. Agency counsel will promptly forward the request for hearing to the Office of Administrative Law Judges.


(b) Any party requesting a hearing under § 904.102(a)(3) must provide current contact information, including a working telephone number and email address (if one is available). The Agency and the Office of Administrative Law Judges must be promptly notified of any changes to this information.


(c) If a written application is made to NOAA after the expiration of the time period established in this part for the required filing of hearing requests, Agency counsel will promptly forward the request for hearing along with documentation of service and any other relevant materials to the Office of Administrative Law Judges for a determination on whether such request shall be considered timely filed. Determinations by the Judge regarding untimely hearing requests under this section shall be in writing.


(d) Upon its receipt for filing in the Office of Administrative Law Judges, each request for hearing will be promptly assigned a docket number and thereafter the proceeding will be referred to by such number. Written notice of the assignment of hearing to a Judge will promptly be given to the parties.


[87 FR 38937, June 30, 2022]


§ 904.202 Filing of documents.

(a) Pleadings, papers, and other documents in the proceeding must be filed directly with the Office of Administrative Law Judges, be served on all other parties, and conform with all applicable requirements of § 904.3.


(b) Unless otherwise ordered by the Judge, discovery requests and answers will be served on the opposing party and need not be filed with the Judge.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022]


§ 904.203 [Reserved]

§ 904.204 Duties and powers of Judge.

The Judge has all powers and responsibilities necessary to preside over the parties and the hearing, to hold prehearing conferences, to conduct the hearing, and to render decisions in accordance with these regulations and 5 U.S.C. 554 through 557, including, but not limited to, the authority and duty to do the following:


(a) Rule on timeliness of hearing requests pursuant to § 904.201(c);


(b) Rule on a request to participate as a party in the hearing by allowing, denying, or limiting such participation (such ruling will consider views of the parties and be based on whether the requester could be directly and adversely affected by the determination and whether the requester can be expected to contribute materially to the disposition of the proceedings);


(c) Schedule the time, place, and manner of conducting the pre-hearing conference or hearing, continue the hearing from day to day, adjourn the hearing to a later date or a different place, and reopen the hearing at any time before issuance of the decision, all in the Judge’s discretion, having due regard for the convenience and necessity of the parties and witnesses;


(d) Schedule and regulate the course of the hearing and the conduct of the participants and the media, including the power to rule on motions to close the hearing in the interests of justice; seal the record from public scrutiny to protect privileged information, trade secrets, and confidential commercial or financial information; and strike testimony of a witness who refuses to answer a question ruled to be proper;


(e) Administer oaths and affirmations to witnesses;


(f) Rule on contested discovery requests, establish discovery schedules, and, whenever the ends of justice would thereby be served, take or cause depositions or interrogatories to be taken and issue protective orders under § 904.251(h);


(g) Rule on motions, procedural requests, and similar matters;


(h) Receive, exclude, limit, and otherwise rule on offers of proof and evidence;


(i) Examine and cross-examine witnesses and introduce into the record on the Judge’s own initiative documentary or other evidence;


(j) Rule on requests for appearance of witnesses or production of documents and take appropriate action upon failure of a party to effect the appearance or production of a witness or document ruled relevant and necessary to the proceeding; as authorized by law, issue subpoenas for the appearance of witnesses or production of documents;


(k) Require a party or witness at any time during the proceeding to state his or her position concerning any issue or his or her theory in support of such position;


(l) Take official notice of any matter not appearing in evidence that is among traditional matters of judicial notice; or of a non-privileged document required by law or regulation to be filed with or published by a duly constituted government body; or of any reasonably available public document; provided that the parties will be advised of the matter noticed and given reasonable opportunity to show the contrary;


(m) Assess a civil penalty or impose a permit sanction, condition, revocation, or denial of permit application, taking into account all of the factors required by applicable law;


(n) Prepare and submit a decision or other appropriate disposition document and certify the record;


(o) Award attorney fees and expenses as provided by applicable statute or regulation;


(p) Grant preliminary or interim relief; or


(q) Impose, upon the motion of any party, or sua sponte, appropriate sanctions.


(1) Sanctions may be imposed when any party, or any person representing a party, in an administrative proceeding under this part has failed to comply with this part, or any order issued under this part, and such failure to comply:


(i) Materially injures or prejudices another party by causing additional expenses; prejudicial delay; or other injury or prejudice;


(ii) Is a clear and unexcused violation of this part, or any order issued under this part; or


(iii) Unduly delays the administrative proceeding.


(2) Sanctions that may be imposed include, but are not limited to, one or more of the following:


(i) Issuing an order against the party;


(ii) Rejecting or striking any testimony or documentary evidence offered, or other papers filed, by the party;


(iii) Expelling the party from the administrative proceedings;


(iv) Precluding the party from contesting specific issues or findings;


(v) Precluding the party from making a late filing or conditioning a late filing on any terms that are just;


(vi) Assessing reasonable expenses, incurred by any other party as a result of the improper action or failure to act; and


(vii) Taking any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation, deemed appropriate by the Judge.


(3) No sanction authorized by this section, other than refusal to accept late filings, shall be imposed without prior notice to all parties and an opportunity for any party against whom sanctions would be imposed to be heard. Such opportunity to be heard may be on such notice, and the response may be in such form as the Judge directs and may be limited to an opportunity for a party or a party’s representative to respond orally immediately after the act or inaction is noted by the Judge.


(4) The imposition of sanctions is subject to interlocutory review pursuant to § 904.254 in the same manner as any other ruling.


(5) Nothing in this section shall be read as precluding the Judge from taking any other action, or imposing any restriction or sanction, authorized by applicable statute or regulation.


[71 FR 12448, Mar. 10, 2006, as amended at 75 FR 35632, June 23, 2010; 87 FR 38938, June 30, 2022]


§ 904.205 Disqualification of Judge.

(a) The Judge may withdraw voluntarily from an administrative proceeding when the Judge deems himself/herself disqualified.


(b) A party may in good faith request the Judge to withdraw on the grounds of personal bias or other disqualification. The party seeking the disqualification must file with the Judge a timely affidavit or statement setting forth in detail the facts alleged to constitute the grounds for disqualification, and the Judge will rule on the matter. If the Judge rules against disqualification, the Judge will place all matters relating to such claims of disqualification in the record.


§ 904.206 Pleadings, motions, and service.

(a) The original of all pleadings and documents must be filed with the Judge and a copy served on the Office of Administrative Law Judges and each party. All pleadings or documents when submitted for filing must show that service has been made upon all parties. Such service must be made in accordance with § 904.3(b).


(b) Pleadings and documents to be filed may be reproduced by printing or any other process, provided the copies are clear and legible; must be dated, signed; and must show the docket description and title of the proceeding, and the title, if any, address, and telephone number of the signatory. If typewritten, the impression may be on only one side of the paper and must be double spaced, if possible, except that quotations may be single spaced and indented.


(c) Motions must normally be made in writing and must state clearly and concisely the purpose of and relief sought by the motion, the statutory or principal authority relied upon, and the facts claimed to constitute the grounds requiring the relief requested.


(d) Unless otherwise provided, the answer to any written motion, pleading, or petition must be served within 20 days after service of the motion. If a motion states that opposing counsel has no objection, it may be acted upon as soon as practicable, without awaiting the expiration of the 20-day period. Answers must be in writing, unless made in response to an oral motion made at a hearing; must fully and completely advise the parties and the Judge concerning the nature of the opposition; must admit or deny specifically and in detail each material allegation of the pleading answered; and must state clearly and concisely the facts and matters of law relied upon. Any new matter raised in an answer will be deemed controverted.


(e) A response to an answer will be called a reply. A short reply restricted to new matters raised in the answer may be served within 15 days after service of an answer. The Judge has discretion to dispense with the reply. No further responses are permitted.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022]


§ 904.207 Amendment of pleading or record.

(a) A party may amend its pleading as a matter of course at least 20 days prior to a hearing. Within 20 days prior to a hearing a party may amend its pleading only by leave of the Judge or by written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period is longer, unless the Judge otherwise orders.


(b) The Judge, upon his or her own initiative or upon application by a party, may order a party to make a more definite statement of any pleading.


(c) Harmless errors in pleadings or elsewhere in the record may be corrected (by deletion or substitution of words or figures), and broad discretion will be exercised by the Judge in permitting such corrections.


§ 904.208 Extensions of time.

If appropriate and justified, the Judge may grant any request for an extension of time. Requests for extensions of time must, except in extraordinary circumstances, be made in writing.


§ 904.209 Expedited administrative proceedings.

In the interests of justice and administrative efficiency, the Judge, on his or her own initiative or upon the application of any party, may expedite the administrative proceeding. A motion by a party to expedite the administrative proceeding may, at the discretion of the Judge, be made orally or in writing with concurrent actual notice to all parties. Upon granting a motion to expedite the scheduling of an administrative proceeding, the Judge may expedite pleading schedules, prehearing conferences and the hearing, as appropriate. If a motion for an expedited administrative proceeding is granted, a hearing on the merits may not be scheduled with less than 5 business days’ notice, unless all parties consent to an earlier hearing.


[87 FR 38938, June 30, 2022]


§ 904.210 Summary decision.

The Judge may render a summary decision disposing of all or part of the administrative proceeding if:


(a) Jointly requested by every party to the administrative proceeding; and


(b) There is no genuine issue as to any material fact and a party is entitled to summary decision as a matter of law.


§ 904.211 Failure to appear.

(a) If, after proper service of notice, any party appears at the hearing and an opposing party fails to appear, the Judge is authorized to:


(1) Dismiss the case with prejudice, where the Agency is a non-appearing party; or


(2) Where the respondents have failed to appear, find the facts as alleged in the NOVA, NOPS and/or NIDP and enter a default judgment against the respondents.


(b) Following an order of default judgment, a non-appearing party may file a petition for reconsideration, in accordance with § 904.272. Only petitions citing reasons for non-appearance, as opposed to arguing the merits of the case, will be considered.


(c) The Judge will place in the record all the facts concerning the issuance and service of the notice of time and place of hearing.


(d) The Judge may deem a failure of a party to appear after proper notice a waiver of any right to a hearing and consent to the making of a decision on the record.


(e) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the Judge’s decision.


§ 904.212 Failure to prosecute or defend.

(a) Whenever the record discloses the failure of any party to file documents, respond to orders or notices from the Judge, or otherwise indicates an intention on the part of any party not to participate further in the administrative proceeding, the Judge may issue:


(1) An order requiring any party to show why the matter that is the subject of the failure to respond should not be disposed of adversely to that party’s interest;


(2) An order requiring any party to certify intent to appear at any scheduled hearing; or


(3) Any order, except dismissal, as is necessary for the just and expeditious resolution of the case.


(b) [Reserved]


§ 904.213 Settlements.

If settlement is reached before the Judge has certified the record, the Judge shall remove the case from the docket upon notification by the Agency.


§ 904.214 Stipulations.

The parties may, by stipulation, agree upon any matters involved in the administrative proceeding and include such stipulations in the record with the consent of the Judge. Written stipulations must be signed and served on all parties.


[87 FR 38938, June 30, 2022]


§ 904.215 Consolidation.

The Chief Administrative Law Judge may order that two or more administrative proceedings that involve substantially the same parties or the same issues be consolidated and/or heard together, either upon request of a party or sua sponte.


§ 904.216 Prehearing conferences.

(a) Prior to any hearing or at any other time deemed appropriate, the Judge may, upon his or her own initiative, or upon the application of any party, direct the parties to appear for a conference or arrange a telephone conference. The Judge shall provide at least 24 hours’ notice of the conference to the parties, and shall record such conference by audio recording or court reporter, to consider:


(1) Simplification or clarification of the issues or settlement of the case by consent;


(2) The possibility of obtaining stipulations, admissions, agreements, and rulings on admissibility of documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof;


(3) Agreements and rulings to facilitate the discovery process;


(4) Limitation of the number of expert witnesses or other avoidance of cumulative evidence;


(5) The procedure, course, and conduct of the administrative proceeding;


(6) The distribution to the parties and the Judge prior to the hearing of written testimony and exhibits in order to expedite the hearing; or


(7) Such other matters as may aid in the disposition of the administrative proceeding, including the status of settlement discussions.


(b) The Judge in his or her discretion may issue an order showing the matters disposed of in such conference, and shall provide a transcript of the conference upon the request of a party.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022]


Discovery

§ 904.240 Discovery generally.

(a) Initial Disclosures. Prior to hearing, the Judge shall require the parties to submit Initial Disclosures and set a deadline for their submission. Except for information regarding a respondent’s ability to pay an assessed civil penalty, these Initial Disclosures will normally obviate the need for further discovery.


(1) The Initial Disclosures shall include the following information: A factual summary of the case; a summary of all factual and legal issues in dispute; a list of all defenses that will be asserted, together with a summary of all factual and legal bases supporting each defense; a list of all potential witnesses, together with a summary of their anticipated testimony; and a list of all potential exhibits.


(2) The Initial Disclosures must be signed by the parties or their attorneys and must be served on all parties in conformance with § 904.3, along with a copy of each potential exhibit listed therein.


(3) A party has the affirmative obligation to supplement their Initial Disclosures as available information or documentation relevant to the stated charges or defenses becomes known to the party.


(b) Additional discovery. Upon written motion by a party, the Judge may allow additional discovery only upon a showing of relevance, need, and reasonable scope of the evidence sought, by one or more of the following methods: Deposition upon oral examination or written questions, written interrogatories, production of documents or things for inspection and other purposes, and requests for admission. With respect to information regarding a respondent’s ability to pay an assessed civil penalty, the Agency may serve any discovery request (i.e., deposition, interrogatories, admissions, production of documents) directly upon the respondent in conformance with § 904.3 of this part without first seeking an order from the Judge.


(c) Time limits. Motions for depositions, interrogatories, admissions, or production of documents or things may not be filed within 20 days of the hearing except on order of the Judge for good cause shown. Oppositions to a discovery motion must be filed within 10 days of service unless otherwise provided in these rules or by the Judge.


(d) Oppositions. Oppositions to any discovery motion or portion thereof must state with particularity the grounds relied upon. Failure to object in a timely fashion constitutes waiver of the objection.


(e) Scope of discovery. The Judge may limit the scope, subject matter, method, time, or place of discovery. Unless otherwise limited by order of the Judge, the scope of discovery is as follows:


(1) In general. As allowed under paragraph (b) of this section, parties may obtain discovery of any matter, not privileged, that is relevant to the allegations of the charging document, to the proposed relief, or to the defenses of any respondent, or that appears reasonably calculated to lead to the discovery of admissible evidence.


(2) Hearing preparation: Materials. A party may not obtain discovery of materials prepared in anticipation of litigation except upon a showing that the party seeking discovery has a substantial need for the materials in preparation of his or her case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party are not discoverable under this section.


(3) Hearing preparation: Experts. A party may discover the substance of the facts and opinions to which an expert witness is expected to testify and a summary of the grounds for each opinion. A party may also discover facts known or opinions held by an expert consulted by another party in anticipation of litigation but not expected to be called as a witness upon a showing of exceptional circumstances making it impracticable for the party seeking discovery to obtain such facts or opinions by other means.


(f) Failure to comply. If a party fails to comply with any provision of this section, including with respect to their Initial Disclosures, a subpoena, or an order concerning discovery, the Judge may, in the interest of justice:


(1) Infer that the admission, testimony, documents, or other evidence would have been adverse to the party;


(2) Rule that the matter or matters covered by the order or subpoena are established adversely to the party;


(3) Rule that the party may not introduce into evidence or otherwise rely upon, in support of any claim or defense, testimony by such party, officer, or agent, or the documents or other evidence;


(4) Rule that the party may not be heard to object to introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence would have shown; or


(5) Strike part or all of a pleading (except a request for hearing), a motion or other submission by the party, concerning the matter or matters covered by the order or subpoena.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022]


§ 904.241 Depositions.

(a) Notice. If a motion for deposition is granted, and unless otherwise ordered by the Judge, the party taking the deposition of any person must serve on that person and on any other party written notice at least 15 days before the deposition would be taken (or 25 days if the deposition is to be taken outside the United States). The notice must state the name and address of each person to be examined, the time and place where the examination would be held, the name, mailing address, telephone number, and email address (if one is available) of the person before whom the deposition would be taken, and the subject matter about which each person would be examined.


(b) Taking the deposition. Depositions may be taken before any officer authorized to administer oaths by the law of the United States or of the place where the examination is to be held, or before a person appointed by the Judge. Each deponent will be sworn, and any party has the right to cross-examine. Objections are not waived by failure to make them during the deposition unless the ground of the objection is one that might have been removed if presented at that time. The deposition will be recorded, transcribed, signed by the deponent, unless waived, and certified by the officer before whom the deposition was taken. All transcription costs associated with the testimony of a deponent will be borne by the party seeking the deposition. Each party will bear its own expense for any copies of the transcript. See also § 904.252(a).


(c) Alternative deposition methods. By order of the Judge, the parties may use other methods of deposing parties or witnesses, such as telephonic depositions, depositions through videoconference, or depositions upon written questions. Objections to the form of written questions are waived unless made within 5 days of service of the questions.


(d) Use of depositions at hearing. (1) At hearing, part or all of any deposition, so far as admissible under this Part as though the witness were then testifying, may be used against any party who was present or represented at the taking of the deposition or had reasonable notice.


(2) The deposition of a witness may be used by any party for any purpose if the Judge finds:


(i) That the witness is unable to attend due to death, age, health, imprisonment, disappearance or distance from the hearing site; or


(ii) That exceptional circumstances make it desirable, in the interest of justice, to allow the deposition to be used.


(3) If only part of a deposition is offered in evidence by a party, any party may introduce any other part.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022]


§ 904.242 Interrogatories.

(a) Service and use. If ordered by the Judge, any party may serve upon any other party written interrogatories in conformance with § 904.3.


(b) Answers and objections. Answers and objections must be made in writing under oath, and reasons for the objections must be stated. Answers must be signed by the person making them and objections must be signed by the party or attorney making them. Unless otherwise ordered, answers and objections must be served on all parties within 20 days after service of the interrogatories in conformance with § 904.3.


(c) Option to produce records. Where the answer to an interrogatory may be ascertained from the records of the party upon whom the interrogatory is served, it is sufficient to specify such records and afford the party serving the interrogatories an opportunity to examine them.


(d) Use of interrogatories at hearing. Answers may be used at hearing in the same manner as depositions under § 904.241(d).


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.243 Admissions.

(a) Request. If ordered by the Judge, any party may serve on any other party a written request for admission of the truth of any relevant matter of fact set forth in the request in conformance with § 904.3, including the genuineness of any relevant document described in the request. Copies of documents must be served with the request. Each matter for which an admission is requested must be separately stated.


(b) Response. Each matter is admitted unless a written answer or objection is served within 20 days of service of the request in conformance with § 904.3, or within such other time as the Judge may allow. The answering party must specifically admit or deny each matter, or state the reasons why he or she cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.


(c) Effect of admission. Any matter admitted is conclusively established unless the Judge on motion permits withdrawal or amendment of it for good cause shown.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.244 Production of documents and inspection.

(a) Scope. If ordered by the Judge, any party may serve on any other party a request to produce a copy of any document or specifically designated category of documents, or to inspect, copy, photograph, or test any such document or tangible thing in the possession, custody, or control of the party upon whom the request is served.


(b) Procedure. The request must set forth:


(1) The items to be produced or inspected by item or by category, described with reasonable particularity, and


(2) A reasonable time, place, and manner for inspection. The party upon whom the request is served must serve within 20 days a response or objections, which must address each item or category and include copies of the requested documents.


§ 904.245 Subpoenas.

(a) In general. Subpoenas for the attendance and testimony of witnesses and the production of documentary evidence for the purpose of discovery or hearing may be issued as authorized by the statute under which the proceeding is conducted.


(b) Timing. Applications for subpoenas must be submitted at least 15 days before the scheduled hearing or deposition.


(c) Motions to quash. Any person to whom a subpoena is directed or any party may move to quash or limit the subpoena within 10 days of its service or on or before the time specified for compliance, whichever is shorter. The Judge may quash or modify the subpoena.


(d) Enforcement. In case of disobedience to a subpoena, the requesting party may request the U.S. Department of Justice to invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.


Hearings

§ 904.250 Notice of time and place of hearing.

(a) The Judge shall be responsible for scheduling the hearing. With due regard for the convenience of the parties, their representatives, or witnesses, the Judge shall fix the time, place and date for the hearing and shall notify all parties of the same. The Judge will promptly serve on the parties notice of the time and place of hearing. The hearing will not be held less than 20 days after service of the notice of hearing unless the hearing is expedited as provided under paragraph (d) of this section.


(b) A request for a change in the time, place, or date of the hearing may be granted by the Judge.


(c) Upon the consent of each party to the administrative proceeding, the Judge may order that one or more issues be heard on submissions or affidavits if it appears that such issues may be resolved by means of written materials and that efficient disposition of those issues can be made without an in-person hearing.


(d) At any time after commencement of an administrative proceeding, any party may move to expedite the scheduling of the administrative proceeding as provided in § 904.209.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.251 Evidence.

(a) In general. (1) At the hearing, every party has the right to present oral or documentary evidence in support of its case or defense, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. This paragraph may not be interpreted to diminish the powers and duties of the Judge under § 904.204.


(2) All evidence that is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, is admissible at the hearing. Formal rules of evidence do not necessarily apply to the administrative proceedings, and hearsay evidence is not inadmissible as such.


(3) In any case involving a charged violation of law in which the respondent has admitted an allegation, evidence may still be presented to establish matters of aggravation or mitigation.


(b) Objections and offers of proof. (1) A party shall state the grounds for objection to the admission or exclusion of evidence. Rulings on all objections shall appear in the record. Only objections made before the Judge may be raised on appeal.


(2) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record.


(c) Testimony. (1) Testimony may be received into evidence by the following means:


(i) Oral presentation; and


(ii) Subject to the discretion of the Judge, written affidavit, telephone, video or other electronic media.


(2) Regardless of form, all testimony shall be under oath or affirmation requiring the witness to declare that the witness will testify truthfully, and subject to cross examination.


(d) Exhibits and documents. (1) All exhibits shall be numbered and marked with a designation identifying the sponsor. To prove the content of an exhibit, the original writing, recording or photograph is required except that a duplicate or copy is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or, given the circumstances, it would be unfair to admit the duplicate in lieu of the original. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if the original is lost or destroyed, not obtainable, in the possession of the opponent, or not closely related to a controlling issue. Each exhibit offered in evidence or marked for identification shall be filed and retained in the record of decision, unless the Judge permits the substitution of copies for the original document.


(2) In addition to the requirements set forth in § 904.240(a)(2), parties shall exchange all remaining exhibits that will be offered at hearing prior to the beginning of the hearing, except for good cause or as otherwise directed by the Judge. Exhibits that are not exchanged as required may be denied admission into evidence. This requirement does not apply to demonstrative evidence.


(e) Physical evidence. (1) Photographs or videos or other electronic media may be substituted for physical evidence at the discretion of the Judge.


(2) Except upon the Judge’s order, or upon request by a party, physical evidence will be retained after the hearing by the Agency.


(f) Stipulations. The parties may, by written stipulation at any stage of the administrative proceeding or orally at the hearing, agree upon any matters. Stipulations may be received in evidence before or during the hearing and, when received in evidence, shall be binding on the parties to the stipulation.


(g) Official notice. The Judge may take official notice of such matters as might be judicially noticed by the courts or of other facts within the specialized knowledge of the agency as an expert body. Where a decision or part thereof rests on official notice of a material fact not appearing in the evidence in the record, the fact of official notice shall be so stated in the decision, and any party, upon timely request, shall be afforded an opportunity to show the contrary.


(h) Confidential and sensitive information. (1) The Judge may limit introduction of evidence or issue protective orders that are required to prevent undue disclosure of classified, confidential, or sensitive matters, which include, but are not limited to, matters of a national security, business, personal, or proprietary nature. Where the Judge determines that information in documents containing classified, confidential, or sensitive matters should be made available to another party, the Judge may direct the offering party to prepare an unclassified or non-sensitive summary or extract of the original. The summary or extract may be admitted as evidence in the record.


(2) If the Judge determines that the procedure described in paragraph (h)(1) of this section is inadequate and that classified or otherwise sensitive matters must form part of the record in order to avoid prejudice to a party, the Judge may advise the parties and provide opportunity for arrangements to permit a party or representative to have access to such matters.


(i) Foreign law. A party who intends to raise an issue concerning the law of a foreign country must give reasonable notice. The Judge, in determining foreign law, may consider any relevant material or source, whether or not submitted by a party.


(j) Foreign language exhibits. Exhibits in a foreign language must be translated into English before such exhibits are offered into evidence. Copies of both the untranslated and translated versions of the proposed exhibits, along with the name and qualifications of the translator, must be served on the opposing party at least 10 days prior to the hearing unless the parties otherwise agree.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.252 Witnesses.

(a) Fees. Witnesses, other than employees of a Federal agency, summoned in an administrative proceeding, including discovery, are eligible to receive the same fees and mileage as witnesses in the courts of the United States.


(b) Witness counsel. Any witness not a party may have personal counsel to advise him or her as to his or her rights, but such counsel may not otherwise participate in the hearing.


(c) Witness exclusion. Witnesses who are not parties may be excluded from the hearing room prior to the taking of their testimony. An authorized officer is considered a party for the purposes of this subsection.


(d) Oath or affirmation. Witnesses shall testify under oath or affirmation requiring the witness to declare that the witness will testify truthfully.


(e) Failure or refusal to testify. If a witness fails or refuses to testify, the failure or refusal to answer any question found by the Judge to be proper may be grounds for striking all or part of the testimony given by the witness, or any other action deemed appropriate by the Judge.


(f) Testimony in a foreign language. If a witness is expected to testify in a language other than the English language, the party sponsoring the witness must indicate that in its Initial Disclosures so that an interpreter can be arranged for the hearing. When available, the interpreter should be court certified under 28 U.S.C. 1827.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.253 Closing of record.

At the conclusion of the hearing, the evidentiary record shall be closed unless the Judge directs otherwise. Once the record is closed, no additional evidence shall be accepted except upon a showing that the evidence is material and that there was good cause for failure to produce it in a timely fashion. The Judge shall reflect in the record, however, any approved correction to the transcript.


§ 904.254 Interlocutory review.

(a) Application for interlocutory review shall be made to the Judge. The application shall not be certified to the Administrator except when the Judge determines that:


(1) The ruling involves a dispositive question of law or policy about which there is substantial ground for difference of opinion; or


(2) An immediate ruling will materially advance the completion of the proceeding; or


(3) The denial of an immediate ruling will cause irreparable harm to a party or the public.


(b) Any application for interlocutory review shall:


(1) Be filed with the Judge within 30 days after the Judge’s ruling;


(2) Designate the ruling or part thereof from which appeal is being taken;


(3) Set forth the ground on which the appeal lies; and


(4) Present the points of fact and law relied upon in support of the position taken.


(c) Any party that opposes the application may file a response within 20 days after service of the application.


(d) The certification to the Administrator by the Judge shall stay proceedings before the Judge until the matter under interlocutory review is decided.


§ 904.255 Ex parte communications.

(a) Except to the extent required for disposition of ex parte matters as authorized by law, the Judge may not consult a person or party on any matter relevant to the merits of the administrative proceeding, unless there has been notice and opportunity for all parties to participate.


(b) Except to the extent required for the disposition of ex parte matters as authorized by law:


(1) No interested person outside the Agency shall make or knowingly cause to be made to the Judge, the Administrator, or any Agency employee who is or may reasonably be expected to be involved in the decisional process of the administrative proceeding an ex parte communication relevant to the merits of the adjudication; and


(2) Neither the Administrator, the Judge, nor any Agency employee who is or may reasonably be expected to be involved in the decisional process of the administrative proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the administrative proceeding.


(c) The Administrator, the Judge, or any Agency employee who is or may reasonably be expected to be involved in the decisional process who receives, makes, or knowingly causes to be made a communication prohibited by this rule shall place in the record of decision:


(1) All such written communications;


(2) Memoranda stating the substance of all such oral communications; and


(3) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (c)(1) and (c)(2) of this section.


(d)(1) Paragraphs (a), (b) and (c) of this section do not apply to communications concerning national defense or foreign policy matters. Such ex parte communications to or from an Agency employee on national defense or foreign policy matters, or from employees of the U.S. Government involving intergovernmental negotiations, are allowed if the communicator’s position with respect to those matters cannot otherwise be fairly presented for reasons of foreign policy or national defense.


(2) Ex parte communications subject to this paragraph will be made a part of the record to the extent that they do not include information classified under an Executive order. Classified information will be included in a classified portion of the record that will be available for review only in accordance with applicable law.


(e) Upon receipt of a communication made, or knowingly caused to be made, by a party in violation of this section the Judge may, to the extent consistent with the interests of justice, national security, the policy of underlying statutes, require the party to show cause why its claim or interest in the adjudication should not be dismissed, denied, disregarded, or otherwise adversely affected by reason of such violation.


(f) The prohibitions of this rule shall apply beginning after issuance of a NOVA, NOPS, NIDP or any other notice and until a final administrative decision is rendered, but in no event shall they begin to apply later than the time at which an administrative proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of her/his acquisition of such knowledge.


Post-Hearing

§ 904.260 Recordation of hearing.

(a) All hearings shall be recorded.


(b) The official transcript of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith, will be filed with the Office of Administrative Law Judges. Transcripts of testimony will be available in any hearing and will be supplied to the parties at the cost of the Agency.


(c) The Judge may determine whether “ordinary copy”, “daily copy”, or other copy (as those terms are defined by contract) will be necessary and required for the proper conduct of the administrative proceeding.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.261 Post-hearing briefs.

(a) The parties may file post-hearing briefs that include proposed findings of fact and conclusions of law within 30 days from service of the hearing transcript. Reply briefs may be submitted within 15 days after service of the proposed findings and conclusions to which they respond.


(b) The Judge, in his or her discretion, may establish a different date for filing either initial briefs or reply briefs with the court.


(c) In cases involving few parties, limited issues, and short hearings, the Judge may require or a party may request that any proposed findings and conclusions and reasons in support be presented orally at the close of a hearing. In granting such cases, the Judge will advise the parties in advance of hearing.


Decision

§ 904.270 Record of decision.

(a) The exclusive record of decision consists of the official transcript of testimony and administrative proceedings; exhibits admitted into evidence; briefs, pleadings, and other documents filed in the administrative proceeding; and descriptions or copies of matters, facts, or documents officially noticed in the administrative proceeding. Any other exhibits and records of any ex parte communications will accompany the record of decision.


(b) The Judge will arrange for appropriate storage of the records of any administrative proceeding, which place of storage need not necessarily be located physically within the Office of Administrative Law Judges.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.271 Initial decision.

(a) After expiration of the period provided in § 904.261 for the filing of reply briefs (unless the parties have waived briefs or presented proposed findings orally at the hearing), the Judge will render an Initial Decision upon the record in the case, setting forth:


(1) Findings and conclusions, and the reasons or bases therefor, on all material issues of fact, law, or discretion presented on the record;


(2) An order as to the final disposition of the case, including any appropriate ruling, order, sanction, relief, or denial thereof;


(3) The date upon which the decision will become effective; and


(4) A statement of further right to appeal.


(b) If the parties have presented oral proposed findings at the hearing or have waived presentation of proposed findings, the Judge may at the termination of the hearing announce the decision, subject to later issuance of a written Initial Decision under paragraph (a) of this section. In such cases, the Judge may direct the prevailing party to prepare proposed findings, conclusions, and an order.


(c) The Judge will serve the Initial Decision on each of the parties, the Chief of the Enforcement Section of the NOAA Office of General Counsel, and the Administrator. Upon request, the Judge will promptly certify to the Administrator the record, including the original copy of the Initial Decision, as complete and accurate.


(d) An Initial Decision becomes effective as the final administrative decision of NOAA 60 days after service, unless:


(1) Otherwise provided by statute or regulations;


(2) The Judge grants a petition for reconsideration under § 904.272; or


(3) A petition for discretionary review is filed or the Administrator issues an order to review upon his/her own initiative under § 904.273.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022]


§ 904.272 Petition for reconsideration.

Unless an order or Initial Decision of the Judge specifically provides otherwise, any party may file a petition for reconsideration of an order or Initial Decision issued by the Judge. Such petitions must state the matter claimed to have been erroneously decided, and the alleged errors and relief sought must be specified with particularity. Petitions must be filed within 20 days after the service of such order or Initial Decision. The filing of a petition for reconsideration shall operate as a stay of an order or Initial Decision or its effectiveness date unless specifically so ordered by the Judge. Within 15 days after the petition is filed, any party to the administrative proceeding may file an answer in support or in opposition.


[87 FR 38940, June 30, 2022]


§ 904.273 Administrative review of decision.

(a) Subject to the requirements of this section, any party who wishes to seek review of an Initial Decision of a Judge must Petition for Review of the Initial Decision within 30 days after the date the decision is served. The petition must be served on the Administrator in conformance with § 904.3(b) at the following address: Administrator, National Oceanic and Atmospheric Administration, Department of Commerce, Room 5128, 14th Street and Constitution Avenue NW, Washington, DC 20230. Copies of the Petition for Review, and all other documents and materials required in paragraph (d) of this section, must be served in conformance with § 904.3(b) on all parties and to either [email protected] or the following address: Chief, Oceans and Coasts Section, NOAA Office of General Counsel, 1305 East-West Highway, SSMC 4, Suite 6111, Silver Spring, MD 20910.


(b) The Administrator may elect to issue an order to review the Initial Decision without petition and may affirm, reverse, modify or remand, in whole or in part, the Judge’s Initial Decision. Any such order must be issued within 60 days after the date the Initial Decision is served.


(c) Review by the Administrator of an Initial Decision is discretionary and is not a matter of right. If a party files a timely petition for discretionary review, or review is timely initiated by the Administrator, the effectiveness of the Initial Decision is stayed until further order of the Administrator or until the Initial Decision becomes final pursuant to paragraph (h) of this section. In determining whether or not to grant discretionary review, the Administrator will consider:


(1) Whether the Initial Decision contains significant factual or legal errors that warrant further review by the Administrator; and


(2) Whether fairness or other policy considerations warrant further consideration by the Administrator. Types of cases that fall within these criteria include, but are not limited to, those in which;


(i) The Initial Decision conflicts with one or more other NOAA administrative decisions or federal court decisions on an important issue of federal law;


(ii) The Judge decided an important federal question in a way that conflicts with prior rulings of the Administrator;


(iii) The Judge decided a question of federal law that is so important that the Administrator should pass upon it even absent a conflict; or


(iv) The Judge so far departed from the accepted and usual course of administrative proceedings as to call for an exercise of the Administrator’s supervisory power.


(d) A Petition for Review must comply with the following requirements regarding format and content:


(1) The petition must include a concise statement of the case, that contains a statement of facts relevant to the issues submitted for review, and a summary of the argument that contains a succinct, clear and accurate statement of the arguments made in the body of the petition;


(2) The petition must set forth, in detail, specific objections to the Initial Decision, the bases for review, and the relief requested;


(3) Each issue raised in the petition must be separately numbered, concisely stated, and supported by detailed citations to specific pages in the record, and to statutes, regulations, and principal authorities. Petitions may not refer to or incorporate by reference entire documents or transcripts;


(4) A copy of the Judge’s Initial Decision must be attached to the petition;


(5) Copies of all cited portions of the record must be attached to the petition;


(6) A petition, exclusive of attachments and authorities, must not exceed 20 pages in length and must be in the form articulated in § 904.206(b); and


(7) Issues of fact or law not argued before the Judge may not be raised in the petition unless such issues were raised for the first time in the Judge’s Initial Decision, or could not reasonably have been foreseen and raised by the parties during the hearing. The Administrator will not consider new or additional evidence that is not a part of the record before the Judge.


(e) The Administrator may deny a Petition for Review that is untimely or fails to comply with the format and content requirements in paragraph (d) of this section without further review.


(f) No oral argument on Petitions for Review will be allowed.


(g) Within 30 days after service of a petition for discretionary review, any party may file and serve an answer in support or in opposition. An answer must comport with the format and content requirements in paragraphs (d)(5) through (d)(7) of this section and set forth detailed responses to the specific objections, bases for review and relief requested in the petition. No further replies are allowed, unless requested by the Administrator.


(h) If the Administrator has taken no action in response to the petition within 120 days after the petition is served, said petition shall be deemed denied and the Judge’s Initial Decision shall become the final agency decision with an effective date 150 days after the petition is served.


(i) If the Administrator issues an order denying discretionary review, the order will be served on all parties in conformance with § 904.3, and will specify the date upon which the Judge’s Initial Decision will become effective as the final agency decision. The Administrator need not give reasons for denying review.


(j) If the Administrator grants discretionary review or elects to review the Initial Decision without petition, the Administrator will issue an order to that effect. Such order may identify issues to be briefed and a briefing schedule. Such issues may include one or more of the issues raised in the Petition for Review and any other matters the Administrator wishes to review. Only those issues identified in the order may be argued in any briefs permitted under the order. The Administrator may choose to not order any additional briefing, and may instead make a final determination based on any Petitions for Review, any responses and the existing record.


(k) If the Administrator grants or elects to take discretionary review, and after expiration of the period for filing any additional briefs under paragraph (j) of this section, the Administrator will render a written decision on the issues under review. The Administrator will serve the decision on each of the parties in conformance with § 904.3. The Administrator’s decision becomes the final administrative decision on the date it is served, unless otherwise provided in the decision, and is a final agency action for purposes of judicial review; except that an Administrator’s decision to remand the Initial Decision to the Judge is not final agency action.


(l) An Initial Decision shall not be subject to judicial review unless:


(1) The party seeking judicial review has exhausted its opportunity for administrative review by filing a Petition for Review with the Administrator in compliance with this section, and


(2) The Administrator has issued a final ruling on the petition that constitutes final agency action under paragraph (k) of this section or the Judge’s Initial Decision has become the final agency decision under paragraph (h) or (i) of this section.


(m) For purposes of any subsequent judicial review of the agency decision, any issues that are not identified in any Petition for Review, in any answer in support or opposition, by the Administrator, or in any modifications to the Initial Decision are waived.


(n) If an action is filed for judicial review of a final agency decision, and the decision is vacated or remanded by a court, the Administrator shall issue an order addressing further administrative proceedings in the matter. Such order may include a remand to the Chief Administrative Law Judge for further proceedings consistent with the judicial decision, or further briefing before the Administrator on any issues the Administrator deems appropriate.


[87 FR 38940, June 30, 2022]


Subpart D – Permit Sanctions and Denials

General

§ 904.300 Scope and applicability.

(a) This subpart sets forth procedures governing the suspension, revocation, modification, and denial of permits. The bases for sanctioning a permit are set forth in § 904.301.


(1) Revocation. A permit may be cancelled, with or without prejudice to issuance of the permit in the future. Additional requirements for issuance of any future permit may be imposed.


(2) Suspension. A permit may be suspended either for a specified period of time or until stated requirements are met, or both. If contingent on stated requirements being met, the suspension is with prejudice to issuance of any permit until the requirements are met.


(3) Modification. A permit may be modified, as by imposing additional conditions and restrictions. If the permit was issued for a foreign fishing vessel under section 204(b) of the Magnuson-Stevens Fishery Conservation and Management Act, additional conditions and restrictions may be imposed on the application of the foreign nation involved and on any permits issued under such application.


(4) Denial. Issuance of a permit in the future may be denied through imposition of a permit denial.


(b) This subpart does not apply to the Land Remote Sensing Policy Act of 1992, as amended (51 U.S.C. 60101 et seq.), or to the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.). Regulations governing denials of licenses issued under the Land Remote Sensing Policy Act of 1992, as amended (51 U.S.C. 60101 et seq.), appear at 15 CFR part 960. Regulations governing sanctions and denials of permits issued under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.) appear at 15 CFR part 970.


[87 FR 38941, June 30, 2022]


§ 904.301 Bases for permit sanctions or denials.

(a) Unless otherwise specified in a settlement agreement, or otherwise provided by statutes or in this subpart, NOAA may sanction any permit issued under the statutes cited in § 904.1(c). The bases for an action to sanction or deny a permit include the following:


(1) Violation of any statute administered by NOAA, including violation of any regulation promulgated or permit condition or restriction prescribed thereunder, by the permit holder/applicant or with the use of a permitted vessel;


(2) The failure to pay a civil penalty imposed under any marine resource law administered by NOAA;


(3) The failure to pay a criminal fine imposed or to satisfy any other liability incurred in a judicial proceeding under any of the statutes administered by NOAA; or


(4) The failure to pay any amount in settlement of a civil forfeiture imposed on a vessel or other property.


(b) A sanction may be applied to a permit involved in the underlying violation, as well as to any permit held or sought by the permit holder/applicant, including permits for other vessels. (See, e.g., 16 U.S.C. 1858(g)(1)(i)).


(c) A permit sanction may not be extinguished by sale or transfer. A vessel’s permit sanction is not extinguished by sale or transfer of the vessel, nor by dissolution or reincorporation of a vessel owner corporation, and shall remain with the vessel until lifted by NOAA.


[87 FR 38941, June 30, 2022]


§ 904.302 Notice of permit sanction (NOPS).

(a) Service of a NOPS against a permit issued to a foreign fishing vessel will be made on the agent authorized to receive and respond to any legal process for vessels of that country.


(b) The NOPS will set forth the permit sanction to be imposed, the bases for the permit sanction, and any opportunity for a hearing. It will state the effective date of the permit sanction, which will ordinarily not be earlier than 30 days after the date of receipt of the NOPS (see § 904.322).


(c) Upon demand by an authorized enforcement officer, a permit holder must surrender a permit against which a permit sanction has taken effect. The effectiveness of the permit sanction, however, does not depend on surrender of the permit.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38941, June 30, 2022]


§ 904.303 Notice of intent to deny permit (NIDP).

(a) [Reserved]


(b) The NIDP will set forth the basis for its issuance and any opportunity for a hearing.


(c) NOAA will not refund any fee(s) submitted with a permit application if a NIDP is issued.


(d) A NIDP may be issued in conjunction with or independent of a NOPS.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38941, June 30, 2022]


§ 904.304 Opportunity for hearing.

(a) Except as provided in paragraph (b) of this section, the recipient of a NOPS or NIDP will be provided an opportunity for a hearing, as governed by § 904.201.


(b) There will be no opportunity for a hearing to contest a NOPS or NIDP if the permit holder/applicant had a previous opportunity to participate as a party in an administrative or judicial proceeding with respect to the violation that forms the basis for the NOPS or NIDP, whether or not the permit holder/applicant did participate, and whether or not such a proceeding was held.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38941, June 30, 2022]


§ 904.305 Final administrative decision.

(a) If no request for hearing is timely filed as provided in § 904.201(a), the NOPS or NIDP becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOPS or NIDP or on the last day of any delay period granted.


(b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative decision is as provided in subpart C of this part.


Permit Sanctions for Noncompliance

§ 904.310 [Reserved]

§ 904.311 Effect of payment on permit sanction.

Where a permit has been sanctioned on one of the bases set forth in § 904.301(a)(2) through (4) and the permit holder/applicant pays the criminal fine, civil penalty, or amount in settlement of a civil forfeiture in full or agrees to terms satisfactory to NOAA for payment:


(a) The suspension will not take effect;


(b) Any permit suspended under § 904.301(a)(2) through (4) will be reinstated by order of NOAA; or


(c) Any application by the permit holder may be granted if the permit holder is otherwise qualified to receive the permit.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022]


Permit Sanction for Violations

§ 904.320 [Reserved]

§ 904.321 Reinstatement of permit.

(a) A permit suspended for a specified period of time will be reinstated automatically at the end of the period.


(b) A permit suspended until stated requirements are met will be reinstated only by order of NOAA.


§ 904.322 Interim action.

(a) To protect marine resources during the pendency of an action under this subpart, in cases of willfulness, or as otherwise required in the interest of public health, welfare, or safety, a Judge may order immediate suspension, modification, or withholding of a permit until a decision is made on the action proposed in a NOPS or NIDP.


(b) The Judge will order interim action under paragraph (a) of this section, only after finding that there exists probable cause to believe that the violation charged in the NOPS or NIDP was committed. The Judge’s finding of probable cause, which will be summarized in the order, may be made:


(1) After review of the factual basis of the alleged violation, following an opportunity for the parties to submit their views (orally or in writing, in the Judge’s discretion); or


(2) By adoption of an equivalent finding of probable cause or an admission in any administrative or judicial proceeding to which the recipient of the NOPS or NIDP was a party, including, but not limited to, a hearing to arrest or set bond for a vessel in a civil forfeiture action or an arraignment or other hearing in a criminal action. Adoption of a finding or admission under this paragraph may be made only after the Judge reviews pertinent portions of the transcript or other records, documents, or pleadings from the other proceeding.


(c) An order for interim action under paragraph (a) of this section is unappealable and will remain in effect until a decision is made on the NOPS or NIDP. Where such interim action has been taken, the Judge will expedite any hearing requested under § 904.304.


Subpart E – Written Warnings

§ 904.400 Purpose and scope.

This subpart sets forth the policy and procedures governing the issuance and use of written warnings by persons authorized to enforce the statutes administered by NOAA, and the review of such warnings. A written warning may be issued in lieu of assessing a civil penalty or initiating criminal prosecution for violation of any of the laws cited in § 904.1(c).


§ 904.401 Written warning as a prior violation.

A written warning may be used as a basis for dealing more severely with a subsequent violation, including, but not limited to, a violation of the same statute or a violation involving an activity that is related to the prior violation.


§ 904.402 Procedures.

(a) Any person authorized to enforce the laws listed in § 904.1(c) or Agency counsel may serve a written warning on a respondent.


(b) The written warning will:


(1) State that it is a “written warning”;


(2) State the factual and statutory or regulatory basis for its issuance;


(3) Advise the respondent of its effect in the event of a future violation; and


(4) Inform the respondent of the right of review and appeal under § 904.403.


(c) NOAA will maintain a record of written warnings that are issued.


(d) If, within 120 days of the date of the written warning, further investigation indicates that the violation is more serious than realized at the time the written warning was issued, or that the respondent previously committed a similar violation for which a written warning was issued or other enforcement action was taken, NOAA may withdraw the warning and commence other administrative or judicial proceedings.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022]


§ 904.403 Review and appeal of a written warning.

(a) [Reserved]


(b) The recipient of a written warning may appeal to the NOAA Deputy General Counsel. The appeal must be served in conformance with § 904.3 and submitted to [email protected] or the NOAA Office of the General Counsel, Herbert Hoover Office Building, 14th & Constitution Avenue NW, Washington, DC 20230, within 60 days of receipt of the written warning.


(1) An appeal from a written warning must be in writing and must present the facts and circumstances that explain or deny the violation described in the written warning.


(2) [Reserved]


(c) The NOAA Deputy General Counsel may, in his or her discretion, affirm, vacate, or modify the written warning and will notify the respondent of the determination. The NOAA Deputy General Counsel’s determination constitutes the final agency action.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022]


Subpart F – Seizure and Forfeiture Procedures

§ 904.500 Purpose and scope.

(a) This subpart sets forth procedures governing the release, abandonment, forfeiture, remission of forfeiture, or return of property seized under any of the laws cited in § 904.1(c).


(b) Except as provided in this subpart, these regulations apply to all seized property subject to forfeiture under any of the laws cited in § 904.1(c). This subpart is in addition to, and not in contradiction of, any special rules regarding seizure, holding or disposition of property seized under these statutes.


[87 FR 38942, June 30, 2022]


§ 904.501 Notice of seizure.

Within 60 days from the date of the seizure, NOAA will serve a Notice of Seizure on the owner or consignee, if known or easily ascertainable, or other party that the facts of record indicate has an interest in the seized property. In cases where the property is seized by a state or local law enforcement agency; a Notice of Seizure will be served in the above manner within 90 days from the date of the seizure. The Notice will describe the seized property and state the time, place and reason for the seizure, including the provisions of law alleged to have been violated. The Notice will inform each interested party of his or her right to file a claim to the seized property, and state a date by which a claim must be filed, which may not be less than 35 days after service of the Notice. The Notice may be combined with a Notice of the sale of perishable fish issued under § 904.505. If a claim is filed, the case will be referred promptly to the U.S. Department of Justice for institution of judicial proceedings.


[87 FR 38942, June 30, 2022]


§ 904.502 Bonded release of seized property.

(a) As authorized by applicable statute, at any time after seizure of any property, NOAA may, in its sole discretion, release any seized property upon deposit with NOAA of the full value of the property or such lesser amount as NOAA deems sufficient to protect the interests served by the applicable statute. In addition, NOAA may, in its sole discretion, accept a bond or other security in place of fish, wildlife, or other property seized. The bond will contain such conditions as NOAA deems appropriate.


(b) Property may be released under this section only if possession thereof will not violate or frustrate the purpose or policy of any applicable law or regulation. Property that will not be released includes, but is not limited to:


(1) Property in which NOAA is not satisfied that the requester has a substantial interest;


(2) Property whose entry into the commerce of the United States is prohibited;


(3) Live animals, except in the interest of the animals’ welfare; or


(4) Property whose release appears to NOAA not to be in the best interest of the United States or serve the purposes of the applicable statute.


(c) If NOAA grants the request, the amount paid by the requester will be deposited in a NOAA suspense account. The amount so deposited will for all purposes be considered to represent the property seized and subject to forfeiture, and payment of the amount by requester constitutes a waiver by requester of any claim rising from the seizure and custody of the property. NOAA will maintain the money so deposited pending further order of NOAA, order of a court, or disposition by applicable administrative proceedings.


(d) A request for release need not be in any particular form, but must set forth the following:


(1) A description of the property seized;


(2) The date and place of the seizure;


(3) The requester’s interest in the property, supported as appropriate by bills of sale, contracts, mortgages, or other satisfactory evidence;


(4) The facts and circumstances relied upon by the requester to justify the remission or mitigation;


(5) An offer of payment to protect the United States’ interest that requester makes in return for release;


(6) The signature of the requester, his or her attorney, or other authorized agent; and


(7) A request to defer administrative or judicial forfeiture proceedings until completion of all other related judicial or administrative proceedings (including any associated civil penalty or permit sanction proceedings).


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022]


§ 904.503 Appraisement.

NOAA may appraise seized property to determine its domestic value. Domestic value means the price at which such or similar property is offered for sale at the time and place of appraisement in the ordinary course of trade. If there is no market for the seized property at the place of appraisement, the value in the principal market nearest the place of appraisement may be used. If the seized property may not lawfully be sold in the United States, its domestic value may be determined by other reasonable means.


[87 FR 38942, June 30, 2022]


§ 904.504 Administrative forfeiture proceedings.

(a) When authorized. This section applies to property with a value of $500,000 or less, and that is subject to administrative forfeiture under the applicable statute. This section does not apply to conveyances seized in connection with criminal proceedings.


(b) Procedure. (1) Within 60 days from the date of the seizure, or within 90 days of the date of the seizure where the property is seized by a state or local law enforcement agency, NOAA will publish a Notice of Proposed Forfeiture once a week for at least three successive weeks in a newspaper of general circulation in the Federal judicial district in which the property was seized or post a notice on an official government forfeiture website for at least 30 consecutive days. However, if the value of the seized property does not exceed $1,000, the Notice may be published by posting for at least three successive weeks in a conspicuous place accessible to the public at the National Marine Fisheries Service Enforcement Office, U.S. District Court, or the U.S. Customs House nearest the place of seizure, with the date of posting indicated on the Notice. In addition, a reasonable effort will be made to serve the Notice on each person whose identity, address and interest in the property are known or easily ascertainable.


(2) The Notice of Proposed Forfeiture will:


(i) Describe the seized property, including any applicable registration or serial numbers;


(ii) State the time, place and reason for the seizure, including the provisions of law allegedly violated; and


(iii) Describe the rights of an interested person to file a claim to the property (including the right to petition to remit or mitigate the forfeiture).


(3)(i) Any person claiming the seized property may file a claim with NOAA, at the address indicated in the Notice, within 30 days of the date the final Notice was published or posted. The claim must state the claimant’s interest in the property.


(ii) Filing a claim does not entitle the claimant to possession of the property. However, it does stop administrative forfeiture proceedings.


(iii) If the claim is timely filed in accordance with this section, NOAA will refer the matter to the U.S. Department of Justice to institute forfeiture proceedings in the appropriate U.S. District Court.


(4) If a claim is not filed within 30 days of the date the final Notice is published or posted in accordance with this section, NOAA will declare the property forfeited. The Declaration of Forfeiture will be in writing and will be served as provided in § 904.3, on each person whose identity and address and prior interest in the seized property are known or easily ascertainable. The Declaration will describe the property and state the time, place, and reason for its seizure, including the provisions of law violated. The Declaration will identify the Notice of Proposed Forfeiture, describing the dates and manner of publication of the Notice and any efforts made to serve the Notice as provided in § 904.3. The Declaration will state that in response to the Notice a proper claim was not timely received by the proper office from any claimant, and that therefore all potential claimants are deemed to admit the truth of the allegations of the Notice. The Declaration shall conclude with an order of condemnation and forfeiture of the property to the United States for disposition according to law. All forfeited property will be subject to disposition as authorized by law and regulations of NOAA.


(5) If the appraised value of the property is more than $500,000, or a timely and satisfactory claim for property appraised at $500,000 or less is submitted to NOAA, the matter will be referred to the U.S. Department of Justice to institute in rem proceedings in the appropriate U.S. District Court.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022]


§ 904.505 Summary sale.

(a) In view of the perishable nature of fish, any person authorized to enforce a statute administered by NOAA may, as authorized by law, sell or cause to be sold, and any person may purchase, for not less than its domestic fair market value, fish seized under such statute.


(b) Any person purchasing fish subject to this section must deliver the proceeds of the sale to a person authorized to enforce a statute administered by NOAA immediately upon request of such authorized person. Anyone who does not so deliver the proceeds may be subject to penalties under the applicable statute or statutes.


(c) NOAA will serve the Notice of the Summary Sale on the owner or consignee, if known or easily ascertainable, or to any other party that the facts of record indicate has an interest in the seized fish, unless the owner or consignee or other interested party has otherwise been personally notified. Notice will be sent either prior to the sale, or as soon thereafter as practicable.


(d) The proceeds of the sale, after deducting any reasonable costs of the sale, will be subject to any administrative or judicial proceedings in the same manner as the seized fish would have been, including an action in rem for the forfeiture of the proceeds. Pending disposition of such proceedings, the proceeds will, as appropriate, either be deposited in a NOAA suspense account or submitted to the appropriate court.


(e) Seizure and sale of fish is without prejudice to any other remedy or sanction authorized by law.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022]


§ 904.506 Remission of forfeiture and restoration of proceeds of sale.

(a) Application of this section. (1) This section establishes procedures for filing with NOAA a petition for the return of any property which has been or may be administratively forfeited under the provisions of any statute administered by NOAA that authorizes the remission or mitigation of forfeitures.


(2) Although NOAA may properly consider a petition for remission or mitigation of forfeiture and restoration of proceeds of sale along with other consequences of a violation, the remission or mitigation of a forfeiture and restoration of proceeds is not dispositive of any criminal charge filed, civil penalty assessed, or permit sanction proposed, unless NOAA expressly so states. Remission or mitigation of forfeiture and restoration of proceeds is in the nature of executive clemency and is granted in the sole discretion of NOAA only when consistent with the purposes of the particular statute involved and this section.


(3) If no petition is timely filed, or if the petition is denied, prior to depositing the proceeds NOAA may use the proceeds of sale to reimburse the U.S. Government for any costs that by law may be paid from such sums.


(4) If NOAA remits the forfeiture and the forfeited property has not been sold, then restoration may be conditioned upon payment of any applicable costs as defined in this subpart.


(b) Petition for relief from forfeiture. (1) Any person claiming an interest in any property which has been or may be administratively forfeited under the provisions of § 904.504 may, at any time after seizure of the property, but no later than 90 days after the date of forfeiture, petition for a remission or mitigation of the forfeiture and restoration of the proceeds of such sale, or such part thereof as may be claimed by the petitioner by serving the petition in conformance with § 904.3 on [email protected] or the Chief of the Enforcement Section of the NOAA Office of General Counsel, 1315 East-West Highway, SSMC 3, Suite 15828, Silver Spring, MD 20910.


(2) The petition need not be in any particular form, but must set forth the following:


(i) A description of the property seized;


(ii) The date and place of the seizure;


(iii) The petitioner’s interest in the property, supported as appropriate by bills of sale, contracts, mortgages, or other satisfactory evidence;


(iv) The facts and circumstances relied upon by the petitioner to justify the remission or mitigation of forfeiture and restoration of proceeds. If the claim is made after the property is forfeited, the petitioner must provide satisfactory proof that the petitioner did not know of the seizure prior to the declaration or condemnation of forfeiture, was in such circumstances as prevented him or her from knowing of the same, and that such forfeiture was incurred without any willful negligence or intention to violate the applicable statute on the part of the petitioner; and


(v) The signature of the petitioner, his or her attorney, or other authorized agent.


(3) NOAA will not consider a petition for remission or mitigation of forfeiture and restoration of proceeds while a forfeiture proceeding is pending in Federal court. Once such a case is referred to the U.S. Department of Justice for institution of judicial proceedings, and until the proceedings are completed, any petition received by NOAA will be forwarded to the U.S. Department of Justice for consideration.


(4) A false statement in a petition will subject petitioner to prosecution under 18 U.S.C. 1001.


(c) Investigation. NOAA will investigate the facts and circumstances shown by the petition and seizure, and may in this respect appoint an investigator to examine the facts and prepare a report of investigation.


(d) Determination of petition. (1) After investigation under paragraph (c) of this section, NOAA will make a determination on the matter and notify the petitioner. NOAA may remit or mitigate the forfeiture, on such terms and conditions as are deemed reasonable and just under the applicable statute and the circumstances.


(2) Unless NOAA determines no valid purpose would be served, NOAA will condition a determination to remit or mitigate a forfeiture upon the petitioner’s submission of an agreement, in a form satisfactory to NOAA, to hold the United States and its officers or agents harmless from any and all claims based on loss of or damage to the seized property or that might result from grant of remission or mitigation and restoration of proceeds. If the petitioner is not the beneficial owner of the property, or if there are others with a proprietary interest in the property, NOAA may require the petitioner to submit such an agreement executed by the beneficial owner or other interested party. NOAA may also require that the property be promptly exported from the United States.


(e) Compliance with the determination. A determination by NOAA to remit or mitigate the forfeiture and restore the proceeds upon stated conditions, as upon payment of a specified amount, will be effective for 60 days after the date of the determination. If the petitioner does not comply with the conditions within that period in a manner prescribed by the determination, or make arrangements satisfactory to NOAA for later compliance, the remission or mitigation and restoration of proceeds will be void, and judicial or administrative forfeiture proceedings will be instituted or resumed.


(f) Appropriated property. If forfeited property that is the subject of a claim for restoration of proceeds has been appropriated for official use, retention by the U.S. Government will be regarded as a sale for the purposes of this section.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38943, June 30, 2022]


§ 904.507 Recovery of certain storage costs.

If any fish, wildlife, or evidentiary property is seized and forfeited under the Endangered Species Act, 16 U.S.C. 1531 through 1543, any person whose act or omission was the basis for the seizure may be charged a reasonable fee for expenses to the United States connected with the transfer, board, handling or storage of such property. If any fish or wildlife is seized in connection with a violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371 through 3378, or any property is seized in connection with a violation of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 through 1882, any person convicted thereof, or assessed a civil penalty therefor, may be assessed a reasonable fee for expenses of the United States connected with the storage, care and maintenance of such property. Within a reasonable time after forfeiture, NOAA will send to such person by registered or certified mail, return receipt requested, a bill for such fee. The bill will contain an itemized statement of the applicable costs, and instructions on the time and manner of payment. Payment must be made in accordance with the bill. If the recipient of the bill objects to the reasonableness of the costs assessed he or she may, within 30 days of receipt, file written objections with NOAA at the address stated in the bill. NOAA will promptly review the written objections and within 30 days mail the final determination to the party who filed them. NOAA’s determination will constitute final agency action on the matter.


§ 904.508 Voluntary forfeiture by abandonment.

(a) The owner of seized property may voluntarily forfeit all right, title, and interest in the property by abandoning it to NOAA. Voluntary forfeiture by abandonment under this section may be accomplished by various means, including, but not limited to: expressly waiving any claim to the property by voluntarily relinquishing any right, title, and interest by written agreement or otherwise; or refusing or otherwise avoiding delivery of returned property; or failing to respond within 90 days of service of any certified or registered notice regarding a return of seized property issued under § 904.510(b).


(b) Property will be declared finally forfeited by abandonment, without recourse, upon a finding of abandonment by NOAA.


§ 904.509 Disposal of forfeited property.

(a) Delivery to Administrator. Upon forfeiture of any fish, wildlife, parts or products thereof, or other property to the United States, including the abandonment or waiver of any claim to any such property, it will be delivered to NOAA for storage or disposal according to the provisions of this section.


(b) Disposal. Disposal may be accomplished by one of the following means unless the property is the subject of a petition for remission or mitigation of forfeiture or disposed of by court order:


(1) Return to the wild;


(2) Use by NOAA or transfer to another government agency for official use;


(3) Donation or loan;


(4) Sale; or


(5) Destruction.


(c) Purposes of disposal. Disposal procedures may be used to alleviate overcrowding of evidence storage facilities; to avoid the accumulation of seized property where disposal is not otherwise accomplished by court order; to address the needs of governmental agencies and other institutions and organizations for such property for scientific, educational, and public display purposes; and for other valid reasons. In no case will property be used for personal purposes, either by loan recipients or government personnel.


(d) Disposal of evidence. Property that is evidence may be disposed of only after authorization by the NOAA Office of General Counsel. Disposal approval usually will not be given until the case involving the evidence is closed, except that perishable property may be authorized for disposal sooner.


(e) Loans – (1) To institutions. Property approved for disposal may be loaned to institutions or organizations requesting such property for scientific, educational, or public display purposes. Property will be loaned only after execution of a loan agreement which provides, among other things, that the loaned property will be used only for noncommercial scientific, educational, or public display purposes, and that it will remain the property of the U.S. Government, which may demand its return at any time. Parties requesting the loan of property must demonstrate the ability to provide adequate care and security for the property. Loans may be made to responsible agencies of foreign governments in accordance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora.


(2) To individuals. Property generally will not be loaned to individuals not affiliated with an institution or organization unless it is clear that the property will be used in a noncommercial manner, and for scientific, educational, or public display purposes which are in the public interest.


(3) Selection of loan recipients. Recipients of property will be chosen so as to assure a wide distribution of the property throughout the scientific, educational, public display and museum communities. Other branches of NMFS, NOAA, the Department of Commerce, and other governmental agencies will have the right of first refusal of any property offered for disposal. The Administrator may solicit applications, by publication of a notice in the Federal Register, from qualified persons, institutions, and organizations who are interested in obtaining the property being offered. Such notice will contain a statement as to the availability of specific property for which transferees are being sought, and instructions on how and where to make application. Applications will be granted in the following order: other offices of NMFS, NOAA, and the Department of Commerce; U.S. Fish and Wildlife Service; other Federal agencies; other governmental agencies; scientific, educational, or other public or private institutions; and private individuals.


(4) Loan agreement. Property will be transferred under a loan agreement executed by the Administrator and the borrower. Any attempt on the part of the borrower to retransfer property, even to another institution for related purposes, will violate and invalidate the loan agreement, and entitle the United States to immediate repossession of the property, unless the prior approval of the Administrator has been obtained under § 904.510(d)(5). Violation of the loan agreement may also subject the violator to the civil penalties provided by the laws governing possession and transfer of the property.


(5) Temporary reloans; documents to accompany property. Temporary reloans by the borrower to another qualified borrower (as for temporary exhibition) may be made if the Administrator is advised in advance by the borrowers. Temporary loans for more than thirty days must be approved in advance in writing by the Administrator. A copy of the original loan agreement, and a copy of the written approval for reloan, if any, must accompany the property whenever it is temporarily reloaned or is shipped or transported across state or international boundaries.


(f) Sale. (1) Any fish, wildlife, parts or products thereof, and other property which has been voluntarily forfeited by abandonment to NOAA may be sold or offered for sale, with the exception of any species or property which is otherwise prohibited from being sold at the time it is to be sold or offered for sale.


(2) Property will be sold in accordance with current Federal Property Management Regulations (41 CFR chapter 101) or U.S. Customs laws and regulations, except that NOAA may:


(i) Sell at fair market value perishable fish pursuant to the summary sales provisions of 15 CFR 904.505; and


(ii) Sell, destroy, or otherwise dispose of property for which it is determined the expense of keeping it is disproportionate to the value thereof.


(3) The proceeds of sale may be used to reimburse NOAA for any costs which by law NOAA is authorized to recover or to pay any rewards which by law may be paid from sums that NOAA receives.


(g) Destruction. (1) Property not otherwise disposed of may be destroyed.


(2) Destruction will be accomplished in accordance with the requirements of 41 CFR parts 101-1 through 101-49.


(3) When destroyed, the fact, manner, and date of destruction and the type and quantity destroyed must be certified by the official actually destroying the property.


(4) No duly authorized officer of NOAA shall be liable for the destruction or other disposition of property made pursuant to this section.


(h) Recordkeeping. A disposal form will be completed each time property is disposed of pursuant to the policy and procedure established herein, and will be retained in the case file for the property. These forms will be available to the public.


[71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38943, June 30, 2022]


§ 904.510 Return of seized property.

(a) Return. In cases where NOAA, in its sole discretion, determines that forfeiture of seized property would not be in the best interest of the U.S. Government, NOAA will make a reasonable attempt to determine the party that the facts of record indicate has a predominant ownership interest in the seized property and, provided such a determination can be made, will arrange for return of the seized property to that party by appropriate means.


(b) Notice. NOAA will serve a Notice of the Return of property as provided by § 904.3, to the owner, consignee, or other party the facts of record indicate has an interest in the seized property. The Notice will describe the seized property, state the time, place, and reason for the seizure and return, and will identify the owner or consignee, and if appropriate, the bailee of the seized property. The Notice of the return also will state that the party to whom the property is being returned is responsible for any distribution of the property to any party who holds a valid claim, right, title or interest in receiving the property, in whole or in part. The Notice also will provide that on presentation of the Notice and proper identification, and the signing of a receipt provided by NOAA, the seized property is authorized to be released.


PART 905 – USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED BY VOLUNTARY FISHERY DATA COLLECTORS


Authority:16 U.S.C. 1853(f).


Source:60 FR 39251, Aug. 2, 1995, unless otherwise noted.

§ 905.1 Scope.

This part applies to the use, in enforcement proceedings conducted pursuant to the Magnuson Act, the MMPA, and the ESA, of information collected by voluntary fishery data collectors.


§ 905.2 Definitions.

When used in this part:


Consenting owner means the owner, operator, or crewmember of a vessel carrying a voluntary fishery data collector.


Enforcement proceeding means any judicial or administrative trial or hearing, initiated for the purpose of imposing any civil or criminal penalty authorized under the Magnuson Act, MMPA, or ESA, including but not limited to, any proceeding initiated to: Impose a monetary penalty; modify, sanction, suspend or revoke a lease, license or permit; secure forfeiture of seized property; or incarcerate an individual.


ESA means the Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., and implementing regulations.


Information means all observations, data, statistics, photographs, film, or recordings collected by a voluntary fishery data collector for conservation and management purposes, as defined by the Magnuson Act, MMPA, or ESA, while onboard the vessel of a consenting owner.


Magnuson Act means the Magnuson Fishery Conservation and Management Act, as amended, 16 U.S.C. 1801 et seq., and implementing regulations.


MMPA means the Marine Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq., and implementing regulations.


Secretary means the Secretary of Commerce, the Secretary of the Interior, their chosen designees, or any other Federal agency authorized to enforce the provisions of the Magnuson Act, MMPA, or ESA.


Vessel means any vessel as defined at 16 U.S.C. 1802(31).


Voluntary fishery data collector means:


(1) Any person, including an observer or a sea sampler;


(2) Placed aboard a vessel by the Secretary;


(3) For the purpose of collecting information; and


(4) Whose presence aboard that vessel is not required by the Secretary pursuant to provisions of the Magnuson Act, MMPA, or ESA, or their implementing regulations.


§ 905.3 Access to information.

Information collected by a voluntary fishery data collector:


(a) Is subject to disclosure to both the Secretary and the public, to the extent required or authorized by law; and


(b) Is subject to discovery by any party to an enforcement proceeding, to the extent required or authorized by law.


§ 905.4 Use of information.

(a) Except as provided for in paragraph (b) of this section, information collected by a voluntary fishery data collector may not be introduced by the Secretary as evidence against any consenting owner that is a party to an enforcement proceeding.


(b) Provided that all applicable evidentiary requirements are satisfied:


(1) Information collected by a voluntary fishery data collector may be introduced in an enforcement proceeding by any party except the Secretary;


(2) If information is introduced pursuant to paragraph (b)(1) of this section, all information collected by a voluntary fishery data collector may be introduced by any other party, including the Secretary.


(c) Independent evidence derived from information collected by a voluntary fishery data collector may be introduced by any party, including the Secretary, in an enforcement proceeding.


§ 905.5 Exceptions.

The provisions of this part shall not apply in any enforcement proceeding against a consenting owner that alleges the actual or attempted:


(a) Assault, intimidation, or harassment (including sexual harassment) of any person; or


(b) Impairment or interference with the duties of a voluntary fishery data collector.


PART 906 – NATIONAL APPEALS OFFICE RULES OF PROCEDURE


Authority:16 U.S.C. 1801 et seq.; 16 U.S.C. 1374, 1375 and 1416; 16 U.S.C. 1540; 16 U.S.C. 773f; 16 U.S.C. 973f; 16 U.S.C. 1174; 16 U.S.C. 2437; 16 U.S.C. 4013; 16 U.S.C. 5507; 16 U.S.C. 7009; 16 U.S.C. 3637; 16 U.S.C. 5103 and 5106; 16 U.S.C. 5154 and 5158; 16 U.S.C. 6905, and; 16 U.S.C. 5010.


Source:79 FR 7060, Feb. 6, 2014, unless otherwise noted.

§ 906.1 Purpose and scope.

(a) This part sets forth the procedures governing administrative adjudications before the National Appeals Office (NAO).


(b) NAO will adjudicate appeals of initial administrative determinations in limited access privilege programs developed under section 303A of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and approved after the effective date of these regulations. Those appeals are informal proceedings.


(c) The procedures in this part may be incorporated by reference in regulations other than those promulgated pursuant to section 303A of the MSA.


(d) The Secretary of Commerce may request that NAO adjudicate appeals in any matter in controversy that requires findings of fact and conclusions of law, and other quasi-judicial matters that the Secretary deems appropriate, consistent with existing regulations. The Secretary will provide notice to potential appellants and to any affected party in these other matters through regulations or actual notice.


(e) The procedures in this part may not be used to seek review of the validity of statutes or regulations.


§ 906.2 Definitions.

As used in this part:


Agency record means all material and information, including electronic, the office that issued the initial administrative determination relied on or considered in reaching its initial administrative determination, or which otherwise is related to the initial administrative determination.


Appeal means an appellant’s petition to appeal an initial administrative determination and all administrative processes of the National Appeals Office related thereto.


Appellant means a person who is the named recipient of an initial administrative determination and appeals it to the National Appeals Office.


Appellate officer means an individual designated by the Chief of the National Appeals Office to adjudicate the appeal. The term may include the Chief of the National Appeals Office.


Day means calendar day unless otherwise specified by the Chief of the National Appeals Office. When computing any time period specified under these rules, count every day, including intermediate Saturdays, Sundays, and legal holidays. If the date that ordinarily would be the last day for filing with NAO falls on a Saturday, Sunday, or Federal holiday, or a day NAO is closed, the filing period will include the first NAO workday after that date.


Department or DOC means the Department of Commerce.


Initial Administrative Determination or IAD means a determination made by an official of the National Marine Fisheries Service that directly and adversely affects a person’s ability to hold, acquire, use, or be issued a limited access privilege. The term also includes determinations issued pursuant to other federal law, for which review has been assigned to the National Appeals Office by the Secretary.


NAO means the National Appeals Office, an adjudicatory body within the Office of Management and Budget, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce. The term generally means all NAO personnel, including appellate officers.


NAO case record means the agency record and all additional documents and other materials related to an appeal and maintained by NAO in a case file.


NMFS means the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce.


National Oceanic and Atmospheric Administration or NOAA means the National Oceanic and Atmospheric Administration, Department of Commerce.


Party means a person who files a petition for appeal with NAO and an office that issued the IAD if that office participates in the NAO appeal.


Regional Administrator means the administrator of one of five regions of NMFS: Northeast, Southeast, West Coast, Alaska, or Pacific Islands. The term also includes an official with similar authority within the DOC, such as the Director of NMFS Office of Sustainable Fisheries.


Representative means an individual properly authorized by an appellant in writing to act for the appellant in conjunction with an appeal pending in NAO. The representative does not need to be a licensed attorney.


§ 906.3 Requesting an appeal and agency record.

(a) Who may file. Any person who is the named recipient of an initial administrative determination.


(b) Petition to appeal. (1) To request an appeal, a person shall submit a written petition of appeal to NAO.


(2) The petition shall include a copy of the initial administrative determination the person wishes to appeal.


(3) In the petition, the person shall state how the initial administrative determination directly and adversely affects him or her, why he or she believes the initial administrative determination is inconsistent with the law and regulations governing the initial administrative determination, and whether he or she requests a hearing or prefers that an appellate officer make a decision based on the NAO case record and without a hearing.


(i) Arguments not raised by the person in his or her petition to appeal will be deemed waived unless NAO permits amendments to the petition based on good cause for not raising the arguments in the original petition.


(ii) The petition may include additional documentation in support of the appeal.


(4) If a person requests a hearing, the written request must include a concise statement raising genuine and substantial issues of a material fact or law that cannot be resolved based on the documentary evidence.


(5) In the petition, a person shall state whether the person has a representative, and if so, the name, address, and telephone number for the representative.


(c) Address of record. In the petition, the person shall identify the address of record. Documents directed to the appellant will be mailed to the address of record, unless the appellant provides NAO and other parties with any changes to his or her address in writing.


(1) The address of record may include a representative’s address.


(2) NAO bears no responsibility if the appellant or his or her representative does not receive documents because appellant or his or her representative changed his or her address and did not notify NAO.


(3) NAO bears no responsibility if the appellant or his or her representative fails to retrieve documents upon notification from the United States Postal Service or commercial carrier.


(4) NAO will presume that documents addressed to an address of record and properly mailed or given to a commercial carrier for delivery are received.


(d) Place of filing. The petition must be transmitted via facsimile. The facsimile number is: 301-713-2384. If the person filing the petition does not have access to a fax machine, he or she may file the petition by mail or commercial carrier addressed to Chief, National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910.


(e) Time limitations. (1) A petition must be filed within 45 days after the date the initial administrative determination is issued unless a shorter or longer filing timeframe is explicitly specified in the regulations governing the initial administrative determination.


(2) A person may not request an extension of time to file a petition to appeal.


(f) Agency record. (1) Within 20 days of receipt of the copy of the petition to appeal, the office that issued the initial administrative determination that is the subject of the appeal shall transmit the agency record to NAO.


(2) The office that issued the initial administrative determination shall organize the documents of the agency record in chronological order. Pages attached to a primary submission shall remain with the primary submission.


(g) Agency participation in appeal. Within 20 days of receipt of the copy of the petition to appeal, the office that issued the initial administrative determination that is the subject of the appeal may provide written notice to NAO that it will be a party to the appeal. An office issuing the initial administrative determination is not required to be a party.


§ 906.4 General filing requirements.

(a) Date of filing. Filing refers to providing documents to NAO.


(1) Except for the agency record required under § 906.3(f), all documents filed on behalf of an appellant or related to an appeal shall be submitted to NAO via facsimile. The facsimile number is: 301-713-2384. If the person filing does not have access to a fax machine, he or she may file by regular mail or commercial carrier addressed to Chief, National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910.


(2) A document transmitted to NAO is considered filed upon receipt of the entire submission by 5 p.m. Eastern Time at NAO.


(b) Copies. At the time of filing a submission to NAO, the filing party shall serve a copy thereof on every other party, unless otherwise provided for in these rules.


(c) Retention. All submissions to NAO become part of a NAO case record.


(d) Extension of time. When a submission is required to be filed at NAO by a deadline, a party may request, in writing, an extension of time to file the submission, citing the specific reason(s) for the need for an extension. NAO may grant one extension of up to 30 days if an appellate officer determines the party has established good cause for an extension of time, taking into account whether the party timely requested the extension or the extent to which the party missed the deadline.


§ 906.5 Service.

(a) Service refers to providing documents to parties to an appeal.


(1) Service of documents may be made by first class mail (postage prepaid), facsimile, or commercial carrier, or by personal delivery to a party’s address of record.


(2) Service of documents will be considered effective upon the date of postmark (or as otherwise shown for government-franked mail), facsimile transmission, delivery to a commercial carrier, or upon personal delivery.


(b) A party shall serve a copy of all documents to all other parties and shall file a copy of all documents with NAO the same business day.


(c) NAO may serve documents by electronic mail.


§ 906.6 Ex parte communications.

(a) Ex parte communication means any oral or written communication about the merits of a pending appeal between one party and the NAO with respect to which reasonable prior notice to all parties is not given. However, ex parte communication does not include inquiries regarding procedures, scheduling, and status.


(b) Ex parte communication is not permissible unless all parties have been given reasonable notice and an opportunity to participate in the communication.


(c) If NAO receives an ex parte communication, NAO shall document the communication and any responses thereto in the NAO case record. If the ex parte communication was in writing, NAO shall include a copy of the communication in the NAO case record. If the ex parte communication was oral, NAO shall prepare a memorandum stating the substance of the oral communication, and include the memorandum in the NAO case record. NAO will provide copies of any such materials included in the NAO case record under this paragraph to the parties.


(d) NAO may require a party to show cause why such party’s claim or interest in the appeal should not be dismissed, denied, disregarded, or otherwise adversely affected because of an ex parte communication.


(e) NAO may suspend this section during an alternative dispute resolution process established by regulation or agency policy.


(f) Communication with NAO, including appellate officers, concerning procedures, scheduling, and status is permissible.


§ 906.7 Disqualification of appellate officer.

(a) An appellate officer shall disqualify himself or herself if the appellate officer has a perceived or actual conflict of interest, a perceived or actual prejudice or bias, for other ethical reasons, or based on principles found in the American Bar Association Model Code of Judicial Conduct for Administrative Law Judges.


(b) Any party may request an appellate officer, at any time before the filing of the appellate officer’s decision, to withdraw on the ground of personal bias or disqualification, by filing a written motion with the appellate officer setting forth in detail the matters alleged to constitute grounds for disqualification.


(c) The appellate officer, orally or in writing, shall grant or deny the motion based on the American Bar Association Model Code of Judicial Conduct for Federal Administrative Law Judges and other applicable law or policy. If the motion is granted, the appellate officer will disqualify himself or herself and withdraw from the proceeding. If the motion is denied, the appellate officer will state the grounds for his or her ruling and proceed with his or her review.


§ 906.8 Scheduling and pre-hearing conferences.

(a) NAO may convene a scheduling and/or pre-hearing conference if, for example, an appellate officer in his or her discretion finds a conference will materially advance the proceeding.


(b) NAO shall notify the parties in writing 10 days prior to a conference unless the Chief of NAO orders a shorter period of time for providing notice of conducting a conference. A party may request one change in the scheduled pre-hearing date. In determining whether to grant the request, NAO will consider whether the requesting party has shown good cause for the change in date.


(c) In exercising his or her discretion whether to hold a scheduling and/or pre-hearing conference, an appellate officer may consider:


(1) Settlement, if authorized under applicable law;


(2) Clarifying the issues under review;


(3) Stipulations;


(4) Hearing(s) date, time, and location;


(5) Identifying witnesses for the hearing(s);


(6) Development of the NAO case record, and;


(7) Other matters that may aid in the disposition of the proceedings.


(d) Recording. NAO may record the conference.


(e) Format. At the discretion of the appellate officer, conferences may be conducted by telephone, in person, or by teleconference or similar electronic means.


(f) NAO may issue a written order showing the matters disposed of in the conference and may include in the order other matters related to the appeal.


§ 906.9 Exhibits.

(a) The parties shall mark all exhibits in consecutive order in whole Arabic numbers and with a designation identifying the party submitting the exhibit(s).


(b) Parties shall exchange all exhibits that will be offered at the hearing at least 10 days before the hearing.


(c) Parties shall provide all exhibit(s) to NAO at least 5 days before the hearing.


(d) NAO may modify the timeframe for exchanging or submitting exhibits if an appellate officer determines good cause exists.


(e) NAO may deny the admission into evidence of exhibits that are not marked and exchanged pursuant to this rule.


(f) Each exhibit offered in evidence or marked for identification shall be filed and retained in the NAO case record.


§ 906.10 Evidence.

(a) The Federal Rules of Evidence do not apply to NAO proceedings.


(b) An appellate officer will decide whether to admit evidence into the NAO case record.


(1) An appellate officer may exclude unduly repetitious, irrelevant, and immaterial evidence. An appellate officer may also exclude evidence to avoid undue prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence.


(2) An appellate officer may consider hearsay evidence.


(c) Copies of documents may be offered as evidence, provided they are of equal legibility and quality as the originals, and such copies shall have the same force and effect as if they were originals. If an appellate officer so directs, a party shall submit original documents to the appellate officer.


(d) An appellate officer may take official notice of Federal or State public records and of any matter of which courts may take judicial notice.


(e) An appellate officer may request, and the program office that issued the initial administrative determination in the case before the appellate officer will provide, the interpretation(s) of the law made by the program office and applied to the facts in the case.


§ 906.11 Hearing.

(a) Procedures. (1) An appellate officer in his or her discretion may order a hearing taking into account the information provided by an appellant pursuant to § 906.3(b)(3) and whether an appellate officer considers that a hearing will materially advance his or her evaluation of the issues under appeal. In exercising his or her discretion, an appellate officer may consider whether oral testimony is required to resolve a material issue of fact, whether oral presentation is needed to probe a party’s position on a material issue of law, and whether a hearing was held previously for the same appeal. If an appellate officer determines that a hearing is not necessary, then the appellate officer will base his or her decision on the NAO case record. In the absence of a hearing an appellate officer may, at his or her discretion, permit the parties to submit additional materials for consideration.


(2) If an appellate officer convenes a hearing, the hearing will be conducted in the manner determined by NAO most likely to obtain the facts relevant to the matter or matters at issue.


(3) NAO shall schedule the date, time and place for the hearing. NAO will notify the parties in writing of the hearing date, time and place at least 10 days prior to the hearing unless the Chief of NAO orders a shorter period for providing notice or conducting the hearing. A party can request one change in the scheduled hearing date. In determining whether to grant the request, NAO will consider whether the requesting party has shown good cause for the change in date.


(4) At the hearing, all testimony will be under oath or affirmation administered by an appellate officer. In the event a party or a witness refuses to be sworn or refuses to answer a question, an appellate officer may state for the record any inference drawn from such refusal.


(5) An appellate officer may question the parties and the witnesses.


(6) An appellate officer will allow time for parties to present argument, question witnesses and other parties, and introduce evidence consistent with § 906.10.


(7) Parties may not compel discovery or the testimony of any witness.


(b) Recording. An appellate officer will record the hearing unless the appellant consents to proceed without a recording.


(c) Format. At the discretion of NAO, hearings may be conducted by telephone, in person, or by teleconference or similar electronic means.


§ 906.12 Closing the evidentiary portion of the NAO case record.

(a) At the conclusion of the NAO proceedings, an appellate officer will establish the date upon which the evidentiary portion of the NAO case record will close. Once an appellate officer closes the evidentiary portion of the NAO case record, with or without a hearing, no further submissions or argument will be accepted into the NAO case record.


(b) NAO in its discretion may reopen the evidentiary portion of the NAO case record or request additional information from the parties at any time prior to final agency action.


§ 906.13 Failure to appear.

If any party fails to appear at a pre-hearing conference or hearing after proper notice, an appellate officer may:


(a) Dismiss the case, or;


(b) Deem the failure of a party to appear after proper notice a waiver of any right to a hearing and consent to the making of a decision based on the NAO case record.


§ 906.14 Burden of proof.

On issues of fact, the appellant bears the burden of proving he or she should prevail by a preponderance of the evidence. Preponderance of the evidence is the relevant evidence in the NAO case record, considered as a whole, that shows that a contested fact is more likely to be true than not true. Appellant has the obligation to obtain and present evidence to support the claims in his or her petition.


§ 906.15 Decisions.

(a) After an appellate officer closes the evidentiary portion of the NAO case record, NAO will issue a written decision that is based on the NAO case record. In making a decision, NAO shall determine whether the appellant has shown by a preponderance of the evidence that the initial administrative determination is inconsistent with the law and regulations governing the initial administrative determination. In making a decision, NAO shall give deference to the reasonable interpretation(s) of applicable ambiguous laws and regulations made by the office issuing the initial administrative determination.


(b) NAO shall serve a copy of its decision upon the appellant and the Regional Administrator. NAO will not provide the case record to the Regional Administrator when issuing its decision.


§ 906.16 Reconsideration.

(a) Any party may file a motion for reconsideration of an NAO decision issued under § 906.15. The request must be filed with NAO within 10 days after service of NAO’s decision. A party shall not file more than one motion for reconsideration of an NAO decision.


(b) The motion must be in writing and contain a detailed statement of an error of fact or law material to the decision. The process of reconsideration is not a forum for reiterating the appellant’s objections to the initial administrative determination.


(c) Arguments not raised by a party in his or her motion for reconsideration of a decision will be deemed waived.


(d) In response to a motion for reconsideration, NAO will either:


(1) Reject the motion because it does not meet the criteria of paragraph (a) or (b) of this section; or


(2) Issue a revised decision and serve a copy of its revised decision upon the appellant and the Regional Administrator.


(e) At any time prior to notifying the Regional Administrator pursuant to § 906.17(a), the NAO may issue a revised decision to make corrections and serve a copy of its revised decision upon the appellant and the Regional Administrator.


§ 906.17 Review by the Regional Administrator.

(a) If NAO does not receive a timely motion for reconsideration pursuant to § 906.16(a), receives a timely motion and rejects it pursuant to § 906.16(d)(1), or issues a revised decision pursuant to § 906.16(d)(2) or (e), NAO will notify the Regional Administrator and the appellant, and provide a copy of the case record for its decision or revised decision to the Regional Administrator.


(b) In reviewing NAO’s findings of fact, the Regional Administrator may only consider the evidentiary record including arguments, claims, evidence of record and other documents of record that were before NAO when it rendered its decision or revised decision.


(c) The Regional Administrator may take the following action within 30 days of service of NAO’s notification and receipt of the case record under paragraph (a) of this section:


(1) Issue a written decision adopting, remanding, reversing, or modifying NAO’s decision or revised decision.


(2) Issue a stay for no more than 90 days to prevent NAO’s decision or revised decision from taking effect.


(d) The Regional Administrator must provide a written decision explaining why an NAO decision or revised decision has been remanded, reversed, or modified. Consistent with § 906.18(b), the Regional Administrator may, but does not need to, issue a written decision to adopt an NAO decision or revised decision.


(e) The Regional Administrator will serve a copy of any written decision or stay on NAO and the appellant.


§ 906.18 Final decision of the Department.

(a) The Regional Administrator’s written decision to adopt, reverse, or modify an NAO decision or revised decision pursuant to § 906.17(c) is the final decision of the Department for the purposes of judicial review.


(b) If the Regional Administrator does not take action pursuant to § 906.17(c)(1), NAO’s decision issued pursuant to § 906.15(a) or revised decision issued pursuant to § 906.16(d)(2) or (e) becomes the final decision of the Department for the purposes of judicial review 30 days after service of NAO’s notification under § 906.17(a), or upon expiration of any stay issued by the Regional Administrator pursuant to § 906.17(c)(2).


(c) The office that issued the initial administrative determination shall implement the final decision of the Department within 30 days of service of the final decision issued pursuant to § 906.18(a), or within 30 days of the decision becoming final pursuant to § 906.18(b), to the extent practicable.


PART 908 – MAINTAINING RECORDS AND SUBMITTING REPORTS ON WEATHER MODIFICATION ACTIVITIES


Authority:Pub. L. 92-305, 85 Stat. 735, December 18, 1971.


Source:41 FR 23394, June 10, 1976, unless otherwise noted.

§ 908.1 Definitions.

As used in this part, terms shall have the meaning ascribed in this section.


(a) Administrator. The Administrator of the National Oceanic and Atmospheric Administration.


(b) Person. Any individual, corporation, company, association, firm, partnership, society, joint stock company, any State or local government or any agency thereof, or any other organization, whether commercial or nonprofit, except where acting solely as an employee, agent, or independent contractor of the Federal government.


(c) Weather modification activity. Any activity performed with the intention of producing artificial changes in the composition, behavior, or dynamics of the atmosphere.


(d) United States. The several States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or insular possession of the United States.


(e) Persons whose activities relate to weather modification. Persons engaged in weather modification activities or engaged in the distribution or sale of weather modification apparatus or materials known by them to be destined for use in weather modification activities.


(f) Project. A related series of weather modification activities having a common objective.


(g) Target area. The ground area within which the effects of the weather modification activity are expected to be found.


(h) Control area. A preselected, untreated ground area used for comparison with a target area.


(i) Weather modification apparatus. Any apparatus used with the intention of producing artificial changes in the composition, behavior, or dynamics of the atmosphere. For example: Seeding generators, propane devices, flares, rockets, artillery projectiles, jet engines, etc.


(j) Sponsor. The primary person for whom the weather modification activity is performed.


(k) Operator. The person who is primarily responsible for carrying out the weather modification activity.


[41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]


§ 908.2 Persons subject to reporting.

Any person engaged or intending to engage in any weather modification activity in the United States shall be subject to the reporting provisions of this part.


§ 908.3 Activities subject to reporting.

(a) The following, when conducted as weather modification activities, shall be subject to reporting:


(1) Seeding or dispersing of any substance into clouds or fog, to alter drop size distribution, produce ice crystals or coagulation of droplets, alter the development of hail or lightning, or influence in any way the natural development cycle of clouds or their environment;


(2) Using fires or heat sources to influence convective circulation or to evaporate fog;


(3) Modifying the solar radiation exchange of the earth or clouds, through the release of gases, dusts, liquids, or aerosols into the atmosphere;


(4) Modifying the characteristics of land or water surfaces by dusting or treating with powders, liquid sprays, dyes, or other materials;


(5) Releasing electrically charged or radioactive particles, or ions, into the atmosphere;


(6) Applying shock waves, sonic energy sources, or other explosive or acoustic sources to the atmosphere;


(7) Using aircraft propeller downwash, jet wash, or other sources of artificial wind generation; or


(8) Using lasers or other sources of electromagnetic radiation.


(b) In addition to the activities listed above, other similar activities falling within the definition of weather modification as set forth in § 908.1 are also subject to reporting.


(c) The requirement for reporting shall not apply to activities of a purely local nature that can reasonably be expected not to modify the weather outside of the area of operation. This exception is presently restricted to the use of lightning deflection or static discharge devices in aircraft, boats, or buildings, and to the use of small heat sources, fans, fogging devices, aircraft downwash, or sprays to prevent the occurrence of frost in tracts or fields planted with crops susceptible to frost or freeze damage. Also expected from the requirement for reporting are religious activities or other ceremonies, rites and rituals intended to modify the weather.


(d) All activities noted in paragraphs (a) and (b) of this section are subject to initial reporting. However, after the Administrator has received initial notification of a planned activity, he may waive some of the subsequent reporting requirements. This decision to waive certain reporting requirements will be based on the general acceptability, from a technical or scientific viewpoint, of the apparatus and techniques to be used.


(e) Other reporting exceptions may be made in the future by rule of the Administrator.


§ 908.4 Initial report.

(a) Any person intending to engage in any weather modification project or activity in the United States shall provide a report of his intention, to be received by the Administrator at least 10 days before the commencement of such project or activity. This report shall contain at least the following:


(1) The designation, if any, used by the operator for the project or activity;


(2) The following dates for weather modification activities:


(i) The date the first actual weather modification activity is to be undertaken;


(ii) The date on which the final modification activity is expected to occur;


(3) The following information on persons involved with the project or activity:


(i) The name, affiliation, and address of the sponsor;


(ii) The name, affiliation, and address of the operator;


(4) The purpose of the project or activity;


(5) A map showing the approximate size and location of the target and control areas, and the location of each item of ground-based weather modification apparatus, precipitation measuring device, and, for airborne operations, the airport;


(6) A description of the weather modification apparatus, modification agents, and the techniques to be employed;


(7) The name and address of the responsible individual from whom log books or other records of the project or activity may be obtained;


(8) Answers to the following questions on project safeguards:


(i) Has an Environmental Impact Statement, Federal or State, been filed: Yes__ No __. If Yes, please furnish a copy as applicable.


(ii) Have provisions been made to acquire the latest forecasts, advisories, warnings, etc. of the National Weather Service, Forest Service, or others when issued prior to and during operations? Yes __ No __. If Yes, please specify on a separate sheet.


(iii) Have any safety procedures (operational contraints, provisions for suspension of operations, monitoring methods, etc.) and any environmental guidelines (related to the possible effects of the operations) been included in the operational plans? Yes __ No __. If Yes, please furnish copies or a description of the specific procedures and guidelines; and


(9) Optional remarks, to include any additional items which the person deems significant or of interest and such other information as the Administrator may request the person to submit.


(b) If circumstances prevent the signing of a contract or agreement to perform, or receipt of an authorization to proceed with, a weather modification activity at a date early enough to comply with paragraph (a) of this section, the initial report shall be provided so as to be received by the Administrator within 10 days of the date of signing of the contract or agreement, or receipt of authorization to proceed. In such cases, the report shall be accompanied by an explanation as to why it was not submitted at least 10 days prior to the commencement of the activity.


(c) In the event that circumstances beyond the control of the person liable to report under these regulations prevent the submission of the initial report in a timely manner as described above, the report shall be forwarded as early as possible, accompanied by an explanation as to why a timely report has not been provided. If such explanation is deemed adequate, the Administrator will consider the report as timely filed.


§ 908.5 Interim reports.

(a) Any person engaged in a weather modification project or activity in the United States on January 1 in any year shall submit to the Administrator, not later than 45 days thereafter, an interim report setting forth as of such date the information required below with respect to any such continuing project or activity not previously furnished to the Administrator in a prior interim report; provided that the January 1 date shall not apply if other arrangements have previously been made with the written approval of the Administrator.


(b) The interim report shall include the file number assigned by the Administrator and shall provide a summary of the project or activity containing at least the following information for each month:


(1) Number of days on which actual modification activities took place;


(2) Number of days on which weather modification activities were conducted, segregated by each of the major purposes of the activities;


(3) Total number of hours of operation of each type of weather modification apparatus (i.e., net hours of agent release);


(4) Total amount of agent used. If more than one agent was used, each should be totaled separately (e.g., carbon dioxide, sodium chloride, urea, silver iodide).


(c) The totals for the items in paragraph (b) of this section shall be provided for the period covered by the interim report.


[41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]


§ 908.6 Final report.

Upon completion of a weather modification project or activity the person who performed the same shall submit a report to the Administrator not later than 45 days after completion of the project or activity. The report shall include the file number assigned by the Administrator and the following items:


(a) Information required for the interim reports (to the extent not previously reported).


(b) The total number of days on which actual modification activities took place during the project or activity.


(c) The total number of days during the project or activity on which weather modification activities were conducted, segregated by each of the major purposes of the activities.


(d) The total number of hours of operation of each type of weather modification apparatus during the project or activity (i.e., net hours of agent release).


(e) The total amount of modification agent(s) dispensed during the project or activity. If more than one agent was used, each should be totaled separately (e.g., carbon dioxide, sodium chloride, urea, silver iodide).


(f) The date on which the final weather modification activity occurred.


[41 FR 23394, June 10, 1976, as amended at 46 FR 32233, June 22, 1981]


§ 908.7 Supplemental reports.

Notwithstanding other regulations, a supplemental report in letter form referring to the appropriate NOAA file number, if assigned, must be made to the Administrator immediately if any report of weather modification activities submitted under § 908.4, § 908.5, or § 908.6 is found to contain any material inaccuracies, misstatements, and omissions. A supplemental report must also be made if there are changes in plans for the project or activity.


§ 908.8 Maintenance of records.

(a) Any person engaging in a weather modification activity in the United States shall maintain a record of such activity. This record shall contain at least the following, when applicable:


(1) A chronological record of activities carried on, preferably in the form of a daily log, which shall include the NOAA file number assigned to the project, the designation of each unit of weather modification apparatus, and at least the following information for each unit:


(i) Date of the weather modification activity.


(ii) Position of each aircraft or location of each item of weather modification apparatus during each modification mission. Maps may be used.


(iii) Time when weather modification activity began and ended.


(iv) Total duration of operation of each unit of weather modification apparatus (i.e., net hours of agent release).


(v) Type of each modification agent used.


(vi) Rate of dispersal of each agent during the period of actual operation of weather modification apparatus.


(vii) Total amount of agent used. If more than one agent was used, report total for each type separately.


(viii) Number of days on which weather modification activities were conducted, segregated by each of the major purposes of the activities.


(2) The monthly totals of hours of modification activity, the amount of modification agent used, and the number of days on which weather modification activities were conducted, segregated by each of the major purposes of the activities, shall be shown on the daily log sheet for the last day of each month.


(b) When the activity involves ground-based weather modification apparatus, records of the following shall also be maintained, when applicable, but need not be made part of the daily log:


(1) The location of each item of weather modification apparatus in use and its identification such as type and manufacturer’s model number. If the apparatus is not commercially available, a brief description of the apparatus and the method of operation should be recorded.


(2) The name and address of the person responsible for operating each weather modification apparatus.


(3) The altitude and type of weather phenomenon subjected to weather modification activity during each operational period (e.g., cumulus clouds between 10,000 and 30,000 feet m.s.l.; ground fog).


(c) When the activity involves airborne weather modification apparatus, records of the following shall also be maintained, when applicable, but need not be made a part of the daily log: For each airborne weather modification apparatus run: Altitude, air speed; release points of modification agents, method of modification and characteristics of flares, rockets, or other delivery systems employed; temperature at release altitude; and, for aircraft: The type of aircraft, its identification number, the airport or airports used, and the names and addresses of crew members and the person responsible for operating the weather modification apparatus; and the altitude and type of weather phenomenon subjected to weather modification activity during each operational period (e.g., cumulus clouds between 10,000 and 30,000 feet m.s.l.; ground fog).


(d) The following records shall also be maintained, whenever applicable, but need not be made a part of the daily log. Only data specifically collected for the reported activity need be retained; data available from other sources need not be included.


(1) Any descriptions that were recorded of meteorological condiitons in target and control areas during the periods of operation; for example: Percent of cloud cover, temperature, humidity, the presence of lightning, hail, funnel clouds, heavy rain or snow, and unusual radar patterns.


(2) All measurements made of precipitation in target and control areas.


(3) Any unusual results.


§ 908.9 Retention of records.

Records required under § 908.8 shall be retained and available for inspection by the Administrator or his designated representatives for 3 years after completion of the activity to which they relate. Such records shall be required to be produced for inspection only at the place where normally kept. The Administrator shall have the right to make copies of such records, if he or she deems necessary.


[52 FR 4896, Feb. 18, 1987]


§ 908.10 Penalties.

Knowing and willful violation of any rule adopted under the authority of section 2 of Public Law 92-205 shall subject the person violating such rule to a fine of not more than $10,000, upon conviction thereof.


§ 908.11 Maintenance of records of related activities.

(a) Persons whose activities relate to weather modification activities, other than persons engaged in weather modification activities, shall maintain records concerning the identities of purchasers or users of weather modification apparatus or materials, the quantities or numbers of items purchased, and the times of such purchases. Such information shall be retained for at least 3 years.


(b) In addition, persons whose activities relate to weather modification shall be required, under the authority of section 4 of Public Law 92-205, to provide the Administrator, on his request, with information he deems necessary to carry out the purposes of this act.


[41 FR 23394, June 10, 1976, as amended at 52 FR 4896, Feb. 18, 1987]


§ 908.12 Public disclosure of information.

(a) Any records or other information obtained by the Administrator under these rules or otherwise under the authority of Public Law 92-205 shall be made publicly available to the fullest practicable extent. Such records or information may be inspected on written request to the Administrator. However, the Administrator will not disclose any information referred to in section 1905 of title 18, United States Code, and that is otherwise unavailable to the public, except that such information shall be disclosed:


(1) To other Federal government departments, agencies, and officials for official use upon request;


(2) In any judicial proceeding under a court order formulated to preserve the confidentiality of such information without impairing the proceeding; and


(3) To the public, if necessary to protect their health and safety.


(b) Certified copies of such reports and information, to the extent publicly disclosable, may be obtained from the Administrator at cost in accordance with the Department of Commerce implementation of the Freedom of Information Act.


(c) Persons reporting on weather modification projects or related activities shall specifically identify all information that they consider not to be subject to public disclosure under the terms of Public Law 92-205 and provide reasons in support thereof. A determination as to whether or not reported information is subject to public dissemination shall be made by the Administrator.


(d) When consideration of a weather modification activity report and related information indicates that a proposed project may significantly depart from the practices or procedures generally employed in similar circumstances to avoid danger to persons, property, or the environment, or indicates that success of Federal research projects may be adversely affected if the proposed project is carried out as described, the Administrator will notify the operator(s) and State officials of such possibility and make recommendations where appropriate. The purpose of such notification shall be to inform those notified of existing practices and procedures or Federal research projects known to NOAA. Notification or recommendation, or failure to notify or recommend, shall not be construed as approval or disapproval of a proposed project or as an indication that, if carried out as proposed or recommended it may, in any way, protect or endanger persons, property, or the environment or affect the success of any Federal research project. Any advisory notification issued by the Administrator shall be available to the public and be included in the pertinent activity report file.


§ 908.13 Address of letters.

Letters and other communications intended for the Administrator, in connection with weather modification reporting or activities, shall be addressed to: The Administrator, National Oceanic and Atmospheric Administration, Environmental Modification Office, Rockville, Md. 20852.


§ 908.14 Business to be transacted in writing.

All business transacted with the National Oceanic and Atmospheric Administration with regard to reports of weather modification activities should be transacted in writing. Actions of the National Oceanic and Atmospheric Administration will be based exclusively on the written record.


§ 908.15 Times for taking action; expiration on Saturday, Sunday, or holiday.

Whenever periods of time are specified in these rules in days, calendar days are intended. When the day, or the last day, fixed under these rules for taking any action falls on a Saturday, Sunday, or on a Federal holiday, the action may be taken on the next succeeding day which is not a Saturday, Sunday, or Federal holiday.


§ 908.16 Signature.

All reports filed with the National Oceanic and Atmospheric Administration must be dated and signed by or on behalf of the person conducting or intending to conduct the weather modification activities referred to therein by such person, individually or, in the case of a person other than an individual, by a partner, officer, or other person having corresponding functions and authority. For this purpose “officer” means a president, vice president, treasurer, secretary, or comptroller. Notwithstanding the foregoing, such reports may also be signed by the duly authorized agent or attorney of the person whose activities are being reported. Proof of such authorization shall be furnished to the Administrator when filing a report, unless previously furnished.


§ 908.17 Suspension or waiver of rules.

In an extraordinary situation, any requirement of these rules may be suspended or waived by the Administrator on request of the interested party, to the extent such waiver is consistent with the provisions of Public Law 92-205 and subject to such other requirements as may be imposed.


§ 908.18 Matters not specifically provided for in rules.

All matters not specifically provided for or situations not specifically addressed in these rules will be decided in accordance with the merits of each case by or under the authority of the Administrator, and such decision will be communicated in writing to all parties involved in the case.


§ 908.19 Publication of notice of proposed amendments.

Whenever required by law, and in other cases whenever practicable, notice of proposed amendments to these rules will be published in the Federal Register. If not published with the notice, copies of the text of proposed amendments will be furnished to any person requesting the same. All comments, suggestions, and briefs received within the time specified in the notice will be considered before adoption of the proposed amendments, which may be modified in the light thereof. Informal hearings may be held at the discretion of the Administrator.


§ 908.20 Effective date.

These rules are effective on June 10, 1976.


§ 908.21 Report form.

Public Law 92-205 and these rules should be studied carefully prior to reporting. Reports required by these rules shall be submitted on forms obtainable on request from the Administrator, or on an equivalent format.
1
In special situations, such alterations to the forms as the circumstances thereto may render necessary may be made, provided they do not depart from the requirements of these rules or of Public Law 92-205.




1 Filed as part of the original document.


PART 909 – MARINE DEBRIS


Authority:33 U.S.C. 1951-1958 (2006).

§ 909.1 Definition of marine debris for the purposes of the Marine Debris Research, Prevention, and Reduction Act.

(a) Marine debris. For the purposes of the Marine Debris Research, Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine debris is defined as any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.


(b) NOAA and the Coast Guard have jointly promulgated the definition of marine debris in this part. Coast Guard’s regulation may be found in 33 CFR 151.3000.


[74 FR 45560, Sept. 3, 2009]


PART 911 – POLICIES AND PROCEDURES CONCERNING USE OF THE NOAA SPACE-BASED DATA COLLECTION SYSTEMS


Authority:15 U.S.C. 313, 49 U.S.C. 44720; 15 U.S.C. 1525; 7 U.S.C. 450b; 5 U.S.C. 552.


Source:63 FR 24922, May 6, 1998, unless otherwise noted.

§ 911.1 Purpose.

These regulations set forth the procedural, informational and technical requirements for use of the NOAA Data Collection Systems (DCS). In addition, they establish the criteria NOAA will employ when making determinations as to whether to authorize the use of its space-based DCS. The regulations are intended to facilitate the collection of environmental data as well as other such data which the Government is interested in collecting. In those instances where space-based commercial systems do not meet users’ requirements, the intent is to not disadvantage the development of the commercial space-based services in this sector. Obtaining a system use agreement to operate data collection platforms pursuant to these regulations does not affect related licensing requirements of other Federal agencies such as the Federal Communications Commission.


§ 911.2 Scope.

(a) These regulations apply to any person subject to the jurisdiction or control of the United States who operates or proposes to operate data collection platforms to be used with the NOAA DCS either directly or through an affiliate or subsidiary. For the purposes of these regulations a person is subject to the jurisdiction or control of the United States if such person is:


(1) An individual who is a U.S. citizen; or


(2) A corporation, partnership, association, or other entity organized or existing under the laws of any state, territory, or possession of the United States.


(b) These regulations apply to all existing Geostationary Operational Environmental Satellite (GOES) and Argos DCS users as well as all future applications for NOAA DCS use.


§ 911.3 Definitions.

For purposes of this part:


(a) Approving authority means NOAA for the GOES DCS; and it means the Argos Participating Agencies, via the Argos Operations Committee, for the Argos DCS.


(b) Argos DCS means the system which collects data from fixed and moving platforms and provides platform location data. This system consists of platforms, the Argos French instrument on the Polar-orbiting Operational Environmental Satellites (POES) and other international satellites; a ground processing system; and telemetry ground stations.


(c) Argos participating agencies means those agencies of the United States and other countries that participate in the management of the Argos DCS.


(d) Assistant Administrator means the Assistant Administrator for Satellite and Information Services, NOAA, or his/her designee.


(e) Director means the Director of the Office of Satellite Data Processing and Distribution for the National Environmental Satellite, Data, and Information Service of NOAA.


(f) Environmental data means environmental measurement data for the purpose of using the GOES DCS; and it means environmental measurement and environmental protection data for the purpose of using the Argos DCS.


(g) Environmental measurement data means data that relate to the characteristics of the Earth and its natural phenomena by helping to better understand, evaluate, or monitor its natural resources.


(h) Environmental protection data means data that relate to the characteristics of the Earth and its environment (including its ecosystems and the species which inhabit them) by helping to protect against any unreasonable adverse effects thereto.


(i) Episodic use means the use of the system for short events where there is a significant possibility of loss of life, such as for Arctic expeditions or scientific campaigns into remote areas.


(j) Government interest means that the use is determined in advance to be of interest to one or more governmental entities of the United States, France or, once they have become an Argos Participating Agency, Japan or a European Organization for the Exploitation of Meteorological Satellites (EUMETSAT) member state; or also, in the case of the GOES DCS, a state or local government.


(k) Government user means agencies of international governmental organizations, national government or any subdivision thereof, or any of those agencies’ contractors or grantees, so long as the contractor is using the data collected by the NOAA DCS to fulfill its contractual obligations to the government agency or in the case of a grantee that these data are being used in accordance with the statement of work for the award.


(l) NOAA DCS means the GOES and Argos space-based DCS.


(m) Non-profit user means a not-for-profit academic, research, or other non-governmental organization, which is using these data, for education and/or scientific, non-commercial purposes.


(n) Operational use means the use of data in a situation where the utility of the data are significantly reduced if not collected or delivered in a specific time window. This includes situations where extensive preparation work is in place and a delay in acquisition of data would jeopardize the project.


(o) Platform compatibility means the compatibility of the platform with the space segment of the system, and includes elements such as message length and composition, signal strength, and transmission protocol (e.g., continuous versus event drive).


(p) Sensitive use means the use of the NOAA DCS where the users’ requirements dictate the use of a governmental system such as National security, homeland security, law enforcement and humanitarian operations.


(q) Testing use means the use of the NOAA DCS by manufacturers of platforms for use in conjunction with the NOAA DCS, for the limited purpose of testing and certifying the compatibility of new platforms with the technical requirements of the NOAA DCS.


(r) User means the entity and/or organization that owns or operates user platforms for the purpose of collecting and transmitting data through the NOAA DCS, or the organization requiring the collection of the data.


(s) User platform means device designed in accordance with the specifications delineated and approved by the Approving Authority used for the in-situ collection and subsequent transmission of data via the NOAA DCS. Those devices which are used in conjunction with the GOES DCS are referred to as data collection platforms (DCP) and those which are used in conjunction with the Argos DCS are referred to as Platform Transmitter Terminals (PTT). For purposes of these regulations, the terms “user platform,” “DCP”, and “PTT” are interchangeable.


(t) User requirement means the requirement expressed and explained in the System Use Agreement.


[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]


§ 911.4 Use of the NOAA Data Collection Systems.

(a) Use of the NOAA DCS will only be authorized in accordance with the conditions and requirements set forth in paragraphs (b), (c), (d), (e), and (f) of this section.


(b)(1) Use of the NOAA DCS will only be authorized where it is determined that there are no commercial space-based services available that meet the user’s requirements.


(2) A determination under paragraph (b)(1) of this section must be based on such factors as satellite coverage, accuracy, data throughput, platform power consumption, size and weight, service continuity and reliability, platform compatibility, system access mode, and, in the case of government agencies, cost-effectiveness.


(c)(1) Except as provided in paragraphs (c)(2), (3), (4), and (5) of this section, NOAA DCS shall only be used for the collection of environmental data by governmental and/or non-profit users.


(2) Non-governmental, environmental use of the NOAA DCS is only authorized where there is a Government interest in the collection and/or receipt of the data.


(3) Except as provided in paragraph (c)(4) of this section, non-environmental use of the NOAA DCS is only authorized for government use and non-profit users where there is a government interest. The NOAA DCS will continue to be predominantly used for environmental applications. Non-environmental use of the system shall be limited to sensitive use, and to episodic use as defined below in paragraph (c)(4) of this section.


(4) Episodic use of the NOAA DCS may also be authorized in specific instances where there is a significant possibility for loss of life. Such use shall be closely monitored.


(5) Testing use of the NOAA DCS will only be authorized for manufacturers of NOAA DCS platforms, that require access to the system in order to test and certify prototype and production models.


(d) Because of capacity limitations on the GOES DCS, system applicants will be admitted to use the GOES system in accordance with the following priority:


(1) NOAA programs or users whose data are required for implementation of NOAA programs, as determined by the Assistant Administrator, will be accorded first priority.


(2) Users whose data are desired to support NOAA programs will be accorded second priority.


(3) Users whose data and/or use of the GOES DCS will further a program of an agency or department of the U.S. Government, other than NOAA, will be accorded third priority.


(4) Users whose data are required by a state or local Government of the United States will be accorded fourth priority.


(5) Testing users of the system will be accorded fifth priority.


(6) No other usage will be authorized for the GOES DCS.


(e) In the event that Argos DCS capacity limitations require that priority determinations be made, priority will be given to those platforms that provide environmental data of broad international interest, especially of an operational nature, and to those requiring the unique capabilities of the Argos DCS, such as platform location or polar coverage.


[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]


§ 911.5 NOAA Data Collection Systems Use Agreements.

(a)(1) In order to use a NOAA DCS, each user must have an agreement with the approving authority for that system.


(2) Persons interested in entering into a system use agreement should contact the Director.


(b) These agreements will address, but may not be limited to, the following matters:


(1) The period of time the agreement is valid and procedures for its termination,


(2) The authorized use(s), and its priorities for use,


(3) The extent of the availability of commercial space-based services which meet the user’s requirements and the reasons for necessitating the use of the Government system,


(4) Any applicable government interest in the data,


(5) Required equipment standards,


(6) Standards of operation,


(7) Conformance with applicable ITU and FCC agreements and regulations,


(8) Reporting time and frequencies,


(9) Data formats,


(10) Data delivery systems and schedules, and


(11) User-borne costs.


(c) The Director shall evaluate user requests for System Use Agreements and renewals and conclude agreements for use of the NOAA DCS.


(d)(1) Agreements for the collection, via the Argos DCS, of environmental data by government agencies or non-profit institutions shall be valid for 3 years from the date of initial in-situ deployment of the platforms, and may be renewed for additional 3-year periods.


(2) Agreements for the collection of environmental data, via the Argos DCS, by non-government users shall be valid for 1 year from the date of initial in-situ deployment of the platforms, and may be renewed for additional 1-year periods, but only for so long as there exists a governmental interest in the receipt of these data.


(3) Agreements for the collection of non-environmental data, via the Argos DCS, by government agencies, or non-profit institutions where there is a government interest, shall be valid for 1 year from the date of initial in-situ deployment of the platforms, and may be renewed for additional 1-year periods.


(4) Agreements for the episodic collection of non-environmental data, via the Argos DCS under § 911.4(c)(4), shall be of short, finite duration not to exceed 1 year without exception, and usually shall not exceed 6 months. These agreements shall be closely monitored and shall not be renewed.


(5) Agreements for the testing use of the Argos DCS by equipment manufacturers shall be valid for 1 year from the date of initial testing, and may be renewed for additional 1-year periods.


(e)(1) Agreements for the collection of environmental data, by the GOES DCS, shall be valid for 5 years from the date of initial in-situ deployment, and may be renewed for additional 5-year periods.


(2) Agreements for the testing use of the GOES DCS, by equipment manufacturers, shall be valid for 1 year from the date of initial testing, and may be renewed for additional 1-year periods.


(3) Agreements for the collection of non-environmental data, via the GOES DCS, by government agencies, or non-profit institutions where there is a government interest, shall be valid for 1 year from the date of initial in-situ deployment of the platforms, and may be renewed for additional 1-year periods.


(4) Agreements for the episodic collection of non-environmental data, via the GOES DCS under § 911.4(c)(4), shall be of short, finite duration not to exceed 1 year without exception, and usually shall not exceed 6 months. These agreements shall be closely monitored and shall not be renewed.


[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]


§ 911.6 Treatment of data.

(a) All NOAA DCS users must agree to permit NOAA and other agencies of the U.S. Government the full, open, timely, and appropriate use as determined by NOAA, of all environmental data collected from their platforms; this may include the international distribution of environmental data under the auspices of the World Meteorological Organization.


(b) Raw data from the NOAA space segment is openly transmitted and accessible.


(c) Accessibility of the NOAA DCS processed data from the ground segment is handled in accordance with the users specifications and system design limitations, subject to the provisions stated in paragraph (a) of this section.


[68 FR 45161, Aug. 1, 2003]


§ 911.7 Continuation of the NOAA Data Collection Systems.

(a) NOAA expects to continue to operate DCS on its geostationary and polar-orbiting satellites, subject to the availability of future appropriations. However, viable commercial space-based alternatives may eventually obviate the need for NOAA to operate its own space-based DCS.


(b) If use of the system in support of NOAA programs increases, it eventually may be necessary to the further restrict system usage by other users. If such restrictions on use become necessary, or in the event that NOAA discontinues operation of GOES and/or POES, NOAA will provide, to the maximum extent practicable, advance notice and an orderly transition.


(c) NOAA will not be responsible for any losses resulting from the nonavailability of the NOAA DCS.


§ 911.8 Technical requirements.

(a) All platform operators of the NOAA DCS must use a data collection platform radio set whose technical and design characteristics are certified to conform to applicable specifications and regulations.


(b) All platform operators are responsible for all costs associated with the procurement and operation of the platforms, and for the acquisition of data from those platforms, either directly from the satellite or from the applicable data processing center.


Appendix A to Part 911 – Argos DCS Use Policy Diagram


[68 FR 45161, Aug. 1, 2003]


Appendix B to Part 911 – GOES DCS Use Policy Diagram


[68 FR 45162, Aug. 1, 2003]


PART 917 – NATIONAL SEA GRANT PROGRAM FUNDING REGULATIONS


Authority:Pub. L. 94-461, 90 Stat. 1961 (33 U.S.C. 1121 et seq.).


Source:43 FR 15307, Apr. 11, 1978, unless otherwise noted.

Subpart A – General

§ 917.1 Basic provisions.

(a) This section sets forth the basic purposes for which Sea Grant funding may be made pursuant to the following sections of the Act: 33 U.S.C. 1124, 1127, 1125 and 1124a. These sections provide for the funding of programs and projects in fields related to ocean and coastal resources that involve marine research, marine education and training, and marine advisory services. However, there is a significant difference in focus among these sections since section 1124(a) is concerned chiefly with regional and state needs relative to ocean and coastal resources (including the funding of Sea Grant Fellowships under section 1127) while section 1125 is concerned with national needs and problems relative to ocean and coastal resources, and section 1124a is concerned with programs of international cooperation assistance with respect to those resources.


(b) Comment: Statutory citation 33 U.S.C. 1124(a):



In General. The Secretary may make grants and enter into contracts under this subsection to assist any Sea Grant program or project if the Secretary finds that such program or project will –


(1) Implement the objective set forth in Section 202(b); and


(2) Be responsive to the needs or problems of individual states or regions.


The total amount paid pursuant to any such grant or contract may equal 66
2/3 percent, or any lesser percent, of the total cost of the Sea Grant program or project involved.


(c) Comment: Statutory citation 33 U.S.C. 1127(a):



In General. The Secretary may enter into contracts and make grants under this section to –


(1) Enhance the research and development capability of developing foreign nations with respect to ocean and coastal resources.


(2) Promote the international exchange of information and data with respect to the assessment, development, utilization, and conservation of such resources.


§ 917.2 Definitions.

(a) The term Act means the Sea Grant Program Improvement Act of 1976, as amended (33 U.S.C. 1121 et seq.).


(b) The term Secretary means the Secretary of Commerce.


(c) The term Administrator means the Administrator of the National Oceanic and Atmospheric Administration.


(d) The term Office of Sea Grant means the National Oceanic and Atmospheric Administration’s Office of Sea Grant, which administers the National Sea Grant Program provided for in the Act.


(e) The term objective of the Act means the objective set forth at 33 U.S.C. 1121(b) and is “is to increase the understanding, assessment, development, utilization, and conservation of the Nation’s ocean and coastal resources by providing assistance to promote a strong educational base, responsive research and training activities, and broad and prompt dissemination of knowledge and techniques.”


(f) The term ocean and coastal resource(s) is as defined at 33 U.S.C. 1122(7) and means:



any resource (whether living, nonliving, manmade, tangible, intangible, actual, or potential) which is located in, derived from, or traceable to, the marine environment.

Such term includes the habitat of any such living resource, the coastal space, the ecosystems, the nutrient rich areas, and the other components of the marine environment which contribute to or provide (or which are capable of contributing to or providing) recreational, scenic, esthetic, biological, habitational, commercial, economic, or conservation values. Living resources include natural and cultured plant life, fish, shellfish, marine mammals, and wildlife. Nonliving resources include energy sources, minerals, and chemical substances.


(g) The term marine environment used in the definition for “ocean and coastal resources” in § 917.2(e) and used elsewhere in these regulations is as defined at 33 U.S.C. 1122(6) and means:



the coastal zone, as defined in Section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil, and waters of the territorial sea of the United States; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and subsoil of and beyond the outer Continental Shelf.

(h) The term person is as defined at 33 U.S.C. 1122(9) and means: “any individual; any public or private corporation, partnership, or other association or entity (including any Sea Grant College, Sea Grant Regional Consortium, education, institute, or laboratory); or any state, political subdivision of a state, or agency or officer thereof.”


(i) The term Sea Grant College is as defined at 33 U.S.C. 1122(10) and means: “any public or private institution of higher education which is designated as such by the Secretary . . .” pursuant to regulations promulgated at 15 CFR part 918.


(j) The term Sea Grant Program is as defined at 33 U.S.C. 1122(11) and means: “any program which” (1) is administered by a Sea Grant College, Sea Grant Regional Consortium, institution of higher education, institute, laboratory, or state or local agency; and (2) includes two or more projects involving one or more of the following activities in fields related to ocean and coastal resources:


(i) Research,


(ii) Education,


(iii) Training, or


(iv) Advisory services.


(k) The term Sea Grant Program Directors means the local Directors of the Sea Grant coherent area programs, insititutional programs, Sea Grant Colleges, and Sea Grant Regional Consortia.


(l) The term Sea Grant Regional Consortium is as defined at 33 U.S.C. 1122(12) and means: “any association or alliance which is designated as such by the Secretary . . .” pursuant to regulations promulgated at 15 CFR part 918.


(m) The term state is as defined at 33 U.S.C. 1122 (14) and means: “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Mariana Islands, or any other territory or possession of the United States.”


(n) The term developing foreign nations includes any foreign nation other than a foreign nation that is ineligible for designation under section 502(b) of the Trade Act of 1974, (19 U.S.C. 2462(b)) as a beneficiary developing country under Title of that Act.


Subpart B – Sea Grant Matched Funding Program

§ 917.10 General.

(a) 33 U.S.C. 1124(a) establishes a program for the funding of Sea Grant Programs and projects dealing with marine research, marine education and training, and/or marine advisory services, that are designed to achieve the objective of the Act and that generally respond to the needs of individual states or regions. Included as a part of this program is the Sea Grant Fellowship Program, established by 33 U.S.C. 1127. Any person may apply to the Office of Sea Grant for Sea Grant Matched Funding Program Monies, except for Sea Grant Fellowship funding. Sea Grant Fellowship funding may be granted only to Sea Grant Colleges, Sea Grant Regional Consortia, institutions of higher education, and professional associations and institutions.


(b) Federal Sea Grant funding for the section 1124(a) Matched Funding Program cannot exceed 66
2/3 percent of the total cost of the project involved.


§ 917.11 Guidelines for Sea Grant Fellowships.

(a) Sea Grant Fellowships are designed to provide educational and training assistance to qualified individuals at the undergraduate and graduate levels of education in fields related to ocean and coastal resources. The objective of the program is to increase the national supply of individuals educated and trained in the assessment, development, utilization, and conservation of ocean and coastal resources. The purpose of this section is to provide guidelines regarding the content of applications for Sea Grant Fellowship funding.


(b) Funding will be made to eligible entities (see § 917.10 of this part) that are selected to award and administer Sea Grant Fellowships. Fellowships will not be awarded directly to students by the Office of Sea Grant. The entity receiving Fellowship funding will select the students to be awarded the Fellowships and will handle the administration of the Fellowships.


(c) Proposals for Fellowship funding will be expected to address (1) the nature and focus of the proposed Fellowship Program, (2) the utilization of institutional or other appropriate resources in the education and training of Sea Grant Fellows, (3) the method of advertising availability of the Fellowships, (4) the method of selection of recipients, and (5) the terms of tenure and method of determining continuity of tenure.


(d) Innovation and uniqueness will be significant factors in the determination of which proposals will be funded. Another factor considered will be the potential of the proposed program to stimulate interest in marine related careers among those individuals; for example, minorities, women, and the handicapped whose previous background or training might not have generated such an interest.


(e) The total amount that may be provided for grants under the Sea Grant Fellowship Program during any fiscal year cannot exceed an amount equal to five percent of the total funds appropriated for the Matched Funding Program for that year. Fellowship programs are subject to the requirement of a minimum of 33
1/3 percent matching funds from non-Federal sources to which all Matched Funding Program projects are subject. Indirect costs are not allowable for either the Fellowships or for any costs associated with the Fellowships.


Considering the variations in the cost-of-living and the differences in tuition, fees, etc., between one college or university and another, the amount of money requested and awarded per Fellowship may vary.


Subpart C – National Projects

§ 917.20 General.

(a) 33 U.S.C. 1125 requires the Secretary to identify specific national needs and problems relative to ocean and coastal resources. This responsibility has been delegated to the Administrator. The designation is intended to focus public attention on needs and problems of the marine environment that are considered to be of particular national importance at a given point in time.


(b) 33 U.S.C. 1125 provides for the funding of national projects in marine research, marine education and training, and marine advisory services that are designed to deal with the national needs and problems concerning ocean and coastal resources identified by the Administrator.


(c) The Administrator will identify the national needs and problems apart from considerations of Office of Sea Grant funding for “National Projects” responsive to national needs and problems that are identified.


§ 917.21 National needs and problems.

(a) The Administrator will, periodically, publish in the Federal Register the identified national needs and problems with respect to ocean and coastal resources at a given point in time.


(b) Suggestions from the general public as to the identity of national needs and problems may be submitted to the Office of Sea Grant at any time. These suggestions will be reviewed by the Office of Sea Grant and the Sea Grant Review Panel, and those receiving a positive critique will be forwarded to the Administrator. In addition, suggestions concerning the identification of national needs and problems will be requested from the Sea Grant Program Directors.


(c) The Administrator has identified the following as currently being national needs and problems with respect to ocean and coastal resources:global and regional climate and primary productivity.


(1) Improve the prediction of extreme natural events and their effects on ocean coastal and continental shelf locations as well as analogous regions of the Great Lakes.


(2) Improve the predictability of global sea-level change and determine the impact of this change on coastal areas.


(3) Define the processes that determine ocean variability on the time scale of a few weeks to a few years, and the relationship to fluctuations in global and regional climate, primary productivity, and fisheries production.


(4) Improve understanding of the flow fields and mixing processes on the continental shelves of the United States.


(5) Develop an increased understanding of the arctic and antarctic environment and a capability to predict the special hazards posed to transportation and resource development.


(6) Develop and increased capability to characterize the engineering properties of ocean botton sediments.


(7) Reduce the recurring economic loss due to corrosion of structures, vessels, and other devices in the marine environment.


(8) Gain a fundamental understanding of the processes by which biological fouling and associated corrosion are initiated upon material surfaces exposed to seawater.


(9) Investigate methods to improve man’s underwater capability to conduct undersea research and perform useful work.


(10) Investigate the wider application of remotely operated and artificial intelligence techniques for vehicles for undersea activities.


(11) Expand/improve remote sensing technologies for use on the ocean and Great Lakes.


(12) Advance knowledge of acoustics in the ocean and ocean bottom in order to exploit the burgeoning acoustics technologies.


(13) Develop techniques for in-situ monitoring of biological, chemical, and physical processes in the Great Lakes, oceans, and their connecting waterways which are cost effective and provide data in real time.


(14) Improve the position of the U.S. seafood industry in world seafood markets.


(15) Design more efficient mechanisms to allocate U.S. fish resources to achieve optimum yield and minimize industry dislocations.


(16) Gain a fundamental understanding of the biological productivity of estuarine and coastal waters.


(17) Conduct research leading to the restoration and/or enhancement of heavily exploited fishery stocks.


(18) Improve the capability for stock assessment, predicting yield, age-class strength, and long-term population status of important fisheries.


(19) Conduct research to increase the economic potential of low-value, high-volume fish products.


(20) Develop productive and profitable aquaculture industries in the United States and technology that can be exported to less developed nations of the world with different climate, cultural, and economic constraints.


(21) Explore marine biochemicals as source of chemical feedstocks, enzymes, pharmacological substance, and other bioactive agents such as pesticides.


(22) Apply modern biotechnology to exploiting marine plants, animals, and microorganisms for good and services.


(23) Develop rapid, efficient, and specific methods for assaying the potential of marine organisms to communicate disease to humans.


(24) Develop innovations that would promote safe, nondestructive, recreational access to and use of marine and Great Lakes water.


(25) Re-examine the ocean as an appropriate place for the disposal of wastes from land-based society.


(26) Develop an increased understanding of the impacts of low density, nonbiodegradable, solid wastes on marine and Great Lakes species.


(27) Conduct research for realizing the economic potential of the nonliving resources of the U.S. 200-mile Exclusive Economic Zone.


(28) Investigate the effect of seafloor hydrothermal systems on the seafloor, oceans, and atmosphere.


(29) Develop a better understanding of the value the marine sector contributes to the U.S. economy and culture.


(30) Improve the competitive position of American ports in the face of rapid technological and social change.


(31) Improve the capability of developing nations to address their marine resource needs.


(32) Develop eductional programs to increase application of marine sector research.


(33) Develop syntheses of and better access to existing multidisciplinary marine and Great Lakes information.


[43 FR 15307, Apr. 11, 1978, as amended at 51 FR 35210, Oct. 2, 1986]


§ 917.22 National Projects funding.

(a) National Projects funding proposals will be expected to address: (1) The relevance of the proposed project to a national need or problem that has been identified by the Administrator; (2) the nature and focus of the proposed project; (3) a demonstrated capacity to carry out the proposed project in a competent and cost-effective manner; and (4) the utilization of existing capability and coordination with other relevant projects. Innovation and uniqueness will be significant factors in determining whether to fund a proposed project.


(b) Any person may apply to the Office of Sea Grant for National Project funding. In addition, the Office of Sea Grant may invite applications for National Project funding.


(c) The total amount provided for National Projects’ funding during any fiscal year can never exceed an amount equal to 10 percent of the total funds appropriated for the Matched Funding Program. Federal Sea Grant funding for National Projects can be up to 100 percent of the total cost of the project involved.


Subpart D – International Cooperation Assistance

§ 917.30 General.

(a) 33 U.S.C. 1124a sets up a program of International Cooperation Assistance in marine reseach, marine education and training, and marine advisory services designed to enhance the research and technical capability of developing foreign nations with respect to ocean and coastal resources and to promote the international exchange of information and data with respect to the assessment, development, utilization, and conservation of such resources. Any Sea Grant College or Sea Grant Regional Consortium or any institution of higher education, laboratory, or institute (if such institution, laboratory or institute is located within any state) may apply for and receive International Cooperation Assistance funding.


(b) International Cooperation Assistance funding proposals will be expected to address: (1) The nature and focus of the proposed project, (2) the utilization of institutional and other appropriate resources in the implementation of the project, (3) a clear indication of the foreign participant’s (individual or institution) commitment to the project, (4) identification of accomplishments expected from a single granting interval, (5) implicit or explicit out-year commitment of resources, and (6) the impact of the proposed project on the institution receiving funding.


(c) The projects supported by International Cooperation Assistance funding are intended to be genuinely cooperative. Innovation and uniqueness will be significant factors in the determination of proposals to be funded. In the case of a proposed international project that is submitted from an institution where a Sea Grant program is in existence, the extent to which the proposed project takes advantage of the Sea Grant institutional capability existing at that institution and thereby strengthening it, as opposed to being a mere appendage to the ongoing Sea Grant program, will also be an important evaluation factor. The U.S. Department of State will be given the opportunity to review all International Cooperation Assistance projects and none will be funded without this consultation. Because the United Nations Educational, Scientific, and Cultural Organization (UNESCO) also funds international projects of the kind that can be funded under the Sea Grant International Cooperation Assistance program, and, to effect coordination in this area between Sea Grant and UNESCO, the Division of Marine Sciences (UNESCO) will be informed of all International Cooperation Assistance projects funded.


Subpart E – General Considerations Pertaining to Sea Grant Funding

§ 917.40 General.

This subpart sets forth general considerations pertaining to Sea Grant funding.


§ 917.41 Application guidance for Sea Grant funding.

(a) Detailed guidance for submission of applications for National Sea Grant Program Funding is given in the publication, “The National Sea Grant Program: Program Description and Suggestions for Preparing Proposals,” available on request from: Office of Sea Grant Program, 3300 Whitehaven Street NW., Washington, DC 20235.


(b) It is noted here that application for Sea Grant funding shall be made pursuant to the following Federal provisions:


(1) OMB Circular A-110 “Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations.”


(2) OMB Circular A-111, “Designation of Federal Programs Suitable for Joint Funding Purposes.”


(3) GSA FMC 73-6, “Coordinating Indirect Cost Rates and Audit at Educational Institutions.”


(4) GSA FMC 73-7, “Administration of College and University Research Grants.”


(5) GSA FMC 73-8, “Cost Principles for Educational Institutions.”


(6) GSA FMC 74-4, “Cost Principles Applicable to Grants and Contracts with State and Local Governments.”


(7) OMB Circular A-102, “Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments.”


(8) NOAA General Provisions implementing OMB Circular A-110, “Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations.”


§ 917.42 Categories of support available for the conducting of Sea Grant activities.

(a) Three categories of support are available for the conducting of Sea Grant activities: Projects; coherent area programs; and institutional programs. In general, funding for institutional programs and coherent area programs are made with expectation of renewal, as long as the funding recipient maintains a high level of quality and relevance in its activities. Project funding is made generally for a single item of research, education and training, or advisory service, but may be renewed under certain conditions; each renewal is negotiated individually.


(b) Project support is for a clearly defined activity to be conducted over a definite period of time to achieve a specified goal. The project may be in research, education, training, or advisory services. Support for a project is made to an individual investigator or project director through his organization.


(c) Intermediate between the institutional programs and individual projects are coherent area programs. These have two main purposes:


(1) To bring into the National Sea Grant Program institutions of higher education that have a strong core of capability in some aspects of marine affairs, but which do not qualify or do not wish to qualify for institutional program support at this time. The purpose of support in such cases is to enable the institution to apply its existing competence to its regional problems and opportunities while developing the broader base of capability and the internal organization that will lead to institutional support. This program category requires a definite commitment on the part of the institution to develop an institutional program and to present a multiproject, multidisciplinary program involving the existing competence of an institution in a unified or coherent attack on well-defined local or regional problems. Such a coherent area program should include research, education and training, and advisory services, to the extent of the institution’s capability.


(2) To bring into the National Sea Grant Program (on a more or less continuing basis) qualified entities that have rare or unique capability in a specialized field of marine affairs. Such entities need not be institutions of higher education.


(d) Institutional grants are made to institutions of higher education or to a combination of institutions that have an existing broad base of competence in marine affairs. To qualify, an institution must make a positive, long-range commitment to objectives of the National Sea Grant Program as evidence by committing the institution’s own resources in the form of matching funds, creation of the organization necessary for management of the Sea Grant Program, quality education programs in marine areas, establishment of interdisciplinary research teams, and development of advisory service mechanisms for strong interaction with marine communities in its region. A Sea Grant institutional program is expected to provide intellectual leadership in assisting its region to solve problems and to realize opportunities of its marine environment. To the extent possible, an institutional program should involve all appropriate elements of the institution, whether colleges or departments, and devise cooperative or mutally supporting programs with other institutions of higher education, and with Federal and state agencies, local agencies, and industry. An institutional program should have substantial strength in the three basic Sea Grant activities: research, education and training, and advisory services. Sea Grant institutional programs that meet the qualifications for Sea Grant College or Sea Grant Regional Consortium status set forth at 15 CFR part 918 will be so designated by the Secretary.


§ 917.43 Terms and conditions of Sea Grant funding.

No Sea Grant funding may be applied to:


(a)(1) the purchase or rental of any land or (2) the purchase, rental, construction, preservation, or repair of any building, dock, or vessel, except that payment under any such grant or contract may (if approved by the Assistant Administrator for Administration of the National Oceanic and Atmospheric Administration or designee) be applied to the purchase, rental, construction, preservation, or repair of non-self-propelled habitats, buoys, platforms, and other similar devices or structures, or to the rental of any research vessel which is used in direct support of activities under any Sea Grant program or project.


(b) In addition, Sea Grant funding under the Sea Grant Matched Funding Program will be subject to the limitation that the total amount which may be obligated within any one state to persons under the Sea Grant Matched Funding Program in any fiscal year shall not exceed an amount equal to 15 percent of the funds appropriated for the Sea Grant Matched Funding Program.


(c) Any person who receives or utilizes Sea Grant funding shall keep the records required by OMB Circular A-110, “Grant and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” and by NOAA General Provision, implementing OMB Circular A-110, by OMB Circular A-102, “Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments,” including records that fully disclose the amount and disposition by the recipient of such proceeds, the total cost of the program or project in which such proceeds were used, and the amount, if any, of such cost which was provided through other sources. Such records shall be maintained for three years after the completion of such a program or project. The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access, for the purpose of audit and evaluation, to any books, documents, papers, and records of receipt which, in the opinion of the Secretary or the Comptroller General, may be related or pertinent to such grants and contracts.


PART 918 – SEA GRANTS


Authority:Sec. 207, National Sea Grant College Program Act, as amended (Pub. L. 94-461, 33 U.S.C. 1121, et seq.).


Source:44 FR 75054, Dec. 18, 1979, unless otherwise noted.

§ 918.1 Introduction.

Pursuant to section 207 of the National Sea Grant College Program Act, as amended (Pub. L. 94-461, 33 U.S.C. 1121 et seq.), herein referred to as the Act, the following guidelines establish the procedures by which organizations can qualify for designation as Sea Grant Colleges or Sea Grant Regional Consortia, and the responsibilities required of organizations so designated.


§ 918.2 Definitions.

(a) Marine environment. The term Marine Environment means any or all of the following: the coastal zone, as defined in section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil and waters of the territorial sea of the United States, including the Great Lakes; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and subsoil of and beyond the Outer Continental Shelf.


(b) Ocean, Great Lakes, and coastal resources. The term ocean, Great Lakes, and coastal resources means any resource (whether living, nonliving, manmade, tangible, intangible, actual, or potential) which is located in, derived from, or traceable to, the marine environment. Such term includes the habitat of any such living resource, the coastal space, the ecosystems, the nutrient-rich areas, and the other components of the marine environment which contribute to or provide (or which are capable of contributing to or providing) recreational, scenic, aesthetic, biological, habitational, commercial, economic, or conservation values. Living resources include natural and cultured plant life, fish, shellfish, marine mammals, and wildlife. Nonliving resources include energy sources, minerals, and chemical substances.


(c) Person. The term Person means any public or private corporation, partnership, or other association or entity (including any Sea Grant College, Sea Grant Regional Consortium, institution of higher education, institute, or laboratory); or any State, political subdivision of a State, or agency or officer thereof.


(d) Sea Grant College. The term Sea Grant College means any public or private institution of higher education or confederation of such institutions which is designated as such by the Secretary under section 207 of the National Sea Grant Program Act. Included in this term are all campuses (or other administrative entities) of a designated Sea Grant College, working through the established management structure of the Sea Grant College.


(e) Sea Grant Program. The term Sea Grant Program means any program which:


(1) Is administered by a Sea Grant College, Sea Grant Regional Consortium, institution of higher education, institute, laboratory, or State or local agency; and


(2) Includes two or more Sea Grant projects involving one or more of the following activities in fields related to ocean, Great Lakes, and coastal resources:


(i) Research,


(ii) Education and training, and


(iii) Advisory services.


(f) Sea Grant project. A Sea Grant project is any separately described activity which has been proposed to the National Sea Grant College Program, and has subsequently been approved.


(g) Sea Grant Regional Consortium. The term Sea Grant Regional Consortium means any association or other alliance of two or more persons as defined above (other than individuals) established for the purpose of pursuing programs in marine research education, training, and advisory services on a regional basis (i.e., beyond the boundaries of a single state) and which is designated as a consortium by the Secretary under section 207 of the National Sea Grant Program Act.


(h) Field related to Ocean, Great Lakes, and coastal resources. The term field related to Ocean, Great Lakes, and coastal resources means any discipline or field (including marine sciences and the physical, natural, and biological sciences, and engineering, included therein, marine technology, education, economics, sociology, communications, planning law, international affairs, public administration, humanities, and the arts) which is concerned with, or likely to improve the understanding, assessment, development, utilization, or conservation of, ocean, Great Lakes, and coastal resources.


§ 918.3 Eligibility, qualifications, and responsibility of a Sea Grant College.

(a) To be eligible for designation as a Sea Grant College, the institution of higher education or confederation of such institutions must have demonstrated a capability to maintain a high quality and balanced program of research, education, training, and advisory services in fields related to ocean, Great Lakes, and coastal resources for a minimum of three years, and have received financial assistance as an Institutional program under either section 205 of the National Sea Grant College Program Act or under section 204(c) of the earlier National Sea Grant College and Program Act of 1966.


(b) To be eligible for designation as a Sea Grant College, the candidate institution or confederation of institutions must meet the qualifications set forth above as evaluated by a site review team composed of members of the Sea Grant Review Panel, NOAA’s Office of Sea Grant, and other experts named by NOAA. As a result of this review, the candidate must be rated highly in all of the following qualifying areas:


(1) Leadership. The Sea Grant College candidate must have achieved recognition as an intellectual and practical leader in marine science, engineering, education, and advisory service in its state and region.


(2) Organization. The Sea Grant College candidate must have created the management organization to carry on a viable and productive Sea Grant Program, and must have the backing of its administration at a sufficiently high level to fulfill its multidisciplinary and multifaceted mandate.


(3) Relevance. The Sea Grant College candidate’s program must be relevant to local, State, regional, or National opportunities and problems in the marine environment. Important factors in evaluating relevance are the need for marine resource emphasis and the extent to which capabilities have been developed to be responsive to that need.


(4) Programmed team approach. The Sea Grant College candidate must have a programmed team approach to the solution of marine problems which includes relevant, high quality, multidisciplinary research with associated educational and advisory services capable of producing identifiable results.


(5) Education and training. Education and training must be clearly relevant to National, regional, State and local needs in fields related to ocean, Great Lakes, and coastal resources. As appropriate, education may include pre-college, college, post-graduate, public and adult levels.


(6) Advisory services. The Sea Grant College candidate must have a strong program through which information, techniques,and research results from any reliable source, domestic or international, may be communicated to and utilized by user communities. In addition to the educational and information dissemination role, the advisory service program must aid in the identification and communication of user communities’ research and educational needs.


(7) Relationships. The Sea Grant College candidate must have close ties with Federal agencies. State agencies and administrations, local authorities, business and industry, and other educational institutions. These ties are: (i) To ensure the relevance of its programs, (ii) to give assistance to the broadest possible audience, (iii) to involve a broad pool of talent in providing this assistance (including universities and other administrative entities outside the Sea Grant College), and (iv) to assist others in developing research and management competence. The extent and quality of an institution’s relationships are critical factors in evaluating the institutional program.


(8) Productivity. The Sea Grant College candidate must have demonstrated the degree of productivity (of research results, reports, employed students, service to State agencies and industry, etc.) commensurate with the length of its Sea Grant operations and the level of funding under which it has worked.


(9) Support. The Sea Grant College candidate must have the ability to obtain matching funds from non-Federal sources, such as state legislatures, university management, state agencies, business, and industry. A diversity of matching fund sources is encouraged as a sign of program vitality and the ability to meet the Sea Grant requirement that funds for the general programs be matched with at least one non-Federal dollar for every two Federal dollars.


(c) Finally, it must be found that the Sea Grant College candidate will act in accordance with the following standards relating to its continuing responsibilities if it should be designated a Sea Grant College:


(1) Continue pursuit of excellence and high performance in marine research, education, training, and advisory services.


(2) Provide leadership in marine activities including coordinated planning and cooperative work with local, state, regional, and Federal agencies, other Sea Grant Programs, and non-Sea Grant universities.


(3) Maintain an effective management framework and application of institutional resources to the achievement of Sea Grant objectives.


(4) Develop and implement long-term plans for research, education, training, and advisory services consistent with Sea Grant goals and objectives.


(5) Advocate and further the Sea Grant concept and the full development of its potential within the institution and the state.


(6) Provide adequate and stable matching financial support for the program from non-Federal sources.


(7) Establish and operate an effective system to control the quality of its Sea Grant programs.


§ 918.4 Duration of Sea Grant College designation.

Designation will be made on the basis of merit and the determination by the Secretary of Commerce that such a designation is consistent with the goals of the Act. Continuation of the Sea Grant College designation is contingent upon the institution’s ability to maintain a high quality performance consistent with the requirements outlined above. The Secretary may, for cause and after an opportunity for hearing, suspend or terminate a designation as a Sea Grant College.


§ 918.5 Eligibility, qualifications, and responsibilities – Sea Grant Regional Consortia.

(a) To be eligible for designation as a Sea Grant Regional Consortium, the candidate association or alliance of organizations must provide, in significant breadth and quality, one or more services in the areas of research, education, and training, or advisory service in fields related to ocean, Great Lakes, and coastal resources. Further, it is essential that the candidate Sea Grant Consortium be required to provide all three services as soon as possible after designation. Further, such association or alliance must demonstrate that:


(1) It has been established for the purpose of sharing expertise, research, educational facilities, or training facilities, and other capabilities in order to facilitate research, education, training, and advisory services in any field related to ocean, Great Lakes, and coastal resources; and


(2) It will encourage and follow a regional multi-State approach to solving problems or meeting needs relating to ocean, Great Lakes, and coastal resources, in cooperation with appropriate Sea Grant Colleges, Sea Grant Programs and other persons in the region.


(b) Although it is recognized that the distribution of effort between research, education, training, and advisory services to achieve appropriate balance in a Sea Grant Regional Consortium may differ from a Sea Grant College, sustained effort in all of these areas is, nonetheless, an essential requirement for retention of such designation. To be eligible for designation as a Sea Grant Regional Consortium, the candidate association or alliance of organizations must meet the qualifications set forth above as evaluated by a site review team composed of members of the Sea Grant Review Panel, the Office of Sea Grant, and other experts. Further, the candidate must be rated highly in all of the following qualifying areas which are pertinent to the Consortium’s program:


(1) Leadership. The Sea Grant Regional Consortium candidate must have achieved recognition as an intellectual and practical leader in marine science, engineering, education, and advisory service in its region.


(2) Organization. The Sea Grant Regional Consortium candidate must have created the management organization to carry on a viable and productive multidisciplinary Sea Grant Program and have the backing of the administrations of its component organizations at a sufficiently high level to fulfill its multidisciplinary and multifaceted mandate.


(3) Relevance. The Sea Grant Regional Consortium candidate’s Sea Grant Program must be relevant to regional opportunities and problems in the marine environment. Important factors in evaluating relevance are the extent and depth of the need of a region for a focused marine resource emphasis and the degree to which the candidate has developed its capability to be responsive to that need.


(4) Education and training. Education and training must be clearly relevant to regional needs and must be of high quality in fields related to ocean, Great Lakes, and coastal resources. As appropriate, education may include precollege, college, post-graduate, public and adult levels.


(5) Advisory services. The Sea Grant Regional Consortium candidate must have a strong program through which information techniques, and research results from any reliable source, domestic or international, may be communicated to and utilized by user communities. In addition to the educational and information dissemination role, the advisory service program must aid in the identification and communication of user communities’ research and educational needs.


(6) Relationships. The Sea Grant Regional Consortium candidate must have close ties with federal agencies, state agencies and administrations, regional authorities, regional business and industry, and other regional educational institutions. These regional ties are: (i) To ensure the relevance of programs, (ii) to generate requests for such assistance as the consortium may offer, and (iii) to assist others in developing research and management competence. The extent and quality of a candidate’s relationships are critical factors in evaluating the proposed designation.


(7) Productivity. The Sea Grant Regional Consortium candidate must have demonstrated a degree of productivity (of research results, reports, employed students, service to regional agencies, industry, etc.) commensurate with the length of its Sea Grant operations and the level of funding under which it has worked.


(8) Support. The Sea Grant Regional Consortium candidate must have the ability to obtain matching funds from non-Federal sources, such as State legislatures, university management, State agencies, and business and industry. A diversity of matching funds sources is encouraged as a sign of program vitality and the ability to meet the Sea Grant requirement that funds for the general programs be matched with at least one non-Federal dollar for every two Federal dollars.


(c) Finally, it must be found that the Sea Grant Regional Consortium candidate will act in accordance with the following standards relating to its continuing responsibilities as a Sea Grant Regional Consortium:


(1) Continue pursuit of excellence and high performance in marine research education, training, and advisory services.


(2) Provide regional leadership in marine activities including coordinated planning and cooperative work with local, State, regional, and Federal agencies, other Sea Grant Programs, and non-Sea Grant organizations.


(3) Maintain an effective management framework and application of organizational resources to the achievement of Sea Grant objectives.


(4) Develop and implement long-term plans for research, education, training, and advisory services consistent with Sea Grant goals and objectives.


(5) Advocate and further the Sea Grant concept and the full development of its potential within the consortium and the region.


(6) Provide adequate and stable matching financial support for the program from non-Federal sources.


(7) Establish and operate an effective system to control the quality of its Sea Grant program.


§ 918.6 Duration of Sea Grant Regional Consortium designation.

Designation will be made on the basis of merit and the determination by the Secretary of Commerce that such a designation is consistent with the goals of the Act. Continuation of the Sea Grant Regional Consortium designation is contingent upon the alliance’s ability to maintain a high quality performance consistent with the standards outlined above. The Secretary may, for cause and after an opportunity for hearing, suspend or terminate the designation as a Sea Grant Regional Consortium.


§ 918.7 Application for designation.

(a) All applications for initial designation as a Sea Grant College or a Regional Consortium should be addressed to the Secretary of Commerce and submitted to the Director, National Sea Grant College Program, National Oceanic and Atmospheric Administration. The application should contain an outline of the capabilities of the applicant and the reasons why the applicant believes that it merits designation under the guidelines contained in this regulation. Upon receipt of the application, the Director will present the institution’s case to the Sea Grant Review Panel for evaluation. The Panel’s recommendation will be forwarded to the Secretary for final action.


(b) An existing Sea Grant College or Regional Consortium may also apply as in paragraph (a) of this section, for a change in the scope of designation to include or exclude other administrative entities of the institution or association. If approved by the Secretary such included (excluded) administrative entities shall share (lose) the full rights and responsibilities of a Sea Grant College or Regional Consortium.


SUBCHAPTER B – OCEAN AND COASTAL RESOURCE MANAGEMENT

PART 921 – NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM REGULATIONS


Authority:Section 315 of the Coastal Zone Management Act, as amended (16 U.S.C. 1461).


Source:58 FR 38215, July 15, 1993, unless otherwise noted.

Subpart A – General

§ 921.1 Mission, goals and general provisions.

(a) The mission of the National Estuarine Research Reserve Program is the establishment and management, through Federal-state cooperation, of a national system (National Estuarine Research Reserve System or System) of estuarine research reserves (National Estuarine Research Reserves or Reserves) representative of the various regions and estuarine types in the United States. National Estuarine Research Reserves are established to provide opportunities for long-term research, education, and interpretation.


(b) The goals of the Program are to:


(1) Ensure a stable environment for research through long-term protection of National Estuarine Research Reserve resources;


(2) Address coastal management issues identified as significant through coordinated estuarine research within the System;


(3) Enhance public awareness and understanding of estuarine areas and provide suitable opportunities for public education and interpretation;


(4) Promote Federal, state, public and private use of one or more Reserves within the System when such entities conduct estuarine research; and


(5) Conduct and coordinate estuarine research within the System, gathering and making available information necessary for improved understanding and management of estuarine areas.


(c) National Estuarine Research Reserves shall be open to the public to the extent permitted under state and Federal law. Multiple uses are allowed to the degree compatible with each Reserve’s overall purpose as provided in the management plan (see § 921.13) and consistent with paragraphs (a) and (b) of this section. Use levels are set by the state where the Reserve is located and analyzed in the management plan. The Reserve management plan shall describe the uses and establish priorities among these uses. The plan shall identify uses requiring a state permit, as well as areas where uses are encouraged or prohibited. Consistent with resource protection and research objectives, public access and use may be restricted to certain areas or components within a Reserve.


(d) Habitat manipulation for research purposes is allowed consistent with the following limitations. Manipulative research activities must be specified in the management plan, be consistent with the mission and goals of the program (see paragraphs (a) and (b) of this section) and the goals and objectives set forth in the Reserve’s management plan, and be limited in nature and extent to the minimum manipulative activity necessary to accomplish the stated research objective. Manipulative research activities with a significant or long-term impact on Reserve resources require the prior approval of the state and the National Oceanic and Atmospheric Administration (NOAA). Manipulative research activities which can reasonably be expected to have a significant adverse impact on the estuarine resources and habitat of a Reserve, such that the activities themselves or their resulting short- and long-term consequences compromise the representative character and integrity of a Reserve, are prohibited. Habitat manipulation for resource management purposes is prohibited except as specifically approved by NOAA as: (1) A restoration activity consistent with paragraph (e) of this section; or (2) an activity necessary for the protection of public health or the preservation of other sensitive resources which have been listed or are eligible for protection under relevant Federal or state authority (e.g., threatened/endangered species or significant historical or cultural resources) or if the manipulative activity is a long-term pre-existing use (i.e., has occurred prior to designation) occurring in a buffer area. If habitat manipulation is determined to be necessary for the protection of public health, the preservation of sensitive resources, or if the manipulation is a long-term pre-existing use in a buffer area, then these activities shall be specified in the Reserve management plan in accordance with § 921.13(a)(10) and shall be limited to the reasonable alternative which has the least adverse and shortest term impact on the representative and ecological integrity of the Reserve.


(e) Under the Act an area may be designated as an estuarine Reserve only if the area is a representative estuarine ecosystem that is suitable for long-term research. Many estuarine areas have undergone some ecological change as a result of human activities (e.g., hydrological changes, intentional/unintentional species composition changes – introduced and exotic species). In those areas proposed or designated as National Estuarine Research Reserves, such changes may have diminished the representative character and integrity of the site. Although restoration of degraded areas is not a primary purpose of the System, such activities may be permitted to improve the representative character and integrity of a Reserve. Restoration activities must be carefully planned and approved by NOAA through the Reserve management plan. Historical research may be necessary to determine the “natural” representative state of an estuarine area (i.e., an estuarine ecosystem minimally affected by human activity or influence). Frequently, restoration of a degraded estuarine area will provide an excellent opportunity for management oriented research.


(f) NOAA may provide financial assistance to coastal states, not to exceed, per Reserve, 50 percent of all actual costs or $5 million whichever amount is less, to assist in the acquisition of land and waters, or interests therein. NOAA may provide financial assistance to coastal states not to exceed 70 percent of all actual costs for the management and operation of, the development and construction of facilities, and the conduct of educational or interpretive activities concerning Reserves (see subpart I). NOAA may provide financial assistance to any coastal state or public or private person, not to exceed 70 percent of all actual costs, to support research and monitoring within a Reserve. Notwithstanding any financial assistance limits established by this Part, when financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available. Predesignation, acquisition and development, operation and management, special research and monitoring, and special education and interpretation awards are available under the National Estuarine Reserve Program. Predesignation awards are for site selection/feasibility, draft management plan preparation and conduct of basic characterization studies. Acquisition and development awards are intended primarily for acquisition of interests in land, facility construction and to develop and/or upgrade research, monitoring and education programs. Operation and management awards provide funds to assist in implementing, operating and managing the administrative, and basic research, monitoring and education programs, outlined in the Reserve management plan. Special research and monitoring awards provide funds to conduct estuarine research and monitoring projects with the System. Special educational and interpretive awards provide funds to conduct estuarine educational and interpretive projects within the System.


(g) Lands already in protected status managed by other Federal agencies, state or local governments, or private organizations may be included within National Estuarine Research Reserves only if the managing entity commits to long-term management consistent with paragraphs (d) and (e) of this section in the Reserve management plan. Federal lands already in protected status may not comprise a majority of the key land and water areas of a Reserve (see § 921.11(c)(3)).


(h) To assist the states in carrying out the Program’s goals in an effective manner, NOAA will coordinate a research and education information exchange throughout the National Estuarine Research Reserve System. As part of this role, NOAA will ensure that information and ideas from one Reserve are made available to others in the System. The network will enable Reserves to exchange information and research data with each other, with universities engaged in estuarine research, and with Federal, state, and local agencies. NOAA’s objective is a system-wide program of research and monitoring capable of addressing the management issues that affect long-term productivity of our Nation’s estuaries.


[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998]


§ 921.2 Definitions.

(a) Act means the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 et seq.


(b) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management or delegee.


(c) Coastal state means a state of the United States, in or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes. For the purposes of these regulations the term also includes Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Marianas Islands, the Trust Territories of the Pacific Islands, and American Samoa (see 16 U.S.C. 1453(4)).


(d) State agency means an instrumentality of a coastal state to whom the coastal state has delegated the authority and responsibility for the creation and/or management/operation of a National Estuarine Research Reserve. Factors indicative of this authority may include the power to receive and expend funds on behalf of the Reserve, acquire and sell or convey real and personal property interests, adopt rules for the protection of the Reserve, enforce rules applicable to the Reserve, or develop and implement research and education programs for the reserve. For the purposes of these regulations, the terms “coastal state” and “State agency” shall be synonymous.


(e) Estuary means that part of a river or stream or other body of water having unimpaired connection with the open sea, where the sea water is measurably diluted with fresh water derived from land drainage. The term also includes estuary-type areas with measurable freshwater influence and having unimpaired connections with the open sea, and estuary-type areas of the Great Lakes and their connecting waters (see 16 U.S.C. 1453(7)).


(f) National Estuarine Research Reserve means an area that is a representative estuarine ecosystem suitable for long-term research, which may include all of the key land and water portion of an estuary, and adjacent transitional areas and uplands constituting to the extent feasible a natural unit, and which is set aside as a natural field laboratory to provide long-term opportunities for research, education, and interpretation on the ecological relationships within the area (see 16 U.S.C. 1453(8)) and meets the requirements of 16 U.S.C. 1461(b). This includes those areas designated as National Estuarine Sanctuaries or Reserves under section 315 of the Act prior to enactment of the Coastal Zone Act Reauthorization Amendments of 1990 and each area subsequently designated as a National Estuarine Research Reserve.


§ 921.3 National Estuarine Research Reserve System biogeographic classification scheme and estuarine typologies.

(a) National Estuarine Research Reserves are chosen to reflect regional differences and to include a variety of ecosystem types. A biogeographic classification scheme based on regional variations in the nation’s coastal zone has been developed. The biogeographic classification scheme is used to ensure that the National Estuarine Research Reserve System includes at least one site from each region. The estuarine typology system is utilized to ensure that sites in the System reflect the wide range of estuarine types within the United States.


(b) The biogeographic classification scheme, presented in appendix I, contains 29 regions. Figure 1 graphically depicts the biogeographic regions of the United States.


(c) The typology system is presented in appendix II.


§ 921.4 Relationship to other provisions of the Coastal Zone Management Act, and to the Marine Protection, Research and Sanctuaries Act.

(a) The National Estuarine Research Reserve System is intended to provide information to state agencies and other entities involved in addressing coastal management issues. Any coastal state, including those that do not have approved coastal management programs under section 306 of the Act, is eligible for an award under the National Estuarine Research Reserve Program (see § 921.2(c)).


(b) For purposes of consistency review by states with a federally approved coastal management program, the designation of a National Estuarine Research Reserve is deemed to be a Federal activity, which, if directly affecting the state’s coastal zone, must be undertaken in a manner consistent to the maximum extent practicable with the approved state coastal management program as provided by section 1456(c)(1) of the Act, and implementing regulations at 15 CFR part 930, subpart C. In accordance with section 1456(c)(1) of the Act and the applicable regulations NOAA will be responsible for certifying that designation of the Reserve is consistent with the state’s approved coastal management program. The state must concur with or object to the certification. It is recommended that the lead state agency for Reserve designation consult, at the earliest practicable time, with the appropriate state officials concerning the consistency of a proposed National Estuarine Research Reserve.


(c) The National Estuarine Research Reserve Program will be administered in close coordination with the National Marine Sanctuary Program (Title III of the Marine Protection, Research and Sanctuaries Act, as amended, 16 U.S.C. 1431-1445), also administered by NOAA. Title III authorizes the Secretary of Commerce to designate discrete areas of the marine environment as National Marine Sanctuaries to protect or restore such areas for their conservation, recreational, ecological, historical, research, educational or esthetic values. National Marine Sanctuaries and Estuarine Research Reserves may not overlap, but may be adjacent.


Subpart B – Site Selection, Post Site Selection and Management Plan Development

§ 921.10 General.

(a) A coastal state may apply for Federal financial assistance for the purpose of site selection, preparation of documents specified in § 921.13 (draft management plan (DMP) and environmental impact statement (EIS)), and the conduct of limited basic characterization studies. The total Federal share of this assistance may not exceed $100,000. Federal financial assistance for preacquisition activities under § 921.11 and § 921.12 is subject to the total $5 million for which each Reserve is eligible for land acquisition. Notwithstanding the above, when financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carried out with this assistance, as long as such funds are available. In the case of a biogeographic region (see appendix I) shared by two or more coastal states, each state is eligible for Federal financial assistance to establish a separate National Estuarine Research Reserve within their respective portion of the shared biogeographic region. Each separate National Estuarine Research Reserve is eligible for the full complement of funding. Financial assistance application procedures are specified in subpart I.


(b) In developing a Reserve program, a state may choose to develop a multiple-site Reserve reflecting a diversity of habitats in a single biogeographic region. A multiple-site Reserve allows the state to develop complementary research and educational programs within the individual components of its multi-site Reserve. Multiple-site Reserves are treated as one Reserve in terms of financial assistance and development of an overall management framework and plan. Each individual site of a proposed multiple-site Reserve shall be evaluated both separately under § 921.11(c) and collectively as part of the site selection process. A coastal state may propose to establish a multiple-site Reserve at the time of the initial site selection, or at any point in the development or operation of the Reserve. If the state decides to develop a multiple-site National Estuarine Research Reserve after the initial acquisition and development award is made for a single site, the proposal is subject to the requirements set forth in § 921.33(b). However, a state may not propose to add one or more sites to an already designated Reserve if the operation and management of such Reserve has been found deficient and uncorrected or the research conducted is not consistent with the Estuarine Research Guidelines referenced in § 921.51. In addition, Federal funds for the acquisition of a multiple-site Reserve remain limited to $5,000,000 (see § 921.20). The funding for operation of a multiple-site Reserve is limited to the maximum allowed for any one Reserve per year (see § 921.32(c)) and preacquisition funds are limited to $100,000 per Reserve. Notwithstanding the above, when financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, such assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available.


[58 FR 38215, July 15, 1993, as amended at 63 FR 26717, May 14, 1998]


§ 921.11 Site selection and feasibility.

(a) A coastal state may use Federal funds to establish and implement a site selection process which is approved by NOAA.


(b) In addition to the requirements set forth in subpart I, a request for Federal funds for site selection must contain the following programmatic information:


(1) A description of the proposed site selection process and how it will be implemented in conformance with the biogeographic classification scheme and typology (§ 921.3);


(2) An identification of the site selection agency and the potential management agency; and


(3) A description of how public participation will be incorporated into the process (see § 921.11(d)).


(c) As part of the site selection process, the state and NOAA shall evaluate and select the final site(s). NOAA has final authority in approving such sites. Site selection shall be guided by the following principles:


(1) The site’s contribution to the biogeographical and typological balance of the National Estuarine Research Reserve System. NOAA will give priority consideration to proposals to establish Reserves in biogeographic regions or subregions or incorporating types that are not represented in the system. (see the biogeographic classification scheme and typology set forth in § 921.3 and appendices I and II);


(2) The site’s ecological characteristics, including its biological productivity, diversity of flora and fauna, and capacity to attract a broad range of research and educational interests. The proposed site must be a representative estuarine ecosystem and should, to the maximum extent possible, be an estuarine ecosystem minimally affected by human activity or influence (see § 921.1(e)).


(3) Assurance that the site’s boundaries encompass an adequate portion of the key land and water areas of the natural system to approximate an ecological unit and to ensure effective conservation. Boundary size will vary greatly depending on the nature of the ecosystem. Reserve boundaries must encompass the area within which adequate control has or will be established by the managing entity over human activities occurring within the Reserve. Generally, Reserve boundaries will encompass two areas: Key land and water areas (or “core area”) and a buffer zone. Key land and water areas and a buffer zone will likely require significantly different levels of control (see § 921.13(a)(7)). The term “key land and water areas” refers to that core area within the Reserve that is so vital to the functioning of the estuarine ecosystem that it must be under a level of control sufficient to ensure the long-term viability of the Reserve for research on natural processes. Key land and water areas, which comprise the core area, are those ecological units of a natural estuarine system which preserve, for research purposes, a full range of significant physical, chemical and biological factors contributing to the diversity of fauna, flora and natural processes occurring within the estuary. The determination of which land and water areas are “key” to a particular Reserve must be based on specific scientific knowledge of the area. A basic principle to follow when deciding upon key land and water areas is that they should encompass resources representative of the total ecosystem, and which if compromised could endanger the research objectives of the Reserve. The term buffer zone refers to an area adjacent to or surrounding key land and water areas and essential to their integrity. Buffer zones protect the core area and provide additional protection for estuarine-dependent species, including those that are rare or endangered. When determined appropriate by the state and approved by NOAA, the buffer zone may also include an area necessary for facilities required for research and interpretation. Additionally, buffer zones should be established sufficient to accommodate a shift of the core area as a result of biological, ecological or geomorphological change which reasonably could be expected to occur. National Estuarine Research Reserves may include existing Federal or state lands already in a protected status where mutual benefit can be enhanced. However, NOAA will not approve a site for potential National Estuarine Research Reserve status that is dependent primarily upon the inclusion of currently protected Federal lands in order to meet the requirements for Reserve status (such as key land and water areas). Such lands generally will be included within a Reserve to serve as a buffer or for other ancillary purposes; and may be included, subject to NOAA approval, as a limited portion of the core area;


(4) The site’s suitability for long-term estuarine research, including ecological factors and proximity to existing research facilities and educational institutions;


(5) The site’s compatibility with existing and potential land and water uses in contiguous areas as well as approved coastal and estuarine management plans; and


(6) The site’s importance to education and interpretive efforts, consistent with the need for continued protection of the natural system.


(d) Early in the site selection process the state must seek the views of affected landowners, local governments, other state and Federal agencies and other parties who are interested in the area(s) being considered for selection as a potential National Estuarine Research Reserve. After the local government(s) and affected landowner(s) have been contacted, at least one public meeting shall be held in the vicinity of the proposed site. Notice of such a meeting, including the time, place, and relevant subject matter, shall be announced by the state through the area’s principal newspaper at least 15 days prior to the date of the meeting and by NOAA in the Federal Register.


(e) A state request for NOAA approval of a proposed site (or sites in the case of a multi-site Reserve) must contain a description of the proposed site(s) in relationship to each of the site selection principals (§ 921.11(c)) and the following information:


(1) An analysis of the proposed site(s) based on the biogeographical scheme/typology discussed in § 921.3 and set forth in appendices I and II;


(2) A description of the proposed site(s) and its (their) major resources, including location, proposed boundaries, and adjacent land uses. Maps are required;


(3) A description of the public participation process used by the state to solicit the views of interested parties, a summary of comments, and, if interstate issues are involved, documentation that the Governor(s) of the other affected state(s) has been contacted. Copies of all correspondence, including contact letters to all affected landowners must be appended;


(4) A list of all sites considered and a brief statement of the reasons why a site was not preferred; and


(5) A nomination of the proposed site(s) for designation as a National Estuarine Research Reserve by the Governor of the coastal state in which the state is located.


(f) A state proposing to reactivate an inactive site, previously approved by NOAA for development as an Estuarine Sanctuary or Reserve, may apply for those funds remaining, if any, provided for site selection and feasibility (§ 921.11a)) to determine the feasibility of reactivation. This feasibility study must comply with the requirements set forth in § 921.11 (c) through (e).


§ 921.12 Post site selection.

(a) At the time of the coastal state’s request for NOAA approval of a proposed site, the state may submit a request for funds to develop the draft management plan and for preparation of the EIS. At this time, the state may also submit a request for the remainder of the predesignation funds to perform a limited basic characterization of the physical, chemical and biological characteristics of the site approved by NOAA necessary for providing EIS information to NOAA. The state’s request for these post site selection funds must be accompanied by the information specified in subpart I and, for draft management plan development and EIS information collection, the following programmatic information:


(1) A draft management plan outline (see § 921.13(a) below); and


(2) An outline of a draft memorandum of understanding (MOU) between the state and NOAA detailing the Federal-state role in Reserve management during the initial period of Federal funding and expressing the state’s long-term commitment to operate and manage the Reserve.


(b) The state is eligible to use the funds referenced in § 921.12(a) after the proposed site is approved by NOAA under the terms of § 921.11.


§ 921.13 Management plan and environmental impact statement development.

(a) After NOAA approves the state’s proposed site and application for funds submitted pursuant to § 921.12, the state may begin draft management plan development and the collection of information necessary for the preparation by NOAA of an EIS. The state shall develop a draft management plan, including an MOU. The plan shall set out in detail:


(1) Reserve goals and objectives, management issues, and strategies or actions for meeting the goals and objectives;


(2) An administrative plan including staff roles in administration, research, education/interpretation, and surveillance and enforcement;


(3) A research plan, including a monitoring design;


(4) An education/interpretive plan;


(5) A plan for public access to the Reserve;


(6) A construction plan, including a proposed construction schedule, general descriptions of proposed developments and general cost estimates. Information should be provided for proposed minor construction projects in sufficient detail to allow these projects to begin in the initial phase of acquisition and development. A categorical exclusion, environmental assessment, or EIS may be required prior to construction;


(7)(i) An acquisition plan identifying the ecologically key land and water areas of the Reserve, ranking these areas according to their relative importance, and including a strategy for establishing adequate long-term state control over these areas sufficient to provide protection for Reserve resources to ensure a stable environment for research. This plan must include an identification of ownership within the proposed Reserve boundaries, including land already in the public domain; the method(s) of acquisition which the state proposes to use – acquisition (including less-than-fee simple options) to establish adequate long-term state control; an estimate of the fair market value of any property interest – which is proposed for acquisition; a schedule estimating the time required to complete the process of establishing adequate state control of the proposed research reserve; and a discussion of any anticipated problems. In selecting a preferred method(s) for establishing adequate state control over areas within the proposed boundaries of the Reserve, the state shall perform the following steps for each parcel determined to be part of the key land and water areas (control over which is necessary to protect the integrity of the Reserve for research purposes), and for those parcels required for research and interpretive support facilities or buffer purposes:


(A) Determine, with appropriate justification, the minimum level of control(s) required [e.g., management agreement, regulation, less-than-fee simple property interest (e.g., conservation easement), fee simple property acquisition, or a combination of these approaches]. This does not preclude the future necessity of increasing the level of state control;


(B) Identify the level of existing state control(s);


(C) Identify the level of additional state control(s), if any, necessary to meet the minimum requirements identified in paragraph (a)(7)(i)(A) of this section;


(D) Examine all reasonable alternatives for attaining the level of control identified in paragraph (a)(7)(i)(C) of this section, and perform a cost analysis of each; and


(E) Rank, in order of cost, the methods (including acquisition) identified in paragraph (a)(7)(i)(D) of this section.


(ii) An assessment of the relative cost-effectiveness of control alternatives shall include a reasonable estimate of both short-term costs (e.g., acquisition of property interests, regulatory program development including associated enforcement costs, negotiation, adjudication, etc.) and long-term costs (e.g., monitoring, enforcement, adjudication, management and coordination). In selecting a preferred method(s) for establishing adequate state control over each parcel examined under the process described above, the state shall give priority consideration to the least costly method(s) of attaining the minimum level of long-term control required. Generally, with the possible exception of buffer areas required for support facilities, the level of control(s) required for buffer areas will be considerably less than that required for key land and water areas. This acquisition plan, after receiving the approval of NOAA, shall serve as a guide for negotiations with landowners. A final boundary for the reserve shall be delineated as a part of the final management plan;


(8) A resource protection plan detailing applicable authorities, including allowable uses, uses requiring a permit and permit requirements, any restrictions on use of the research reserve, and a strategy for research reserve surveillance and enforcement of such use restrictions, including appropriate government enforcement agencies;


(9) If applicable, a restoration plan describing those portions of the site that may require habitat modification to restore natural conditions;


(10) If applicable, a resource manipulation plan, describing those portions of the Reserve buffer in which long-term pre-existing (prior to designation) manipulation for reasons not related to research or restoration is occurring. The plan shall explain in detail the nature of such activities, shall justify why such manipulation should be permitted to continue within the reserve buffer; and shall describe possible effects of this manipulation on key land and water areas and their resources;


(11) A proposed memorandum of understanding (MOU) between the state and NOAA regarding the Federal-state relationship during the establishment and development of the National Estuarine Research Reserve, and expressing a long-term commitment by the state to maintain and manage the Reserve in accordance with section 315 of the Act, 16 U.S.C. 1461, and applicable regulations. In conjunction with the MOU, and where possible under state law, the state will consider taking appropriate administrative or legislative action to ensure the long-term protection and operation of the National Estuarine Research Reserve. If other MOUs are necessary (such as with a Federal agency, another state agency or private organization), drafts of such MOUs must be included in the plan. All necessary MOU’s shall be signed prior to Reserve designation; and


(12) If the state has a federally approved coastal management program, a certification that the National Estuarine Research Reserve is consistent to the maximum extent practicable with that program. See §§ 921.4(b) and 921.30(b).


(b) Regarding the preparation of an EIS under the National Environmental Policy Act on a National Estuarine Research Reserve proposal, the state and NOAA shall collect all necessary information concerning the socioeconomic and environmental impacts associated with implementing the draft management plan and feasible alternatives to the plan. Based on this information, the state will draft and provide NOAA with a preliminary EIS.


(c) Early in the development of the draft management plan and the draft EIS, the state and NOAA shall hold a scoping meeting (pursuant to NEPA) in the area or areas most affected to solicit public and government comments on the significant issues related to the proposed action. NOAA will publish a notice of the meeting in the Federal Register at least 15 days prior to the meeting. The state shall be responsible for publishing a similar notice in the local media.


(d) NOAA will publish a Federal Register notice of intent to prepare a draft EIS. After the draft EIS is prepared and filed with the Environmental Protection Agency (EPA), a Notice of Availability of the draft EIS will appear in the Federal Register. Not less than 30 days after publication of the notice, NOAA will hold at least one public hearing in the area or areas most affected by the proposed national estuarine research reserve. The hearing will be held no sooner than 15 days after appropriate notice of the meeting has been given in the principal news media by the state and in the Federal Register by NOAA. After a 45-day comment period, a final EIS will be prepared by the state and NOAA.


Subpart C – Acquisition, Development and Preparation of the Final Management Plan

§ 921.20 General.

The acquisition and development period is separated into two major phases. After NOAA approval of the site, draft management plan and draft MOU, and completion of the final EIS, a coastal state is eligible for an initial acquisition and development award(s). In this initial phase, the state should work to meet the criteria required for formal research reserve designation; e.g., establishing adequate state control over the key land and water areas as specified in the draft management plan and preparing the final management plan. These requirements are specified in § 921.30. Minor construction in accordance with the draft management plan may also be conducted during this initial phase. The initial acquisition and development phase is expected to last no longer than three years. If necessary, a longer time period may be negotiated between the state and NOAA. After Reserve designation, a state is eligible for a supplemental acquisition and development award(s) in accordance with § 921.31. In this post-designation acquisition and development phase, funds may be used in accordance with the final management plan to construct research and educational facilities, complete any remaining land acquisition, for program development, and for restorative activities identified in the final management plan. In any case, the amount of Federal financial assistance provided to a coastal state with respect to the acquisition of lands and waters, or interests therein, for any one National Estuarine Research Reserve may not exceed an amount equal to 50 percent of the costs of the lands, waters, and interests therein or $5,000,000, whichever amount is less, except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available.


[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998]


§ 921.21 Initial acquisition and development awards.

(a) Assistance is provided to aid the recipient prior to designation in:


(1) Acquiring a fee simple or less-than-fee simple real property interest in land and water areas to be included in the Reserve boundaries (see § 921.13(a)(7); § 921.30(d));


(2) Minor construction, as provided in paragraphs (b) and (c) of this section;


(3) Preparing the final management plan; and


(4) Initial management costs, e.g., for implementing the NOAA approved draft management plan, hiring a Reserve manager and other staff as necessary and for other management-related activities. Application procedures are specified in subpart I.


(b) The expenditure of Federal and state funds on major construction activities is not allowed during the initial acquisition and development phase. The preparation of architectural and engineering plans, including specifications, for any proposed construction, or for proposed restorative activities, is permitted. In addition, minor construction activities, consistent with paragraph (c) of this section also are allowed. The NOAA-approved draft management plan must, however, include a construction plan and a public access plan before any award funds can be spent on construction activities.


(c) Only minor construction activities that aid in implementing portions of the management plan (such as boat ramps and nature trails) are permitted during the initial acquisition and development phase. No more than five (5) percent of the initial acquisition and development award may be expended on such activities. NOAA must make a specific determination, based on the final EIS, that the construction activity will not be detrimental to the environment.


(d) Except as specifically provided in paragraphs (a) through (c) of this section, construction projects, to be funded in whole or in part under an acquisition and development award(s), may not be initiated until the Reserve receives formal designation (see § 921.30). This requirement has been adopted to ensure that substantial progress in establishing adequate state control over key land and water areas has been made and that a final management plan is completed before major sums are spent on construction. Once substantial progress in establishing adequate state control/acquisition has been made, as defined by the state in the management plan, other activities guided by the final management plan may begin with NOAA’s approval.


(e) For any real property acquired in whole or part with Federal funds for the Reserve, the state shall execute suitable title documents to include substantially the following provisions, or otherwise append the following provisions in a manner acceptable under applicable state law to the official land record(s):


(1) Title to the property conveyed by this deed shall vest in the [recipient of the award granted pursuant to section 315 of the Act, 16 U.S.C. 1461 or other NOAA approved state agency] subject to the condition that the designation of the [name of National Estuarine Reserve] is not withdrawn and the property remains part of the federally designated [name of National Estuarine Research Reserve]; and


(2) In the event that the property is no longer included as part of the Reserve, or if the designation of the Reserve of which it is part is withdrawn, then NOAA or its successor agency, after full and reasonable consultation with the State, may exercise the following rights regarding the disposition of the property:


(i) The recipient may retain title after paying the Federal Government an amount computed by applying the Federal percentage of participation in the cost of the original project to the current fair market value of the property;


(ii) If the recipient does not elect to retain title, the Federal Government may either direct the recipient to sell the property and pay the Federal Government an amount computed by applying the Federal percentage of participation in the cost of the original project to the proceeds from the sale (after deducting actual and reasonable selling and repair or renovation expenses, if any, from the sale proceeds), or direct the recipient to transfer title to the Federal Government. If directed to transfer title to the Federal Government, the recipient shall be entitled to compensation computed by applying the recipient’s percentage of participation in the cost of the original project to the current fair market value of the property; and


(iii) Fair market value of the property must be determined by an independent appraiser and certified by a responsible official of the state, as provided by Department of Commerce regulations at 15 CFR part 24, and Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally assisted programs at 15 CFR part 11.


(f) Upon instruction by NOAA, provisions analogous to those of § 921.21(e) shall be included in the documentation underlying less-then-fee-simple interests acquired in whole or part with Federal funds.


(g) Federal funds or non-Federal matching share funds shall not be spent to acquire a real property interest in which the state will own the land concurrently with another entity unless the property interest has been identified as a part of an acquisition strategy pursuant to § 921.13(7) which has been approved by NOAA prior to the effective date of these regulations.


(h) Prior to submitting the final management plan to NOAA for review and approval, the state shall hold a public meeting to receive comment on the plan in the area affected by the estuarine research reserve. NOAA will publish a notice of the meeting in the Federal Register at least 15 days prior to the public meeting. The state shall be responsible for having a similar notice published in the local newspaper(s).


Subpart D – Reserve Designation and Subsequent Operation

§ 921.30 Designation of National Estuarine Research Reserves.

(a) The Under Secretary may designate an area proposed for designation by the Governor of the state in which it is located, as a National Esturaine Research Reserve if the Under Secretary finds:


(1) The area is a representative estuarine ecosystem that is suitable for long-term research and contributes to the biogeographical and typological balance of the System;


(2) Key land and water areas of the proposed Reserve, as identified in the management plan, are under adequate state control sufficient to provide long-term protection for reserve resources to ensure a stable environment for research;


(3) Designation of the area as a Reserve will serve to enhance public awareness and understanding of estuarine areas, and provide suitable opportunities for public education and interpretation;


(4) A final management plan has been approved by NOAA;


(5) An MOU has been signed between the state and NOAA ensuring a long-term commitment by the state to the effective operation and implementation of the area as a National Estuarine Research Reserve;


(6) All MOU’s necessary for reserve management (i.e., with relevant Federal, state, and local agencies and/or private organizations) have been signed; and


(7) The coastal state in which the area is located has complied with the requirements of subpart B.


(b) NOAA will determine whether the designation of a National Estuarine Research Reserve in a state with a federally approved coastal zone management program directly affects the coastal zone. If the designation is found to directly affect the coastal zone, NOAA will make a consistency determination pursuant to § 307(c)(1) of the Act, 16 U.S.C. 1456, and 15 CFR part 930, subpart C. See § 921.4(b). The results of this consistency determination will be published in the Federal Register when the notice of designation is published. See § 921.30(c).


(c) NOAA will publish the notice of designation of a National Estuarine Research Reserve in the Federal Register. The state shall be responsible for having a similar notice published in the local media.


(d) The term state control in § 921.30(a)(3) does not necessarily require that key land and water areas be owned by the state in fee simple. Acquisition of less-than-fee simple interests e.g., conservation easements) and utilization of existing state regulatory measures are encouraged where the state can demonstrate that these interests and measures assure adequate long-term state control consistent with the purposes of the research reserve (see also §§ 921.13(a)(7); 921.21(g)). Should the state later elect to purchase an interest in such lands using NOAA funds, adequate justification as to the need for such acquisition must be provided to NOAA.


§ 921.31 Supplemental acquisition and development awards.

After National Estuarine Research Reserve designation, and as specified in the approved management plan, a coastal state may request a supplemental acquisition and/or development award(s) for acquiring additional property interests identified in the management plan as necessary to strengthen protection of key land and water areas and to enhance long-term protection of the area for research and education, for facility and exhibit construction, for restorative activities identified in the approved management plan, for administrative purposes related to acquisition and/or facility construction and to develop and/or upgrade research, monitoring and education/interpretive programs. Federal financial assistance provided to a National Estuarine Research Reserve for supplemental development costs directly associated with facility construction (i.e., major construction activities) may not exceed 70 percent of the total project cost, except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. NOAA must make a specific determination that the construction activity will not be detrimental to the environment. Acquisition awards for the acquisition of lands or waters, or interests therein, for any one reserve may not exceed an amount equal to 50 percent of the costs of the lands, waters, and interests therein of $5,000,000, whichever amount is less, except when the financial assistance is provided from amounts recovered as result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of all actual costs of activities carrier out with this assistance, as long as such funds are available. In the case of a biogeographic region (see appendix I) shared by two or more states, each state is eligible independently for Federal financial assistance to establish a separate National Estuarine Research Reserve within their respective portion of the shared biogeographic region. Application procedures are specified in subpart I. Land acquisition must follow the procedures specified in §§ 921.13(a)(7), 921.21(e) and (f) and 921.81.


[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997; 63 FR 26717, May 14, 1998]


§ 921.32 Operation and management: Implementation of the management plan.

(a) After the Reserve is formally designated, a coastal state is eligible to receive Federal funds to assist the state in the operation and management of the Reserve including the management of research, monitoring, education, and interpretive programs. The purpose of this Federally funded operation and management phase is to implement the approved final management plan and to take the necessary steps to ensure the continued effective operation of the Reserve.


(b) State operation and management of the Reserves shall be consistent with the mission, and shall further the goals of the National Estuarine Research Reserve program (see § 921.1).


(c) Federal funds are available for the operation and management of the Reserve. Federal funds provided pursuant to this section may not exceed 70 percent of the total cost of operating and managing the Reserve for any one year, except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs. In the case of a biogeographic region (see Appendix I) shared by two or more states, each state is eligible for Federal financial assistance to establish a separate Reserve within their respective portion of the shared biogeographic region (see § 921.10).


(d) Operation and management funds are subject to the following limitations:


(1) Eligible coastal state agencies may apply for up to the maximum share available per Reserve for that fiscal year. Share amounts will be announced annually by letter from the Sanctuary and Reserves Division to all participating states. This letter will be provided as soon as practicable following approval of the Federal budget for that fiscal year.


(2) No more than ten percent of the total amount (state and Federal shares) of each operation and management award may be used for construction-type activities.


[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]


§ 921.33 Boundary changes, amendments to the management plan, and addition of multiple-site components.

(a) Changes in the boundary of a Reserve and major changes to the final management plan, including state laws or regulations promulgated specifically for the Reserve, may be made only after written approval by NOAA. NOAA may require public notice, including notice in the Federal Register and an opportunity for public comment before approving a boundary or management plan change. Changes in the boundary of a Reserve involving the acquisition of properties not listed in the management plan or final EIS require public notice and the opportunity for comment; in certain cases, a categorical exclusion, an environmental assessment and possibly an environmental impact statement may be required. NOAA will place a notice in the Federal Register of any proposed changes in Reserve boundaries or proposed major changes to the final management plan. The state shall be responsible for publishing an equivalent notice in the local media. See also requirements of §§ 921.4(b) and 921.13(a)(11).


(b) As discussed in § 921.10(b), a state may choose to develop a multiple-site National Estuarine Research Reserve after the initial acquisition and development award for a single site has been made. NOAA will publish notice of the proposed new site including an invitation for comments from the public in the Federal Register. The state shall be responsible for publishing an equivalent notice in the local newspaper(s). An EIS, if required, shall be prepared in accordance with section § 921.13 and shall include an administrative framework for the multiple-site Reserve and a description of the complementary research and educational programs within the Reserve. If NOAA determines, based on the scope of the project and the issues associated with the additional site(s), that an environmental assessment is sufficient to establish a multiple-site Reserve, then the state shall develop a revised management plan which, concerning the additional component, incorporates each of the elements described in § 921.13(a). The revised management plan shall address goals and objectives for all components of the multi-site Reserve and the additional component’s relationship to the original site(s).


(c) The state shall revise the management plan for a Reserve at least every five years, or more often if necessary. Management plan revisions are subject to (a) above.


(d) NOAA will approve boundary changes, amendments to management plans, or the addition of multiple-site components, by notice in the Federal Register. If necessary NOAA will revise the designation document (findings) for the site.


Subpart E – Ongoing Oversight, Performance Evaluation and Withdrawal of Designation

§ 921.40 Ongoing oversight and evaluations of designated National Estuarine Research Reserves.

(a) The Sanctuaries and Reserve Division shall conduct, in accordance with section 312 of the Act and procedures set forth in 15 CFR part 928, ongoing oversight and evaluations of Reserves. Interim sanctions may be imposed in accordance with regulations promulgated under 15 CFR part 928.


(b) The Assistant Administrator may consider the following indicators of non-adherence in determining whether to invoke interim sanctions:


(1) Inadequate implementation of required staff roles in administration, research, education/interpretation, and surveillance and enforcement. Indicators of inadequate implementation could include: No Reserve Manager, or no staff or insufficient staff to carry out the required functions.


(2) Inadequate implementation of the required research plan, including the monitoring design. Indicators of inadequate implementation could include: Not carrying out research or monitoring that is required by the plan, or carrying out research or monitoring that is inconsistent with the plan.


(3) Inadequate implementation of the required education/interpretation plan. Indicators of inadequate implementation could include: Not carrying out education or interpretation that is required by the plan, or carrying out education/interpretation that is inconsistent with the plan.


(4) Inadequate implementation of public access to the Reserve. Indicators of inadequate implementation of public access could include: Not providing necessary access, giving full consideration to the need to keep some areas off limits to the public in order to protect fragile resources.


(5) Inadequate implementation of facility development plan. Indicators of inadequate implementation could include: Not taking action to propose and budget for necessary facilities, or not undertaking necessary construction in a timely manner when funds are available.


(6) Inadequate implementation of acquisition plan. Indicators of inadequate implementation could include: Not pursuing an aggressive acquisition program with all available funds for that purpose, not requesting promptly additional funds when necessary, and evidence that adequate long-term state control has not been established over some core or buffer areas, thus jeopardizing the ability to protect the Reserve site and resources from offsite impacts.


(7) Inadequate implementation of Reserve protection plan. Indicators of inadequate implementation could include: Evidence of non-compliance with Reserve restrictions, insufficient surveillance and enforcement to assure that restrictions on use of the Reserve are adhered to, or evidence that Reserve resources are being damaged or destroyed as a result of the above.


(8) Failure to carry out the terms of the signed Memorandum of Understanding (MOU) between the state and NOAA, which establishes a long-term state commitment to maintain and manage the Reserve in accordance with section 315 of the Act. Indicators of failure could include: State action to allow incompatible uses of state-controlled lands or waters in the Reserve, failure of the state to bear its fair share of costs associated with long-term operation and management of the Reserve, or failure to initiate timely updates of the MOU when necessary.


§ 921.41 Withdrawal of designation.

The Assistant Administrator may withdraw designation of an estuarine area as a National Estuarine Research Reserve pursuant to and in accordance with the procedures of section 312 and 315 of the Act and regulations promulgated thereunder.


Subpart F – Special Research Projects

§ 921.50 General.

(a) To stimulate high quality research within designated National Estuarine Research Reserves, NOAA may provide financial support for research projects which are consistent with the Estuarine Research Guidelines referenced in § 921.51. Research awards may be awarded under this subpart to only those designated Reserves with approved final management plans. Although research may be conducted within the immediate watershed of the Reserve, the majority of research activities of any single research project funded under this subpart may be conducted within Reserve boundaries. Funds provided under this subpart are primarily used to support management-related research projects that will enhance scientific understanding of the Reserve ecosystem, provide information needed by Reserve management and coastal management decision-makers, and improve public awareness and understanding of estuarine ecosystems and estuarine management issues. Special research projects may be oriented to specific Reserves; however, research projects that would benefit more than one Reserve in the National Estuarine Reserve Research System are encouraged.


(b) Funds provided under this subpart are available on a competitive basis to any coastal state or qualified public or private person. A notice of available funds will be published in the Federal Register. Special research project funds are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (“allowable costs”), except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs.


[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]


§ 921.51 Estuarine research guidelines.

(a) Research within the National Estuarine Research Reserve System shall be conducted in a manner consistent with Estuarine Research Guidelines developed by NOAA.


(b) A summary of the Estuarine Research Guidelines is published in the Federal Register as a part of the notice of available funds discussed in § 921.50(c).


(c) The Estuarine Research Guidelines are reviewed annually by NOAA. This review will include an opportunity for comment by the estuarine research community.


§ 921.52 Promotion and coordination of estuarine research.

(a) NOAA will promote and coordinate the use of the National Estuarine Research Reserve System for research purposes.


(b) NOAA will, in conducting or supporting estuarine research other than that authorized under section 315 of the Act, give priority consideration to research that make use of the National Estuarine Research Reserve System.


(c) NOAA will consult with other Federal and state agencies to promote use of one or more research reserves within the National Estuarine Research Reserve System when such agencies conduct estuarine research.


Subpart G – Special Monitoring Projects

§ 921.60 General.

(a) To provide a systematic basis for developing a high quality estuarine resource and ecosystem information base for National Estuarine Research Reserves and, as a result, for the System, NOAA may provide financial support for basic monitoring programs as part of operations and management under § 921.32. Monitoring funds are used to support three major phases of a monitoring program:


(1) Studies necessary to collect data for a comprehensive site description/characterization;


(2) Development of a site profile; and


(3) Formulation and implementation of a monitoring program.


(b) Additional monitoring funds may be available on a competitive basis to the state agency responsible for Reserve management or a qualified public or private person or entity. However, if the applicant is other than the managing entity of a Reserve that applicant must submit as a part of the application a letter from the Reserve manager indicating formal support of the application by the managing entity of the Reserve. Funds provided under this subpart for special monitoring projects are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (“allowable costs”), except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs.


(c) Monitoring projects funded under this subpart must focus on the resources within the boundaries of the Reserve and must be consistent with the applicable sections of the Estuarine Research Guidelines referenced in § 921.51. Portions of the project may occur within the immediate watershed of the Reserve beyond the site boundaries. However, the monitoring proposal must demonstrate why this is necessary for the success of the project.


[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]


Subpart H – Special Interpretation and Education Projects

§ 921.70 General.

(a) To stimulate the development of innovative or creative interpretive and educational projects and materials to enhance public awareness and understanding of estuarine areas, NOAA may fund special interpretive and educational projects in addition to those activities provided for in operations and management under § 921.32. Special interpretive and educational awards may be awarded under this subpart to only those designated Reserves with approved final management plans.


(b) Funds provided under this subpart may be available on a competitive basis to any state agency. However, if the applicant is other than the managing entity of a Reserve, that applicant must submit as a part of the application a letter from the Reserve manager indicating formal support of the application by the managing entity of the Reserve. These funds are provided in addition to any other funds available to a coastal state under the Act. Federal funds provided under this subpart may not exceed 70 percent of the total cost of the project, consistent with § 921.81(e)(4) (“allowable costs”), except when the financial assistance is provided from amounts recovered as a result of damage to natural resources located in the coastal zone, in which case the assistance may be used to pay 100 percent of the costs.


(c) Applicants for education/interpretive projects that NOAA determines benefit the entire National Estuarine Research Reserve System may receive Federal assistance of up to 100% of project costs.


[58 FR 38215, July 15, 1993, as amended at 62 FR 12541, Mar. 17, 1997]


Subpart I – General Financial Assistance Provisions

§ 921.80 Application information.

(a) Only a coastal state may apply for Federal financial assistance awards for preacquisition, acquisition and development, operation and management, and special education and interpretation projects under subpart H. Any coastal state or public or private person may apply for Federal financial assistance awards for special estuarine research or monitoring projects under subpart G. The announcement of opportunities to conduct research in the System appears on an annual basis in the Federal Register. If a state is participating in the national Coastal Zone Management Program, the applicant for an award under section 315 of the Act shall notify the state coastal management agency regarding the application.


(b) An original and two copies of the formal application must be submitted at least 120 working days prior to the proposed beginning of the project to the following address: Sanctuaries and Reserves Division Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, 1825 Connecticut Avenue, NW., suite 714, Washington, DC 20235. Application for Federal Assistance Standard Form 424 (Non-construction Program) constitutes the formal application for site selection, post-site selection, operation and management, research, and education and interpretive awards. The Application for Federal Financial Assistance Standard Form 424 (Construction Program) constitutes the formal application for land acquisition and development awards. The application must be accompanied by the information required in subpart B (predesignation), subpart C and § 921.31 (acquisition and development), and § 921.32 (operation and management) as applicable. Applications for development awards for construction projects, or restorative activities involving construction, must include a preliminary engineering report, a detailed construction plan, a site plan, a budget and categorical exclusion check list or environmental assessment. All applications must contain back up data for budget estimates (Federal and non-Federal shares), and evidence that the application complies with the Executive Order 12372, “Intergovernmental Review of Federal Programs.” In addition, applications for acquisition and development awards must contain:


(1) State Historic Preservation Office comments;


(2) Written approval from NOAA of the draft management plan for initial acquisition and development award(s); and


(3) A preliminary engineering report for construction activities.


§ 921.81 Allowable costs.

(a) Allowable costs will be determined in accordance with applicable OMB Circulars and guidance for Federal financial assistance, the financial assistant agreement, these regulations, and other Department of Commerce and NOAA directives. The term “costs” applies to both the Federal and non-Federal shares.


(b) Costs claimed as charges to the award must be reasonable, beneficial and necessary for the proper and efficient administration of the financial assistance award and must be incurred during the award period.


(c) Costs must not be allocable to or included as a cost of any other Federally-financed program in either the current or a prior award period.


(d) General guidelines for the non-Federal share are contained in Department of Commerce Regulations at 15 CFR part 24 and OMB Circular A-110. Copies of Circular A-110 can be obtained from the Sanctuaries and Reserves Division; 1825 Connecticut Avenue, NW., suite 714; Washington, DC 20235. The following may be used in satisfying the matching requirement:


(1) Site selection and post site selection awards. Cash and in-kind contributions (value of goods and services directly benefiting and specifically identifiable to this part of the project) are allowable. Land may not be used as match.


(2) Acquisition and development awards. Cash and in-kind contributions are allowable. In general, the fair market value of lands to be included within the Reserve boundaries and acquired pursuant to the Act, with other than Federal funds, may be used as match. However, the fair market value of real property allowable as match is limited to the fair market value of a real property interest equivalent to, or required to attain, the level of control over such land(s) identified by the state and approved by the Federal Government as that necessary for the protection and management of the National Estuarine Research Reserve. Appraisals must be performed according to Federal appraisal standards as detailed in Department of Commerce regulations at 15 CFR part 24 and the Uniform Relocation Assistance and Real Property Acquisition for Federal land Federally assisted programs in 15 CFR part 11. The fair market value of privately donated land, at the time of donation, as established by an independent appraiser and certified by a responsible official of the state, pursuant to 15 CFR part 11, may also be used as match. Land, including submerged lands already in the state’s possession, may be used as match to establish a National Estuarine Research Reserve. The value of match for these state lands will be calculated by determining the value of the benefits foregone by the state, in the use of the land, as a result of new restrictions that may be imposed by Reserve designation. The appraisal of the benefits foregone must be made by an independent appraiser in accordance with Federal appraisal standards pursuant to 15 CFR part 24 and 15 CFR part 11. A state may initially use as match land valued at greater than the Federal share of the acquisition and development award. The value in excess of the amount required as match for the initial award may be used to match subsequent supplemental acquisition and development awards for the National Estuarine Research Reserve (see also § 921.20). Costs related to land acquisition, such as appraisals, legal fees and surveys, may also be used as match.


(3) Operation and management awards. Generally, cash and in-kind contributions (directly benefiting and specifically identifiable to operations and management), except land, are allowable.


(4) Research, monitoring, education and interpretive awards. Cash and in-kind contributions (directly benefiting and specifically identifiable to the scope of work), except land, are allowable.


§ 921.82 Amendments to financial assistance awards.

Actions requiring an amendment to the financial assistance award, such as a request for additional Federal funds, revisions of the approved project budget or original scope of work, or extension of the performance period must be submitted to NOAA on Standard Form 424 and approved in writing.


Appendix I to Part 921 – Biogeographic Classification Scheme

Acadian

1. Northern of Maine (Eastport to the Sheepscot River.)


2. Southern Gulf of Maine (Sheepscot River to Cape Cod.)


Virginian

3. Southern New England (Cape Cod to Sandy Hook.)


4. Middle Atlantic (Sandy Hook to Cape Hatteras.)


5. Chesapeake Bay.


Carolinian

6. North Carolinas (Cape Hatteras to Santee River.)


7. South Atlantic (Santee River to St. John’s River.)


8. East Florida (St. John’s River to Cape Canaveral.)


West Indian

9. Caribbean (Cape Canaveral to Ft. Jefferson and south.)


10. West Florida (Ft. Jefferson to Cedar Key.)


Louisianian

11. Panhandle Coast (Cedar Key to Mobile Bay.)


12. Mississippi Delta (Mobile Bay to Galveston.)


13. Western Gulf (Galveston to Mexican border.)


Californian

14. Southern California (Mexican border to Point Conception.)


15. Central California (Point Conception to Cape Mendocino.)


16. San Francisco Bay.


Columbian

17. Middle Pacific (Cape Mendocino to the Columbia River.)


18. Washington Coast (Columbia River to Vancouver Island.)


19. Puget Sound.


Great Lakes

20. Lake Superior (including St. Mary’s River.)


21. Lakes Michigan and Huron (including Straits of Mackinac, St. Clair River, and Lake St. Clair.)


22. Lake Erie (including Detroit River and Niagara Falls.)


23. Lake Ontario (including St. Lawrence River.)


Fjord

24. Southern Alaska (Prince of Wales Island to Cook Inlet.)


25. Aleutian Island (Cook Inlet Bristol Bay.)


Sub-Arctic

26. Northern Alaska (Bristol Bay to Damarcation Point.)


Insular

27. Hawaiian Islands.


28. Western Pacific Island.


29. Eastern Pacific Island.



Appendix II to Part 921 – Typology of National Estuarine Research Reserves

This typology system reflects significant differences in estuarine characteristics that are not necessarily related to regional location. The purpose of this type of classification is to maximize ecosystem variety in the selection of national estuarine reserves. Priority will be given to important ecosystem types as yet unrepresented in the reserve system. It should be noted that any one site may represent several ecosystem types or physical characteristics.


Class I – Ecosystem Types

Group I – Shorelands

A. Maritime Forest-Woodland. That have developed under the influence of salt spray. It can be found on coastal uplands or recent features such as barrier islands and beaches, and may be divided into the following biomes:


1. Northern coniferous forest biome: This is an area of predominantly evergreens such as the sitka spruce (Picea), grand fir (Abies), and white cedar (Thuja), with poor development of the shrub and herb leyera, but high annual productivity and pronounced seasonal periodicity.


2. Moist temperate (Mesothermal) coniferous forest biome: Found along the west coast of North America from California to Alaska, this area is dominated by conifers, has relatively small seasonal range, high humidity with rainfall ranging from 30 to 150 inches, and a well-developed understory of vegetation with an abundance of mosses and other moisture-tolerant plants.


3. Temperate deciduous forest biome: This biome is characterized by abundant, evenly distributed rainfall, moderate temperatures which exhibit a distinct seasonal pattern, well-developed soil biota and herb and shrub layers, and numerous plants which produce pulpy fruits and nuts. A distinct subdivision of this biome is the pine edible forest of the southeastern coastal plain, in which only a small portion of the area is occupied by climax vegetation, although it has large areas covered by edaphic climax pines.


4. Broad-leaved evergreen subtropical forest biome: The main characteristic of this biome is high moisture with less pronounced differences between winter and summer. Examples are the hammocks of Florida and the live oak forests of the Gulf and South Atlantic coasts. Floral dominants include pines, magnolias, bays, hollies, wild tamarine, strangler fig, gumbo limbo, and palms.


B. Coast shrublands. This is a transitional area between the coastal grasslands and woodlands and is characterized by woody species with multiple stems and a few centimeters to several meters above the ground developing under the influence of salt spray and occasional sand burial. This includes thickets, scrub, scrub savanna, heathlands, and coastal chaparral. There is a great variety of shrubland vegetation exhibiting regional specificity:


1. Northern areas: Characterized by Hudsonia, various erinaceous species, and thickets of Myricu, prunus, and Rosa.


2. Southeast areas: Floral dominants include Myrica, Baccharis, and Iles.


3. Western areas: Adenostoma, arcotyphylos, and eucalyptus are the dominant floral species.


C. Coastal grasslands. This area, which possesses sand dunes and coastal flats, has low rainfall (10 to 30 inches per year) and large amounts of humus in the soil. Ecological succession is slow, resulting in the presence of a number of seral stages of community development. Dominant vegetation includes mid-grasses (5 to 8 feet tall), such as Spartina, and trees such as willow (Salix sp.), cherry (Prunus sp.), and cottonwood (Pupulus deltoides.) This area is divided into four regions with the following typical strand vegetation:


1. Arctic/Boreal: Elymus;


2. Northeast/West: Ammophla;


3. Southeast Gulf: Uniola; and


4. Mid-Atlantic/Gulf: Spartina patens.


D. Coastal tundra. This ecosystem, which is found along the Arctic and Boreal coasts of North America, is characterized by low temperatures, a short growing season, and some permafrost, producing a low, treeless mat community made up of mosses, lichens, heath, shrubs, grasses, sedges, rushes, and herbaceous and dwarf woody plants. Common species include arctic/alpine plants such as Empetrum nigrum and Betula nana, the lichens Cetraria and Cladonia, and herbaceous plants such as Potentilla tridentata and Rubus chamaemorus. Common species on the coastal beach ridges of the high arctic desert include Bryas intergrifolia and Saxifrage oppositifolia. This area can be divided into two main subdivisions:


1. Low tundra: Characterized by a thick, spongy mat of living and undecayed vegetation, often with water and dotted with ponds when not frozen; and


2. High Tundra: A bare area except for a scanty growth of lichens and grasses, with underlaying ice wedges forming raised polygonal areas.


E. Coastal cliffs. This ecosystem is an important nesting site for many sea and shore birds. It consists of communities of herbaceous, graminoid, or low woody plants (shrubs, heath, etc.) on the top or along rocky faces exposed to salt spray. There is a diversity of plant species including mosses, lichens, liverworts, and “higher” plant representatives.


Group II – Transition Areas

A. Coastal marshes. These are wetland areas dominated by grasses (Poacea), sedges (Cyperaceae), rushes (Juncaceae), cattails (Typhaceae), and other graminoid species and is subject to periodic flooding by either salt or freshwater. This ecosystem may be subdivided into: (a) Tidal, which is periodically flooded by either salt or brackish water; (b) nontidal (freshwater); or (c) tidal freshwater. These are essential habitats for many important estuarine species of fish and invertebrates as well as shorebirds and waterfowl and serve important roles in shore stabilization, flood control, water purification, and nutrient transport and storage.


B. Coastal swamps. These are wet lowland areas that support mosses and shrubs together with large trees such as cypress or gum.


C. Coastal mangroves. This ecosystem experiences regular flooding on either a daily, monthly, or seasonal basis, has low wave action, and is dominated by a variety of salt-tolerant trees, such as the red mangrove (Rhizophora mangle), black mangrove (Avicennia Nitida), and the white mangrove (Laguncularia racemosa.) It is also an important habitat for large populations of fish, invertebrates, and birds. This type of ecosystem can be found from central Florida to extreme south Texas to the islands of the Western Pacific.


D. Intertidal beaches. This ecosystem has a distinct biota of microscopic animals, bacteria, and unicellular algae along with macroscopic crustaceans, mollusks, and worms with a detritus-based nutrient cycle. This area also includes the driftline communities found at high tide levels on the beach. The dominant organisms in this ecosystem include crustaceans such as the mole crab (Emerita), amphipods (Gammeridae), ghost crabs (Ocypode), and bivalve mollusks such as the coquina (Donax) and surf clams (Spisula and Mactra.)


E. Intertidal mud and sand flats. These areas are composed of unconsolidated, high organic content sediments that function as a short-term storage area for nutrients and organic carbons. Macrophytes are nearly absent in this ecosystem, although it may be heavily colonized by benthic diatoms, dinoflaggellates, filamintous blue-green and green algae, and chaemosynthetic purple sulfur bacteria. This system may support a considerable population of gastropods, bivalves, and polychaetes, and may serve as a feeding area for a variety of fish and wading birds. In sand, the dominant fauna include the wedge shell Donax, the scallop Pecten, tellin shells Tellina, the heart urchin Echinocardium, the lug worm Arenicola, sand dollar Dendraster, and the sea pansy Renilla. In mud, faunal dominants adapted to low oxygen levels include the terebellid Amphitrite, the boring clam Playdon, the deep sea scallop Placopecten, the Quahog Mercenaria, the echiurid worm Urechis, the mud snail Nassarius, and the sea cucumber Thyone.


F. Intertidal algal beds. These are hard substrates along the marine edge that are dominated by macroscopic algae, usually thalloid, but also filamentous or unicellular in growth form. This also includes the rocky coast tidepools that fall within the intertidal zone. Dominant fauna of these areas are barnacles, mussels, periwinkles, anemones, and chitons. Three regions are apparent:


1. Northern latitude rocky shores: It is in this region that the community structure is best developed. The dominant algal species include Chondrus at the low tide level, Fucus and Ascophylium at the mid-tidal level, and Laminaria and other kelplike algae just beyond the intertidal, although they can be exposed at extremely low tides or found in very deep tidepools.


2. Southern latitudes: The communities in this region are reduced in comparison to those of the northern latitudes and possesses algae consisting mostly of single-celled or filamentour green, blue-green, and red algae, and small thalloid brown algae.


3. Tropical and subtropical latitudes: The intertidal in this region is very reduced and contains numerous calcareous algae such as Porolithon and Lithothamnion, as well and green algae with calcareous particles such as Halimeda, and numerous other green, red, and brown algae.


Group III – Submerged Bottoms

A. Subtidal hardbottoms. This system is characterized by a consolidated layer of solid rock or large pieces of rock (neither of biotic origin) and is found in association with geomorphological features such as submarine canyons and fjords and is usually covered with assemblages of sponges, sea fans, bivalves, hard corals, tunicates, and other attached organisms. A significant feature of estuaries in many parts of the world is the oyster reef, a type of subtidal hardbottom. Composed of assemblages of organisms (usually bivalves), it is usually found near an estuary’s mouth in a zone of moderate wave action, salt content, and turbidity. If light levels are sufficient, a covering of microscopic and attached macroscopic algae, such as keep, may also be found.


B. Subtidal softbottoms. Major characteristics of this ecosystem are an unconsolidated layer of fine particles of silt, sand, clay, and gravel, high hydrogen sulfide levels, and anaerobic conditions often existing below the surface. Macrophytes are either sparse or absent, although a layer of benthic microalgae may be present if light levels are sufficient. The faunal community is dominated by a diverse population of deposit feeders including polychaetes, bivalves, and burrowing crustaceans.


C. Subtidal plants. This system is found in relatively shallow water (less than 8 to 10 meters) below mean low tide. It is an area of extremely high primary production that provides food and refuge for a diversity of faunal groups, especially juvenile and adult fish, and in some regions, manatees and sea turtles. Along the North Atlantic and Pacific coasts, the seagrass Zostera marina predominates. In the South Atlantic and Gulf coast areas, Thalassia and Diplanthera predominate. The grasses in both areas support a number of epiphytic organisms.


Class II – Physical Characteristics

Group I – Geologic

A. Basin type. Coastal water basins occur in a variety of shapes, sizes, depths, and appearances. The eight basic types discussed below will cover most of the cases:


1. Exposed coast: Solid rock formations or heavy sand deposits characterize exposed ocean shore fronts, which are subject to the full force of ocean storms. The sand beaches are very resilient, although the dunes lying just behind the beaches are fragile and easily damaged. The dunes serve as a sand storage area making them chief stabilizers of the ocean shorefront.


2. Sheltered coast: Sand or coral barriers, built up by natural forces, provide sheltered areas inside a bar or reef where the ecosystem takes on many characteristics of confined waters-abundant marine grasses, shellfish, and juvenile fish. Water movement is reduced, with the consequent effects pollution being more severe in this area than in exposed coastal areas.


3. Bay: Bays are larger confined bodies of water that are open to the sea and receive strong tidal flow. When stratification is pronounced the flushing action is augmented by river discharge. Bays vary in size and in type of shorefront.


4. Embayment: A confined coastal water body with narrow, restricted inlets and with a significant freshwater inflow can be classified as an embayment. These areas have more restricted inlets than bays, are usually smaller and shallower, have low tidal action, and are subject to sedimentation.


5. Tidal river: The lower reach of a coastal river is referred to as a tidal river. The coastal water segment extends from the sea or estuary into which the river discharges to a point as far upstream as there is significant salt content in the water, forming a salt front. A combination of tidal action and freshwater outflow makes tidal rivers well-flushed. The tidal river basin may be a simple channel or a complex of tributaries, small associated embayments, marshfronts, tidal flats, and a variety of others.


6. Lagoon: Lagoons are confined coastal bodies of water with restricted inlets to the sea and without significant freshwater inflow. Water circulation is limited, resulting in a poorly flushed, relatively stagnant body of water. Sedimentation is rapid with a great potential for basin shoaling. Shores are often gently sloping and marshy.


7. Perched coastal wetlands: Unique to Pacific islands, this wetland type found above sea level in volcanic crater remnants forms as a result of poor drainage characteristics of the crater rather than from sedimentation. Floral assemblages exhibit distinct zonation while the faunal constituents may include freshwater, brackish, and/or marine species. Example: Aunu’s Island, American Samoa.


8. Anchialine systems: These small coastal exposures of brackish water form in lava depressions or elevated fossil reefs have only a subsurface connection in the ocean, but show tidal fluctuations. Differing from true estuaries in having no surface continuity with streams or ocean, this system is characterized by a distinct biotic community dominated by benthis algae such as Rhizoclonium, the mineral encrusting Schiuzothrix, and the vascular plant Ruppia maritima. Characteristic fauna which exhibit a high degree of endemicity, include the mollusks Theosoxus neglectus and Tcariosus. Although found throughout the world, the high islands of the Pacific are the only areas within the U.S. where this system can be found.


B. Basin structure. Estuary basins may result from the drowning of a river valley (coastal plains estuary), the drowning of a glacial valley (fjord), the occurrence of an offshore barrier (bar-bounded estuary), some tectonic process (tectonic estuary), or volcanic activity (volcanic estuary).


1. Coastal plains estuary: Where a drowned valley consists mainly of a single channel, the form of the basin is fairly regular forming a simple coastal plains estuary. When a channel is flooded with numerous tributaries an irregular estuary results. Many estuaries of the eastern United States are of this type.


2. Fjord: Estuaries that form in elongated steep headlands that alternate with deep U-shaped valleys resulting from glacial scouring are called fjords. They generally possess rocky floors or very thin veneers of sediment, with deposition generally being restricted to the head where the main river enters. Compared to total fjord volume river discharge is small. But many fjords have restricted tidal ranges at their mouths due to sills, or upreaching sections of the bottom which limit free movement of water, often making river flow large with respect to the tidal prism. The deepest portions are in the upstream reaches, where maximum depths can range from 800m to 1200m while sill depths usually range from 40m to 150m.


3. Bar-bounded estuary: These result from the development of an offshore barrier such as a beach strand, a line of barrier islands, reef formations a line of moraine debris, or the subsiding remnants of a deltaic lobe. The basin is often partially exposed at low tide and is enclosed by a chain of offshore bars of barrier islands broken at intervals by inlets. These bars may be either deposited offshore or may be coastal dunes that have become isolated by recent seal level rises.


4. Tectonic estuary: These are coastal indentures that have formed through tectonic processes such as slippage along a fault line (San Francisco Bay), folding or movement of the earth’s bedrock often with a large inflow of freshwater.


5. Volcanic estuary: These coastal bodies of open water, a result of volcanic processes are depressions or craters that have direct and/or subsurface connections with the ocean and may or may not have surface continuity with streams. These formations are unique to island areas of volcanic orgin.


C. Inlet type. Inlets in various forms are an integral part of the estuarine environment as they regulate to a certain extent, the velocity and magnitude of tidal exchange, the degree of mixing, and volume of discharge to the sea.


1. Unrestricted: An estuary with a wide unrestricted inlet typically has slow currents, no significant turbulence, and receives the full effect of ocean waves and local disturbances which serve to modify the shoreline. These estuaries are partially mixed, as the open mouth permits the incursion of marine waters to considerable distances upstream, depending on the tidal amplitude and stream gradient.


2. Restricted: Restrictions of estuaries can exist in many forms: Bars, barrier islands, spits, sills, and more. Restricted inlets result in decreased circulation, more pronounced longitudinal and vertical salinity gradients, and more rapid sedimentation. However, if the estuary mouth is restricted by depositional features or land closures, the incoming tide may be held back until it suddenly breaks forth into the basin as a tidal wave, or bore. Such currents exert profound effects on the nature of the subtrate, turbidity, and biota of the estuary.


3. Permanent: Permanent inlets are usually opposite the mouths of major rivers and permit river water to flow into the sea.


4. Temporary (Intermittent): Temporary inlets are formed by storms and frequently shift position, depending on tidal flow, the depth of the sea, and sound waters, the frequency of storms, and the amount of littoral transport.


D. Bottom composition. The bottom composition of estuaries attests to the vigorous, rapid, and complex sedimentation processes characteristic of most coastal regions with low relief. Sediments are derived through the hydrologic processes of erosion, transport, and deposition carried on by the sea and the stream.


1. Sand: Near estuary mouths, where the predominating forces of the sea build spits or other depositional features, the shore and substrates of the estuary are sandy. The bottom sediments in this area are usually coarse, with a graduation toward finer particles in the head region and other zones of reduced flow, fine silty sands are deposited. Sand deposition occurs only in wider or deeper regions where velocity is reduced.


2. Mud: At the base level of a stream near its mouth, the bottom is typically composed of loose muds, silts, and organic detritus as a result of erosion and transport from the upper stream reaches and organic decomposition. Just inside the estuary entrance, the bottom contains considerable quantities of sand and mud, which support a rich fauna. Mud flats, commonly built up in estuarine basins, are composed of loose, coarse, and fine mud and sand, often dividing the original channel.


3. Rock: Rocks usually occur in areas where the stream runs rapidly over a steep gradient with its coarse materials being derived from the higher elevations where the stream slope is greater. The larger fragments are usually found in shallow areas near the stream mouth.


4. Oyster shell: Throughout a major portion of the world, the oyster reef is one of the most significant features of estuaries, usually being found near the mouth of the estuary in a zone of moderate wave action, salt content, and turbidity. It is often a major factor in modifying estuarine current systems and sedimentation, and may occur as an elongated island or peninsula oriented across the main current, or may develop parallel to the direction of the current.


Group II – Hydrographic

A. Circulation. Circulation patterns are the result of combined influences of freshwater inflow, tidal action, wind and oceanic forces, and serve many functions: Nutrient transport, plankton dispersal, ecosystem flushing, salinity control, water mixing, and more.


1. Stratified: This is typical of estuaries with a strong freshwater influx and is commonly found in bays formed from “drowned” river valleys, fjords, and other deep basins. There is a net movement of freshwater outward at the top layer and saltwater at the bottom layer, resulting in a net outward transport of surface organisms and net inward transport of bottom organisms.


2. Non-stratified: Estuaries of this type are found where water movement is sluggish and flushing rate is low, although there may be sufficient circulation to provide the basis for a high carrying capacity. This is common to shallow embayments and bays lacking a good supply of freshwater from land drainage.


3. Lagoonal: An estuary of this type is characterized by low rates of water movement resulting from a lack of significant freshwater influx and a lack of strong tidal exchange because of the typically narrow inlet connecting the lagoon to the sea. Circulation whose major driving force is wind, is the major limiting factor in biological productivity within lagoons.


B. Tides. This is the most important ecological factor in an estuary as it affects water exchange and its vertical range determines the extent of tidal flats which may be exposed and submerged with each tidal cycle. Tidal action against the volume of river water discharged into an estuary results in a complex system whose properties vary according to estuary structure as well as the magnitude of river flow and tidal range. Tides are usually described in terms of the cycle and their relative heights. In the United States, tide height is reckoned on the basis of average low tide, which is referred to as datum. The tides, although complex, fall into three main categories:


1. Diurnal: This refers to a daily change in water level that can be observed along the shoreline. There is one high tide and one low tide per day.


2. Semidiurnal: This refers to a twice daily rise and fall in water that can be observed along the shoreline.


3. Wind/Storm tides: This refers to fluctuations in water elevation to wind and storm events, where influence of lunar tides is less.


C. Freshwater. According to nearly all the definitions advanced, it is inherent that all estuaries need freshwater, which is drained from the land and measurably dilutes seawater to create a brackish condition. Freshwater enters an estuary as runoff from the land either from a surface and/or subsurface source.


1. Surface water: This is water flowing over the ground in the form of streams. Local variation in runoff is dependent upon the nature of the soil (porosity and solubility), degree of surface slope, vegetational type and development, local climatic conditions, and volume and intensity of precipitation.


2. Subsurface water: This refers to the precipitation that has been absorbed by the soil and stored below the surface. The distribution of subsurface water depends on local climate, topography, and the porosity and permeability of the underlying soils and rocks. There are two main subtypes of surface water:


a. Vadose water: This is water in the soil above the water table. Its volume with respect to the soil is subject to considerable fluctuation.


b. Groundwater: This is water contained in the rocks below the water table, is usually of more uniform volume than vadose water, and generally follows the topographic relief of the land being high hills and sloping into valleys.


Group III – Chemical

A. Salinity. This reflects a complex mixture of salts, the most abundant being sodium chloride, and is a very critical factor in the distribution and maintenance of many estuarine organisms. Based on salinity, there are two basic estuarine types and eight different salinity zones (expressed in parts per thousand-ppt.)


1. Positive estuary: This is an estuary in which the freshwater influx is sufficient to maintain mixing, resulting in a pattern of increasing salinity toward the estuary mouth. It is characterized by low oxygen concentration in the deeper waters and considerable organic content in bottom sediments.


2. Negative estuary: This is found in particularly arid regions, where estuary evaporation may exceed freshwater inflow, resulting in increased salinity in the upper part of the basin, especially if the estuary mouth is restricted so that tidal flow is inhibited. These are typically very salty (hyperhaline), moderately oxygenated at depth, and possess bottom sediments that are poor in organic content.


3. Salinity zones (expressed in ppt):


a. Hyperhaline – greater than 40 ppt.


b. Euhaline – 40 ppt to 30 ppt.


c. Mixhaline – 30 ppt to 0.5 ppt.


(1) Mixoeuhaline – greater than 30 ppt but less than the adjacent euhaline sea.


(2) Polyhaline – 30 ppt to 18 ppt.


(3) Mesohaline – 18 ppt to 5 ppt.


(4) Oligohaline – 5 ppt to 0.5 ppt.


d. Limnetic: Less than 0.5 ppt.


B. pH Regime: This is indicative of the mineral richness of estuarine waters and falls into three main categories:


1. Acid: Waters with a pH of less than 5.5.


2. Circumneutral: A condition where the pH ranges from 5.5 to 7.4.


3. Alkaline: Waters with a pH greater than 7.4.


PART 922 – NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS


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


Source:60 FR 66877, Dec. 27, 1995, unless otherwise noted.


Editorial Note:Nomenclature changes to part 922 appear at 62 FR 3789, Jan. 27, 1997 and at 62 FR 67724, Dec. 30, 1997.

Subpart A – General

Link to an amendment published at 87 FR 29625, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed until Jan. 24, 2023, at 87 FR 56276, Sept. 14, 2022.

§ 922.1 Applicability of regulations.

Unless noted otherwise, the regulations in subparts A, D, and E of this part apply to all National Marine Sanctuaries and related site-specific regulations set forth in this part. Subparts B and C of this part apply to the sanctuary nomination process and to the designation of future Sanctuaries.


[86 FR 32752, June 23, 2021]


§ 922.2 Mission, goals, and special policies.

(a) In accordance with the standards set forth in title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, also known as the National Marine Sanctuaries Act (Act) the mission of the National Marine Sanctuary program (Program) is to identify, designate and manage areas of the marine environment of special national, and in some cases international, significance due to their conservation, recreational, ecological, historical, research, educational, or aesthetic qualities.


(b) The goals of the Program are to carry out the mission to:


(1) Identify and designate as National Marine Sanctuaries areas of the marine environment which are of special national significance;


(2) Provide authority for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing regulatory authorities;


(3) Support, promote, and coordinate scientific research on, and monitoring of, the resources of these marine areas, especially long-term monitoring and research of these areas;


(4) Enhance public awareness, understanding, appreciation, and wise use of the marine environment;


(5) Facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities;


(6) Develop and implement coordinated plans for the protection and management of these areas with appropriate Federal agencies, State and local governments, Native American tribes and organizations, international organizations, and other public and private interests concerned with the continuing health and resilience of these marine areas;


(7) Create models of, and incentives for, ways to conserve and manage these areas;


(8) Cooperate with global programs encouraging conservation of marine resources; and


(9) Maintain, restore, and enhance living resources by providing places for species that depend upon these marine areas to survive and propagate.


(c) To the extent consistent with the policies set forth in the Act, in carrying out the Program’s mission and goals:


(1) Particular attention will be given to the establishment and management of marine areas as National Marine Sanctuaries for the protection of the area’s natural resource and ecosystem values; particularly for ecologically or economically important or threatened species or species assemblages, and for offshore areas where there are no existing special area protection mechanisms;


(2) The size of a National Marine Sanctuary, while highly dependent on the nature of the site’s resources, will be no larger than necessary to ensure effective management;


(d) Management efforts will be coordinated to the extent practicable with other countries managing marine protected areas;


(e) Program regulations, policies, standards, guidelines, and procedures under the Act concerning the identification, evaluation, registration, and treatment of historical resources shall be consistent, to the extent practicable, with the declared national policy for the protection and preservation of these resources as stated in the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., the Archeological and Historical Preservation Act of 1974, 16 U.S.C. 469 et seq., and the Archeological Resources Protection Act of 1979 (ARPA), 16 U.S.C. 470aa et seq. The same degree of regulatory protection and preservation planning policy extended to historical resources on land shall be extended, to the extent practicable, to historical resources in the marine environment within the boundaries of designated National Marine Sanctuaries. The management of historical resources under the authority of the Act shall be consistent, to the extent practicable, with the Federal archeological program by consulting the Uniform Regulations, ARPA (43 CFR part 7) and other relevant Federal regulations. The Secretary of the Interior’s Standards and Guidelines for Archeology may also be consulted for guidance. These guidelines are available from the Office of Ocean and Coastal Management at (301) 713-3125.


§ 922.3 Definitions.

Act means title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq., also known as the National Marine Sanctuaries Act.


Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration (NOAA), or designee.


Benthic community means the assemblage of organisms, substrate, and structural formations found at or near the bottom that is periodically or permanently covered by water.


Commercial fishing means any activity that results in the sale or trade for intended profit of fish, shellfish, algae, or corals.


Conventional hook and line gear means any fishing apparatus operated aboard a vessel and composed of a single line terminated by a combination of sinkers and hooks or lures and spooled upon a reel that may be hind- or electrically operated, hand-held or mounted. This term does not include bottom longlines.


Cultural resources means any historical or cultural feature, including archaeological sites, historic structures, shipwrecks, and artifacts.


Director means, except where otherwise specified, the Director of the Office of Ocean and Coastal Resource Management, NOAA, or designee.


Exclusive economic zone means the exclusive economic zone as defined in the Magnuson Fishery Conservation and Management Act, 16 U.S. 1801 et seq.


Fish wastes means waste materials resulting from commercial fish processing operations.


Historical resource means any resource possessing historical, cultural, archaeological or paleontological significance, including sites, contextual information, structures, districts, and objects significantly associated with or representative of earlier people, cultures, maritime heritage, and human activities and events. Historical resources include “submerged cultural resources”, and also include “historical properties,” as defined in the National Historic Preservation Act, as amended, and its implementing regulations, as amended.


Indian tribe means any American Indian tribe, band, group, or community recognized as such by the Secretary of the Interior.


Injure means to change adversely, either in the short or long term, a chemical, biological or physical attribute of, or the viability of. This includes, but is not limited to, to cause the loss of or destroy.


Inventory means a list of nominated areas selected by the Director as qualifying for future consideration of designation as a national marine sanctuary.


Lightering means at-sea transfer of petroleum-based products, materials, or other matter from vessel to vessel.


Marine means those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands over which the United States exercises jurisdiction, including the exclusive economic zone, consistent with international law.


Mineral means clay, stone, sand, gravel, metalliferous ore, non-metalliferous ore, or any other solid material or other matter of commercial value.


National historic landmark means a district, site, building, structure or object designated as such by the Secretary of the Interior under the National Historic Landmarks Program (36 CFR part 65).


National Marine Sanctuary means an area of the marine environment of special national significance due to its resource or human-use values, which is designated as such to ensure its conservation and management.


Person means any private individual, partnership, corporation or other entity; or any officer, employee, agent, department, agency or instrumentality of the Federal government, of any State or local unit of government, or of any foreign government.


Regional Fishery Management Council means any fishery council established under section 302 of the Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.


Sanctuary quality means any of those ambient conditions, physical-chemical characteristics and natural processes, the maintenance of which is essential to the ecological health of the Sanctuary, including, but not limited to, water quality, sediment quality and air quality.


Sanctuary resource means any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the Sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources. For Thunder Bay National Marine Sanctuary and Underwater Preserve, Sanctuary resource means an underwater cultural resource as defined at § 922.191. For Mallows Bay-Potomac River National Marine Sanctuary, Sanctuary resource is defined at § 922.201(a). For Wisconsin Shipwreck Coast National Marine Sanctuary, sanctuary resource is defined at § 922.211.


Secretary means the Secretary of the United States Department of Commerce, or designee.


Shunt means to discharge expended drilling cuttings and fluids near the ocean seafloor.


State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, the United States Virgin Islands, Guam, and any other commonwealth, territory, or possession of the United States.


Subsistence use means the customary and traditional use by rural residents of areas near or in the marine environment for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles; and for barter, if for food or non-edible items other than money, if the exchange is of a limited and non-commercial nature.


Take or taking means: (1) For any marine mammal, sea turtle, or seabird listed as either endangered or threatened pursuant to the Endangered Species Act, to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or to attempt to engage in any such conduct; (2) For any other marine mammal, sea turtle, or seabird, to harass, hunt, capture, kill, collect or injure, or to attempt to engage in any such conduct. For the purposes of both (1) and (2) of this definition, this includes, but is not limited to, to collect any dead or injured marine mammal, sea turtle or seabird, or any part thereof; to restrain or detain any marine mammal, sea turtle or seabird, or any part thereof, no matter how temporarily; to tag any sea turtle, marine mammal or seabird; to operate a vessel or aircraft or to do any other act that results in the disturbance or molestation of any marine mammal, sea turtle or seabird.


Tropical fish means fish or minimal sport and food value, usually brightly colored, often used for aquaria purposes and which lives in a direct relationship with live bottom communities.


Vessel means a watercraft of any description capable of being used as a means of transportation in/on the waters of a Sanctuary.


[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 FR 39055, June 22, 2000; 79 FR 33860, June 13, 2014; 84 FR 32601, July 8, 2016; 86 FR 32752, June 23, 2021]


§ 922.4 Effect of National Marine Sanctuary designation.

The designation of a National Marine Sanctuary, and the regulations implementing it, are binding on any person subject to the jurisdiction of the United States. Designation does not constitute any claim to territorial jurisdiction on the part of the United States for designated sites beyond the U.S. territorial sea, and the regulations implementing the designation shall be applied in accordance with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States is a party. No regulation shall apply to a person who is not a citizen, national, or resident alien of the United States, unless in accordance with:


(a) Generally recognized principles of international law;


(b) An agreement between the United States and the foreign state of which the person is a citizen; or


(c) An agreement between the United States and the flag state of the foreign vessel, if the person is a crew member of the vessel.


Subpart B – Sanctuary Nomination Process


Source:79 FR 33860, June 13, 2014, unless otherwise noted.

Link to an amendment published at 87 FR 29629, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

§ 922.10 General.

(a) Nomination process. The sanctuary nomination process (see National Marine Sanctuaries Web site www.sanctuaries.noaa.gov) is the means by which the public can submit areas of the marine and Great Lakes environments for consideration by NOAA as a national marine sanctuary.


(b) National significance criteria. The Director will consider the following in determining if a nominated area is of special national significance:


(1) The area’s natural resources and ecological qualities are of special significance and contribute to: Biological productivity or diversity; maintenance or enhancement of ecosystem structure and function; maintenance of ecologically or commercially important species or species assemblages; maintenance or enhancement of critical habitat, representative biogeographic assemblages, or both; or maintenance or enhancement of connectivity to other ecologically significant resources.


(2) The area contains submerged maritime heritage resources of special historical, cultural, or archaeological significance, that: Individually or collectively are consistent with the criteria of eligibility or listing on the National Register of Historic Places; have met or which would meet the criteria for designation as a National Historic Landmark; or have special or sacred meaning to the indigenous people of the region or nation.


(3) The area supports present and potential economic uses, such as: Tourism; commercial and recreational fishing; subsistence and traditional uses; diving; and other recreational uses that depend on conservation and management of the area’s resources.


(4) The publicly-derived benefits of the area, such as aesthetic value, public recreation, and access to places depend on conservation and management of the area’s resources.


(c) Management considerations. The Director will consider the following in determining the manageability of a nominated area:


(1) The area provides or enhances opportunities for research in marine science, including marine archaeology.


(2) The area provides or enhances opportunities for education, including the understanding and appreciation of the marine and Great Lakes environments.


(3) Adverse impacts from current or future uses and activities threaten the area’s significance, values, qualities, and resources.


(4) A national marine sanctuary would provide unique conservation and management value for this area that also have beneficial values for adjacent areas.


(5) The existing regulatory and management authorities for the area could be supplemented or complemented to meet the conservation and management goals for the area.


(6) There are commitments or possible commitments for partnerships opportunities such as cost sharing, office space or exhibit space, vessel time, or other collaborations to aid conservation or management programs for the area.


(7) There is community-based support for the nomination expressed by a broad range of interests, such as: Individuals or locally-based groups (e.g., friends of group, chamber of commerce); local, tribal, state, or national agencies; elected officials; or topic-based stakeholder groups, at the local, regional or national level (e.g., a local chapter of an environmental organization, a regionally-based fishing group, a national-level recreation or tourism organization, academia or science-based group, or an industry association).


(d) Following evaluation of a nomination against the national significance criteria and management considerations, the Director may place nominated areas in a publicly available inventory for future consideration of designation as a national marine sanctuary.


(e) A determination that a site is eligible for national marine sanctuary designation, by itself shall not subject the site to any regulatory control under the Act. Such controls may only be imposed after designation.


§ 922.11 Selection of nominated areas for national marine sanctuary designation.

(a) The Director may select a nominated area from the inventory for future consideration as a national marine sanctuary.


(b) Selection of a nominated area from the inventory shall begin the formal sanctuary designation process. A notice of intent to prepare a draft environmental impact statement shall be published in the Federal Register and posted on the Office of National Marine Sanctuaries Web site. Any designation process will follow the procedures for designation and implementation set forth in section 304 of the Act.


Subpart C – Designation of National Marine Sanctuaries

Link to an amendment published at 87 FR 29629, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

§ 922.20 Standards and procedures for designation.

In designating a National Marine Sanctuary, the Secretary shall apply the standards and procedures set forth in section 303 and section 304 of the Act.


§ 922.21 [Reserved]

§ 922.22 Development of designation materials.

(a) In designating a National Marine Sanctuary, the Secretary shall prepare the designation materials described in section 304 of the Act.


(b) If a proposed Sanctuary includes waters within the exclusive economic zone, the Secretary shall notify the appropriate Regional Fishery Management Council(s) which shall have one hundred and twenty (120) days from the date of such notification to make recommendations and, if appropriate, prepare draft fishery regulations and to submit them to the Secretary. In preparing its recommendations and draft regulations, the Council(s) shall use as guidance the national standards of section 301(a) of the Magnuson Act (16 U.S.C. 1851) to the extent that they are consistent and compatible with the goals and objectives of the proposed Sanctuary designation. Fishery activities not proposed for regulation under section 304(a)(5) of the Act may be listed in the draft Sanctuary designation document as potentially subject to regulation, without following the procedures specified in section 304(a)(5) of the Act. If the Secretary subsequently determines that regulation of any such fishery activity is necessary, then the procedures specified in section 304(a)(5) of the Act shall be followed.


§ 922.23 [Reserved]

§ 922.24 Congressional documents.

In designating a National Marine Sanctuary, the Secretary shall prepare and submit to Congress those documents described in section 304 of the Act.


§ 922.25 Designation determination and findings.

(a) In designating a National Marine Sanctuary, the Secretary shall prepare a written Designation Determination and Findings which shall include those findings and determinations described in section 303 of the Act.


(b) In addition to those factors set forth in section 303 of the Act, the Secretary, when making a designation determination, shall consider the Program’s fiscal capability to manage the area as a National Marine Sanctuary.


Subpart D – Management Plan Development and Implementation

Link to an amendment published at 87 FR 29629, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

§ 922.30 General.

(a) The Secretary shall implement each management plan, and applicable regulations, including carrying out surveillance and enforcement activities and conducting such research, monitoring, evaluation, and education programs as are necessary and reasonable to carry out the purposes and policies of the Act.


(b) Consistent with Sanctuary management plans, the Secretary shall develop and implement site-specific contingency and emergency-response plans designed to protect Sanctuary resources. The plans shall contain alert procedures and actions to be taken in the event of an emergency such as a shipwreck or an oil spill.


§ 922.31 Promotion and coordination of Sanctuary use.

The Secretary shall take such action as is necessary and reasonable to promote and coordinate the use of National Marine Sanctuaries for research, monitoring, and education purposes. Such action may include consulting with Federal agencies, or other persons to promote use of one or more Sanctuaries for research, monitoring and education, including coordination with the National Estuarine Research Reserve System.


Subpart E – Regulations of General Applicability

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

§ 922.40 Purpose.

The purpose of the regulations in this subpart and in the site-specific subparts in this part is to implement the designations of the National Marine Sanctuaries by regulating activities affecting them, consistent with their respective terms of designation in order to protect, preserve and manage and thereby ensure the health, integrity and continued availability of the conservation, ecological, recreational, research, educational, historical and aesthetic resources and qualities of these areas. Additional purposes of the regulations implementing the designation of the Florida Keys and Hawaiian Islands Humpback Whale National Marine Sanctuaries are found at §§ 922.160 and 922.180, respectively.


[84 FR 32601, July 8, 2019]


§ 922.41 Boundaries.

The boundary for each of the National Marine Sanctuaries is set forth in the site-specific regulations covered by this part.


[84 FR 32601, July 8, 2019]


§ 922.42 Allowed activities.

All activities (e.g., fishing, boating, diving, research, education) may be conducted unless prohibited or otherwise regulated in the site-specific regulations covered by this part, subject to any emergency regulations promulgated under this part, subject to all prohibitions, regulations, restrictions, and conditions validly imposed by any Federal, State, or local authority of competent jurisdiction, including but not limited to, Federal, Tribal, and State fishery management authorities, and subject to the provisions of section 312 of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.). The Assistant Administrator may only directly regulate fishing activities pursuant to the procedure set forth in section 304(a)(5) of the NMSA.


[84 FR 32601, July 8, 2019]


§ 922.43 Prohibited or otherwise regulated activities.

The site-specific regulations applicable to the activities specified therein are set forth in the subparts covered by this part.


[84 FR 32601, July 8, 2019]


§ 922.44 Emergency regulations.

(a) Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all such activities are subject to immediate temporary regulation, including prohibition.


(b) The provisions of this section do not apply to the following national marine sanctuaries with site-specific regulations that establish procedures for issuing emergency regulations:


(1) Cordell Bank National Marine Sanctuary, § 922.112(e).


(2) Florida Keys National Marine Sanctuary, § 922.165.


(3) Hawaiian Islands Humpback Whale National Marine Sanctuary, § 922.185.


(4) Thunder Bay National Marine Sanctuary, § 922.196.


(5) Mallows Bay-Potomac River National Marine Sanctuary, § 922.204.


(6) Wisconsin Shipwreck Coast National Marine Sanctuary, § 922.214.


[86 FR 32752, June 23, 2021]


§ 922.45 Penalties.

(a) Each violation of the NMSA or FKNMSPA, any regulation in this part, or any permit issued pursuant thereto, is subject to a civil penalty of not more than $ 100,000. Each day of a continuing violation constitutes a separate violation.


(b) Regulations setting forth the procedures governing administrative proceedings for assessment of civil penalties, permit sanctions, and denials for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR part 904.


[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997]


§ 922.46 Response costs and damages.

Under section 312 of the Act, any person who destroys, causes the loss of, or injures any Sanctuary resource is liable to the United States for response costs and damages resulting from such destruction, loss or injury, and any vessel used to destroy, cause the loss of, or injure any Sanctuary resource is liable in rem to the United States for response costs and damages resulting from such destruction, loss or injury.


§ 922.47 Pre-existing authorizations or rights and certifications of pre-existing authorizations or rights.

(a) Leases, permits, licenses, or rights of subsistence use or access in existence on the date of designation of any National Marine Sanctuary shall not be terminated by the Director. The Director may, however, regulate the exercise of such leases, permits, licenses, or rights consistent with the purposes for which the Sanctuary was designated.


(b) The prohibitions listed in subparts F through P and R through T of this part do not apply to any activity authorized by a valid lease, permit, license, approval or other authorization in existence on the effective date of Sanctuary designation, or in the case of Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, and issued by any Federal, State or local authority of competent jurisdiction, or by any valid right of subsistence use or access in existence on the effective date of Sanctuary designation, or in the case of Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, provided that the holder of such authorization or right complies with certification procedures and criteria promulgated at the time of Sanctuary designation, or in the case of Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, and with any terms and conditions on the exercise of such authorization or right imposed by the Director as a condition of certification as the Director deems necessary to achieve the purposes for which the Sanctuary was designated.


[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65 FR 39055, June 22, 2000; 84 FR 32601, July 8, 2019; 86 FR 32752, June 23, 2021]


§ 922.48 National Marine Sanctuary permits – application procedures and issuance criteria.

(a) A person may conduct an activity prohibited by subparts F through O and S and T of this part, if conducted in accordance with the scope, purpose, terms and conditions of a permit issued under this section and subparts F through O and S and T, as appropriate. For Florida Keys National Marine Sanctuary, a person may conduct an activity prohibited by subpart P of this part if conducted in accordance with the scope, purpose, terms and conditions of a permit issued under § 922.166. For Thunder Bay National Marine Sanctuary and Underwater Preserve, a person may conduct an activity prohibited by subpart R of this part in accordance with the scope, purpose, terms and conditions of a permit issued under § 922.195.


(b) Applications for permits to conduct activities otherwise prohibited by subparts F through O and S and T of this part, should be addressed to the Director and sent to the address specified in subparts F through O of this part, or subparts R through T of this part, as appropriate. An application must include:


(1) A detailed description of the proposed activity including a timetable for completion;


(2) The equipment, personnel and methodology to be employed;


(3) The qualifications and experience of all personnel;


(4) The potential effects of the activity, if any, on Sanctuary resources and qualities; and


(5) Copies of all other required licenses, permits, approvals or other authorizations.


(c) Upon receipt of an application, the Director may request such additional information from the applicant as he or she deems necessary to act on the application and may seek the views of any persons or entity, within or outside the Federal government, and may hold a public hearing, as deemed appropriate.


(d) The Director, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct a prohibited activity, in accordance with the criteria found in subparts F through O of this part, or subparts R through T of this part, as appropriate. The Director shall further impose, at a minimum, the conditions set forth in the relevant subpart.


(e) A permit granted pursuant to this section is nontransferable.


(f) The Director may amend, suspend, or revoke a permit issued pursuant to this section for good cause. The Director may deny a permit application pursuant to this section, in whole or in part, if it is determined that the permittee or applicant has acted in violation of the terms and conditions of a permit or of the regulations set forth in this section or subparts F through O of this part, or subparts R through T of this part or for other good cause. Any such action shall be communicated in writing to the permittee or applicant by certified mail and shall set forth the reason(s) for the action taken. Procedures governing permit sanctions and denials for enforcement reasons are set forth in subpart D of 15 CFR part 904.


[86 FR 32753, June 23, 2021]


§ 922.49 Notification and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity.

(a) A person may conduct an activity prohibited by subparts L through P of this part, or subparts R through T of this part, if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation, or in the case of Florida Keys National Marine Sanctuary after the effective date of the regulations in subpart P, provided that:


(1) The applicant notifies the Director, in writing, of the application for such authorization (and of any application for an amendment, renewal, or extension of such authorization) within fifteen (15) days of the date of filing of the application or the effective date of Sanctuary designation, or in the case of Florida Keys National Marine Sanctuary the effective date of the regulations in subpart P, whichever is later;


(2) The applicant complies with the other provisions of this section;


(3) The Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization (or amendment, renewal, or extension); and


(4) The applicant complies with any terms and conditions the Director deems reasonably necessary to protect Sanctuary resources and qualities.


(b) Any potential applicant for an authorization described in paragraph (a) of this section may request the Director to issue a finding as to whether the activity for which an application is intended to be made is prohibited by subparts L through P of this part, or subparts R through T of this part, as appropriate.


(c) Notification of filings of applications should be sent to the Director, Office of National Marine Sanctuaries at the address specified in subparts L through P of this part, or subparts R through T of this part, as appropriate. A copy of the application must accompany the notification.


(d) The Director may request additional information from the applicant as he or she deems reasonably necessary to determine whether to object to issuance of an authorization described in paragraph (a) of this section, or what terms and conditions are reasonably necessary to protect Sanctuary resources and qualities. The information requested must be received by the Director within 45 days of the postmark date of the request. The Director may seek the views of any persons on the application.


(e) The Director shall notify, in writing, the agency to which application has been made of his or her pending review of the application and possible objection to issuance. Upon completion of review of the application and information received with respect thereto, the Director shall notify both the agency and applicant, in writing, whether he or she has an objection to issuance and what terms and conditions he or she deems reasonably necessary to protect Sanctuary resources and qualities, and reasons therefor.


(f) The Director may amend the terms and conditions deemed reasonably necessary to protect Sanctuary resources and qualities whenever additional information becomes available justifying such an amendment.


(g) Any time limit prescribed in or established under this section may be extended by the Director for good cause.


(h) The applicant may appeal any objection by, or terms or conditions imposed by the Director to the Assistant Administrator or designee in accordance with the provisions of § 922.50.


[86 FR 32753, June 23, 2021]


§ 922.50 Appeals of administrative action.

(a)(1) Except for permit actions taken for enforcement reasons (see subpart D of 15 CFR part 904 for applicable procedures), an applicant for, or a holder of, a National Marine Sanctuary permit; an applicant for, or a holder of, a Special Use permit issued pursuant to section 310 of the Act; a person requesting certification of an existing lease, permit, license or right of subsistence use or access under § 922.47; or, for those Sanctuaries described in subparts L through P and R through T of this part, an applicant for a lease, permit, license or other authorization issued by any Federal, State, or local authority of competent jurisdiction (hereinafter appellant) may appeal to the Assistant Administrator:


(i) The granting, denial, conditioning, amendment, suspension or revocation by the Director of a National Marine Sanctuary or Special Use permit;


(ii) The conditioning, amendment, suspension or revocation of a certification under § 922.47; or


(iii) For those Sanctuaries described in subparts L through P and subpart R through T, the objection to issuance of or the imposition of terms and conditions on a lease, permit, license or other authorization issued by any Federal, State, or local authority of competent jurisdiction.


(2) For those National Marine Sanctuaries described in subparts F through K and S and T of this part, any interested person may also appeal the same actions described in paragraphs (a)(1)(i) and (ii) of this section. For appeals arising from actions taken with respect to these National Marine Sanctuaries, the term “appellant” includes any such interested persons.


(b) An appeal under paragraph (a) of this section must be in writing, state the action(s) by the Director appealed and the reason(s) for the appeal, and be received within 30 days of receipt of notice of the action by the Director. Appeals should be addressed to the Assistant Administrator for Ocean Services and Coastal Zone Management, NOAA 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910.


(c)(1) The Assistant Administrator may request the appellant to submit such information as the Assistant Administrator deems necessary in order for him or her to decide the appeal. The information requested must be received by the Assistant Administrator within 45 days of the postmark date of the request. The Assistant Administrator may seek the views of any other persons. For Monitor National Marine Sanctuary, if the appellant has requested a hearing, the Assistant Administrator shall grant an informal hearing. For all other National Marine Sanctuaries, the Assistant Administrator may determine whether to hold an informal hearing on the appeal. If the Assistant Administrator determines that an informal hearing should be held, the Assistant Administrator may designate an officer before whom the hearing shall be held.


(2) The hearing officer shall give notice in the Federal Register of the time, place and subject matter of the hearing. The appellant and the Director may appear personally or by counsel at the hearing and submit such material and present such arguments as deemed appropriate by the hearing officer. Within 60 days after the record for the hearing closes, the hearing officer shall recommend a decision in writing to the Assistant Administrator.


(d) The Assistant Administrator shall decide the appeal using the same regulatory criteria as for the initial decision and shall base the appeal decision on the record before the Director and any information submitted regarding the appeal, and, if a hearing has been held, on the record before the hearing officer and the hearing officer’s recommended decision. The Assistant Administrator shall notify the appellant of the final decision and the reason(s) therefore in writing. The Assistant Administrator’s decision shall constitute final agency action for the purpose of the Administrative Procedure Act.


(e) Any time limit prescribed in or established under this section other than the 30-day limit for filing an appeal may be extended by the Assistant Administrator or hearing office for good cause.


[86 FR 32752, June 23, 2021]


Subpart F – Monitor National Marine Sanctuary

§ 922.60 Boundary.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

The Monitor National Marine Sanctuary (Sanctuary) consists of a vertical water column in the Atlantic Ocean one mile in diameter extending from the surface to the seabed, the center of which is at 35°00′23″ north latitude and 75°24′32″ west longitude.


§ 922.61 Prohibited or otherwise regulated activities.

Except as may be permitted by the Director, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:


(a) Anchoring in any manner, stopping, remaining, or drifting without power at any time;


(b) Any type of subsurface salvage or recovery operation;


(c) Diving of any type, whether by an individual or by a submersible;


(d) Lowering below the surface of the water any grappling, suction, conveyor, dredging or wrecking device;


(e) Detonating below the surface of the water any explosive or explosive mechanism;


(f) Drilling or coring the seabed;


(g) Lowering, laying, positioning or raising any type of seabed cable or cable-laying device;


(h) Trawling; or


(i) Discharging waster material into the water in violation of any Federal statute or regulation.


§ 922.62 Permit procedure and criteria.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) Any person or entity may conduct in the Sanctuary any activity listed in § 922.61 if such activity is either:


(1) For the purpose of research related to the Monitor, or


(2) Pertains to salvage or recovery operations in connection with an air or marine casualty and such person or entity is in possession of a valid permit issued by the Director authorizing the conduct of such activity; except that, no permit is required for the conduct of any activity immediately and urgently necessary for the protection of life, property or the environment.


(b) Any person or entity who wishes to conduct in the Sanctuary an activity for which a permit is authorized by this section (hereafter a permitted activity) may apply in writing to the Director for a permit to conduct such activity citing this section as the basis for the application. Such application should be made to: Director, Office of Ocean and Coastal Resource Management; ATTN: Manager, Monitor National Marine Sanctuary, Building 1519, NOAA, Fort Eustis, VA 23604-5544.


(c) In considering whether to grant a permit for the conduct of a permitted activity for the purpose of research related to the Monitor, the Secretary shall evaluate such matters as:


(1) The general professional and financial responsibility of the applicant;


(2) The appropriateness of the research method(s) envisioned to the purpose(s) of the research;


(3) The extent to which the conduct of any permitted activity may diminish the value of the MONITOR as a source of historic, cultural, aesthetic and/or maritime information;


(4) The end value of the research envisioned; and


(5) Such other matters as the Director deems appropriate.


(d) In considering whether to grant a permit for the conduct of a permitted activity in the Sanctuary in relation to an air or marine casualty, the Director shall consider such matters as:


(1) The fitness of the applicant to do the work envisioned;


(2) The necessity of conducting such activity;


(3) The appropriateness of any activity envisioned to the purpose of the entry into the Sanctuary;


(4) The extent to which the conduct of any such activity may diminish the value of the Monitor as a source of historic, cultural, aesthetic and/or maritime information; and


(5) Such other matters as the Director deems appropriate.


(e) In considering any application submitted pursuant to this section, the Director shall seek and consider the views of the Advisory Council on Historic Preservation.


(f) The Director may observe any activity permitted by this section; and/or may require the submission of one or more reports of the status or progress of such activity.


Subpart G – Channel Islands National Marine Sanctuary

§ 922.70 Boundary.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

The Channel Islands National Marine Sanctuary (Sanctuary) consists of an area of approximately 1,110 square nautical miles (nmi) of coastal and ocean waters, and the submerged lands thereunder, off the southern coast of California. The Sanctuary boundary begins at the Mean High Water Line of and extends seaward to a distance of approximately six nmi from the following islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and Castle Rock (the Islands). The seaward boundary coordinates are listed in appendix A to this subpart.


[74 FR 3260, Jan. 16, 2009]


§ 922.71 Definitions.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

In addition to those definitions found at 15 CFR 922.3, the following definitions apply to this subpart:


Cruise ship means a vessel with 250 or more passenger berths for hire.


Graywater means galley, bath, or shower water.


Introduced species means any species (including but not limited to any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.


Motorized personal watercraft means a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull. The length is measured from end to end over the deck excluding sheer, meaning a straight line measurement of the overall length from the foremost part of the vessel to the aftermost part of the vessel, measured parallel to the centerline. Bow sprits, bumpkins, rudders, outboard motor brackets, and similar fittings or attachments, are not included in the measurement. Length is stated in feet and inches.


Oceangoing ship means a private, commercial, government, or military vessel of 300 gross registered tons or more, not including cruise ships.


Pelagic finfish are defined as: Northern anchovy (Engraulis mordax), barracudas (Sphyraena spp.), billfishes (family Istiophoridae), dolphinfish (Coryphaena hippurus), Pacific herring (Clupea pallasi), jack mackerel (Trachurus symmetricus), Pacific mackerel (Scomber japonicus), salmon (Oncorhynchus spp.), Pacific sardine (Sardinops sagax), blue shark (Prionace glauca), salmon shark (Lamna ditropis), shortfin mako shark (Isurus oxyrinchus), thresher sharks (Alopias spp.), swordfish (Xiphias gladius), tunas (family Scombridae), and yellowtail (Seriola lalandi).


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).


[74 FR 3260, Jan. 16, 2009]


§ 922.72 Prohibited or otherwise regulated activities – Sanctuary-wide.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) Except as specified in paragraphs (b) through (e) of this section, the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted:


(1) Exploring for, developing, or producing hydrocarbons within the Sanctuary, except pursuant to leases executed prior to March 30, 1981, and except the laying of pipeline pursuant to exploring for, developing, or producing hydrocarbons.


(2) Exploring for, developing, or producing minerals within the Sanctuary, except producing by-products incidental to hydrocarbon production allowed by paragraph (a)(1) of this section.


(3)(i) Discharging or depositing from within or into the Sanctuary any material or other matter except:


(A) Fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary;


(B) For a vessel less than 300 gross registered tons (GRT), or an oceangoing ship without sufficient holding tank capacity to hold sewage while within the Sanctuary, biodegradable effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1321 et seq. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;


(C) Biodegradable matter from:


(1) Vessel deck wash down;


(2) Vessel engine cooling water;


(3) Graywater from a vessel less than 300 gross registered tons;


(4) Graywater from an oceangoing ship without sufficient holding tank capacity to hold graywater while within the Sanctuary;


(D) Vessel engine or generator exhaust;


(E) Effluent routinely and necessarily discharged or deposited incidental to hydrocarbon exploration, development, or production allowed by paragraph (a)(1) of this section; or


(F) Discharge allowed under section 312(n) of the FWPCA.


(ii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraphs (a)(3)(i)(B) through (F) of this section and fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity beyond the boundary of the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity there.


(4) Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing or placing any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental to and necessary to:


(i) Anchor a vessel;


(ii) Install an authorized navigational aid;


(iii) Conduct lawful fishing activity;


(iv) Lay pipeline pursuant to exploring for, developing, or producing hydrocarbons; or


(v) Explore for, develop, or produce hydrocarbons as allowed by paragraph (a)(1) of this section.


(5) Abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary.


(6) Except to transport persons or supplies to or from any Island, operating within one nmi of any Island any vessel engaged in the trade of carrying cargo, including, but not limited to, tankers and other bulk carriers and barges, any vessel engaged in the trade of servicing offshore installations, or any vessel of three hundred gross registered tons or more, except fishing or kelp harvesting vessels.


(7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of any Island, except to engage in kelp bed surveys or to transport persons or supplies to or from an Island. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.


(8) Moving, removing, injuring, or possessing, or attempting to move, remove, injure, or possess a Sanctuary historical resource.


(9) Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.


(10) Possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird, except as authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.


(11) Marking, defacing, damaging, moving, removing, or tampering with any sign, notice, or placard, whether temporary or permanent, or any monument, stake, post, or other boundary marker related to the Sanctuary.


(12) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity.


(13) Operating a motorized personal watercraft within waters of the Sanctuary that are coextensive with the Channel Islands National Park, established by 16 U.S.C. 410(ff).


(b)(1) The prohibitions in paragraphs (a)(3) through (13) of this section and in § 922.73 do not apply to military activities carried out by DOD as of the effective date of these regulations and specifically identified in section 3.5.9 (Department of Defense Activities) of the Final Channel Islands National Marine Sanctuary Management Plan/Final Environmental Impact Statement (FMP/FEIS), Volume II: Environmental Impact Statement, 2008, authored and published by NOAA (“pre-existing activities”). Copies of the document are available from the Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109. Other military activities carried out by DOD may be exempted by the Director after consultation between the Director and DOD.


(2) A military activity carried out by DOD as of the effective date of these regulations and specifically identified in the section entitled “Department of Defense Activities” of the FMP/FEIS is not considered a pre-existing activity if:


(i) It is modified in such a way that requires the preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act, 42 U.S.C. 4321 et seq., relevant to a Sanctuary resource or quality;


(ii) It is modified, including but not limited to changes in location or frequency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly greater than previously considered for the unmodified activity;


(iii) It is modified, including but not limited to changes in location or frequency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly different in manner than previously considered for the unmodified activity; or


(iv) There are new circumstances or information relevant to a Sanctuary resource or quality that were not addressed in the FMP/FEIS.


(3) In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, including, but not limited to, discharges, deposits, and groundings, caused by a DOD activity, DOD, in coordination with the Director, must promptly prevent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner approved by the Director.


(4) All DOD activities must be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities.


(c) The prohibitions in paragraphs (a)(3) through (10), (a)(12), and (a)(13) of this section and in § 922.73 do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.74.


(d) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section and in § 922.73 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment.


(e) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section and in § 922.73 do not apply to any activity necessary for valid law enforcement purposes in the Sanctuary.


[74 FR 3260, Jan. 16, 2009, as amended at 77 FR 3922, Jan. 26, 2012]


§ 922.73 Additional prohibited or otherwise regulated activities – marine reserves and marine conservation area.

(a) Marine reserves. Unless prohibited by 50 CFR part 660 (Fisheries off West Coast States), the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within a marine reserve described in appendix B to this subpart, except as specified in paragraphs (b) through (e) of § 922.72:


(1) Harvesting, removing, taking, injuring, destroying, collecting, moving, or causing the loss of any Sanctuary resource, or attempting any of these activities.


(2) Possessing fishing gear on board a vessel unless such gear is stowed and not available for immediate use.


(3) Possessing any Sanctuary resource, except legally harvested fish on board a vessel at anchor or in transit.


(b) Marine conservation area. Unless prohibited by 50 CFR part 660 (Fisheries off West Coast States), the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within the marine conservation area described in appendix C to this subpart, except as specified in paragraphs (b) through (e) of § 922.72:


(1) Harvesting, removing, taking, injuring, destroying, collecting, moving, or causing the loss of any Sanctuary resource, or attempting any of these activities, except:


(i) Recreational fishing for pelagic finfish; or


(ii) Commercial and recreational fishing for lobster.


(2) Possessing fishing gear on board a vessel, except legal fishing gear used to fish for lobster or pelagic finfish, unless such gear is stowed and not available for immediate use.


(3) Possessing any Sanctuary resource, except legally harvested fish.


[74 FR 3260, Jan. 16, 2009]


§ 922.74 Permit procedures and issuance criteria.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) A person may conduct an activity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13), and § 922.73, if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under § 922.48 and this section.


(b) The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13), and § 922.73, if the Director finds that the activity:


(1) Is appropriate research designed to further understanding of Sanctuary resources and qualities;


(2) Will further the educational value of the Sanctuary;


(3) Will further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty;


(4) Will assist in managing the Sanctuary; or


(5) Will further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California.


(c) The Director may not issue a permit under § 922.48 and this section unless the Director also finds that:


(1) The proposed activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities;


(2) The applicant is professionally qualified to conduct and complete the proposed activity;


(3) The applicant has adequate financial resources available to conduct and complete the proposed activity;


(4) The duration of the proposed activity is no longer than necessary to achieve its stated purpose;


(5) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;


(6) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects;


(7) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary as a source of recreation and as a source of educational and scientific information, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary and the duration of such effects;


(8) It is necessary to conduct the proposed activity within the Sanctuary;


(9) The reasonably expected end value of the proposed activity furthers Sanctuary goals and purposes and outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and


(10) Any other matters the Director deems appropriate do not make the issuance of a permit for the proposed activity inappropriate.


(d) Applications. (1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Manager, Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109.


(2) In addition to the information listed in § 922.48(b), all applications must include information the Director needs to make the findings in paragraphs (b) and (c) of this section.


(e) In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the permittee agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.


[74 FR 3260, Jan. 16, 2009]


Appendix A to Subpart G of Part 922 – Channel Islands National Marine Sanctuary Boundary Coordinates

[Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.]


Point
Latitude (N)
Longitude (W)
133.94138−119.27422
233.96776−119.25010
334.02607−119.23642
434.07339−119.25686
534.10185−119.29178
634.11523−119.33040
734.11611−119.39120
834.11434−119.40212
934.11712−119.42896
1034.11664−119.44844
1134.13389−119.48081
1234.13825−119.49198
1334.14784−119.51194
1434.15086−119.54670
1534.15450−119.54670
1634.15450−119.59170
1734.15142−119.61254
1834.13411−119.66024
1934.14635−119.69780
2034.15988−119.76688
2134.15906−119.77800
2234.15928−119.79327
2334.16213−119.80347
2434.16962−119.83643
2534.17266−119.85240
2634.17588−119.88903
2734.17682−119.93357
2834.17258−119.95830
2934.13535−120.01964
3034.13698−120.04206
3134.12994−120.08582
3234.12481−120.11104
3334.12519−120.16076
3434.11008−120.21190
3534.11128−120.22707
3634.13632−120.25292
3734.15341−120.28627
3834.16408−120.29310
3934.17704−120.30670
4034.20492−120.30670
4134.20492−120.38830
4234.20707−120.41801
4334.20520−120.42859
4434.19254−120.46041
4534.20540−120.50728
4634.20486−120.53987
4734.18182−120.60041
4834.10208−120.64208
4934.08151−120.63894
5034.05848−120.62862
5134.01940−120.58567
5234.01349−120.57464
5333.98698−120.56582
5433.95039−120.53282
5533.92694−120.46132
5633.92501−120.42170
5733.91403−120.37585
5833.91712−120.32506
5933.90956−120.30857
6033.88976−120.29540
6133.84444−120.25482
6233.83146−120.22927
6333.81763−120.20284
6433.81003−120.18731
6533.79425−120.13422
6633.79379−120.10207
6733.79983−120.06995
6833.81076−120.04351
6933.81450−120.03158
7033.84125−119.96508
7133.84865−119.92316
7233.86993−119.88330
7333.86195−119.88330
7433.86195−119.80000
7533.86110−119.79017
7633.86351−119.77130
7733.85995−119.74390
7833.86233−119.68783
7933.87330−119.65504
8033.88594−119.62617
8133.88688−119.59423
8233.88809−119.58278
8333.89414−119.54861
8433.90064−119.51936
8533.90198−119.51609
8633.90198−119.43311
8733.90584−119.43311
8833.90424−119.42422
8933.90219−119.40730
9033.90131−119.38373
9133.90398−119.36333
9233.90635−119.35345
9333.91304−119.33280
9433.91829−119.32206
9533.48250−119.16874
9633.44235−119.16797
9733.40555−119.14878
9833.39059−119.13283
9933.36804−119.08891
10033.36375−119.06803
10133.36241−119.04812
10233.36320−119.03670
10333.36320−118.90879
10433.47500−118.90879
10533.48414−118.90712
10633.52444−118.91492
10733.53834−118.92271
10833.58616−118.99540
10933.59018−119.02374
11033.58516−119.06745
11133.58011−119.08521
11233.54367−119.14460
11333.51161−119.16367

[72 FR 29233, May 24, 2007]


Appendix B to Subpart G of Part 922 – Marine Reserve Boundaries

[Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.]


B.1. Richardson Rock (San Miguel Island) Marine Reserve

The Richardson Rock Marine Reserve (Richardson Rock) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-1, and the following textual description.


The Richardson Rock boundary extends from Point 1 to Point 2 along a straight line. It then extends from Point 2 to Point 3 along a straight line. The boundary then extends along a straight line from Point 3 to the 3 nmi State boundary established under the Submerged Lands Act (3 nmi State boundary) where a line defined by connecting Point 3 and Point 4 with a straight line intersects the 3 nmi State boundary. The boundary then extends northwestward and then eastward along the 3 nmi State boundary until it intersects the line defined by connecting Point 5 and Point 6 with a straight line. At that intersection, the boundary extends from the 3 nmi SLA boundary to Point 6 along a straight line.


Table B-1 – Richardson Rock (San Miguel Island) Marine Reserve

Point
Latitude
Longitude
134.17333 ° N120.60483 ″ W
234.17333 ° N120.47000 ″ W
334.12900 ° N120.47000 ″ W
434.03685 ° N120.52120 ″ W
534.03685 ° N120.60483 ″ W
634.17333 ° N120.60483 ″ W

B.2. Harris Point (San Miguel Island) Marine Reserve

The Harris Point Marine Reserve (Harris Point) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-2, and the following textual description.


The Harris Point boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary then follows the 3 nmi State boundary northwestward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.


Table B-2 – Harris Point (San Miguel Island) Marine Reserve

Point
Latitude
Longitude
134.20492 ° N120.38830 ″ W
234.20492 ° N120.30670 ″ W
334.10260 ° N120.30670 ″ W
434.15200 ° N120.38830 ″ W
534.20492 ° N120.38830 ″ W

B.3. South Point (Santa Rosa Island) Marine Reserve

The South Point Marine Reserve (South Point) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-3, and the following textual description.


The South Point boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary southeastward until it intersects the line defined by connecting Point 4 and Point 5 along a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.


Table B-3 – South Point (Santa Rosa Island) Marine Reserve

Point
Latitude
Longitude
133.84000 ° N120.10830 ″ W
233.84000 ° N120.16670 ″ W
333.86110 ° N120.16670 ″ W
433.84700 ° N120.10830 ″ W
533.84000 ° N120.10830 ″ W

B.4. Gull Island (Santa Cruz Island) Marine Reserve

The Gull Island Marine Reserve (Gull Island) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-4, and the following textual description.


The Gull Island boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary then follows the 3 nmi State boundary westward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.


Table B-4 – Gull Island (Santa Cruz Island) Marine Reserve

Point
Latitude
Longitude
133.86195 ° N119.80000 ″ W
233.86195 ° N119.88330 ″ W
333.92690 ° N119.88330 ″ W
433.90700 ° N119.80000 ″ W
533.86195 ° N119.80000 ″ W

B.5. Scorpion (Santa Cruz Island) Marine Reserve

The Scorpion Marine Reserve (Scorpion) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-5, and the following textual description.


The Scorpion boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary then follows the 3 nmi State boundary westward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.


Table B-5 – Scorpion (Santa Cruz Island) Marine Reserve

Point
Latitude
Longitude
134.15450 ° N119.59170 ″ W
234.15450 ° N119.54670 ″ W
334.10140 ° N119.54670 ″ W
434.10060 ° N119.59170 ″ W
534.15450 ° N119.59170 ″ W

B.6. Footprint Marine Reserve

The Footprint Marine Reserve (Footprint) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-6, and the following textual description.


The Footprint boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary northeastward and then southeastward until it intersects the line defined by connecting Point 4 and Point 5 along a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.


Table B-6 – Footprint Marine Reserve

Point
Latitude
Longitude
133.90198 ° N119.43311 ″ W
233.90198 ° N119.51609 ″ W
333.96120 ° N119.51609 ″ W
433.95710 ° N119.43311 ″ W
533.90198 ° N119.43311 ″ W

B.7. Anacapa Island Marine Reserve

The Anacapa Island Marine Reserve (Anacapa Island) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-7, and the following textual description.


The Anacapa Island boundary extends from Point 1 to Point 2 along a straight line. It then extends to the 3 nmi State boundary where a line defined by connecting Point 2 and Pont 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary westward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.


Table B-7 – Anacapa Island Marine Reserve

Point
Latitude
Longitude
134.08330 ° N119.41000 ″ W
234.08330 ° N119.35670 ″ W
334.06450 ° N119.35670 ″ W
434.06210 ° N119.41000 ″ W
534.08330 ° N119.41000 ″ W

B.8. Santa Barbara Island Marine Reserve

The Santa Barbara Island Marine Reserve (Santa Barbara) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table B-8, and the following textual description.


The Santa Barbara boundary extends from Point 1 to Point 2 along a straight line. It then extends along a straight line from Point 2 to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary northeastward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line. The boundary then extends from Point 5 to Point 6 along a straight line.


Table B-8 – Santa Barbara Island Marine Reserve

Point
Latitude
Longitude
133.36320 ° N118.90879 ″ W
233.36320 ° N119.03670 ″ W
333.41680 ° N119.03670 ″ W
433.47500 ° N118.97080 ″ W
533.47500 ° N118.90879 ″ W
633.36320 ° N118.90879 ″ W

[72 FR 29233, May 24, 2007]


Appendix C to Subpart G of Part 922 – Marine Conservation Area Boundary

C.1. Anacapa Island Marine Conservation Area

The Anacapa Island Marine Conservation Area (AIMCA) boundary is defined by the 3 nmi State boundary, the coordinates provided in Table C-1, and the following textual description.


The AIMCA boundary extends from Point 1 to Point 2 along a straight line. It then extends to the 3 nmi State boundary where a line defined by connecting Point 2 and Point 3 with a straight line intersects the 3 nmi State boundary. The boundary follows the 3 nmi State boundary westward until it intersects the line defined by connecting Point 4 and Point 5 with a straight line. At that intersection, the boundary extends from the 3 nmi State boundary to Point 5 along a straight line.


Table C-1 – Anacapa Island Marine Conservation Area

Point
Latitude
Longitude
134.08330 ° N119.44500 ″ W
234.08330 ° N119.41000 ″ W
334.06210 ° N119.41000 ″ W
434.06300 ° N119.44500 ″ W
534.08330 ° N119.44500 ″ W

[72 FR 29233, May 24, 2007; 72 FR 42317, Aug. 2, 2007]


Subpart H – Greater Farallones National Marine Sanctuary


Source:80 FR 13108, Mar. 12, 2015, unless otherwise noted.


Editorial Note:Nomenclature changes to subpart H appear at 80 FR 34048, June 15, 2015.

§ 922.80 Boundary.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) Greater Farallones National Marine Sanctuary (Sanctuary) encompasses an area of approximately 2,488 square nautical miles (3,295 square miles) of coastal and ocean waters, and submerged lands thereunder, surrounding the Farallon Islands and Noonday Rock along the northern coast of California. The precise boundary coordinates are listed in appendix A to this subpart.


(b) The western boundary of the Sanctuary extends south from Point 1 approximately 45 nautical miles (52 miles) to Point 2, which is the northwestern corner of Cordell Bank National Marine Sanctuary (CBNMS). The Sanctuary boundary then extends from Point 2 approximately 38 nautical miles (43 miles) east along the northern boundary of CBNMS to Point 3, which is approximately 6 nautical miles (7 miles) west of Bodega Head. From Point 3 the Sanctuary boundary continues south and west to Points 4 through 19 (in numerical sequence) and is coterminous with the eastern boundary of CBNMS. From Point 19 the Sanctuary boundary continues south and east to Points 20 through 25 (in numerical sequence) until it intersects the boundary for Monterey Bay National Marine Sanctuary (MBNMS) at Point 26. From Point 26 the Sanctuary boundary extends eastward and northward, coterminous with MBNMS, to Points 27 through 33 (in numerical sequence). From Point 33 the boundary proceeds along a straight line arc towards Point 34 until it intersects the Mean High Water Line at Rocky Point, California. From this intersection the Sanctuary boundary follows the Mean High Water Line northward until it intersects the boundary for Point Reyes National Seashore approximately 0.7 nautical miles (0.8 miles) south and east of Bolinas Point in Marin County, California. The Sanctuary boundary then approximates the boundary for Point Reyes National Seashore, as established at the time of designation of the Sanctuary, to the intersection of the Point Reyes National Seashore boundary and the Mean High Water Line approximately 0.13 nautical miles (0.15 miles) south and east of Duck Cove in Tomales Bay. The Sanctuary boundary then follows the Mean High Water Line along Tomales Bay and up Lagunitas Creek to the U.S. Highway 1 Bridge. Here the Sanctuary boundary crosses Lagunitas Creek and follows the Mean High Water Line north to the Estero de San Antonio and up the Estero to the tide gate at Valley Ford-Franklin School Road. Here the Sanctuary boundary crosses the Estero de San Antonio and proceeds west and north following the Mean High Water Line to the Estero Americano and up the Estero to the bridge at Valley Ford-Estero Road. Here the Sanctuary boundary crosses the Estero Americano and proceeds west and north following the Mean High Water Line towards Salmon Creek. Approaching Salmon Creek the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 35 and 36. From that intersection the boundary extends across the creek along the straight line arc towards Point 36 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Russian River. Approaching the Russian River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 37 and Point 38. At that intersection the boundary extends across the river along the straight line arc towards Point 38 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Gualala River. Approaching the Gualala River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 39 and Point 40. At that intersection the boundary extends across the river along the straight line arc towards Point 40 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north to Arena Cove in Mendocino County. Approaching Arena Cove the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 41 and Point 42. At that intersection the boundary extends across the cove along the straight line arc towards Point 42 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line north towards the Garcia River. Approaching the Garcia River the boundary continues along the Mean High Water Line until it intersects a straight line arc that passes through Points 43 and Point 44. At that intersection the boundary extends across the river along the straight line arc towards Point 44 until it intersects the Mean High Water Line. The Sanctuary boundary then continues north following the Mean High Water Line until it intersects the rhumb line connecting Point 45 and Point 46. From this intersection the Sanctuary boundary continues west along its northernmost extent to Point 46. The Sanctuary includes Bolinas Lagoon, Estero de San Antonio (to the tide gate at Valley Ford-Franklin School Road) and Estero Americano (to the bridge at Valley Ford-Estero Road), as well as Bodega Bay, but does not include Bodega Harbor, the Salmon Creek Estuary, the Russian River Estuary, the Gualala River Estuary, Arena Cove, or the Garcia River Estuary. Unless otherwise specified, where the Sanctuary boundary crosses a waterway, the Sanctuary excludes this waterway upstream of the crossing.


§ 922.81 Definitions.

Link to an amendment published at 87 FR 29632, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

In addition to those definitions found at § 922.3, the following definitions apply to this subpart:


Attract or attracting means the conduct of any activity that lures or may lure any animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers).


Clean means not containing detectable levels of harmful matter.


Cruise ship means a vessel with 250 or more passenger berths for hire.


Deserting means leaving a vessel aground or adrift without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification, after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts, or when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel’s condition being reported to authorities; or 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.


Harmful matter means any substance, or combination of substances, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4.


Introduced species means any species (including, but not limited to, any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.


Motorized personal watercraft means a vessel which uses an inboard motor powering a water jet pump as its primary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing inside the vessel.


Routine maintenance means customary and standard procedures for maintaining docks or piers.


Seagrass means any species of marine angiosperms (flowering plants) that inhabit portions of the submerged lands in the Sanctuary. Those species include, but are not limited to: Zostera asiatica and Zostera marina.


Special Wildlife Protection Zones are areas surrounding or adjacent to high abundance of white sharks, breeding pinnipeds (seals and sea lions) or high abundance and high biological diversity of breeding birds that are susceptible to human caused disturbance, including federally listed and specially protected species. Coordinates for Special Wildlife Protection Zones are found in appendix C of this Subpart.


§ 922.82 Prohibited or otherwise regulated activities.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:


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


(2) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:


(i) Fish, fish parts, chumming materials or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary;


(ii) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) that is approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;


(iii) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;


(iv) For a vessel less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;


(v) Vessel engine or generator exhaust; or


(vi) For a United States Coast Guard vessel without sufficient holding tank capacity and without a Type I or II marine sanitation device, and operating within the designated area [2015 expansion area] defined in appendix G of this subpart, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to vessel use, and ammunition, pyrotechnics or other materials directly related to search and rescue and live ammunition training activities conducted by United States Coast Guard vessels and aircraft in the designated areas defined in appendix G of this subpart.


(3) Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator exhaust, clean bilge water, or anchor wash.


(4) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except for the material or other matter excepted in paragraphs (a)(2)(i) through (vi) and (a)(3) of this section.


(5) Constructing any structure other than a navigation aid on or in the submerged lands of the Sanctuary; placing or abandoning any structure on or in the submerged lands of the Sanctuary; or drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary in any way, except:


(i) By anchoring vessels (in a manner not otherwise prohibited by this part (see paragraph (a)(16) of this section);


(ii) While conducting lawful fishing activities;


(iii) Routine maintenance and construction of docks and piers on Tomales Bay; or


(iv) Aquaculture activities conducted pursuant to a valid lease, permit, license or other authorization issued by the State of California.


(6) Operating motorized personal watercraft (MPWC) anywhere in Bodega Bay and anywhere in the Sanctuary south of 38.29800 degrees North Latitude (the southernmost tip of Bodega Head), except for emergency search and rescue missions or law enforcement operations (other than routine training activities) carried out by the National Park Service, U.S. Coast Guard, Fire or Police Departments or other Federal, State or local jurisdictions.


(7) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act (ESA), as amended, 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.


(8) Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle, or bird taken, except as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.


(9) Possessing, moving, removing, or injuring, or attempting to possess, move, remove or injure, a Sanctuary historical resource.


(10) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except:


(i) Striped bass (Morone saxatilis) released during catch and release fishing activity; or


(ii) Species cultivated by commercial shellfish aquaculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization issued by the State of California. Tomales Bay is defined in § 922.80. The coordinates for the northern terminus of Tomales Bay are listed in appendix C to this subpart.


(11) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within any of the seven designated Special Wildlife Protection Zones described in appendix D to this subpart, except transiting Zone 6 to transport persons or supplies to or from Southeast Farallon Island authorized by the U.S. Fish and Wildlife Service, Farallon National Wildlife Refuge, or for enforcement purposes. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.


(12) Operating any vessel engaged in the trade of carrying cargo within any area designated Special Wildlife Protection Zone or within one nautical mile from these zones. The coordinates are listed in appendix E to this subpart. This includes but is not limited to tankers and other bulk carriers and barges, or any vessel engaged in the trade of servicing offshore installations, except to transport persons or supplies to or from the Farallon Islands. In no event shall this section be construed to limit access for fishing, recreational or research vessels.


(13) Attracting a white shark anywhere in the Sanctuary; or approaching within 50 meters of any white shark within Special Wildlife Protection Zone 6 and 7 or within one nautical mile from these zones The coordinates are listed in appendix F to this subpart.


(14) Deserting a vessel aground, at anchor, or adrift in the Sanctuary.


(15) Leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary.


(16) Anchoring a vessel in a designated seagrass protection zone in Tomales Bay, except as necessary for aquaculture operations conducted pursuant to a valid lease, permit or license. The coordinates for the no-anchoring seagrass protection zones are listed in Appendix B to this subpart.


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


(b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this section. The exemption of additional activities shall be determined in consultation between the Director and the Department of Defense.


(c) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to an emergency threatening life, property, or the environment.


(d) The prohibitions in paragraphs (a)(2) through (9) and (a)(11) through (16) of this section do not apply to any activity executed in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to §§ 922.48 and 922.83 or a Special Use permit issued pursuant to section 310 of the Act.


[80 FR 13108, Mar. 12, 2015, as amended at 83 FR 55966, Nov. 9, 2018]


§ 922.83 Permit procedures and issuance criteria.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) A person may conduct an activity prohibited by § 922.82(a)(2) through (9) and (a)(11) through (16) if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued under § 922.48 and this section.


(b) The Director, at his or her discretion, may issue a National Marine Sanctuary permit under this section, subject to terms and conditions as he or she deems appropriate, if the Director finds that the activity will:


(1) Further research or monitoring related to Sanctuary resources and qualities;


(2) Further the educational value of the Sanctuary;


(3) Further salvage or recovery operations; or


(4) Assist in managing the Sanctuary.


(c) In deciding whether to issue a permit, the Director shall consider factors such as:


(1) The applicant is qualified to conduct and complete the proposed activity;


(2) The applicant has adequate financial resources available to conduct and complete the proposed activity;


(3) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;


(4) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary or cumulative effects of the activity, and the duration of such effects;


(5) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;


(6) It is necessary to conduct the proposed activity within the Sanctuary;


(7) The reasonably expected end value of the proposed activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and


(8) Any other factors as the Director deems appropriate.


(d) Applications. (1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Greater Farallones National Marine Sanctuary, 991 Marine Dr., The Presidio, San Francisco, CA 94129.


(2) In addition to the information listed in § 922.48(b), all applications must include information to be considered by the Director in paragraph (b) and (c) of this section.


(e) The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.


§ 922.84 Certification of preexisting leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity.

(a) A person may conduct an activity prohibited by § 922.82(a)(1) through (17) if such activity is specifically authorized by a valid Federal, State, or local lease, permit, license, approval, or other authorization in existence prior to the effective date of sanctuary expansion and within the sanctuary expansion area and complies with § 922.47 and provided that the holder of the lease, permit, license, approval, or other authorization complies with the requirements of paragraph (e) of this section.


(b) In considering whether to make the certifications called for in this section, the Director may seek and consider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate.


(c) The Director may amend, suspend, or revoke any certification made under this section whenever continued operation would otherwise be inconsistent with any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit, license, or other authorization and the issuing agency and shall set forth reason(s) for the action taken.


(d) Requests for findings or certifications should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, Greater Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129. A copy of the lease, permit, license, approval, or other authorization must accompany the request.


(e) For an activity described in paragraph (a) of this section, the holder of the authorization or right may conduct the activity prohibited by § 922.82 (a)(1) through (17) provided that:


(1) The holder of such authorization or right notifies the Director, in writing, within 90 days of the effective date of Sanctuary designation, of the existence of such authorization or right and requests certification of such authorization or right;


(2) The holder complies with the other provisions of this section; and


(3) The holder complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director, to achieve the purposes for which the Sanctuary was designated.


(f) The holder of an authorization or right described in paragraph (a) of this section authorizing an activity prohibited by § 922.82 may conduct the activity without being in violation of applicable provisions of § 922.82, pending final agency action on his or her certification request, provided the holder is otherwise in compliance with this section.


(g) The Director may request additional information from the certification requester as he or she deems reasonably necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The Director must receive the information requested within 45 days of the postmark date of the request. The Director may seek the views of any persons on the certification request.


(h) The Director may amend any certification made under this section whenever additional information becomes available that he determines justifies such an amendment.


(i) Upon completion of review of the authorization or right and information received with respect thereto, the Director shall communicate, in writing, any decision on a certification request or any action taken with respect to any certification made under this section, in writing, to both the holder of the certified lease, permit, license, approval, other authorization, or right, and the issuing agency, and shall set forth the reason(s) for the decision or action taken.


(j) The holder may appeal any action conditioning, amending, suspending, or revoking any certification in accordance with the procedures set forth in § 922.50.


(k) Any time limit prescribed in or established under this section may be extended by the Director for good cause.


§ 922.85 Review of State permits and leases for certain aquaculture projects.

NOAA has described in a Memorandum of Agreement (MOA) with the State of California how the State will consult and coordinate with NOAA to review any new, amended or expanded lease or permit application for aquaculture projects in Tomales Bay involving introduced species.


Appendix A to Subpart H of Part 922 – Greater Farallones National Marine Sanctuary Boundary Coordinates

Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.


Point ID No.
Latitude
Longitude
139.00000−124.33350
238.29989−123.99988
338.29989−123.20005
438.26390−123.18138
538.21001−123.11913
638.16576−123.09207
738.14072−123.08237
838.12829−123.08742
938.10215−123.09804
1038.09069−123.10387
1138.07898−123.10924
1238.06505−123.11711
1338.05202−123.12827
1437.99227−123.14137
1537.98947−123.23615
1637.95880−123.32312
1737.90464−123.38958
1837.83480−123.42579
1937.76687−123.42694
2037.75932−123.42686
2137.68892−123.39274
2237.63356−123.32819
2337.60123−123.24292
2437.59165−123.22641
2537.56305−123.19859
2637.52001−123.12879
2737.50819−123.09617
2837.49418−123.00770
2937.50948−122.90614
3037.52988−122.85988
3137.57147−122.80399
3237.61622−122.76937
3337.66641−122.75105
34 *37.88225−122.62753
35 *38.35045−123.06711
36 *38.35665−123.06724
37 *38.44575−123.12602
38 *38.45531−123.13469
39 *38.76231−123.52957
40 *38.76941−123.53541
41 *38.91136−123.71061
42 *38.91766−123.72568
43 *38.95404−123.73405
44 *38.95944−123.71820
45 *39.00000−123.69710
4639.00000−124.33350

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the sanctuary boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


Appendix B to Subpart H of Part 922 – No-Anchoring Seagrass Protection Zones in Tomales Bay

Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.


(1) No-Anchoring Seagrass Protection Zone 1 encompasses an area of approximately .11 square nautical miles (.15 square miles) offshore south of Millerton Point. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a straight line arc that connects points 1 and 2 listed in the coordinate table below. The southern boundary is a straight line arc that connects points 2 and 3, the western boundary is a straight line arc that connects points 3 and 4 and the northern boundary is a straight line arc that connects point 4 to point 5.


Zone 1 Point

ID No.
Latitude
Longitude
138.10571−122.84565
238.09888−122.83603
338.09878−122.84431
438.10514−122.84904
538.10571−122.84565

(2) No-Anchoring Seagrass Protection Zone 2 encompasses an area of approximately .15 square nautical miles (.19 square miles) that begins just south of Marconi and extends approximately 1.6 nautical miles (1.9 miles) south along the eastern shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 5 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 5 towards point 6 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line north until it intersects the straight line arc that connects point 7 to point 8. From this intersection the northern boundary extends to point 8.


Zone 2 Point

ID No.
Latitude
Longitude
138.13326−122.87178
238.12724−122.86488
338.12563−122.86480
438.11899−122.86731
538.11386−122.85851
6 *38.11608−122.85813
7 *38.14078−122.87433
838.13326−122.87178

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(3) No-Anchoring Seagrass Protection Zone 3 encompasses an area of approximately .01 square nautical miles (.02 square miles) that begins just south of Marshall and extends approximately .5 nautical miles (.6 miles) south along the eastern shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The western boundary is a straight line arc that connects point 1 to point 2 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 2 towards point 3 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 4 to point 5. From this intersection the northern boundary extends westward along the straight line arc that connects point 4 to point 5.


Zone 3 Point

ID No.
Latitude
Longitude
138.15956−122.89573
238.15250−122.89042
3 *38.15292−122.88984
4 *38.16031−122.89442
538.15956−122.89573

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(4) No-Anchoring Seagrass Protection Zone 4 is an area of approximately .18 square nautical miles (.21 square miles) that begins just north of Nicks Cove and extends approximately 2.7 nautical miles (3.1 miles) south along the eastern shore of Tomales Bay to just south of Cypress Grove. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 8 listed in the coordinate table below. The southern boundary is a straight line arc that extends from point 8 towards point 9 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line north until it intersects the straight line arc that connects point 10 to point 11. From this intersection the northern boundary extends westward along the straight line arc that connects point 10 to point 11.


Zone 4 Point

ID No.
Latitude
Longitude
138.20004−122.92315
238.18881−122.91740
338.18651−122.91404
438.17919−122.91021
538.17450−122.90545
638.16869−122.90475
738.16535−122.90308
838.16227−122.89650
9 *38.16266−122.89620
10 *38.20080−122.92174
1138.20004−122.92315

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(5) No-Anchoring Seagrass Protection Zone 5 encompasses an area of approximately 1.3 square nautical miles (1.6 square miles) that begins east of Lawson’s Landing and extends approximately 2.7 nautical miles (3.1 miles) east and south along the eastern shore of Tomales Bay but excludes areas adjacent (approximately .32 nautical miles or .37 miles) to the mouth of Walker Creek. The precise boundary coordinates are listed in the table following this description. The western boundary is a series of straight line arcs that sequentially connect point 1 to point 3 listed in the coordinate table below. From point 3 the southern boundary trends eastward along the straight line arc that connects point 3 to point 4 until it intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 5 to point 6. From this intersection the boundary extends westward along the straight line arc that connects point 5 to point 6. From point 6 the boundary follows the straight line arc that connects point 6 to point 7, and then extends along the straight line arc that connects point 7 to point 8 until it again intersects the Mean High Water Line. From this intersection the boundary follows the Mean High Water Line until it intersects the straight line arc that connects point 9 to point 10. From this intersection the boundary extends to point 10 along the straight line arc that connects point 9 to point 10.


Zone 5 Point

ID No.
Latitude
Longitude
138.21825−122.96041
238.20666−122.94397
338.19431−122.93431
4 *38.20080−122.92174
5 *38.20522−122.92446
638.20366−122.93246
738.20938−122.94153
8 *38.21599−122.93742
9 *38.23129−122.96293
1038.21825−122.96041

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(6) No-Anchoring Seagrass Protection Zone 6 encompasses an area of approximately .01 square nautical miles (.02 square miles) in the vicinity of Indian Beach along the western shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a straight line arc that connects point 1 to point 2 listed in the coordinate table below. The southern boundary extends westward along the straight line arc that connects point 2 to point 3 until it intersects the Mean High Water Line. From this intersection the eastern boundary follows the Mean High Water Line northward until it intersects the straight line arc that connects point 3 to point 4. From this intersection the northern boundary extends eastward along the straight line arc that connects point 4 to point 5.


Zone 6 Point

ID No.
Latitude
Longitude
138.14103−122.89537
238.13919−122.89391
3 *38.13804−122.89610
4 *38.14033−122.89683
538.14103−122.89537

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(7) No-Anchoring Seagrass Protection Zone 7 encompasses an area of approximately .09 square nautical miles (.12 square miles) that begins just south of Pebble Beach and extends approximately 1.6 nautical miles (1.9 miles) south along the western shore of Tomales Bay. The precise boundary coordinates are listed in the table following this description. The eastern boundary is a series of straight line arcs that sequentially connect point 1 to point 5 listed in the coordinate table below. The southern boundary extends along the straight line arc that connects point 5 to point 6 until it intersects the Mean High Water Line. From this intersection the western boundary extends north along the Mean High Water Line until it intersects the straight line arc that connects point 7 to point 8. From this intersection the northern boundary extends eastward along the straight line arc that connects point 7 to point 8.


Zone 7 Point

ID No.
Latitude
Longitude
138.13067−122.88620
238.12362−122.87984
338.11916−122.87491
438.11486−122.86896
538.11096−122.86468
6 *38.11027−122.86551
7 *38.13001−122.88749
838.13067−122.88620

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


Appendix C to Subpart H of Part 922 – Northern Extent of Tomales Bay

For the purpose of § 922.82(a)(10)(ii), NOAA is codifying the northern geographical extent of Tomales Bay via a line running from Avalis Beach (Point 1) east to Sand Point (Point 2). Coordinates listed in this Appendix are unprojected (geographic) and based on the North American Datum of 1983.


Point

ID No. Tomales Bay

Boundary
Latitude
Longitude
138.23165−122.98148
238.23165−122.96955

Appendix D to Subpart H of Part 922 – Special Wildlife Protection Zones Within the Sanctuary

Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.


(1) Special Wildlife Protection Zone 1 (SWPZ 1) encompasses an area of approximately 7.9 square nautical miles (10.5 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 1 extends south from Point 1, west of Haven’s Neck in Mendocino County, to Point 2, west of Del Mar Point. The boundary then extends east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the Mean High Water Line at Del Mar Point. The SWPZ 1 boundary then turns north to follow the Mean High Water Line towards Haven’s Neck and continues until it intersects a straight line arc connecting Point 4 and Point 5. From this intersection the Sanctuary boundary continues west along its northernmost extent to Point 5.


Zone 1 Point

ID No.
Latitude
Longitude
138.80865−123.63227
238.74096−123.54306
3 *38.74096−123.51051
4 *38.80865−123.60195
538.80865−123.63227

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(2) Special Wildlife Protection Zone 2 (SWPZ 2) encompasses an area of approximately 16.2 square nautical miles (21.4 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 2 extends south and east from Point 1, south of Windermere Point in Sonoma County, to Point 2 and then to Point 3 in sequence. Point 3 is west of Duncans Point in Sonoma County. The boundary then extends east from Point 3 along a straight line arc connecting Point 3 and Point 4 until it intersects the Mean High Water Line at Duncans Point. The boundary then turns north to follow the Mean High Water Line towards Windermere Point until it intersects a straight line arc connecting Point 5 and Point 6. From this intersection the boundary continues due south along a straight line arc to Point 6.


Zone 2 Point

ID No.
Latitude
Longitude
138.49854−123.26804
238.45095−123.18564
338.39311−123.12068
4 *38.39311−123.09527
5 *38.52487−123.26804
638.49854−123.26804

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(3) Special Wildlife Protection Zone 3 (SWPZ 3) encompasses an area of approximately 7 square nautical miles (9.3 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 3 extends south and east from Point 1, southwest of the Estero de San Antonio in Sonoma County, to Point 2, south of Tomales Point in Marin County. The boundary then extends north and east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the boundary of the Point Reyes National Seashore. From this intersection the SWPZ 3 boundary follows the Point Reyes National Seashore boundary around Tomales Point into Tomales Bay and continues until it again intersects the straight line arc that connects Point 2 and Point 3. From this intersection the SWPZ 3 boundary follows the straight line arc north and east toward Point 3 until it intersects the Mean High Water Line at Toms Point in Tomales Bay. The SWPZ 3 boundary then follows the Mean High Water Line northward towards the Estero de San Antonio until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the Sanctuary boundary continues south and west to Point 5.


Zone 3 Point

ID No.
Latitude
Longitude
138.24001−123.02963
238.19249−122.99523
3 *38.21544−122.95286
4 *38.27011−122.97840
538.24001−123.02963

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(4) Special Wildlife Protection Zone 4 (SWPZ 4) encompasses an area of approximately 10.2 square nautical miles (13.5 square miles). The precise boundary coordinates are list in the table following this description. The western boundary of SWPZ 4 extends south and west from Point 1, west of Point Reyes in Marin County, to Point 2, south and west of Point Reyes Lighthouse. The boundary then follows a straight line arc east and south from Point 2 to Point 3. From Point 3 the boundary follows a straight line arc north to Point 4. From Point 4 the SWPZ 4 boundary proceeds west along the straight line arc that connects Point 4 and Point 5 until it intersects the Point Reyes National Seashore boundary north of Chimney Rock. The SWPZ 4 boundary then follows the Point Reyes National Seashore boundary around Point Reyes until it again intersects the straight line arc that connects Point 4 and Point 5 north of the Point Reyes Lighthouse. From this intersection the SWPZ 4 boundary turns seaward and continues west to Point 5.


Zone 4 Point

ID No.
Latitude
Longitude
138.01475−123.05013
237.97536−123.05482
337.96521−122.93771
438.00555−122.93504
538.01475−123.05013

(5) Special Wildlife Protection Zone 5 (SWPZ 5) encompasses an area of approximately 14.8 square nautical miles (19.6 square miles). The precise boundary coordinates are listed in the table following this description. The western boundary of SWPZ 5 extends south and east from Point 1, near Millers Point in Marin County, to Point 2, which is south and west of Bolinas Point. The SWPZ 5 boundary then follows a straight line arc east from Point 2 towards Point 3 until it intersects the Mean High Water Line at Rocky Point. From this intersection, the SWPZ 5 boundary follows the Sanctuary boundary north to Bolinas Point and Millers Point, respectively, including Bolinas Lagoon but not including Seadrift Lagoon, until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the SWPZ 5 boundary turns seaward and continues west and south along the straight line arc to Point 5.


Zone 5 Point

ID No.
Latitude
Longitude
137.96579−122.83284
237.88195−122.73989
3 *37.88195−122.62873
4 *37.98234−122.81513
537.96579−122.83284

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(6) Special Wildlife Protection Zone 6 (SWPZ 6) encompasses an area of approximately 6.8 square nautical miles (9 square miles) and extends from the Mean High Water Line seaward to the SWPZ 6 boundary. The precise boundary coordinates are listed in the table following this description. The boundary of SWPZ 6 extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.


Zone 6 Point

ID No.
Latitude
Longitude
137.72976−123.00961
237.69697−123.04374
337.66944−123.00176
437.70246−122.96608
537.72976−123.00961

(7) Special Wildlife Protection Zone 7 (SWPZ 7) encompasses an area of approximately 6 square nautical miles (7.9 square miles) and extends from the Mean High Water Line seaward to the SWPZ 7 boundary. The precise boundary coordinates are listed in the table following this description. The boundary of SWPZ 7 extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.


Zone 7 Point

ID No.
Latitude
Longitude
137.79568−123.10845
237.76746−123.13869
337.73947−123.09341
437.76687−123.06330
537.79568−123.10845

Appendix E to Subpart H of Part 922 – Cargo Vessel Prohibition Zones in the Sanctuary

Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.


(1) Cargo Vessel Prohibition Zone 1 (CVPZ 1) is an area of approximately 20 square nautical miles (26 square miles) immediately offshore of Anchor Bay. The precise boundary coordinates are listed in the table following this description. The western boundary of extends south and east from Point 1, north and west of Haven’s Neck, to Point 2, west and south of Del Mar Point. The CVPZ 1 boundary then extends east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the Sanctuary boundary. The CVPZ 1 boundary then turns north to follow the Sanctuary boundary past Haven’s Neck and continues until it intersects the straight line arc connecting Point 4 and Point 5. From this intersection the CVPZ 1 boundary continues west along its northernmost extent to Point 5.


Zone 1 Point

ID No.
Latitude
Longitude
138.82485−123.68420
238.72330−123.55145
3 *38.72330−123.47658
4 *38.82485−123.60953
538.82485−123.68420

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(2) Cargo Vessel Prohibition Zone 2 (CVPZ 2) encompasses an area of approximately 30 square nautical miles (40 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 2 boundary extends south and east from Point 1, west of Windermere Point in Sonoma County, to Point 2 and then to Point 3 in sequence. Point 3 is west of Duncans Point in Sonoma County. The CVPZ 2 boundary then extends east from Point 3 along a straight line arc connecting Point 3 and Point 4 until it intersects the Sanctuary boundary south of Duncans Point. The CVPZ 2 boundary then turns north to follow the Sanctuary boundary past Windermere Point until it intersects the straight line arc connecting Point 5 and Point 6. From this intersection the CVPZ 2 boundary continues due south along this straight line arc to Point 6.


Zone 2 Point

ID No.
Latitude
Longitude
138.48995−123.28994
238.43749−123.19789
338.37614−123.13153
4 *38.37614−123.07843
5 *38.54099−123.28994
638.48995−123.28994

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(3) Cargo Vessel Prohibition Zone 3 (CVPZ 3) encompasses an area of approximately 17 square nautical miles (22 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 3 boundary extends south and east from Point 1, west of the Estero de San Antonio in Sonoma County, to Point 2, south of Tomales Point in Marin County. The CVPZ 3 boundary then extends north and east from Point 2 along a straight line arc connecting Point 2 and Point 3 until it intersects the Sanctuary boundary. From this intersection the CVPZ 3 boundary follows the Sanctuary boundary around Tomales Point into Tomales Bay and continues until it again intersects the straight line arc that connects Point 2 and Point 3. From this intersection the CVPZ 3 boundary follows the straight line arc north and east across Tomales Bay until it intersects the Sanctuary boundary south of Toms Point in Tomales Bay. The CVPZ 3 boundary then follows the Sanctuary boundary northward past the Estero de San Antonio until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the boundary continues south and west to Point 5.


Zone 3 Point

ID No.
Latitude
Longitude
138.24496−123.05698
238.16758−123.00179
3 *38.21170−122.92566
4 *38.28215−122.99278
538.24496−123.05698

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(4) Cargo Vessel Prohibition Zone 4 (CVPZ 4) encompasses an area of approximately 28 square nautical miles (37 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 4 boundary extends south and west from Point 1, west and north of Point Reyes in Marin County, to Point 2, south and west of Point Reyes Lighthouse. The CVPZ 4 boundary then follows a straight line arc east and south from Point 2 to Point 3. From Point 3 the CVPZ 4 boundary follows a straight line arc north to Point 4. From Point 4 the CVPZ 4 boundary proceeds west along the straight line arc that connects Point 4 and Point 5 until it intersects the Sanctuary boundary at Drakes Beach. The CVPZ 4 boundary then follows the Sanctuary boundary around Point Reyes until it again intersects the straight line arc that connects Point 4 and Point 5, north of the Point Reyes Lighthouse. From this intersection the CVPZ 4 boundary turns seaward and continues west to Point 5 along this arc.


Zone 4 Point

ID No.
Latitude
Longitude
138.03311−123.06923
237.96053−123.07801
337.94655−122.91781
438.02026−122.91261
538.03311−123.06923

(5) Cargo Vessel Prohibition Zone 5 (CVPZ 5) encompasses an area of approximately 29 square nautical miles (39 square miles). The precise boundary coordinates are listed in the table following this description. The western CVPZ 5 boundary extends south and east from Point 1, west of Millers Point in Marin County, to Point 2, south and west of Bolinas Point. The CVPZ 5 boundary then follows a straight line arc east from Point 2 towards Point 3 until it intersects the Sanctuary boundary. From this intersection, the CVPZ 5 boundary follows the Sanctuary boundary north towards Rocky Point and continues along the Sanctuary boundary past Bolinas Point and Millers Point, respectively, including Bolinas Lagoon but not including Seadrift Lagoon, until it intersects the straight line arc that connects Point 4 and Point 5. From this intersection the CVPZ 5 boundary turns seaward and continues west and south along the straight line arc to Point 5.


Zone 5 Point

ID No.
Latitude
Longitude
137.96598−122.85997
237.86532−122.74797
3 *37.86532−122.63720
4 *37.99449−122.82841
537.96598−122.85997

Note: The coordinates in the table above marked with an asterisk (*) are not a part of the zone boundary. These coordinates are landward reference points used to draw a line segment that intersects with the shoreline.


(6) Cargo Vessel Prohibition Zone 6 (CVPZ 6) encompasses an area of approximately 21 square nautical miles (28 square miles) surrounding Southeast Farallon Island and extends from the Mean High Water Line to the CVPZ 6 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.


Zone 6 Point

ID No.
Latitude
Longitude
137.75264−123.01175
237.69461−123.07333
337.64621−122.99867
437.70538−122.93567
537.75264−123.01175

(7) Cargo Vessel Prohibition Zone 7 (CVPZ 7) encompasses an area of approximately 20 square nautical miles (26 square miles) surrounding the North Farallon Islands and extends from the Mean High Water Line to the CVPZ 7 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.


Zone 7 Point

ID No.
Latitude
Longitude
137.81914−123.11155
237.76497−123.16939
337.71623−123.09089
437.76872−123.03359
537.81914−123.11155

Appendix F to Subpart H of Part 922 – White Shark Approach Prohibition Zones in the Sanctuary

Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.


(1) White Shark Approach Prohibition Zone 1 (WSAPZ 1) encompasses an area of approximately 21 square nautical miles (28 square miles) surrounding Southeast Farallon Island and extends from the Mean High Water Line to the WSAPZ 1 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of Southeast Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.


Zone 1 Point

ID No.
Latitude
Longitude
137.75264−123.01175
237.69461−123.07333
337.64621−122.99867
437.70538−122.93567
537.75264−123.01175

(2) White Shark Approach Prohibition Zone 2 (WSAPZ 2) encompasses an area of approximately 20 square nautical miles (26 square miles) surrounding the North Farallon Islands and extends from the Mean High Water Line to the WSAPZ 2 boundary. The precise boundary coordinates are listed in the table following this description. The boundary extends south and west from Point 1, north of North Farallon Island, along a straight line arc to Point 2, then south and east along a straight line arc to Point 3, then north and east along a straight line arc to Point 4, then north and west along a straight line arc to Point 5.


Zone 2 Point

ID No.
Latitude
Longitude
137.81914−123.11155
237.76497−123.16939
337.71623−123.09089
437.76872−123.03359
537.81914−123.11155

Appendix G to Subpart H of Part 922 – Designated Area for Certain United States Coast Guard Discharges

Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).


The portion of the Greater Farallones National Marine Sanctuary area [2015 expansion area] where the exception for discharges from United States Coast Guard activities applies is defined as follows. Beginning with Point 1 identified in the coordinate table in this appendix, the boundary extends from Point 1 to Point 2 in a straight line arc, and continues from Point 2 to Point 3 in a straight line arc, and from Point 3 to Point 4 in a straight line arc. From Point 4 the boundary extends east and north along a straight line arc towards Point 5 until it intersects the fixed offshore boundary between the United States and California (approximately 3 NM seaward of the coast as defined in United States vs. California, 135 S. Ct. 563 (2014)). The boundary then extends northward following the fixed offshore boundary between the United States and California until it intersects the line segment formed between Point 6 and Point 7. From this intersection, the boundary extends west along the northern boundary of Greater Farallones National Marine Sanctuary to Point 7 where it ends.


Point No.
Latitude
Longitude
139.00000−124.33350
238.29989−123.99988
338.29989−123.20005
438.26390−123.18138
5
1
38.29896−123.05989
6
1
39.00000−123.75777
739.00000−124.33350


1 These coordinates are not a part of the boundary for the Designated Area for Certain United States Coast Guard Discharges. These coordinates are reference points used to draw line segments that intersect with the fixed offshore boundary between the United States and California.


[83 FR 55966, Nov. 9, 2018]


Subpart I – Gray’s Reef National Marine Sanctuary


Source:71 FR 60063, Oct. 12, 2006, unless otherwise noted.

§ 922.90 Boundary.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

The Gray’s Reef National Marine Sanctuary (Sanctuary) consists of approximately 16.68 square nautical miles of ocean waters and the submerged lands thereunder, off the coast of Georgia. The Sanctuary boundary includes all waters and submerged lands within the geodetic lines connecting the following coordinates:


Datum: NAD83

Geographic Coordinate System

(1) N 31.362732 degrees W 80.921200 degrees

(2) N 31.421064 degrees W 80.921201 degrees

(3) N 31.421064 degrees W 80.828145 degrees

(4) N 31.362732 degrees W 80.828145 degrees

(5) N 31.362732 degrees W 80.921200 degrees


§ 922.91 Definitions.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

In addition to those definitions found at § 922.3, the following definitions apply to this subpart:


Handline means fishing gear that is set and pulled by hand and consists of one vertical line to which may be attached leader lines with hooks.


Rod and reel means a rod and reel unit that is not attached to a vessel, or, if attached, is readily removable, from which a line and attached hook(s) are deployed. The line is payed out from and retrieved on the reel manually or electrically.


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, partially disassembled, or stowed for transit.


§ 922.92 Prohibited or otherwise regulated activities – Sanctuary-wide.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) Except as specified in paragraphs (b) through (d) of this section and in § 922.94 regarding additional prohibitions in the research area, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:


(1) Dredging, drilling into, or otherwise altering in any way the submerged lands of the Sanctuary (including bottom formations).


(2) Constructing any structure other than a navigation aid, or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands of the Sanctuary except weighted marker buoys that are continuously tended and used during otherwise lawful fishing or diving activities and that are not attached to a vessel and not capable of holding a boat at anchor. Weights used with a marker buoy shall not have a combined weight of more than 10 pounds, shall be attached with not greater than one-fourth inch (
1/4″) line and shall be removed from the Sanctuary within twelve (12) hours of deployment. Any weighted marker buoy that is not continuously tended may be removed by the Assistant Administrator or designee or an authorized officer, without notice.


(3) Discharging or depositing any material or other matter except:


(i) Fish or fish parts, bait, or chumming materials;


(ii) Effluent from marine sanitation devices; and


(iii) Vessel cooling water.


(4) Operating a watercraft other than in accordance with the Federal rules and regulations that would apply if there were no Sanctuary.


(5)(i) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead, within the Sanctuary by any means except by use of rod and reel, and handline gear;


(ii) There shall be a rebuttable presumption that any marine organism or part thereof referenced in this paragraph found in the possession of a person within the Sanctuary has been collected from the Sanctuary.


(6) Using any fishing gear within the Sanctuary except rod and reel, and handline gear, or for law enforcement purposes.


(7) Using underwater any explosives, or devices that produce electric charges underwater.


(8) Breaking, cutting, damaging, taking, or removing any bottom formation.


(9) Moving, removing, damaging, or possessing, or attempting to move, remove, damage, or possess, any Sanctuary historical resource.


(10) Anchoring, or attempting to anchor, any vessel in the Sanctuary, except as provided in paragraph (d) of this section when responding to an emergency threatening life, property, or the environment.


(11) Possessing or carrying any fishing gear within the Sanctuary except:


(i) Rod and reel, and handline gear;


(ii) Fishing gear other than rod and reel, handline gear, and spearfishing gear, provided that it is stowed on a vessel and not available for immediate use;


(iii) Spearfishing gear provided that it is stowed on a vessel, not available for immediate use, and the vessel is passing through the Sanctuary without interruption; and


(iv) For law enforcement purposes.


(b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this section and § 922.94. The exemption of additional activities having significant impacts shall be determined in consultation between the Director and the Department of Defense.


(c) The prohibitions in this section and in § 922.94 do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.93.


(d) The prohibitions in this section and in § 922.94 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment.


[76 FR 63832, Oct. 14, 2011, as amended at 79 FR 41881, July 18, 2014]


§ 922.93 Permit procedures and criteria.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) A person may conduct an activity prohibited by § 922.92(a)(1) through (10) and § 922.94 if conducted in accordance within the scope, purpose, manner, terms and conditions of a permit issued under this section and § 922.48.


(b) Applications for such permits should be addressed to the Director, National Marine Sanctuary Program, ATTN: Manager, Gray’s Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.


(c) The Director, at his or her discretion may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.92(a)(1) through (10). The Director must also find that the activity will:


(1) Further research related to the resources and qualities of the Sanctuary;


(2) Further the educational, natural, or historical resource value of the Sanctuary;


(3) Further salvage or recovery operations in connection with a recent air or marine casualty; or


(4) Assist in managing the Sanctuary.


(d) The Director shall not issue a permit unless the Director also finds that:


(1) The applicant is professionally qualified to conduct and complete the proposed activity;


(2) The applicant has adequate financial resources available to conduct and complete the proposed activity;


(3) The duration of the proposed activity is no longer than necessary to achieve its stated purpose;


(4) The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity’s goals in relation to the activity’s impacts on Sanctuary resources and qualities;


(5) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any indirect, secondary or cumulative effects of the activity, and the duration of such effects;


(6) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary as a source of recreation, or as a source of educational or scientific information considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;


(7) It is necessary to conduct the proposed activity within the Sanctuary to achieve its purposes;


(8) The reasonably expected end value of the activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse impacts on Sanctuary resources and qualities from the conduct of the activity; and


(9) There are no other factors that make the issuance of a permit for the activity inappropriate.


(e) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity.


(f) The Director shall, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public.


(g) The Director may, inter alia, make it a condition of any permit issued to require the submission of one or more reports of the status and progress of such activity.


(h) The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress or results of any activity authorized by the permit.


[71 FR 60063, Oct. 12, 2006, as amended at 76 FR 63832, Oct. 14, 2011]


§ 922.94 Prohibited or otherwise regulated activities – Research area.

In addition to the prohibitions set out in § 922.92, which apply throughout the Sanctuary, the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted within the research area described in Appendix A to this subpart.


(a)(1) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead.


(2) There shall be a rebuttable presumption that any marine organism or part thereof referenced in this paragraph found in the possession of a person within the research area has been collected from the research area.


(b) Using any fishing gear, or possessing, or carrying any fishing gear unless such gear is stowed and not available for immediate use while on board a vessel transiting through the research area without interruption or for valid law enforcement purposes.


(c) Diving.


(d) Stopping a vessel in the research area.


[76 FR 63832, Oct. 14, 2011]


Appendix A to Subpart I of Part 922 – Boundary Coordinates for the Gray’s Reef National Marine Sanctuary Research Area

[Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.]


The research area boundary is defined by the coordinates provided in Table 1 and the following textual description. The research area boundary extends from Point 1, the southwest corner of the sanctuary, to Point 2 along a straight line following the western boundary of the Sanctuary. It then extends along a straight line from Point 2 to Point 3, which is on the eastern boundary of GRNMS. The boundary then follows the eastern boundary line of the sanctuary southward until it intersects the line of the southern boundary of GRNMS at Point 4, the southeastern corner of the sanctuary. The last straight line is defined by connecting Point 4 and Point 5, along the southern boundary of the GRNMS.


Table 1 – Coordinates for the Research Area

Point ID
Latitude

(north, in degrees)
Longitude

(west, in degrees)
1N 31.362732W 80.921200
2N 31.384444W 80.921200
3N 31.384444W 80.828145
4N 31.362732W 80.828145
5N 31.362732W 80.921200

[76 FR 63832, Oct. 14, 2011]


Subpart J – National Marine Sanctuary of American Samoa


Source:77 FR 43962, July 26, 2012, unless otherwise noted.

§ 922.100 Scope of regulations.

The provisions of this subpart J apply only to the waters of the United States and the Territory of American Samoa that are located within the boundary of the National Marine Sanctuary of American Samoa (Sanctuary). Neither the provisions of this subpart J nor any permit issued under its authority shall be construed to relieve a person from any other requirements imposed by statute or regulation of the Territory of American Samoa or of the United States. In addition, no statute or regulation of the Territory of American Samoa shall be construed to relieve a person from the restrictions, conditions, and requirements contained in this subpart J.


§ 922.101 Boundary.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

The Sanctuary is comprised of six distinct units, forming a network of marine protected areas around the islands of the Territory of American Samoa. Tables containing the exact coordinates of each point described below can be found in Appendix to Subpart J – National Marine Sanctuary of American Samoa Boundary Coordinates.


(a) Fagatele Bay Unit. The Fagatele Bay Unit is a 163-acre (0.25 sq. mi.) coastal embayment formed by a collapsed volcanic crater on the island of Tutuila, Territory of American Samoa, and includes Fagatele Bay in its entirety. The landward boundary is defined by the mean higher high water line of Fagatele Bay until the point at which it intersects the seaward boundary of the Sanctuary as defined by a straight line between Fagatele Point (−14.36527, −170.76932) and Steps Point (−14.37291, −170.76056) from the point at which it intersects the mean higher high water line seaward.


(b) Fagalua/Fogama’a Unit. The landward boundary of the Fagalua/Fogama’a Unit is defined by the mean higher high water line of Fagalua/Fogama’a until the point at which it intersects the seaward boundary of the Fagalua/Fogama’a Unit as defined by a straight line between Steps Point (−14.37307, −170.75852) and Sail Rock Point (−14.36534, −170.74119) from the point at which it intersects the mean higher high water line seaward.


(c) Aunu’u Unit. The Aunu’u Unit is comprised of two adjacent zones.


(1) Zone A. The Aunu’u Unit boundary for Zone A is defined by the coordinates provided in Table 1 and the following textual description. The Zone A boundary extends from Point 1, the northwest corner of the unit, southward to Point 2 along a straight line following the western boundary of the unit, which is aligned with Taugamalama Point on Tutuila. It then extends northeastward in a multi-part line along the deepest seaward edge of Nafanua Bank from Point 2 to Point 3 and then to Point 4, which lies on the southern boundary of Zone B. The boundary then follows a straight line westward towards Point 5 until it intersects the mean higher high water line at the southern tip of Ma’ama’a Cove. The landward boundary of Zone A is defined by the mean higher high water line from this intersection point at the southern tip of Ma’ama’a Cove to the intersection of the mean higher high water line and the straight line between Point 6 and Point 7 at Salevatia Point. From this intersection point at Salevatia Point, the boundary extends straight west to Point 7, which has the exact same coordinates as Point 1.


(2) Zone B. The Aunu’u Unit boundary for Zone B is defined by the coordinates provided in Table 2 and the following textual description. The Zone B boundary extends from Point 1, the northeast corner of the unit, southward along a straight line following the eastern boundary of the unit to Point 2, which is on the southern boundary of the unit. The southern boundary then follows a line westward towards Point 3 until it intersects the mean higher high water line at the southern tip of Ma’ama’a Cove Point. The landward boundary of Zone B is defined by the mean higher high water line from this intersection point at the southern tip of Ma’ama’a Cove around the volcanic crater to the intersection of the mean higher high water line and the straight line between Point 4 and Point 5. From here, the boundary extends seaward straight north to Point 5. The northern border, the last straight line, is defined by connecting Point 5 and Point 6, along the northern boundary of the unit, which is aligned with Matuli Point on Tutuila. Point 6 has the exact same coordinates at Point 1.


(d) Swains Island Unit. The Swains Island Unit boundary is defined by the coordinates in Table 3 and the following textual description. The seaward boundary of the Swains Island Unit approximates the three nautical mile territorial sea boundary from the mean higher high water line (shoreline) of the island. The seaward boundary begins south of the island at Point 1 and continues initially to the west in sequential order clockwise around the island to Point 33. The landward boundary of the Swains Island Unit is the mean higher high water line and begins on the northern shoreline of the island and follows the shoreline counterclockwise initially to the west until it intersects the line segment between Point 34 and 35. From this intersection the boundary continues offshore to the northwest to Point 35 and then to Point 36 and Point 37. From Point 37 the boundary continues east-northeast towards Point 38 until it intersects the shoreline. From this intersection the boundary follows the shoreline southeast around the southernmost part of the island and then to the northeast until it intersects the line segment between Point 39 and Point 40. From this intersection the boundary continues offshore to the southeast to Point 40 and then to the northeast to Point 41. From Point 41 the boundary continues to the northwest towards Point 42 until it intersects the shoreline. From this intersection the boundary follows the shoreline initially to the northeast around the island counterclockwise and then to the northwest back to where it began on the northern shoreline.


(e) Muliāva Unit. The Muliāva Unit boundary is defined by the coordinates provided in Table 4 and the following textual description. The landward boundary of the Muliāva Unit is the extreme low water line, which adjoins the boundary of the Rose Atoll National Wildlife Refuge. The Muliāva Unit seaward boundary extends from Point 1, the southwest corner of the unit, to Point 2 along a straight line northward following the western boundary of the unit. From Point 2, the line extends in a straight line westward to Point 3. It then extends along a straight line northward to Point 4. From Point 4, the line extends in a straight line eastward to Point 5. From Point 5, the line extends along a straight line northward to Point 6. It then extends along a straight line eastward from Point 6 to Point 7, which is on the eastern boundary of the unit. The boundary then follows a straight line southward until it intersects the line of the southern boundary of the unit at Point 8, the southeastern corner of the unit. The last straight line is defined by connecting Point 8 and Point 9, which has the exact same coordinates as Point 1, along the southern boundary of the unit.


(f) Ta’u Unit. The Ta’u Unit boundary is defined by the coordinates provided in Table 5 and the following textual description. The Ta’u Unit boundary extends from Point 1, Vaita Point, along the mean higher high water line southward along the western coast to Point 2, Si’ufa’alele Point. From Point 2, the boundary extends offshore 0.25 miles to Point 3 to become conterminous with the offshore boundary of the National Park of American Samoa. From Point 3 the boundary continues to follow the coastline 0.25 miles offshore until it reaches Point 4, which is directly south of Si’u Point. From Point 4, the boundary extends due south to Point 5. From Point 5, the boundary extends due west to Point 6, forming the southern border of the unit. From Point 6, the boundary extends due north until it reaches Point 7, directly west and one mile offshore from Point 8, which is Point 1, also known as Vaita Point.


[77 FR 43962, July 26, 2012, as amended at 80 FR 79683, Dec. 23, 2015]


§ 922.102 Definitions.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

In addition to those definitions found at § 922.3, the following definitions apply to this subpart:


Clean means not containing detectable levels of harmful matter.


Fishing means the catching, taking, or harvesting of marine species; the attempted catching, taking, or harvesting of marine species; any other activity which can reasonably be expected to result in the catching, taking, or harvesting of marine species; or any operation at sea in support of, or in preparation for, any activity described in this definition.


Harmful matter means any substance, or combination of substances that, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed at 40 CFR 302.4 pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act.


Introduced species means any species (including, but not limited to, any of its biological matter capable of propagation) that is nonnative to the ecosystem(s) protected by the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.


Live rock means any Coral, basalt rock, or other natural structure with any living organisms growing in or on the Coral, basalt rock, or structure.


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).


§ 922.103 Prohibited or otherwise regulated activities – Sanctuary-wide.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:


(1) Introducing or releasing introduced species from within or into the sanctuary.


(2) Anchoring a vessel.


(3) Deserting a vessel aground, adrift, or at anchor.


(4) Leaving harmful matter on an abandoned or deserted vessel or structure.


(5) Operating a vessel at a speed exceeding three knots when closer than 200 feet (60.96 meters) of another vessel displaying a dive flag.


(6) Operating a vessel in a manner which causes the vessel to strike or otherwise cause damage to Sanctuary resources.


(7) Diving, snorkeling, or conducting diving or snorkeling operations from a vessel not in compliance with applicable U.S. Coast Guard navigation rules governing the display of lights and signals, and not flying in a conspicuous manner the international code flag alpha “A” or the standard red-and-white U.S. “diver down” flag.


(8) Discharging, or depositing from within or into the Sanctuary, any material or other matter, except clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, anchor wash, or vessel engine or generator exhaust.


(9) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraph (a)(8) of this section and § 922.105(c).


(10) Sand mining, dredging, filling, dynamiting, or otherwise disturbing or altering the seabed.


(11) Removing, damaging, or tampering with any historical or cultural resource.


(12) Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.


(13) Using or discharging explosives or weapons of any description. Distress signaling devices, necessary and proper for safe vessel operation, and knives generally used by fishermen and swimmers shall not be considered weapons for purposes of this section.


(14) Marking, defacing, or damaging in any way, or displacing or removing or tampering with any signs, notices, or placards, whether temporary or permanent, or with any monuments, stakes, posts, or other boundary markers related to the Sanctuary.


(15) Abandoning a structure, material, or other matter on or in the submerged lands of the Sanctuary.


(b) The prohibitions in paragraphs (a)(1) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary for national defense.


(c) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment.


(d) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity necessary for valid law enforcement purposes in the Sanctuary.


(e) The prohibitions in paragraphs (a)(2) through (15) of this section, § 922.104, and § 922.105 do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.107.


§ 922.104 Prohibited or otherwise regulated activities – Sanctuary-wide except in the Muliāva Unit.

(a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within any unit of the Sanctuary except the Muliāva Unit:


(1) Gathering, taking, breaking, cutting, damaging, destroying, or possessing any giant clam [Tridacna spp.], live coral, bottom formation including live rock and crustose coralline algae.


(2) Possessing or using poisons, electrical charges, explosives, or similar environmentally destructive methods of fishing or harvesting.


(3) Possessing or using spearguns, including such devices known as Hawaiian slings, pole spears, arbalettes, pneumatic and spring-loaded spearguns, bows and arrows, bang sticks, or any similar taking device while utilizing SCUBA equipment.


(4) Possessing or using a seine, trammel, drift gill net, or any type of fixed net.


(5) Disturbing the benthic community by bottom trawling.


(b) There shall be a rebuttable presumption that any items listed in paragraph (a) of this section found in the possession of a person within the Sanctuary have been used, collected, or removed within or from the Sanctuary.


§ 922.105 Prohibited or otherwise regulated activities – Unit-specific.

In addition to the prohibitions set forth in § 922.103 and § 922.104, the following regulations apply to activities conducted within specified Sanctuary units described in the appendix to this subpart.


(a) The following activities are prohibited in the Fagatele Bay Unit:


(1) Harvesting, catching, removing, taking, injuring, destroying, collecting, moving, possessing or causing the loss of any Sanctuary resource, including but not limited to fishing, or attempting any of these activities.


(2) Possessing fishing gear unless such gear is stowed and not available for immediate use.


(b) The following activities are prohibited in the Aunu’u Unit:


(1) In Zone A: Fishing from a vessel without providing notification to the Sanctuary Superintendent or his/her designee in the village of Aunu’u prior to each fishing trip.


(2) In Zone B:


(i) Fishing for bottom-dwelling species or otherwise harvesting, catching, removing, taking, injuring, destroying, collecting, moving, or causing the loss of any bottom-dwelling species, or attempting any of these activities. Surface fishing for pelagic species, including trolling, is allowed.


(ii) Disturbing the benthic community.


(iii) Possessing any Sanctuary resource, except legally harvested fish on board a vessel.


(c) In the Muliāva Unit:


(1) The prohibitions in paragraphs (a)(2) through (7) and (a)(9) through (15) of § 922.103 do not apply to scientific exploration or research activities conducted by or for the Department of Commerce or the Department of the Interior.


(2) Notwithstanding the prohibition in § 922.103(a)(8), the following vessels may discharge treated waste from a U.S. Coast Guard approved Type I, II, or III Marine Sanitation device 12 nautical miles seaward of the Rose Atoll National Wildlife Refuge:


(i) Vessels engaged in scientific exploration or research activities conducted by or for the Department of Commerce or the Department of the Interior; or


(ii) All other vessels engaged in scientific exploration or research activities, if authorized under a permit issued in consultation with the U.S. Fish and Wildlife Service and in accordance with § 922.48 and § 922.107.


§ 922.106 Management and enforcement.

The National Oceanic and Atmospheric Administration (NOAA) has primary responsibility for the management of the Sanctuary pursuant to the Act. The American Samoa Department of Commerce (ASDOC) will assist NOAA in the administration of the Sanctuary, and act as the lead territorial agency, in conformance with the terms of designation, these regulations, and the terms and provisions of any grant or cooperative agreement.


§ 922.107 Permit procedures and criteria.

Link to an amendment published at 87 FR 29633, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

(a) Any person in possession of a valid permit issued by the Director, in consultation with the ASDOC, in accordance with this section and § 922.48, may conduct an activity otherwise prohibited by § 922.103, § 922.104, and § 922.105 in the Sanctuary if such activity is judged not to cause long-term or irreparable harm to the resources of the Sanctuary, and is:


(1) Related to research involving Sanctuary resources designed to enhance understanding of the Sanctuary environment or to improve resource management decisionmaking;


(2) Intended to further the educational value of the Sanctuary and thereby enhance understanding of the Sanctuary environmental or improve resource management decisionmaking;


(3) Intended to further the management of the Sanctuary; or


(4) For salvage or recovery operations.


(b) Permit applications shall be addressed to the Director, Office National Marine Sanctuaries; ATTN: Sanctuary Superintendent, American Samoa National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 96799.


(c) In considering whether to grant a permit, the Director shall evaluate such matters as:


(1) The general professional and financial responsibility of the applicant;


(2) The appropriateness of the methods being proposed for the purpose(s) of the activity;


(3) The extent to which the conduct of any permitted activity may diminish or enhance the value of the Sanctuary as a source of recreation, education, or scientific information; and


(4) The end value of the activity.


(d) In addition to meeting the criteria in this section and § 922.48, the applicant also must demonstrate to the Director that:


(1) The activity shall be conducted with adequate safeguards for the environment; and


(2) The environment shall be returned to, or will regenerate to, the condition which existed before the activity occurred.


(e) The Director may, at his or her discretion, grant a permit which has been applied for pursuant to this section, in whole or in part, and subject the permit to such condition(s) as he or she deems necessary.


Appendix to Subpart J of Part 922 – American Samoa National Marine Sanctuary Boundary Coordinates

[Coordinates listed in this appendix are unprojected (Geographic) and based on the North American Datum of 1983.]


(a) Fagatele Bay

No coordinates are needed in addition to those described in § 922.101(a).


(b) Fagalua/Fogama’a

No coordinates are needed in addition to those described in § 922.101(b).


(c) Aunu’u (Zones A, B)

The Aunu’u Unit is comprised of two adjacent zones, described in § 922.101(c), for which the point coordinates are provided in following tables 1 and 2.


Table 1 – Coordinates for the Aunu’u Unit, Zone A

Point ID
Latitude

(south)
Longitude

(west)
1 −14.286 −170.577
2 −14.304 −170.577
3 −14.302 −170.566
4 −14.286 −170.533
5 −14.286 −170.546
6 −14.286 −170.562
7 −14.286 −170.577

Table 2 – Coordinates for the Aunu’u Unit, Zone B

Point ID
Latitude

(south)
Longitude

(west)
1 −14.270 −170.496
2 −14.286 −170.496
3 −14.286 −170.546
4 −14.280 −170.550
5 −14.270 −170.550
6 −14.270 −170.496

(d) Swains Island

The Swains Island Unit boundary is defined by the coordinates provided in Table 3 and the textual description in § 922.101(d).


Table 3 – Coordinates for the Swains Island Unit

Point ID
Latitude

(south)
Longitude

(west)
1 −11.11457−171.06870
2 −11.11565−171.07980
3 −11.11422−171.09248
4 −11.11005−171.10445
5 −11.10388−171.11445
6 −11.09533−171.12392
7 −11.08375−171.13272
8 −11.07268−171.13775
9 −11.06112−171.14042
10−11.04880−171.14067
11−11.03618−171.13800
12−11.02673−171.13367
13−11.01853−171.12773
14−11.01010−171.11828
15−11.00402−171.10710
16−11.00083−171.09728
17−10.99817−171.08305
18−10.99783−171.06825
19−10.99983−171.05732
20−11.00373−171.04790
21−11.00955−171.03862
22−11.01752−171.02985
23−11.02703−171.02290
24−11.03763−171.01805
25−11.04812−171.01558
26−11.05860−171.01527
27−11.06860−171.01695
28−11.07957−171.02133
29−11.08850−171.02727
30−11.09637−171.03502
31−11.10637−171.04840
32−11.11122−171.05753
33−11.11457−171.06870
34−11.05188−171.08921
35−11.04856−171.09269
36−11.05487−171.09445
37−11.06024−171.09283
38−11.05848−171.08824
39−11.06369−171.07618
40−11.06741−171.07364
41−11.06217−171.06622
42−11.05836−171.06879

(e) Muliāva

The Muliāva Unit boundary is defined by the coordinates provided in Table 4 and the textual description in § 922.101(e).


Table 4 – Coordinates for the Muliāva Unit

Point ID
Latitude

(south)
Longitude

(west)
1 −15.387 −169.012
2 −14.271 −169.012
3 −14.271 −169.121
4 −14.150 −169.121
5 −14.150 −169.012
6 −13.698 −169.012
7 −13.698 −167.283
8 −15.387 −167.283
9 −15.387 −169.012

(f) Ta’u Unit


The Ta’u Unit boundary is defined by the coordinates provided in Table 5 and the textual description in § 922.101(f).


Table 5 – Coordinates for the Ta’u Unit

Point ID
Latitude

(south)
Longitude

(west)
1 −14.24889−169.503056
2 −14.273056−169.488056
3 −14.277222−169.488056
4 −14.261111−169.429167
5 −14.293889−169.429167
6 −14.293889−169.519722
7 −14.24889−169.519722
8 −14.24889−169.503056

[80 FR 79683, Dec. 23, 2015]


Subpart K – Cordell Bank National Marine Sanctuary


Source:80 FR 13115, Mar. 12, 2015, unless otherwise noted.

§ 922.110 Boundary.

Link to an amendment published at 87 FR 29634, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

The Cordell Bank National Marine Sanctuary (Sanctuary) boundary encompasses a total area of approximately 971 square nautical miles (1,286 square miles) of offshore ocean waters, and submerged lands thereunder, surrounding the submarine plateau known as Cordell Bank along-the northern coast of California, approximately 45 nautical miles west-northwest of San Francisco, California. The precise boundary coordinates are listed in appendix A to this subpart. The northern boundary of the Sanctuary is a rhumb line that begins approximately 6 nautical miles (7 miles) west of Bodega Head in Sonoma County, California at Point 1 and extends west approximately 38 nautical miles (44 miles) to Point 2. This line is part of a shared boundary between the Sanctuary and Greater Farallones National Marine Sanctuary (GFNMS). The western boundary of the Sanctuary extends south from Point 2 approximately 34 nautical miles (39 miles) to Point 3. From Point 3 the Sanctuary boundary continues east 15 nautical miles (17 miles) to Point 4 where it intersects the GFNMS boundary again. The line from Point 3 to Point 4 forms the southernmost boundary of the Sanctuary. The eastern boundary of the Sanctuary is a series of straight lines connecting Points 4 through 20 in numerical sequence. The Sanctuary is coterminous with GFNMS along both its (the Sanctuary’s) eastern and northern boundaries.


[80 FR 13115, Mar. 12, 2015, as amended at 80 FR 34048, June 15, 2015]


§ 922.111 Definitions.

Link to an amendment published at 87 FR 29634, May 13, 2022.
This amendment was delayed until Sept. 26, 2022, at 87 FR 37728, June 24, 2022.
This amendment was further delayed to Jan. 24, 2023 at 87 FR 56276, Sept. 14, 2022.

In addition to the definitions found in § 922.3, the following definitions apply to this subpart:


Clean means not containing detectable levels of harmful matter.


Cruise ship means a vessel with 250 or more passenger berths for hire.


Har